Child abduction and forum – Father fails in his appeal against order that he return child to mother in non-Hague Convention country
In Acquaah-Akuffo & Abioye [2016] FamCAFC 194 (27 September 2016), the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) heard the father’s appeal against Gill J’s interim order that the father return a child to the mother in Ghana, the father having unilaterally retained the parties’ child in Australia at the end of an agreed holiday. Both parties were Ghanaian nationals although the father lived in Australia. A Ghanaian Court had ordered in 2011 that the child live with the mother and spend time with the father. It was uncontentious that the agreed holiday was such that the child would stay with the father in Australia but return to Ghana for commencement of the school term on 9 September 2015. The father, however, retained the child and in March 2016 filed an application for parenting orders in the Federal Circuit Court (which was transferred to the Family Court).
The Full Court said (from [15]):
“His Honour did not accept the argument mounted on behalf of the father that to return the child to Ghana would be detrimental for him if final orders were then made that the child be returned to Australia. On this issue … his Honour observed [that] the change to Australia was unfamiliar to the child whereas the return to his mother was a return to the familiar …
( … )
[18] …
[H]is Honour concluded that the maintenance of the mother’s relationship which the child had with her before the father’s act of removal of him from Ghana would be substantially affected. On the other hand, his Honour noted that the father had, in the past been able to travel to Ghana to spend time with the child …
[19] The trial judge found … that the father’s action in retaining the child ‘displays little concern for the significance of the relationship between [the child] and his mother’.
[20] His Honour concluded, having regard to the matters contained in s 60CC of the Act that it is in the child’s best interests to live with his mother and that he ‘promptly’ be returned to her care in Ghana … This conclusion was driven by his Honour’s findings that the father’s actions of taking and retaining the child conflicted with the child’s relationship with the mother; that the removal of the child to Australia had effected a serious disruption of the child’s living circumstances; that the reasons for removing the child from Ghana proffered by the father ‘at their highest, appear[ed] to be of marginal benefit to [the child]’; and that the mother had no capacity to come to Australia …”
The Full Court said (from [25]):
“ … it seems to us that some unnecessary confusion attended the proceedings and the determination of the issue.
[26] What was before his Honour was a matter which required him to determine in which forum, Australia or Ghana, the parenting dispute about the child was to be heard. The determination of that question is to be had by reference to the child’s best interests. At the outset of her oral submissions, as she did in her written argument to his Honour, the advocate for the mother clearly identified the issue by reference to ZP v PS (1994) 181 CLR 639 and said:
‘ … where the court was considering proceedings under this Act where the issue for determination was whether a child in Australia having been removed in Australia from a foreign jurisdiction should be returned to that jurisdiction so the foreign court could formalise the parenting issues regarding that child. And, your Honour, in that case the High Court held the decision to be made by the court was to be made in accordance with the exercise of the court’s welfare jurisdiction and, therefore, should be in accordance with the child’s best interests. … ’
[27] She further referred his Honour to Pascarl & Oxley (2013) FLC 93- 536 and said:
‘ … And in that matter the Full Court distilled the authorities in respect of abduction of children and noted that in cases where a child had been abducted from a non-Hague Convention country it may be appropriate for a court to conduct a speedy summary hearing and to order the return of the child. And, of course, that’s our application today. … ’
( … )
[31] The advocate’s articulation of the law and the principles and her application of the facts to those principles was entirely correct. Regrettably the focus of the hearing deflected from that point.
( … )
[42] There being no contention that Ghana was the country of the child’s residence up until the time he was brought to Australia and retained here by the father without the mother’s consent, it is appropriate to commence a discussion of the relevant legal principles with ZP v PS (1994) 181 CLR 639.
( … )
[44] Their Honours [Mason CJ, Toohey and McHugh JJ] at 648 quoted with approval the statement by Neill LJ in In re F (Abduction: Custody Rights) [1991] Fam 25 at 32:
‘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.’
[45] Their Honours continued … at 648 that when the question arises whether the Family Court or a foreign court should determine the issues of custody of children:
‘ … In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that the Court should embark on determining the issue of custody itself.’
[46] In Kwon and Lee [2006] FamCA 730 … (also reported as EJK & TSL [2006] FamCA 730) the Full Court said, after reviewing the authorities:
‘ … We consider the following principles can be distilled from authority:
…
(vi) in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the Court will have regard to the child’s best interests as its paramount consideration; … ’
[47] In ZP v PS in the joint judgment of Brennan and Dawson JJ, their Honours at 663 adopted the following passage of Buckley L.J. in In re L (Minors) [1974] 1 WLR 250 at 264 – 265:
‘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.’
The father’s appeal was dismissed with costs.