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. -------------------- 1. This date appears to be in error and should be 1994.