State Central Authority & Topalogu - [2007] FamCA 1337

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & TOPALOGU

[2007] FamCA 1337

FAMILY LAW - CHILD ABDUCTION – HAGUE CONVENTION – Father sought return of child to the United States of America – Mandatory return not required as consent to retention of child in Australia found – Weighing various factors including spirit of the Convention, discretionary return of child not ordered – Application for return dismissed

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Panayotides v Panayotides (1997) FLC 92-733; (1996) 21 Fam LR 446
Re K (Abduction: Consent) [1997] 2 FLR 212
State Central Authority v Ardito (unreported 29 October 1997)
State Central Authority and B [2002] FamCA 804
Townsend v Director-General, Department of Families, Youth and CommunityCare (1999) FLC 92-842; (1999) 24 Fam LR 495
Zafiropoulos and the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264; (2006) 35 Fam LR 489

APPLICANT:

STATE CENTRAL AUTHORITY

RESPONDENT:

MS TOPALOGU

FILE NUMBER:

MLC

10290

2007

DATE DELIVERED:

8 November 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Kay J

HEARING DATE:

5 and 8 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms A.E. Carter

SOLICITOR FOR THE APPLICANT:

Victorian Government Solicitor’s Office

COUNSEL FOR THE RESPONDENT:

Mr J. Melilli

SOLICITOR FOR THE RESPONDENT:

Kennedy Wisewoulds

ORDERS

The application filed 13 September 2007 is dismissed.
Orders 2, 3 and 4 made on 18 September 2007 by the Honourable Justice Mushin are discharged and the Australian Federal Police are requested to remove T’s name from the Airport Watch List.
The applications filed 9 October 2007 by Ms Topalogu (formerly Sevda-Topalogu) be adjourned to a case assessment conference on 4 December 2007 at 9.15 am.

IT IS NOTED that this judgment for all publication and reporting purposes will be referred to as STATE CENTRAL AUTHORITY & TOPALOGU.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10290 of 2007

STATE CENTRAL AUTHORITY

Applicant

And

MS TOPALOGU

Respondent

REASONS FOR JUDGMENT

I have before me an application filed by the State Central Authority pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations1986 (Cth) which is the vehicle by which Australia has chosen to give legislative force to its obligations under the Convention on the Civil Aspects of International Child Abduction signed in the Hague in 1980 (commonly known as the Hague Convention).
The parent seeking the return of the child is the father of the child. The child the subject matter of the application is T born in February 2005 in New York, New York, United States of America. His father is Mr Topalogu, a man of Turkish descent, who resides in America and is a citizen of the United States. His mother, who is the respondent to these proceedings, is Ms Topalogu (now known as Ms Sevda), a woman of Turkish descent, born in Australia and a citizen of Australia.
The child’s parents married in the United States in October 2003 and made their home there. As I have indicated, T was born in the United States in February 2005.
In December 2006 the family planned a trip to come to Australia to visit for a short period. It is common ground that air tickets were purchased, at least for the mother and child, which would see the mother and child returning to America by 26 February 2007.
The father has suffered from ill health for some period of time. He decided not to accompany the mother and child on the trip to Australia, where they were coming to spend some time with the mother’s parents.
After the mother’s arrival in Australia, the mother and the father were in contact with each other, both by way of telephone and email and it was agreed, at the mother’s request, that her stay in Australia be extended until 18 April 2007 when she was then due to return to the United States. The bookings for the return of the mother and child were adjusted by the mother to allow for the new arrangement.
On 14 March 2007, the mother emailed the father. The email read as follows:
I cant [sic] explain to you how much I appreciated our conversation today. It was the first time in along [sic] time that I felt you were understanding me. I also appreciate your understanding about my need to stay longer in Australia. BUT most of all I am so happy about your test results! Nothing, absolutely NOTHING, could make me happier, than to to [sic] actually see you get better. Anyhow, I hope you don’t think I am too selfish, but there is one more thing that I wish for all day long ... that you’ll come and visit this beautiful country.
I also appreciate that you have acknowledged some of your fatherly and husbandly shortcomings. I think that it takes a great maturity to accept when you are wrong and I am so excited to see the “new you”. That being said, I don’t want you to rush yourself. I know that we are in your heart and that is good enough for us, for now. Ok, before I get too excited, since I know you were trying not to jinx anything, I want to reming [sic] you that you did have relapses before. So, please don’t be too disappointed if there are a few steps back, because honestly, I have never seen such clarity in your thinking before.
Maybe this was supposed to happen to us, to make us appreciate what we have.
There is nothing in that email that would lead one to assume that there would be any change to the parties’ plans to continue on with their life together in the United States.
On 23 March 2007 the father emailed the mother and the email read as follows:
What I really want is my life back with you. I want you to pack your bags and I’ll pick you and [T] up at the airport and spent [sic] time back to [sic] our […] apartment where I want to spend everyday with you and [T]. We’ll plan everyday as an adventure and enjoy every single moment together like in the good old days. I want us to reconnect those past good feelings that I know is [sic] in your heart about me. I want to hear from you things that I have never heard from any of your emails about us being TOGETHER instead of apart. I want to assure you that I can take care of you and that things have change [sic] for the better. I will do things to ensure a happy and smiling mutlu family. I want to take you and [T] to the parks in the city every one of them that I have been visiting. I want to hold your hand and tickle your toes. I want to wrestle with [T]. I want to take you and him to the zoo. I want what every family wants – to be with YOU AND [T] .. Your home is and will always be here with me. That is what will make me sincerely happy. We can plan to go to Australia every year especially in the winters since it is summer there. Who knows what the future holds for us but for now today, this is what I want, nothing more. I like our marriage oaths we took on that beautiful day […], I will promise to you today March 22, 2007 also, to never put any money in the stock market for the rest of my life in exchange for your trust and affection and [T]. Ok now for the big surprise, I want to say this all to you in person when I see you on March 28 in Melbourne. I can not think of a more beautiful day.
I infer from that email that there had been some discussion about marital difficulties. The father, however, in an attempt to appease the situation, was acknowledging his shortcomings, expressing his anxiety for the relationship to continue and indicating that he was going to surprise his family by dropping in on them in Melbourne.
The mother’s material seems to indicate that he arrived in Melbourne on 30 March 2007 which would be consistent with him leaving New York on 28 March 2007. He then went to stay with the mother and his son at her parents’ home.
At this point, the story of the two main protagonists diverges significantly. It is the mother’s evidence that when the father got to Australia, she explained to him how happy she was here living with her family and how settled and happy T was and she sought his permission to remain living in Australia with T permanently. She said they had discussions about the matter, canvassing the possibility of the father returning to Australia to explore a reconciliation of the relationship. She said he accepted her position and agreed that she should stay in Australia with T. He said that even if he did not come to live with them permanently, he could see himself spending time both in Australia and the United States.
She deposed that she was anxious to have the father confirm in writing this agreement and asked him to consent to some orders to that effect. She deposed that he was not willing to do that and was concerned that she might try to seek some alimony or some other financial compensation from him, and she was unable then to secure him signing orders. She then said she produced a document which he did sign. The document is unusual, in that it, while very short, contains blanks that were then filled in in handwriting. Without the handwriting, it reads:
Date: …
I …, give my full consent to my spouse …, and child, … to live in Australia.
Sign: …
Once completed, the document read:
Date: April 2, 2007
I, [Mr Topalogu], give my full consent to my spouse [Ms Topalogu], and child, [T Topalogu] to live in Australia.
Sign: [Mr Topalogu]
The mother deposes that the handwriting on the document is entirely that of the father and the signature that appears on the document is that of the father. She is corroborated in that regard by two witnesses. There is an affidavit from her mother who was not required for cross-examination, in which the mother’s mother deposes:
… I was present in our kitchen when [the father] signed a consent form for [the mother], agreeing to [T] living in Australia with her. I was washing dishes at the time and they were sitting nearby at our kitchen table. I saw [the father] fill out and sign the document.
I have also heard evidence from Mr H, a document examiner, who purports to be an expert in handwriting. His expertise was not challenged by the State Central Authority. He examined a series of photocopies of documents, not original documents, and indicated that the photocopy of the signature that appeared on the consent form was consistent with the writing that appeared on a number of photocopies of documents that seemed to be undisputedly signed by the father. I must say as a layperson, any similarity between the signature on the consent form and the last of the signatures used as a comparative signature is so remote as to escape me as to how the witness relied upon it and he made that concession I think in the witness box. However, notwithstanding that one of the six comparative signatures has no bearing at all with the suspect signature, there are five other signatures relied upon, many of which appear to have very significant similarities with the signature the subject matter in question in this case.
So I have two witnesses swearing the document was signed effectively in their presence, and a third witness, a handwriting expert, who says that a photocopy of the signature is entirely consistent with other signatures which appear to be unquestionably those of the father.
The father’s position is that he vehemently denies having signed the document. He said the document was fraudulent and the first time he saw it was when the mother responded to his application for the return of the child filed in these proceedings. He goes on to repeat that assertion in an affidavit filed as recently as today. He said:
I never gave permission for [T] to remain in Australia after his visit which was to end no later than the middle of April of 2007 and any documentation to the contrary are forgeries or manipulations as I never signed such papers.
The mother’s counsel points to the absence of any demands for return by the father in correspondence, emails, or telephone calls post the father’s return to the United States on 16 April 2007 as being again consistent with the mother’s story that she was staying in Australia with T with the father’s consent.
The mother says the first she knew of any request for the child to return to the United States once the consent had been forthcoming was when her father told her that he had received a telephone call from the father’s father in mid May 2007 in which her father-in-law had shouted and demanded that she be put on a plane and returned home to the father to fulfil her marriage contract. She deposed that she had not received any further communication by email from the father since then and the only request made for her to return T to the United States was made in that phone call, other than the request that appears in the application that issued in June 2007. At no time has there been any personal contact from the father asking for her to return to the United States.
Adding some consistency to the mother’s version of events is a series of emails that take place shortly after the father returns to the United States. I had thought that they were perhaps clearly consistent but the mother’s evidence given this afternoon perhaps makes them a little bit more ambiguous than they otherwise would appear.
The father, having left Australia on 16 April 2007, would have returned to the United States on or about the same day. On 18 April 2007, the mother emailed the father saying:
I got your message and I am glad you made it ok. You’ll probably be sleeping a few days to get rid of the jet lag. I hope your treatments go well.
On 21 April 2007, the father emailed the mother and it is a genuine, chatty email which follows:
Hi,
I could not go to sleep so I wanted to email a friend. How are you doing? I hope your sore throat/cold is gone. How is [T]? If [T] asks for Bubba to change the tapes – just bring [A] over to consul [sic] him. I know he probaly [sic] forgot me already but I think about him every other second … He is an extremely intelligent, energetic, handsome, demanding, charismatic 2 1/2 year old I have ever met. I am still getting over the jet lag because all I have been doing for the past 4 days is sleeping still. As you can tell by the time of my emails as it is about 410 am right now, it is really screwing up my regular sleeping hours.
My last treatment of the IVIG is today, so I am happy. Dr K said he will extend the IVIG treatments out to 6 weeks instead of every 4. Also lowered my dosage of tetrenaol to 600 mg instead of 800.
I will start packing the apartment today and on Monday I will speak to management about getting out of the lease. I won’t forget to pack the Apple and give to [L]. Also, I will go to the Turkish embassy and begin the process of getting out of the Army requirement. That should keep me busy for a while not to mention selling the car.
Cheers, Smaller ears
I should say that that email is hardly consistent with a father who is expecting his child to return to the United States by a flight leaving Australia no later than 18 April 2007. It is more consistent with a father having an understanding that the mother and child were staying on wherever they were and is also consistent with the evidence that because the mother and child were staying, there were financial arrangements that needed to take place, including changes of accommodation and the like.
I asked the mother to clarify the reference to the Apple and the reference to [L]. She deposed that [L] was a mutual friend of the parties who was visiting New York or living in New York but was also due to come to Australia. The Apple referred to was the mother’s computer. I have not had the opportunity of the father explaining his version of exactly what the references to the Apple and [L] were.
Some more can be seen from the response to that email on 26 April 2007 when the mother writes back to the father:
Thanks for the e-mail. I’m better and so are my parents. [T] is doing fine. I don’t know why you think he’d forget you, sine [sic] you are his father, and you were in my parents [sic] house for 16 days and spent so much time with him. Is your IVIG treatment over? Are your sleep patterns back to normal? I am glad you are keeping busy. Where are you going to store the furniture? As I told you when you were here, you should try I think that is where people are buying newer cars with low mileage. Have you dropped off the computer to [L] yet? I am eager to get internet and computer access at home.
I hope you have a great day.
On the face of it, that would be consistent with the mother staying in Australia and arrangements being made between the father and the mother for the mother’s computer to be sent back to Australia via their mutual friend, L. That would be corroborative of the mother’s version of events.
However, much to my surprise, in her viva voce evidence the mother indicated that one of the reasons why the computer was going to L was not necessarily to bring it back to Australia but at least to get it out of the potential clutches of her in-laws, it being an expensive item which the mother cherished and she was concerned that her in-laws may do some harm to it.
The absence of any material consistent with the father’s anxiety over the return of the child and what I would have expected to be his reactions over the ensuing days when the mother had not returned as was planned, and the absence of any discussions relating to the need for the child to immediately return to the United States is, in my view, consistent with the mother’s version of events, that the father whilst in Australia acceded to her request that she and the child stay in Australia.
The evidence of the mother, of her mother and of the handwriting expert leads me to conclude on the balance of probabilities that the father signed the consent.
The case might well have taken a different path had the father’s case been, “I don’t recall signing the consent”, or, “because I was in a state of emotional turmoil at the time when presented with a proposition by the mother that she didn’t want to reconcile our life back in the United States”, or, “I did sign the consent in that state of emotional turmoil, with the belief that it would lead to reconciliation or keep alive the chances of reconciliation, but as soon as I had a reasonable time to reflect on that decision, I realised that signing the consent was a mistake”. That is not the case that I am presented with. I am presented simply with the case that it is all fraud on behalf of the mother, “I didn’t do anything at all about it. I never signed it. I’m not confused about it. I’m absolutely accurate about it”.
I am conscious of the difficulties that judges face in Hague cases of determining disputed facts in the absence of the ability to test the evidence. I have had some opportunity to have the evidence tested by at least having the mother and the handwriting expert cross-examined. Of course the father has not been available to provide his evidence and allow me to assess his credit beyond the assumptions I can make as best I can on the documents.
The conundrum that is thrown up in Hague cases has been looked at in a number of authorities. The leading authority in Australia on this particular issue is Panayotides v Panayotides (1997) FLC 92-733; (1996) 21 Fam LR 446 where Fogarty and Baker JJ (with whom Finn J agreed) cited with approval the description by Jordan J at first instance of the process upon which the Court needs to embark in hearing these matters. At FLC 83,897; Fam LR 474 the Full Court identified and approved of the following observations of Jordan J:
The first thing to observe is that there is much conflict in the evidence. These are summary proceedings and issues must be determined on the papers. This often presents the Court with difficulties. It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see, Re F (1992) 1 FLR 548). As was submitted by counsel for the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.

For reasons that I have already indicated in these proceedings, I am of the conclusion that the mother’s version of events are more probable than the father’s. That being so, I turn to the provisions of the relevant regulations which themselves are a little contradictory.
The regulations mandate the court to order the return of a child where:
·A request is made from a convention country;
·The child is under 16 and is habitually resident in the requesting country;
·The child has been wrongfully removed from the requesting country or wrongfully retained in Australia in breach of rights of custody; and
·The request is made within 12 months of the wrongful removal or retention.
The facts of this case do not challenge the proposition that the child was, at least until his retention in Australia in April of 2007, habitually resident in the United States and that his father had rights of custody in relation to the child which would be breached were the child to be retained in Australia contrary to the wishes of the father. The child is of course under the age of 16 years.
The request for his return has been made within 12 months and accordingly, the basic requirements of the regulations which enact the Convention have been met, and the mandatory return is required if I am satisfied that the child’s retention in Australia is in breach of the father’s rights of custody. If I am not so satisfied then mandatory return is not required. Indeed, there is one argument for saying that if I am not so satisfied, then the Convention has no application. Indeed, on the literal reading of the Convention, that would be so because the power to make an order under the Convention requires the wrongful removal to Australia or the wrongful retention in Australia of the child in breach of the rights of the custody of somebody. It is hard to see what would be wrongful about the retention of this child in Australia if the father has consented to its retention.
However, peculiarly enough, the regulations go on to provide in regulation 16(3) that the court still retains a discretion to order the return of the child, notwithstanding that there has been a consent to or acquiescence in the child’s retention in Australia. This seems to me to be in conflict with the Convention which, by its preamble, is aimed at desiring to protect children internationally from the harmful effects of their wrongful removal or retention.
Notwithstanding this apparent conflict, which is well recognised by the international text writers and I draw attention to the discussion in Beaumont and McEleavy's The Hague Convention on International Child Abduction monograph at the bottom of page 131 onwards and the discussion by Lowe, Everall QC and Nicholls in International Movement of Children – Law Practice and Procedure at paragraph 17.79. Interestingly enough, one of the leading authorities on the exercise of the discretion, even though there has been an acquiescence in the retention is an Australian authority of Townsend v Director-General, Department of Families, Youth and CommunityCare (1999) FLC 92-842; (1999) 24 Fam LR 495, also an American case. The trial judge’s reasoning in ordering the return of children to the United States even though their father had acquiesced in their wrongful retention in Australia was upheld by the Full Court. The trial judge had said (reproduced in paragraph 52):
Notwithstanding that I have found that the father acquiesced in the retention of the children in Australia, sub-regulation (5) makes it clear that the Court is not precluded from making an order for the return of the children only because a matter mentioned in sub-regulation (3) of Regulation 16 is established.
In considering the exercise of this discretion, all pertinent matters must be addressed and balanced. These include the history of residence in the USA prior to the removal; the removal itself; the policy of the Convention; and the events since the children were brought to Australia. They include matters that bear upon the welfare and interests of the children.
Essentially, I am of the view that it is not shown that, in any substantial way, it would be contrary to the interests and welfare of the children to be returned to the USA so that, in that country, the question of with which parent they primarily reside can be determined.
In those circumstances, the policy of the Convention emerges as of particular comparative significance, and in my view the children should be returned.
The authorities go on to provide that where there is a discretion to be exercised, the types of considerations to be given to the exercise of the discretion include the matters which are set out at length in the decision of Zafiropoulos and the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264; (2006) 35 Fam LR 489. In that case Bennett J at first instance cited my unreported judgment in State Central Authority and B [2002] FamCA 804 delivered 24 September 2002, and said (citations omitted):
33.The existence of the regulation 16(3) defence means that the Court may refuse to order the return of the child under the Convention. This raises the question of the exercise of a discretion. The regulation offers no express terms as to how that discretion may be exercised. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in De L v Director-General, NSW Dept of Community Services:
if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child's return. The regulations are silent as to the matters to be taken into account in the exercise of that discretion and the “discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [regulations]” enable it to be said that a particular consideration is extraneous …. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10 ½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) which were:
(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.
Earlier in Re K (Abduction: Consent) [1997] 2 FLR 212 Hale J (as she then was) when speaking of the discretion whether or not to order the child’s immediate return to Texas said at 218 (emphasis added):
In exercising that discretion a variety of factors, which will depend, to some extent, upon the circumstances of the case, have to be weighed in the balance. One of the factors is the most appropriate forum between these parents about the future of their daughter should be decided. There is no doubt that their main connection is with Texas. S’s main connection is with Texas. That is where she was born. It is where she has lived all her short life until October 1996. It is where the home in which she lived is situated. It is where her father and her father’s relatives, including the grandmother, who has played a large part in her care, are situated. So, in terms of the closest connection it is obvious that Texas wins …
I am entitled to take into account the likely outcome of any such proceedings … It may, therefore, be surmised that it is more likely than not that it would conclude that S should live with her mother. Whether they would also conclude that she should have leave to come to this country again, I know not. It is, perhaps, more difficult to predict the outcome of that sort of application. That there would certainly be reasonable chance of its success were such an application to be made in the reverse situation in this country …
I take into account that the father has offered support, but that the financial situation is such that this is a very difficult matter for him and he is clearly very seriously troubled about the level of debt that there is in Texas. One is bound to have reservations about how sustainable that offer would be …
The final thing that I have to weigh in the balance is the purpose of the convention. This is something that the courts attach the greatest possible importance. We all want children to be returned as soon as possible to the place from which they have been wrongfully removed. The reasons why the conventions exist to secure this are partly that is bad for children to be uprooted from one jurisdiction to another and partly to fulfil the obvious proposition that if there is a dispute between parents as to the future of their child it is better dealt with in the courts of the country where the child has hitherto been habitually resident because that is where the best information lies.
However, I have to bear in mind in particular that the factor has a different weight in a case in which consent to the removal or retention has been established. Indeed in cases of consent, all of those factors carry a rather different weight. But if it has been agreed between parents that the mother may bring her child to another country and, if she so chooses, remain here with the child, then frustrating those for the purposes of the conventions scarcely comes into question. I do, however, take it into account because of the evidence of a very swift change of mind on the father’s part.
As to the latter point, Hale J (as she then was) in Re K (Abduction: Consent) (above) expressed the view to which I respectfully agree, that the upholding of the spirit of the Convention is not necessarily to be given a great degree of weight where consent has been established. There may be cases in which the welfare of the child becomes so demanding of a return or the circumstances surrounding the granting of the consent are such that it would be inappropriate to hold somebody to the consent, but otherwise, basically the Convention is the sum of its parts and one of its parts is that if parties consent, then the evil that the Convention is aimed at meeting does not present itself.
Weighing up the various discretionary factors, I am unable to say whether a New York forum is more suitable than an Australian forum. Both fora are going to present difficulties for the absent parent. If the mother has to go to New York with the child she will not have the emotional support of those who provide her support in Australia. She will have to persuade the American authorities of the qualities of life here. She will have to give evidence of the nature of arrangements that can be made for the child here and of the availability of employment and the like here.
If the proceedings are carried out in Australia, the father is likely to be under a very similar disability. He will not have his medical evidence. He will have difficulty in presenting the evidence of the circumstances in which the child is likely to be raised in the New York vicinity.
I cannot predict the likely outcome of the substantive proceedings. There are too many variables. Under Australian law, the courts are looking to try to create the situation where both parents can become involved in the child’s life. Whether similar law applies in the state of New York, I am unable to say presently, but one assumes that each court will apply the principle of determining what is in the child’s best interests and it is difficult to predict an outcome as to what that might be, albeit that the child is very young and has remained in the primary care of the mother for most of his young life.
The consequence of the consent in this case is that the mother and child are now well settled in Australia. She is in well paid employment. The father has not seen the child now for several months.
As to the situation which would await the absconding parent and the child if compelled to return, firstly, there are visa issues but I am working on the assumption in these proceedings that the mother is entitled to some form of visa that will enable her to enter into the United States. If that proves to be a false assumption, she has her remedies under regulation 19A to come back to the court and ask that any order that I make for the return of the child be set aside. She had originally pleaded in her response that she would have visa difficulties and that it would be intolerable to allow the child to return without her, relying on the decision of Joske J in State Central Authority v Ardito (unreported 29 October 1997) to that effect. I pointed out that as a result of that decision, the Americans changed the requirements for abducting parents under the Convention and created a new class of visa available called a Significant Public Benefit Parole which will provide for a parent to enter the United States for a limited time to participate in custody or other related proceedings in the United States.
My understanding is that such visas are liberally and freely available. However, it may well be that there are difficulties and clearly, if such difficulties were faced by the mother were she ordered to return with the child, then that would be an appropriate basis for the court to entertain an application to reconsider any return order.
There are of course other difficulties that the mother would face in the United States, such as providing herself with accommodation and support. The father’s answer to that is that the United States courts are the appropriate place to obtain any remedies that might be required. Of course that will not give her remedies in the long term if the United States immigration laws are only available for her to enter the United States for temporary purposes, and no doubt the court in the United States would take that situation into account in determining any application by the mother to remove herself and the child from the United States on a long-term basis. It would clearly have a detrimental emotional effect upon the child to be immediately returned without his mother, but it may well have a long-term detrimental effect on the child not to be given an opportunity to develop an appropriate relationship with his father. Such are the consequences of the tyranny of distance that often accompany international marriages that break down.
Having weighed up all of the discretionary factors and bearing in mind the nature of the Convention and my findings in relation to the consent given by the father, it is my view that the application for summary return of the child should be dismissed.
It is further arguable, although not pressed in this case, that once the parents agreed the child should live in Australia and put that agreement into effect, the child ceased to be habitually resident in the United States, in which case the Convention would no longer have application so far as any request by the United States Central Authority was concerned.
There still remains on foot the mother’s application for parenting orders in these proceedings. I do not think it is appropriate that I deal with those. The father is not a party to these proceedings today. He asks in his affidavit filed today that he be given the opportunity to respond to those proceedings and that seems to me to be a reasonable request on his behalf. He is not then precluded of course in any proceedings in Australia from seeking the immediate return of the child under the Family Law Act 1975 (Cth), nor from seeking orders that would give him opportunities to have meaningful contact with his child, both in Australia and outside of Australia. These are matters to be determined presumably in accordance with the provisions of the Family Law Act 1975 (Cth).

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate:

Date: 14 November 2007