In re the Marriage of Turner (Fam.Ct. of Australia at Brisbane 1988) No. 1314/88 Before the Hon. Justice Lambert on 27 Jun 1988. Appearances: Mr. F. Clair of Counsel instructed by the Queensland Crown Solicitor, appeared for the Director-General, Department of Family Services, Queensland. Mr. R. Whiteford of Counsel instructed by J. B. Stevenson & Co., appeared for Malcolm John Turner. Miss D. Clarke, Solicitor of the Legal Aid Office (Queensland) appeared as the Separate Representative for the child Adele Turner. REASONS FOR JUDGMENT On 3 May 1988, there came before me for hearing two applications relating to the child, Adele Turner, the sole child of the marriage between Malcolm John Turner and Elizabeth Gladys Diane Turner. Adele was born on 24 January 1975 in England where her parents then resided. Both proceedings arise out of the circumstances in which Adele, with the consent of her mother,in whose favour an order for her custody was made in England on 25 October 1977, came from her mother's home in England 1n December 1987 to reside with her father and his present wife and their two children in Australia. Those circumstances are get out in my written reasons for the orders made at the preliminary hearing of the applications on 3 May 1988, and I incorporate those reasons in this judgment. The hearings resumed on 24 June 1988 when additional evidence was placed before me comprising the report furnished by Yvonne Darlington, a qualified social worker with a work-experience background of some 10 years, a statement of financial circumstances filed by the husband, two affidavits sworn by the wife in England, and two letters from her English solicitors - Gray, Purdue and Co - one directed to the Queensland Crown Solicitor, and the other to the Queensland Legal Aid office. Oral evidence was taken from the husband and the social worker who were each cross examined. The child was separately represented in the proceedings pursuant to my earlier order. The director's application under The Hague Convention. I have come to the conclusion that the orders sought by the director for the return of the child to her mother in England with associated expenses and costs be refused under the discretion conferred by subregulation 16(3)(C) of the Family Law (Child Abduction Convention) Regulations made pursuant to section IIIB of the Family Law Act of 1975. The relevant provisions of the regulations state: "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" and - "16(3). A court refuse to make an order under sub-regulation (1) or (2) if it is satisfied that- (c) the child objects to being returned and has attained an age and decree of maturity at which it is appropriate to take account of the child's views." There is no dispute upon the facts set out in the affidavits of the husband and the wife read in the proceedings that the wife consented to the child's leaving England to visit the husband for a fixed holiday period in Australia in December 1987, and subsequently consented to her residing permanently with the husband in Australia at the conclusion of that specified period and before the expiration of that period withdrew her consent to the child's residing in Australia permanently with the husband. At the time that the wife consented to the child's holiday visit to the husband being enlarged to embrace her permanently residing with him, she was, it is clear, acquiescing in the child's wish pressed to her so to do. The evidence establishes that Adele had raised with the wife the issue of her taking up permanent residence with the husband in Australia prior to her departure from England should she desire to do so. The husband, quoting Adele, alleges that the wife's response was favourable to the wishes of the child. The wife's recollection is that her response was more vague and uncommittal, "We would see." On either view, it could not be said that the wife was taken completely by surprise when the child and the husband 9ought her consent by telephone on 12 December 1987 to the child's permanently residing in Australia with him. She does contend, however, that her consent to that request wag given without a proper consideration of all its implications for the welfare of the child. The wife's initial consent to the child's retention in Australia, although later withdrawn, takes this case out of the classical child abduction category. It may well be that her conduct constitutes an acquiescence in the child's "removal" from England so as to raise the discretion under regulation 16(3)(A) of the regulations based on the ground that the retention of the child in Australia is not "wrongful" within the meaning of that term in article 3 of The Hague Convention. However, as I have come to a firm conclusion that I should exercise the discretion under regulation 16(3)(C) it is not necessary for me to decide that question. The reports of Mr Smiley and Yvonne Darlington both reveal that Adele holds a genuine desire to reside permanently with her father in Australia, and she is able to articulate a variety of sound reasons that influence her to that desire. Since Yvonne Darlington had the opportunity of interviewing the wife in the course of a lengthy telephone session and of monitoring the interaction of Adele with her mother and her step-sister Sophia in lengthy telephone sessions, I prefer to base my judgment upon her evidence. She described Adele as an attractive outgoing 13-year old who likes her school and enjoys interaction with her peers and a number of outdoor activities. She spoke happily of most aspects of life with her mother and step-sister in England and appears to have enjoyed a good relationship with them both. There appear to have been some areas in which her interaction with her mother was not comfortable, but these areas seem to relate mainly to the constraints of the religious sect to which her mother adheres upon a 13-year old developing a desire for greater personal independence of thought and action. Her reasons advanced for wanting to stay in Australia are: (1) her perception of better opportunities for her future, mainly in the employment field; (2) less constraint upon her development of her independence; (3) some frustration at her mother for changing her mind; (4) her involvement in a two-parent family. The first of these reasons could not, in my view, be relied upon as proof of maturity in Adele's perceptions since it related to a problem that lies some years ahead, and she has had limited opportunity to make proper comparisons. The other reasons, however, seem to me to involve mature insight for a 13-year-old girl, and they do combine to support her current sense of determination to remain with her father that Yvonne Darlington reports upon. In fact, her major concern for Adele is that the relationship between herself and her mother may have been damaged by the unplanned nature of Adele's elongated stay with her father, as she, her mother, and Sophia did not have the opportunity to prepare emotionally for that type of separation. Adele has consistently expressed a wish to remain with her father in Australia. She has settled happily in his households at her new school, and in her local community. Her discussion with her mother on the topic of her change to her father's household and the circumstance that brought it about arranged by Yvonne Darlington has enhanced her sense of confidence about her wish to remain in Australia with her father. Her father has suffered a substantial financial reverse through a motor vehicle accident which it seems to me would tend to put a damper on the excitement value to the child of the change in her lifestyle, independently of the routine developed over the passage of time. Ms Clarke, representing the child, submitted in accordance with her instructions that the director's application be refused. I find, then, that Adele objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views. Her return to her mother in England under the regulations would, on my view of the evidence, more likely than not intensify Adele'9 hurt at her mother's change of mind and place her emotional relationship with her mother in jeopardy. Accordingly, I propose to dismiss the director's application. The husband's custody application: Notwithstanding a strong submission on behalf of the husband that I proceed without delay to make a custody order in favour of him, I am satisfied that the child's welfare would be best protected by deferring her determination on his application until the wife has been given a more reasonable opportunity to be represented in the proceedings. It is clear from the letters I have referred to from her English solicitors that she wishes-to be legally represented so that her case may be properly presented through evidence and submissions at the hearing of those proceedings. She was adequately represented by the director on the convention application. She has applied in Australia for legal aid to present her case, but her application was refused. She has sought a review of that determination. The English solicitors received Yvonne Darlington's comprehensive report only on 23 June 1988. They seek an adjournment of the custody proceedings in the event that the wife's application under the convention was refused. There are a number of strong reasons, in my view, for adjourning the custody proceedings, at least until after the wife's application for review of the Legal Aid Commission's refusal of her application for legal aid has been determined. The husband's application is, in effect, one for reversal of the English custody order of which this court has knowledge. Adele is presently within the jurisdiction of this court. She is also, it seems to me, within the jurisdiction of the English courts as her ordinary residence is determined by the parent having custody - the wife, and cannot be changed by the unilateral retention of her by the husband - Glasson v Scott (1973) 1 Australian Law Reports 370. This court then must consider whether it is the most appropriate forum, the forum of convenience, to try the matter. That involves a consideration of the convenience of the parties and their witnesses and the systems of law involved, but the paramount consideration remains the welfare of the child. That Adele is a foreign national is but one factor to be considered. Both the English and the Australian courts have assumed jurisdiction to hear and determined the custody of children "kidnapped" into their jurisdiction on the basis of the paramount consideration being the welfare of the child - Norman and Norman, Number 1, (1968), 12 Federal Law Reports 29; In the marriage of Schenck (1981), 7 Family Law Reports 170; In re L (Minors) (1974), 1 All England Reports 913. The wife as custodial parent should have a reasonable opportunity of making submissions upon the forum of convenience. It would seem from her solicitors letter that legal aid may be more likely available to her (and to the husband) in the English than in the Australian courts. Another important factor that persuades me to adjourn the husband's application until it is practicable for the wife to be represented is the interest of Adele and the parties in having a determination that is final to the extent that any custody determination can be final. If a custody order were made in the husband's favour, and the child delivered to the wife in England for access within a relatively short period of time, as Yvonne Darlington sees as important to Adele's welfare, then the English courts if called upon to review the English order, would hardly be persuaded to haye much regard to an order made in this court in effect reversing that English order in circumstances in which the wife had very limited opportunity to present her case. If the wife does not obtain legal aid to participate properly in the proceedings in Australia, it may well be in the best interests of both of her parents and best promote Adele's welfare in the long term if the English order were reviewed in the English courts. For those reasons, I propose to adjourn the husband's application for custody for a period necessary to enable the wife's application for legal aid to be finally determined. The access order in favour of the husband should-be continued to protect Adele's visitor status in Australia in the interim. ORDERS Accordingly, I make the following formal orders: (1) that the application by the Director-General, Department of Family Services for the State of Queensland, filed herein on 18 May 1988 for orders under the Family Law (Child Abduction Convention) regulations relating to the child Adele Turner be dismissed; (2) that the husband's application for an order for custody of the said child Adele Turner be adjourned to 10.30 am on Monday, 19 September 1988, before myself for hearing; (3) that the husband do have access to with possession of the said child Adele Turner in Australia until further order of this court; (4) that a sealed copy of this order and the judge's reasons therefore be forwarded by the husband's solicitors by prepaid post forthwith to the wife care of Gray, Purdue, and Co, solicitors, 47B Osborne Road, Southsea, Portsmouth, P05.3LS, United Kingdom; (5) that each party's costs of the adjournment be reserved. Perhaps I should order that the orders herein be drawn up and issued urgently. /s/ Lambert Hon. Justice Lambert