ZP v PS
Case
•
[1994] HCA 29
•29 June 1994
No judgment structure available for this case.
HIGH COURT OF AUSTRALIA
MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ
ZP v PS (1994) 181 CLR 639, (1994) 122 ALR 1,
(1994) 68 ALJR 554
29 June 1994
Family Law—Family Court of Australia- Jurisdiction—Custody—Child residing in Australia—Summary order for determination of custody by foreign court—Welfare of child—Forum non conveniens—Whether applicable -Family Law Act 1975 (Cth), s. 64.
Orders
Appeal allowed.
Orders nisi for prohibition, certiorari and mandamus discharged.
Set aside the orders of the Full Court of the Family Court and in lieu thereof order that -
1. the appeal to that Court be allowed;
2. the orders of Mushin J be set aside.
Remit the matter to the Full Court of the Family Court to determine (or to make orders providing for determination of) the question whether, in accordance with the reasons for judgment of this Court, orders for the return of Dimitrios to Greece should be made pursuant to the father's application and, if that application be refused, to determine the matter of the mother's application for permanent custody.
Decisions
MASON CJ, TOOHEY AND McHUGH JJ The appellant, who is the wife of the respondent, appeals against a number of orders made by the Family Court upon an application initiated by her in that Court for the custody of the child of her marriage to the respondent. The principal effect of the orders is that the husband and wife are to submit themselves to a court of competent jurisdiction in the Republic of Greece for the purpose of determining all issues relevant to the guardianship, custody and welfare of and access to the child. To enable that to be done the husband, at his expense, was ordered to purchase airline tickets for the wife, himself and the child to travel to Athens on the same flight. In addition, not less than 48 hours prior to departure, the husband was to pay the wife $5000 "for her expenses of and related to her return to the Republic of Greece". One of the orders that was made was that "from 2 hours prior to the departure time" an interim custody order in favour of the wife was to be discharged. Another order gave custody of the child to the husband from that time. However, upon arrival in Athens that custody order was to be ipso facto discharged.
2. The first issue in the appeal is whether, upon the making of an application to the Family Court for custody of a child residing in Australia, that Court is entitled to make a summary order that the custody of the child should be determined by a foreign court. If that question is answered in the affirmative, the second issue in the appeal is whether, in making the order which it did, the Family Court was required to and did have regard for the welfare of the child.
The factual background
3. The wife was born in Greece in 1946. She came to Australia in about 1965 and lived here until about 1985 when she returned to Greece. In 1971, she acquired Australian citizenship. The husband was born in Greece in 1937. From 1963 until 1975 he also lived in Australia apart from one year when he lived in Greece. The parties were married in Greece in 1987. Dimitrios, the only child of the marriage, was born later that year. In 1988, the parties registered Dimitrios as an Australian citizen at the Australian Embassy in Athens. In May 1989, the parties separated. Later that year, they registered an agreement in a Greek court of competent jurisdiction giving the wife "temporary custody" of Dimitrios. The husband was given access which was to "be free and in accordance with the reasonable welfare of the child". The agreement contained an express provision that under no circumstances could the wife go abroad with Dimitrios unless it was for his welfare and the husband consented. The agreement provided that "in case of disagreement regarding the welfare of the child if he goes Abroad, the Court shall issue an order". The agreement also provided for the maintenance of Dimitrios.
4. On 20 April 1993, the wife left Greece with Dimitrios and without her husband's consent or knowledge and without having obtained any order of a court of competent jurisdiction in that country. On 26 May 1993, she filed an application in the Family Court of Australia for orders that the parties have joint guardianship of Dimitrios, that she have sole custody of him, that access to the husband be reserved and that he be restrained from removing Dimitrios from the State of Victoria. The wife also sought interim orders in the same terms. An affidavit filed in support of her application claimed that the husband was habitually out gambling and drinking, that members of his family were Jehovah's Witnesses and were brainwashing Dimitrios, and that in a telephone conversation with her husband he had said that he would come to Australia and take Dimitrios back to Greece unless she returned within 20 days.
5. On 29 June 1993, the husband applied to an Athens court for the custody of Dimitrios. On 30 September 1993, the Greek court revoked its earlier order and gave custody to the husband. In the meantime, on 1 September 1993, the Family Court had granted interim custody of Dimitrios to the wife. Both parties were restrained from removing him from Australia. Subsequently, the husband filed an affidavit in the Family Court which put in issue the allegations which his wife had made against him. The wife then filed two further affidavits in which she alleged, inter alia, that:
1. she felt alienated from Greece; 2. she was unable to obtain employment, vote or possess a driver's
licence in Greece;3. she had left Greece because of emotional and physical threats made
by her husband and because of her financial problems;4. her husband had behaved violently to her and used obscene
language;5. Dimitrios had been injured on an access visit in Greece as the
result of the conduct of an employee of the husband.An affidavit sworn in support of the wife's application deposed that, since Dimitrios had been in Australia, he was "happy, well settled and contented" and was "progressing well and appears to be learning from
the various activities in which he is involved."
Jurisdiction
6. Jurisdiction to hear the wife's application for custody was conferred on the Family Court by ss.63, 63B and 63C of the Family Law Act 1975 (Cth) ("the Act"). Those sections are found in Pt VII of the Act. Section 64(1)(a) of the Act requires the Court in hearing proceedings under Pt VII to regard the welfare of the child as the paramount consideration. Amongst specific matters that the Court must take into account on an application for custody are the nature of the relationship of the child with each of the parents and other persons, the effect on the child of any separation from either parent or any other person with whom the child has been living, and the desirability of and the effect of any change in the existing arrangements ((1) s.64(1)(bb).). The capacity of each parent to provide adequately for the needs of the child and the need to protect the child from abuse,
ill-treatment or exposure or subjection to behaviour which psychologically harms the child are other matters that must be taken into account.
7. Although Dimitrios was taken from Greece contrary to an agreement filed in a court of competent jurisdiction in Greece, The Hague Convention on the Civil Aspects of International Child Abduction was inapplicable to the wife's application in the Family Court. That Convention applies as between particular countries only to wrongful removals or retentions occurring after those countries have become parties to the Convention. Greece did not become a party to the Convention until 1 June 1993. For similar reasons, the Family Law (Child Abduction Convention) Regulations 1986 are inapplicable to the wife's application. Consequently, the Family Court was obliged to determine the application in accordance with the principles applicable in a hearing brought under ss.63, 63B and 63C of the Act. In the forefront of those principles is the requirement of s.64(1)(a) that the Court must regard the welfare of the child as the paramount consideration.
8. It is now established that Pt VII has invested the Family Court with a welfare jurisdiction that is similar to the parens patriae jurisdiction exercised by the Court of Chancery but which is freed from the preliminary requirement of a wardship order ((2) Secretary, Department of Health and Community Services v. JW.B. and S.M.B. (Marion's Case) (1992) 175 CLR 218; P v. P (1994) 68 ALJR 449; 120 ALR 545.). In the exercise of the parens patriae jurisdiction, the Court of Chancery has always been guided by the principle that the welfare of the minor is the first and paramount consideration ((3) Re R. (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416 at 423.).
In exercising the parens patriae jurisdiction or a statutory jurisdiction which makes the welfare of the minor the first and paramount consideration, that Court always makes an independent judgment on any question concerning the custody of a child and cannot blindly follow an order made by a foreign court ((4) McKee v. McKee (1951) AC 352 at 364; Kades v. Kades (1961) 35 ALJR 251 at 254.). Because the welfare jurisdiction of the Family Court is similar to the parens patriae jurisdiction of the Court of Chancery, the Family Court must also form an independent judgment as to what the welfare of the child requires notwithstanding the existence of any custody order made by a foreign court. Moreover, proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression because the Court is not enforcing a parental right to custody or access ((5) M. v. M. (1988) 166 CLR 69 at 76.). Its duty is to make such order as will "best promote and protect the interests of the child" ((6) ibid.). It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child ((7) Re R. (1981) 2 FLR at 426-427; Schwarz and Schwarz (1985) FLC 91-618 at 80,000.). Injustice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a forum non conveniens case ((8) See Voth v. Manildra Flour Mills Pty. Ltd. (1990) 171 CLR 538 at 556-557.), are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.
9. However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a foreign court ((9) In re L. (Minors) (1974) 1 WLR 250 at 263-264; Mittelman and Mittelman (1984) FLC 91-578 at 79,667; cf. McKee (1951)
AC at 364.). Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction ((10) In re L. (1974) 1 WLR at 264; Khamis and Khamis (1978) FLC 90- 486 at 77,521; Re R. (1981) 2 FLR at 425; Mittelman (1984) FLC at 79,667; In re F. (Abduction: Custody Rights) (1991) Fam 25 at 31.). In In re F. (Abduction: Custody Rights) ((11) (1991) Fam at 32.), Neill LJ said:
"The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child's welfare is the first and paramount consideration."
10. In the same case, Lord Donaldson MR formulated the approach which must be taken when an English court hears a submission that the welfare of a child within the jurisdiction requires that a foreign court should decide a question concerning the custody of the child. His Lordship said ((12) ibid. at 31.):
"The welfare of the child is indeed the paramount consideration, but it has to be considered in two different contexts. The first is the context of which court shall decide what the child's best interests require. The second context, which only arises if it has first been decided that the welfare of the child requires that the English rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on should be made."That approach also applies to applications in the Family Court when the question arises whether the Family Court or a foreign court should determine questions concerning the custody of a child within the jurisdiction. In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that that Court should embark on determining the issue of custody itself. Furthermore, even when the Court rejects the application for a summary order and embarks on determining the issue of custody itself, it does not necessarily follow that the Court must make an order for custody or access. Further investigation of the issue may result in the Court concluding that the interests of the child will be best served by the foreign forum determining the issue. However, such cases will be exceptional.
11. In Re R. (Minors) (Wardship: Jurisdiction) ((13) (1981) 2 FLR at 426.), Ormrod LJ, giving the judgment of the Court of Appeal, summarised the reasons why the welfare of a child may require the making of a summary order that the question of custody be determined in a foreign jurisdiction. His Lordship said:
"In a sentence, they are alienation from background, home, schools, friends, relations and, ultimately, from his country and its society and culture. These dangers have to be weighed against the risk to the child of possible, perhaps probable, separation from the mother, of being entrusted to the care of a father whose capabilities and fitness to act as a single parent may be in doubt, in surroundings which may be unfavourable in themselves, and of being subjected to a regime of law under which the protection of their interests may be open to question ... The fitness or unfitness of the mother's arrangements and the prospects or lack of prospects for the children if they become settled here, are also material considerations".
12. Prior to the decision of this Court in Voth v. Manildra Flour Mills Pty. Ltd. ((14) (1990) 171 CLR 538.), the principles upon which the Family Court acted in determining whether it should allow a foreign forum rather than itself determine a question of custody seem to have accorded with the foregoing account of the law ((15) See El Alami and El Alami (1988) FLC 91-930; Taylor and Taylor (1988) FLC 91-943.). But, after the decision in Voth, the Family Court adopted a different approach to submissions that a custody dispute should be determined in a foreign forum. In Voth, this Court decided that, when an issue arises as to whether a foreign forum rather than an Australian court is the forum most convenient to determine a dispute, the Australian court should hear the matter unless it is satisfied that it is a clearly inappropriate forum. In Scott and Scott ((16) (1991) FLC 92-241.), the Full Court of the Family Court regarded the authority of McKee ((17) (1951) AC 352.), which decided that the court must exercise an
independent judgment in cases like the present, as "somewhat discredited" ((18) Scott (1991) FLC at 78,637.) and went on to say ((19) ibid. at 78,640.):
"Our conclusion is that whatever may have been the previous situation, the present rule developed by the High Court in relation to the principles of the doctrine of forum non conveniens is appropriate to custody proceedings in this Court. Accordingly, we think that the forum non conveniens rules should normally be applied by this Court. To this extent we would therefore differ with the views expressed in El Alami ((20) (1988) FLC 91-930.) and Taylor's ((21) (1988) FLC 91-943.) cases, although we think that the application of the forum non conveniens test propounded by the High Court is likely to lead to the same practical results."
13. Earlier in its judgment the Full Court had said ((22) Scott (1991)
FLC at 78,640.):
"Broadly, we think that the test may be stated as being that an Australian court whose jurisdiction has been properly invoked in custody proceedings, will exercise the same unless it is demonstrated that it is a clearly inappropriate forum. This will be demonstrated by showing that the welfare of the child requires that the proceedings be determined elsewhere or, failing that, that it is vexatious or oppressive for the proceedings to continue in the Australian court."
14. The Full Court predicted that the change in approach was "likely to lead to the same practical results" in cases like the present case. However, it is difficult to accept that this has been the result of the cases in the Family Court. The Court's approval of the vexatious or oppressive nature of the proceedings as a test for determining that the proceedings were brought in a clearly inappropriate forum has naturally led to an examination of the motives and conduct of the parties. Indeed, the Full Court said in Van Rensburg and Paquay ((23) (1993) FLC 92-391.) that as a general rule the Family Court was an inappropriate forum in an abduction case. This was because, even in cases to which The Hague Convention did not apply, "the ratification by Australia of the Convention and its acceptance of the accession of many other countries to the Convention flow from a public policy that unlawful removal of children across international borders is an evil which must be suppressed by denying the abductor the advantage of
choosing his or her forum." ((24) ibid. at 80,013.)
15. In Van Rensburg, the Full Court, in holding that Western Australia was a clearly inappropriate forum to determine the custody of a child removed from South Africa, applied the forum non conveniens principles "as laid down by the High Court in Oceanic Sun Line Shipping Company Inc v. Fay and Voth and (sic) Manildra Flour Mills Pty. Ltd." ((25) ibid. at 80,012. The "clearly inappropriate forum" test was also applied in Chong and Chong (1992) FLC 92-313 and Erdal and Erdal (1992) FLC 92-292.). It also adopted the statement of Fogarty J, giving the judgment of the Full Court in Gilmore and Gilmore ((26) (1993) FLC 92-353 at 79,728.), that the substance of the test formulated by the High Court involves five elements. In Gilmore, Fogarty J said those elements were:
"1. A party who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise; 2. The power to stay proceedings regularly commenced is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are 'oppressive', 'vexatious' or 'an abuse of process'. Those adjectives are to be construed liberally, in the sense already referred to. 3. The fact that the balance of convenience favours another jurisdiction or that some other jurisdiction is a more appropriate forum, will not justify a stay of the action. 4. In the application of the above principles the discussion by Lord Goff in Spiliada of relevant 'connecting factors' and 'legitimate personal or juridical advantage' provides valuable assistance. 5. In deciding whether the chosen forum is clearly inappropriate, the extent to which the law of that forum is applicable in resolving the rights and liabilities of the parties is a material consideration. The selected forum will not be seen as inappropriate 'if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties'."
16. However, as we have already said, the doctrine of forum non conveniens is not applicable to a custody case where the child is within the jurisdiction. In so far as Scott, Chong, Erdal, Gilmore, Van Rensburg and other cases hold that the forum non conveniens principle is applicable, they are in error and must be overruled.
The hearing before Mushin J
17. Mushin J, who heard the present matter at first instance, applied the "clearly inappropriate forum" test. His Honour stated the issue before him as follows:
"The real issue is as to whether the court should exercise its discretion in favour of exercising that jurisdiction or decline to do so on the basis that this is not the appropriate forum for the proceedings to be heard. It is further common ground that the only other possible forum is the Republic of Greece."Nevertheless, his Honour said that, in determining that issue, he had to give full weight to the terms of s.64(1)(a) of the Act. But,
as will appear, in applying s.64(1)(a), his Honour relied on considerations generally applicable to the abduction of children rather than the best interests of Dimitrios.
18. After referring to Voth, Scott and Van Rensburg, his Honour said that counsel for the husband had asserted that, on the basis of those cases, the Court should order the return of the child to Greece forthwith and that consideration of issues relating to his welfare should be left to the courts of Greece. His Honour then recorded the wife's submission that the paramountcy of the welfare of the child demanded the exercise of the discretion in favour of retaining the jurisdiction of the Family Court. The learned judge referred to seven factors relied on by counsel for the wife: 1. The wife had been the primary care giver throughout the child's
life.2. The wife alleged that the husband did not have any real contact
and care of the child whilst in Greece and that it was the husband's mother who had the real contact and care of the child.3. The wife was concerned about the influence of the husband's
mother, particularly with respect to religious matters.4. The husband was a businessman aged 56 years of age who had no
other experience with children.5. The husband would have to rely on his sister, who was about
62 years of age and had mental health problems, to care for the child.6. The husband had said that he would not seek custody in Greece. 7. The child had settled well in Australia and appeared to be happy.
19. However, his Honour thought that, apart from the question of the lapse of time since the child had arrived in Australia, these factors had "minimal significance in an application of the present type", although they were relevant to the final hearing of a custody application. His Honour saw the fundamental issue as being "the unilateral removal of the child from Greece" where there were "orders of a court of competent jurisdiction including an agreement and order that the child should not be removed from Greece". The learned judge said that the husband would suffer a juridical disadvantage and that the wife would enjoy a juridical advantage by being allowed to litigate custody in the Family Court. He was of the view that the matter turned "on a decision as to the balance of the various factors relating to the welfare of the subject child". While the material before his Honour suggested that the child was apparently perfectly normal and happy, his Honour held that that factor had to be weighed against the "extremely important factor of the unilateral removal of children from their place of usual residence". He said that unilateral removal of children from one country to another "must be discouraged in the strongest possible way as being totally contrary to their welfare". In his view, that was "the determinative factor here". Accordingly, Australia was a wholly inappropriate forum in which to conduct the proceedings.
20. From the foregoing account, it is plain that his Honour did not apply the correct principles in determining the application for custody. First, it should be noted that in a case such as the present, where the Family Court has jurisdiction, no question of exercising a "discretion in favour of exercising that jurisdiction" arises. Either the welfare of the child requires that a summary order should be made or it does not. If the Court concludes that a summary order is not required, the welfare of the child requires that the Court investigate the issue of custody. No doubt the judgment of the Court is properly described as a discretionary judgment in that the Court must weigh various factors in determining what the welfare of the child requires. However, it is erroneous to speak of the Court having a discretion to determine the issue of jurisdiction. Second, his Honour saw the determinative factor as the unilateral removal of children from one country to another which had to be discouraged because it was totally contrary to their welfare. It may be accepted that, generally speaking, unilateral removal of a child from one country to another is detrimental to the welfare of the child. However, it is the duty of a judge to determine what the welfare of the child requires without regarding that question as being foreclosed simply because the child has been removed unilaterally from one country to another. In the present case, the primary judge was entitled to have regard to the ordinary consequences of unilateral removal of the child from one country to another but it was his duty to go on to investigate the materials before him and, if considered appropriate, determine the question of custody of Dimitrios. If his welfare required that the Family Court should determine the question of his custody, it was irrelevant that abduction of children by one of their parents is generally contrary to the welfare of such children.
Furthermore, whether the husband or wife was or was not at a disadvantage or would or would not obtain an advantage if the custody issue was litigated in Australia was of no relevance. In referring to these factors, his Honour was diverted from the issue that he had to determine. Finally, the matters raised by the wife were not of minimal significance or important only on a final hearing of the custody issue. They went to the question whether the welfare of Dimitrios required the making of a summary order or a hearing by the Family Court of the matters raised by the wife. In stating that they were of minimal significance, his Honour failed to give sufficient weight to them.
21. It follows that the orders of the learned judge were vitiated by error and cannot stand unless the Full Court applied the correct principles in upholding those orders.
The judgments of the Full Court
22. In the Full Court, Nicholson CJ applied the "clearly inappropriate forum" test which he thought was a "formidable" ((27) Citing the judgment of Chisholm J in Rae and Jeremijenko, unreported 12 October 1993.) one. His Honour thought that the contentions of the wife, if made out, would indicate a most unsatisfactory future for Dimitrios if he was returned to Greece. Because the factual issues raised by the wife remained undetermined, his Honour thought that they could not be discounted. Consequently, Nicholson CJ concluded that the matter should be referred back to Mushin J for a trial of the issues of fact.
23. In their joint judgment, upholding the orders of Mushin J, Kay
and Graham JJ saw the fundamental issue as being whether the proceedings should be allowed to continue in Australia or should be required to take place in another country. They thought that that issue was "dictated either by the forum non conveniens rules outlined in Voth or by the principle that the welfare of the child is the paramount consideration". After referring to the statement by Mushin J that the unilateral removal of a child by a parent from its long established environment must be given determinative effect, their Honours said that, although his Honour's statements "appear to be somewhat of an over-simplification of the law", the result reached by his Honour was clearly correct. Kay and Graham JJ thought that the same result would be reached whether one applied "the Voth test or one applie(d) the test of the welfare of the child as the paramount consideration". They said that there were many factors which led to that conclusion:
"The parents are born in Greece. They were married in Greece. The child was born in Greece. The child has lived all of his life in Greece, save for the months since his removal to Australia by his mother. The child speaks the Greek language fluently, and save for a few distant relatives in Australia, the child's entire extended family on both the maternal and paternal sides reside in Greece. The father has an ongoing relationship with the child. Almost all of the witnesses who would be required to give evidence in respect of the matters in issue between the parties reside in Greece. There is an order of a Greek court restraining the removal of the child from Greece without the consent of both parents or an order of the Court. In the simplest of terms this is a case about the custody of a Greek child who was taken from his homeland."
24. Their Honours went on to say that they saw "no reason, having regard to the matters put forward by the wife in these proceedings, to depart from the view expressed frequently by this Court and the courts of the United Kingdom" that any decision relating to the custody of children is best decided in the jurisdiction in which they are normally resident. They cited the judgment of Neill LJ in In re F. where his Lordship said that this principle was but an application of the basic principle that the child's welfare was the first and paramount consideration. Their Honours said that the "damage that is done to children by wrongful removal from their place of habitual residence is well recognised by the entry of Australia and many countries into The Hague Convention". They pointed out that in Barrios and Sanchez ((28) (1989) FLC 92-054.) the Full Court had said that consideration could be given to the principles of The Hague Convention in dealing with non-Hague cases, and that courts should discourage the abduction of children across national borders. Their Honours said that ultimately "one must focus on the particular child and determine what is in the interests of that particular child". They correctly pointed out that they were required to apply the presumption that the law of Greece is the same as that of Australia in relation to the paramountcy of the welfare of the child in the absence of any evidence to the contrary. Their Honours concluded by saying that "we are firmly of the view that the interests of this child require that issues relating to his welfare be determined by the courts in Greece".
25. In stating that the "fundamental issue in a case of this nature is whether the proceedings should be allowed to continue on in Australia or be required to take place in another country" (our emphasis) and in referring to the Voth test as an alternative formulation of the governing principle, the judgment of Kay and Graham JJ is open to the criticism that their Honours saw the issue as primarily one of competing jurisdictions. Their references to the order of the Greek court and to almost all of the witnesses residing in Greece, and their statement that in its simplest terms "this is a case about the custody of a Greek child who was taken from his homeland", reinforce the possible conclusion that they saw the case as one primarily concerned with competing jurisdictions. Further support for that conclusion is found in the way that their Honours dealt with the submission on behalf of the wife that "there was a juridical advantage to the wife" in having the case heard in Australia. Their Honours rejected that submission by referring to a statement in Van Rensburg ((29) (1993) FLC at 80,014.) where the Full Court said that the husband in that case could not rely upon the unlawful removal of his children as creating a "legitimate advantage".
26. But other statements in the judgment of Kay and Graham JJ indicate that their Honours did determine the real issue. Thus, their Honours said that ultimately the court had to "focus on the particular child and determine what is in the interests of that particular child". That statement was made after their Honours set out the following passage from the judgment of Buckley LJ in In re L. (Minors) ((30) (1974) 1 WLR 250 at 264-265.) where his Lordship said:
"To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts (offered here as examples and of course not as a complete catalogue of possible relevant factors) which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country, the judge may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be incompatible with achieving this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child's own life. Such roots can grow rapidly. An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the courts of that country may well be regarded as being in the best interests of the child."
27. Notwithstanding those passages in the judgment of Kay and Graham JJ which suggest that they saw the case as one primarily concerned with competing jurisdictions, their judgment, when read as a whole, shows that they decided the real issue in the case. At all events, their Honours' judgment indicates that they thought that the welfare of the child as well as the forum non conveniens principle required the making of the orders that Mushin J made. Although they concluded that the result reached by Mushin J was plainly correct, they did not accept his Honour's reasons. They correctly perceived that the Court ultimately had to focus on the interests of the particular child, and they concluded that "the interests of this child require that issues relating to his welfare be determined by the courts in Greece" (our emphasis). It is true that the judgment of Kay and Graham JJ referred to matters which are open to criticism if their Honours regarded them as relevant to the welfare of the child. But it seems probable that their Honours referred to those matters because they were considering both the Voth test and the test of the welfare of the child. Furthermore, their Honours' reference to almost all of the witnesses residing in Greece was clearly relevant to the welfare issue as well as to the forum non conveniens issue ((31) Lehartel v. Lehartel (1993) 1 NZLR 578 at 581-582, 585.). The residency of witnesses is relevant to the welfare issue because it is an important factor in determining whether the Family Court or the foreign forum is likely to be the tribunal that is best informed on the issues concerning the welfare of the child. In the present case, the fact that almost all of the witnesses were resident in Greece supported the argument that it was in the best interests of Dimitrios to have issues concerning his custody resolved by the courts of that country. Finally, once their Honours identified the best interests of Dimitrios as the determinative factor, it is difficult to conclude that the reference to those matters referable to the forum non conveniens principle were decisive factors in their Honours' decision "that the interests of this child require that issues relating to his welfare be determined by the courts in Greece".
28. However, counsel for the wife contended in this Court that the discretionary judgment of Kay and Graham JJ miscarried because their Honours failed to take a material fact into account. When the application was before Mushin J, the wife expressly agreed to travel to Greece with Dimitrios if Mushin J made orders of the kind which he did. However, in the Full Court she changed her mind. The judgment of Nicholson CJ records that at the hearing of the appeal she indicated through counsel that "she had decided not to return to Greece with the child if the Court ordered the child's return". Among the reasons put forward for this change of mind were:
(a) the lack of legal aid in Greece;
(b) she had no savings or income; (c) there was a past history of violence with her husband and he
continued to threaten her;(d) she faced possible penal sanctions if she returned to Greece.
29. The judgment of Kay and Graham JJ makes no reference to the wife's alleged change of mind. However, it is difficult to believe
that their Honours overlooked this matter. It was one of the principal reasons that Nicholson CJ thought that the application should be remitted to the trial judge for a further hearing to investigate the matters raised by the wife. Nicholson CJ said that "if she does not return to Greece with the child, the effect of his Honour's order may well have serious consequences for the child's welfare since the mother has been the child's primary caregiver until
he was 20 months old and his sole caregiver since that age".
30. It may be that Kay and Graham JJ either rejected or were not prepared to act on the claim of the wife that she would not go back to Greece with the child. Having regard to her failure to put any sworn evidence before the Full Court as to her change of mind, as well as the history of the matter, including her attitude when Mushin J raised with her the question of her return to Greece, their Honours were entitled to place no weight on her alleged state of mind. In any event, counsel's statement as to her attitude was no more than an indication of her state of mind as at the time of the appeal hearing.
31. However, to concentrate on the wife's state of mind or attitude about going back to Greece is to divert attention from the real issue in the case. What the Full Court had to consider was whether the welfare of the child required a summary order that the issue of custody should be determined in the courts of Greece. Whether or not the wife intended to go back to Greece to contest the hearing was relevant only to the extent that it affected the question whether the welfare of the child would be best determined by the courts of Greece or the Family Court. It was relevant in so far as the failure of the wife to contest the custody issue in Greece might result in a Greek court being less than fully informed about the issues. But whether or not the welfare of Dimitrios required that he permanently live in Australia or Greece was not a relevant issue before Mushin J That factor would be of vital importance in the Family Court if the making of a summary order was refused or, if it was made, it would be equally important in the proceedings in Greece. But whether the child should live in Australia with his mother or in Greece with his father was not relevant as to whether the Family Court should make a summary order. Of course, the fact that Dimitrios had been in Australia for many
months was a relevant factor on the summary order issue. But questions as to his future were matters that had to be determined after the issue of the summary order was decided.
32. If the Family Court forms the view that the welfare of a child prima facie requires that a foreign forum should determine the custody of the child, it can only be in an exceptional case that a parent's refusal to litigate the issue in the foreign forum can affect that view. If the parent was liable to be jailed or subjected to some cruel or unusual punishment in the foreign forum, it would be right to take into account that the refusal of the parent to litigate the issue of custody might result in an order that is contrary to the welfare of the child. But except in that class of case or some analogous case, a voluntary refusal to litigate the issue in the foreign forum should be disregarded if the parent can fairly litigate the issue in that forum. Indeed, in an appropriate case, it would be open to the Family Court to order an applicant, who has invoked the welfare jurisdiction, to litigate the issue in that foreign forum.
33. Here there was no reasonable ground on which the wife could refuse to litigate the issue in Greece if the Court was otherwise of the opinion that the welfare of Dimitrios required that course of action. The wife's fare is to be paid by the husband and she is to be given $5,000 for expenses. The possibility that some penal action might be taken against her is not a reasonable ground for holding that the matter should not be litigated in Greece. No doubt if the Greek court accepted her evidence that she would not live in Greece in any circumstances, it would have a vital bearing on the issue of custody. But that is a matter for the Greek court. Furthermore, Kay and Graham JJ were well aware of the wife's claim that legal aid was not obtainable in Greece and that the wife would be at a financial disadvantage.
34. There is, therefore, no vitiating error of principle in their Honours' judgment, and the result which they reached was not plainly wrong. Accordingly, the judgment of Kay and Graham JJ as to what the welfare of Dimitrios required was not affected by error. The appeal must be dismissed.
35. Concurrently with the hearing of the appeal, this Court also heard an application to make absolute orders nisi for writs of certiorari, prohibition and mandamus directed to the Family Court. It was common
ground that, if the appeal failed, the orders nisi should be discharged. Accordingly, the orders nisi granted by the Full Court of
this Court in Hobart on 24 March 1994 must be discharged.
BRENNAN AND DAWSON JJ The circumstances which give rise to this appeal and the orders nisi for writs of prohibition, certiorari and mandamus are contained in the judgment of Mason CJ, Toohey and
McHugh JJ The parties to the proceedings in the Family Court were husband and wife, and their son Dimitrios is the subject of cross-applications for custody. The mother and Dimitrios have been resident in Australia since April 1993.
2. Once the jurisdiction conferred by s.63 of the Family Law Act 1975 (Cth) ("the Act") on the Family Court in custody proceedings is effectively invoked - and there is no doubt that both parties invoked that jurisdiction in this case - s.64(1)(a) of the Act requires that the Court regard the welfare of the child as the paramount consideration in exercising the Court's power. Section 64(1)(a) makes no exception in the case of proceedings relating to the custody of a child ordinarily resident in another country, even if the child has been abducted from that country and brought to Australia in breach of an order of a court of competent jurisdiction in the other country. There are Regulations made pursuant to s.111B of the Act - the Family Law (Child Abduction Convention) Regulations 1986 - which are designed to secure, inter alia, the return of a child abducted from another country when The Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") is in force between Australia and that other country at the time of the abduction. As Greece did not become a party to the Convention until 1 June 1993, those Regulations have no direct application to the present case. It is therefore unnecessary to consider whether and in what manner reg.16, which prescribes grounds on which a court may refuse to make an order for the return of an abducted child, can be reconciled with the provisions of s.64(1)(a) of the Act.
3. In this case, the mother made an application for custody of Dimitrios. Then, the father applied for an order dismissing the mother's application and giving the father custody of Dimitrios "in order to return the child to Greece". Mushin J treated the father's application as part of a submission that the Family Court is an inappropriate forum for the proceedings and that the matter should be remitted to Greece. His Honour agreed with that submission and made orders accordingly, conceiving himself to be following Scott and Scott ((32) (1991) FLC 92-241 at 78,640.). In that case, a Full Court of the Family Court had held that "the principles of the doctrine of forum non conveniens (as laid down by the High Court in Voth v. Manildra Flour Mills Pty. Ltd. ((33) (1990) 171 CLR 538.) ) is appropriate to custody proceedings in (the Family) Court". In coming to that conclusion, the Full Court had said ((34) (1991) FLC at 78,640.):
" Broadly, we think that the test may be stated as being that an Australian court whose jurisdiction has been properly invoked in custody proceedings, will exercise the same unless it is demonstrated that it is a clearly inappropriate forum. This will be demonstrated by showing that the welfare of the child requires that the proceedings be determined elsewhere or, failing that, that it is vexatious or oppressive for the proceedings to continue in the Australian court.""Accordingly", Mushin J held -
"in order to succeed the applicant husband must demonstrate that this is a 'clearly inappropriate forum' for these proceedings to be heard. In determining that issue, I must give full weight to the prescription of section 64(1)(a) of the Act which requires that the welfare of the subject child be the paramount consideration."His Honour reconciled the Voth test of "clearly inappropriate forum" with the requirements of s.64(1)(a) by reference to what the Full Court had said in Van Rensburg and Paquay ((35) (1993) FLC 92-391 at 80,011.):
"It is well accepted that if a factor relevant to the welfare of the child appears clearly on the evidence such as that the child has been removed unilaterally by a parent from its long established environments, such factor must be given determinative effect in accordance with the statutory instruction that the welfare of the child is the paramount consideration in s.64(1)(a) of the Act".With respect, the proposition that any single factor which "appears clearly" must be given a "determinative effect" manifestly mistakes the many-factored nature of the concept of welfare. Although his Honour noted that there were a number of factors that tended to show that the welfare of Dimitrios would best be served by leaving him in his mother's custody in Australia, he regarded those factors as of "minimal significance" in determining the father's application. His
Honour held that -
"The fundamental issue is the unilateral removal of the child from Greece where he was born and raised and where there were, at the time of that removal, extant orders of a court of competent jurisdiction including an agreement and order that the child should not be removed from Greece."His Honour made orders designed to ensure that Dimitrios would be returned to Greece at the father's expense and that the cost of the
mother's return to Greece would be met by the father.
4. An appeal to the Full Court was dismissed by a majority (Kay and Graham JJ, Nicholson CJ dissenting). The majority found no error affecting the decision of Mushin J Their Honours responded to a submission that the trial judge had been "'fixated' with the removal aspects of the child and paid inadequate attention to the aspects
relating to welfare" by saying that -
"it matters not whether one applies the Voth test or one applies the test of the welfare of the child as the paramount consideration. By either test, one is inexorably led to the conclusion that the Family Court of Australia is an inappropriate forum to determine the issue as to whether or not this child should be allowed to live in Australia or Greece."Their Honours referred to an earlier decision in Barrios and Sanchez ((36) (1989) FLC 92-054 at 77,609.) in which it had been said that the Court can, in exercising a discretion, refer to the Convention
policy that -
"save in exceptional circumstances, children who have been removed from their lawful custodial parent in another country without the authority of a court should be returned to that parent."The majority's view was that -
"Courts should act to discourage the abduction of children across national borders."After citing a passage from the judgment of Buckley LJ in In re L. (Minors) ((37) (1974) 1 WLR 250 at 264-265.), their Honours said:
"Ultimately one must focus on the particular child and determine what is in the interests of that particular child."Then, without mentioning any factor other than the juridical advantage that the mother would have if custody were to be finally determined in Australia, the majority held "that the interests of this child require that issues relating to his welfare be determined by the courts in Greece".
5. In our respectful opinion, the judgments of Mushin J and of the majority of the Full Court are affected by an error of principle in that considerations other than the welfare of the child have been impermissibly treated as aspects of welfare or have been elevated to criteria of an importance comparable with the criterion of welfare. Moreover, the majority's failure to refer to the question whether the mother would accompany Dimitrios if he were returned to Greece in his father's custody or would remain in Australia unable to take custody of Dimitrios in Greece demonstrates their Honours' misunderstanding of the true concept of welfare as the paramount consideration to which they were bound to have regard. The error is understandable in the light of the approach hitherto taken by the Family Court to the principle in Voth and to the policy of the Convention.
The relevance of Voth v. Manildra Flour Mills Pty. Ltd.
6. The Family Court's attempt to meld the paramount consideration of the welfare of the child with the test of "clearly inappropriate forum" is misconceived. The latter test determines whether, in certain classes of case, a court should decline to exercise its jurisdiction; the former consideration governs the manner in which the Family Court must exercise the jurisdiction which has been conferred upon it by s.63. The test of "clearly inappropriate forum" is not an alternative test to the welfare of the child in determining the order to be made when the custody jurisdiction conferred by s.63 is to be exercised. Putting to one side the cases to which the Convention applies, s.64(1)(a) defines the paramount consideration. When a child is abducted from one country and brought to Australia and the abduction is not covered by the Convention, the abduction is relevant only by reason of the effect it has on the child's welfare. In this respect, the judgment of Buckley LJ in In re L. ((38) (1974) 1 WLR at 264-265.) is unexceptionable:
" To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts ... which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country, the judge may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be incompatible with achieving this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child's own life. Such roots can grow rapidly. An order that the child be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the courts of that country, may well be regarded as being in the best interests of the child."
7. It is entirely appropriate for the Family Court in an abduction case to have regard to these factors in determining the welfare of the child. And it may be entirely appropriate to order the speedy return of the child to the country from which he or she has been abducted without making as full an inquiry as the Court would ordinarily make in determining an application for permanent custody. Where it is for the welfare of the child that an order for speedy return is made, the Family Court is not primarily concerned with the question whether it is a clearly inappropriate forum to determine an application for permanent custody. The Family Court is the only court that can appropriately make an order for speedy return and it has no
jurisdiction to remit the question of permanent custody for determination by a court in another country. The Family Court must therefore make the order that is appropriate in the unique circumstances of the case at the time when the proceedings are before it. In determining an application for speedy return of the child to another country, it may be material to consider whether, if an order is made, the courts of the other country will properly inquire into and determine the child's permanent custody. But that is not to apply a "clearly inappropriate forum" criterion to the determination of the application. If the Family Court properly makes an order for the speedy return of a child abducted from another country, the Court is not declining to exercise its jurisdiction; it is exercising its jurisdiction by making an order dictated by the welfare of that child.
8. Section 64(1)(a) does not preclude a summary hearing in an appropriate case to determine speedily whether an order should be made for the return of a child to the country from which he or she has been abducted. A summary hearing may be necessary because the Court must balance the need for a speedy determination against the desirability of an adequate inquiry into welfare generally. It may be possible to restrict the inquiry to matters bearing directly on the effect which the child's presence in Australia and his or her absence from the other country has on the child's welfare. But the Court must not make its determination by presuming that any child's welfare is better served by leaving the child in Australia or, conversely, by ordering the return of the child to his or her previous or usual country of residence. Nor can the Family Court abdicate its own duty to determine the proceedings in accordance with s.64(1)(a) by deferring to the judgment of the court of another country unless the particular circumstances of the case show that that course is in itself in the best interests of the child ((39) McKee v. McKee (1951) AC 352 at 363-364.). It may be thought that there is always one factor tending in favour of making an order for the return of an abducted child to the country in which the child ordinarily resides, namely, the superior capacity of the courts of that country to determine what is in the best interests of the child. This seems to have been the view of Neill LJ in In re F. (Abduction: Custody Rights) ((40) (1991) Fam 25 at 32.) (a view which all of their Honours in the Full Court accepted):
"in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child's welfare is the first and paramount consideration".With respect, that approach is mistaken in two respects. First, if a child's welfare is to be affected by a custody order, it is the contents of the order that are relevant to the child's welfare, not the court that makes it. Secondly, although as a general proposition the courts of the place of the ordinary residence of the child might be expected to be best suited to determine what is for the child's welfare, that expectation can be displaced by the circumstances. The welfare of a particular child is a unique and often difficult problem; the solution is not to be pre-empted by a general presumption about the capacity, sensitivity or procedures of the respective courts which might have had, might have or might acquire jurisdiction over the child's custody. In any event, when the Family Court is determining an application for the return of a child to the place of the child's ordinary residence, the capacity, sensitivity or procedures of the courts of that country are likely to be of minor importance unless the evidence shows that those courts are unlikely to make and to enforce orders deemed to be appropriate in that society to protect the child and to serve his or her best interests. In determining the application pending before it, however, the Family Court must take as the paramount consideration the welfare of the child as it sees it, acknowledging the complex of factors that may affect that issue.
The policy of the Convention
9. The policy of the Convention is not a factor which can displace the paramount consideration of welfare. It is only if welfare factors be evenly balanced that secondary considerations - such as the policy of discouraging the abduction of children across national borders or the desirability of the determination of permanent custody being made in the child's ordinary place of residence - can have any weight in guiding the exercise of the Family Court's powers. The secondary role of such considerations was recognized by a Full Court of the Family Court in Barrios and Sanchez where, speaking of the Convention policy of returning children abducted from a custodial parent in another country, the Court said ((41) (1989) FLC at 77,609.):
" In the present case we think it is appropriate to take this into account as an element to be considered, albeit subservient to the principle of the paramountcy of the welfare of the child." (Emphasis added.)In the present case, the qualification expressed in Barrios and Sanchez was not referred to by the majority in the Full Court. Yet it is logically and legally impermissible to treat those secondary considerations as though they are integral to the ascertainment of the child's welfare. The uprooting of the child from another country, the deprivation of contact with a parent in that country and the desirability of preventing a child's incorporation into Australian society and culture to the detriment of the child's identification with his or her lifetime environment - to take some examples - may be facts that are relevant to welfare. But that is not to conflate the paramount consideration of welfare with the secondary considerations. From start to finish, s.64(1)(a) governs the exercise of the Court's powers. The Voth test and the Convention policy are in themselves immaterial to the welfare of the child although facts which would show that the Family Court is clearly an inappropriate forum or that the policy of the Convention has been breached might throw considerable light on the welfare of the child generally and, in particular, on whether an order for the return of the child to another country should be speedily made ((42) See Lehartel v. Lehartel (1993) 1 NZLR 578.).
10. In the present case, Mushin J mistook what was the "fundamental issue". It was neither the removal of Dimitrios from Greece nor the court order and agreement that he should not be removed from Greece. It was this: what order should be made to serve Dimitrios' welfare best? Mushin J misdirected himself and therefore his order required reconsideration by the Full Court. In the Full Court, however, the majority also misconceived what they said was the "fundamental issue",
namely -
"whether the proceedings should be allowed to continue on in Australia or be required to take place in another country. That issue in turn is dictated either by the forum non conveniens rules outlined in Voth or by the principle that the welfare of the child is the paramount consideration."By either test, the majority concluded that:
"the Family Court of Australia is an inappropriate forum to determine the issue as to whether or not this child should be allowed to live in Australia or Greece."Next the majority referred to the policy of discouraging abduction. But the question was not whether the Family Court was a "clearly inappropriate forum", nor was it the discouraging of abduction. The majority, after citing what Buckley LJ said in In re L., finally fastened on his Lordship's statement that ultimately one must focus on the interests of the particular child. However, reference to that statement stands isolated from any reference to facts which might bear upon the interests of Dimitrios. The majority judgment does not evaluate the circumstances of the case for the purpose of determining what order should be made to serve Dimitrios' welfare best. In particular, as noted above, their Honours do not mention the question whether the mother will return to Greece if an order be made for Dimitrios to be returned there - a question which is of central importance to his future welfare.
11. Nicholson CJ dealt with that question in these terms:
"the wife claimed that she would suffer the following disadvantages if she returned to Greece: . she would have no Legal aid; . she would have no prospects of a job and would not be eligible for employment; . she would have no housing including no furniture nor basic household items; . she has no particular employment qualifications;These facts, if true, are of much greater significance than the fact of abduction or the existence of an agreement and order of a Greek court not to remove Dimitrios from Greece. But, as the matter was dealt with merely on affidavit before Mushin J, the facts have not
. she has no driver's licence; . she has no right to vote; . she is not eligible for social security; . she has no savings; . she has no income other than maintenance; . she is not eligible for Greek Public Health Care. ... She also referred to the fact that by reason of her breach of the Greek order, she faces possible penal sanctions if she returns to Greece. ... At trial, she indicated that she proposed to return to Greece with the child, but on the hearing of the appeal, she indicated through her counsel, that because of these factors she had decided not to return to Greece with the child if the Court ordered the child's return. Again, if she does not return to Greece with the child, the effect of his Honour's order may well have serious consequences for the child's welfare since the mother has been the child's primary caregiver until he was 20 months old and his sole caregiver since that age. The husband, on the other hand, is 56 years old, has no experience with the care of children and only seeks to become a custodial parent by default in the event of the wife not returning. A further relevant, albeit less significant factor, is the fact that the child has been in Australia since April 1993; has commenced school in this country and as his Honour found, appears to be perfectly happy."
been found. Nicholson CJ was right to say that -
"a determination of all or most of these issues in favour of the wife would have meant that the return of the child to Greece would be likely to produce a devastating effect upon the welfare of the child."We respectfully agree with his Honour's conclusion that, as the true issues have not been addressed and the relevant facts have not been found, the proper course is to allow the appeal and refer the matter back to a judge of the Family Court to make such orders as, on the facts as they may be found, are in the best interests of Dimitrios. In determining those orders, considerations which are secondary to the paramount consideration of the child's welfare may be taken into account if that paramount consideration does not itself indicate the orders to be made.
12. We would therefore allow the appeal, set aside the orders of the Full Court and in lieu thereof allow the appeal to that Court, set aside the orders of Mushin J, remit the matter to the Family Court to consider whether, in accordance with the reasons for judgment of this Court, orders for the return of Dimitrios to Greece should now be made pursuant to the father's application and, if that application be refused, to determine the matter of the mother's application for permanent custody.
13. Once the orders in the Family Court are set aside on appeal to this Court, the orders nisi for prohibition and certiorari can be discharged without further consideration. The order nisi for mandamus can also be discharged, since the setting aside of the orders made by the Family Court and the remitting of the matter to the Family Court would lead in the ordinary course to a redetermination of the applications pending before that Court. There has not been, and there would not be, any refusal to exercise that jurisdiction in accordance with the judgment of this Court. We would therefore discharge the
order nisi for mandamus.
DEANE AND GAUDRON JJ This case concerns the custody and welfare of a young boy, Dimitrios, who was born and brought up in Greece until his mother brought him to Australia in breach of a custody order made in her favour by a Greek court. His mother is an Australian citizen of Greek origin, as, apparently, is his father who, according to the wife's affidavit evidence, has an Australian passport. Dimitrios is also an Australian citizen.
2. The factual background and the history of the proceedings are set out in the judgment of Mason CJ, Toohey and McHugh JJ So too, is the principle to be applied in the situation where a child has been brought to this country in breach of custodial arrangements and the question arises whether future custody and related matters should be determined in the Family Court of Australia or in the courts of the country from which the child was taken. We agree with Mason CJ, Toohey and McHugh JJ that the correct principle was not applied at first instance. However, we do not agree with their Honours' further conclusion that there was no error in the approach taken by the majority in the Full Court.
3. In cases such as the present, the issue is not forum non
conveniens. Rather, as Mason CJ, Toohey and McHugh JJ point out, the issue is whether the welfare of the child requires speedy repatriation to the country from which he or she was taken, with the courts of that country determining custody and other matters relating to the child's upbringing. We would add, however, that in determining what is in the interests of the welfare of the particular child, a court is entitled to take account of considerations of public policy reflecting and protecting the interests of all children. Among those considerations of public policy is the prima facie importance, in the interests of all children, of discouraging the taking of a child from his or her homeland and familial environment, in breach of the law of that homeland, for the purpose of obtaining standing or some forensic advantage in a dispute about custody, access or financial support in the courts of some other place. Such abduction of children across national boundaries, if encouraged by being treated as an accepted means of attracting the jurisdiction of, or obtaining some procedural advantage in, the desired forum, pose a threat to the security of any child subject to competing national claims or loyalties.
4. More particularly, such abductions will commonly subject the particular child to serious tension and profound conflicts of affection and loyalty. Almost invariably, they will involve the infringement of the legitimate claims of the members of the child's immediate or extended family from whose custody or environment the child has been unlawfully taken. A court concerned with the welfare of the child will be conscious of the irreparable damage which might be done to the child's ties with those members of his or her immediate or extended family and with his or her homeland if it effectively overrides those legitimate claims by immediately embarking upon a lengthy hearing to determine what it considers to be the desirable final resolution of competing claims and allegations bearing upon the ultimate welfare of the child. Such a court will also be conscious of the undoubted fact that, in the ordinary way, questions relating to the custody of a child who has been raised in a jurisdiction in which his or her immediate and extended family have commonly been resident are best determined in that jurisdiction. Necessarily, in such a case, a court into whose jurisdiction a particular child has been brought by means of such an abduction should first address the question whether the welfare of the particular child will be best served by the making of a summary order providing for the return of the child to the jurisdiction of the courts of the place from which the abduction occurred.
5. At first instance, the parties agreed that there was a preliminary question to be decided, namely, whether Australian or Greek courts should determine custody and related matters, and that that question should be determined "on the papers". However, it seems that they thought that the question was to be decided by reference to forum non conveniens rather than what was required in the interests of their child.
6. The appeal was also decided "on the papers", apparently with the concurrence of the parties. In this regard, it is sufficient to note that the majority (Kay and Graham JJ) concluded that, whether the issue was approached on the basis of forum non conveniens or from the perspective of the welfare of the child, the decision at first instance to the effect that "the Family Court of Australia (was) an inappropriate forum to determine .. whether or not (Dimitrios) should be allowed to live in Australia or Greece" was clearly correct. Their Honours cited a number of matters which, in their view, led to that conclusion, all of them being matters which appeared "on the papers". However, Nicholson CJ, in dissent, expressed the view that the question whether Dimitrios' welfare required that custody and other matters relating to his upbringing be decided in Greece rather than Australia could not be answered without first determining certain factual issues raised by the wife.
7. There may be cases where preliminary welfare questions can be answered in favour of the foreign court simply by having regard to the earlier custodial arrangements and the circumstances under which the child was brought to Australia. That will usually be the case if a non-custodial parent unilaterally and unlawfully removes the child from a long-established, stable and secure environment. Cases of that kind will often be cases that can be determined "on the papers" or, at least, without investigation of issues beyond those involved in the child's presence in Australia. However, other cases may not be so clear-cut: they may require a determination of matters going to the ultimate welfare of the child. A wider examination of that kind will be required if, for example, there is some feature of the earlier arrangements which appears not to be in the child's best interests and that feature is not likely to be remedied by the courts of the other country. Usually that will require resolution of contested issues of fact and not merely a determination "on the papers".
8. On the assumption that the wife was able to present a case in the Greek courts to the effect that Dimitrios should be brought up in Australia, the case at first instance would seem to have been one that could be decided "on the papers". At the conclusion of the hearing, it emerged that the mother was prepared to return to Greece with
Dimitrios in the event of a decision that custody and other arrangements concerning his upbringing should be determined by the courts of that country. This meant that the preliminary welfare issue was within a narrow compass: the father had already indicated that he would not seek custody in the Greek courts, with the consequence that the mother, who had been the primary care-giver and, since separating from Dimitrios' father, the sole care-giver, would continue as the custodial parent. And this was so whether Dimitrios was brought up in Australia or in Greece. However, the issue was much wider if the mother was not able to present a case and her return to Greece meant that the child would inevitably be brought up in that country. In that event, there was an issue to be determined as to the child's ultimate welfare in the light of the mother's claims as to her lack of financial and social security in Greece.
9. It should be noted that the mother's preparedness to return to Greece emerged only at the conclusion of the case before Mushin J Earlier, she had pointed to a number of difficulties involved in living in Greece, including the lack of friends and financial security. However, finally, she indicated that she would return, but only with great reluctance. She indicated at the same time that she could only resettle in Greece if provided with sufficient funds, which she estimated at $10,000. It may be that she thought that a return to Greece would inevitably involve resettlement in that country, either because she did not understand what was proposed or because she considered she was in no position to present a case in Greece. There are, of course, other reasons why she might have thought it necessary to mention resettlement. However, none of these matters has ever been explored.
10. When the appeal came on in the Full Court, the mother indicated that she no longer intended to return to Greece. Her counsel said that this change of mind was the result of various factors, including the possibility of penal sanctions for breach of the Greek custody order. Other factors which, it was said, influenced her decision are set out in the judgment of Nicholson CJ as follows:
". she would have no Legal aid; . she would have no prospects of a job and would not be eligible for employment; . she would have no housing including no furniture nor basic household items; . she has no particular employment qualifications;It was submitted that these matters should be contrasted with the availability of legal aid and social security benefits in Australia, as well as "comfortable housing, a network of friends and employment prospects".
. she has no driver's licence; . she has no right to vote; . she is not eligible for social security; . she has no savings; . she has no income other than maintenance; . she is not eligible for Greek Public Health Care."
11. The mother's resolve not to return to Greece was not tested in any way. Nor were her claims as to the difficulties associated with living in that country. However, her reluctance to return had been manifest from the time that question first arose. Indeed, when it did arise, she dismissed her legal advisers and sought an adjournment to put further material before the court. And the disadvantages which she pointed to were not only plausible, but of a kind that might well lead to a conclusion that no one's interests would be served if she returned. Certainly, her change of mind could not be dismissed as lacking genuineness without some examination of her claims. And if it was genuine it could not, in our view, be ignored, for other questions then arose. And those questions could not be determined simply "on the papers".
12. In the event that the mother's change of mind was genuine, the question was not whether a Greek or Australian court should decide on Dimitrios' future upbringing. Nor was the question whether he should be brought up here or in Greece. The question was whether he should be brought up in Greece by his father who, it seems, is not pressing for custody, or, in Australia by his mother who has cared for him since birth. None of these questions will be addressed by the Greek courts if the mother does not return. None of them was addressed by the majority in the Full Court.
13. Quite apart from the error of principle which occurred at first instance and which is identified in the judgment of Mason CJ, Toohey and McHugh JJ, the preliminary welfare question could not, in our view, have been answered without a determination as to whether the mother would be able to present a case in the Greek courts to the effect that Dimitrios should be brought up in Australia. If she could not, it would then have been necessary to determine whether, in the light of her claims as to the life she would be obliged to live in Greece, the child's best interests required his return.
14. As already indicated, the case changed in the Full Court when the mother indicated that she did not intend to return to Greece. At that stage, it became necessary to determine whether her stated intention was genuine and, if so, whether it was in the best interests of the child to stay with his mother in Australia or to return to Greece with his father.
15. It seems likely that Mushin J and the majority in the Full Court failed to determine the matters referred to in the last two paragraphs because the parties agreed that the case was one that could be determined "on the papers". However, agreement in that regard cannot affect the outcome of a case in which the paramount consideration remains, throughout, the welfare of the child.
16. The majority in the Full Court fell into error in not considering the issues raised by the mother's statement that she did not intend to return to Greece. Accordingly, we would allow the appeal, set aside the orders of Mushin J and remit the matter to the Family Court for further hearing.
17. There is also an application for prerogative relief. That application proceeds on the basis that the question before the Family Court was whether it should or should not exercise jurisdiction. It was not. The question was whether, in the interests of the child, it should exercise its jurisdiction to bring about his return to Greece with the consequence that other questions concerning his welfare would be determined in that country. The court exercised its jurisdiction to achieve that result and nothing that it did in that regard amounted to a jurisdictional error. That being so, the orders nisi must be discharged.
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Citations
ZP v PS [1994] HCA 29
Most Recent Citation
Byrne v Law Institute of Victoria Pty Ltd [2005] VSC 509
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