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High Court of Australia |
ZP v PS [1994] HCA 29; (1994) 181 CLR 639, (1994) 122 ALR 1, (1994) 68 ALJR 554
F.C. 94/029
Number of pages - 25
Family Law
HIGH COURT OF AUSTRALIA
MASON CJ(1), BRENNAN(2), DEANE(3), DAWSON(2), TOOHEY(1), GAUDRON(3) AND
McHUGH(1) JJ
Family Law - Family Court of Australia- Jurisdiction - Custody - Child residing in Australia - Summary order for determination of custody by foreign court - Welfare of child - Forum non conveniens - Whether applicable -Family Law Act 1975 (Cth), s. 64.
ORDER
Appeal allowed.
Orders nisi for prohibition, certiorari and mandamus discharged.
Set aside the orders of the Full Court of the Family Court and in lieu
thereof order that -
1. the appeal to that Court be allowed;
2. the orders of Mushin J be set aside.
Remit the matter to the Full Court of the Family Court to determine (or to
make orders providing for determination of) the question
whether, in
accordance with the reasons for judgment of this Court, orders for the return
of Dimitrios to Greece should be made pursuant
to the father's application
and, if that application be refused, to determine the matter of the mother's
application for permanent
custody.
DECISION
MASON CJ, TOOHEY AND McHUGH JJ The appellant, who is the wife of
2. The first issue in the appeal is whether, upon the making of an
application to the Family Court for custody of a child residing in
Australia, that Court is entitled to make a summary order that the
custody of the child should be determined by a foreign court. If
that question is answered in the affirmative, the second issue in the
appeal is whether, in making the order which it did, the Family Court
was required to and did have regard for the welfare of the child.
The factual background
3. The wife was born in Greece in 1946. She came to Australia in
about 1965 and lived here until about 1985 when she returned to
Greece. In 1971, she acquired Australian citizenship. The husband
was born in Greece in 1937. From 1963 until 1975 he also lived in
Australia apart from one year when he lived in Greece. The parties
were married in Greece in 1987. Dimitrios, the only child of the
marriage, was born later that year. In 1988, the parties registered
Dimitrios as an Australian citizen at the Australian Embassy in
Athens. In May 1989, the parties separated. Later that year, they
registered an agreement in a Greek court of competent jurisdiction
giving the wife "temporary custody" of Dimitrios. The husband was
given access which was to "be free and in accordance with the
reasonable welfare of the child". The agreement contained an express
provision that under no circumstances could the wife go abroad with
Dimitrios unless it was for his welfare and the husband consented.
The agreement provided that "in case of disagreement regarding the
welfare of the child if he goes Abroad, the Court shall issue an
order". The agreement also provided for the maintenance of Dimitrios.
4. On 20 April 1993, the wife left Greece with Dimitrios and without
her husband's consent or knowledge and without having obtained
any order of a court of competent jurisdiction in that country. On
26 May 1993, she filed an application in the Family Court of Australia
for orders that the parties have joint guardianship of Dimitrios, that
she have sole custody of him, that access to the husband be reserved
and that he be restrained from removing Dimitrios from the State of
Victoria. The wife also sought interim orders in the same terms. An
affidavit filed in support of her application claimed that the husband
was habitually out gambling and drinking, that members of his family
were Jehovah's Witnesses and were brainwashing Dimitrios, and that
in a telephone conversation with her husband he had said that he would
come to Australia and take Dimitrios back to Greece unless she
returned within 20 days.
5. On 29 June 1993, the husband applied to an Athens court for the
custody of Dimitrios. On 30 September 1993, the Greek court revoked
its earlier order and gave custody to the husband. In the meantime,
on 1 September 1993, the Family Court had granted interim custody of
Dimitrios to the wife. Both parties were restrained from removing him
from Australia. Subsequently, the husband filed an affidavit in the
Family Court which put in issue the allegations which his wife had
made against him. The wife then filed two further affidavits in which
she alleged, inter alia, that:
1. she felt alienated from Greece;
2. she was unable to obtain employment, vote or possess a driver's
licence in Greece;3. she had left Greece because of emotional and physical threats made
by her husband and because of her financial problems;4. her husband had behaved violently to her and used obscene
language;5. Dimitrios had been injured on an access visit in Greece as the
result of the conduct of an employee of the husband.An affidavit sworn in support of the wife's application deposed that,
Jurisdiction
6. Jurisdiction to hear the wife's application for custody was
conferred on the Family Court by ss.63, 63B and 63C of the Family Law
Act 1975 (Cth) ("the Act"). Those sections are found in Pt VII of
the Act. Section 64(1)(a) of the Act requires the Court in hearing
proceedings under Pt VII to regard the welfare of the child as the
paramount consideration. Amongst specific matters that the Court must
take into account on an application for custody are the nature of the
relationship of the child with each of the parents and other persons,
the effect on the child of any separation from either parent or any
other person with whom the child has been living, and the desirability
of and the effect of any change in the existing arrangements ((1)
s.64(1)(bb).). The capacity of each parent to provide adequately for
the needs of the child and the need to protect the child from abuse,
ill-treatment or exposure or subjection to behaviour which
psychologically harms the child are other matters that must be taken
into account.
7. Although Dimitrios was taken from Greece contrary to an agreement
filed in a court of competent jurisdiction in Greece, The Hague
Convention on the Civil Aspects of International Child Abduction was
inapplicable to the wife's application in the Family Court. That
Convention applies as between particular countries only to wrongful
removals or retentions occurring after those countries have become
parties to the Convention. Greece did not become a party to the
Convention until 1 June 1993. For similar reasons, the Family Law
(Child Abduction Convention) Regulations 1986 are inapplicable to the
wife's application. Consequently, the Family Court was obliged to
determine the application in accordance with the principles applicable
in a hearing brought under ss.63, 63B and 63C of the Act. In the
forefront of those principles is the requirement of s.64(1)(a) that
the Court must regard the welfare of the child as the paramount
consideration.
8. It is now established that Pt VII has invested the Family Court
with a welfare jurisdiction that is similar to the parens patriae
jurisdiction exercised by the Court of Chancery but which is freed
from the preliminary requirement of a wardship order ((2) Secretary,
Department of Health and Community Services v. JW.B. and S.M.B.
(Marion's Case) [1992] HCA 15; (1992) 175 CLR 218; P v. P [1994] HCA 20; (1994) 68 ALJR 449; 120
ALR 545.). In the exercise of the parens patriae jurisdiction, the
Court of Chancery has always been guided by the principle that the
welfare of the minor is the first and paramount consideration ((3)
Re R. (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416 at 423.).
In exercising the parens patriae jurisdiction or a statutory
jurisdiction which makes the welfare of the minor the first and
paramount consideration, that Court always makes an independent
judgment on any question concerning the custody of a child and cannot
blindly follow an order made by a foreign court ((4) McKee v. McKee
(1951) AC 352 at 364; Kades v. Kades (1961) 35 ALJR 251 at 254.).
Because the welfare jurisdiction of the Family Court is similar to the
parens patriae jurisdiction of the Court of Chancery, the Family Court
must also form an independent judgment as to what the welfare of the
child requires notwithstanding the existence of any custody order made
by a foreign court. Moreover, proceedings for custody or access are
not disputes inter partes in the ordinary sense of that expression
because the Court is not enforcing a parental right to custody or
access ((5) M. v. M. [1988] HCA 68; (1988) 166 CLR 69 at 76.). Its duty is to
make such order as will "best promote and protect the interests of the
child" ((6) ibid.). It follows that, when a child is within the
jurisdiction of the Family Court, the doctrine of forum non conveniens
has no application to a dispute concerning the custody of the child
((7) Re R. (1981) 2 FLR at 426-427; Schwarz and Schwarz (1985) FLC
91-618 at 80,000.). Injustice to one or other of the parties, expense,
inconvenience and legitimate advantage, which are always relevant
issues in a forum non conveniens case ((8) See Voth v. Manildra
Flour Mills Pty. Ltd. [1990] HCA 55; (1990) 171 CLR 538 at 556-557.), are not
relevant issues in a custody application. In some cases, those matters
may bear on issues which touch the welfare of the child but they are
not themselves relevant issues when the question arises whether the
welfare of the child requires the making of an order that the issue of
custody be determined in a foreign forum. When the Family Court is
seized of jurisdiction in relation to the custody of a child, its duty
is to exercise its jurisdiction.
9. However, in some situations the welfare of a child may require
that a dispute as to the custody of the child be determined by a
foreign court ((9) In re L. (Minors) (1974) 1 WLR 250 at 263-264;
Mittelman and Mittelman (1984) FLC 91-578 at 79,667; cf. McKee (1951)
AC at 364.). Consequently, in some cases it may be a proper
exercise of the welfare jurisdiction of the Family Court for the
Court to make a summary order that a child be returned to a foreign
jurisdiction so that questions concerning custody and access may be
dealt with by the courts of that jurisdiction ((10) In re L. (1974) 1
WLR at 264; Khamis and Khamis (1978) FLC 90- 486 at 77,521; Re R.
(1981) 2 FLR at 425; Mittelman (1984) FLC at 79,667; In re F.
(Abduction: Custody Rights) (1991) Fam 25 at 31.). In In re F.
(Abduction: Custody Rights) ((11) (1991) Fam at 32.), Neill LJ
said:
"The general principle is that, in the ordinary way, any
decision relating to the custody of children is best decided
in the jurisdiction in which they have normally been
resident. This general principle is an application of the
wider and basic principle that the child's welfare is the
first and paramount consideration."
10. In the same case, Lord Donaldson MR formulated the approach
which must be taken when an English court hears a submission that the
welfare of a child within the jurisdiction requires that a foreign
court should decide a question concerning the custody of the child.
His Lordship said ((12) ibid. at 31.):
"The welfare of the child is indeed the paramountThat approach also applies to applications in the Family Court when
consideration, but it has to be considered in two different
contexts. The first is the context of which court shall
decide what the child's best interests require. The second
context, which only arises if it has first been decided that
the welfare of the child requires that the English rather
than a foreign court shall decide what are the requirements
of the child, is what orders as to custody, care and control
and so on should be made."
11. In Re R. (Minors) (Wardship: Jurisdiction) ((13) (1981) 2 FLR at
426.), Ormrod LJ, giving the judgment of the Court of Appeal,
summarised the reasons why the welfare of a child may require the
making of a summary order that the question of custody be determined in
a foreign jurisdiction. His Lordship said:
"In a sentence, they are alienation from background, home,
schools, friends, relations and, ultimately, from his
country and its society and culture. These dangers have
to be weighed against the risk to the child of possible,
perhaps probable, separation from the mother, of being
entrusted to the care of a father whose capabilities and
fitness to act as a single parent may be in doubt, in
surroundings which may be unfavourable in themselves, and
of being subjected to a regime of law under which the
protection of their interests may be open to question ...
The fitness or unfitness of the mother's arrangements and
the prospects or lack of prospects for the children if they
become settled here, are also material considerations".
12. Prior to the decision of this Court in Voth v. Manildra Flour
Mills Pty. Ltd. ((14) [1990] HCA 55; (1990) 171 CLR 538.), the principles upon which
the Family Court acted in determining whether it should allow a foreign
forum rather than itself determine a question of custody seem to have
accorded with the foregoing account of the law ((15) See El Alami and
El Alami (1988) FLC 91-930; Taylor and Taylor (1988) FLC 91-943.).
But, after the decision in Voth, the Family Court adopted a different
approach to submissions that a custody dispute should be determined in
a foreign forum. In Voth, this Court decided that, when an issue
arises as to whether a foreign forum rather than an Australian court is
the forum most convenient to determine a dispute, the Australian court
should hear the matter unless it is satisfied that it is a clearly
inappropriate forum. In Scott and Scott ((16) (1991) FLC 92-241.),
the Full Court of the Family Court regarded the authority of McKee
((17) (1951) AC 352.), which decided that the court must exercise an
independent judgment in cases like the present, as "somewhat
discredited" ((18) Scott (1991) FLC at 78,637.) and went on to say
((19) ibid. at 78,640.):
"Our conclusion is that whatever may have been the
previous situation, the present rule developed by the High
Court in relation to the principles of the doctrine of forum
non conveniens is appropriate to custody proceedings in this
Court. Accordingly, we think that the forum non conveniens
rules should normally be applied by this Court. To this
extent we would therefore differ with the views expressed
in El Alami ((20) (1988) FLC 91-930.) and Taylor's ((21) (1988)
FLC 91-943.) cases, although we think that the application of the
forum non conveniens test propounded by the High Court is likely to
lead to the same practical results."
13. Earlier in its judgment the Full Court had said ((22) Scott (1991)
FLC at 78,640.):
"Broadly, we think that the test may be stated as
being that an Australian court whose jurisdiction has been
properly invoked in custody proceedings, will exercise
the same unless it is demonstrated that it is a clearly
inappropriate forum. This will be demonstrated by showing
that the welfare of the child requires that the proceedings
be determined elsewhere or, failing that, that it is
vexatious or oppressive for the proceedings to continue in
the Australian court."
14. The Full Court predicted that the change in approach was "likely
to lead to the same practical results" in cases like the present case.
However, it is difficult to accept that this has been the result of
the cases in the Family Court. The Court's approval of the vexatious
or oppressive nature of the proceedings as a test for determining that
the proceedings were brought in a clearly inappropriate forum has
naturally led to an examination of the motives and conduct of the
parties. Indeed, the Full Court said in Van Rensburg and Paquay ((23)
(1993) FLC 92-391.) that as a general rule the Family Court was an
inappropriate forum in an abduction case. This was because, even in
cases to which The Hague Convention did not apply, "the ratification by
Australia of the Convention and its acceptance of the accession of many
other countries to the Convention flow from a public policy that
unlawful removal of children across international borders is an evil
which must be suppressed by denying the abductor the advantage of
choosing his or her forum." ((24) ibid. at 80,013.)
15. In Van Rensburg, the Full Court, in holding that Western Australia
was a clearly inappropriate forum to determine the custody of a child
removed from South Africa, applied the forum non conveniens principles
"as laid down by the High Court in Oceanic Sun Line Shipping Company
Inc v. Fay and Voth and (sic) Manildra Flour Mills Pty. Ltd." ((25)
ibid. at 80,012. The "clearly inappropriate forum" test was also
applied in Chong and Chong (1992) FLC 92-313 and Erdal and Erdal (1992)
FLC 92-292.). It also adopted the statement of Fogarty J, giving the
judgment of the Full Court in Gilmore and Gilmore ((26) (1993) FLC
92-353 at 79,728.), that the substance of the test formulated by the
High Court involves five elements. In Gilmore, Fogarty J said those
elements were:
"1. A party who has regularly invoked the jurisdiction of a
court has a prima facie right to insist upon its exercise;
2. The power to stay proceedings regularly commenced is
to be exercised in accordance with the general principle
empowering a court to dismiss or stay proceedings which are
'oppressive', 'vexatious' or 'an abuse of process'. Those
adjectives are to be construed liberally, in the sense
already referred to.
3. The fact that the balance of convenience favours
another jurisdiction or that some other jurisdiction is
a more appropriate forum, will not justify a stay of the
action.
4. In the application of the above principles the
discussion by Lord Goff in Spiliada of relevant 'connecting
factors' and 'legitimate personal or juridical advantage'
provides valuable assistance.
5. In deciding whether the chosen forum is clearly
inappropriate, the extent to which the law of that forum is
applicable in resolving the rights and liabilities of the
parties is a material consideration. The selected forum
will not be seen as inappropriate 'if it is fairly arguable
that the substantive law of the forum is applicable in
the determination of the rights and liabilities of the
parties'."
16. However, as we have already said, the doctrine of forum non
conveniens is not applicable to a custody case where the child is
within the jurisdiction. In so far as Scott, Chong, Erdal, Gilmore,
Van Rensburg and other cases hold that the forum non conveniens
principle is applicable, they are in error and must be overruled.
The hearing before Mushin J
17. Mushin J, who heard the present matter at first instance, applied
the "clearly inappropriate forum" test. His Honour stated the issue
before him as follows:
"The real issue is as to whether the court should exerciseNevertheless, his Honour said that, in determining that issue, he
its discretion in favour of exercising that jurisdiction
or decline to do so on the basis that this is not the
appropriate forum for the proceedings to be heard. It is
further common ground that the only other possible forum is
the Republic of Greece."
18. After referring to Voth, Scott and Van Rensburg, his Honour said
that counsel for the husband had asserted that, on the basis of those
cases, the Court should order the return of the child to Greece
forthwith and that consideration of issues relating to his welfare
should be left to the courts of Greece. His Honour then recorded the
wife's submission that the paramountcy of the welfare of the child
demanded the exercise of the discretion in favour of retaining the
jurisdiction of the Family Court. The learned judge referred to seven
factors relied on by counsel for the wife:
1. The wife had been the primary care giver throughout the child's
life.2. The wife alleged that the husband did not have any real contact
and care of the child whilst in Greece and that it was the3. The wife was concerned about the influence of the husband's
husband's mother who had the real contact and care of the child.
mother, particularly with respect to religious matters.4. The husband was a businessman aged 56 years of age who had no
other experience with children.5. The husband would have to rely on his sister, who was about
62 years of age and had mental health problems, to care for the6. The husband had said that he would not seek custody in Greece.
child.
19. However, his Honour thought that, apart from the question of the
lapse of time since the child had arrived in Australia, these factors
had "minimal significance in an application of the present type",
although they were relevant to the final hearing of a custody
application. His Honour saw the fundamental issue as being "the
unilateral removal of the child from Greece" where there were "orders
of a court of competent jurisdiction including an agreement and order
that the child should not be removed from Greece". The learned judge
said that the husband would suffer a juridical disadvantage and that
the wife would enjoy a juridical advantage by being allowed to
litigate custody in the Family Court. He was of the view that the
matter turned "on a decision as to the balance of the various factors
relating to the welfare of the subject child". While the material
before his Honour suggested that the child was apparently perfectly
normal and happy, his Honour held that that factor had to be weighed
against the "extremely important factor of the unilateral removal
of children from their place of usual residence". He said that
unilateral removal of children from one country to another "must be
discouraged in the strongest possible way as being totally contrary
to their welfare". In his view, that was "the determinative factor
here". Accordingly, Australia was a wholly inappropriate forum in
which to conduct the proceedings.
20. From the foregoing account, it is plain that his Honour did not
apply the correct principles in determining the application for
custody. First, it should be noted that in a case such as the
present, where the Family Court has jurisdiction, no question of
exercising a "discretion in favour of exercising that jurisdiction"
arises. Either the welfare of the child requires that a summary order
should be made or it does not. If the Court concludes that a summary
order is not required, the welfare of the child requires that the
Court investigate the issue of custody. No doubt the judgment of the
Court is properly described as a discretionary judgment in that the
Court must weigh various factors in determining what the welfare of
the child requires. However, it is erroneous to speak of the Court
having a discretion to determine the issue of jurisdiction. Second,
his Honour saw the determinative factor as the unilateral removal
of children from one country to another which had to be discouraged
because it was totally contrary to their welfare. It may be accepted
that, generally speaking, unilateral removal of a child from one
country to another is detrimental to the welfare of the child.
However, it is the duty of a judge to determine what the welfare of
the child requires without regarding that question as being foreclosed
simply because the child has been removed unilaterally from one
country to another. In the present case, the primary judge was
entitled to have regard to the ordinary consequences of unilateral
removal of the child from one country to another but it was his duty
to go on to investigate the materials before him and, if considered
appropriate, determine the question of custody of Dimitrios. If his
welfare required that the Family Court should determine the question
of his custody, it was irrelevant that abduction of children by one of
their parents is generally contrary to the welfare of such children.
Furthermore, whether the husband or wife was or was not at a
disadvantage or would or would not obtain an advantage if the custody
issue was litigated in Australia was of no relevance. In referring
to these factors, his Honour was diverted from the issue that he had
to determine. Finally, the matters raised by the wife were not of
minimal significance or important only on a final hearing of the
custody issue. They went to the question whether the welfare of
Dimitrios required the making of a summary order or a hearing by the
Family Court of the matters raised by the wife. In stating that they
were of minimal significance, his Honour failed to give sufficient
weight to them.
21. It follows that the orders of the learned judge were vitiated
by error and cannot stand unless the Full Court applied the correct
principles in upholding those orders.
The judgments of the Full Court
22. In the Full Court, Nicholson CJ applied the "clearly
inappropriate forum" test which he thought was a "formidable" ((27)
Citing the judgment of Chisholm J in Rae and Jeremijenko, unreported
12 October 1993.) one. His Honour thought that the contentions of the
wife, if made out, would indicate a most unsatisfactory future for
Dimitrios if he was returned to Greece. Because the factual issues
raised by the wife remained undetermined, his Honour thought that they
could not be discounted. Consequently, Nicholson CJ concluded that
the matter should be referred back to Mushin J for a trial of the
issues of fact.
23. In their joint judgment, upholding the orders of Mushin J, Kay
and Graham JJ saw the fundamental issue as being whether the
proceedings should be allowed to continue in Australia or should be
required to take place in another country. They thought that that
issue was "dictated either by the forum non conveniens rules outlined
in Voth or by the principle that the welfare of the child is the
paramount consideration". After referring to the statement by
Mushin J that the unilateral removal of a child by a parent from its
long established environment must be given determinative effect, their
Honours said that, although his Honour's statements "appear to be
somewhat of an over-simplification of the law", the result reached by
his Honour was clearly correct. Kay and Graham JJ thought that the
same result would be reached whether one applied "the Voth test or
one applie(d) the test of the welfare of the child as the paramount
consideration". They said that there were many factors which led to
that conclusion:
"The parents are born in Greece. They were married in
Greece. The child was born in Greece. The child has lived
all of his life in Greece, save for the months since his
removal to Australia by his mother. The child speaks
the Greek language fluently, and save for a few distant
relatives in Australia, the child's entire extended family
on both the maternal and paternal sides reside in Greece.
The father has an ongoing relationship with the child.
Almost all of the witnesses who would be required to give
evidence in respect of the matters in issue between the
parties reside in Greece. There is an order of a Greek
court restraining the removal of the child from Greece
without the consent of both parents or an order of the
Court. In the simplest of terms this is a case about the
custody of a Greek child who was taken from his homeland."
24. Their Honours went on to say that they saw "no reason, having
regard to the matters put forward by the wife in these proceedings, to
depart from the view expressed frequently by this Court and the courts
of the United Kingdom" that any decision relating to the custody of
children is best decided in the jurisdiction in which they are
normally resident. They cited the judgment of Neill LJ in In re F.
where his Lordship said that this principle was but an application
of the basic principle that the child's welfare was the first and
paramount consideration. Their Honours said that the "damage that
is done to children by wrongful removal from their place of habitual
residence is well recognised by the entry of Australia and many
countries into The Hague Convention". They pointed out that in
Barrios and Sanchez ((28) (1989) FLC 92-054.) the Full Court had said
that consideration could be given to the principles of The Hague
Convention in dealing with non-Hague cases, and that courts should
discourage the abduction of children across national borders. Their
Honours said that ultimately "one must focus on the particular child
and determine what is in the interests of that particular child". They
correctly pointed out that they were required to apply the presumption
that the law of Greece is the same as that of Australia in relation to
the paramountcy of the welfare of the child in the absence of any
evidence to the contrary. Their Honours concluded by saying that "we
are firmly of the view that the interests of this child require that
issues relating to his welfare be determined by the courts in Greece".
25. In stating that the "fundamental issue in a case of this nature is
whether the proceedings should be allowed to continue on in Australia
or be required to take place in another country" (our emphasis) and
in referring to the Voth test as an alternative formulation of the
governing principle, the judgment of Kay and Graham JJ is open to
the criticism that their Honours saw the issue as primarily one of
competing jurisdictions. Their references to the order of the Greek
court and to almost all of the witnesses residing in Greece, and their
statement that in its simplest terms "this is a case about the custody
of a Greek child who was taken from his homeland", reinforce the
possible conclusion that they saw the case as one primarily concerned
with competing jurisdictions. Further support for that conclusion
is found in the way that their Honours dealt with the submission on
behalf of the wife that "there was a juridical advantage to the wife"
in having the case heard in Australia. Their Honours rejected that
submission by referring to a statement in Van Rensburg ((29) (1993)
FLC at 80,014.) where the Full Court said that the husband in that
case could not rely upon the unlawful removal of his children as
creating a "legitimate advantage".
26. But other statements in the judgment of Kay and Graham JJ
indicate that their Honours did determine the real issue. Thus, their
Honours said that ultimately the court had to "focus on the particular
child and determine what is in the interests of that particular
child". That statement was made after their Honours set out the
following passage from the judgment of Buckley LJ in In re L.
(Minors) ((30) (1974) 1 WLR 250 at 264-265.) where his Lordship
said:
"To take a child from his native land, to remove him
to another country where, maybe, his native tongue is not
spoken, to divorce him from the social customs and contacts
to which he has been accustomed, to interrupt his education
in his native land and subject him to a foreign system of
education, are all acts (offered here as examples and of
course not as a complete catalogue of possible relevant
factors) which are likely to be psychologically disturbing
to the child, particularly at a time when his family life is
also disrupted. If such a case is promptly brought to the
attention of a court in this country, the judge may feel
that it is in the best interests of the infant that these
disturbing factors should be eliminated from his life as
speedily as possible. A full investigation of the merits
of the case in an English court may be incompatible with
achieving this. The judge may well be persuaded that it
would be better for the child that those merits should be
investigated in a court in his native country than that he
should spend in this country the period which must
necessarily elapse before all the evidence can be assembled
for adjudication here. Anyone who has had experience of
the exercise of this delicate jurisdiction knows what
complications can result from a child developing roots
in new soil, and what conflicts this can occasion in the
child's own life. Such roots can grow rapidly. An order
that the child should be returned forthwith to the country
from which he has been removed in the expectation that any
dispute about his custody will be satisfactorily resolved in
the courts of that country may well be regarded as being in
the best interests of the child."
27. Notwithstanding those passages in the judgment of Kay and
Graham JJ which suggest that they saw the case as one primarily
concerned with competing jurisdictions, their judgment, when read as a
whole, shows that they decided the real issue in the case. At all
events, their Honours' judgment indicates that they thought that the
welfare of the child as well as the forum non conveniens principle
required the making of the orders that Mushin J made. Although they
concluded that the result reached by Mushin J was plainly correct,
they did not accept his Honour's reasons. They correctly perceived
that the Court ultimately had to focus on the interests of the
particular child, and they concluded that "the interests of this child
require that issues relating to his welfare be determined by the
courts in Greece" (our emphasis). It is true that the judgment of Kay
and Graham JJ referred to matters which are open to criticism if
their Honours regarded them as relevant to the welfare of the child.
But it seems probable that their Honours referred to those matters
because they were considering both the Voth test and the test of the
welfare of the child. Furthermore, their Honours' reference to almost
all of the witnesses residing in Greece was clearly relevant to the
welfare issue as well as to the forum non conveniens issue ((31)
Lehartel v. Lehartel (1993) 1 NZLR 578 at 581-582, 585.). The
residency of witnesses is relevant to the welfare issue because it is
an important factor in determining whether the Family Court or the
foreign forum is likely to be the tribunal that is best informed on the
issues concerning the welfare of the child. In the present case, the
fact that almost all of the witnesses were resident in Greece supported
the argument that it was in the best interests of Dimitrios to have
issues concerning his custody resolved by the courts of that country.
Finally, once their Honours identified the best interests of Dimitrios
as the determinative factor, it is difficult to conclude that the
reference to those matters referable to the forum non conveniens
principle were decisive factors in their Honours' decision "that the
interests of this child require that issues relating to his welfare be
determined by the courts in Greece".
28. However, counsel for the wife contended in this Court that the
discretionary judgment of Kay and Graham JJ miscarried because
their Honours failed to take a material fact into account. When the
application was before Mushin J, the wife expressly agreed to travel
to Greece with Dimitrios if Mushin J made orders of the kind which he
did. However, in the Full Court she changed her mind. The judgment
of Nicholson CJ records that at the hearing of the appeal she
indicated through counsel that "she had decided not to return to
Greece with the child if the Court ordered the child's return". Among
the reasons put forward for this change of mind were:
(a) the lack of legal aid in Greece;
(b) she had no savings or income;
(c) there was a past history of violence with her husband and he
continued to threaten her;(d) she faced possible penal sanctions if she returned to Greece.
29. The judgment of Kay and Graham JJ makes no reference to the
wife's alleged change of mind. However, it is difficult to believe
that their Honours overlooked this matter. It was one of the
principal reasons that Nicholson CJ thought that the application
should be remitted to the trial judge for a further hearing to
investigate the matters raised by the wife. Nicholson CJ said that
"if she does not return to Greece with the child, the effect of his
Honour's order may well have serious consequences for the child's
welfare since the mother has been the child's primary caregiver until
he was 20 months old and his sole caregiver since that age".
30. It may be that Kay and Graham JJ either rejected or were not
prepared to act on the claim of the wife that she would not go back to
Greece with the child. Having regard to her failure to put any sworn
evidence before the Full Court as to her change of mind, as well as
the history of the matter, including her attitude when Mushin J
raised with her the question of her return to Greece, their Honours
were entitled to place no weight on her alleged state of mind. In any
event, counsel's statement as to her attitude was no more than an
indication of her state of mind as at the time of the appeal hearing.
31. However, to concentrate on the wife's state of mind or attitude
about going back to Greece is to divert attention from the real issue
in the case. What the Full Court had to consider was whether the
welfare of the child required a summary order that the issue of
custody should be determined in the courts of Greece. Whether or not
the wife intended to go back to Greece to contest the hearing was
relevant only to the extent that it affected the question whether the
welfare of the child would be best determined by the courts of Greece
or the Family Court. It was relevant in so far as the failure of the
wife to contest the custody issue in Greece might result in a Greek
court being less than fully informed about the issues. But whether
or not the welfare of Dimitrios required that he permanently live in
Australia or Greece was not a relevant issue before Mushin J That
factor would be of vital importance in the Family Court if the making
of a summary order was refused or, if it was made, it would be equally
important in the proceedings in Greece. But whether the child should
live in Australia with his mother or in Greece with his father was not
relevant as to whether the Family Court should make a summary order.
Of course, the fact that Dimitrios had been in Australia for many
months was a relevant factor on the summary order issue. But
questions as to his future were matters that had to be determined
after the issue of the summary order was decided.
32. If the Family Court forms the view that the welfare of a child
prima facie requires that a foreign forum should determine the custody
of the child, it can only be in an exceptional case that a parent's
refusal to litigate the issue in the foreign forum can affect that
view. If the parent was liable to be jailed or subjected to some
cruel or unusual punishment in the foreign forum, it would be right to
take into account that the refusal of the parent to litigate the issue
of custody might result in an order that is contrary to the welfare of
the child. But except in that class of case or some analogous case, a
voluntary refusal to litigate the issue in the foreign forum should be
disregarded if the parent can fairly litigate the issue in that forum.
Indeed, in an appropriate case, it would be open to the Family Court
to order an applicant, who has invoked the welfare jurisdiction, to
litigate the issue in that foreign forum.
33. Here there was no reasonable ground on which the wife could refuse
to litigate the issue in Greece if the Court was otherwise of the
opinion that the welfare of Dimitrios required that course of action.
The wife's fare is to be paid by the husband and she is to be given
$5,000 for expenses. The possibility that some penal action might be
taken against her is not a reasonable ground for holding that the
matter should not be litigated in Greece. No doubt if the Greek
court accepted her evidence that she would not live in Greece in any
circumstances, it would have a vital bearing on the issue of custody.
But that is a matter for the Greek court. Furthermore, Kay and
Graham JJ were well aware of the wife's claim that legal aid was
not obtainable in Greece and that the wife would be at a financial
disadvantage.
34. There is, therefore, no vitiating error of principle in their
Honours' judgment, and the result which they reached was not plainly
wrong. Accordingly, the judgment of Kay and Graham JJ as to what the
welfare of Dimitrios required was not affected by error. The appeal
must be dismissed.
35. Concurrently with the hearing of the appeal, this Court also heard
an application to make absolute orders nisi for writs of certiorari,
prohibition and mandamus directed to the Family Court. It was common
ground that, if the appeal failed, the orders nisi should be
discharged. Accordingly, the orders nisi granted by the Full Court of
this Court in Hobart on 24 March 1994 must be discharged.
BRENNAN AND DAWSON JJ The circumstances which give rise to this
appeal and the orders nisi for writs of prohibition, certiorari and
mandamus are contained in the judgment of Mason CJ, Toohey and
McHugh JJ The parties to the proceedings in the Family Court
were husband and wife, and their son Dimitrios is the subject of
cross-applications for custody. The mother and Dimitrios have been
resident in Australia since April 1993.
2. Once the jurisdiction conferred by s.63 of the Family Law Act 1975
(Cth) ("the Act") on the Family Court in custody proceedings is
effectively invoked - and there is no doubt that both parties
invoked that jurisdiction in this case - s.64(1)(a) of the Act
requires that the Court regard the welfare of the child as the
paramount consideration in exercising the Court's power. Section
64(1)(a) makes no exception in the case of proceedings relating to
the custody of a child ordinarily resident in another country, even if
the child has been abducted from that country and brought to Australia
in breach of an order of a court of competent jurisdiction in the
other country. There are Regulations made pursuant to s.111B of
the Act - the Family Law (Child Abduction Convention) Regulations 1986
- which are designed to secure, inter alia, the return of a child
abducted from another country when The Hague Convention on the Civil
Aspects of International Child Abduction ("the Convention") is in
force between Australia and that other country at the time of the
abduction. As Greece did not become a party to the Convention until
1 June 1993, those Regulations have no direct application to the
present case. It is therefore unnecessary to consider whether and
in what manner reg.16, which prescribes grounds on which a court may
refuse to make an order for the return of an abducted child, can be
reconciled with the provisions of s.64(1)(a) of the Act.
3. In this case, the mother made an application for custody of
Dimitrios. Then, the father applied for an order dismissing the
mother's application and giving the father custody of Dimitrios "in
order to return the child to Greece". Mushin J treated the father's
application as part of a submission that the Family Court is an
inappropriate forum for the proceedings and that the matter should be
remitted to Greece. His Honour agreed with that submission and made
orders accordingly, conceiving himself to be following Scott and
Scott ((32) (1991) FLC 92-241 at 78,640.). In that case, a Full
Court of the Family Court had held that "the principles of the doctrine
of forum non conveniens (as laid down by the High Court in Voth v.
Manildra Flour Mills Pty. Ltd. ((33) [1990] HCA 55; (1990) 171 CLR 538.) ) is
appropriate to custody proceedings in (the Family) Court". In coming
to that conclusion, the Full Court had said ((34) (1991) FLC at
78,640.):
" Broadly, we think that the test may be stated as being"Accordingly", Mushin J held -
that an Australian court whose jurisdiction has been
properly invoked in custody proceedings, will exercise
the same unless it is demonstrated that it is a clearly
inappropriate forum. This will be demonstrated by showing
that the welfare of the child requires that the proceedings
be determined elsewhere or, failing that, that it is
vexatious or oppressive for the proceedings to continue in
the Australian court."
"in order to succeed the applicant husband must demonstrateHis Honour reconciled the Voth test of "clearly inappropriate forum"
that this is a 'clearly inappropriate forum' for these
proceedings to be heard. In determining that issue, I must
give full weight to the prescription of section 64(1)(a)
of the Act which requires that the welfare of the subject
child be the paramount consideration."
"It is well accepted that if a factor relevant to theWith respect, the proposition that any single factor which "appears
welfare of the child appears clearly on the evidence such
as that the child has been removed unilaterally by a parent
from its long established environments, such factor must be
given determinative effect in accordance with the statutory
instruction that the welfare of the child is the paramount
consideration in s.64(1)(a) of the Act".
"The fundamental issue is the unilateral removal of theHis Honour made orders designed to ensure that Dimitrios would be
child from Greece where he was born and raised and where
there were, at the time of that removal, extant orders of a
court of competent jurisdiction including an agreement and
order that the child should not be removed from Greece."
4. An appeal to the Full Court was dismissed by a majority (Kay and
Graham JJ, Nicholson CJ dissenting). The majority found no error
affecting the decision of Mushin J Their Honours responded to a
submission that the trial judge had been "'fixated' with the removal
aspects of the child and paid inadequate attention to the aspects
relating to welfare" by saying that -
"it matters not whether one applies the Voth test or oneTheir Honours referred to an earlier decision in Barrios and
applies the test of the welfare of the child as the
paramount consideration. By either test, one is inexorably
led to the conclusion that the Family Court of Australia is
an inappropriate forum to determine the issue as to whether
or not this child should be allowed to live in Australia or
Greece."
"save in exceptional circumstances, children who have beenThe majority's view was that -
removed from their lawful custodial parent in another
country without the authority of a court should be returned
to that parent."
"Courts should act to discourage the abduction of childrenAfter citing a passage from the judgment of Buckley LJ in In re L.
across national borders."
"Ultimately one must focus on the particular child andThen, without mentioning any factor other than the juridical advantage
determine what is in the interests of that particular
child."
5. In our respectful opinion, the judgments of Mushin J and of the
majority of the Full Court are affected by an error of principle in
that considerations other than the welfare of the child have been
impermissibly treated as aspects of welfare or have been elevated to
criteria of an importance comparable with the criterion of welfare.
Moreover, the majority's failure to refer to the question whether the
mother would accompany Dimitrios if he were returned to Greece in his
father's custody or would remain in Australia unable to take custody
of Dimitrios in Greece demonstrates their Honours' misunderstanding
of the true concept of welfare as the paramount consideration to
which they were bound to have regard. The error is understandable in
the light of the approach hitherto taken by the Family Court to the
principle in Voth and to the policy of the Convention.
The relevance of Voth v. Manildra Flour Mills Pty. Ltd.
6. The Family Court's attempt to meld the paramount consideration
of the welfare of the child with the test of "clearly inappropriate
forum" is misconceived. The latter test determines whether, in
certain classes of case, a court should decline to exercise its
jurisdiction; the former consideration governs the manner in which the
Family Court must exercise the jurisdiction which has been conferred
upon it by s.63. The test of "clearly inappropriate forum" is not an
alternative test to the welfare of the child in determining the order
to be made when the custody jurisdiction conferred by s.63 is to be
exercised. Putting to one side the cases to which the Convention
applies, s.64(1)(a) defines the paramount consideration. When a
child is abducted from one country and brought to Australia and the
abduction is not covered by the Convention, the abduction is relevant
only by reason of the effect it has on the child's welfare. In
this respect, the judgment of Buckley LJ in In re L. ((38) (1974) 1
WLR at 264-265.) is unexceptionable:
" To take a child from his native land, to remove him to
another country where, maybe, his native tongue is not
spoken, to divorce him from the social customs and contacts
to which he has been accustomed, to interrupt his education
in his native land and subject him to a foreign system
of education, are all acts ... which are likely to be
psychologically disturbing to the child, particularly at
a time when his family life is also disrupted. If such a
case is promptly brought to the attention of a court in
this country, the judge may feel that it is in the best
interests of the infant that these disturbing factors
should be eliminated from his life as speedily as possible.
A full investigation of the merits of the case in an
English court may be incompatible with achieving this. The
judge may well be persuaded that it would be better for the
child that those merits should be investigated in a court
in his native country than that he should spend in this
country the period which must necessarily elapse before
all the evidence can be assembled for adjudication here.
Anyone who has had experience of the exercise of this
delicate jurisdiction knows what complications can result
from a child developing roots in new soil, and what
conflicts this can occasion in the child's own life. Such
roots can grow rapidly. An order that the child be
returned forthwith to the country from which he has been
removed in the expectation that any dispute about his
custody will be satisfactorily resolved in the courts of
that country, may well be regarded as being in the best
interests of the child."
7. It is entirely appropriate for the Family Court in an abduction
case to have regard to these factors in determining the welfare of the
child. And it may be entirely appropriate to order the speedy return
of the child to the country from which he or she has been abducted
without making as full an inquiry as the Court would ordinarily make
in determining an application for permanent custody. Where it is for
the welfare of the child that an order for speedy return is made, the
Family Court is not primarily concerned with the question whether
it is a clearly inappropriate forum to determine an application
for permanent custody. The Family Court is the only court that
can appropriately make an order for speedy return and it has no
jurisdiction to remit the question of permanent custody for
determination by a court in another country. The Family Court
must therefore make the order that is appropriate in the unique
circumstances of the case at the time when the proceedings are before
it. In determining an application for speedy return of the child to
another country, it may be material to consider whether, if an order
is made, the courts of the other country will properly inquire into
and determine the child's permanent custody. But that is not to apply
a "clearly inappropriate forum" criterion to the determination of the
application. If the Family Court properly makes an order for the
speedy return of a child abducted from another country, the Court
is not declining to exercise its jurisdiction; it is exercising its
jurisdiction by making an order dictated by the welfare of that child.
8. Section 64(1)(a) does not preclude a summary hearing in an
appropriate case to determine speedily whether an order should be made
for the return of a child to the country from which he or she has been
abducted. A summary hearing may be necessary because the Court must
balance the need for a speedy determination against the desirability
of an adequate inquiry into welfare generally. It may be possible to
restrict the inquiry to matters bearing directly on the effect which
the child's presence in Australia and his or her absence from the
other country has on the child's welfare. But the Court must not make
its determination by presuming that any child's welfare is better
served by leaving the child in Australia or, conversely, by ordering
the return of the child to his or her previous or usual country
of residence. Nor can the Family Court abdicate its own duty to
determine the proceedings in accordance with s.64(1)(a) by deferring
to the judgment of the court of another country unless the particular
circumstances of the case show that that course is in itself in the
best interests of the child ((39) McKee v. McKee (1951) AC 352 at
363-364.). It may be thought that there is always one factor tending
in favour of making an order for the return of an abducted child to the
country in which the child ordinarily resides, namely, the superior
capacity of the courts of that country to determine what is in the best
interests of the child. This seems to have been the view of Neill LJ
in In re F. (Abduction: Custody Rights) ((40) (1991) Fam 25 at 32.)
(a view which all of their Honours in the Full Court accepted):
"in the ordinary way, any decision relating to the custodyWith respect, that approach is mistaken in two respects. First, if
of children is best decided in the jurisdiction in which
they have normally been resident. This general principle
is an application of the wider and basic principle that the
child's welfare is the first and paramount consideration".
The policy of the Convention
9. The policy of the Convention is not a factor which can displace
the paramount consideration of welfare. It is only if welfare factors
be evenly balanced that secondary considerations - such as the policy
of discouraging the abduction of children across national borders or
the desirability of the determination of permanent custody being made
in the child's ordinary place of residence - can have any weight in
guiding the exercise of the Family Court's powers. The secondary role
of such considerations was recognized by a Full Court of the Family
Court in Barrios and Sanchez where, speaking of the Convention policy
of returning children abducted from a custodial parent in another
country, the Court said ((41) (1989) FLC at 77,609.):
" In the present case we think it is appropriate to takeIn the present case, the qualification expressed in Barrios and
this into account as an element to be considered, albeit
subservient to the principle of the paramountcy of the
welfare of the child." (Emphasis added.)
10. In the present case, Mushin J mistook what was the "fundamental
issue". It was neither the removal of Dimitrios from Greece nor the
court order and agreement that he should not be removed from Greece.
It was this: what order should be made to serve Dimitrios' welfare
best? Mushin J misdirected himself and therefore his order required
reconsideration by the Full Court. In the Full Court, however, the
majority also misconceived what they said was the "fundamental issue",
namely -
"whether the proceedings should be allowed to continue on inBy either test, the majority concluded that:
Australia or be required to take place in another country.
That issue in turn is dictated either by the forum non
conveniens rules outlined in Voth or by the principle that
the welfare of the child is the paramount consideration."
"the Family Court of Australia is an inappropriate forum toNext the majority referred to the policy of discouraging abduction.
determine the issue as to whether or not this child should
be allowed to live in Australia or Greece."
11. Nicholson CJ dealt with that question in these terms:
"the wife claimed that she would suffer the followingThese facts, if true, are of much greater significance than the fact
disadvantages if she returned to Greece:
. she would have no Legal aid;
. she would have no prospects of a job and would not be
eligible for employment;
. she would have no housing including no furniture nor
basic household items;
. she has no particular employment qualifications;
. she has no driver's licence;
. she has no right to vote;
. she is not eligible for social security;
. she has no savings;
. she has no income other than maintenance;
. she is not eligible for Greek Public Health Care.
...
She also referred to the fact that by reason of her breach
of the Greek order, she faces possible penal sanctions if
she returns to Greece.
...
At trial, she indicated that she proposed to return to
Greece with the child, but on the hearing of the appeal,
she indicated through her counsel, that because of these
factors she had decided not to return to Greece with the
child if the Court ordered the child's return.
Again, if she does not return to Greece with the child,
the effect of his Honour's order may well have serious
consequences for the child's welfare since the mother has
been the child's primary caregiver until he was 20 months
old and his sole caregiver since that age.
The husband, on the other hand, is 56 years old, has no
experience with the care of children and only seeks to
become a custodial parent by default in the event of the
wife not returning.
A further relevant, albeit less significant factor, is the
fact that the child has been in Australia since April 1993;
has commenced school in this country and as his Honour
found, appears to be perfectly happy."
"a determination of all or most of these issues in favour ofWe respectfully agree with his Honour's conclusion that, as the true
the wife would have meant that the return of the child to
Greece would be likely to produce a devastating effect upon
the welfare of the child."
12. We would therefore allow the appeal, set aside the orders of the
Full Court and in lieu thereof allow the appeal to that Court, set
aside the orders of Mushin J, remit the matter to the Family Court
to consider whether, in accordance with the reasons for judgment of
this Court, orders for the return of Dimitrios to Greece should now
be made pursuant to the father's application and, if that application
be refused, to determine the matter of the mother's application for
permanent custody.
13. Once the orders in the Family Court are set aside on appeal to
this Court, the orders nisi for prohibition and certiorari can be
discharged without further consideration. The order nisi for mandamus
can also be discharged, since the setting aside of the orders made by
the Family Court and the remitting of the matter to the Family Court
would lead in the ordinary course to a redetermination of the
applications pending before that Court. There has not been, and there
would not be, any refusal to exercise that jurisdiction in accordance
with the judgment of this Court. We would therefore discharge the
order nisi for mandamus.
DEANE AND GAUDRON JJ This case concerns the custody and welfare of
a young boy, Dimitrios, who was born and brought up in Greece until
his mother brought him to Australia in breach of a custody order made
in her favour by a Greek court. His mother is an Australian citizen
of Greek origin, as, apparently, is his father who, according to the
wife's affidavit evidence, has an Australian passport. Dimitrios is
also an Australian citizen.
2. The factual background and the history of the proceedings are set
out in the judgment of Mason CJ, Toohey and McHugh JJ So too, is
the principle to be applied in the situation where a child has been
brought to this country in breach of custodial arrangements and the
question arises whether future custody and related matters should be
determined in the Family Court of Australia or in the courts of the
country from which the child was taken. We agree with Mason CJ,
Toohey and McHugh JJ that the correct principle was not applied at
first instance. However, we do not agree with their Honours' further
conclusion that there was no error in the approach taken by the
majority in the Full Court.
3. In cases such as the present, the issue is not forum non
conveniens. Rather, as Mason CJ, Toohey and McHugh JJ point
out, the issue is whether the welfare of the child requires speedy
repatriation to the country from which he or she was taken, with the
courts of that country determining custody and other matters relating
to the child's upbringing. We would add, however, that in determining
what is in the interests of the welfare of the particular child, a
court is entitled to take account of considerations of public policy
reflecting and protecting the interests of all children. Among those
considerations of public policy is the prima facie importance, in the
interests of all children, of discouraging the taking of a child from
his or her homeland and familial environment, in breach of the law of
that homeland, for the purpose of obtaining standing or some forensic
advantage in a dispute about custody, access or financial support in
the courts of some other place. Such abduction of children across
national boundaries, if encouraged by being treated as an accepted
means of attracting the jurisdiction of, or obtaining some procedural
advantage in, the desired forum, pose a threat to the security of any
child subject to competing national claims or loyalties.
4. More particularly, such abductions will commonly subject the
particular child to serious tension and profound conflicts of
affection and loyalty. Almost invariably, they will involve the
infringement of the legitimate claims of the members of the child's
immediate or extended family from whose custody or environment the
child has been unlawfully taken. A court concerned with the welfare
of the child will be conscious of the irreparable damage which might
be done to the child's ties with those members of his or her immediate
or extended family and with his or her homeland if it effectively
overrides those legitimate claims by immediately embarking upon a
lengthy hearing to determine what it considers to be the desirable
final resolution of competing claims and allegations bearing upon the
ultimate welfare of the child. Such a court will also be conscious of
the undoubted fact that, in the ordinary way, questions relating to
the custody of a child who has been raised in a jurisdiction in which
his or her immediate and extended family have commonly been resident
are best determined in that jurisdiction. Necessarily, in such a
case, a court into whose jurisdiction a particular child has been
brought by means of such an abduction should first address the
question whether the welfare of the particular child will be best
served by the making of a summary order providing for the return of
the child to the jurisdiction of the courts of the place from which
the abduction occurred.
5. At first instance, the parties agreed that there was a
preliminary question to be decided, namely, whether Australian or
Greek courts should determine custody and related matters, and that
that question should be determined "on the papers". However, it seems
that they thought that the question was to be decided by reference to
forum non conveniens rather than what was required in the interests of
their child.
6. The appeal was also decided "on the papers", apparently with the
concurrence of the parties. In this regard, it is sufficient to note
that the majority (Kay and Graham JJ) concluded that, whether the
issue was approached on the basis of forum non conveniens or from
the perspective of the welfare of the child, the decision at first
instance to the effect that "the Family Court of Australia (was) an
inappropriate forum to determine .. whether or not (Dimitrios) should
be allowed to live in Australia or Greece" was clearly correct. Their
Honours cited a number of matters which, in their view, led to that
conclusion, all of them being matters which appeared "on the papers".
However, Nicholson CJ, in dissent, expressed the view that the
question whether Dimitrios' welfare required that custody and other
matters relating to his upbringing be decided in Greece rather than
Australia could not be answered without first determining certain
factual issues raised by the wife.
7. There may be cases where preliminary welfare questions can be
answered in favour of the foreign court simply by having regard to the
earlier custodial arrangements and the circumstances under which the
child was brought to Australia. That will usually be the case if a
non-custodial parent unilaterally and unlawfully removes the child
from a long-established, stable and secure environment. Cases of that
kind will often be cases that can be determined "on the papers" or, at
least, without investigation of issues beyond those involved in the
child's presence in Australia. However, other cases may not be so
clear-cut: they may require a determination of matters going to the
ultimate welfare of the child. A wider examination of that kind will
be required if, for example, there is some feature of the earlier
arrangements which appears not to be in the child's best interests and
that feature is not likely to be remedied by the courts of the other
country. Usually that will require resolution of contested issues of
fact and not merely a determination "on the papers".
8. On the assumption that the wife was able to present a case in
the Greek courts to the effect that Dimitrios should be brought up in
Australia, the case at first instance would seem to have been one that
could be decided "on the papers". At the conclusion of the hearing,
it emerged that the mother was prepared to return to Greece with
Dimitrios in the event of a decision that custody and other
arrangements concerning his upbringing should be determined by the
courts of that country. This meant that the preliminary welfare issue
was within a narrow compass: the father had already indicated that he
would not seek custody in the Greek courts, with the consequence that
the mother, who had been the primary care-giver and, since separating
from Dimitrios' father, the sole care-giver, would continue as the
custodial parent. And this was so whether Dimitrios was brought up
in Australia or in Greece. However, the issue was much wider if the
mother was not able to present a case and her return to Greece meant
that the child would inevitably be brought up in that country. In
that event, there was an issue to be determined as to the child's
ultimate welfare in the light of the mother's claims as to her lack of
financial and social security in Greece.
9. It should be noted that the mother's preparedness to return to
Greece emerged only at the conclusion of the case before Mushin J
Earlier, she had pointed to a number of difficulties involved in
living in Greece, including the lack of friends and financial
security. However, finally, she indicated that she would return, but
only with great reluctance. She indicated at the same time that she
could only resettle in Greece if provided with sufficient funds, which
she estimated at $10,000. It may be that she thought that a return
to Greece would inevitably involve resettlement in that country,
either because she did not understand what was proposed or because she
considered she was in no position to present a case in Greece. There
are, of course, other reasons why she might have thought it necessary
to mention resettlement. However, none of these matters has ever been
explored.
10. When the appeal came on in the Full Court, the mother indicated
that she no longer intended to return to Greece. Her counsel said
that this change of mind was the result of various factors, including
the possibility of penal sanctions for breach of the Greek custody
order. Other factors which, it was said, influenced her decision are
set out in the judgment of Nicholson CJ as follows:
". she would have no Legal aid;It was submitted that these matters should be contrasted with the
. she would have no prospects of a job and would not be
eligible for employment;
. she would have no housing including no furniture nor
basic household items;
. she has no particular employment qualifications;
. she has no driver's licence;
. she has no right to vote;
. she is not eligible for social security;
. she has no savings;
. she has no income other than maintenance;
. she is not eligible for Greek Public Health Care."
11. The mother's resolve not to return to Greece was not tested in
any way. Nor were her claims as to the difficulties associated with
living in that country. However, her reluctance to return had been
manifest from the time that question first arose. Indeed, when it did
arise, she dismissed her legal advisers and sought an adjournment to
put further material before the court. And the disadvantages which
she pointed to were not only plausible, but of a kind that might well
lead to a conclusion that no one's interests would be served if she
returned. Certainly, her change of mind could not be dismissed as
lacking genuineness without some examination of her claims. And if it
was genuine it could not, in our view, be ignored, for other questions
then arose. And those questions could not be determined simply "on
the papers".
12. In the event that the mother's change of mind was genuine, the
question was not whether a Greek or Australian court should decide on
Dimitrios' future upbringing. Nor was the question whether he should
be brought up here or in Greece. The question was whether he should
be brought up in Greece by his father who, it seems, is not pressing
for custody, or, in Australia by his mother who has cared for him
since birth. None of these questions will be addressed by the Greek
courts if the mother does not return. None of them was addressed by
the majority in the Full Court.
13. Quite apart from the error of principle which occurred at first
instance and which is identified in the judgment of Mason CJ, Toohey
and McHugh JJ, the preliminary welfare question could not, in our
view, have been answered without a determination as to whether the
mother would be able to present a case in the Greek courts to the
effect that Dimitrios should be brought up in Australia. If she could
not, it would then have been necessary to determine whether, in the
light of her claims as to the life she would be obliged to live in
Greece, the child's best interests required his return.
14. As already indicated, the case changed in the Full Court when the
mother indicated that she did not intend to return to Greece. At that
stage, it became necessary to determine whether her stated intention
was genuine and, if so, whether it was in the best interests of the
child to stay with his mother in Australia or to return to Greece with
his father.
15. It seems likely that Mushin J and the majority in the Full Court
failed to determine the matters referred to in the last two paragraphs
because the parties agreed that the case was one that could be
determined "on the papers". However, agreement in that regard cannot
affect the outcome of a case in which the paramount consideration
remains, throughout, the welfare of the child.
16. The majority in the Full Court fell into error in not considering
the issues raised by the mother's statement that she did not intend to
return to Greece. Accordingly, we would allow the appeal, set aside
the orders of Mushin J and remit the matter to the Family Court for
further hearing.
17. There is also an application for prerogative relief. That
application proceeds on the basis that the question before the Family
Court was whether it should or should not exercise jurisdiction. It
was not. The question was whether, in the interests of the child, it
should exercise its jurisdiction to bring about his return to Greece
with the consequence that other questions concerning his welfare would
be determined in that country. The court exercised its jurisdiction
to achieve that result and nothing that it did in that regard amounted
to a jurisdictional error. That being so, the orders nisi must be
discharged.
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URL: http://www.austlii.edu.au/au/cases/cth/HCA/1994/29.html