Barrios and Sanchez (Australia 1989) [1989] 96 FLR 336 =========================================================== IN THE MARRIAGE OF: SAM JOHNNY BARRIOS (CARRASCO) APPELLANT/HUSBAND AND MONICA SANCHEZ (HERNANDEZ) RESPONDENT/WIFE APPEAL No. 115 of 1989 SUIT No. AD 2930 of 1989 Family Court of Australia IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA Nicholson C.J.(1), Murray(1) and Rowlands (1) JJ. Hearing: SYDNEY DATE: 14 Jul 1989 Mr S. W. Tilmouth of counsel instructed by Legal Services Commission of South Australia, appeared for and on behalf of the appellant/husband. The appeal will accordingly be dismissed. JUDGE1 1. THE COURTThis is an appeal by the husband against an order by Burton J made on 26 May 1989 whereby his Honour ordered that the husband return the infant children of the marriage PAULA CAROLINA BARRIOS born on the 19th day of July 1978 and RODRIGO ANDRES born on the 8th day of September 1980 to the custody of the wife in Chile as soon as practicable. The operation of that order has been stayed by Gun J pending the hearing of this appeal. The notice of appeal contained some 8 grounds but the substance of the appeal may be described as being that the learned trial judge erred in either paying insufficient or no regard to the children's wishes or in failing to obtain a report from a welfare officer approved under section 62A of the Family Law Act 1975 as to the children's wishes. 2. Before dealing with the arguments relating to these matters it is necessary to say something of the history of the matter. 3. The parties were married on 12 June 1974 in Chile and the children were born on 19 July 1978 and 8 September 1980 respectively. It appears that the parties separated in 1982 and thereafter the children remained with the wife until they came to Australia with their paternal grandmother for a visit in November 1988 during the Chilean school holidays. 4. The husband swore in an affidavit filed in the proceedings, that shortly after the separation he and the wife agreed that she would have the care of the two children and that he would have access to them each alternate fortnight and for a longer period once each year and that he would pay regular maintenance for the children. He deposed to the fact that this agreement was lodged in the Family Court at Santiago and he believed that it became an order of the court. He also swore that since that time he had paid to the wife maintenance of the equivalent of $US50 per month. 5. He came to Australia in November 1986. He said that before leaving Chile he gave to the wife the sum of approximately $US1500 being half the proceeds of the sale of his business and did not thereafter pay weekly maintenance until October 1987 when he began paying $US100 per month, which he increased to $US120, in the three months prior to the children coming to Australia in 1988. 6. The husband has deposed to the fact that he left Chile and migrated to Australia as a political refugee arriving here with his de facto wife and two children of her previous marriage. Since the parties have been living in Adelaide a child has been born of that relationship namely, DAVID SAMUEL on 2 June 1987. He said that prior to coming to Australia he had regular access to the children in accordance with the arrangement previously referred to and that since he had left Chile his mother had had access to the children in lieu of himself. 7. In 1988 the husband's mother arranged to come to Adelaide to visit him. The children accompanied the husband's mother on the basis that they would return to their mother in Chile after the school holidays. The wife agreed to this arrangement and the children arrived in Australia with the husband's mother on temporary tourist visas on 2 December 1988. 8. It also appears from the material that the wife obtained an ex parte custody order from the Children's Court in Santiago shortly prior to the children coming to Australia, that order being made on 18 November 1988. The husband had no notice of that application or order having been made but it appears probable that it was made as a result of Australian Embassy requirements relating to the issue of visas. These visas in fact expired in June 1989 but the Immigration Department have refrained from taking further action pending the decision of this court in the matter. Although there was no direct evidence as to the attitude of the Immigration Department it appears probable that if this court was to make custodial orders in favour of the husband, that the department would permit the children to remain in Australia. 9. According to the husband's affidavit the children indicated to him as soon as they arrived in Australia that they were not happy living with their mother and wanted to stay with him. He said that he subsequently asked the wife if the children could stay for a long time in Australia but she refused. He says that the children thereafter became upset and that they became more upset as the time for their return to Chile grew nearer. He apparently sought advice from a social worker and obtained some legal advice to the effect that he did not need to get the wife's consent to obtain custody of the children. He then telephoned the wife again in Chile and explained this to her and he says that the children spoke to her on the telephone and told her that they wanted to stay with the husband. The husband claims that the wife then said that she would agree for the children to stay as long as they were 100 per cent sure that they wanted to stay. 10. Significantly enough on 31 January 1989 at the behest of the husband the children commenced attending Salisbury North Primary School where there is an "English As A Second Language" unit. If they were to remain in Australia they would stay in this unit for a further three to six months and then go into a normal class for their age group. 11. This matter is of some significance because it indicates that by the 31st January at least the husband was already planning to retain the children in Australia. 12. In his affidavit the husband said that he had told the children that he was seeking legal assistance in relation to obtaining custody and he claims that they have been much happier since becoming aware of this and that in a recent telephone call to the wife, the child Paula told her that she wanted to stay in Australia and do whatever she had to do to achieve this. He says that as a result of this comment the wife agreed that Paula could stay. During the same call the wife told the child Rodrigo that if he stayed in Australia he would never see her again and that this made Rodrigo unsure about what he wanted to do but that according to the husband he eventually said that he preferred to stay. 13. The husband's mother has now returned to Chile without the children. The husband claims that he has not influenced the children to stay in Australia but asserts that it is in their best interests to stay in this country. He says that he does not wish to keep the children here if they are not happy and that if they do remain in Australia he intends to make sure that they keep up contact with their mother and will ensure that they telephone and write to her regularly. 14. The matter came on for hearing before Judicial Registrar Forbes on 30 March 1989. At that stage difficulties had been experienced in properly serving the wife but communications had taken place with her via the Chilean Consul in Melbourne. The solicitor then appearing for the wife indicated to the Judicial Registrar that there was a possibility that the wife would consent to an order in favour of the husband and the Judicial Registrar adjourned the matter until 7 April 1989. At that time she informed the Judicial Registrar that she was instructed by the husband that he had spoken to the wife confirming the contents of a telex received by the Consul from his Ministry in Chile which said that the wife agreed to the children staying in Australia until the end of the year. 15. The matter was further adjourned until 21 April 1989 to enable the husband's legal advisers to obtain a copy of the telex in question and a translation of it. 16. This telex was heavily relied upon in argument before us by Mr Tilmouth, for the husband, and in the circumstances it is I think desirable to set it out in full. The telex is expressed to be from the Ministry of Foreign Affairs to the Consul-General of Chile in Melbourne. It is dated 31 March 1989 and it reads as follows: "Your telex 13. Mrs Sanchez read your telex and said she is only concerned about the wellbeing of her children and does not want to aggravate this conflict or bring back the children against their will. She also wants the assurances of Mr Barrios that if the children want to come back they will be allowed to do so and that she will be able to see them without restrictions. Therefore she agrees that the children remain until the end of the year. Nevertheless she makes it clear that the fact that she does not exercise the actions for their return to her, does not mean that she is renouncing to her rights, as recognized by judicial sentence passed by the Children's Court and agreed upon by the father of the children, as a condition required by the Australian Mission in Santiago, before Mr Barrios trip to Australia. This means that if her ex-husband starts a judicial procedure, as you mentioned it in point 4 of your telex, she would also be obliged to start the judicial procedures in order to enforce the resolution of the Chilean court concerning the custody of the minors, decision aggravated by her feeling that she feels cheated, due to the circumstances that she consented in good faith to the trip of the children to Australia for a fixed period of time. Mrs Sanchez wants her children to be informed that should any problem arise they should contact her through that consulate. Concerning the presumption of a lack of care on her part with regard to the children, that was due to the critical economic situation she had to cope with forcing her to work for her maintenance and that of her children which, obviously, did not allow her to give them all the proper attention. During this period she did not receive any economic assistance from Mr Barrios 17. The last paragraph of the telex relates to certain allegations made by the husband of lack of care of the children by the wife whilst they were in Chile which are not material for present purposes and which were not the subject of argument. 18. In an affidavit sworn 21 April 1989 the husband said that he had spoken to the wife by telephone on several occasions since the hearing on 30 March 1989 and 7 April 1989 and that in those telephone conversations the wife told him that she agreed to the children staying in Australia to the end of 1989 and possibly longer if they did not want to return home. He said that she wanted the children to be allowed to contact her and also to be permitted by him to return home should they wish to do so. He said that she told him that provided the children wished to remain with him she did not object to him proceeding with his application to this court. 19. On 21 April 1989 Judicial Registrar Forbes ordered that the husband cause the children to be returned to Chile within 7 days of the date of that order. 20. In substance, the learned Judicial Registrar in making this order, relied upon the fact that the children had come to Australia for the purposes of a holiday with the wife's agreement, the fact that the children are natives of Chile and are of Chilean heritage having lived with their mother in Chile since the separation in 1982 and the fact that she had obtained an order in the Chilean court for their custody. 21. As to the wishes of the children he noted that Rodrigo had some uncertainties as to wanting to remain but in any event he thought that it was inappropriate to attach much weight to what the children wished to do in the circumstances. He was not prepared to accept the proposition that the wife had consented to the children remaining in Australia and referred to the terms of the telex in this regard. 22. Application was made for a review of the Judicial Registrar's order on 26 April 1989 and on the same day Burton J ordered a stay of the operation of the order pending the hearing of the application for a review. 23. The solicitor for the husband conceded on the hearing of the application for a stay before Burton J that the wife had not been served with any of the relevant documents. His Honour indicated at that stage that unless he could be absolutely certain that the wife fully understood the nature of the proceedings, and that having fully understood them she had given her consent, he would take a lot of persuading that the children should not go back to Chile. It appears that by this time the Consul-General for Chile had refused to act any further as an intermediary for the purpose of communication with the wife and his Honour in granting the stay also made orders for service of relevant documents on the wife. 24. As yet there is no evidence that service of these documents has been effected nor is there evidence that service of the notice of appeal has been effected and indeed Mr Tilmouth made application at the commencement of the hearing before this court for an order dispensing with service. In view of the orders that the court proposes to make it is appropriate that service should be dispensed with. 25. The matter again came on for hearing before Burton J on 23 May 1989 by which time some documents had been received from the wife via the Chilean Consul-General. The matter was accordingly further adjourned to 26 May 1989 when a witness was called to give a translation of the documents so received. A further written translation of it was sought to be tendered in evidence on the appeal and was accepted upon the basis that it did not materially differ from the evidence before his Honour and put the matter in a more convenient form. 26. It is unnecessary to set out this document in full but it may be summarized as follows: First the application of the husband is opposed on jurisdictional grounds because of the order of the Chilean court in relation to custody. Secondly the application is opposed on factual grounds relating to the circumstances in which the children came to Australia and the validity of the children's expressed intention to reside in Australia is questioned. 27. Paragraph (5) of the document upon which Mr Tilmouth placed considerable reliance reads as follows: "As a final consideration I state that I am willing to allow, without renouncing to the custody of my younger children given to me by the Court in Chile, that they remain with their father until the end of the current year, providing that I receive sufficient guarantees through the Australian Judicial Authorities and the Chilean Diplomatic and Consular representatives in Australia that my children will be able to return to their country at the end of this period or before if they wish it so." 28. The final paragraph of the document however is somewhat inconsistent with this in that it refers to a telephone call from the husband on 9 May 1989 and indicates a willingness that the child Paula at her own request be allowed to remain until the end of the current year: ". . . the 1st of December 1989 being the latest date of her return and and that my son Rodrigo, through his request, be returned immediately to his country." 29. The principal matter canvassed before Burton J was the question of the consent of the wife and it is apparent from this document and from the telex that at no stage did the wife consent to an order for custody in favour of the husband. 30. When the matter came on before his Honour on 26 May 1989 the solicitor for the husband conceded that there had been no consent by the wife but then submitted that the wishes of the children had not been directly sought. She submitted that a counsellor's report should be obtained directed to this issue and relied upon the decision of this court in Joannou v Joannou (1985) FLC 91-642. His Honour however expressed the view both in argument and in the course of his reasons for judgment that in the particular circumstances of this case the wishes of the children would not be of great assistance to him. The relevant passage from his Honour's judgment is as follows: "It was put to me that the wishes of the children should be considered and an authority for that proposition was cited to me. I do not believe the wishes of the children in this case could help me. They are aged 10 and 8; they have been living with their father now for 6 months. There may have been some telephone communication between the children and the wife in that time but I believe that because of the separation and the vast difference in lifestyle involved and the fact that the wife has not had the opportunity of any real influence on the children's lives in the last six months, that their wishes could not be such as I could gain any assistance from them." 31. Mr Tilmouth in arguing that his Honour was in error first relied upon the repeal of section 64(1b) of the Family Law Act 1975 which formerly provided that when a child has attained the age of 14 years the court should not make an order contrary to the child's wishes. By Act No. 72 of 1983 the following provision was substituted. "The court shall consider any wishes expressed by the child in relation to the custody or guardianship of, or access to, the child, or in relation to any other matter relevant to the proceedings, and shall give those wishes such weight as the court considers appropriate in the circumstances of the case." 32. Mr Tilmouth said that this demonstrated a clear legislative intention that the court should always consider the wishes of children of whatever age assuming that they were capable of expressing them. He referred also in this regard to Reynolds v Reynolds (1973) 1 ALR 318 at 322 and Hodge v Hodge (1965) 7 Fam LR 94. 33. Secondly Mr Tilmouth submitted that his Honour ought to have ordered a conference and report relating to the welfare of the children pursuant to section 62A of the Family Law Act 1975 which he submitted was more likely to ascertain reliably the views of the children and allow the court to judge more effectively what weight should be given to them. He further submitted that this was an appropriate case for separate representation of the children. 34. Finally he submitted that whilst his Honour identified the best interests of the children as the primary test, his Honour placed too much reliance on the principles referred to in Cilento and Cilento (1980) 6 Fam LR 35. 35. In support of his first two submissions Mr Tilmouth placed particular weight upon the decision of the Full Court in Joannou v Joannou. That was a case involving children aged 8, 7, 5 and 4 where the trial judge had expressed the view that the obtaining of a welfare report was a waste of time and that the wishes of the children at this age seemed to him to be irrelevant. After referring to the children's age the following passage appears in the joint judgment of the Full Court (Pawley, Fogarty and McGovern JJ) at 80-182: "We do not agree with his Honour that it necessarily followed from that (the age of the children) that no useful evidence could be obtained through a counsellor as to the wishes, attitudes, perception, bonding and the like of the children. We think there were several defects in his Honour's approach to this matter. First we do not agree with his Honour that evidence of the wishes of children of this age would be irrelevant; it may or may not have been helpful depending upon a number of factors which could only become clear when a counsellor had seen the children and given a report in relation to these matters. Secondly his Honour took too narrow a view of this aspect. It is not the wishes of the children in the narrow sense which is the only relevant aspect of their being seen by a counsellor in a custody case. It is the wider aspect of their perceptions, attitude, relationships towards each other, towards the other parent and other relevant members of each household, bonding and the like which is important. In this case, given the close proximity and the ages of the children, the fact that the alternatives involved them being widely separated geographically from one parent or the other, it would be likely that evidence of an interview with all four children would have been a helpful piece of material to have had before determining their custody." 36. We think that Mr Tilmouth's first two submissions involve an essential misunderstanding of what his Honour was saying. In this case his Honour did have evidence before him as to the wishes of the children and it is apparent from his Honour's judgment, read in the context of the argument which took place before him that he was prepared to accept that certainly the older child, and probably the younger child was desirous of remaining with the father. His Honour however took the view, with which we agree, that in the particular circumstances of this case, such views could not be given great weight. We do not interpret his Honour as having said that this was only because of the age of the children in question. The case of Joannou v Joannou was cited to his Honour and he no doubt had regard to it. In addition to the children's age it is apparent that his Honour took into account the circumstances of their having lived with their father for six months and the circumstances of their separation from the wife, the vast difference in lifestyle involved between living in Australia and Chile and the fact that the wife had not had an opportunity to influence their wishes over that six month period. It is clear that, unlike the trial judge in Joannou's case his Honour was not saying that the wishes of the children were irrelevant but merely that in the particular circumstances of this case they should be given little weight. Mr Tilmouth argued that because the wife in her telex and in the subsequent document had indicated a willingness to abide by the wishes of the children, that this made it even more important to obtain an independent assessment of their wishes in the form of a report. 37. We think that this gives too much significance to an expressed willingness on her part to compromise in what must for her be an extremely difficult situation. It was conceded on behalf of the husband that she could neither afford to come to Australia or to arrange for legal representation in this country. She has been cut off from her children as a result of having agreed that they should come to this country for a holiday. We are quite unaware of what if any legal or other advice she has received. The telex upon which Mr Tilmouth principally relied, was not her document but a hearsay account of her views. In the circumstances we do not in any event find it surprising that she has expressed some degree of willingness to compromise. Despite this it is apparent from both documents that she not only feels cheated by what has occurred, but strongly maintains her rights as a custodial parent and any concession made by her is extremely limited as to time. Accordingly we do not think that this argument has substance. 38. Further we do not think that his Honour can be said to have fallen into error in refusing to order a report under section 62A of the Act. Despite what the Full Court said in Joannou's case we do not think that in every interim custody case of this nature a judge is obliged to obtain a counselling report as to the wishes of the children. Further in this case his Honour already had evidence of the children's wishes. There may be many cases in which such a report is helpful and desirable but in the particular circumstances of this case we do not think that this was so. We think that his Honour proceeded upon the basis of an acceptance of the probability that the children wished to remain in Australia but that he also considered that their welfare required their return to Chile. There must be few cases indeed where it would be appropriate to make interim custody orders in favour of a non-custodial parent where children have been permitted to visit the non-custodial parent in this country for holiday purposes and are thereafter wrongfully detained by the non-custodial parent. In this regard it is we think appropriate to refer to the Convention on the Civil Aspects of International Child Abduction which came into force in Australia on 1 January 1987. This was referred to before Burton J but his Honour considered that it had no application because Chile was not a signatory to the Convention. WMH FN1 39. Although his Honour was correct in saying that the Convention had no direct application to this case in the strict sense, we think that it is nevertheless open to a court, and appropriate in this case, to pay regard to the policy of the Convention, particularly having regard to the fact that Australia is a party to it. 40. The operation of the convention was considered by the Full Court in Gsponer v Gsponer (1989) FLC 92-001. In Re Jane (1989) 12 Fam LR at 662 Nicholson CJ expressed the view, after referring to authorities that it was both permissible and useful to refer to international conventions not forming part of domestic law in considering the exercise of discretion. 41. We think that the clear policy of the Convention is that save in exceptional circumstances, children who have been removed from their lawful custodial parent in another country without the authority of a court should be returned to that parent. 42. In the present case we think it is appropriate to take this into account as an element to be considered, albeit subservient to the principle of the paramountcy of the welfare of the child. As to this we believe the inference is open from the wife's behaviour and the various communications that the wife has a reasonable approach to the question of the children's welfare. 43. The husband argued that he could only obtain a hearing on his application for custody in this court because he said that he was a political refugee from Chile and that his life would be endangered if he was to return. There was no evidence before his Honour or before us as to Chilean law but it is apparent from the material that there is a system of Family Law operating in Chile. The children are Chilean nationals brought up in Chile who have lived with their mother for six years following separation prior to their visit to Australia. In these circumstances it seems to us that if there is any court which should determine their custodial disposition it is a court of that country. The husband's political difficulties about returning to that country are unfortunate and may restrict his ability to pursue litigation in the courts of that country but there was nothing before us or before his Honour to say that he was precluded from doing so. 44. Finally we do not think that his Honour placed undue reliance upon the principles set out in Cilento and Cilento. In the present case we think that his Honour's order was appropriate and was indeed the only proper order that could have been made. The appeal will accordingly be dismissed. -------------------- 1. The Convention entered into force between Australia and Chile on 01 Nov 1994.