FAMILY LAW ACT 1975 IN THE FAMILY COURT OF AUSTRALIA AT TOWNSVILLE No. T 2823 of 1989 In the Marriage of: James Gregory Gollogly, Husband and Elizabeth Anne Owen, Wife BEFORE THE HONOURABLE JUSTICE BARRY. Date of hearing: 29 Sep 1989; Date of Judgment: 05 Oct 1989 APPEARANCES Husband: No Appearance Wife: Mrs. Pack of Counsel. Instructed by: Boulton Cleary & Kern, Solicitors. Cnr. Stanley & Sturt Sts., Townsville, Queensland 4810. Applicant: Mr. Durward of Counsel. Instructed by The Crown Solicitor on behalf of The Director-General, Family Services Building, George & Elizabeth Sts., Brisbane, Queensland, 4000. REASONS FOR JUDMENT Before the court is an application by the Director-General of Family Services in Queensland seeking an order for the return of two children, CERISE GOLLOGLY born June 1977 and KAILA GOLLOGLY born May 1982 pursuant to the Convention on the Civil Aspects of International Child Abduction. The children presently reside in Townsville, Australia but the application seeks an order for the children's return to Fairbanks, Alaska. There are incidental orders relating to costs and expense of travel also sought. I shall give a brief history of this matter to the present time. The parties were married in Malta in 1969. The parties were both born in England, the husband in 1944 and the wife in 1947. There were five children born during the course of the marriage, LARAGH born August 1970, SOHRAB born September 1971, the only male child who is in the care of the husband at the present time, NAOMI born January 1973, CERISE born June 1977 and KAILA born May 1982. The parties separated in October 1984. The female children have been in the mother's care continuously since separation. The parties divorced in Alaska in August 1985. Notwithstanding the fact that the parties are now divorced, for the purposes of convenience, I shall continue to refer to them as the husband and wife respectively. The husband is a medical practitioner practising in Fairbanks, Alaska. The wife is well-qualified in special education. At the commencement of their married life together, the parties resided in the Republic of Ireland where the husband completed his medical degree at Trinity College. Then then lived briefly in England, Barbados, back to England, South Africa (18 months), Australia (18 months), and then to the United States in early 1976. The parties settled in Alaska from October 1979 and remained there until the wife left with the children in 1986. After separation, a complaint was made to the authorities in Alaska that the husband had sexually abused the youngest child, Kaila. These allegations arose when Kaila was examined by a psychiatrist, Dr. Trawick, for the nightmares she was suffering. The husband was charged in the criminal courts in Alaska and, after a trial lasting one week, he was acquitted. The husband sought restoration of visitation rights. There are allegations by the wife of violent and aggressive conduct by the husband prior to the sexual abuse allegations. The wife was still firmly of the view that sexual abuse had occurred and was adamant that no access should take place. The wife says that she was being pressured by various persons in authority to reinstate access rights. There is considerable evidence to suggest that the wife was being unco-operative, in the extreme, in relation to efforts to restore access between the father and the youngest child. The term "passive aggressive" is the description giving to the wife's conduct by Mr. Robert F. Dunn, the Court appointed guardian of the children, in his report on the file. At the time of the Thanksgiving weekend in 1986, the wife had knowledge a restraining order was to be placed on her preventing her from leaving the jurisdiction of Alaska. Before such an order could be made, the wife left Alaska with the children to Canada. It appears that parties have dual United States and United Kingdom citizenship. In Canada, the male child contacted his father's surgery and the staff there made arrangements for him to return to his father's care. He has resided with his father since that time. The wife then moved with the children to England for a time and then to Australia. She has been a resident in Australia with her four daughters since mid-1987. The husband has obtained an order for custody of the three girls on 19 June this year from the Superior Court of Alaska. The order of the alaskan courts seems to have been borne out of frustration with the wife's conduct as much as anything else. It appears to be that it was seen as the only way of attempting to invoke either the provisions of the Hague Convention or other provisions of international law to force the return of the children. The order has been registered in Australia with the Central Authority and Mr Pettigrew, as the State delegate for the Central Authority, brings this application for the return of two of the children pursuant to the Family Law (Child Abduction Convention) Regulations of 1986. The application only relates to the two youngest children because the definition of child under the regulations is limited to children under the age of 16. Regulation 13 is in the following terms - 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. Regulation 15(1) reads - The responsible Central Authority may, in relation to a child removed to Australia, apply to a court having jurisdiction under the Act for - .... (d) an order for the return of the child to the applicant. Regulation 16(2) - (Application filed at least one year after removal) Subject to sub-regulation (3), a court shall order the return of a child pursuant to an application for an order of the kind referred to in paragraph 15(1)(d) if the date on which that application was filed is a date that is at least one year after the date of the removal of the child, unless it is satisfied that the child is settled in its new environment. Regulation 16(3) - (Circumstances where court may refuse order) A court may refuse to make an order under sub-regulation (1) or (2) if it is satisfied that - (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 have been exercised if the child had not been removed, or had consented to or acquiesced in the child's removal; (b) there is 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; (c) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child's views; or (d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms. There has never been any adjudication by any court of the allegations of sexual abuse applying the civil standard of proof. Before I am required to consider the applicability, or otherwise, of the provisions of Regulation 16(3)(b) and (c) on the questions of separating the children and whether or not sexual abuse has taken place, I am asked to make a ruling on whether the relevant regulations apply to the facts of the present case. It was argued that Article 35 of the Hague Convention, in adopting the terms "wrongful removals or retentions", envisage the present position where children were brought to Australia in 1987 but the United States did not become a signatory of the Convention until 1 July 1988. Whilst it was conceded that there was no wrongful removal as such, once the United States formally adopted the Convention, the retention becomes wrongful because of the order of the alaskan Court in June this year. The difficulty with this argument is that the terms "wrongful removal" or "wrongful retention" are defined in Article 3 of the Convention. Article 3 of the Conventions in the following terms: The removal or the retention of a child is to be considered wrongful where-- (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 35 is, so far as is relevant, in the following terms - This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States. It is seen from Article 3 that the removal or retention is wrongful only where "it is in breach of rights of custody --- under the law of the State in which the child was habitually resident immediately before the removal or retention." The only jurisdiction which gives the husband rights of custody is Alaska. In order to succeed, the husband must demonstrate that immediately prior to the making of the order by the Alaskan Superior court in April 1989, the child was habitually resident in Alaska. The facts of the matter suggest otherwise, namely - (a) The child left Alaska in 1986; (b) The child has been permanently resident in Australia since April 1987; and (c) The child has dual citizenship. I was referred to various dictionary definitions of the word "habitual". Whichever definition is adopted, it is not possible for me to conclude that the child was habitually resident in Alaska as at April this year. In these circumstances, the retention by the wife of the children cannot be classified as wrongful pursuant to the Hague Convention and, accordingly, I hold the Regulations have no application to the present situation. The application by the Director-General is dismissed.