FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA AT ADELAIDE
No. AD 1668 of 1993
BETWEEN:
THE POLICE COMMISSIONER OF SOUTH AUSTRALIA
(State Central Authority)
AND
RICHARD JAMES BENNETT
(Father)
CORAM: Judicial Registrar Forbes
DATE OF HEARING: 25 May 1993
DATE OF JUDGMENT: 4 June 1993
JUDGMENT
APPEARANCES: Mr A Moss (instructed by Crown Solicitor)
appeared on behalf of the State Central
Authority
Mr R Hogan (instructed by David Peacock)
appeared on behalf of the father.
CATCHWORDS: Application under Family Law (Child Abduciton
Convention) Regulations for order for return of
child
Question of Habitual Residence
Consideration of Acquiescence
"Grave Risk"
Intolerable Situation
Age and degree of maturity of child under
Convention
Application Allowed.
================================================================
This is an application brought under the Family Law (Child
Abduction Convention) Regulations for an order that the child
Jasmine Leigh Noda-Bennett born 15th December 1983 (hereinafter
referred to as "the child") be returned to New Zealand. The
application is brought for the purposes of the regulations by the
Central Authority which, in this instance, is the Police
Commissioner of South Australia. Presently, the child is
residing at Hope Forest via Willunga in this State with the
father who is the respondent to the application.
The mother resides at Henderson, New Zealand and it is into her
care that the Central Authority seeks an order for the child to
be returned to New Zealand.
The mother was born at Auckland, New Zealand on 15th March 1955.
She is presently 38 years of age. The father was born at
Shepparton, Victoria on 21st November 1959. He is presently 33
years of age.
The application was filed in this Registry on l9th February
1993. The day before, the father filed a Form 8 application for
orders, including an order for interim custody of the said child.
The application of the Central Authority came on for mention
before the court on 24th February 1993. On that date consent
orders were made in the following terms:
"1. That the father, do not remove the infant child
JASMINE LEIGH NODA BENNETT born on the 15th day
of December 1983 from the State of South
Australia.
2. That the father do surrender forthwith to the
Registrar of this Honourable Court all current
passports relating to himself and the said child.
3. That the names of the father and the said child
be placed on the Pass Alert System operated by the
Federal Police of the Commonwealth of Australia.
4. That the father do file such answering
affidavits and other documents as he may be
advised within 14 days of the date hereof.
5. That pursuant to the provisions of Section 62A of
the Family Law Act 1975 a Welfare Officer's report
be prepared and provided as to the wishes and
perceptions of the said child as to her future
placement and custody and that such conference be
held at 10.00 a.m. on the 8th day of March 1993.
6. That the application by the father set for the
9th day of March 1993 be adjourned to the 22nd day
of March 1993.
7. That further consideration of this matter be
adjourned to the 22nd day or March 1993 at 10.00
a.m. before the Judicial Registrar."
Counsel for the Central Authority observes that the father has
failed to give compliance with paragraph 4 of the order and
objects to the father being permitted to rely upon an affidavit
filed 18th February 1993, being the affidavit filed in support of
the father's application for interim custody. I admitted the
affidavit subject to the objection. I will now determine whether
I should accept the affidavit. Mr Hogan for the father, whilst
conceding that the father's affidavit does not give effect to
paragraph 4 of the abovementioned order submits that I have a
discretion to accept it (as I would ordinarily have such a
discretion for the purposes of exercising jurisdiction under the
Family Law Act) and that Regulation 15(1B) is not mandatory in
its requirement that a defense to an application shall be by way
of a Form 2A. I might say that a failure to accept the affidavit
of the father would, in all probability, result in a further
adjournment of the application and given that the application
should be determined on the affidavits if at all possible and
summarily, Gazi and Gazi (1993) FLC 92-341 at pg 79,623, I
determine that I should have regard to the father's affidavit.
The history to the matter is that the mother and father commenced
a defacto relationship at Sydney in 1982 and moved to Adelaide
the following year when Jasmine was born in the December. In
1985 the parties separated but later reconciled, although only
for a short period. The father had regular access to the child
between 1985 and 1987 when the parties were residing in Adelaide.
The mother then moved to Sydney. In 1986 the mother commenced a
relationship with a Jason Barnes. A child, Steeley Barnes was
born of that relationship in 1990. The mother acknowledges that
it was a difficult relationship but not such as to impose a
threat to the safety of the child Jasmine.
In April 1991 the mother traveled to New Zealand in circumstances
which were unexpected and which caused her to make arrangements
with the father that she would leave the child with him during
the period of her absence. At first the mother considered that
her absence would be a temporary departure from Australia. The
father says that 2 weeks after the mother left Australia she
advised him that she would not be returning to Australia. She
had the child, Steeley Barnes with her. Her relationship with
Jason Barnes had been severed. In circumstances which are not
entirely clear she arranged with the father that he would send
Jasmine to her in New Zealand and Jasmine was delivered to her in
August 1991. The father says as to that by his said affidavit:
"22. I suggested to Val at that time that Jasmine be
allowed to live with me but Val would not agree
saying that she wanted to start a new life in New
Zealand. When Jasmine came back later that year she
told me that Val had already commenced another
relationship with another man."
The child remained living with the mother in New Zealand. By
arrangement between the parents Jasmine came to Australia in the
period December 1991 to February 1992 being her summer 1991/92
school holidays and spent that time with the father. Again, by
way of arrangement between the parents the child traveled to
Australia on 3rd December 1992 to spend her summer school
holidays. Her return flight to New Zealand was booked with her
leaving Australia on 28th January 1993. She had otherwise
remained with her mother in New Zealand throughout 1992. On 28th
January 1993 the father failed to return the child. She remains
with him at the date hereof.
On 9th February 1993 the mother obtained an interim order for
custody in the District Court at Henderson, New Zealand. The
order was made ex parte. Under New Zealand law and pursuant to
the provisions of the Guardianship Act 1968 the mother has a
right of custody exercisable jointly with the father as to the
child.
Article 3 of the Convention provides:
"The removal or 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".
Article 5 of the Convention says:
"For the purposes of this Convention
(a) "rights of custody" shall include rights
relating to the care of the person of the child and,
in particular, the right to determine the child's
place of residence;"
Regulation 2 of the Family Law Regulations provides that:
""rights of custody" has the same meaning as in the
Convention, and includes rights arising by the operation of
law or by reason of a judicial or administrative decision or
by an agreement having legal effect under a law in force in
a convention country;"
Mr Hogan argues that the rights of custody under New Zealand law
can have no application to the mother and cannot be determinative
of the mother's "rights of custody" because the child was not
habitually resident in New Zealand for the purposes of the
Convention.
He says that in the period from April 1991 to December 1992, a 20
month period, the father had the child for 7 months in Australia
and the mother had the child for 13 months in New Zealand. He
says the child was born in Australia and but for the period
August 1991 to December 1991 and February 1992 to December 1992
has lived her life in Australia. He points to the evidence of
the father which alleges an intention on the part of the father
to secure an arrangement or agreement with the mother permitting
the child to live in Australia and he argues that the mother
cannot unilaterally determine what should constitute the child's
residence. He says that in these circumstances It cannot be said
that the child is habitually resident in New Zealand for the
purposes of Article 3 and 4 of the Convention. He says that an
ordinary meaning should apply to "habitual", that is, "customary,
constant or continual" as per the Concise Oxford Dictionary or
"constantly repeated" or "customary" according to the
Encyclopedia Brittanica 1965.
Mr Moss for the Central Authority says that a picture of shared
residence between Australia and New Zealand for the child "does
violence to the facts". He says the facts show that the child
had lived continuously with the mother in New Zealand since
August 1991 save for the period of the Christmas school vacation
1991 and 1992 when it was agreed she would spend time with the
father in Australia. Those factual matters, he says, points to
the conclusion that New Zealand was the habitual residence of the
child.
It is apparent in the history of the matter that the father sent
Jasmine to New Zealand to join the mother in August 1991. He
concedes that he did so in pursuance of an agreement or an
arrangement with the mother. His affidavit, paragraph 22, also
includes a concession by the father that he was permitting the
child to travel to New Zealand and to thereafter remain with the
mother upon the basis that the mother was intending to start a
new life in that country. Equally, the father makes it clear
that he had reservations about that course of action and he was
using his best endeavours to convince the mother that Jasmine
should be permitted to live with him. The mother says that the
child came to her in New Zealand as it was her wish that upon
becoming settled in New Zealand that the child would join her
there. These matters would seem to constitute the factual basis
upon which the child in the first instance traveled to and took
up residence at New Zealand. No doubt it was unexpressed but the
arrangements for the child to go to New Zealand were an
expression of the lawful exercise by the mother of her rights of
custody.
In Dicey and Morris: The Conflict of Laws 10th edn, Vo.1, p. 144
appears the following:
"Habitual residence has long been a favourite expression of
the Hague Conference on Private International Law. It
appears in many Hague Conventions and therefore in English
statutes giving effect to them, but is increasingly used in
statutes not based on international conventions. One of its
first uses at the Hague was in the context of the custody of
children, largely because of the artificiality of the notion
of domicile as applied to young children. No definition of
habitual residence has ever been included in a Hague
Convention; this has been a matter of deliberate policy, the
aim being to leave the notion free from technical rules
which can produce rigidity and inconsistencies as between
different legal systems."
A. E. Anton in his article on "THE HAGUE CONVENTION ON
INTERNATIONAL CHILD ABDUCTION" says: WMH FN 01
"The Convention applies only to a child who was habitually
resident in a Contracting State immediately before any
breach of custody or access rights. The choice of the
criterion of the habitual residence of the child was
scarcely contested. It was clearly desirable to select a
single criterion. That of the child's nationality seemed
inappropriate because the State with the primary concern to
protect a child against abduction is that of the place where
he or she usually lives. In some systems the criterion of
domicile would point to that place, but in others domicile
has a technical character which was thought to make its
choice inappropriate." The International and Comparative
Law Quarterly, Vol. 30, pg 537 at pg 544.
In C. v. S. (A Minor) (Abduction) (1990) 2 FLR 442
House of Lords, Lord Brandon said:
"if he or she leaves ... with a settled intention not to
return ... but to take up residence in country B instead,
such a person cannot, however, become habitually resident in
a single day. An appreciable period of time and a settled
intention will be necessary to enable him or her to become
so."
A period of under 6 months was determined to be sufficient to
establish habitual residence for the purposes of the Convention
in that matter.
As a general observation I note the comments of Lord Denning MR
in Re P.G. (An Infant) (1965) 1 Ch 568 at p.585 as reported in Re
S. (A Minor) (1991) 2 FLR 1 where he says:
"But then we are faced with the question, what is the
ordinary residence of a child of tender years who cannot
decide for himself where to live, let us say under the age
of 16? So long as the father and the mother are living
together in the matrimonial home, the child's ordinary
residence is the home and it is still his ordinary
residence, even while he is away at boarding school. It is
his base, from whence he goes out and to which he returns.
When father and mother are at variance and living separate
and apart and, by arrangement, the child resides in the
house of one of them -- then that home is his ordinary
residence, even though the other parent has access and the
child goes to see him from time to time. I do not see that
a child's ordinary residence, so found, can be changed by
kidnapping him and taking him from his home, even if one of
his parents is the kidnapper. WMHFN 02Quite generally, I do
not think the child's ordinary residence can be changed by
one parent without the consent of the other."
The comments of Lord Scarman in R v Barnet London Borough
Council; Ex Parte Nilish Shah (1983) 2 AC 309 at 343 are often
referred to on the questions of ordinary residence. He there
said:
"Unless, therefore, it can be shown that the statutory
framework or the legal context in which the words are used
requires a different meaning, I unhesitatingly subscribe to
the view that 'ordinary resident' refers to a man's abode in
a particular place or country which he has adopted
voluntarily and for settled purposes as part of the regular
order of his life for the time being, whether of short or
long duration."
And it is worth mentioning, I think, that for the purposes of the
Family Law Act 1975 (Section 4) "ordinarily resident" is defined
as including "habitually resident".
In Brandon and Brandon (1990) FLC 92-153 at pg 78,072 Bulley J
determined that the question of what constituted a child's
habitual residence was a matter of fact and degree in each case.
And see G and O (1990) FLC 92-103 where Barry J adopted a similar
approach. Each of these cases concerned the Convention.
Questions of lawfulness of purpose and continuity as to a
residence, do not arise in this matter. Nor is there any
suggestion that New Zealand was not the place of residence of the
child immediately before her retention. Mr Moss points to
Articles 3 and 4 of the Convention and says that the time at
which a determination must be made as to where Jasmine was
habitually resident was the time immediately before her
retention. Mr Hogan's argument as to habitual residence is
dependent upon a consideration of a much longer period, a period
which includes a time before the child took up residence in New
Zealand. I accept the argument of Mr Moss. The commentators
agree that habitual residence as a criteria was chosen by the
member States so as to afford protection to children who are
ordinarily resident within the State. As the expression suggests
this is not a state of affairs which could be achieved in a day
and the expression, I think, accepts that there would be
continuity as to habitation. To include the period sought by the
father would seem unwarranted on the authorities and contrary to
the spirit and intention of the Convention. At the risk of
repeating myself, I say that at the time of Jasmine moving to the
mother in New Zealand in August 1991 there was no disagreement as
between the parents that she would thereafter live with her
mother in New Zealand and that New Zealand would thereafter be
her home. The father may have had hopes of convincing the mother
to agree to permit Jasmine to return to him in Australia on a
permanent basis but that was an unfulfilled desire on his part at
that time and nothing more. WMH FN 03
I did not understand Mr Hogan to argue that the mother, at the
time of Jasmine's retention, had no rights of custody arising
under the provisions of the New Zealand law. It was accepted for
the purposes of his argument that the mother had rights of
custody arising under the provisions of Guardianship of Infants
Act. The order of District Court of Henderson made 9th February
1993 would seem to be confirmatory of the exercise by the mother
of her rights of custody under that Act. It is also accepted
that for the purposes of the Convention it is the retaining by
the father of the child from the jurisdiction of the Court of New
Zealand rather than from the custody and care of the parent with
which Article 3(a) is concerned. Re H and another (minors)
(abduction: custody rights) (1991) 3 All ER pg 230.
Once it is determined that Jasmine was habitually resident in New
Zealand immediately prior to her retention, there being no issue
that the mother had a right of custody in the child under New
Zealand law nor that the child had been retained out of the
jurisdiction of the New Zealand courts then it is apparent that
pursuant to the terms of the Convention her retention by the
father in Australia was wrongful.
Mr Hogan then refers to and relies upon Regulation 16(3)(a), (b)
and (c). He does not disagree that the onus is upon him to
satisfy the court as to matters raised in that regulation.
Gsponer, C.J. v Director General, Dept of Community Services,
Victoria (1993) FLC 92-001, Police Commissioner of South
Australia v Temple (1993) FLC 92-365 at pg 79,827. Regulation
16(3)(a) says:
"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;"
This provision raises the question of whether the mother
acquiesced in the retention by the father of the child in
Australia as and from 28th January 1993. The mother deposes to
the following matters:
"40. On 28 January 1993, when Jasmine was to return to
New Zealand, the Respondent informed me he would be
keeping her and if I endeavoured to come to Adelaide
to see her and discuss matters he would not let me
have access to her and would place a 'restraining
order' on me.
41. On the 29th January 1993 I spoke with the Respondent
again. He advised me that Jasmine would be staying
in Adelaide with him and that he might let her come
home for a visit in June 1993. However he did tell
me that before he would allow her to travel to New
Zealand I would have to sign an agreement granting
him custody and undertaking to return her to
Adelaide. I was shocked by his attitude and did not
agree to this. The same day I consulted my
solicitor and commenced these proceedings pursuant
to the Hague Convention. Those proceedings were
filed on 3rd February 1993.
42. On the 5th February 1993 my solicitor received a
letter from the Respondent's solicitor, annexed and
marked "C", which sets out the Respondent's
proposals for Jasmine's care. Annexed and marked
"D" is my solicitor's letter dated 9th February 1993
in response to those proposals, stating that they
were not accepted."
See affidavit of mother filed 14th May 1993.
The solicitors letter Annexure "C" referred to in paragraph 42 of
the affidavit is a letter proposing that Jasmine be permitted to
remain with the father until at least the 3rd June 1993 and that
she see a counsellor as to her attitude and wishes. The mother's
reply Annexure "D" leaves no doubt as to her rejection of this
proposal. The letter includes the following statements:
"Ms Noda considers that your client's arbitrary decision to
retain Jasmine is not in her best interests at this point in
time. She has made that clear to your client over the past
few weeks when he has requested that Jasmine remain with him
for this year.
At no stage has Mrs Noda consented to this arrangement.
Ms Noda requires the return of Jasmine to her care in New
Zealand as soon as possible to prevent any further
disruption to her schooling."
There seems little room on these facts to argue that the mother
agreed to the retention by the father of the child on 28th
January 1993. See Temple's case (supra) at pg 79,828.
Regulation 16(3)(b) says:
"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;"
The father says that he and Jasmine enjoy a good relationship and
that Jasmine enjoys an equally good relationship with his defacto
wife Ingrid and the children of that relationship, Bess aged 3
years and Maude aged 13 months. The father says that he lives on
a property owned by his parents and that Jasmine has returned to
the Willunga Primary School, the school that she attended between
May and August 1991. The father is emphatic that Jasmine would
not only not want to return to her mother in New Zealand but that
she wished to live with him in the family unit at Willunga. He
says that Jasmine complains of having had an unsettled and
unhappy life with the mother and that she complains of the mother
having hit her. He said that the child complained of her mother
having formed a new relationship and of her being pregnant again.
As can be seen by paragraph 5 of the order of 24th February 1993
the parties consented to a report from a Welfare Officer. The
Welfare Officer furnished a report on 18th March 1993. Under
"Summary and Conclusions" the Welfare Officer says:
"Jasmine repeatedly said she wants to stay with her father.
She perceives her life with him and his new family, as well
as at school and with her friends here, as more enjoyable
and stimulating than with her mother.
Although not wishing to live with her, Jasmine made it
clear, she does love her mother and wants to visit her.
According to Jasmine, her mother, presently, is far too busy
with her own life to give her the time and attention she
needs. Jasmine also resents the imminent arrival of her
mother's new baby, seeing this event as further diminishing
her availability. She also sees herself as not getting on
with her mother's partner as well as she would like to.
Jasmine is aware of her father's attachment to her. He has
also expressed to her his doubts about her future access to
him, should she decide to return to her mother.
Irrespective of this, Jasmine insists, her own need to be
with her father is the deciding factor for her wish to stay
with him.
In an emotional display, Mr Bennett, in his interview, made
his feelings for his daughter quite clear. It is suspected
that his own need to have Jasmine with him could have
contributed toward her decision to stay with him. The
degree to which she might have been influenced is difficult
to estimate. Awareness of possible influences could, but
need not, necessarily, cast doubts on the validity of
Jasmine's wishes."
Significantly, the Welfare Officer draws attention to the
limitations of the report because of the absence of the mother
and for the same reason, expresses uncertainty as to the weight
which should attach to the wishes of the child.
The mother denies that Jasmine has been hit with the frequency
alleged by the child. The mother says that she has smacked
Jasmine only as a means of punishment and then only after other
forms of chastisement had failed. The mother specifically
answers two allegations which the child makes of having been
struck with a skipping rope and an electric cord. The mother
points to a good relationship having developed between the child
and the mother's partner, Eruera and of his having now moved in
to live with her. The mother doesn't doubt the closeness of the
relationship of Jasmine and her brother, Steeley. Jasmine, so
far as the mother is concerned, was looking forward to coming
home to the birth of the new child and the start of the new
school year. On request from the father the mother says she
asked Jasmine in about October 1992 if she wanted to stay with
the father and that Jasmine said that she did not and desired to
return to the mother at the conclusion of access.
The onus is upon the father to establish that there is a grave
risk that the return of the child will expose her to physical
harm or to psychological harm or otherwise place the child in an
intolerable situation. It is only necessary for the father to
satisfy the court as to any one of these provisions. Director
General of Family and Community Services v Davis (1990) FLC
92-182, Gsponer, C.J. v. Director General, Dept of Community
Services, Victoria (1989) FLC 92-001.
"Grave risk" in this context is not to bring with it
considerations of what may be in the best interests of the child.
Those are matters to be determined by the District court at
Henderson, New Zealand. See Temple (supra) pg 79,829.
The child complains of having suffered violence at the hands of
her mother. The mother concedes that she has had occasion to hit
the child but only as a means of chastisement. Neither the
evidence as to the child's allegations nor the admissions of the
mother suggest that there is a grave risk of the child being
exposed to physical harm at the hands of the mother.
As to the allegation the there is a grave risk that the child, if
returned would be psychologically harmed, I must say that there
would seem to be no evidence, not evidence that is by a qualified
person as to this allegation. The attitude of Jasmine as
evidenced in the Welfare Officer's report suggests that she is
going to be unhappy at the prospect of return. There is nothing,
however, that I can see nor as to which I was directed which
could constitute evidence of a grave risk of her suffering
psychological harm by returning to New Zealand.
For the purposes of determining what constitutes to "an
intolerable situation" as provided for in Regulation 16(3)(b)
with respect I adopt the comments of Murray J in Temple's case,
that is, that intolerable means "unendurable" or "insufferable".
It can be expected that Jasmine will have some difficulty
settling in with the mother. The mother's circumstances are now
changed in that she has recently had a new child and the child's
father is now living with her in a defacto relationship. But the
mother earnestly seeks the return of Jasmine and her defacto
previously enjoyed a good relationship with the child.
Importantly too, I think, is that the mother concedes that the
expressions of attitude presently attributable to Jasmine are
made at a time when Jasmine is under the influence of the father.
Whether Jasmine presently is saying no more than what her father
would wish to hear cannot for present purposes be determined
although what she is saying is not suggestive that she cannot
make the necessary readjustment upon her return to the mother.
The evidence of Jasmine's progress at the Henderson Primary
School, New Zealand shows that she is of an outgoing nature and
an asset in her class. Her report indicates that she was an
attentive student who was achieving satisfactory progress, both
academically and socially. I would not expect Jasmine to
experience any undue difficulty in returning to her old school.
The final argument for the father is based on Regulation
16(3)(c), namely, that:
"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;"
The father argues that the child is entitled to her opinion. I
understand him to be saying that his care of the child from April
1991 to August 1991 and subsequently has allowed the child to
draw a comparison between life with her mother in New Zealand and
life with him in Australia. He accepts the limitations implicit
in the Welfare Officer's report but says that it contains the
reasoned decision of the child. He relies upon the passage
(bottom of page 4):
"When asked whether she could give any reasons for not
wanting to return to her mother, Jasmine said: "Because ...
I do love my Mum, but I want to stay with my Dad. Mum hits
me quite a lot, and I don't want her to have another baby
and another relationship ... she's already got enough"
(babies)."
The mother also refers to the Welfare Officer's report: the
passage at page 4:
"Jasmine said she would feel "heaps sad", if she were sent
back to New Zealand. The worst thing about going back was
that " ... Mum would never let me go back and see my Dad ...
I might not see Dad again ... that's what I know ... I think
she would do". On further discussion, Jasmine said her
father had once suggested that "may-be Mum won't let me see
him again". Here she hastily added that her father "doesn't
mind if I say I want to go back - he hasn't tried to
convince me to stay here."
The mother deposes to her disappointment at the father having
discussed these matters with Jasmine and of his having put into
the child's head that as likely as not she (the mother) would
stop all future access.
The mother also deposes to having had a conversation with Jasmine
(at the request of the father) some 2 months before she was due
to travel to Australia when she asked Jasmine if she would like
to stay or remain with the father. The mother says the child
indicated quite firmly that she did not want to stay and that she
wanted to come home after the holidays. The mother says she
passed that information onto the father.
Mr Moss says that there is a total paucity of evidence as to what
may constitute the degree of maturity of the child. He refers to
Temple's case (supra) where Murray J says at page 79,830:
"On the question of the child's wishes, I take note of the
dicta of Bracewell J. in Re R (A Minor) (Abduction) November
1991 Family Law 475. There the learned judge said that
where a child had attained an age and degree of maturity at
which it was appropriate to take account of his or her
views, and where he or she objected to being returned to a
Member State, the Court has the discretion conferred by Art.
13 of the Convention to refuse to order the child's return
to that State, the burden of proof being on the defendant to
establish the exception. She went on to say, however, that
there must be more than a mere preference expressed by the
child before the Court would consider exercising its
discretion. The word "object" imported a strength of
feeling which went far beyond the usual ascertainment of the
wishes of the child in a custody dispute."
With respect I agree with these comments. Neither the age of
Jasmine nor the evidence as to her attitude, such as it is,
persuades me that I should form an opinion as to the seriousness
of her wishes.
Regulation 16(1) provides that subject to Regulation 16(3) a
court shall order the return of a child pursuant to an
application made for that purpose. As I have said I remain
unsatisfied as to the matters which the father has raised in
Regulation 16.
It follows that I Must order the return of Jasmine to New Zealand
forthwith.
--------------------
1. Available on Hilton House BBS as ANTON.ART
2. See also cases decided under the Uniform Child Custody
Jurisdiction Act, 9 ULA 3(a)(1) "Home State" and in
particular Curtis v Curtis (Miss. 1990) 574 So.2d 24, 29-30.
3. See 9 Uniform Laws Annotated (ULA) 2(5) for a definition of
"Home State" which is similar to the term "Habitual
Residence". See also 9 ULA 3(a)(1) and the COMMENT thereto.
But see also Dunlap by Wells v Buchanan (1984) 741 F.2d 165,
a diversity case wherein it was held that, absent an order of
the court, the domicile of a child is that of its father.