BSM success in recent Hague Convention case

20 June 2022 in Criminal Law, Family and Divorce Law

Australia has obligations under the International Convention on the Civil Aspects of International Child Abduction (commonly referred to as The Hague Convention), pursuant to Family Law (Child Abduction Convention) Regulations 1986 (Cth).

The criminal lawyers at Brander Smith McKnight recently won a case which involved Hague Convention principals.

Summary of Judgement Facts

1. The Secretary, Department of Communities and Justice (Applicant) made an application for the return of the child, Stella Healy, who resides in Australia with her mother, Christine Rogers (Respondent), to the United Kingdom. This was made on behalf of the child’s father, who resides in the UK and pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
2. The Regulations are made for the purpose of enabling Australia to perform its obligations under The Hague Convention.
3. The Applicant asserted that the child had been wrongfully removed from the UK pursuant to the Regulations on the basis that: a) the Respondent had not established that the child had settled in their new environment in Australia; b) the Respondent’s child is under 16; c) the Respondent’s child was a Habitual Resident of the UK at the time of their removal; d) the Father has rights to custody in relation to the child, which he was exercising immediately prior to the child’s removal or would have done so if the child had not been removed; e) the Father’s custody rights were being wrongfully infringed by the removal of the child.
4. The Respondent contended that: a) the removal of the child was not wrongful due to the failure to satisfy relevant jurisdictional facts; b) the Applicant’s application was filed well over a year from the date of the child’s removal; and c) the child was well settled in their new environment.

Legal Issues

In the proceedings, the Court needed to determine the following issues:

• “at the time of the child’s removal to Australia, was the father actually exercising rights of custody or would have exercised those rights if the child had not been so removed;
• if the removal was wrongful, as the application was filed more than one year after the day on which the child was removed, has the child settled in her new environment.”

The Decision and Reasoning

The Issue of Exercise of Custody Rights

The Court found that “the father was not actually exercising rights of custody in relation to the child, nor would he have done so, if the child had not been removed“.

This was because: a) At the time of the child’s removal, the Father had not seen the child for over 3 years nor made sufficient efforts to arrange for contact with the child during this period; b) The Father’s previous objection to the length of the child’s holiday with the Respondent in Australia in 2015, whilst at that time being an exercise of his rights of custody, was not adequate evidence to infer that he would have exercised those rights again if not for the child’s removal. This was because he had failed to make sufficient effort to arrange for contact with the child during the 3 years prior to the child’s removal; c) The Father’s attendance at court proceedings with respect to the paternal grandmother’s application to spend time with the child, and his expression of an intention to apply for orders for contact with the child on this occasion, did not satisfy the court that he would have actually exercised his rights to custody if not for the child’s removal. Indeed, his inaction over the previous 3 years indicated that he would more likely have continued to fail to take any steps to exercise his rights of custody. d) Finally, the Father made no attempts to contact the Respondent subsequent to the child’s departure.

This finding as to the issue of exercise of custody rights was sufficient to conclude that the Application was unsuccessful.  However, the Court also turned to consider the second issue for determination, in the event that it was incorrect on the first issue.

The Issue of a Strict Time Limit for Application for Return of the Child

The Court found that the Application for the return of the child was filed more than 1 year after the day on which the child was removed.  The application was filed in November 2021 and the child’s removal from the UK took in October 2019.  The Court confirmed that there is a strict time limit that cannot be extended even in circumstances where there has been alleged concealment on the part of the Respondent that has prevented the application from being brought within time. The Court further found that the child was settled in her new environment.

The Court found that the child was well settled in Australia, accepting the Respondent’s evidence that the “child lives a very happy public life surrounded by her family and friends in a supportive, stable and loving environment.  Her psychological and emotional needs are met by the respondent, extended family and friends.  She is nurtured, nourished, educated, housed and cared for in Sydney and is settled in her environment”.

The Court rejected the contention that the Respondent had sought to evade detection and conceal herself and the child from the relevant authorities.  The Court distinguished the case authorities relating to concealment and evasion relied on by the Applicant from the current case because the Respondent did not engage in the evasive and concealing activities of the kind relevant to the Applicant’s authorities.

The Court rejected the Applicant’s assertion that the Respondent’s child was unsettled due to her movement between Australian and New Zealand.  The Respondent and child lived in New Zealand for a continuous period due to international travel restrictions caused by the Covid-19 pandemic.  The Respondent and the child thereafter returned to Sydney in December 2020 where they have continued to reside.  They have remained in the same premises since early 2021 and the child has attended the same school since early 2021.

Final Decision of the Court.

The Court dismissed the application for the return of the child.  This was on the basis of both the issue of the exercise of custody rights and the fact that the application was filed more than 1 year after the day on which the child was removed and that the child was settled in her new environment.