Woods and Woods and Anor

FAMILY COURT OF AUSTRALIA

WOODS & WOODS AND ANOR

[2008] FamCA 65

FAMILY LAW – PRACTICE AND PROCEDURE – Judicial Registrar – Review of decision

APPLICANT:

Ms Woods

FIRST RESPONDENT:

Mr Woods

SECOND RESPONDENT:

Director General, Department of Community Services

FILE NUMBER:

SYF

3336

2005

DATE DELIVERED:

16 January 2008

PLACE DELIVERED:

PARRAMATTA

PLACE HEARD:

SYDNEY

JUDGMENT OF:

JUSTICE STEVENSON

HEARING DATE:

2 NOVEMBER 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MR WATKINS
SOLICITOR FOR THE APPLICANT:	DUNSTAN LEGAL

COUNSEL FOR THE FIRST RESPONDENT:	MR LARDNER
SOLICITOR FOR THE FIRST RESPONDENT:	DAVID LARDNER

COUNSEL FOR THE SECOND RESPONDENT:	MS PERREIRA
COUNSEL FOR THE SECOND RESPONDENT:	LEGAL SERVICES, DEPARTMENT OF COMMUNITY SERVICES

Orders

That the application of the mother filed on 24 October 2007, for an extension of time to review the decision of the Judicial Registrar on 29 June 2005 is refused.

IT IS NOTED that publication of this judgment under the pseudonym Woods & Woods and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYF 3336 of 2005

MS WOODS

Applicant Wife

And

MR WOODS

First Respondent Husband

And

DEPARTMENT OF COMMUNITY SERVICES

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

Before me is one facet of lengthy litigation between the father, Mr Woods, and the mother, Ms Woods, in relation to their child. The child was born in April 2000 and is now seven years old. This litigation has taken place since 2004 in both Denmark and Australia. The Central Authorities of both Denmark and Australia have been involved at various times.
In the course of these lengthy proceedings the Australian Central Authorities sought a declaration that the retention of the child by the mother in Denmark was wrongful within the meaning of regulation 17 of the Family Law (Child Abduction Convention) Regulation 1986. This application was heard by a Judicial Registrar on 29 June 2005, when the declaration sought was made. The mother did not appear and placed no evidence before the Court on that occasion. It appears to be common ground that she was not served with the application of the Central Authority and was not advised of the hearing date.
On 9 August 2007 the mother filed an application for an extension of time to review the decision of the Judicial Registrar. That application, and her substantive review of the decision of the Judicial Registrar, came before me on 2 November 2007.

Background

It is necessary to set out some historical background to give context to the present proceedings. There was no testing of any written evidence before me and I am conscious that there were disputed factual issues between the parties.
The father was born in Australia in November 1968 and is now 39. The mother was born in Denmark in January 1977 and is now 31. They began to live together in Denmark in December 1998 and married in that country in June 1999.
In February 2000 the mother purchased an apartment in Denmark, where the parties lived until November 2000. They then came to Australia with the child and lived with the father’s parents in Sydney. The mother and the child returned to Denmark on 15 March 2001 and stayed in that country on 18 August 2001. The father travelled to Denmark on 1 June 2001 and in the course of this visit he made an application for permanent residence.
On 18 August 2001 the parties and the child returned to Australia and stayed again with the father’s parents. At some stage it seems that they acquired their own accommodation at N.
In January 2001 the parties purchased vacant land in the Blue Mountains region as joint tenants or co-tenants. It seems that some building work was carried out and that the family may have lived on the property for a time in about mid 2003.
According to the mother the parties separated on 20 December 2003, when the father left their home at N and went to stay with his parents. The father’s version of events is that, although there were problems in the relationship, he expected that the family would remain intact. He claimed that the parties agreed that the mother and the child would spend approximately one year in Denmark between February 2004 and May 2005. They would then return to Australia.
On 16 February 2004 the mother signed a document entitled “Terms of Settlement”, prepared by the father’s then solicitor. Her signature was witnessed by the solicitor who has acted for her in Australia throughout these proceedings. The father has never signed the document and orders have not been made in accordance with its contents.
The mother claims that she was pressured by the father into signing the Terms of Settlement under threat of his refusing to allow her to leave for Denmark with the child on the following day. As noted, however, she had the benefit of legal advice at this time.
According to the father the parties agreed that the mother and the child would live in Denmark for approximately one year to enable her to sell her apartment and avoid payment of capital gains tax. The mother maintained that there was an open ended agreement, that she and the child would go to Denmark to live in February 2004 and that the parties would make arrangements for the child to be with her father from time to time.
In my view this version of events sits uncomfortably with the mother’s execution of the Terms of Settlement with the benefit of legal advice. I note that her solicitor, Mr Dunstan, completed and signed the section in the prescribed form 4 Application For Consent Orders headed “Statement of Independent Legal Advice”.
A section in the Terms of Settlement entitled “Recitals” contains the following:
“(f) The parties have reached an agreement in relation to parenting of [the child] and seek for orders to be made in accordance with the agreement.
(g) Pursuant to the agreement [the mother] and [the child] will travel to Denmark on 17 February 2004 and remain there until May 2005. The husband is intending on travelling to Denmark in around July 2004 for a period of up to two months, and again in around December 2004, subject to his financial position. When [the child] visits Denmark, the father will have unlimited periods of residence with [the child] when he is in Denmark.
(h) It is agreed between the parties that in the event of any dispute relating to parenting, the Family Court of Australia has jurisdiction to determine the dispute.
(i) The parties intend that upon [the child’s] return to Australia in May 2005, that they will enter into a further agreement and orders in relation to [the child’s] parenting.
(j) It is the intention of the parties that further determination in relation to parenting be conducted by the Family Court of Australia in Sydney.”
Under the heading “By Consent” the Terms of Settlement provided as follows:
“(1) That the mother have liberty to remove [the child] from Australia for the purposes of residing in Denmark from 17 February 2004 until 1 May 2005.
(2) That [the child] do travel under Australian passport for the purpose of travelling in accordance with order 1 above.
(3) That the mother do return [the child] to Australia on or before 1 May 2005.
(4) From 1 May 2005 [the child] do reside in Australia.”
Under a section headed “General” the Terms of Settlement provided, inter alia, as follows:
“(14) That the Family Court of Australia retain jurisdiction in relation to parenting matters.
(15) That there be liberty for both parties to apply to the Court in relation to implementation of these orders, but no less than 14 days notice to be given to the Court and the other parties.
(16) These orders shall cease to operate upon the mother returning [the child] to Australia in accordance with order 3 above.”
In 2004 the mother commenced proceedings for parenting orders in Denmark. The father approached the Australian Central Authority and sought assistance with an application for the return of the child pursuant to regulation 14 of the Family Law (Child Abduction Convention) Regulations 1986. Legal officers in the Australian Central Authority took the view that a wrongful retention would not arise until after 1 May 2005 which was the date stated in the Terms of Settlement as the deadline for the mother to return the child to Australia.
Meanwhile, the father’s lawyer approached the Danish Central Authority directly and proceedings were commenced in Denmark for the return of the child to Australia. This application was heard and dismissed on 30 July 2004. The reasons for decision record that the mother relied on a defence that the child “was residing legally in Denmark” until 1 May 2005.
On 3 February 2005 a Danish court ordered that “shared parenting shall be revoked and sole parenting of [the child] be awarded to the mother [Mrs Woods]”. The father had opposed the mother’s application and he then appealed to the High Court of Denmark. His appeal was unsuccessful and the order that the mother have sole parenting was upheld.
On 29 June 2005 the Judicial Registrar made a declaration that the mother’s retention of the child in Denmark was wrongful for the purposes of regulation 17. A new application for the return of the child to Australia came before a Danish court on 3 October 2005, when a finding was made that the mother’s retention of the child in Denmark was wrongful. The Court adjourned its decision as to whether there should be an order for the return of the child to Australia, pending “the outcome of an examination by a child expert”.
Both parties appealed to the High Court of Denmark. The High Court refused the father’s application that the child be returned to Australia.
The father then appealed to the Supreme Court of Denmark. On 6 February 2007 the Supreme Court found that the mother’s retention of the child in Denmark was unlawful after 1 May 2005 and made an order for the child’s return to Australia. The judgment of the Supreme Court made reference to the declaration made by the Judicial Registrar on 25 June 2005.

Submissions on Behalf of the Applicant Mother

The mother contended that she was not served with the Central Authority’s application for a declaration and was given no opportunity to place material before the Court on 25 June 2005. The hearing thus proceeded on the basis only of the father’s version of events. She challenges certain “agreed facts” relied upon the Judicial Registrar. In particular, the mother disputed:
·That the family came to Australia in October 2000 for an indefinite period;
·In February 2004 each of the parties “put their hand to a document where they acknowledged that this Court was the appropriate forum in respect of disputes in relation to the child”;
·That the child’s travel to Denmark under the agreement was to be temporary;
·That there was a positive obligation on the mother to return the child to Australia not later than 1 May 2005;
·That the parties agreed that the child’s place of habitual residence was in Australia, that being a fact relied upon by the father when he gave permission for her to leave this country.
The mother alleged she was unaware of her right to review the decision of the Judicial Registrar until April 2007. She claimed that she sought advice at that time from her Australian solicitors and only then became aware that she had a right to seek a review of the decision of the Judicial Registrar.
In summary, the mother’s submissions in support of the application for leave to review the decision of the Judicial Registrar out of time appeared to be as follows:
·The application should have been served upon her;
·Non-service deprived her of an opportunity to place material before the Court, which left the Judicial Registrar with only the father’s version of events;
·The findings of fact which underpin the Judicial Registrar’s declaration of wrongful retention may have been different, if evidence had been available from both parents.
There was a submission put on behalf of the mother to the effect that the order of the Danish Court on 3 February 2005 that she have “sole parenting” means that the father has no rights of custody. This submission can be disposed of very shortly. It is clear that the father maintains such rights under the Family Law Act. There has never been an order by an Australian court to alter the statutory provisions which give him such rights.
The mother’s affidavit contains material which seems to go to an issue whether the child is now “settled” in Denmark. Submissions to this effect were put by her counsel. These submissions and this evidence seem to me to be irrelevant for present purposes. The application of the Central Authority of 27 June 2005 was for a declaration pursuant to regulation 17, not for an order for return of the child pursuant to regulation 14. Regulation 16 sets out particular circumstances in which the Court, in the exercise of discretion, may refuse to order the return of a child. I am not asked to make an order for the child’s return to Australia, thus, regulation 16 is not applicable to these proceedings.

The submissions on behalf of the Central Authority

On behalf of the Central Authority it was submitted that the mother must be taken to have been aware of the declaration of wrongful retention made by the Judicial Registrar on 29 June 2005. There is reference to this decision in the reasons and orders of the Danish court of 4 October 2005. It was suggested that she delayed unreasonably in seeking a review of the decision of the Judicial Registrar, as she took no action until August 2007.
It was also submitted on behalf of the Central Authority that an extension of time for review “would set an unhealthy precedent”, as Australia “relies on other countries”. Further, it was suggested that the requirements for service set out in regulation 27 make no mention of an application pursuant to regulation 17. Regulation 27 requires service of applications for:
·Return of a child pursuant to regulation 14;
·The discharge of an order for return of a child pursuant to regulation 19A;
·Orders for access to a child pursuant to regulation 25.

Consideration and Conclusion

In response to the submission on behalf of the Central Authority as to the necessity for service, counsel for the mother maintained that regulation 27.1 catches an application pursuant to regulation 17. In my view, the clear language of the regulation itself indicates otherwise, as it specifies three kinds of applications and proceedings pursuant to regulation 17 are not included.
On behalf of the mother, it was then submitted that rule 5.12 “clearly applies”. This rule seems to me to address applications for urgent exparte orders or directions. I can see no basis upon which the application of this rule should be extended to include proceedings pursuant to regulation 17, when the Family Law (Child Abduction Convention) Regulations make specific provisions as to the requirement for service.
I am thus not persuaded that there is any requirement for service upon the mother of the application of the Central Authority, which was heard and determined by the Judicial Registrar on 29 June 2005. The Central Authority did not claim that service was affected. On this basis I would not grant leave to the mother to review the decision of the Judicial Registrar out of time.
It seems to me that there is some force in the submission of behalf of the Central Authority that the mother delayed unreasonably in bringing the present application. It is clear from the judgment of the Danish Court on 4 October 2005 that she must be taken to have been aware of the Judicial Registrar’s decision in 2005, yet she took no steps to the challenge the making of the declaration until 2007.
The mother’s affidavit evidence went no further than an assertion that she was unaware that she had a right to seek a review until she sought advice from her Australian lawyer in April 2007. She gave no explanation as to why it took her over one and a half years to seek this advice. It may be that she did so only after the highest court in Denmark confirmed the order for the return of the child in February 2007. In the exercise of my discretion, I would not treat the mother’s assertion of her lack of knowledge of a right to review as a factor in her favour.
It does not seem to me that there is substance to the mother’s contention that the outcome of the proceedings before the Judicial Registrar may have been different if she had been given an opportunity to place material before the Court on that occasion. She has now done so and the outcome would seem to me to be no different.
The mother now paints a picture of herself as the victim of verbal and physical harassment by the father. She presented this evidence only in very general terms. In her affidavit sworn on 27 July 2007 the mother deposed:
“We returned to Australia in September 2001. Having done so the relationship between [the father] and I had deteriorated. I told [the father] that I wanted to end the relationship but [the father] said he did not. He began trying to deter me from ending the relationship by making me afraid of him by using either physical violence towards me on many occasions or by saying that he would take [the child] from me and that I would never see her again. In these circumstances I decided that I needed to return to Denmark, where I believed that he could not use this type of power over me so that I would stay in the relationship. We had separated prior to my return.”
The mother now disputes that the Terms of Settlement which she signed on 16 February 2004 represented a real agreement between the parties. She now claims that the father reneged on a private agreement, to the effect that she and the child would live permanently in Denmark and that he would spend time with the child as arranged by the parties. She now maintains that he presented her with the Terms of Settlement on the day before she was due to depart and left her with no alternative but to sign the document, if she wished to leave the next day as planned. In her affidavit she said that she signed the Terms of Settlement “under duress”. The circumstances to which she deposed, in my view, fall well short of any recognised legal definition of “duress”.
As noted, I regard it as difficult for the mother to maintain that she was pressured into signing the Terms of Settlement in circumstances where she had the benefit of legal representation. The available evidence suggests to me that there was a genuine agreement for the mother and the child to stay in Denmark until 1 May 2005 and that she reneged on that agreement sometime after she arrived in that country.
There was no objective evidence whatsoever to corroborate the mother’s version of events in regard to the Terms of Settlement. It struck me as convenient. for present purposes that she now claims that the agreement was forced upon her or was not otherwise a genuine bargain between the parties.
Another problem with the mother’s case, it seemed to me, is that she relied on the contents of the Terms of Settlement in her defence of the first application for the return of the child to Australia. In 2004 she presented to a Danish court an argument that the child was living in Denmark legally until 1 May 2005.
This same argument, in my view, militates against the mother’s claim that the father repudiated the agreement as set out in the Terms of Settlement and that she accepted and acted upon such repudiation. She gave evidence that the father told her that he had no intention of signing the Terms of Settlement and that he intended to tell the Court that she had abducted the child.

It is true that there was no copy of the Terms of Settlement, signed by the father, in evidence before me. Otherwise, there was no corroboration at all of the mother’s account of the alleged conversation with the father. As noted, she did not shrink from relying on the contents of the document in resisting the 2004 application for the return of the child.
All of these matters persuade me against the exercise of discretion in favour of the mother’s application to extend time to review the decision of the Judicial Registrar. That being so, it is strictly unnecessary for me to consider the substantive application of the Central Authority for a declaration of wrongful retention for the purposes of regulation 17. Nonetheless, I propose now to indicate my views in relation to that application.
The mother’s retention of the child in Denmark will be “wrongful” for the purposes of regulation 17 if the requirements of regulation 16(1A) are satisfied. Regulation 16(1A) provides as follows:
(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
(c)    the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d)    the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e)    at the time of the child's removal or retention, the person, institution or other body:
(i)    was actually exercising the rights of custody (either jointly or alone); or
(ii)    would have exercised those rights if the child had not been removed or retained.
The child was born in April 2000 and is now seven years old. Clearly she is under 16 years of age and the requirements of regulation 16(1A)a are satisfied.
It seems to me that the country of the child’s habitual residence immediately before the retention in Denmark was Australia. Her habitual residence is derived from the habitual residence of her parents. It is true that they have lived in both Denmark and Australia since her birth. They lived in this country from August 2001 until the mother and the child left for Denmark in February 2004. They jointly acquired property in the Blue Mountains region and embarked upon plans to build a matrimonial home. The mother signed Terms of Settlement which clearly acknowledged an intention on her part to return to Australia with the child no later than 1 May 2005. Further, the Terms of Settlement specified the Family Court of Australia as the forum for any future parenting disputes.
The fact that the mother formed an intention for herself and the child to live permanently in Denmark at some time is insufficient to change the child’s habitual residence from Australia to Denmark. She is simply not empowered or entitled to change the child’s habitual residence unilaterally. The history of litigation in Denmark and Australia demonstrates clearly that the father never agreed to the abandonment of the child’s habitual residence in Australia. In my view, the requirements of regulation 16(1A)(c) are satisfied.
There is no doubt that the father had rights of custody in relation to the child at the time that the mother retained her in Denmark. Likewise, there is no doubt that he was exercising those rights of custody. The term “rights of custody” is defined in regulation 4 as including “rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child”.
As noted, no Australian court has ever made orders which would alter the father’s statutory position in relation to the child. He thus has parental responsibility, which means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”: s 61B. The father’s dogged pursuit of the return of the child to Australia in courts both in this country and in Denmark is more than sufficient indication that he was exercising these rights of custody when the mother retained the child in Denmark.
For all of those reasons, I would make the declaration sought by the Central Authority pursuant to regulation 17.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson.

Associate:

Date: 16 January 2008

[2008] FamCA 65

16 January 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness