SUMMARY OF CASES DECIDED UNDER THE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, DONE AT THE HAGUE ON 25 OCT 1980 IN AUSTRALIA This listing was graciously provided by the Hon. Justice Peter E. Nygh of the Family Court of Sydney, Australia. ====================================================================== In the Marriage of Lambert and Lambert, at Melbourne, 3 April 1987, unreported [Full text is on Hilton House BBS: LAMBERT.AUS] "grave risk of ... intolerable situation", Article 13(b). Factual. The child (aged 3) pursuant to an interim order was in the custody of the wife. The husband wrongfully removed the child to Australia. The husband sought to rely on the Article 13(b) exception alleging that the child was exposed to an atmosphere of violence and drunkedness in the care of the wife. Held, The Exceptions to the convention are likely to be few and far between and this case clearly is not one that falls within it. The court was not satisfied that it was a grave risk to the child if he was returned to the wife. Even if there was such a risk, given the circumstances of the removal of this child the Court would have exercised its discretion adversely to the abductor. In the Marriage of Hicks and Hicks, Family Court of Australia at Sydney , 10 April 1987, unreported [Full text is on Hilton House BBS as HICKS.AUS] "right of custody", Article 3. Factual After the parties separated the child (aged 3 1/2) remained resident in the former matrimonial home with the husband and his mother in the United Kingdom. The wife alleged that she took part in the care and control of the child on a daily basis. The child was removed from the U.K. and taken to Australia by the wife. A custody application by the husband was still pending in the U.K. court. Held, 1. Under the law of England at the relevant time the husband was jointly with the wife entitled to exercise the rights of custody in respect of the child of the marriage. 2. Whatever the role of the wife during the day in the child's care, there is no doubt that at the relevant time the husband was actually exercising rights of custody in respect of the child. Prima facie case established for order for return under the Convention. In the Marriage of Barraclough and Barraclough (1987) 11 Fam LR 773 [Full text is on Hilton House BBS as BARACLH.AUS] "right of custody", Articles 3, 5. Issue of Law. Four children taken by wife from England to Australia in July 1986, with consent of husband who believed that they were going only for the duration of the children's summer vacation. In February 1987 the wife told the husband she intended to live permanently in Australia. On 24 April 1987 the children became wards of the U.K. Court on the application of the husband. On 11 August 1987 the husband applied to the Australian Court for an order under the Family Law (Child Abduction Convention) Regulations that the children be returned. Held, The rights of the husband at the present hearing did not include a right to have the children back with him in England at that time. The right to determine the current residency of the children vested in the U.K. Court as the children were wards of that Court. In the Marriage of Turner and Turner, Family Court of Australia, at Brisbane, 27 June 1988, unreported [Full text is on Hilton House BBS as TURNER.AUS] Child objects to return .., Article 13. Factual. Child (aged 13) came to Australia to visit her father for a holiday on 7 December 1987. On 12 December wife informed by husband that child wished to stay in Australia. Wife initially consented then revoked consent. In January 1988 the wife sought the child's return. Application for return made by Central Authority in May 1988. Held, 1. Issue of wife's "acquiescence" not necessary to decide. 2. Child found to hold a genuine and consistent desire to remain in Australia with her father and was able to articulate a variety of sound reasons that influenced her in that desire, including the constraints put on her by her mother's adherence to a religious sect. The Court held that the child objected to return and that she had attained an age and degree of maturity at which was appropriate to take account of her views. Application dismissed. Between Ottens and Ottens, Family Court of Australia, at Melbourne, 21 December 1988, unreported [Full text is on Hilton House BBS as OTTENS.AUS] Acquiescence; grave risk of harm, Articles 13(a), (b). Factual From Canada 2 children (aged 5 and 8) taken by the wife to Hawaii for holiday in mid-1988. Whilst in Hawaii the wife formed the intention of not returning to Canada and traveled with the children to Australia without consulting the husband as to the desirability of such a move. Husband sent clothing and toys to children in Australia and there was some delay before he applied for the return of the children under the Hague Convention. Wife alleged bullying and abuse by husband during marriage seeking to establish the article 13(b) exception. Held, 1. The husband was found not to have acquiesced or consented to the retention of the children in Australia. 2. No risk to children in their being returned to Canada. Order for return Gsponer v Johnstone, (1988) 12 Fam LR 755 [Full text is on Hilton House BBS as GSPONER.AUS] "grave risk ... intolerable situation", Article 13(b) issue of law. Children wrongfully removed from Switzerland to Australia. The wife alleged that during the marriage she and the children had been subjected to violence by the husband. The trial Judge ordered the return of the child. On appeal the wife relied on a disjunctive interpretation of reg l6(3)(b) (the implementing provision of Article l3(b)). Held, 1. While the three categories of harm are to be read separately, there must be a "grave risk" of the occurrence of one or more of such events. The grave risk of any physical or psychological harm is not enough; the physical or psychological harm must be of a substantial or weighty kind. 2. Reg. 16(3)(b) has a narrow interpretation. It is confined to the "grave risk" of harm to the child arising from his or her return to a country to the Contracting State. Appeal dismissed. In the Marriage of Gollogly and Owen, (1989) 13 Fam LR 622 [Full text is on Hilton House BBS as OWEN.AUS] Removal not in breach of an existing order, Whether retention became wrongful when custody order varied, Article 3. Issue of law. A consent agreement was filed by the parties in 1986 giving the wife custody of the children of the marriage. Subsequently, the wife left Alaska then traveled to Australia with children of the marriage. The Superior Court of Alaska in 1987 made a formal order that the wife had custody. In 1989 the husband obtained an order for custody for 3 youngest children. The order was registered in Australia and Hague Convention proceedings were initiated for the return of the 2 youngest children (those then under aged 16). Held, the retention of the children by the wife was not wrongful pursuant to Article 3. The relevant children were not habitually resident in Alaska immediately prior to the making of the order by the Alaskan Court in 1989. Application dismissed. Director General of Family and Community Services v. Davis (1990) 14 Fam LR 381 "grave risk ... intolerable situation", Article 13(b) Issue of law. Children (C aged 8 and F aged 4) wrongfully removed from U.K. to Australia, by mother. Mother unwilling to return with children to State of habitual residence. Child F removed by trial Judge from the order to return. On appeal. Held, 1. there was no evidence before the trial Judge from which her Honour could infer that a grave risk of psychological harm, of the requisite (severe) degree, would occur if F were returned to the U.K.. 2. The wife's inability to accompany the child to the U.K. was obviously a serious consideration but which, if it existed, was created by the unilateral conduct of the wife and she should not rely on the fact that she had created the very situation which would prevent compliance with the Convention. In the Marriage of Brandon and Brandon (1390) 14 Fam LR 706 Right of custody, habitual residence, Article 3. Issue of Law. In 1988 a child was taken to England by the husband with the consent of the wife in breach of an Australian temporary custody order in favour of the Director General of the Department of Family Services Queensland. Husband informed D-G of child's whereabouts and circumstances. The D-G took no action to have Child returned to Australia. In 1989 the wife reunited with the husband and the child in England. In February 1990 the temporary custody order in favour of the D-G ceased to have effect. In March 1990, without the knowledge or consent of the husband, the wife brought the child from England to Australia. The husband sought return of the child to England pursuant to the Convention. Held, 1. When the temporary custody order in favour of the child terminated, the husband and wife assumed by force of English law equal rights and authority to legal custody. The husband was actually jointly exercising rights of custody to the child at the time he was removed from England by the wife. 2. The child was habitually resident in England at the time of his removal to Australia by the wife. 3. While the child's removal to England was in breach of the temporary custody order in favour of the D-G and therefore wrongful, this taint of wrongfulness faded away completely due to the effluxion of time, the acquiescence of the D-G, and the good progress the child had made in his new environment in a lengthy period. 4. The right court to determine the custody issue was the English court. In the Marriage of Thompson and Thompson (1990) 14 Fam LR 542 Power to order production of records and information from government departments to assist in location of children Issue of Law. The wife had wrongfully removed the children to Australia from America and her exact whereabouts could not be ascertained. With a view to determine the whereabouts of the wife and children, the Central Authority brought a number of interlocutory applications against the Commissioner of Taxation, the General Manager of the Health Insurance Commission and the Secretary of the Department of Social Security. The applications sought the production of records of claims, applications, returns and assessments concerning the wife and children. Each of the respondents operated under Commonwealth legislation known generally as "secrecy provisions". Held, 1. The Court did not have the power to make orders in the broad form sought by the Central Authority. The Court did have power to make orders that the respondents provide information from their records as to the whereabouts of the wife and children. 2. Seeking an order for the issue of a warrant ( a prerequisite under s64A(4) for order 1. above) solely under reg 15 would be ineffective to override the "secrecy provisions". The order had to be issued under both reg. 15(2) and sec 64(9). In the Marriage of Hooft van Huysduynen and van Rijswijk (No.l), (1990) FLC 92-119 Meaning of "convention country". Issue of law. The wife had brought the children to Australia from the Netherlands without the consent of the husband. An order had been made in the Netherlands Court awarding him custody. The husband sought to rely in the Child Abduction Regulations implementing the Child Abduction Convention in Australia for an order that the children be returned. At the time the Netherlands whilst a signatory to the Convention had not ratified, accepted or approved it" Held, 1. the Netherlands was not a "convention country" as defined by the Regulations. 2. Article 18 of the Vienna Convention on the Law of Treaties did not assist the husband's claim that the Netherlands should be deemed a "convention country" In the marriage of Artso and Artso, Family Court of Australia at Dandenong, 20 March 1991 Wrongful retention/ habitual residence, Article 3. Issue of Law. The husband and wife agreed to travel to Australia from England with their two children (aged 8 and 12) to stay for a period determined particularly on the happiness of the children, up to 12 months. The stay was ultimately for the purpose of investigating the possibility of immigrating to Australia. The parties marriage broke up soon after the wife and children arrived in Australia after the wife expressed her desire to return to England. The husband refused the wife permission to take the children back to England. The wife returned to England and issued proceedings in the High Court of Justice, Family Division in England seeking custody, care and control of the children with relief requiring their return to England. Proceedings were initiated under the Hague Convention by the Central Authority for the return of the children. It was argued that there had been wrongful retention of the children by the husband in breach of her rights of custody under English law. Held, 1. the unilateral decision by one parent to form a settled intention to reside in another country and thereby potentially acquire a different habitual residence cannot bind the children. Such a decision would require the acquiescence of both their joint guardians and custodians (In re J (A minor) [1990] 3 W.L.R 492 applied). The children's habitual residence therefore remained England. 2. In the circumstances of the agreement between the husband and wife the refusal of the wife's right to take the children back with her to their place of habitual residence was a wrongful retention of the children by the husband. Graziano and Daniels (1991) 14 Fam LR 697 Whether children "settled" in new environment, Article 12. Issue of law. Four children (aged 3, 4, 6, 8) were wrongfully retained in Australia by the mother after a 7 week holiday in Tasmania. Shortly after arriving in Tasmania in April 1989 the mother enrolled the 2 older children in local schools and began building a house. More than one year after the wrongful retention the husband completed an application for assistance under the Hague Convention on 21 May 1990. Proceedings were initiated in the Family Court in Launceston on 2 November 1990. A Family Report was prepared by a clinical psychologist to assist the Court in assessing the degree to which the children had established themselves in Tasmania. The trial Judge came to the conclusion in the case of each child that he or she was not emotionally and physically integrated to be "settled" in Tasmania within the meaning of the Convention, and ordered the return of the children. On the mother's appeal. Held, 1. The test of "settling" must be more exacting than that the child is happy, secure and adjusted to his or her surrounding circumstances. 2. The word "settled" has two constituent elements. First, a physical element of being established in the community and an environment. Second, an emotional constituent denoting security and stability 3. The "settlement" must relate to a new environment and must encompass "place, home, school, people, friends...but not per se the relationship with mother which has always existed." 4.The fact that a child has lived in a country for more than one year does not by itself raise a presumption that the child has become settled in its new environment. Appeal dismissed. In the Marriage of Resina and Resina, 22 May 1991, Family Court of Australia (Full Court) at Perth, unreported. meaning of "right of custody", Articles 3, 5. Issue of Law In April 1990 an order was made which restrained the parties from removing 2 children from Australia (habitually resident in Western Australia). In January 1991 the children were removed from Australia to France by their maternal grandparents. In breach of orders that she surrender her passport to Australian authorities the wife left Australia on 22 February 1992 and traveled to France. The husband the biological father of 1 child only applied for a declaration that the removal of both children was wrongful. Under Western Australian law the husband had no rights of custody or guardianship in respect of the child to which he had no paternity except the right to apply to competent court for such an order. On appeal the Full Court held that the injunctive order of April 1990 constituted a "right-of custody", following C v C (1989) 1 WLR 654 Between Director-General of the Department of Family and Community Services and Nogel and Smithers, Family Court of Australia, at Brisbane 21 November 1991, unreported. "grave risk of .... in tolerable situation", Article 13(b). Factual Husband and wife had custody of 2 children (aged 9 and 6 1/2) pursuant to joint parenting order. On 5 May 1991 the wife wrongfully removed the children from the United States to Australia, and attempted to hide them in Australia under false names. Psychological evidence and evidence of the children's school teachers was before the court in relation to the children's feelings relating to each parent and their emotional and intellectual developmental age. The Judge concluded that the evidence indicated extensive manipulation and coaching of the children by their mother holding that she had not discharged the onus of proof on her required by the Article 13(b) exception and ordered the return of the children. In the Marriage of Layfield and Layfield, at Brisbane, 6 December 1991, unreported. Meaning of "Child objects to return", Article 13. Factual. On 31 May 1991 child (aged 11) wrongfully removed from U.K. by mother to Australia. The child wished to stay with her mother. Held, 1. Child has reached an age and has that degree of maturity at which it is appropriate to take into account her views. The child's wishes are not that she wishes to remain in Australia per se, but that she wishes to remain with her mother. In this case child's views not sufficient to refuse to order return of the child. In the Marriage of Gazi and Gazi, Family Court of Australia, at Sydney, [1993] FLC 92-341 [Full text is on Hilton House BBS as GAZI.AUS] Summary nature of proceedings. Issue of Law Two children taken from France by father to Australia. The father alleged that the wife consented to or acquiesced in the removal from France. This the wife denied. At the hearing the trial Judge read all the relevant material and invited the parties to address. The trial Judge found that the removal of the children from France by the husband was wrongful and without the consent of the wife, ordered the return of the children. On appeal, the husband submitted that he was denied natural justice in that he was not given an opportunity to cross-examine the wife on a number of matters including an allegation that she was ill an undergoing psychiatric treatment. Held, there was no denial of natural justice, the primary purpose of the Convention was to provide a summary procedure for the resolution of the proceedings. Whilst it may be appropriate to allow cross-examination of deponents of affidavits, such cases would be rare. The majority of proceedings should be dealt with in a summary manner and cross-examination of deponents of affidavits would not be appropriate. This case fell into the latter category and the trial Judge properly adopted a summary procedure. In the Marriage of Brown and Brown, Family Court of Australia, at Sydney, 18 December 1992 [Full text is on Hilton House BBS as BROWN.AUS] Grave risk of harm ... intolerable situation, Article 13(b). Factual. Ten month old child wrongfully removed from Austria to Australia by husband. Photographs, taken by mother, of child with naked men were before the Court. The husband argued that the photographs demonstrate that to allow the wife to receive the child for return to Austria and to have her awaiting and during proceedings in her care poses a grave risk of the child being exposed to harm of the kind demonstrated in the photographs. Held, 1. Even if similar photographic sessions would create a grave risk of exposure to substantial harm, the Judge was not satisfied that there was a grave risk that such events or anything similar to them would be repeated between now and the Austrian authority's determination of the matter. To ensure prompt attention to this case by the Austrian authorities a copy of the Judge's decision, orders and exhibited photographs were transmitted to them via the Australian Central Authority. Department of Health and Community Services and Easton, Family Court of Australia at Melbourne, 23 December i992, unreported. [Full text is on Hilton House BBS as EASTON.AUS] Meaning of "Child object to return", Article 13. Factual. Child (aged 11) wrongfully retained in Australia by mother. Child expressed a wish to remain in Australia with his mother and his step-father. Held, Evidence does not establish that child objects to being returned and that he has obtained an age and degree of maturity which it is appropriate to take account of his views. Even if evidence did establish the exception it would be inappropriate to exercise the Court's discretion to refuse to return the child as there has been a clear and flagrant breach of an order of a foreign court and an arrangement between the parties.