Ustinov & South Australian State Central Authority
[2008] FamCAFC 110
•25 July 2008
FAMILY COURT OF AUSTRALIA
| USTINOV & SOUTH AUSTRALIAN STATE CENTRAL AUTHORITY | [2008] FamCAFC 110 |
| FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILD ABDUCTION – Central Authority – Children brought to Australia – Mother resided in Bulgaria – Father opposed application of Central Authority – Wishes of children not to return to Bulgaria – Trial Judge made orders designed to effect the return of the two children forthwith to Bulgaria – Father appealed – Whether the children were habitually resident in Bulgaria immediately before their removal – Whether on the evidence before the trial Judge her discretionary decision not to refuse to order the children’s return was wrong – Whether the trial Judge’s reasons were inadequate – Whether the finding that the children were not at grave risk upon their return was wrong – No merit in arguments on appeal – Appeal dismissed FAMILY LAW - APPEAL – Application to adduce further evidence – Whether the further evidence demonstrated that the orders for the return of the children were and/or are wrong |
| Family Law (Child Abduction Convention) Regulations 1986, reg 16(1A), reg 16(3), reg 16(3)(c) |
| In Re M (FC) and Another (FC) (Children) (FC) [2007] UKHL 55 |
| APPELLANT: | MR USTINOV |
| RESPONDENT: | COMMISSIONER OF POLICE AS SOUTH AUSTRALIAN STATE CENTRAL AUTHORITY |
| APPEAL NUMBER: | SA | 34 | of | 2008 |
| FILE NUMBER: | ADC | 4796 | of | 2007 |
| DATE DELIVERED: | 25 July 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Bryant CJ, Finn and Warnick JJ |
| HEARING DATE: | 30 June 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 April 2008 |
| LOWER COURT MNC: | [2008] FamCA 257 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr McQuade |
| SOLICITOR FOR THE APPELLANT: | Lempriere Abbott McLeod |
| COUNSEL FOR THE RESPONDENT: | Mr Kourakis QC |
| SOLICITOR FOR THE RESPONDENT: | Crown Solicitors Office |
Orders
That the appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Ustinov & South Australian State Central Authority is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 34 of 2008
File Number: ADC 4796 of 2007
| MR USTINOV |
Appellant
And
| COMMISSIONER OF POLICE AS SOUTH AUSTRALIAN STATE CENTRAL AUTHORITY |
Respondent
REASONS FOR JUDGMENT
On application by the State Central Authority pursuant to the Family Law (Child Abduction Convention) Regulations 1986, Dawe J made orders designed to effect the return of two children forthwith to Bulgaria. The application was brought at the request of the mother, Mrs Ustinov, who resided in Bulgaria. The father, Mr Ustinov who had brought the children from Bulgaria to Australia in mid‑2007, opposed the application of the Central Authority and these reasons relate to his appeal against Dawe J’s orders.
The Notice of Appeal contained 20 grounds and one paragraph numbered as a ground, but which merely notified the possibility of an application for leave to amend. However, Mr McQuade of counsel who appeared for the father indicated that there were three contentions in the appeal:
·Firstly, that contrary to Dawe J’s finding, the children had not been habitually resident in Bulgaria immediately before their removal;
·Secondly, that in light of the children’s objection to returning to Bulgaria Dawe J had failed to properly exercise her discretion to refuse to return them. This contention was made both on the basis of the evidence before the trial Judge and on the basis of further evidence which Mr McQuade sought that we receive; and finally
·That the finding by the trial Judge that the children would not be at grave risk if they were returned under the arrangements she put in place was against the evidence and the weight of the evidence.
Were the children habitually resident in Bulgaria immediately before their removal?
This question arises because of the terms of regulation 16(1A) of the Family Law (Child Abduction Convention) Regulations 1986 which provides, in part:
(1A)For subregulation (1), a child’s removal to, or retention in, 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 …
The father was born in 1954 in Bulgaria. The mother was born there in May 1969. In 1981 the father left Bulgaria and subsequently obtained political asylum and later, residency status in Australia, where he arrived in April 1984. He became an Australian citizen in 1985, retaining his Bulgarian citizenship.
The father travelled to Europe in 1992. He met the mother in Bulgaria, they commenced cohabitation there and married there in May 1994. At the end of that year, they left Bulgaria and moved to Australia, the wife having been granted permanent residency status. In May 1997 the mother became an Australian citizen, also retaining her Bulgarian citizenship.
The parties travelled to Bulgaria in the expectation of the birth of each of their two children. A was born [in] September 1998 and M [in] May 2000. On each occasion, the parties remained in Bulgaria for a few months after the birth of the child before returning to Australia.
In early 2004, the parties purchased property in Bulgaria. Then, they sold real property that they had purchased in Australia and left Australia with all of their belongings in February 2005. Dawe J recorded that the father asserted “…the intention was to move to Bulgaria for about two years and not permanently”. In the Bulgarian winter of 2005, the parties purchased real property, according to the father, with the intention of selling it in the summer.
The trial Judge recorded allegations that each party made against the other, concerning incidents leading to the break down of their relationship, including alleged mistreatment of the children. Dawe J found herself unable to make findings about those matters. The mother and father separated in about April 2007, when the father took the children to reside with him at his mother’s home in the place V, Bulgaria but, on his version, he returned to the former matrimonial home on at least weekends, to allow the children to see the mother.
Then, without the knowledge or consent of the mother, on 27 June 2007 the father, his mother and the two children left Bulgaria and travelled to Australia.
Within a matter of days of receiving advice from the father that he and the children were in Australia, the mother made application to the Ministry for Justice of the Republic of Bulgaria seeking the return of the children from Australia under the provisions of the Hague Convention.
On the issue of habitual residence, the relevant findings of Dawe J include:
49.The father in his papers maintained that he was a permanent resident of Australia and had only moved to Bulgaria for approximately two years. In final submissions counsel for the father did not concede that the children were habitually resident in Bulgaria immediately before their removal, but made no significant submissions.
…
51.The habitual residence of the children whose parents live together is that of the parents. The authorities indicate that neither parent can change the habitual residence of the children without the consent of the other.
…
53.The father maintained that the family were residing in Bulgaria only as a temporary arrangement for about two years.
54.The concept of “habitually resident” was considered in Cooper and Casey (1995) FLC 92-575. At page 81,695, Nicholson CJ, as he then was, quoted with approval the passage from Re B (Minors) (Abduction) (No 2) (1993) 1 FLR 993 at page 995:
“1.The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.
2.Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or of long duration.
All that the law requires for a `settled purpose' is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.
3.… Logic would suggest that provided the purpose was settled, the period of habitation need not be long. …
(Dawe J’s emphasis)
…
56.In Re B (Minors) (Abduction) (No 2) (1993) 1 FLR 993 (which was quoted with approval by Nicholson CJ in Cooper & Casey (1995) FLC 92-575) it was said:
“All that the law requires for a "settled purpose" is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.'
57.I am satisfied that the mother and father had a shared intention to live in Bulgaria and that there was sufficient degree of continuity about their residence in Bulgaria to describe it as “settled”.
58.I am not satisfied that the residence was merely temporary.
59.I am satisfied that the evidence establishes that the mother and father were habitually resident in Bulgaria immediately prior to the removal of the children. I am therefore satisfied that the children were habitually resident in Bulgaria immediately before their removal from Bulgaria.
The primary attack here was on the finding in the one sentence of paragraph 58 above, namely that Dawe J was not satisfied that the residence in Bulgaria was merely temporary. The contentions were:
·That the father had deposed that the arrangement was only for approximately two years;
·That that was only a temporary arrangement;
·That, there having been no cross-examination of the father, the trial Judge should not have found contrary to his evidence that the arrangement was temporary.
We make the following observations about these contentions.
Firstly, temporariness is a qualitative concept. Even if that abstract notion was determinative of whether the children were, in mid‑2007, habitually resident in Bulgaria, the decision of whether the residence was temporary or not would have been one for the Judge, not one determined by what a party swore about it.
Secondly, in our view, upon which we will shortly expand, Dawe J correctly identified the question she had to answer, which was not whether the parents and children were in Bulgaria temporarily, but whether the parties (and children) were living in Bulgaria “voluntarily and for settled purposes”. We think it at least arguable that in rejecting any claim that the family’s residence in Bulgaria was “merely temporary” her Honour was saying no more than that it was “settled”. In any event, even if Dawe J ought be seen as rejecting the father’s deposition as to the temporary nature of the family’s residence as a fact, there was ample extraneous evidence for her to do so. The parties had arrived in Bulgaria on 6 March 2005. They separated over two years later. We have not been referred to any evidence to suggest that at about that time they were jointly making plans to return to Australia. The father remained in Bulgaria for nearly another four months.
We find no merit in this contention.
Did Dawe J fail to properly exercise her discretion?
The relevant discretion arises from the terms of regulation 16(3)(c), which provides:
(3)A Court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
…
(c)each of the following applies:
(i) the child objects to being returned;
(ii) the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
…
Mr McQuade used three bases of argument:
(i)that on the evidence before Dawe J, her discretionary decision not to refuse to order the children’s return was wrong;
(ii)that her reasons were inadequate; and
(iii)that further evidence, which as later explained was ultimately put before us, demonstrated that the orders for return were and/or are wrong.
We deal with the first two contentions together.
That on the evidence before Dawe J, her discretionary decision not to refuse to order the children’s return was wrong
That her reasons were inadequate
Dawe J concluded:
96.The report and oral evidence of Mr [R] establish that the children object to being returned to Bulgaria and to their mother and that these feelings go beyond the mere expression of preference or ordinary wishes.
The primary argument in respect to the first contention came essentially to this; Dawe J having so concluded, ought also have found that the children’s objection to return to Bulgaria overwhelmed all contrary discretionary considerations.
A, nine, and M, seven, were interviewed on two occasions by the family consultant (Mr R), who provided a report and was cross-examined before Dawe J, who said:
87.In the section headed “Second Interview with the Children” the Family Consultant sets out the children’s comments about the general living conditions and schools in Bulgaria and comments about the poor relationship between their parents and allegations that their mother had hit them.
88.He describes the children’s wishes about their residence in Australia as uncompromising and gives quotations from the children’s comments. At paragraphs 25 and 26 he states:
…
28.However, when the subject of forced return was broached they became animated and forceful in their determination to resist.
…
31.During the last six months the two children have experienced the difference between life in Bulgaria and Australia, thus leading [sic] credibility to their stated choice to remain living in Australia.
…
34.The two children’s objections to being returned to Bulgaria on the one hand and to their mother on the other, generated feelings well beyond the mere expressions of preferences or ordinary wishes.
35.Although only nine and seven years of chronological age, these children like many others subjected to the stresses of their parents marriage breakdown, have acquired a sophistication beyond children in intact relationships and as such should be given at least twelve to eighteen months of maturity on top of their chronological age regarding their expressed objections.
Importantly however, Dawe J also noted:
93.He said the children were blaming their mother for everything in the second interview. When asked by Ms Olsson whether their attitude of support for their father and remaining in Australia was more of a “survival mechanism” than their genuine wishes, he said that it was “probably both”.
Her Honour concluded her examination of the evidence relating to the children’s objections with the following:
112.The expression of these views by the children should be taken in the context that they have been residing with their father in Australia with limited contact with their mother since late June, early July 2007. Mr [R] conceded that the attitude adopted by the children may be in part explained by a “survival mechanism”.
113.I am satisfied that the children’s objections are of sufficient strength that they are beyond mere preference or ordinary wish. I take into account the evidence of the Family Consultant that they have reached an age and maturity which makes it appropriate to take account of their views. However this is not to say that the views they have expressed should determine the outcome of the proceedings.
As earlier indicated, Mr McQuade submitted that in this case the children’s views should have determined the outcome. And, he argued, Dawe J provided no adequate reason to explain why that did not occur.
After dealing with the children’s objections and finding that they provided a basis upon which the Central Authority’s application might be refused, Dawe J considered “Grave Risk”, to which consideration we will later return, and then moved to “Summary and Conclusions”. After reiteration of her conclusions in respect of the matters which the Central Authority had to establish, and as to the children’s objections, she said:
146.The children are aged nine and seven and have been in the care of their father ever since they left Bulgaria in late June 2007. Whilst the children’s wishes should be taken into account, their wishes need to be considered in the context of this particular case and not necessarily given decisive weight.
147.The father is in a position to ensure that their return to Bulgaria can be undertaken in a way (with his support and encouragement) that the children will not suffer any long term effects and any short term difficulties can be overcome.
148.Taking into account the particular factors in this case and notwithstanding the objections of the children, it is not appropriate to exercise the discretion to refuse to order the return of the children. The order should be made for the return of the children to Bulgaria.
149.The father will be given an opportunity to arrange for the return of the children in his company and a brief time to take the children to a suitable qualified child psychologist of his choosing to assist him in reducing the psychological impact of the return to Bulgaria.
Mr McQuade submitted that there was nothing in the passages just quoted to explain why the children’s objections were found sufficient to constitute a basis upon which return might be refused, but not sufficient to found an actual refusal to order return.
We think the answer to this argument is that neatly framed by Mr Kourakis of Queen’s Counsel, Solicitor-General for the State of South Australia, who appeared for the Central Authority. In effect he submitted that in addressing the issue of the children’s objections to returning to Bulgaria for the purpose of determining whether a ground pursuant to Regulation 16(3) had been made out, Dawe J was concerned with, among other aspects, the genuineness of the children’s objections. In addressing the weight to be given to the children’s objections in the discretionary exercise, as well as other aspects, Dawe J had been concerned with the realism of the foundation for the children’s objections, as against their perceptions.
That this is so is we consider, established by her Honour’s statements, “that [the children] have been residing in Australia with limited contact with their mother…[and that the family consultants conceded that the attitude adopted by the children may be in part explained by a “survival mechanism”] (see paragraph 112 of Dawe J’s judgment, earlier quoted).
A secondary aspect of Mr McQuade’s challenge to the trial Judge’s exercise of discretion was what he described as an error of law on her part. Dawe J said:
109.The Court has a discretion to exercise even if satisfied that the child’s objections fall into the categories set out in the Regulations. The circumstances surrounding the children’s departure from the Convention country and their reasons expressed as the foundation of the objection may be matters relevant to the exercise of discretion.
Mr McQuade’s argument was that the circumstances surrounding the children’s departure from a convention country might be relevant to establish whether they had been wrongfully removed but, if used for that purpose, did not then have any further or continuing relevance if a discretion was being exercised. We reject this proposition.
If it be that, by referring to the circumstances surrounding the children’s departure from the convention country, her Honour was doing no more than, in the discretionary exercise, placing weight on the policy of the convention for prompt return of children to convention countries from which they have been wrongfully removed, her Honour would have the support of authority. As Baroness Hale said, in In Re M (FC) and Another (FC) (Children) (FC) [2007] UKHL 55:
42.In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the Contracting States and respect for one another’s judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the Contracting States.
In any event, we think it likely that her Honour was doing more than merely referring to the policy of the convention in relation to wrongful removals, but was addressing the particular circumstances relating to this removal. As earlier indicated, her Honour had found that, right up until the removal, the mother was regularly seeing the children. In other words, there was nothing to indicate that that arrangement might be about to change. Her Honour went on to find:
34.On the 27 June 2007 the father, his mother and the two children left Bulgaria travelling to Australia via Greece and Turkey. This was done without the knowledge or consent of the mother.
35.The father and children arrived in Adelaide [in] July 2007.
36.It was not until [some days later] that the father told the mother that he and the children were in Adelaide, Australia.
We see no reason why a surprising and secretive removal might not be a factor affecting the exercise of a discretion whether or not to order the return of children.
Having regard to the discretionary nature of that part of the exercise conducted by Dawe J presently under discussion, we are satisfied that her Honour’s ultimate conclusion was both open to her and adequately explained.
That the further evidence demonstrated that the orders for return were and/or are wrong
In support of the appeal (and as relevant to any exercise of discretion upon which we might embark), the father sought to put before us as further evidence, legal opinion about Bulgarian law. Our description of the father’s purpose is that the evidence was designed to show that Bulgarian Courts (at least those that decided family law disputes) did not have power to make an order that entitled a parent to leave the country with children without the consent of the other parent.
Thus, the contention at the initial stage was that, if the father and children returned to Bulgaria it was at least doubtful that, even if a Bulgarian Court concluded that the children ought be in the care of the father and he be allowed to return to Australia, he could lawfully do so.
We permitted the Central Authority an opportunity to gather evidence in response. This the Authority did and the Solicitor-General proposed that the preferable course was to admit all that was proferred by each party. Thus, on the resumed hearing to take final submissions about the further evidence, by consent we admitted the material listed in annexure A to these reasons.
The material showed that, while for solely Bulgarian citizens the decision about the departure of a parent and children from the country without the consent of the other parent was, at least at the first stage, an administrative one, that even then the administration was required to have regard to, possibly even give paramountcy to, the best interests of the children and that the possibility of opportunities for review of an adverse administrative decision was not negated.
But of even more moment for this appeal, the material showed that while the law as described in the initial contention by Mr McQuade probably applied to citizens solely of Bulgaria, it did not apply to the father and children, because they had Australian citizenship as well. Thus, he had lawfully exited Bulgaria with the children in mid-2007, without the mother’s consent and could do so again.
Mr McQuade reframed the contention, to assert that if the father did leave again with the children, at least a risk existed that the removal of the children would be classified under the Hague Convention as wrongful and another application for return would be instigated by the mother.
In our view, there is nothing in the material to show that Bulgarian Courts lack the jurisdiction or power to make orders operative on the custodial rights of the mother and father that would enable a subsequent departure of the father with the children from Bulgaria to avoid classification under the Hague Convention as wrongful.
We do not consider that the further evidence demonstrates that Dawe J’s exercise of discretion was, or even likely was, wrong.
Was the finding that the children were not at grave risk if returned, wrong?
The finding of “grave risk” is relevant to the terms of regulation 16(3), which provides:
(3)A Court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
…
(b)there is grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or …
Dawe J recorded that in his written report the family consultant had said:
118.…
“There is certainly a grave risk of psychological harm to the two children should they be returned to Bulgaria without therapeutic intervention in Australia rather than any treatment in Bulgaria after their return.”
However, her Honour continued:
119.During his oral evidence however it became obvious that he considered a substantial part of the risk was the possible psychological harm that the children would suffer if they were forcibly returned to Bulgaria to the care of their mother. He was then directed to consider that the children be ordered to return to Bulgaria but on the basis they could remain in the care of the father if he chose to travel with them.
120.When asked if the risk to the children would be reduced if the father played a role in returning the children to Bulgaria, he said “yes, it certainly would”.
121.Mr [R] continued to emphasise that the children did not want to return to their previous school in Bulgaria and that they disliked the whole environment in Bulgaria. He was concerned that it would be necessary to use force to arrange for the return of the children to Bulgaria, unless there was a therapeutic intervention preferably involving both the mother and father.
122.The oral evidence of Mr [R] indicated that his initial assessment was based on the premise that the children would be returning to the care of their mother, rather than to Bulgaria. His evidence indicated that if the children returned to Bulgaria with their father, his concerns would be much reduced.
123.I am satisfied that the oral evidence of the Family Consultant was that the emotional or psychological risk for the children would be reduced if they travelled with their father to Bulgaria and would also be reduced if the children were given the benefit of short term intensive therapy about their return. The oral evidence of the Family Consultant therefore reduced the risk from grave, although it was not a risk that was entirely removed.
Mr McQuade’s first argument about these passages in Dawe J’s judgment was that the oral evidence of the Family Consultant did not support the finding that, if the conditions referred to in paragraph 123 quoted above were met, they “reduced the risk from grave”.
Both counsel took us to the transcript which we have carefully considered. We are satisfied that Dawe J’s conclusion was open.
A second argument put by Mr McQuade was that Dawe J could not have been satisfied that therapeutic intervention in Australia would be successful. This must be so, but Dawe J was dealing with probabilities, not certainties and, as seen, recognised that risk was not entirely removed. We see no error in that conclusion.
Mr McQuade presented another argument. As earlier seen, at paragraph 147 of her reasons, Dawe J said:
147.The father is in a position to ensure that their return to Bulgaria can be undertaken in a way (with his support and encouragement) that the children will not suffer any long term effects and any short term difficulties can be overcome.
Mr McQuade attacked the trial Judge’s finding that “…short term difficulties can be overcome”. But that is not a finding that short term difficulties would be overcome, and we repeat in respect of the finding, the comments we have just made with regard to the matter of therapeutic intervention.
We discern no error in her Honour’s conclusions in respect to “grave risk”.
Conclusion
Since we find no merit in any of the contentions pursued, the appeal should be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 25 July 2008
ANNEXURE “A”
For the appellant
Affidavit of Mr Ustinov (appellant husband) sworn and filed 27 June 2008.
Affidavit of Ms B sworn 27 June 2008.
Affidavit of Mr H sworn and handed up in Court on 30 June 2008.
Letter from P dated 11 July 2008, attached to submissions filed 15 July 2008.
For the respondent
Affidavit of Ms Olsson sworn and filed 4 July 2008.
Affidavit of Ms R sworn and filed 15 July 2008.
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