STATE CENTRAL AUTHORITY & THOMAS

[2013] FamCA 822

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & THOMAS [2013] FamCA 822

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Adjournment until after the Vienna Regional Court hands down its decision on the father’s appeal

APPLICANT: State Central Authority

RESPONDENT: Ms Thomas

FILE NUMBER: MLC 998 of 2013

DATE DELIVERED: 25 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 30 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt

SOLICITOR FOR THE APPLICANT: Department of Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT: Mr Dickson

SOLICITOR FOR THE RESPONDENT: Palmer Stevens & Rennick

Orders

IT IS ORDERED THAT

1. The application of the State Central Authority filed 14 February 2013 be adjourned for further hearing on a date to be fixed after the Vienna Regional Court hands down its decision on the father’s appeal filed 30 July 2013.

2. The State Central Authority notify the Associate to Macmillan J as soon as practicable after receiving notification of the decision of the Vienna Regional Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Thomas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 998 of 2013

State Central Authority 

Applicant

And

Ms Thomas

Respondent

REASONS

1. The matter has been listed before me for the parties to make submissions with respect to the future conduct of the matter and in particular in relation to whether, given the state of the proceedings in Austria, the matter should be listed for a final hearing pending the outcome of those proceedings in Austria.  Although he is not a party to the proceedings, the husband was present in court and also sought leave to make submissions. This was not opposed by either the State Central Authority (“the SCA”) or the wife and on that basis I permitted Ms Humphreys to make submissions on the husband’s behalf.

2. The father was born in England and is 40 years of age. The mother was born in Australia and is 44 years of age. They met in England in 2002 and commenced cohabitation in Austria in August 2003. They separated on 14 October 2012. There are two children of their relationship who were both born in Austria and are now 9 and 4 years of age. The children have both British and Australian citizenship.

3. The parties attended mediation, at the mother’s instigation, following their separation. The first mediation session was on 20 October 2012. It was agreed by the father and mother at that session that they would attend a further session on 2 November 2012. On 2 November 2012 the father signed a document which the mother alleges is evidence of his consent to her relocation to Australia with the children. It is the father’s case that this was a “proposal” not an agreement.  Although I note that the Austrian court found that the mother did not have the agreement of the father to travel to Australia with the children, ultimately it is for this Court to determine whether or not the children have been wrongfully removed and that issue is in dispute.  

4. On 31 October 2012, prior to the second mediation session, the father issued proceedings in Austria seeking the sole right of care of the children.  It is not clear from the evidence before me when that application was served upon the mother or her solicitor, however that application was first listed for hearing before the District Court of Leopoldstadt (“the District Court”) on 29 November 2012. The mother had by that time travelled to Australia with the children, she would say pursuant to her agreement with the father reached at the first mediation permitting her to relocate to Australia with the children, albeit somewhat earlier than she had initially planned.

5. Although the mother did not appear at the hearing on 29 November 2012 she was represented and participated in the proceedings on that date. Between the first hearing in the District Court on 29 November 2012 and the second hearing on 24 January 2013, the father sought the return of the children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”), as a result of which the SCA filed the Form 2 application for the children’s return to Austria.  

6. The application for the return of the children has been listed for hearing or mention before me in this Court on a number of occasions during the course of the proceedings in Austria.

7. On 22 February 2013 the District Court ruled that the joint care of the children by both the father and mother remain in force, the mother be granted the sole right of determining the place of residence, and the applications of both the father and mother for the sole right of care of the children were rejected. The grounds for that ruling included the findings of Judge Mag. Susanne Gottlicher that her Honour was more convinced by the mother’s account, based upon what she described as the thorough and comprehensive report prepared by the Youth Department. She found, having evaluated the evidence, that “the majority of the care and support originated” from the mother and that the “father is not a bad person and the well-being of his children is a matter of concern to him, but that the mother is the person who deals with the everyday issues and takes good care of the needs of her children.” She concluded that since “the court is of the opinion that the mother is better suited to care for the children, a decision had to be made on the facts.”

8. On 13 March 2013 I was informed that the father had appealed and as the SCA could not give me any indication as to when the matter was likely to be heard, I adjourned the proceedings for mention before me on 26 March 2013 to enable the SCA to obtain a translated copy of the appeal documents and information as to the status of the appeal, the likely time frame for the determination of the appeal and whether the appeal acted as a stay of the orders.

9. On 26 March 2013 the matter was adjourned for further mention before me on 9 April 2013 and on that date adjourned, at the request of the parties, for further mention on 19 July 2013 to await the outcome of the appeal.

10. It is not clear when the first appeal was heard by the Vienna Regional Civil Court, however when the matter was listed for hearing before me on 19 July 2013 I was informed by both the SCA and Mr Dickson on behalf of the mother that the father’s appeal had been successful, that the matter had been remitted back to the District Court for a further hearing, that there had been a further hearing in April 2013 and that the judgment was pending.

11. The matter was remitted to the District Court for a new decision following “supplementary proceedings”.  Although the father had appealed on the basis of incorrect findings of fact based upon an incorrect assessment of the evidence and the incorrect application of legal principles, it appears from the judgment, which has been translated for the purposes of these proceedings, that the findings of fact of the court at first instance were not overturned.

12. Although neither the SCA nor Mr Dickson were in a position to tell me when judgment was expected to be delivered, I was ultimately informed by Ms Fifield, who was present at Court that day and said that she had instructions to act on behalf of the father, that the decision had been handed down on 15 July 2013 and that orders had again been made permitting the mother to determine the children’s place of residence, but that the husband intended to appeal.

13. The District Court had again ruled that the parties have joint custody of the children but that as the children are primarily cared for in the mother’s home, that she have the right to determine their place of residence. The District Court rejected the competing applications for sole custody. On 30 July 2013 the father appealed this decision and it is that appeal to the Vienna Regional Civil Court that is currently pending.  

14. I have been provided with a certified translation of the father’s appeal. The grounds of that appeal are, in summary, that there was a deficiency in the proceedings and that the findings of fact were incorrect on the basis of an incorrect assessment of the evidence and an incorrect legal evaluation.

15. When the matter was listed for hearing before me on 30 August 2013 the information I was given with respect to when the father’s appeal might be heard and when a decision might be expected was vague and, on that basis, I raised with the parties, and Ms Humphreys for the father, the possibility of direct judicial communication with the Hague Network Judge for Austria to ascertain the likely timetable for the Austrian proceedings. At Ms Humphreys’ request it was further agreed that enquiries would also be made as to whether, in the event that the matter was to be remitted for a further hearing, it was mandatory for either the parents and/or the children to be present in Austria for that hearing.

16. A reply to that direct judicial communication was received from the Hague Network Judge for Austria on 12 September 2013. The Hague Network Judge for Austria advised as follows:

    My collegue (sic) [redacted] from the court of appeals in Vienna informed me, (sic) that a rehearing of the case is not planned. So the bench of 3 judges will deside (sic) according to the state of the written file and without taking new evidence or hearing the parents or the children. [My colleague] did not commit [redacted] when (sic) the decision could be expected.
    
    So I will try to analyse the situation within the Austrian custody procdure (sic) pending for the 2 nd (sic) time in 2 nd (sic) instance and the likely consequences for the Australian abduction case in terms of
       1.) General information on Austrian law of appeals
       2.) Decisive questions for the Austrian custody case
       3.) Questions in the Australian abduction case
    
    1a.) There are 3 instances in custody cases . (sic) So verdicts can be brought from Bezirksgericht to Landesgericht and then to the Supreme Court from each parent within 2 weeks after receiving the decision. 2 nd (sic) instance seldom takes evidence, the Suprem (sic) Court never. If there has not been collected enough evidence, the case is always returned to 1 st (sic) instance for broadening the evidence.
    1b) For appellations the representation of a lawyer is mandatory. The fees
    of lawyers are definded (sic) by law, and in family law relativly (sic) modest. So it is likely, that each of the parents will appeal again against the upcoming verdict of 2 nd (sic) instance to the Supreme Court.
    
    2a.) Has there been taken enough evidence in 1 st (sic) instance  for the
    assumption :The (sic) mother is more competent to care for the best interest (sic) of the children , and the consequence: joint custody and the right of the mother to decide the residence of the children?
    If not, the 2 nd (sic) instance will refer the case back again to 1 st (sic) instance with the order to get more specific evidence , maybe hear the children. Estimated range of time : for the pending decision in 2 nd (sic) instance: 2 – 3 months, 4 - 6 months for a 3 rd (sic) decision in 1 st (sic) instance , generally 6 - 12 months for a final decision of the Supreme Court.
    2b) Which national family law is relevant? This legal question of
    international family law might have quite different results. Such legal
    questions always enable parties to appeal to the Supreme Court.

    So , (sic) whatever 2 nd (sic) instance decides, each parent might appeal to the Supreme Court.
    
    3a.) Is it appropriate to wait for the final decision in the Austrian
    custody case?
    3b.)Which national law is relevant for the Australien (sic) abduction case? If it should be Austrian law, I quote § 177/2 Civil Code in the amendment of 1.2.2013:" If the parents of a child are not married, the mother has sole
    custody."
    Only an agreement of the parents at court, or at the public registry or a
    final court decision can change this. And neither of this exists up to now.

17. A copy of the chain of emails between Justice Bennett, the Australian Hague Network Judge, and the Hague Network Judge for Austria have been provided to the SCA and the solicitors for both the mother and father.

18. Notwithstanding that the SCA had previously acceded to the mother’s application to adjourn the matter pending the outcome of the proceedings in Austria, it is now submitted that the application ought to proceed without further delay. The basis of that submission, as set out in the SCA’s outline of submissions, can be summarised as follows:

    ·the appropriate forum for resolving disputes relating to the child’s care, welfare and development is ordinarily the child’s country of habitual residence;

    ·both the father and the mother have accepted that the children’s place of habitual residence is Austria;

    ·where an application is made for a return order within one year after the child’s removal or retention and the Court is satisfied that the child’s removal or retention was wrongful, the Court must, subject to Regulation 16(3) [of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) make the order returning the child to that child’s place of habitual residence; and

    ·the Court must, so far as is practicable, give the application such priority as will ensure that the application is dealt with as quickly as a proper consideration of the matter allows.

19. The SCA further submitted that:

    ·Article 1 of the Convention states that an object of the Convention is to secure the prompt return of children wrongfully removed or retained in any contracting state;

    ·Article 2 states that contracting states shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention and for this purpose they shall use the most expeditious procedures available;

    ·Article 11 states that the judicial or administrative authorities of contracting states shall act expeditiously in proceedings for the return of children and that if no decision is reached within six weeks from the date of the commencement of the proceedings, the SCA can request a statement of reasons for the delay.

20. Ms Porritt for the SCA submitted that to stay the hearing of the application for the children’s return would allow the mother to benefit from her removal of the children from Austria and to frustrate what is referred to as the deterrent effect of the Convention. 

21. Ms Humphreys, appearing on behalf of the father, joined with the SCA in seeking that the matter be listed for hearing and emphasised the following matters:

    ·that the father’s appeal acts as a stay of the order made by the District Court on 15 July 2013, which found that both parents retained joint custody of the children but as they were cared for primarily by the mother, she had the right to determine their place of residence; and

    ·that pursuant to Regulation 16(1) the order for the children’s return to Austria is mandatory unless the wife establishes one of the matters referred to in Regulation 16(3).

22. In DP v Commonwealth Central Authority (2001) 206 CLR 401 Kirby J at [122] confirmed on the basis of the authorities that the objects of the Convention included the following:

    1.To discourage international child abduction and retention with its negative impact on children;

    2.To make it clear to those who might be tempted to engage in this conduct, so as to secure a chosen forum for the resolution of custody disputes, that their attempt will ordinarily fail; and

    3.To institute effective means that will ensure the prompt return of children removed or retained in this way by the observance on the part of the authorities of the country to which the child has been removed (or in which it is retained) of a measure of restraint in what would otherwise be the right or duty of such authorities to investigate painstakingly the facts of each individual case in order to assess the best interests of the child and to determine custody.  

23. As the High Court pointed out in De L v Director General, NSW Department of Community Services & Anor (1996) 187 CLR 640 (“De L”) at 648 - 649 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, the Convention is concerned “with reserving to the jurisdiction of the habitual residence of the child in a Contracting State the determination of rights of custody and of access.”

24. In this case, the mother concedes that Austria is the appropriate forum for determining the matter and the matter has in fact been heard, at first instance on two occasions and on appeal on one occasion, albeit with a second appeal pending.

25. It is clear from the email received from the Hague Network Judge for Austria that the pending appeal does not involve a rehearing of the matter and that the case will be decided on the basis of the written file and without the necessity for any new evidence or for the court to hear from either the father or mother or the children. It is mandatory for the parties to be represented, but there is no requirement that the parties themselves or the children be in attendance at the hearing of that appeal.

26. Although the Hague Network Judge for Austria reported that the judge hearing the appeal could not commit to when a decision might be expected, an estimated timeframe was provided. I have also had regard to the fact that the court delivered its decision on the first appeal some 10 weeks after the District Court handed down its first decision. The District Court handed down its second decision on 15 July 2013 approximately 12 weeks after the matter was remitted for rehearing.

27. It is also clear from that email that the Vienna Regional Civil Court would “seldom” take evidence, and that if it formed the view that the court at first instance had not taken enough evidence, it would refer the matter back to that court to take further or more specific evidence. When the matter was dealt with on appeal on the first occasion, there did not appear to be a specific request for further evidence.

28. The Hague Network Judge for Austria provides a helpful explanation of the legal options for the parties and the procedure with respect to each of those options. It is clear from that email that if either party is dissatisfied with the outcome of the case at first instance they can appeal to the Vienna Regional court, as the father did after the first decision, and thereafter if they are dissatisfied with outcome of that appeal, can appeal to the Supreme Court which, according to the Hague Network Judge for Austria, never takes evidence.

29. As reported to the SCA by Dr B, the Head of the Department for International Family Law in Austria, in his letter dated 20 August 2013, the Court of Appeal has three ways to decide:

    1.to reject the appeal because of formal reasons,

    2.to decide on his (sic) own with regard to contents, which lead to a contrary judging,

    3.to annul the decision of the district court and ask the district court to make a new decision.

30. It is also clear from the information provided that the only circumstances in which it is likely to be necessary for the mother, or for that matter the children, to give evidence or to be present in Austria for the preparation of evidence such as a report of some kind, is if the Court of Appeal remits the matter for a further rehearing which requires further evidence. 

31. Although I am mindful of the need to deal with these matters expeditiously, and that Article 11 of the Convention provides that if the court has not dealt with the matter within the prescribed six week period the SCA has the right to request a statement of reasons for the delay, this is a somewhat unusual case.

1. In this matter, the wife concedes that Austria is the appropriate forum for the determination of the arrangements for the children. She has, from the commencement of the proceedings in Austria, submitted to that jurisdiction and has participated in the proceedings in Austria. It was noted at the hearing on 29 November 2012 that the wife had indicated her preparedness to return to Austria for the proceedings. There is no evidence before me that she will not continue her involvement in the proceedings including, if necessary, attending a hearing if she or the children are required to do so. The husband has sought leave to give his evidence in these proceedings by video-link and there is no reason why the mother could not do the same if she were required to give further evidence in the proceedings in Austria.  

2. Although a decision of the Austrian courts may not excuse or validate what is alleged to be a “wrongful removal” of the children from Austria, there would appear in this case to be a potential conflict between the objects of the Convention that the “jurisdiction of habitual residence” determine any issues in relation to the children, which has occurred, and the need to discourage international abduction.

3. Even though the decision in relation to the father’s second appeal is pending, if I were to list the matter in this Court, as submitted by the SCA and the husband, and ultimately find that the children had been “wrongfully removed” from Austria and order their return, there could be, as a result of the Austrian proceedings, an order made either prior to the children’s return or shortly thereafter which would permit the mother to return to Australia with the children. The letter from the Austrian Federal Ministry of Justice dated 26 April 2013, annexed to the affidavit of Ms N sworn 24 May 2013, states that a decision of the District Court becomes enforceable and legally binding when it becomes final but that the District Court may also determine that the decision becomes preliminarily binding. Although the District Court did not make such a decision when it determined the first appeal that is not to say it will not do so on this occasion. 

4. This was described by Sir Mark Potter P in Re T & J [2006] 2 FLR 1303, and to which I referred the parties, as “the shuttlecock effect”. Such a situation cannot be in the children’s best interests and, although their welfare is not the paramount consideration, it is in my view not irrelevant. Whether the children were or were not wrongfully removed, an order requiring their return to Austria is likely to be disruptive, particularly if it turns out to be of short duration, albeit that it would be a familiar environment and that they would be living in close proximity to their father. The evidence which was accepted by the District Court at the second hearing was that the children have settled well at school and kindergarten.

5. Whilst the father might appeal to the Supreme Court in the event that his current appeal is not successful, that decision will no doubt be based upon the advice he receives as to the merits of an appeal. It is similarly possible that if the father succeeds then the mother will appeal to the Supreme Court.  Even if there is an appeal to the Supreme Court, there will be no necessity for either the mother or the children to be present in Austria for those proceedings.

6. The District Court has now decided on two occasions that it is in the children’s best interests for the mother to determine where they should live. The ultimate outcome of the matter may well see the children living in Australia. Whilst it is most likely to be a matter for the father, there is also a possibility that there will be no further proceedings in Austria. It would seem somewhat surprising if the SCA, or for that matter the father, were to pursue the matter if there were no further proceedings in Austria or there were binding orders permitting the mother to determine the children’s place of residence. Arguably, the only basis for doing so would be to deter and discourage international abduction. Even if there are further appeals or the matter is again remitted to the District Court for rehearing, it cannot be said that forum is in issue, which leads to the conclusion, which was the substance of the submissions made on behalf of the SCA, that the primary object of this application is that of deterrence and arguably in this case the only basis for the application. I have reservations about the Convention being used in this way and how that might impact on these children.

7. It was submitted by Ms Humphreys that if I determine that the children were wrongfully removed then I must order their return to Austria, subject to the matters in Regulation 16(3). However, as the High Court said in De L at 662, “[i]t is impossible to identify any specific and detailed criteria which govern the exercise of the power whereby the Court may impose such conditions on the removal of the child “as the court considers to be appropriate to give effect to the Convention”.” In my view, that would include the arrangements and timing of the children’s return, or what was described by Butler-Sloss LJ in C v C (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All ER 465; [1989] 1 WLR 654 at 659 as “an easy and secure return home”. The timing of that return, if it were to be ordered, should in my view be arranged with as little disruption to the children as possible whilst still giving effect to the Convention. If the matter were to be remitted for hearing by the District Court with the necessity for further hearing then the children’s return might need to be expedited, whereas if the husband’s appeal is not upheld and he chooses to appeal to the Supreme Court then different arrangements might be made for their return. That will not be known until the Vienna Regional Court delivers its decision. As submitted on behalf of the SCA, the Court must, so far as is practicable, give the application such priority as will ensure that the application is dealt with as quickly as a proper consideration of the matter allows. In my view, a proper consideration of the matter, in all of the circumstances of this case, requires the decision of the Vienna Regional Court.

8. I must exercise the powers conferred upon me by the Family Law Act 1975 (Cth) with justice and efficiency. I accept Mr Dickson’s submission that it would not be an appropriate use of the Court’s resources to list the matter for a hearing when the proceedings in Austria have been determined, subject to the father’s appeal. Nor in my view is it appropriate to put the wife to the financial and emotional cost of that hearing and the children to the possible disruption of being returned to Austria and shortly thereafter being permitted to relocate to Australia when the primary purpose of an order for their return would be to act as a deterrent to other parents who may be considering wrongfully removing their children from their habitual residence.

9. For all of the reasons I have discussed I propose to adjourn the matter to a date to be fixed after the Vienna Regional Court hands down its decision.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 25 October 2013.

Associate: 

Date:  25 October 2013