FAMILY LAW ACT 1975 IN THE FAMILY COURT OF AUSTRALIA AT SYDNEY No. S1808 of 1987 IN THE MARRIAGE OF: FRANCIS JOHN HICKS (Husband) AND PAULA ANN HICKS (Wife) AND DIRECTOR-GENERAL OF DEPARTMENT OF YOUTH AND COMMUNITY SERVICES (Central Authority) BEFORE THE HONOURABLE MR JUSTICE P.E. NYGH DELIVERED ON THE 10th DAY OF APRIL 1987 *JUDGMENT* (Ex-tempore) APPEARANCES: MR CUMMINGS of H. K. Roberts, Crown Solicitor, DX 19 Sydney, (Central Authority) for and on behalf of the applicant husband. COPY TO: Messrs. Hancock Alldis & Co., Solicitors, DX 11314 Hurstville, for and on behalf of the respondent wife. This comes before me as an ex parte application made pursuant to Family taw (Child Abduction) Regulations which came into force on 1 January 1987. The facts of the case can be briefly stated. The parties in this case were married on 29 November 1980 in Australia. The husband is a farmer resident in Bude in the county of Cornwall in the United Kingdom. The wife, it would appear, is an Australian Citizen. The parties established their matrimonial residence in Cornwall and the only child of the marriage, Eleanor Bronte Hicks, was born there on 17 June 1983. The wife left the husband on 30 July 1986 to live on her own in a flat elsewhere in Bude, and since that time the parties have remained separate and apart. The husband has filed in the County Court at Bodmin a divorce petition in which he seeks the dissolution of his marriage and in which he seeks certain consequential orders including an order for the custody of the child with reasonable access to the respondent. That petition has not as yet been dealt with in the County Court. In the arrangements which occurred after the wife left, it would appear, on the husband's evidence, that the child remained in the care and control of the father. She remained resident in the former matrimonial home, where the father and his mother continued to reside. The wife has alleged in an affidavit which was filed in pursuance of her application for custody in this Court that she took part in the care and control of the child on a daily basis. The situation remained thus until Thursday, 12 March 1987. On 13 March 1987, it is alleged - and it is certainly not denied in the wife's affidavit - that she took the child away from Bude and flew to this country. It is alleged that she is currently living within the Sydney metropolitan area. The application before me was instituted by and on behalf of the Director-General of the Department of Youth and Community Services of New South Wales, who, I am satisfied, by virtue of the material in evidence as exhibit "A" is pursuant to Regulation 8(1), the Central Authority in and for the State of New South Wales. I am also satisfied that, by reason of the fact that the application was filed in this Registry and the child is alleged to be resident within the State of New South Wales, that he is acting within the scope of his authority as delegated by the Attorney-General of the Commonwealth. I am further satisfied by reason of the document admitted in evidence as exhibit "B" that the Director-General has made a delegation of his functions as the State Authority to David Patrick Croke, whose occupation is Senior Legal Officer with the Department of Youth and Community Services. The next question is the question of whether or not at the relevant time the United Kingdom was a convention country within the meaning of Regulation 10. It is not listed in Schedule 2 to the Regulations. By reference to the document which was admitted in evidence as Exhibit "C", I am satisfied that the United Kingdom ratified the convention at the end of 1986. I am further satisfied by reference to matters of which I can take judicial notice that the United Kingdom was a signatory to The Hague Convention on the Civil Aspects of International Child Abduction; that therefore upon ratification by the United Kingdom following the earlier ratification by Australia, the Convention entered into force as between the United Kingdom and Australia. Consequently, the United Kingdom is a convention country within the meaning of Regulation 10 paragraph (b). The next question which arises is whether or not the situation before me falls within the scope of Article 3 of the Convention. That reads, and I quote:- "The removal or the retention of a child is to be considered wrongful where - (a) it is in breach of rights of custody attributed to a person, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention; and (c) the rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason or a judicial or administrative decision, or by reason or an agreement having legal effect under the law of that State." There are four issues to be considered:- firstly, whether the father at the time of the removal had a right of custody either jointly or solely under the law of the United Kingdom; secondly, whether the child was, at the time of the removal, habitually resident within the United Kingdom; thirdly, whether his rights of custody were actually being exercised at the time of removal by Mr Hicks; and fourthly, whether the removal was in breach of that right of custody. Dealing with those matters one by one: By virtue of Section 1(1) of Guardianship Act 1973, the parents of a minor have equal rights, exerciseable by either without the other, regarding the custody of a child. The Children Act 1975, Section 85, provides in sub-section '1' that 'parental rights and duties' means as respects a particular child, "all rights and duties which by law the mother and father have in relation to a legitimate child and his property." Sub-section '3' of that same section provides:- "Where two or more persons have a parental right or duty jointly, any one of them may exercise or perform it in any manner without the other or others, if the other, or as the case may be, one or more of the others have not signified disapproval of its exercise or performance in that manner." Those provisions indicate to me that under the law of England at the relevant time Mr Hicks was jointly with Mrs Hicks entitled to exercise the rights of custody in respect of the child of the marriage. 'Joint' in this context means that the right is shared with the others, it does not relate to the manner of its exercise. The next question is where the child was habitually resident at the time of the removal, and there is on the facts that I have recited, no doubt whatsoever that the child having lived all her natural life in England, was resident in that country at the relevant time. the third question is whether the joint right of custody of Mr Hicks was actually being exercised at the time of the removal, and again, I have no doubt whatsoever, on the evidence before me, that whatever Mrs Hicks's role during the day in the child's care, there is no doubt that at the relevant time he was actually exercising rights of custody in respect of the child who was living with him in his residence. The fourth question, then, is whether there was any breach of his right of custody. Although section 85(3) of the Children Act 19?5 could be read extremely broadly as meaning that unless Mr Hicks had signified his disapproval, the wife was free to take the child out of the country, it is my view that it clearly is - and the Convention contemplates it - a fundamental breach of the parental relationship when either parent takes a child out of a Convention country without the consent of the other parent which may be given either expressly, or as the Convention has it, in certain circumstances by acquiescence. There is, again, no doubt whatsoever that Mr Hicks at no stage either consented to, or acquiesced in, the removal of the child from the United Kingdom, and indeed he took immediate steps for the recovery of the child, as is indicated by the orders made in the High Court of Justice, whereby the child was made a ward of court on an urgent basis, and the request for her return, which was transmitted through the Lord Chancellor's office to the Australian Attorney-General's office, as the respective Central Authorities in the two countries. I am therefore of the view that on the evidence presented by the husband he has established a prima facie case that the removal of the child falls within the scope of Article 3 of the Convention, and that therefore this court is under an obligation pursuant to Article 12 of the Convention to order the return of the child forthwith to the United Kingdom. However, under Article 13, it is open to the respondent wife to oppose the return of the child within the very limited grounds set out in paragraphs (a) and (b). The proviso that the court may also refuse to return the child where it objects to being returned and is able to form a concluded view by reason of age and degree of maturity, does not appear to be relevant to a child aged 3 1/2. It is quite obvious that the wife must be afforded the opportunity to place material before the court which could establish her case within paragraphs (a) and (b) of Article 13. It is also quite clear, under the obligation which is imposed on me by the Convention, that such a matter must be dealt with expeditiously and with the least delay. Having regard to the circumstances on the husband's evidence and not seriously disputed by the wife in her affidavit - in which the child was removed from the United Kingdom, it is my view that a proper order in these circumstances would be an order which will secure the return of the child to the husband pending the determination of the matter. At the same time, so as to avoid the matter being precluded by events, there must be an obligation imposed on the husband to remain in this country until such time as the matter has been dealt with by the court. I therefore propose to make orders which will order the wife to surrender all current passports relating to herself and the child, which will restrain her from removing the child from the Commonwealth of Australia, which will authorise the issue of a warrant for the apprehension of the child, which will until further order place the child in the custody of the husband, on the conditions that he surrender his passport to the Registrar of this court pending further order, and on condition that he and the child remain within Australia pending the determination of the matter. I will give directions for the service of the respondent within a limited time and also provide for a return date. I make the following orders:- (1) That until further order, the respondent wife surrender forthwith to the Registrar of the Sydney Registry of the Family Court of Australia, all current passports relating to herself and the child Eleanor Bronte Hicks, born in Devon, England, on 17 June 1983. (2) That until further order, the respondent wife is hereby restrained from removing the said child from the Commonwealth of Australia and that all officers of the Australian Federal Police and the Department of Immigration and Ethnic Affairs give effect to this order. (3) That a warrant issue in accordance with Form 50 addressed to the Marshall, all officers of the Australian Federal Police, and all officers of the police forces of the States, directing the same to take possession of the same child and to deliver the child to the husband, Francis John Hicks. (4) That until further order, the said child be placed in the custody of the applicant father on condition that:- (a) he surrender his passport forthwith to the Registrar of this registry, to be held by him pending further order; and (b) he does not, pending further order, remove the said child from the Commonwealth of Australia. (5) That the wife be served with sealed copies of the application and the annexures and of these orders no later than 6.00 p.m. on Tuesday, l4th April 1987, and that the application be returnable before this court on Thursday, l6th April 1987. (6) That sealed copies of these orders be served upon:- (a) the Commissioner, Australian Federal Police; (b) the Secretary, Department of Immigration and Ethnic Affairs; (c) the British High Commissioner; and (d) Messrs. Hancock Alldis and Company of 243 Forest Road, Hurstville. (7) I reserve to each party liberty to apply on 24 hours notice.