Dept Community Services v Prokop [Australia 2002] Sydney No. SY6417 of 2001 08 International Abduction [AUSTRALIA 2002] =========================================================== FAMILY LAW ACT 1975 IN THE FAMILY COURT OF AUSTRALIA AT SYDNEY No. SY6417 of 2001 IN THE MATTER OF DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES Applicant AND PROKOP Annabel Louise Respondent Mother Coram: The Hon Justice Le Poer Trench Dates of Hearings: 9, 17 April and 3 May 2002 Date of Judgment: 22 May 2002 Date of Orders 22 May 2002 JUDGMENT OF THE HONOURABLE JUSTICE LE POER TRENCH Appearances: Ms Hartstein of Counsel instructed by the Legal Services Unit, Department of Community Services, 164-174 Liverpool Road, Ashfield NSW 2131 (DX 21212 Ashfield) appeared on behalf of the Central Authority. Mr Tookar of Counsel, instructed by Broun Abrahams, Family Lawyers, Level 16, 338 Pitt Street, Sydney NSW 2000 (DX 11551 Sydney Downtown) appeared on behalf of the respondent mother. INTRODUCTION 1. These are proceedings which were commenced by Annabel Louise Prokop (hereinafter referred to as "the mother") on 26 November 2001 when she filed an Application in the Family Court of Australia seeking orders in respect of the children of the parties. 2. On 13 December 2001 an interim residence order was made in favour of the mother and the matter was adjourned to 14 February 2002 3. On 5 February 2002 the Central Authority of the Department of Community Services (hereinafter referred to as "the Central Authority") made an application for the return of the children to Zimbabwe in terms of the Hague Convention on the Civil Aspects of Child Abduction ("the Hague Convention"). 4. The proceedings before me have run in relation to the Hague Convention application BACKGROUND HISTORY 5. Mark Stephen Prokop (hereinafter referred to as "the father") is 47 years of age having been born on 5 June 1954. 6. The mother is 39 years of age having been born on 9 April 1963. 7. On 10 August 1990 the parties were married at Annapolis in Marylands in the United States of America. 8. The parties thereafter went through a second wedding ceremony on 26 January 1991 in Taree in the State of New South Wales, Australia. 9. During the course of the marriage there were three children born to the union. Those children are: (a) Maxwell Stephen Prokop ("Maxwell") born on 20 December 1994; (b) Louise Prokop ("Elenor") born on 27 January 1996, and (c) George William Prokop ("George") born on 4 November 1997. 10. The parties finally separated on 23 November2001. 11. Following their marriage the parties lived in Connecticut in the United States of America. 12. In October 1992 the father obtained employment with the United States Department of State. 13. In March 1993 the father was posted to the US Embassy in Manila and the parties lived in the Philippines. 14. On 20 November 1994 the parties' first child Maxwell was born in Taree in New South Wales. 15. Following the birth of Maxwell the parties lived in Washington DC, Tokyo Japan, Fairfax Virginia, and finally in Harare Zimbabwe as and from August 1998. At that time the parties lived in the US Embassy residence at Harare. 16. On 23 November 2001 the mother and the three children of the marriage traveled to Australia for the purposes of visiting the mother's family. 17. The mother says that in the latter part of 2000 or early 2001 she resolved to end the marriage. 18. There seems little issue with the fact that although the father anticipated that the mother and three children of the marriage would return from Australia after their visit in November 2001 the mother had planned that they would not return. 19. The father came to Australia in December 2001 as part of a planned three week holiday. 20. On 10 December 2001 the father was served with an application for residence. 21. On 13 February 2002 orders were made by consent restraining the removal of the three children of the marriage from Australia and staying the residence application pending the determination of the Hague Convention application listed for hearing on 9 April 2002. 22. In late March 2002 the parties endeavoured to settle their outstanding issues with the assistance of a mediator. 23. In opposition to the application requiring the three children of the marriage to return to Zimbabwe the mother argued a number of points so as to convince the Court that under Regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986 ("the Regulations") it should refuse to order the children's return. 24. The arguments addressed the considerations embodied in Regulation 16(3) of the Regulations. 25. It was argued that the father was not actually exercising rights of custody when the three children of the marriage were removed to Australia. 26. It was conceded that the father had consented to the three children of the marriage being removed from Zimbabwe but in circumstances where he did not understand the mother was proposing not to return them. His argument is that they have been retained in Australia against his objection. 27. It was argued that it was not desirable to make the orders sought in the application. 28. It was further argued that there would be a grave risk to the three children of the marriage if they were returned to Zimbabwe. 29. The mother further argued that the return of the three children of the marriage to Zimbabwe would offend against the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms. 30. The final argument made by the mother was that to return the three children of the marriage would be to place them in an intolerable situation. It is in relation to this last point that both parties have applied their greatest efforts. RELEVANT LEGAL PRINCIPLES PURSUANT TO THE REGULATIONS 31 In the circumstances of the case I conclude that it is only necessary for me to deal with the arguments raised by both parties under Regulation 16(3)(b) 32. The argument on behalf of the mother was that to return the three children of the marriage to Zimbabwe would place the children in an intolerable situation 33 It is common ground between the parties that the father through his employment with the US Government attracts to the whole family the diplomatic immunity against the laws of the country to winch he and his family are posted. This diplomatic immunity operates so as to exclude from jurisdiction any action whether criminal or civil relating to any member of the father's (diplomat) family. This of course includes the three children of the marriage. 34. In addition to this aspect of diplomatic immunity and consequent thereto the unavailability of any court in Zimbabwe to hear and/or determine any dispute relating to the three children of the marriage in the absence of the immunity being waived, there is the practical aspect that the father has been posted to Papua New Guinea. He only has until July to serve in Zimbabwe. 35. The father stated in his Affidavit filed in Court on 3 May 2002 that he is a US diplomat by profession with a current posting to the US Embassy Harare, Zimbabwe In August 2002 he is due to assume a new posting in the US Embassy Port Moresby in Papua New Guinea. This posting will occur after a home leave travel to the United States. 36. The father says that he has spoken to management at Harare, Zimbabwe and they have indicated that there is no objection to him staying there a few extra weeks beyond the 8 July 2002 scheduled departure. The successor does not arrive until late August so that the house is still available. He says "my ongoing post will kick and scream at the delay but for humanitarian grounds will just have to accept the extended vacancy". 37 All this raises the argument made by Mr Tockar on behalf of the mother that it would be an intolerable circumstance to require the return of the three children of the marriage to Harare, Zimbabwe only to be faced with a circumstance where the father will be required to leave that country and reside in Papua New Guinea from August of this year. It is also pointed out that under Zimbabwean law the mother has the right to custody of the three children of the marriage (the equivalent of residence under Australian legislation) upon the separation of the parties. The underlying suggestion to all this is that the father in reality only seeks contact and it would be intolerable for the three children of the marriage and the mother to be locked into a circumstance where they are required to live in Zimbabwe while the father resides half a world away. 38. At the request made on behalf of the Central Authority an adjournment was granted to allow the Central Authority to consider the argument in relation to the father's diplomatic immunity. 39. When the matter was re-listed the Central Authority still had been unable to obtain any relevant information from the United States State Department. 40. The matter again came before me on 3 May 2002 and at that time material was made available by the United States State Department. Tendered before me and marked Exhibit "C2" is a policy document which sets out information about the immunities of the United States representatives and establishments abroad. 41. By paragraph 221.1.a, contained in Exhibit "C2" it is specified that the families and households of diplomatic officers enjoy the same immunity as the diplomatic officer. 42. In paragraph 221.1.b, contained in Exhibit "C2" the United States Government points out that some governments refuse to extend immunity to members of the mission other than diplomatic officers, even though they are nationals of the sending State. Nothing has been raised in this case to suggest that Zimbabwe falls within this category. 43. My attention was drawn to paragraph 221.5 (waiver of immunity) contained in Exhibit "C2". The waiver requires the prior expressed consent of the State Department. The paragraph sets out some of the procedures involved in the consideration by the State Department and other officers of the United States Government. The process, on the face of it, looks as though it may be quite involved and there is no indication of how long it would take for any waiver to be consented to by the United States Government. 44. Additionally, paragraph 221.5(1) contained in Exhibit "C2" says that a key factor in determining whether or not immunity may be waived is the potential impact on the interests of the United States Government. It was pointed out by counsel on behalf of the mother that the United States Government may well form the view that its interests may be impacted upon if one of their key personnel is tied up in litigation in Zimbabwe and unable to take up a post allocated in Papua New Guinea. 45. It was further pointed out by counsel for the mother that under this same paragraph but under the further paragraph 221.5(3) the requirement of waiver in private domestic relations matters requires the consent of both parties. 46. Further, in paragraph 221.5(3)d, the following appears "waiver of immunity will normally be granted to allow a domestic relations action to be pursued in the host country if both parties consent and if the prosecution of the action will not adversely affect the interests of the United States Government". ASSESSMENT OF RELEVANT LEGAL MATTERS 47. The mother has made it clear through her counsel that she will not consent to having her domestic dispute determined by Zimbabwean courts. That would then appear to be the end of the matter so far as waiver of the immunity is concerned. 48. Even if this was not the case the father has not said in any affidavit, or otherwise that he has applied for a waiver or consent to a waiver of diplomatic immunity. He did indicate that in his opinion this would not be a problem. Thereby indicating that he thought a waiver would be provided by the United States Government. 49. Mr Tockar says that in those circumstances then it is intolerable to conceive of a situation where the three children of the marriage are returned to Zimbabwe and that there is no court in that country which can determine any dispute as to residency and/or contact due to the existence of the immunity. 50. In my view this is a compelling argument. 51. In the decision of DP v Central Authority; JLM v NSW Dept of Community Services [(2001) FLC 93-081] Kirby J said as follows "In the ordinary case, the scheme of the Regulations (and of the Convention) envisages that it will be for the authorities (judicial or administrative) of the country of the child's habitual residence to determine the implications for custody and residence orders of other risks and what is required by other situations" 52. Further His Honour said "In the ordinary case, the assumption upon which the convention has been written (and Australia has subscribed to it and implemented it by the Regulations) is that participating countries will afford laws and judicial or administrative remedies that are acceptable so as to permit reciprocal orders of return to be made in such cases." 53. The above makes it clear that there must be available to the parties in the country of habitual residence a judicial or administrative remedy. If for some extraordinary reason there is no Court available (it being presumed that Australia would not be a signatory to an arrangement with a country which did not have a similar legal system and application of child focused laws and remedies) then at the very least it would create an intolerable situation for the child. 54. In the decision of the majority of the Judges in DP v Central Authority; JLM v NSW Dept of Community Services the following appears: "The Full Court said there was no evidence before the primary judge from which he could conclude that the mother would be unable to contest a case in the Mexican family law jurisdiction. The unchallenged evidence of the mother at the trial was, however, that she bad no financial resources to fund proceedings in Mexico and that her belief (founded on the experience of a friend) was that it may be necessary to pay bribes to succeed in any such proceedings. In this respect, then the Full Court was plainly wrong and a foundation for the undertakings it required as a condition for granting the order of return (that there would be litigation in Mexico about the residence of the child which could be contested by the mother) was not there." 55 That there will be or could be litigation in the country of habitual residence if the child is returned appears a fundamental plank in the construction of the convention as a whole. It would certainly be an intolerable situation for a child if there was no avenue for the judicial or administrative consideration of matters of his welfare in the country to which his return is required. It would also, in my opinion, be possible to decline to return a child in such circumstance under the exception contained In Regulation 16(3)(d). 56. The majority of the Court in DP v Central Authority; JLM v NSW Dept of Community Services [(2001) FLC 93-081] determined that there was nothing to warrant a conclusion by the Full Court that the words in Regulation 16(3)(b) should be given a narrow construction. Kirby J talked of a "mechanical or narrow construction of the factors which may be taken into account (under the Regulation) must be avoided". CONCLUSION 57. I conclude that the circumstances of the diplomatic immunity is decisive of the issue and it leads me in the proper exercise of my discretion with only one conclusion and that is to refuse the request for the return of the three children of the marriage to Zimbabwe. 58. Because I find this matter such a compelling one, I do not need to consider in great detail the other areas of argument raised by counsel on behalf of the mother in the proceedings. 59. It may well be that in addition to this one compelling point there are other reasons why the three children of the marriage should not, in the proper exercise of my discretion, be required to return to Zimbabwe. 60. One matter that does loom large and which I conclude would also convince me that the three children of the marriage should not return is the fact that the father will be leaving Zimbabwe within a very short space of time. 61. In my opinion such a matter would create an intolerable situation for the three children of the marriage. They may well find themselves locked into a circumstance where the mother is prevented from leaving Zimbabwe by order of a court. The father does not live in Zimbabwe any longer and lives such a distance from Zimbabwe that it is impossible for him to have frequent contact with the children. This would place the children in a country which is predominantly foreign to their origins with a mother who is trapped, stressed and unhappy and a father who is unable to assist in their day to day care. 62. In my opinion such a circumstance would be intolerable. 63. For all the above reasons I conclude that the Application lodged by the Central Authority on 5 February 2002 should be dismissed and I will so order. 64. The effect of the orders I intend to make is to end the stay which was in operation pursuant to orders made on 13 February 2002 of the mother's residence application. I will therefore order that that application be listed in a Duty List - 14 days after the date upon which the orders I intend to make herein are made. ORDERS 65. The orders of the Court are: 1. That the Application filed by the Central Authority of the Department of Community Services on 5 February 2002 be dismissed. 2. That the residence proceedings commenced by the mother be listed for directions before a Registrar of the Court at 9.45 am on 6 June 2002. =========================================================== Comments by Wm. M. Hilton. 22 May 2002 This is the second of the two known cases on the affect of diplomatic immunity, the other being from the United Kingdom: Re P (Minors) (UK 1997, HIGH COURT OF JUSTICE - FAMILY DIVISION, No. CP-1316-1997; 8 International Abduction [UK 1997]. In both cases, but for different reasons, the return under The Convention was denied. In this decision there seems to be two (2) lines of reasoning followed by the court in denying the return of the children to their Habitual Residence (H/R) of Zimbabwe: 1) That the father would no longer be living in Zimbabwe and therefore the mother and child (if returned to Zimbabwe) would be on their own so to speak. 2) Because of he diplomatic immunity there would be no courts available to the family in Zimbabwe. Neither of these reasons, in my opinion, have a sound basis. The Perez-Vera report, at 110, addresses itself to the first point, that the parent would no longer be in the H/R of the child: "110 One problem common to both of these situations was determining the place to which the child had to be returned. The Convention did not accept a proposal to the effect that the return of the child should always be to the State of its habitual residence before its removal. Admittedly, one of the underlying reasons for requiring the return of the child was the desire to prevent the 'natural' jurisdiction of the courts of the State of the child's residence being evaded with impunity, by force. However, including such a provision in the Convention would have made its application so inflexible as to be useless. In fact, we must not forget that it is the right of children not to be removed from a particular environment which sometimes is a basically family one, which the fight against international child abductions seeks to protect. Now, when the applicant no longer lives in what was the State of the child's habitual residence prior to its removal, the return of the child to that State might cause practical problems which would be difficult to resolve. The Convention's silence on this matter must therefore be understood as allowing the authorities of the State of refuge to return the child directly to the applicant, regardless of the latter's present place of residence." In this case the father will be in Papua, New Guinea within a reasonable period of time and the children could be returned to him at that location. The second reason, the issue of diplomatic immunity, admittedly, has at least a smidgen of a colorable basis for its application. In the discussion of this matter it was stated that if both parties waived diplomatic immunity and there was concurrence by the US Department of State, that such immunity would be waived. The discussion also shows that while it would appear that the father would waive his immunity, the mother flatly states she would not. This position of the mother should not be given any weight since it is common ground that parties cannot create circumstances that would block the return of the children to their H/R. The one area that is unknown is whether or not the US Department of State would permit the waiver of diplomatic immunity even if both parties would so stipulate. The text of the decision would leave one to believe that this could occur but no one has "checked it out"