Ottens and Ottens (Australia 1988) Family Court at Melbourne No M 9653 of 1988 ================================================================ Johannes Ottens, Husband and Diane June Ottens, Wife and Peter Johnstone, Applicant Director General Department of Community Services Victoria State Central Authority Family Court of Australia at Melbourne, No. M 9653 of 1988, 21 Dec 1988 Judgment by the Hon. Justice Frederico This is an application filed on 13th December 1988 by Peter Johnstone, the Director-General of the Department of Community Services of Victoria. The application is brought under the Family Law (Child Abduction) Regulations which have been made pursuant to section 111(b) of the Family Law Act. Those Regulations give effect in Australia to the provisions of the Hague Convention on International Child Abduction. The circumstances in this matter are that there are two children of the marriage of Mr and Mrs Ottens: Hilary who was born on 2nd March 1980 and Philip who was born on 4th May 1983. The parents were married in Vancouver in 1970 and thereafter lived in Ontario from 1975. Both children were born on Ontario and are Canadian citizens. The husband is a Canadian citizen; the wife is an Australian citizen. The marriage had apparently been unhappy for some time. During the middle part of this year the wife formed the intention of removing the children from Canada for the purposes of a holiday in Hawaii of which holiday was also to be attended by the wife's parents from Australia. Whilst she was in Hawaii the wife formed the intention of not returning the children to Canada. It appears from the material before the Court that although the husband anticipated the return of the children from Hawaii on 30th August he received a telephone call on that day from the wife informing him that she was now in Australia. She has since retained the children in Australia and is living at the home of her parents in Melbourne. Problems relating to unilateral removal of children from one country to another have bedeviled the courts for some time and reported decisions on this subject stem from McKee v. McKee (a Privy Council decision in (1951) AC 352) and in more recent cases such as Schwartz and Schwartz (1985) FLC 91-618. Courts both in this country and overseas have adopted an increasingly consistent response to such cases and have developed, it would seem, a strong preference that issues as to custody of children are best determined in the courts of the country which has been their normal residence. The attitude of the courts has now been codified in the Convention and it is appropriate to quote from Article 1 of that Convention: "The objects of the present Convention are: a to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b to ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Those aims are implicit in the Regulations which have now been enacted. Regulation 11 relates to an application for return of a child abducted from Australia and provides a certain form of application or request which is set out in Schedule 3 to those Regulations. Strangely, however, regulation 13 which relates to an application for the return of a child abducted to Australia does not prescribe any specific form of request or application. Regulation 13 merely provides: "Where the Commonwealth Central Authority receives an application in respect of a child removed from a convention country to Australia and is satisfied that the application is an application to which the Convention applies and is in accordance with the requirements of that convention, the Commonwealth Central Authority shall take action under the Convention to secure the return of the child to the applicant." It is to be noted that Mr Johnstone is Director-General of the Department of Community Services of Victoria but regulation 9 provides that he has all the duties and may exercise all the powers and perform all the functions of the Commonwealth Central Authority. A preliminary matter has arisen during the course of argument as to whether there has been an application received by the Central Authority in Australia pursuant to regulation 13. Annexed to the application and admissible pursuant to the provisions of regulation 23, is a document which appears to be a photographic copy of a document in the form of Schedule 3. However assuming that it is a replica of such a document, the words "- application in accordance with the Hague Convention on the civil aspects of international child abduction for the return of a child abducted from Australia" have been omitted. The matter of concern then has been whether the applicant has proved the receipt of an application in accordance with regulation 12. Miss Symon on behalf of the Director-General sought an adjournment to enable production of the original document which was received, such an adjournment being necessary for her to formally prove such a document. However, it appeared to me that there would be prejudice to the wife by way of costs were I to grant such an adjournment and of course the Regulations themselves provide that the Central Authority is immune from any order for costs. As the Authority has chosen to rely on that provision it appears to me that it would be unjust and unfair to the wife to grant the adjournment that is sought as clearly the wife would suffer significant legal costs as a result thereof. In any event, I am satisfied that I should accept the documents which are attached to the application of the Director-General as a request for the return of the children. They are signed by Johannes Ottens as applicant. Each of the documents gives particulars in respect of each of the relevant children, and on the second page of each document details of the person whom the child is to be returned to. It seems to me in all those circumstances the only reasonable conclusion I can come to is that they are indeed applications or or requests for the return of children and I will act on that basis. Mr Udorovic, on behalf of the wife, then opposes an order for the return of the children on the basis of the provisions of Regulation 16(3)(a) and (b) which provide as follows: "(a) the person, institution or other body having the care of the child in the convention country from which the child was removed was not exercising rights of custody at the time of the removal of the child and those rights would not haye been exercised if the child had not been removed, or had consented to or acquiesced in the child's removal. (b) there is a grave risk that the child's return to the applicant would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;" Section 20(1), (2) and (3) of the Childrens Law Reform Act of Ontario provides as follows: (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. (2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. (3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. It is unnecessary to set out the following provisions. Furthermore, it is clear, as a matter of private international law and in any event from the provisions of section 22 of the Ontario Act, that the Canadian court has jurisdiction in relation to the matter. Following the removal of the children from Canada, the husband brought an application in the Supreme Court of Ontario and an order was made on 4th November 1988 by Justice Walsh (Supreme Court of Ontario, Canada) which after setting out by way of preamble the findings of the Court in relation to the history of the matter which in effect embodied what I have already said, provided as follows: "1. THIS COURT ORDERS that the Respondent (namely the wife) forthwith return the said children, Hilary June Ottens, born March 2, 1980 and Philip Hans Victor Ottens, born May 4, 1983 to the City of Ottawa, Ontario, Canada. 2. THIS COURT ORDERS that forthwith upon the said children being returned to the jurisdiction the Master of the Court shall, upon notice and on the merits, determine all matters as to the interim custody of and access to the said children, pending the final determination of those issues by this Court on Monday, January 30, 1989. 3. THIS COURT ORDERS that if the said children are not returned to the City of Ottawa by the Respondent within 15 days of service of this Order upon her personally or substitutionally as hereinafter provided, the Applicant, Johannes Ottens, is hereby granted custody of both children, for the sole purpose of his arranging for their prompt return to Ontario, so this Court may exercise its jurisdiction." Now an application under the Regulations may be brought by a Prescribed Authority in accordance with those Regulations or by an individual. In this matter, it is apparent that the husband is a person competent to bring such an application, he being a custodian of the children prior to their removal from Canada, and the custodian of the children pursuant to the order of the Ontario Supreme Court at the present time. The Court has a discretion to refuse to make an order under certain circumstances and those are the circumstances relied upon by Mr Udorovic. Firstly, he submits that the evidence discloses that the husband had consented to or acquiesced in the children's removal. Well, now, it is quite clear that the husband acquiesced in their removal from Canada in that he consented to them traveling to Honolulu, in Hawaii, for a holiday. However, the Convention and the Regulations also relate to the retention of the children and it is quite clear that even if I am wrong in finding, as I do, that the husband at no time consented to the removal of the children on, as it were, a long term or permanent basis, in any event he has not consented to their being brought to Australia. The question, however, is has he acquiesced in the fact that they are now in Australia. Mr Udorovic refers to paragraph 7 of his affidavit, filed in the Supreme Court of Canada, in which he states that he had "no concrete expectation" that they would not be returned; that prior to the wife leaving Canada with the children, he informed her that he had telephoned Legal Aid and that he would not fight the prior issue of primary custody in the event of a separation occurring between the parties. Paragraph 16 of his affidavit is to the effect that he sent summer clothing and toys to the children by surface mail when they were in Australia, and in paragraph 25, that he did not immediately commence an application for the return of the children. However, I think it is appropriate to set out the husband's explanation for the delay that has taken place which is given in paragraph 25 of the affidavit: "I did not immediately commence an application on the advice of counsel. I (i) was intent on exploring non-litigious ways of resolving our differences; (ii) retained the hope that my wife might yet arrive back in Ottawa after a reconsideration of the matter; (iii) did not wish to act in a precipitous manner. I have not delayed in the commencement of these proceedings, nor acquiesced in any manner whatsoever in the wrongful retention of my children by my wife." Mr Udorovic further relies upon paragraph 7 of the wife's affidavit, sworn 21st December 1988, and filed this day in which she states that before she left Canada the husband had told her that if she were not to return, he would not seek custody of the children. And paragraph 9 and 10 to similar effect, that he would not contest custody. Of course, the husband is not necessarily seeking final custody of these children by his current application. What he is seeking is their return to Canada. Now, the circumstances are that when the wife left for Hawaii it was on the basis of having a holiday. It was not until she was in Hawaii that she determined to bring the children to Australia. She did not consult with the husband following her conclusion that it was in the best interests of the children that they should live in Australia. In those circumstances, and notwithstanding the other evidence to which I have referred, I am unable to find that the husband has acquiesced in the children being brought to or retained in Australia and certainly I do not find that he has consented. In any event, it does not necessarily follow even were I to make such findings that I should refuse to make an order under sub-regulation 1 or 2. Mr Udorovic then submits that if an order is not made, there would be a grave risk that the child's return to the applicant would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. He refers to the provisions of regulation 16(3)(b). For me to have power to exercise a discretion to refuse to make an order under the Regulations, I would have to be satisfied that there is a grave risk that the return of the children to the applicant would expose the children to one of three situations. One, a situation of physical harm; two, a situation of psychological harm; or three, an intolerable situation. Despite Mr Udorovic's arguments to the contrary, it appears to me to be quite clear on the authorities that each of the first two categories, namely physical harm and psychological harm, must be interpreted by having the words of emphasis "an - intolerable situation" in mind. It is not the grave risk of ny physical or psychological harm. It must be a grave risk of physical or psychological harm of a substantial nature. In this regard, Mr Udorovic relies on allegations made by the wife in her aforesaid affidavit and I refer to paragraphs 4, 5 and 6 of a general atmosphere of bullying and abuse which has prevailed in the matrimonial home in Ontario for some significant time. It is hard to be satisfied from those allegations that the children would in any event be exposed to a grave risk of physical or psychological harm or an intolerable situation as the husband has not had the opportunity of answering those allegations. But it is not the purpose of the Convention that this matter should be stayed to enable the husband the opportunity of coming to Australia and appearing before the Court in order to refute those allegations. As I have said, the design of the Convention is to affect the speedy return of children to the country from which they have been taken. But in any event, I am unable to find that there is any risk to these children in their being returned to Canada. Canada is a country where the rule of law applies. It has a Supreme Court which would exercise a paternal jurisdiction over children who come before it. It would determine the appropriate arrangements of the children who come before it having regard to the appropriate considerations of welfare of the children. The order of the Supreme Court of Canada is designed so that forthwith upon their return to Canada the children can be brought before a Master of the Supreme Court who can determine what are the appropriate interim arrangements to be made pending the final determination of questions of custody on 30th January 1989. In those circumstances, I am unable to accept that there is any risk at all to these children in being order to be returned to Canada. Of course, it is open to the wife to accompany them on their return to Canada if they wished and no doubt with her legal advisors will make immediate arrangements prior to the return so that if necessary the matter can be brought before the Canadian Court immediately upon their return. So therefore I do not find the allegations made by Mr Udorovic as to consent or acquiescence in removal, or as to the risk of physical, psychological harm or intolerable situation to be made out. And even if I am wrong in this it does not appear to me that this is a case in which I should exercise my discretion to refuse to make an order in accordance with the Regulations. This is a case where it would seem to me there are compelling reasons why the children should be ordered to return to Canada. They were born in that country, they have lived there throughout their lives. The parties have lived in Canada since their marriage. It appears to me that the appropriate forum to determine the future custody and the future access arrangements is the Supreme Court of Ontario. Finally, of course, if the wife does not propose to go to Canada she can alert the child welfare organisations in Canada to the situation. Therefore it is ordered on the application of Peter Johnson, Director-General of the Department of Community Services, Victoria, a State Central Authority, pursuant to the Family Law Child Abduction Convention Regulations, such application being filed l3th December 1988: (1) That the wife return the children of the marriage HIlARY JUNE OTTENS born on the 2nd day of March 1980 and PHILLIP HANS VICTOR OTTENS born on the 4th day of May 1983 to the Dominion of Canada to the husband Johannes Ottens at 20 Welby Court, Ottawa, Ontario, Kivoji in the said Dominion at 5.00 p.m. on Tuesday the 3rd day of January 1989. (2) That whilst remaining in the Commonwealth of Australia the said children remain in the custody of the wife at 16 Winston Road, Donvale in the State of Victoria under the control of the applicant. (3) That the wife be responsible for any traveling expenses in respect of the return of the said children to the said Dominion of Canada. (4) That the application of the wife filed this day be struck out. (5) That general liberty to apply be reserved to the parties. BY THE COURT