FAMILY LAW ACT 1975 In the Family Court of Australia at Melbourne No. M.2115 of 1987 In the Marriage of: Roger Alan Lambert and Linda Kerr Lambert and Peter Johnstone, Director General Department of Community Services, Victoria JUDGMENT OF THE HONOURABLE MR JUSTICE KAY 03 Apr 1987 APPEARANCES: Mrs. Winneke of Counsel Instructed by: Messers Cohen Kirby & Iser, Solicitors 90 Pall Mall Bendigo For Roger Alan Lambert Mr. G. Thomas of Counsel Instructed by the Victorian Government Solicitor Appearing for the Director-General Department of Community Services Victoria No Appearance for Linda Kerr Lambert This is an application brought pursuant to the Family Law (Child Abduction Convention) Regulations, which became law on 1 January 1987; the United Kingdom is now a signatory to the convention. The convention provides: The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, 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, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions-- CHAPTER I--SCOPE OF THE CONVENTION Article 1 The objects of the present Convention are-- (a) to secure the prompt return of children wrongfully removed to or retained in any contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Article 2 Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available. Article 3 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 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. 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 Family Law (Child Abduction Convention) Regulations were brought into force pursuant to Australia's obligations under that convention. Regulation 15, WMH-FN1 which is the operative order relevant to this case, provides for an application to the Court by the responsible Central Authority (in this case having regard to the fact it is a Victorian case, the Director-General of the Department of Community Services Victoria), for an order inter-alia for the return of the child to the applicant, being in this particular case the mother of the child. The Court is empowered under sub-Regulation 15(1) to order issue of a warrant for the apprehension or detention of a child. That was done ex parte last week and the child is currently being detained in a foster home under the auspices of the responsible Central Authority. Regulation 15(1) further provides for restraints on the removal of the child from the place specified in the order, the placing of the child in an appropriate institution, and ultimately the return of the child to the applicant. I am empowered under Regulation 15(2) to make such of those or other orders as I think fit. Regulation 16 WMH-FN2 provides that I must, subject to sub-regulation (3), order the return of the child, if the application is filea less than one year after the date of the removal of the child to Australia. I may refuse to make an order by operation of Regulation 16(3) if I am satisfied that any one of the four matters deposed to in that sub-regulation is applicable. Those matters are as follows: "(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;" As it will become obvious, that subsection has no application in this case. "(b) (and this is the subsection relied on by Counsel for the husband) 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; (c)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; or (d)the return of the child would not be permitted by the fundamenntal principles of Australia relating to the protection of human rights and fundamental freedoms." It again becomes obvious from the facts of this case that paragraphs (c) and (d) of sub-regulation 16(3) have nothing to do with this particular application. May I momentarily turn to the facts. To do so I really need a Scottish interpreter, having regard to the Scottish pleadings. I shall endeavour to understand them as best I can. Leigh Lambert, the child, the subject matter of these proceedings was born on 11 December 1983; he has just passed his third birthday. The father is an Australian by birth and his mother is Scottish. The marriage between the parties broke down, they separated in April 1986. At all times relevant since then, until 6 March 1987, the child was in the physical possession of his mother in Scotland. Proceedings were commenced by the applicant, Linda Kerr Lambert (also known as Smith) in the Court of Sessions in Scotland where she, as "the pursuer" sought a divorce from the husband as "defender" on the basis that the marriage had broken down irretrievably by reason of the husband's behaviour. She sought custody of the child and 20 Pounds (Stg.) per week in the name of aliment allowance. She sought what we would recognise as a non-molestation injunction, but I think for historical reasons it is worth quoting the language. The order sought was: "For interdict of the defender from molesting the pursuer by accosting her or putting her into a state of fear and alarm, by using foul, threatening and abusive language towards her, by threatening her with violence or by approaching her in public or by calling any house she occupies or to which she may remove in the future; and for interdict ad interim; together with a power of arrest." (which is something we would recognise under section ll4AA of the Family Law Act). She sought : "For interdict of the defender from removing or attempting to remcve the child of the marriage from the custody of the pursuer or removing him from the jurisdiction of the Court and for interdict ad interim." She sought costs. I will not bore any reader of this judgment with the facts alleged. The husband by answer denied that the wife should have custody and he sought an order for custody. In the alternative he sought an order for access and he claimed that the maintenance being sought was excessive. On 2 July 1986 an order was made by the Court of Session by Lord Allanbridge, granting an interm order that the husband not molest the wife or accost her or put her into a state of fear or alarm, etcetera, and restraining the husband from removing or attempting to remove the child from the custody of the wife or from the jurisdiction of the Court. On 12 September 1986 the husband wrote a letter in which he said, and I quote: "I have decided not to go for custody of my son Lee on the agreement that my wife will allow me fair and mutually convenient access. It is a decision I regret; however I find the thought of not seeing him on a regular basis at present unbearable and are willing to sacrifice going for custody for the chance to spend as much time with him as possible." On 1 October 1986 Lord Clyde, Lord Ordinary for the Court of Session of Scotland, by consent, granted interim custody of the child to the mother; interim access to the father from 10.00 a.m. Friday to 6.00 p.m. Saturday on one weekend and 10.00 a.m. Saturday to 6.00 p.m. Sunday on the alternate weekend. No order for maintenance was made. I will not endeavour to translate the rest of the order because I have not the faintest idea of what the phrase "of new sists the cause" means. The matter has been languishing in the lists in Scotland, perhaps through the state of business of the Court or through lack of desire of the lawyers to move it along, I do not know what. The husband, not happy with the situation in Scotland, made enquiries it would appear, from some Scottish lawyers and was wrongly advised that if he brought the child to Australia the wife could do nothing about it. He said he also made some enquiries via his parents of a lawyer in Heathcote, Victoria, who gave similar poor advice. A reading by either of those practitioners of the most basic authorities of this Court would have indicated it was sadly wrong advice. It had been well settled by the Privy Council in the case of McKee v. McKee (1951) A.C.352 and by the High Court in Kades and Kades (1962) 35 A.L.J.R. 251, by this Court in Khamis and Khamis (1978) FLC 90-486, in Schwartz and Schwartz (1985) FLC 91-618 and many other authorities and by the Court of Appeal in Re R.(Minors) (1981) 2 Fam. L.R. (Eng. Series) 416, that the Courts generally will not tolerate the wrongful removal of children from one corner of the earth to the other, and whilst a Court may seize on to jurisdiction by reason of the physical presence of the child or some other aspect that is relevant to its welfare, there is no certainty that the Court will do so. The three options open to a Court were investigated in detail in the decision of Wade v. Firns (1981) FLC 91-106. Needham J. of the Supreme Court of New South Wales applying common law, indicated the Court could choose one of three approaches. Firstly, it could summarily send the child back; secondly, it could investigate whether it should summarily send the child back by some mini-investigation and hearing from both sides; thirdly, it could hold on to the child and retain jurisdiction. Occasionally this is done (see B. v. B. (Kidnapping) 1986 FLC 91-749). Section 68 of the Family Law Act (which unfortunately in its actual operation applies only to New Zealand and Papua New Guinea) provides effectively that a foreign custody order has to be enforced unless there is a consent to Australia exercising jurisdiction, unless: "(3)(b) the court is satisfied that there are substantial grounds for believing that the welfare of the child will be adversely affected if the court does not exercise jurisdiction in the proceedings." Section 68 does not of itself apply to interim orders (see s.68(7),) but it was made abundantly clear in Khamis' case that the spirit of s.68 should apply in international kidnapping cases irrespective of whether they are between convention countries or otherwise, and irrespective of the nature of the order whether by way of interim custody or otherwise. So, even if this application were not being brought under the convention, Mr Lambert would most probably have found the child being forthwith removed back to Scotland. I cannot say on the evidence raised that within the meaning of s.68, I have been satisfied that there were substantial grounds for believing that the welfare of the child would be affected if the overseas custody order was left in operation. Regulation 16 provides a much more stringent test, in my view, than s.68. I must be satisfied that there is a "a grave risk that the child's return to the applicant would expose the child to physical or psychological harm". The husband has given viva voce evidence and sworn an affidavit. He says the wife lives with her parents and her father drinks too much and her father used to belt her. In 1982 the police were around at the house and whilst the husband has convictions for drunkeness and disorder himself, the wife drinks too much and he knows of at least two occasions when she was drunk when he brought the child back to him for access. She has a boyfriend; he is unemployed and he is drunk all the time; and he has a reputation as being a fighter and a trouble-maker. For all of that, the husband's father gave some evidence and the little boy he saw brought to Australia some four weeks ago, is a fine little boy getting on very nicely indeed, thank you, and no small tribute to the "drunken" mother and "drunken" grandfather. It may be that there is substance in the husband's claim that he is a better custodian than the mother, but that is in my view, a matter for the Scottish court to determine and not for this Court. WMH-FN 3 The welfare of this child, being the paramount consideration in the operation of all powers that I exercise in respect of the child, demands that the child be forthwith returned to the mother and that any further issues relating to the determination of who is the more appropriate parent inrespect of this child, be determined by the Court in Scotland. The orders of the Court are: (1) That the child, Leigh Lambert be immediately returned to the custody of Linda Kerr Lambert and that she be at liberty to forthwith remove the said child from Australia. (2) Until the said child is returned to his mother's custody paragraphs 1, 2 and 4 of the orders made on 26 March 1987, to remain in force. (3) I order that the husband's consent to the execution of any necessary travel documents for the said child be dispensed with. WMH-FN4 The husband to pay the wife's costs of travel and return fixed at $3,631, and I certify. WMH FN 5 I might add that Mrs Winneke has made submissions on behalf of the husband as strongly as is possible in the circumstances. The Convention is clear. In my view, the exceptions to it are likely to be few and far between and this case clearly is not one that falls within it. I am not satisfied that it will be a grave risk to the child if he is returned to the wife. Even if there was such a risk, given the circumstances of the removal of this child on 5 March 1987 when he was surreptitiously brought to Australia, I would have exercised my discretion adversely to the abductor. WMH-FN6 Annexed hereto for completeness are the ex parte orders I made on the first return of the application. APPENDIX I Ex Parte Order of 26 Mar 1987 This Ex-Parte Application coming on before this Court AND UPON HEARING, Mr. Meehan for the applicant and there being no appearance for the husband or the wife, IT IS ORDERED: (1) That until further order the husband ROGER ALAN LAMBERT surrender forthwith to the Registrar of Melbourne Registry of the Family Court of Australia all current passports relating to himself and the child of the marriage LEE LAMBERT born at Edinburgh, Scotland on the 11th day of December 1983. (2) That until further order the said ROGER ALAN LAMBERT is hereby restrained from removing the said child from the Commonwealth of Australia AND IT IS REQUESTED that the Marshal of the Family Court of Australia at Melbourne and all officers of the Australian Federal Police and the Department of of Immigration and Ethnic Affairs give effect to this order AND IT IS DIRECTED that the applicants solicitor serve a sealed copy of this order on the said Australian Federal Police and the said Department of Immigration and Ethnic Affairs. (3) That a warrant issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to take possession of the said child and deliver the said child to the Director General, Department of Community Services, Victoria. (4) That until further order the said child be placed in the custody of the said Director General, Department of Community Services, Victoria or such other person as the said Director General shall direct. (5) That as soon as practicable the said ROGER ALAN LAMBERT be served with a sealed copy of the following documents: (a) the application of PETER JOHNSTONE, Director General of the said Department of Community Services, Victoria and annexures thereto; (b) this order. (6) That a sealed copy of the following documents: (a) the said application without annexures; (b) this order; be served upon the following: (a) the Commissioner of the said Australian Federal Police; (b) the Secretary of the said Department of Immigration and Ethnic Affairs; (c) the British High Commissioner; (d) the Department of Foreign Affairs. IT IS DIRECTED (7) That the photographs on the Court file be released to the Australian Federal Police. IT IS FURTHER ORDERED: (8) That the further hearing of the said application be listed before this Court at 10:00 a.m. on Friday the 3rd day of April 1987. (9) That general liberty for any party to apply upon short notice be reserved. BY THE COURT [Illegible Signature] DEPUTY REGISTRAR APPENDIX II [CAC reg 15] Orders 15 (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) an order for the issue of a warrant for the apprehension or detention of the child; (b) an order directing that the child not be removed from a place specified in the order; (c) an order requiring such arrangements to be made as are necessary for the purpose of placing the child with an appropriate person, institution or other body in order to secure the welfare of the child pending the determination of an application under regulation 13; or (d) an order for the return of the child to the applicant. (2) A court may, in respect of an application made under sub-regulation (1), make an order of the kind referred to in that sub-regulation and such other order as the court thinks fit. (3) Where under sub-regulation (2) a court makes an order in relation to the removal of a child from a place specifried in the order, the court may impose such conditions on the removal of the child from that place as the court thinks fit. (4) An application under sub-regulation (1) shall be in accordance with Form 2 in Schedule 3. [CAC reg 16] Orders for the return of children 16 (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. (2) 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. (3) 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 thecare 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; (c) the child objects to being returned and has attained an age anddegree of maturity at which it is appropriate to take account of the child's views; or (d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms. (4) For the purposes of sub-regulation (3), the court may take into account such information relating to the social background of the child as may be provided by the Central Authority of the convention country from which the child was removed. (5) A court may stay or dismiss an application for an order of the kind referred to in paragraph 15(1)(d) in relation to a child if it is satisfied that the child is no longer in Australia. Note: These footnotes were created by Wm. M. Hilton and are not in the original decison. -------------------- 1. The full text of Regulation 15 is set out in APPENDIX II 2. The full text of Regulation 16 is set out in APPENDIX II 3. The Court's reasoning, that the place where the alleged improper behavior took place is presumptively the best place to conduct a hearing on these allegations, has been articulated in cases under the Uniform Child Custody Jurisdiction Act (UCCJA). See, eg, Plas v Superior Court(1984) 155 Cal.App.3d 1008, 1021 [202 Cal.Rptr.490, 497]; Metcalf v Turner (A.D. 3 Dept. 1989) 546 N.Y.S.2d 466, 467-468 and Flesner v Houser (Ill.App. 1982) 104 Ill. App. 3d 904 [433 N.E.2d 720; 60 Ill. Dec. 678] as typical examples of this analysis. 4. This order should be made a part of any return order. 5. See Article 26 of The Convention (discretionary) and 42 USC 11607(b)(3) (mandatory). 6. The court could have, had it felt that the return of the child to the mother would be contra-indicated, ordered that the child be returned to Scotland in care of, say the Social Welfare agency there or in the care of a relative, e.g., grandparent. See Zimmerman vs Zimmerman No. 91-14556-S, District Court of Dallas County, Texas (18 Oct 91) for an example of this. [ZMRMAN.TX] An order that may also be used is set out in the sample order entitled ORDER, JUDGMENT AND DECREE RE: INTERIM CARE AND CUSTODY OF THE MINOR CHILD, a "Safe Harbor" order. [SAFEHBR.ORD]