HC/E/AU 1105
AUSTRALIA
Family Court of Australia
First Instance
SPAIN
AUSTRALIA
22 March 2010
Final
Objections of the Child to a Return - Art. 13(2) | Rights of Access - Art. 21 | Non-Convention Issues
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Bennett J. noted that there was a distinction between the concept of children's wishes and children's views. "Views" would capture a child's perceptions, inclinations and feelings but not necessarily involve an aspiration or conclusion. "Wishes" were the result of perceptions, inclinations and feelings coalescing into a specific desire or ambition in the child's mind.
The requirement in the Family Law Act 1975 to focus on the child's views, as opposed to wishes, meant that regard may be had to the children's perceptions and inclinations without requiring the family consultant or the independent children's lawyer to make enquiries or elicit the child's ultimate preference or wish.
The State Central Authority sought orders to ensure that the father's rights to contact and communication could take place in line with the terms of the agreement entered into by the parents. The mother submitted that that for the next three years the father should spend time with the children in Australia, for up to 60 continuous days per year, but initially this should be supervised.
Bennett J. reviewed the statutory framework he had set out in detail in the pre-trial hearing: State Central Authority & Quang [2009] FamCA 1038 [INCADAT Reference: HC/E/AU 1106]. He drew attention to the Hague Conference's good practice guide: Transfrontier Contact Concerning Children: General Principles and Guide to Good Practice, Hague Conference on Private International Law (2008) and the importance of children maintaining personal relationships and having contact with both of their parents unless it was unsafe or otherwise contrary to their interests to do so.
He noted from the Guidelines the importance of proportionality in setting restrictions on trans-frontier access and that these should be placed only insofar as they protect the best interests of the child.
Bennett J. noted that the major issue identified by the court psychologist centred on the lack of trust between the parents and its impact on their capacity to develop a parenting arrangement for the children that involved the children travelling to Spain to spend time with the father. A further issue was the amount of time the children required in order to develop a real relationship with their father, given their ages and the limited contact they had had with him.
Bennett J. found that both parents were responsible for the present predicament: in December 2006 the father had extracted the maximum concessions that the mother was prepared to give and the mother had been prepared to agree to anything in order to leave.
The older child was 16 months old when she left Spain. She would only remember, and the younger child had only ever known, the mother as their primary carer. Each child was primarily attached to the mother and so extended time with the father in Spain would be a very significant change for them.
Consequently, the judge set down a model for graduated staged time with the father, whereby the children would spend time with the father initially in the company of their mother, and eventually without her, in Australia for two periods of two to four weeks for at least three to four time periods.
If the father saw the children on two separate time periods for two consecutive years, the children could then travel to Spain in two years' time. If such steps were taken, the level of security and trust between the parents would be at an adequate level to support the children.
1996 Hague Convention:
Bennett J. noted that the case illustrated the attractiveness for both Spain and Australia of the coming into operation of the 1996 Convention to augment the operation of the access provisions in the 1980 Convention.
Author of the summary: Peter McEleavy
Article 21 has been subjected to varying interpretations. Contracting States favouring a literal interpretation have ruled that the provision does not establish a basis of jurisdiction for courts to intervene in access matters and is focussed on procedural assistance from the relevant Central Authority. Other Contracting States have allowed proceedings to be brought on the basis of Article 21 to give effect to existing access rights or even to create new access rights.
A literal interpretation of the provision has found favour in:
Austria
S. v. S., 25 May 1998, transcript (official translation), Regional civil court at Graz, [INCADAT cite: HC/E/AT 245];
Germany
2 UF 286/97, Oberlandesgericht Bamberg, [INCADAT cite: HC/E/DE 488];
United States of America
Bromley v. Bromley, 30 F. Supp. 2d 857, 860-61 (E.D. Pa. 1998). [INCADAT cite: HC/E/USf 223];
Teijeiro Fernandez v. Yeager, 121 F. Supp. 2d 1118, 1125 (W.D. Mich. 2000);
Janzik v. Schand, 22 November 2000, United States District Court for the Northern District of Illinois, Eastern Division, [INCADAT cite: HC/E/USf 463];
Wiggill v. Janicki, 262 F. Supp. 2d 687, 689 (S.D.W. Va. 2003);
Yi Ly v. Heu, 296 F. Supp. 2d 1009, 1011 (D. Minn. 2003);
In re Application of Adams ex. rel. Naik v. Naik, 363 F. Supp. 2d 1025, 1030 (N.D. Ill. 2005);
Wiezel v. Wiezel-Tyrnauer, 388 F. Supp. 2d 206 (S.D.N.Y. 2005), [INCADAT cite: HC/E/USf 828];
Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006), [INCADAT cite: HC/E/USf 827].
In Cantor, the only US appellate decision on Article 21, there was a dissenting judgment which found that the US implementing act did provide a jurisdictional basis for federal courts to hear an application with regard to an existing access right.
United Kingdom - England & Wales
In Re G. (A Minor) (Enforcement of Access Abroad) [1993] Fam 216 [INCADAT cite: HC/E/UKs 110].
More recently however the English Court of Appeal has suggested that it might be prepared to consider a more permissive interpretation:
Hunter v. Murrow [2005] [2005] 2 F.L.R. 1119, [INCADAT cite: HC/E/UKe 809].
Baroness Hale has recommended the elaboration of a procedure whereby the facilitation of rights of access in the United Kingdom under Article 21 could be contemplated at the same time as the return of the child under Article 12:
Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51[INCADAT cite: HC/E/UKe 880].
Switzerland
Arrondissement judiciaire I Courterlary-Moutier-La Neuveville (Suisse) 11 October 1999, N° C 99 4313 [INCADAT cite: HC/E/CH 454].
A more permissive interpretation of Article 21 has indeed been adopted elsewhere, see:
United Kingdom - Scotland
Donofrio v. Burrell, 2000 S.L.T. 1051 [INCADAT cite: HC/E/UKs 349].
Wider still is the interpretation adopted in New Zealand, see:
Gumbrell v. Jones [2001] NZFLR 593 [INCADAT cite: HC/E/NZ 446].
Australia
The position in Australia has evolved in the light of statutory reforms.
Initially a State Central Authority could only apply for an order that was ‘necessary or appropriate to organise or secure the effective exercise of rights of access to a child in Australia', see:
Director-General, Department of Families Youth & Community Care v. Reissner [1999] FamCA 1238, (1999) 25 Fam LR 330, [INCADAT cite: HC/E/AU 278].
Subsequently it acquired the power to initiate proceedings to establish access rights:
State Central Authority & Peddar [2008] FamCA 519, [INCADAT cite: HC/E/AU 1107];
State Central Authority & Quang [2009] FamCA 1038, [INCADAT cite: HC/E/AU 1106].