FAMILY COURT OF WESTERN AUSTRALIA
BEFORE: TOLCON J
HEARD: 17th & 18th JANUARY, 1993 WMH FN01
No. PT 5557 of 1993
JUDGMENT: 18th JANUARY, 1993 (Ex Tempore)
BETWEEN:
CHARLES EDWARD BAXLEY (Husband)
- and -
CHRISTINE BAXLEY (Wife)
- and -
BRIAN BULL (Applicant) (Commissioner, Western Australian Police)
REASONS FOR JUDGMENT
APPEARANCES:
Mr. J.D. Allanson appeared for the Applicant instructed by the
Crown Solicitor.
Ms R. Tapper appeared for the Respondent/Wife instructed by
Paynes.
The applicant in these proceedings is the Commissioner of
Police, being the State Central Authority for the State of
Western Australia, who instituted proceedings pursuant to the
Family Law (Child Abduction Convention) Regulations (hereinafter
referred to as 'the regulations'). The regulations are made
pursuant to the powers conferred by Section 111B of the Family
Law Act 1975 which enables the making of
"Such provision as is necessary to enable the performance
of the obligations of Australia, or to obtain for
Australia any advantage or benefit, under the
Convention on the Civil Aspects of International
Child Abduction (hereinafter referred to as 'the
Hague Convention').
The application was filed on 15th December 1993.
By way of background -
The husband and wife met in Perth Western Australia. At that
time the husband was in the United States Navy on leave. They
married on 29th January 1983 and had three children:
Daniel Spencer Baxley born 8th September 1987 aged 6;
Charles Edward Baxley III born 8th September 1987
aged 6; and
Andrea Mae Baxley born 28th June 1991 aged 2.
The husband was born on 16th June 1954 in Indiana U.S.A. and
is now aged 39 years. The wife was born in Western Australia on
12th April 1963 and is 30 years of age.
The husband and wife settled in the United States of America
where the children were born. The wife and children returned to
Australia on 8th February 1993 and currently reside at 17 Amazon
Drive Greenfields Mandurah.
Prior to the wife's return to Australia the husband and wife
were having difficulties with their marriage caused by
the husband being away from the matrimonial home for lengthy
periods;
the wife becoming homesick and
the husband having employment problems.
Some months prior to the wife's return to Australia she
claimed that the husband was not happy in his employment and
agreed with the wife to move to Australia. The husband later
changed his mind which resulted in the wife further becoming
unsettled.
Whilst residing in the United States of America the husband
and wife lived in five different States and there were lengthy
periods of time when the husband, due to his employment, was away
from the matrimonial home.
The wife sets out in her affidavit filed 10th January 1994
the circumstances of her travelling to Australia on 8th February
1993 and remaining there with the children. In summary she
stated her father had offered to assist the husband, children and
herself to go to Australia on vacation. The husband could not
go because of his employment.
A few days prior to the wife and children's departure to
Australia the husband lost his job. The husband was not prepared
to accompany the wife and children to Australia because his
parents did not agree that he should go. However, he did advise
the wife if she found a job for him in Perth he would move to
Perth. He gave the wife a 'resume' so as to enable the wife to
make the necessary employment enquiries on his behalf.
The wife made enquiries and ascertained it was necessary for
the husband to be interviewed in Perth if he was to obtain
employment. When the wife spoke to the husband on the telephone
on 20th February 1993 regarding his travelling to Perth he stated
he would not come and had never intended to go to Western
Australia; he only made the statement to keep the wife happy.
It was then the wife stated she would not return to the United
States of America.
The wife had obtained discounted return air tickets which
were cheaper than a one way ticket to Western Australia. In her
affidavit filed 10th January 1994 she stated:
"10. I only brought enough belongings for a holiday because
I believed that, if there was no hope of finding a
job for my husband then the children and I would
return. I thought that if there was hope of his
getting a job he would move out and bring our
belongings with him.
As to my husband's consent to travel and return
attached to the application this was signed by him
about 10th January 1993 before he lost his job on
28th January 1993 and so before we made plans for all
of us to move here. We then discussed it, and he
said that as it was his letter and he was the father
he could change his consent so that it would cover
the children staying here permanently.
11. When I left the United States with the children,
I had no intention of taking them away from my
husband. I thought that he was agreeing to a move to
Western Australia if there were prospects of work.
It was only when it became clear that he had no
intention of doing so and when I felt that he had
tricked me into believing he did intend to do so, and
further with my great happiness at being back with my
family which all prompted my decision to stay here."
In the months of August, October and December 1993 the
husband, or his parents, had sent to Australia the children's
clothes, toys, bedding and the like.
It is the husband's case that -
the children were taken to Australia with his consent and
were expected to be returned to the United States no
later than 1st April 1993.
on 20th February 1993 the wife informed him that
she would not return with the children.
the habitual residence of the children immediately
prior to their removal was the United States of
America and that they were wrongfully removed.
he had rights of custody in respect of the children
by reason of the children habitually resident in the
United States of America; they are children of the
marriage of the husband and wife.
He claimed that he first became aware of the Hague
Convention Treaty on 22nd November 1993. Had he been aware of
the treaty earlier he would have taken immediate action for the
return of the children.
On 15th September 1993 the husband had instituted
proceedings in the Circuit Court for the County of Muskegon in
the State of Michigan and on 20th September 1993 interim orders
were made granting the husband and wife joint legal and physical
custody and control of the children and orders were made with
respect to access.
The wife in her answer filed 10th January 1994 denies that
there has been a removal of the children within the meaning of
the Regulations and sets out particulars thereof in Paragraph 9
of that answer. Leave was granted to the wife to amend her
application to add the following:
"9(a) In the alternative to Paragraph 9 hereof if
which is denied there was a removal within the terms
of the regulations the Court should refuse to make an
order under Regulation 16(3)(a) on the basis it
should be satisfied that the husband had
consented to or acquiesced in the children's
removal."
Paragraph 10 was amended to read as follows:
"In the alternative to Paragraph 9 hereof, which is
denied, there was a removal within the terms of the
regulations, the Court should refuse to make an order
under Regulation 16(3)(b) on the basis that it should
be satisfied that there is a grave risk that the
return of the children to the applicant would expose
the children to psychological harm or place the
children in an intolerable situation or both."
Although counsel for the wife did not expressly abandon this
ground she did not press it in light of the Full Court decision
in Murray v Director, Family Services Act (1993) F.L.C. 92-416 p.
80,143.
Paragraph 11 of the answer reads:
"In the alternative to Paragraphs 9 and 10 the
respondent has no means to pay the costs of
returning the children."
This was not was not pressed in argument. It would not
matter had it been pressed. Counsel was quite proper in not
pursuing that ground.
A further ground was that insofar as it may be relevant the
wife refers to her application filed 4th November 1993 in
respect of guardianship, custody, injunction and child
maintenance. That was an application instituted by the wife and
adjourned pending the outcome of these proceedings and again of
no relevance to the current application.
I now refer to the relevant regulations and provisions of
the Family Law Child Abduction Convention Regulation. Regulation
13 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."
Regulation 14 provides:
"Nothing in these Regulations prevents a person,
institution or other body from applying directly to a
court of competent jurisdiction, whether or not under
the Convention, in respect of the breach of rights of
custody of, or breach of rights of access to, a child
removed to Australia."
Regulation 15 provides:
"(1) The responsible Central Authority may, in
relation to a child removed to Australia, apply to a
court having jurisdiction under the Act for
(a) ...
(b) ...
(c) ...
(d) an order for the return of the child to the
applicant."
The regulation provides other powers which at this point in
time are of no relevance.
Regulation 16 provides:
"(1) Subject to sub-regulation (3), a court shall
order the return of a child pursuant to an
application made under sub-regulation 15(1) if the
day on which that application was filed is a date
less than one year after the date of the removal of
the child to Australia."
In the present case the period is less than one year.
Sub-regulation (2) provides:
"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."
This sub-regulation is not applicable in the current
proceedings.
Sub-regulation (3) provides:
"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 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."
I should mention Article 3 of the Convention which provides:
"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 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."
The only matter for determination is whether the husband
consented to or acquiesced in the child's removal. In the
circumstances of this case, I am satisfied
that the husband consented to the wife and children
going to Western Australia for a holiday and to
ascertain the likely prospects of the husband
obtaining employment in Australia.
on 11th February 1993 the wife had enrolled the two
elder children in a local school without the
husband's consent.
on 20th February 1993 the wife informed the husband
that she did not intend to return to the United
States.
It was evident to me that there was no firm agreement
between the parties that the wife and children would stay in
Western Australia. In that regard I refer to the earlier
passages that I have mentioned and in particular Paragraphs 10
and 11:
"10. ... I only brought enough belongings for a
holiday because I believed that, if there was no hope
of finding a job for my husband then the children and
I would return. I thought that if there was hope of
his getting a job he would move out and bring our
belongings with him."
"11. ... I thought that he was agreeing to a move to
Western Australia if there were prospects of work. It
was only when it became clear that he had no
intention of doing so, and when I felt that he had
tricked me into believing he did intend to do so, and
further with my great happiness at being back with
my family which all together prompted my decision to
stay here."
The wife had unilaterally decided to remain in Western
Australia. The wife and children had a return ticket to the
United States. When considering those circumstances I am
satisfied that the husband had not consented to the wife
remaining permanently in Western Australia and that he only
consented to the wife and children holidaying in Perth for a
limited period, his consent being withdrawn on 20th February 1993
when the wife unilaterally decided to remain in Western
Australia.
We now deal with the expression "acquiesce". That word is
defined in the 6th Edition of the Concise Oxford Dictionary in
these terms:
"Acquiesce - agree, tacitly, raise no objection,
accept arrangements."
In Bell v Alfred Franks and Bartlett Co. Ltd. and Another
(1980) 1 All E.R. 356 at p. 360 Shaw LJ commented:
"What is meant by acquiescence? It may involve no
more than a merely passive attitude, doing nothing at
all. It requires as an essential factor that there
was knowledge of what was acquiesced in."
As to whether the husband had acquiesced in the wife and
children remaining in Australia, the wife relies upon the
following:
her length of stay in Western Australia prior to the
husband invoking the provisions of the Hague
Convention.
the husband and/or his parents sending to the
children their clothing and toys.
the proceedings instituted by the husband in the
Circuit Court for the County of Muskegon on 15th
September 1993 and the interim orders made relating
to joint custody and access on 20th September 1993.
the husband had legal representation in September
1993 and was aware, or should have been aware, of his
rights pursuant to the terms of the Hague Convention.
The husband relies upon the fact that he was unaware of the
provisions of the Hague Convention and if he had, he would have
instituted proceedings immediately. His actions in instituting
proceedings in the United States are consistent with a person
anxious to have his children returned to him. Likewise, the
forwarding of the children's clothing and toys are consistent
with a parent ensuring that the children had their clothes, toys
and the like.
When I take into consideration those circumstances, I am not
satisfied that the husband has acquiesced in the wife remaining
in Australia.
That being the case, I am satisfied that the application
must succeed and accordingly I make the order sought by the
applicant for the return of these children.
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1. This date appears to be in error and should be 1994.