STATE CENTRAL AUTHORITY & GEDEON
[2016] FamCA 633
•5 August 2016
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & GEDEON | [2016] FamCA 633 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – where a return order is sought – where the child was wrongfully retained – where the application was filed more than 12 months after the child was retained in Australia – where the child is settled in his new environment – where the Court considers there not to be a discretion open to the Court to make a return order despite having found the child is settled in Australia – where the Court finds that if a discretion did exist it would not be exercised – where the application is dismissed. |
| Family Law Act 1975 (Cth) s 111B |
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Convention on the Civil Aspects of International Child Abduction (25 October 1980)
| AC v PC [2004] HKMP 1238 |
| APPLICANT: | Commissioner of Police South Australia (State Central Authority) |
| RESPONDENT: | Ms Gedeon |
| FILE NUMBER: | ADC | 940 | of | 2016 |
| DATE DELIVERED: | 5 August 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 23 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Stanley |
| SOLICITOR FOR THE APPLICANT: | Crown Solicitor's Office |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | In Person |
Orders
The Form 2 Initiating Application filed by the Commissioner of Police South Australia (State Central Authority) on 18 March 2016 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Gedeon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 940 of 2016
| Commissioner of Police South Australia (State Central Authority) |
Applicant
And
| Ms Gedeon |
Respondent
REASONS FOR JUDGMENT
Introduction
By Initiating Application filed 18 March 2016 the Commissioner of Police of South Australia (State Central Authority) (“State Central Authority”) issued proceedings pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“Child Abduction Regulations”). The Child Abduction Regulations are the means by which the Commonwealth of Australia has elected to give effect to its obligations as a signatory of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“1980 Hague Convention”). The Child Abduction Regulations are made pursuant to s 111B of the Family Law Act 1975 (Cth) (“the Act”).
The State Central Authority seeks orders for the return of B born … 2010 (“the child”) to Hungary. The child currently resides in Australia with his mother Ms Gedeon (“the mother”).
The child’s father Mr C (“the father”) continues to reside in Hungary. He has signed an authority empowering the State Central Authority to act on his behalf in respect of this application.
The matter was heard before me over two days commencing 23 May 2016. The State Central Authority was represented by Ms Stanley of counsel. The mother appeared in person.
Background
The mother was born in 1978 and was 38 years of age at the time of trial. She has recently gained employment as an instructor. The father was born in 1976 and was 39 years of age at the time of trial. He is employed in a profession.
The mother and father commenced their relationship in Hungary in around 1999 and married in 2005. They separated in March 2013 and were divorced on 28 June 2013.
There are two children of the relationship D born in 2006 (“D”) and B born in 2010 (“the child”).
The mother and father are both citizens of Hungary. The father remains in Hungary with D while the mother resides in Australia with the child of these proceedings.
On 28 June 2013 the District Court of E Town in Hungary approved an agreement between the mother and father which provided for the mother to have custody of both children with the father retaining specific visitation rights.
The mother brought an application to vary the agreement in late 2013. A temporary measure was ordered on 7 February 2014 which allowed the mother to reside in Australia with the child between 7 April 2014 and 30 November 2014. The father signed a visa application for the child to remain in Australia during this period.
The mother travelled to Australia on 7 May 2014 with her partner Mr F and the child. The mother and Mr F married in Australia in 2014. There is one child of that relationship, G born in September 2014 (“G”). Mr F is a Hungarian citizen but chooses to reside in Australia.
The mother failed to return the child to Hungary after 30 November 2014. It is the mother’s position that her failure to abide by court orders was due to the difficulty she had securing travel documents for G. G’s passport was eventually issued on 30 March 2015.
The mother travelled to Hungary with the child on 29 April 2015 for the purpose of a court hearing and to take part in the family assessment. She returned to Australia with the child on 5 May 2015.
By order of the Hungarian court dated 9 November 2015 the father was granted custody of the child and the mother was required to return the child within one month. The mother did not comply with this order. She remained in Australia.
On 1 December 2015 the father filed a request for return in accordance with the 1980 Hague Convention. The Form 2 Application was subsequently filed in this Court on 18 March 2016. The mother was served by Australian Federal Police on 30 March 2016.
The matter first came before me on 5 April 2016. On that occasion the matter was adjourned for interim argument to 19 April 2016. On 19 April 2016 I listed the matter for trial commencing 23 May 2016.
The State Central Authority on behalf of the father relied upon the following documents:
(1)form 2 Application filed 18 March 2016;
(2)affidavit of Ms H filed 18 March 2016 annexing:
(a)the father’s request for return;
(b)the child’s birth certificate;
(c)affidavit of the father sworn 29 January 2016;
(d)orders of the District Court of E Town dated 7 February 2014 and 9 9 November 2015;
(e)certificate of law dated 15 December 2015;
(f)letter outlining the relevant Hungarian law produced on behalf of the Advisor on Public Administration, Ministry of Justice of Hungary, Department of Private International Law dated 19 February 2016;
(3)affidavit of Ms H filed 27 April 2016 annexing the affidavit of the father dated 15 April 2016;
(4)affidavit of Ms H filed 10 May 2016 annexing a translated judgment of the E Town Court of Second Instance dated 6 April 2016.
In addition counsel for the State Central Authority sought to rely upon an Outline of Case document filed 11 May 2016.
The mother relied upon the following documents:
(1)affidavits of the mother filed 5 April 2016 and 5 May 2016;
(2)affidavit of Mr I (school principal) filed 5 May 2016;
(3)affidavit of Ms J (swim school instructor) filed 5 May 2016.
In addition the mother sought to rely upon an Outline of Case document filed 11 May 2016.
The Issues
The mother challenges the application for return. Her primary argument is that the application was filed more than one year after the date upon which the child was removed from Hungary. The child travelled to Australia with the mother on 7 May 2014. The application initiating proceedings was filed on 18 March 2016. The mother argues that given those circumstances the child is now settled in his new environment in Australia.
It is conceded on behalf of the father that more than one year has passed between the retention of the child and the application before me and therefore subreg 16(2) of the Child Abduction Regulations applies. However he does not accept that the child has settled in Australia.
The issues in dispute were therefore identified at the commencement of the hearing as follows:
a)whether the child is settled in Australia (subreg 16(2));
b)whether the Court has discretion to make a return order;
c)whether the Court can exercise its discretion to order the return of the child to Hungary should the Court determine that the child is settled in Australia.
Further issues which may also require consideration are as follows:
d)whether there is a grave risk that returning the child to Hungary would expose him to physical or psychological harm or otherwise place the child in an intolerable situation (subreg 16(3)(b));
e)whether the child objects to being returned (subreg 16(3)(c));
f)whether the father was exercising his rights of custody at the time of the alleged removal or retention of the child (subreg 16(3)(a)).
Was the child wrongfully retained?
An order for return of the child under the Child Abduction Regulations is available where the child has been wrongfully removed or wrongfully retained.
The allegation of the father is that the child was wrongfully retained by the mother on 1 December 2014 when she failed to return the child to Hungary as had been agreed between the parties and ordered by the Hungarian court. The date of the alleged wrongful retention is significant in the implementation of the 1980 Hague Convention and the Child Abduction Regulations. If the Court is not satisfied that the elements of wrongful retention are present at the relevant point in time, the retention will not be considered wrongful within the meaning of the Child Abduction Regulations and return will not be mandatory unless certain exceptional circumstances apply.
Subregulation 16(1A) provides that a child’s removal to Australia “is wrongful” if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or along); or
(ii)would have exercised those rights if the child had not been removed or retained.
In the context of subreg 16(1A) there is no issue in relation to the age of the child and that the father had, and was exercising, rights of custody at the time of the alleged wrongful retention. The disputed issue is whether the child was habitually resident in Hungary immediately before the wrongful retention which the State Central Authority on behalf of the father alleges took place on 1 December 2014.
The State Central Authority says that the habitual residence of the child immediately prior to the wrongful retention in Australia was Hungary. The mother disputes this contention.
In LK v Director-General, Department of Community Services (2009) 237 CLR 582 the High Court considered the principles applying to a determination of habitual residence. The Court considered there to be a wide variety of circumstances that bear upon where a child resides and whether that residence is habitual. The Court also considered the past and present intentions of the child’s parents to affect the significance that is to be attached to particular circumstances, such as the duration of a person’s connections with a place of residence. In relation to intention the High Court said at [34]:
… when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
The father maintains that it was not intended that the child be taken to Australia on a permanent basis. He agrees that there was a temporary arrangement whereby the child would remain in Australia for a short period, but that it was his understanding that the child would return to Hungary with the mother. I accept the father’s evidence on this point.
It is the mother’s position that following the period of the temporary agreement, which expired on 30 November 2014, it was intended that the parties would discuss the future arrangements for both children. The mother says that she attempted to speak to the father on numerous occasions about her moving permanently to Australia with the children but ultimately discussions did not eventuate. I am satisfied that the mother’s intention was that the child would live in Australia unless or until an order was made in the Hungarian court requiring her to return the child to Hungary. She says that it was not until 6 May 2016 upon the appeal being heard in Hungary that she was required to return the child. In any event, she rejects the order of that court on the basis that the child is now settled in Australia.
In Zotkiewicz v Commissioner of Police (No 2) (2011) FLC 93-472 the Full Court said at [74] that in order to find someone is habitually resident in a place “they must generally have lived there for an “appreciable period”” and at [75] “[w]hat amounts to an “appreciable period” will differ from case to case, and in our view it must be dependent to some extent on the intentions of the parents”.
The Full Court said at [81]:
… it is important to find a “strong and readily perceptible link” between the child and the country in which he is said to be habitually resident, as this recognises “that if children are to be linked to a State, and sent back there, they should have “a real and active connection with that place”. Additionally … concentration on the issue of whether, from the child’s perspective, there is a “real and active connection” with the purported place of habitual residence “further serves to distinguish the concept of habitual residence from that of domicile, which can be acquired immediately”.
The child has developed a connection to Australia. He is enrolled in school and involved in community activities including swimming lessons and culturally specific classes. However, I am cognizant of the connection the child retains with Hungary. Prior to the mother removing the child from Hungary the child attended kindergarten and was seemingly well settled in a country in which he had lived his whole life.
I am satisfied that the child remained habitually resident in Hungary at 1 December 2014 (being the date of wrongful retention alleged by the State Central Authority). The other elements of subreg 16(1A) are not disputed and accordingly I find that the child was wrongfully retained within the meaning of the Child Abduction Regulations.
Is the child settled in his new environment?
Consequently, the second determination for the Court is whether the child has settled in his new environment.
Counsel for the State Central Authority directed the Court to the decision of Nicholson CJ in Secretary, Attorney-General’s Department & TS [2000] FamCA 1692. The Court in this case confirmed that the respondent bears the onus of proof as to this aspect of the proceedings. At [110] his Honour said:
It also seems clear that the onus lies on the mother to establish the proposition that the child is settled in his new environment. I do not regard this as a particularly heavy onus but simply the establishment of an issue of fact determined on the balance of probabilities.
The mother relies on the following facts as establishing that the child is settled in Australia:
a)the child has lived in Australia for almost two years;
b)he has regularly attended the local school;
c)he is involved in activities within the school and the community including swimming lessons;
d)he has made advances in his social and emotional development;
e)he enjoys living in Australia and has made friends at school and within the local community.
In Townsend & Director-General, Department of Families, Youth and Community (1999) FLC 92-842 the Full Court declined to follow the test established in Graziano & Daniels (1991) FLC 92-212 which their Honours said suggests that “the test for whether a child is “settled in his or her new environment” requires a degree of settlement which is more than mere adjustment to surroundings, or that the word “settled” has two constituent elements, a physical element and an emotional constituent...”. Instead their Honours agreed with the Full Court in Director-General, Department of Community Services & M and C and the Child Representative (1998) FLC 92-829 that:
The test, and the only test to be applied, is whether the children have settled in their new environment. That test is to be applied either at the time of application being made or at the time of trial. It is unnecessary to consider which date is the relevant one in the context of this case, given the short period between the two dates.
The term “settled” should be given its ordinary and natural meaning.
The decision in Department of Child Safety & Kells [2009] FamCA 452 is of assistance in that the Court has established factors relevant to the determination of whether a child is settled. Le Poer Trench J outlines these factors in Department of Family and Community Services & Raho [2013] FamCA 530. At [244] the factors his Honour had regard to, arising from the decided cases, in order to determine whether the children were settled in Australia were:
d) has the mother established a stable physical and financial environment for the children?
e) to what extent are the children embedded in their current community (schools, supports, friends, extracurricular activities)?
f) the nature and circumstances of each child which may impact upon an assessment of whether each child is settled.
The evidence in relation to whether or not the child has settled in his new environment is contained in the affidavits of the mother filed 5 April 2015 and 5 May 2016 and the affidavits of the school principal and swim instructor both filed 5 May 2016.
The evidence of the mother is that the child enjoys living in Adelaide with the mother, her husband and their child. They share a close relationship. The child is attending school and regular swimming classes. The mother says that although English is his second language he has progressed significantly academically and has developed friendships with school mates and other children in the community. The mother says that the child attends a Hungarian school in Suburb K where he learns Hungarian folklore dance and maintains his Hungarian language and culture. It was submitted that the child’s significant social connections are now in Australia.
The evidence of Ms J, the child’s swim school instructor, was that the child has regularly attended lessons since 24 July 2014. The witness provided details of the child’s excellent progress including his graduation from beginner classes. She says “[h]is progress is a reflection of multiple factors including commitment to class and regular attendance, excellent listening skills and enthusiasm to learn swimming and important life skill”. In her affidavit the witness also refers to her observations of the child:
[The child] is consistently a pleasant, happy, well adjusted boy who communicates well with his swim school teachers, and support staff. We have never had any behavioural problems in class, or witnessed any issues between [the child] and his Mother and Stepfather which I believe is a reflection of [the child’s] happiness, and is evidence of a loving caring family environment which is essentially paramount to the welfare of any child…
Ms J was not called for cross examination.
The evidence of Mr I, the principle of L School, outlined the child’s progress at school. In his affidavit, Mr I said:
After a bumpy start adjusting to the school’s expectations, he is now extremely settled and is making good progress. He has developed a strong relationship with both his teachers.
Under cross examination Mr I expanded on his observation that there were a number of difficulties when the child commenced school relating to his adjustment in the classroom and overall school environment. However, his evidence was that this was only initially and the child’s integration has since improved.
Counsel for the State Central Authority relied upon evidence contained in the affidavit of the father, in particular his assessment that the child “is still attached to his life in Hungary”.
Counsel also relied upon the Specialist’s Opinion of Integrative Forensic Psychological Examination, Tests and Findings dated 6 July 2015 (“the report”). The report was prepared by Mr M a Hungarian psychologist following order of the County Court of E Town.
In particular counsel for the State Central Authority relied upon the following finding of the specialist in relation to the child:
He is a bit confused as to where he is and what’s going on but it is normal for his age. He is 4,5 (sic) years old at the time of the test. He is always happy where he actually is. He is proud of his relationship with his older brother, they came in the room together, they were hugging each other, it was very touching to see the bond between them. At the same time it is heartbreaking to see how his brother [D], he is constantly fighting his fear of missing out on something. He is staying here with his father and he is even making up a serious story to explain it and he is really sticking to that story although his heart is somewhere else and his emotions are taking him far away. He is really interested in what’s out there and all of it is generating some serious tension in him. It is a conflict that he cannot solve, and he has already developed a tic.
He is a bit confused about time and place but his bond to his father and especially to his older brother is obvious. The two brothers were touching, hugging, kissing each other, they were really moved emotionally. It just goes to show that a child of this age needs a lot of physical contacts, too.”
Also important is the mother’s comments to the expert:
[The child] is also going swimming regularly. He has just started prep school … Through the Hungarian club we met many other families who have kids the same age as him … We also met an Australian girl who has a son the same age as [the child] so we meet a lot. I can say we have a good social network. And we are also friends with those in the prep school.
Generally the mother reported that the child had handled the move to Australia well. However, at page [5] the following is recorded as the mother’s account:
“… [The child] was taking it in well, it was not very strange for him. I think these two-and-a half, three months were enough to get him prepared for the separation and when we were about to leave he was really looking forward to it, he was so happy to get on the plane. And he said goodbye to [D] and his dad and we just left. I was most surprised that he had no strange or unexpected reactions and he really seemed to be okay with it. He asked me when we will see [D] and I told him ‘soon enough’. All right. He never once told me that he wanted to come back or that he was missing this or that or why he couldn’t see someone he knew. We talked a lot. We talked about [D], about his dad, about friends and he was really sweet because he had a lot of fond memories of people and places and stuff. Some of them had happened really a long time before. Recently he started to say how good it would be if we could have [D] with us. So he never said he wanted to go back to Hungary but he said he would like [D] to join us in Australia. And some time ago when he made a drawing of the family he would include all of us. [Mr F], Mom, his little brother [G], [D], Dad, and of course himself. We never said anything to suggest him this way, I think with the natural reasoning of a child it works like that it’s fine. There has been maybe a slight change in that recently, when he was mentioning those incidents of his father shoving him on the bed and the fact that his dad was not really listening to him when they were on the phone so I would say something has broken in him, in relation to his father. It happened a few times that when his dad was not giving any feedback he would just look at me as if to ask ,,so (sic) what’s going on?””
It was the submission of counsel for the State Central Authority that this supports the contention that the child is not settled in Australia.
The child has been in Australia since May 2014, a period of 24 months. He is attending school and has a stable and supportive family environment. He has established friendships and is involved in community interaction. He regularly participates in swimming activities which he clearly enjoys and is engaged with the local Australian and Hungarian community. The child has had an undisturbed and successful integration into life in Australia in the care of the mother and her husband. This would speak in favour of a finding that the child is settled in his new environment.
Upon considering the whole of the evidence, I consider that the mother has discharged the onus upon her of showing that the child has settled in his new environment.
If the child is settlement in his new environment, does the Court have a discretion to make a return order?
Having found that the child is settled in Australia, I now turn to consider whether the jurisdiction under the Child Abduction Regulations is exhausted or whether the Court, as the State Central Authority contends, retains a discretion to order that the child return to Hungary.
Subregulation 16(1) sets out clearly that an order for return of a child is mandatory if the conditions set out in that regulation are satisfied. This is of course subject to the provisions of subreg 16(3). The critical condition in this case, provided for in subreg 16(1)(b), is that the application is filed within one year of the child’s removal or retention. That condition does not apply in these proceedings as it is common ground that the application was filed more than one year after the child’s retention in Australia on 1 December 2014.
The relevant subregulation, namely subreg 16(2), is silent on the existence of a discretionary power in the event that the Court is satisfied that the child has settled in his new environment. The provisions are unclear.
In M and C (supra) the Full Court indicated a preference for interpretation of the subregulation that supports the existence of a discretion. This was discussed in Kells (supra) where Rose J determined the correct approach to construction of the regulations was that stated by Nicholson CJ in TS (supra) where his Honour, having reviewed the relevant authorities, proceeded to determine the matter on the basis that a discretion did exist.
In Kells (supra), in support as to the existence of a discretion, Rose J considered subreg 15(1) applied in that a general discretion is given in relation to an application made under reg 14.
In Raho (supra) at [234] his Honour was of the view that:
Regulation 15(1) seems to me to provide the Court with the widest of discretions. Such discretion needs to be exercised within the guidelines set by Regulation 1A. This includes that “the interests of the children are of paramount importance in matters relating to their custody” and that their “prompt return” to the State of their habitual residence is intended.
Subregulation 15(1) provides as follows:
(1)If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:
(a) make an order of a kind mentioned in that regulation; and
(b)make any other order that the court considers to be appropriate to give effect to the Convention; and
(c)include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
Regulation 14 sets out the order for which an application can be made in relation to a child who is wrongfully removed from or retained out of the state of habitual residence. The first order so described is “a return order for the child”. The successive sub-paragraphs are orders to secure the child pending determination of the application for a return order.
In Raho (supra) Le Poer Trench J considered the competing authorities and agreed with the decision of Lindenmayer J in Director-General, Department of Family, Youth and Community Care & Thorpe (1997) FLC 92-785 where his Honour concluded at [83]-[85]:
The power to make an order for the return of the child is found in Regulation 15(1), not Regulation 16 (quoted at paragraph 8 above). That section empowers the Court `if the Court is satisfied it is desirable to do so' to make orders of the type set out in Regulation 14 (which includes an order for the return of the child).
Where the Court has found that a child is settled in his or her new environment, then it is clear that the mandatory requirement to order the return set out in Regulation 16(1) is inapplicable. However, it does not take away the power of the Court to order the return of the child granted in Regulation 15 which is unfettered by any finding that the child is settled in Australia, although it is accepted it would remain a factor to be considered.
In order for a finding of settlement in a new environment to end the matter, further words would need to have been added to Regulation 16(1)(b) to the effect that the Court must not order the return of the child when there is a finding that the child is settled in his or her new environment.”
Bennett J disagreed with Lindenmayer J’s approach in the recent decision of State Central Authority & Castillo [2015] FamCA 792. At [206]-[207] her Honour said:
… I respectfully do not agree with Lindenmayer J. I do not accept that reg 15(1)(c), in any of its incarnations, has ever vested in our Court a power to return a child to another contracting state otherwise than in accordance with reg 16 read in its entirety.
Regulation 16 is headed “Obligation to make a return order”. In my view, it sets the meets and bounds of our obligation to return a child to another country in accordance with the forum treaty provisions of the 1980 Convention and, necessarily, without the best interests of the particular child being a paramount or even a relevant consideration. I am not for interpreting reg 15(1)(c) as expanding the circumstances where children are sent from Australia without their best interests being a precondition. It cannot be that the party opposing return, having made out a case for the exercise of discretion to refuse return under reg 16(3), could still be at jeopardy of the subject child being returned under reg 15(1)(c). This is particularly so in the absence of the Regulations (and the 1980 Convention) providing an express discretion to do.
Her Honour in Castillo (supra) did not consider reg 15(1) provided an “unfettered” power to make order which exceed the Court’s obligations under reg 16. Her Honour turned to the decision of AC v PC [2004] HKMP 1238 where Hartmann J provided an outline of the underlying principles of the 1980 Hague Convention relevant to matters where children have become settled in their new environment. At [211] her Honour relied on this passage in finding that subreg 15(1)(b) is not an independent source of power:
… it is important, I believe, to look to the essential mischief which the Convention is designed to counter and the manner in which it does so. The essential mischief is the removal — either by abduction or wrongful retention — of a child from its natural environment. By ‘natural environment’ I mean the family and social environment of the country in which the child’s life has developed or is developing. The means by which the Convention counters such mischief is by an early restoration of the status quo which is achieved by ensuring the prompt return of the child to the country of its natural environment. If this were not done, it would allow the party who has abducted the child to a country of refuge or wrongfully retained the child in that country to seek the assistance of the courts there and by that means create a jurisdiction which is more or less artificial. The creation of such a jurisdiction is artificial because it does not encompass the child’s natural environment. An early return from that jurisdiction returns the child to the jurisdiction of its natural environment.
…
In my view, … commentaries support the conclusion that, although largely unspoken, one of the principal objects of the Convention is to secure the best interests of the abducted children rather than punishing those who abduct them. That being the case, even if there has been morally reprehensible conduct on the part of the abductor, a time must be reached when, if the circumstances so dictate, it harms rather than helps children to order their return.
Her Honour agreed with the interpretation of Hartmann J in that the time limit reflects the objects of the 1980 Hague Convention.
Kay J in the earlier decision of SCA & CR (2005) FLC 93-243 took the same approach as Bennett J in that he remained firmly of the view that in such circumstances the Child Abduction Regulations provide no source of power to enable a court to make a return order. At [61] his Honour said:
[Regulation 6] makes it clear that giving effect to the Convention is intended to supplement other remedies that might be available to order the return of a child and not replace those remedies. If the intention of the Regulations was to permit a discretion to return to exist even though the settled exception was established, then I would expect to find that power somewhere within Regulation 16(5). It is not surprising that it is absent given that the Regulations are seen as giving effect to the preamble and the objects of the Convention namely to secure the prompt return of children wrongfully removed to or retained in any Contracting State. As discussed at length in Ayob, the compromise reached between those who wanted a short time limit and those who wanted an open ended mandatory return was to opt for the settled exception. If it is established that a prompt and summary return under the Convention is no longer seen as appropriate, the “best interests” considerations that accompany the exercise of local jurisdiction should be left to determine where the case should be heard and what orders should be made to provide for the child’s welfare in all the circumstances.
While the Full Court in M and C (supra) indicated a preference for interpretation of the regulation that supports the existence of a discretion I am inclined to agree with their Honours Kay J and Bennett J and in doing so I consider the proper construction of the regulations do not provide for a discretion to make a return order despite having found the child is settled in Australia.
If a discretion did exist, should the Court exercise that discretion to return the child to Hungary?
There are two decisions of the United Kingdom which assist the Court in exercising discretion should it determine such discretion to be available. The first is W v W (child abduction: acquiescence) [1993] 2 FLR 211 and the second is H v H (abduction: acquiescence) (1996) 2 FLR 570.
In W v W (supra), a first instance decision of Waite J, his Honour outlined the consideration of facts and circumstances which inform the determination of discretion. This approach was later adopted by the Court of Appeal in H v H (supra) and was further cited by the Full Court of this Court in HZ v State Central Authority (2006) FLC 93-264 at [29]. The considerations as set out in W v W (supra) at [574] are as follows:
a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
b)the likely outcome (in whichever forum) of the substantive proceedings;
c)the consequences of the acquiescence;
d)the situation which would await the absconding parent and the child if compelled to return;
e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”
I propose to address each of the above factors.
(a)The comparative suitability of the forum to determine the child's future in the substantive proceedings
There is no evidence to suggest one forum would be more advantageous to the mother or father or to the child. In fact, the relevant Hungarian court has already determined the matter.
(b) The likely outcome (in whichever forum) of the substantive proceedings
Consideration can be given to the likely outcome of the proceedings if the child were to be returned to Hungary.
Annexed to the affidavit of Ms H dated 18 March 2016 is a copy of a letter outlining the relevant Hungarian law. The letter was produced by Dr P on behalf of Dr Q, advisor on public administration from the Ministry of Justice of Hungary, Department of Private International Law. The letter is dated 19 February 2016 and relevantly outlines the following:
In this case the parties had their first custody order on 28 June 2013 when their agreement was approved by the Hungarian court. Then, in November 2013 the mother filed for modification of the terms of visitation. In this court case the father presented a counter-application for the change of custody rights. In this second court case the court made a temporary measure on 7 February 2014. In this the court rules that [the child’s] residence is Australia from 7 April to 30 November 2014. The court then made a judgment on 9 November 2015 in which it granted custody to the father. Though the judgment is appealable, it was declared preliminarily enforceable.
The decision of 9 November 2015 obliges the mother to hand over the child to the father. At page 7 the judge says:
With regard to the child … the court also assessed the circumstance that, although the [mother] had the right to exercise the parental custody rights pursuant to the former agreement, she did not have the right to take the child abroad for a long time and the deadline for the stay abroad established by the court in a temporary measure also expired. The [father] did not launch a procedure for the extradition of the child only due to his tolerance.
…
In addition, the court also had to assess, as it is absolutely clear from the expert opinion of judicial psychologist [Mr M], that the mother gives preference to her own interests over the interests of the children and that she looks at the events around herself through a special subjective filter and sees less reasonably what is happening to the children than the [father] can see it.
On the basis of the above and as a result of the conducted evidentiary procedure as well as the fully complex objective expert opinion of the judicial psychologist [Mr M], the court concluded that although by moving the younger child back to his father, he would have temporary difficulties in his life, the changes in the circumstances that have occurred since the former agreement still justify that the younger child should also be raised by the father together with his older brother…, whom he respects and with whom he has a natural undestroyable bond.
In view of the above, the court altered the parental custody right regulated in the former agreement in relation to the younger child… and granted the parental custody right to the respondent father.”
The court of Hungary has permitted the mother to spend one month during the summer holidays and five days during the winter holidays with the child.
It is counsel’s submission that under Hungarian law the mother could make a fresh application for custody of the child should she be ordered to return to Hungary. However, it was the evidence of the mother that she will remain in Australia regardless of any order made by the Court.
Should the child return to Hungary he will be placed in the care of his father. There is no evidence to suggest the mother would challenge this circumstance.
(c) The consequences of the acquiescence
This consideration is not relevant as the father did not acquiesce to the mother retaining the child in Australia after 30 November 2014.
(d)The situation which would await the absconding parent and the child if compelled to return
The mother has indicated that should the child be compelled to return she would remain in Australia with her husband and youngest child. The situation that would therefore await her would be separation from the child.
(e)The anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount)
Counsel for the State Central Authority submits that there is no evidence presented before the Court that suggests the child would endure long-term negative emotional effect upon returning to Hungary.
I do not necessarily agree with this proposition. The report writer indicates that the child “is very attached to his mother as his primary carer” and “… removal of [the child] from the mother’s care is not an advised option from a professional aspect”.
Also relevant are the report writer’s comments in relation to the father’s capacity to care for both children. She says:
At the time of the visits we could not establish what the father would do or how he would manage if both boys were eventually put in his care. He was talking about the possibility as a ‘chose’ or a ‘problem’ that he would need to solve along practical consideration. He didn’t consider what impact would be on [the child], if he was removed from the mother. That would obviously pose a lot of hardship for the little one that the father would have hard time dealing with, even with the support of a psychologist.
It is anticipated that a return to Hungary would involve significant and challenging adjustment for the child. A return would see a removal from the family environment which the child had enjoyed for nearly two years. The child clearly experiences a loving relationship with his mother, his step-father and his younger brother here in Australia.
Undoubtedly, the child would endure challenges emotionally if an immediate return to Hungary was ordered. This is a significant factor I take into account in consideration of the circumstances as a whole.
(f)The extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused
The purpose of the Convention includes the “prompt return” of a child to their country of habitual residence. This cannot be achieved in this case as nearly two years have passed since the child was removed to Australia and more than 18 months have passed since he was retained in Australia.
This case concerns a finding of a delay of more than 12 months before proceedings were commenced and further a finding that the child is now settled in his current environment.
Having considered the relevant matters, if a discretion did exist, I would decline to make an order for the return of the child. The evidence satisfies me that the child is settled in Australia and that a return to Hungary would involve significant and challenging adjustment for the child both practically and emotionally.
Is a grave risk that returning the child to Hungary would expose him to physical or psychological harm or otherwise place the child in an intolerable situation?
Having determined that an order will not be made for return of the child to Hungary, it becomes unnecessary for me to determine the remaining defences relied upon by the mother.
I make no comment in relation to whether returning the child to Hungary would expose him to physical or psychological harm or otherwise place the child in an intolerable situation.
CONCLUSION
I therefore propose to dismiss the application.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 5 August 2016.
Associate:
Date: 5 August 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Civil Procedure
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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