FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA AT MELBOURNE
No. DG.3097 of 1993
BETWEEN:
CRAIG DOUGLAS McOWAN (Husband)
and
JANE CAROLINE McOWAN (Wife)
CORAM: THE HONOURABLE JUSTICE KAY
DATE OF HEARING: 1 DECEMBER 1993
DATE OF JUDGMENT: 8 DECEMBER 1993
REASONS FOR JUDGMENT
APPEARANCES:
Mr Bartfeld of Counsel instructed by MacPberson & KeIley, DX 174
Melbourne, appeared on behalf of the Wife.
Miss Stoikovska of Counsel instructed by Roberts and Roberts DX
93103, Mornington, appeared on behalf of the Husband.
Mr Griffiths Q.C., Solicitor General, appeared on behalf of the
Attorney-General for the Commonwealth.
Mr Staker appeared for the Commonwealth Central Authority.
Ms Sahinidis appeared for the State Central Authority, Health and
Community Services.
Jane and Craig McOwan are husband and wife. They married on 21
April 1990 and separated on 18 June 1993. They have two children
Scott Douglas McOwan born 10 December 1990 and Andrew Paul McOwan
born 15 April 1992.
The husband is a 33 year old Australian and the wife is a 27 year
old English woman. She met the husband when she was visiting
Australia in 1989.
On 18 June 1993 the wife returned to England with the children
ostensively for a holiday. She went to stay with her parents.
Within one week of her arrival in England she had decided she
wished to live permanently in England and not return to
Australia. She alleged that the marriage was a violent one and
that she had been seriously assaulted on a number of occasions.
She alleged that the husband inadequately supported herself and
the children, and that he was violent towards the children. She
further alleged that the husband over indulged in alcohol on a
regular basis.
On 2 July 1993 the husband filed a form 7 application in the
Family Court of Australia at Dandenong seeking an order for sole
custody and guardianship of the children, an order that the wife
be directed to return the children to the husband's custody, and
an order that a warrant issue to effect the return of the
children to the husband. The matter came on ex parte before
Justice Rourke on 6 July 1993 who adjourned its hearing until 23
July 1993 and directed that there be service of the documents
upon the wife by fax.
Notification to the wife of the existence of the Australian
proceedings led to a firm of solicitors in England faxing the
Court on 13 July 1993, on behalf of the wife, asking for a four
month adjournment of the application to enable the parties to
give consideration to a reconciliation. It also led to the wife
bringing an application before the Family Division of the High
Court of Justice in England, seeking a residence order and a
prohibited steps order in respect of each of the children.
She asked that the Court order that the children reside with her
in Surrey, and that the respondent father be prohibited from
removing the children from her care or the care of any person in
whom she had temporarily placed the children, including both of
her parents.
On 22 July 1993 Judge Callman sitting as a Judge of the High
Court of Justice adjourned the further hearing of the wife's
application of 2 August 1993, and made ex parte orders for the
children to reside with the wife and prohibiting the husband from
removing the children from the jurisdiction of the High Court of
Justice in England.
On 22 July 1993 the English solicitors faxed the Family Court of
Australia at Dandenong, notifying the Court that the Legal Aid
Commission in Australia had refused their cLient legal aid, and
as she had no money she could not afford to be represented at the
Australian proceedings. Having just obtained ex parte orders in
England, it was not without a degree of irony that they said in
their letter:
"If the matter proceeds in her absence in the
present circumstances, we would have thought it
would amount to a breach of the rules of natural
justice, and in such circumstances to protect our
client's position for the time being, have
obtained from the High Court in England a
Residence Order, and a Prohibited Steps Order, a
copy of which is enclosed herewith."
The matter came on before me at Dandenong on 23 July 1993. The
husband indicated that he intended to make an application in
England, pursuant to the provisions of the Hague Convention on
the Civil Aspects of Child Abduction, seeking the pre-emptory
return of the children to Australia. In those circumstances I
further adjourned his custody application to 30 August l993, and
ordered:
"In the event that the children are returned to
Australia as a result of the husband's
foreshadowed application for the return of the
children to Australia in accordance with the Hague
Convention on the Civil Aspects of International
Child Abduction prior to that time, then there be
liberty to apply to have the matter heard as soon
as the children are so returned."
The jurisdictional race continued when on 2 August 1993, Miss E.
Platt Q.C. (sitting as a Deputy High Court Vacation Judge) in the
High Court of Justice granted orders that the children should live
with the wife and that the husband should be prohibited without
the consent of the Court, from removing the children from the
jurisdiction of the Court. Liberty to apply to vary or discharge
the order on 48 hours notice, was also granted
On the same date the husband issued an originating summons in the
High Court of Justice Family Division seeking an order that the
wife return the children to the jurisdiction of Victoria,
Australia, forthwith. That matter came on for bearing on 20 August
1993 before Sir Robert Johnson J., sitting as a High Court
Vacation Judge. After a contested hearing and after obtaining
undertakings from the husband that he would:
(1) make available to the wife and to the children the sole use
of the property situated at 81 Norseman Road, Coronet Bay,
Victoria Australia
(2) not to visit or enter the said property without the prior
leave of the wife
(3) not to enforce the Australian custody order in respect of the
children until the matter was brought back inter-partes before the
Australian Family Court
His Honour ordered:
(1) That the defendant do return with the said minors to
Australia forthwith
(2) Undertakings (1) and (2) given this day to until directions
ate given in this matter by the Australian Family Court
(3) Liberty to either party to apply as to the implementation of
this order
(4) That there be no order as to costs, save that the costs of
both parties to be taxed in accordance with the Legal Aid Act 1988
The wife and children returned to Australia on 25 August 1993,
five days before the date fixed for hearing by me in the
proceedings that were before me on 23 July.
According to the wife she was met at the airport by the husband
and informed by him that he would not be keeping his undertaking,
in respect of her being able to live at the Coronet Bay property.
On 27 August l993 the husband filed a Form 15A. Notice of
Discontinuance of the proceedings in she Dandenong Registry.
According to the wife she attended the Court on the 20th (sic) day
of August 1993, when it was confirmed by the Court that the
proceedings had been withdrawn. In September she consulted
solicitors in Dandenong and lodged an application for assistance
from the Legal Aid Commission, to enable her to obtain orders
from the Court which would see her and the children returning to
England. She says her legal aid application was refused.
On 10 November 1993 Johnson J, wrote from the Royal Courts of
Justice to the Chief Justice of the Family Court of Australia
saying that he had had a Convention case, and as there was really
no answer to the application he had made an order accordingly. He
went on to say:
"I have now bad a rather sad letter from the
maternal grandmother and I enclose a copy of her
two letters, and my brief acknowledgment, together
with copy of my order. I wonder if you could pass
this on to someone who might be able to give the
matter some attention. These Hague Convention cases
do sometimes seem to produce harsh results, but the
policy is clear. Obviously I am not suggesting
there is anything amiss in the way the matter is
being handled in Australia; my intervention is
simply as a matter of humanity, and to show that we
do care."
The letters referred to were apparently written by the maternal
grandmother. She told a distressing story of her daughter and her
grandchildren having to return to Australia without funds and
without accommodation, there to be exposed to a violent and
drunken husband. She felt frustrated that her daughter's
applications for legal aid in Australia were being continually
refused.
At the direction of the Chief Justice a summons was issued by the
Registrar of the Family Court of Australia at Dandenong in the
following form:
"IN THE MATTER OF
CRAIG DOUGLAS McCOWAN
and
JANE CAROINE McCOWAN
and
THE CENTRAL AUTHORITY
HEALTH & COMMUNITY SERVICES VICTORIA
IN THE MATTER OF THE HAGUE CONVENTION
Take Notice that the Court will sit in its welfare
jurisdiction at Melbourne, 570 Bourke Street,
Melbourne, on Tuesday 30 November l993 at 10.00
a.m. for the purpose of enquiring whether proper
arrangements have been made for the welfare of the
children: SCOTT DOUGLAS McGOWAN and ANDREW PAUL
McGOWAN.
You and your legal advisers are required to attend
at the Family Court at Melbourne on the said day
for the purpose of this enquiry."
The summons was addressed to the former solicitors for the
husband, to the present solicitors for the wife, and to Health and
Community Services Victoria, who act as the State Central
Authority within the State of Victoria, under the provisions of
the Hague Convention and the Family Law (Child Abduction
Convention) Regulations.
At the request of the Solicitor-General for the Commonwealth of
Australia the hearing was re-scheduled to take place on 1 December
1993. On 30 November 1993 the wife issued an application on a Form
8 naming the husband as the respondent and seeking orders that the
patties have joint guardianship of the children, that she have
sole custody of the children, and that she be granted leave to
take the children from Australia to reside in the United Kingdom.
She supported her application with an affidavit setting out the
history of the matter.
When the matter was called on for hearing before me, Counsel
announced appearances for the wife, for the husband, the
Attorney-General of the Commonwealth of Australia, for the
Commonwealth Central Authority and for the State Central
Authority. Counsel for the State Central Authority sought leave to
withdraw expressing the view that her client's interests would be
appropriately catered for by submissions that were to be put
forward on behalf of the Attorney-General and the Commonwealth
Central Authority. Counsel for the husband and wife advised that
the parties thought they would be able to resolve the matter
between themselves and indicated that during the day they would be
seeking consent orders.
Indeed eventually the husband and the wife agreed to an
adjournment of the wife's application to 3 March 1994 and for an
order that the husband have alternate weekend access to the
children, and that otherwise the parties attend confidential
counseling pursuant to the provisions of Section 62(1) of the
Family Law Act. It was thought probable that the parties would
reconcile, but the issue of whether that reconciliation took place
in Australia or in England was something that the parties wished
to discuss in the meantime.
As I felt that this case raised several very important issues I
invited the Solicitor General and Counsel for the Central
Authority to address me in respect of the procedure that had been
adopted to bring the parties to the Court in the absence of the
inter partes application. Given that events have overtaken
proceedings, and that the matter is now regularly before the
Court, I do not propose to rule on the submissions made, but
merely to set them out (hopefully doing justice to the
Solicitor-General and to Counsel for the Commonwealth Central
Authority), and to highlight the possible need for some urgent
legislative or regulatory attention.
The Hague Convention is now part of the law of some twenty six
countries. At the time of writing this judgment the Convention had
been ratified by the following countries:
Argentina Luxembourg
Australia Netherlands
Canada Norway
Denmark Portugal
France Spain
F.R. Germany Sweden
Greece Switzerland
Ireland United Kingdom
Israel United States
Additionally, several States had acceded to the Convention. Of
these the Convention was in force with Australia and Belize,
Burkina Faso, Ecuador, Hungary, Mexico, and New Zealand.
The Convention's objects set out in Article 1 of the Convention
are:
(a) to secure the prompt return of children wrongfully removed to
or detained in any Contracting State, and
(b) to ensure that rights of custody and of access under the law
of the Contracting State, are effectively respected in the other
Contracting States.
The Convention places a mandatory obligation upon a Contracting
State (subject to certain exceptions) to order the return of a
child to another Contacting State where the child is said to have
been wrongfully removed or retained within the meaning of the
Convention,
In Gsponer v Director General, Dept. Community Services, Vic
(1989) FLC 92-001 at 77,157 the Full Court cited with approval
Nourse LJ. who said in Re: A (A Minor) (Abduction) [I988] 1 Fam
L.R. (Eng.) 365, at page 368:
"These and other provisions of the Convention
demonstrate that its primary purpose is to provide
for the summary return to the country of their
habitual residence of children who are wrongfully
removed to or retained in another country in breach
of subsisting rights of custody or access. Except
in specified circumstances, the judicial and
administrative authorities in a country to or in
which the child is wrongfully removed or retained
cannot refuse to order the return of the child,
whether on grounds of choice of forum or on a
consideration of what is in the best interests of
the child or otherwise. "
The mandatory requirements for return apply to the first twelve
months after the wrongfull removal or retention. The exceptions to
the mandatory return are very limited (see Article 13), and have
been consistently narrowly interpreted by the Courts of the
nations who are signatories to the Convention.
It seems implicit in the Convention that the appropriate place for
disputes concerning the custody of children is their country of
habitual residence. The preamble to the Convention states that
signatories are:
"desiring to protect children internationally from
the harmful effects of their wrongful removal or
retention, and to establish procedures to ensure
their prompt return to the State of their habitual
residence..."
The Convention seems to pre-suppose that the State to which the
child is returned will be able to adequately protect the rights of
the child, and wi11 be able to advance the interest of children.
In Gsponer v Director General CSV (l989) FLC 92-001 at 77,160 the
Full Court said:
There is no reason why this Court should not assume
that once the child is so returned, the courts in
that country are not appropriately equipped to make
suitable arrangements for the child's welfare.
There is however no mechanism within the Convention that enables
the Contracting State which is ordering the return of the
children, to ensure that the State to where the children are
returned actually provides the mechanism to enable a proper
hearing to take place. This is not necessarily limited to the
provision of a forum for the hearing of the dispute. It may also
require the provision of appropriate legal representation.
Issues concerning the welfare of children are no less important in
a civilized legal system than issues concerning liberty of the
subJect. Provision of proper legal representation in matters
concerning liberty of the subject has been seen by the High Court
of Australia to be essential to the administration of justice
(Dietrich v R. (1993) 67 ALJR 1). The provision of appropriate
legal assistance in children's custody cases is equally as vital.
There does not appear to be any express provision in the Hague
Convention that would enable a Court to require the provision of
an undertaking such as was required in this case, before ordering
the return of a child. It is unfortunate that the habit of
requiring undertakings has become common place since the decision
of the Court of Appeal in C v. C. (Minor: Abduction: Rights of
Custody Abroad) (1989) 2 All ER 465. This matter has been recently
discussed by the FulL Court of the Family Court of Australia in
Police Commissioner of South Australia v Temple (Appeal SA 10 of
1993 2516/93 unreported) where the Court held that Regulation
15(3) of the Hague Abduction Convention Regulations did not
empower the Court to place conditions on the return of a child.
That ruling did not however preclude the Court from directing the
applicant father to give an undertaking to a court in England that
he would pay air fares and put the mother in funds to enable her
to live in England pending a hearing there.
If undertakings are to be given it is important to make sure they
can be enforced. There does not appear to be any existing
mechanism by which the Court that extracts the undertaking can
ensure that it is complied with. There does not appear to be any
legal basis upon which the Court of the State in which the child
has been returned can require compliance with an undertaking given
to another Court.
The submission on behalf of the Attorney-General for the
Commonwealth focused on the proprietary and efficacy of the
summons issued on behalf of the Court, requiring the attendance of
the parties:
. . . For the purpose of enquiring whether proper
arrangements have been made for the welfare of the
children."
It was submitted t;hat the Court could not exercise its welfare
jurisdiction in the absence of an application made to it, and that
it could not make an application to itself of its own motion.
Whilst the Court undoubtedly has a welfare power (see Section 64)
(query whether this may equate to be parens patriae power of the
Supreme Courts), the Court could only exercise Judicial power
which by its very definition requires a request from some other
party for relief (Huddart Parker v. Moorehead (l908) 8 CLR 330 at
357).
It was submitted that the Child Abduction Regulations confer no
special role or jurisdiction in the Family Court of Australia or
any other Australian Court in respect of a child removed from
Australia following his or her return under the Hague Convention.
As soon as the child was back in Australia the Child Abduction
Convention had served its purpose.
Custody and guardianship of the child was then to be determined by
the ordinary domestic law of Australia.
It was submitted that the jurisdiction in respect to custody and
welfare matters was to be exercised in accordance with the powers
given to the Family Court of Australia under Part 7 of the Family
Law Act. It was submitted that such jurisdiction could only be
exercised in "proceedings", and that such proceedings could only
be instituted if the jurisdictional basis contained in Section
63B. of the Act existed.
The term "proceedings" is defined in Section 4(1) of the Family
Law Act, to mean
"a proceeding in a Court whether between parties or
not, and includes cross proceedings or an
incidental proceeding in the course of, or in
connection with a proceeding. "
It was submitted that as all extant proceedings before the Court
had been discontinued prior to the issue of a Court summons, it
could not properly be said that the action taken by the Court was
"a proceeding in a Court ... in connection with a proceeding".
It was further submitted that the correct meaning of "proceedings"
was "the invocation of the jurisdiction of the Court by process
other than writ" or "any application by a suitor to a Court in its
civil jurisdiction for the intervention or action" (see Herbert
Berry Associates Ltd. v. IRC (1977) 1 WLR. 1437 and Cheny v.
Spooner (1929) 41 C.L.R. 532 at 538-539 per Starke J., re Healey:
Re Enquiry into Election in Australian Workers Union, South
Australian Branch (1992) 40 IR 110, 118; and Re Federated
Furnishing Trade Society of Australasia (1993) 113 ALR 137, 149
per Gray J.
Section 63C(1) of the family Law Act provides that:
Proceedings under this Act in relation to a child may be
instituted by
(a) either or both of the parents,
(b) the child, or
(c) any other person who has an interest in the welfare of the
child.
Without determining the issue as to whether those provisions are
words of limitation, it would seem desirable in the interests of
comity, that the Central Authorities of the various contracting
states were empowered to ensure that once a child is returned to
the jurisdiction of a contracting State by an order made under the
Hague Convention, that the contracting State would make available,
adequate resources to ensure that issues relating to the welfare
of the child were properly investigated. There seems little doubt
that the various States' Central Authorities in Australia could
probably be classified as "any other person who has an interest in
the welfare of the child" so as to give them status to bring an
application before the Family Court, touching and concerning
issues relating to the welfare of a child. (See in Be S. (l990) 13
Pam L.R. 660 at 667 per Simpson SJ).
The provisions of the Hague Convention appear however to limit the
role of the Central Authority to securing the safe return of the
child, and for making arrangements for organising or securing the
effective exercise of rights of access (see Article 7).
It would also seem appropriate that the Central Authority should
be required to enquire whether appropriate arrangements are made
for the welfare of the child once the child is returned in
accordance with a Hague Convention order.
Unless contracting States can feel reasonably assured that when
children are returned under the Hague Convention, their welfare
will be protected, there is a serious risk that contracting States
and Courts will become reluctant to order the return of children.
In FOXMAN (Case Number: M.A. 2898/92 Nov I992 available through
the reporting service of William Hilton, California) Justice Hayim
Porat of the Tel Aviv District Court said:
Responsibility for the child's welfare in the usual
meaning of the word is mainly the responsibility of
the legal court cases in the country to which the
child will be returned, and we must assume that
there, the court will do its utmost to minimize
harm to the child.
A more liberal view of the exceptions to mandatory return as set
out in Article 13 may become common. This outcome would seem
unfortunate given the successful operation of the Convention to
date.
As I already indicated I do not propose to finally determine the
issues raised by the Solicitor-General on behalf of the Attorney
General, but merely to draw attention to the dilemmas raised by
this case in the hope that appropriate legislative or
administrative measures may be taken to prevent its repetition. It
may be that the matter needs international attention. I request
that the Central Authority bring this judgment to the attention of
the Hague Secretariat.
CHILD ABDUCTION-CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD
ABDUCTION-CHILD RETURNED TO AUSTRALIA BY UK ORDER-CUSTODIAN MOTHER
UNABLE TO OBTAIN LEGAL AID TO SEEK ORDER ALLOWING HER RETURN TO
UK-WHETHER COURT CAN ENQUIRE INTO CHILD'S WELFARE OF ITS OWN
MOTION
PRACTICE AND PROCEDURE - JURISDICTION OF COURT TO COMMENCE
PROCEEDINGS OF ITS OWN MOTION