8. Exceptions to the rule of peremptory return in terms of the Regulations
8.1 Exception one: Regulation 16(2)
[1] If an application for the child’s return is filed more than one year after the day on which the child was first removed to or retained in Australia, and the court is satisfied that the person opposing the return has not established that the child is settled in their new environment, the court must order their return subject to Regulation 16(3). The time allocation to lodge an application is therefore one year from the date on which the child was first removed or retained in Australia; therefore if the period of a year has passed, the court maintains a discretion to refuse the child’s return. However, in terms of Regulation 16(2)(c) if an application is filed after the period of one year and the abducting parent (opposing parent) is unable to prove that the child is settled in their new environment, then the court must order the child’s return.207
[2] No presumption exists that a child is settled merely because they have lived in the state to which they were removed for more than a year.208 The defence provided in Regulation 16(2) is thus the same as that provided for in terms of Article 12 of the Hague Convention. Regulation 16(2) must however be read in the context of the Hague Convention as being aimed at discouraging a unilateral court order being made
205 Kilah & Director-General, Department of Community Services supra (n163) at para [28]; State Central Authority and De Blasio [2002] FamCA 804 at para [33].
206 De L v Director-General, NSW Dept of Community Services supra (n2) at 661; Kilah & Director-General, Department of Community Services supra (n163) at para [28]; State Central Authority and De Blasio supra (n205) at para [33].
207 Young & Monahan (2009) op cit (n9) 346; Regulation 16(2) of the Family Law (Child Abduction Convention) Regulations 1986; Northern Territory Central Authority & Gambini supra (n134) at para [53].
208 Northern Territory Central Authority & Gambini supra (n134) at para [92]; Graziano and Daniels (1991) FLC 92-212 at 78,436.
in the child’s country of residence, and being made rather with the objective of achieving a prompt return of the child to the forum which is best suited to deal with issues surrounding the child’s future.209 [3] The case of Marriage of Graziano v Daniels (1991) 14 Fam LR; FLC 92 – 212 considered the concept of ‘settled in their new environment’.210 It proposed that the test for determining whether a child is settled in their new environment was more than a determination of whether the child was considered as happy, secure and adjusted to their surrounding circumstances.211 However, uncertainty existed regarding what the appropriate test actually was in Australia.212 Graziano and Daniels regarded the word ‘settled’ as that of a physical element relating to being established within a community and environment.213 The aforementioned also denoted an emotional element of security and stability.214 The court held that the relevant environment was considered to be a community within a geographically defined place and in order for the child to be considered as settled there, it must have significance to the child.215
However there has been a dramatic move away from Graziano’s position regarding the meaning of the word ‘settled’.216 The test was finally settled by the case of Director-General, Department of
209 SCA & CR [2005] FamCA 1050 at para [57]; In Re HB (Abduction: Children's Objections) (No 2) [1998] 1 FLR 564, Hale J at 568: ‘... the object of the Hague Convention is set out in its preamble. In essence this is to further the best interests of children by ensuring their speedy return to the country where they have been habitually resident. Once the time for a speedy return has passed, it must be questioned whether it is indeed in the best interests of a child for there to be a summary return after the very limited inquiry into the merits which is involved in these cases...’
210 Young & Monahan (2009) op cit (n9) 346; F Bates ‘Undermining the Hague Child Abduction Convention: The Australian way …? (2001) 9(1) Asia Pacific Law Review 47; Bates op cit (n139) 72.
211 Young & Monahan (2009) op cit (n9) 346; Bates op cit (n210) 47-51. This view is similar to that expressed in the English case of Re N (Minors) (Abduction) [1991] 1 FLR 413 at 417 where the Judge said that the abducting parent was required to establish the degree of settlement as more than that of a mere adjustment to the surroundings. This view was confirmed by the cases of De L v Director-General, New South Wales Department of Community Services supra (n23); Director-General, Department of Community Services & M & C & Child Representative [1998] FamCA 1518 at paras [11] & [51]. This view was also supported by the case of State Central Authority v Ayob supra (n93); Director-General Department of Families, Youth and Community Care & Moore [1999] FamCA 284 at paras [61], [64] & [66]; Graziano and Daniels supra (n208) followed the decisions of the single judges of the English High Court in Re Mahaffey (a Minor) (Unreported High Court of Justice England 8 October 1990 CA910/90).
212 SCA & CR supra (n209) at paras [35]-[36]; Department of Child Safety & Kells [2009] FamCA 452 at paras [18].
213 Young & Monahan (2009) op cit (n9) 346-347; Department of Child Safety & Kells supra (n212) at para [18].
214 Young & Monahan (2009) op cit (n9) 347; State Central Authority & Hajjar supra (n172) at para [168].
215 Young & Monahan (2009) op cit (n9) 347.
216 Loc cit; Bates op cit (n210) 47, where the case of Graziano adopted the view of Re N, supra (n211) at 78, 436, in that the word ‘settled’ included two elements and the first involved a physical element or being established in the community and environment, and the second that it also included a constituent which denoted security as well as stability. This case also held that the child’s mother could not be considered as the new environment. The court also indicated that the environment must have attained a special significance for the child; Director-General, Department of Community Services & M & C & Child Representative supra (n211) at para [12].
Community Services v M and C217 which refers to the case of De L v Director-General, New South Wales Department of Community Services which held that (although in relation to a different regulation) no additional gloss was to be applied to the phrase.218 This was thus the same in regards to the case for the word ‘settled’ found in Regulations 16(2) and 16(1).219 The court in the case of M and C finally held that ‘[t]he test, and the only test to be applied, is whether the children have settled in their new environment.’220 Townsend v Director-General, Department of Families, Youth and Community Care (1999) 24 Fam LR 495 agreed that the word ‘settled’ should be given its ordinary meaning and not a restrictive meaning, as Graziano departed from this simplified test and added an unacceptable gloss.221 This therefore widened the meaning of the word and made it easier for the courts to determine if the child was settled and thus also made it less easy to ensure their return to their countries of habitual residence.222 Bates made the following comment regarding Graziano:
‘... Graziano ... has potential to mislead, in two respects. First, the notion that the abductor “must establish the degrees of settlement which is more than mere adjustment to surroundings” suggests that there are degrees of settlement, only some of which satisfy the legislative requirement. It thereby suggests a more exacting test than the regulation actually requires. It may also be taken to imply that matters which would demonstrate adjustment to the environment are somehow irrelevant or to be discounted ... Second, it could be misleading to say that “settled” has
217 Director-General, Department of Community Services & M & C & Child Representative supra (n211) at para [91]; See also Director-General, Department of Families, Youth and Community Care v Moore supra (n211) at para [67]; Townsend &
Director-General, Department of Families, Youth and Community [1999] FamCA 285 at paras [30] & [33]-[35]; Bates op cit (n139) 75.
218 Young & Monahan (2009) op cit (n9) 347; Department of Child Safety & Kells supra (n212) at para [18]; Townsend &
Director-General, Department of Families, Youth and Community supra (n217) at paras [28]-[29].
219 Director-General, Department of Community Services v M and C supra (n211) at 188; Young & Monahan (2009) op cit (n9) 347.
220 This was confirmed by Townsend v Director-General, Department of Families, Youth and Community Care supra (n217) at paras [28]-[29]; Director-General, Department of Community Services v M and C supra (n211); Young & Monahan (2009) op cit (n9) 347; Northern Territory Central Authority & Gambini supra (n134) at para [95]; Department of Child Safety &
Kells supra (n212) at para [18]; State Central Authority & Hajjar supra (n172) at para [156]; Bates op cit (n144) 136. Kay J however indicated that expressing the test as words given their natural meaning, did not actually provide much assistance to the factual situations where a court may then reach the decision that the child was settled in their new environment: (SCA v CR supra (n209) at 80.012). Young & Monahan (2009) op cit (n9) 347; Townsend & Director-General, Department of Families, Youth and Community supra (n217) at paras [30] & [33]-[35]; Bates op cit (n210) 51; Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe (1997) FLC 92-785 at 84, 669. Northern Territory Central Authority & Gambini supra (n134) at para [94]; See also Director General, Department of Community Services v M and C supra (n211); Secretary, Attorney-General’s Department v TS [2000] FamCA 1692; (2001) FLC 93-063.
221 Townsend v Director-General, Department of Families, Youth and Community Care supra (n217) at 501-502; Young &
Monahan (2009) op cit (n9) 347; Northern Territory Central Authority & Gambini supra (n134) at para [95]; See also Secretary, Attorney-General’s Department v TS supra (n220) as per Nicholson CJ at para [106] and SCA v CR supra (n209);
Bates op cit (n210) 51; Director-General, Department of Community Services & M & C & Child Representative supra (n211) at para [52]; De L v Director General NSW Department of Community Services supra (n23) at 655-657; Director General, Dept of Families, Youth and Community Care v Moore supra (n211) at paras [68]-[69]; State Central Authority & Hajjar supra (n172) at para [156].
222 Bates op cit (n210) 51.
two constituent elements, one physical and one emotional … The two-component categorization adopted in Graziano might lead trial judges to approach the task in a way different from that required by the words of the Act.
It could, especially in finely-balanced cases, affect the weight to be attached to various matters.’223
The case of Director-General Department of Families, Youth and Community Care & Moore [1999]
FamCA 284 (30 March 1999) furthered the aforementioned:
‘… [T]he test requires more than evidence of a child who is happy, secure and adjusted to surrounding circumstances, and that it involves findings as to a physical element of relating to and being established in a community and an environment, as well as an emotional constituent denoting security and stability.’224
However, according to SCA & CR giving the words their natural meaning does not provide assistance to what is considered as the factual situation which might lead to the conclusion that the child is settled in their new environment.225
‘[I]s their ‘new environment’ simply a geographic locality or does it entail other considerations such as the household in which they live? Is the children’s environment defined by where they live rather than with whom they live? Clearly such considerations would change in emphasis depending upon the age of the child. The essential environment for a babe in arms would most likely be the immediacy of its principal caregiver no matter where that care is provided. The environment for a teenager may well be dependent on other relationships and more material factors including education, housing and the like.’226
[4] ‘Settling’ is regarded as a matter of degree227 and the cases of Gsponer v The Director-General, Department of Community Services, Victoria; Graziano and Daniels and Director-General, Department of Community Services v Apostolakis provide that it is not sufficient to only consider how the child is behaving in the home or how the child fits into the immediate environment of the home. This was supported by the case of Thorpe.228 The court needs to look beyond how the child is fitting into the
223 Townsend v Director-General, Department of Families, Youth and Community Care supra (n217) at 501-502; Young &
Monahan (2009) op cit (n9) 347-348; Northern Territory Central Authority & Gambini supra (n134) at para [94].
224 Director-General Department of Families, Youth and Community Care & Moore supra (n211) at para [61].
225 SCA & CR supra (n209) at para [37].
226 Loc cit.
227 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n220) at para [3.24]; Bates op cit (n210) 48.
228 Loc cit. The court took the view that the test must be ‘... more exacting than that the child is happy, secure and adjusted to his new surroundings…’ See Bates op cit (n139) 77. This view was earlier expressed in the English case of Re N (supra (n211) when it was said that the abductor must ‘… establish the degree of settlement which is more than mere adjustment to surroundings.’ (Bates at 77-78). The full court also adopted the English judge’s meaning of the word ‘settled’ as he had found that it contained two constituent elements (Bates at 78). The judge in Re N (supra (n211)) held that ‘new’ encompassed the concept of place, school, people and friends etc however, not the relationship with the mother which was always a close loving one as he found that this could only be relevant insofar as it impinged on the new surroundings. The full court noted that the relationship with the wife could not be overlooked and the court also emphasized the fact that the mother was not the new environment. It was stated by the court that the mother’s presence may be part of the environment and make the transition easier however; the children’s bonds should reach beyond that which was already familiar. In the same way a child
society in general as well as outside of the home, including the making of friends; the development of ties with school and other matters of that kind.229 It was also held that the fact that the child is missing a part of their earlier environment does not lead to a conclusion that the child is not ‘settled’ in their new environment.230 In the case of Moore it was also held that the court must not only look at the past and present situation, but also the future.231 The view in De L, in respect of the word ‘objects’ holds that it has an ordinary meaning.232
[5] The case of Thorpe also considered the issue of whether the court retained a discretion to order the child's return despite the child being found to be settled in the new environment in terms of Regulation 15(1)(a).233 Conflicting authority exists around the aforementioned question.234 The case of Director- General, Department of Community Services v Apostolakis (1996) FLC 92-718 stated that ‘... I am no longer bound to order the return of these children but rather I have a judicial discretion whether or not to do so, which must be exercised in the context of the policy of the Convention …’235 Kay J in State Central Authority v Ayob236 disagreed.237 The Judge also held that the word ‘unless’ clearly meant to
whose main relationship is with its mother and who does not have a lasting relationship beyond their mother, cannot be said to have settled in the mother’s new environment’ (Bates at 78). ‘The fact that a child has lived in one place for a long time will no doubt tend to support the conclusion that it is settled there, but … that conclusion will be less easily reached where the children have in their short lives moved about a great deal, as have the children also in this case.’ The judge in the case of Thorpe dealt with the above issue by looking at the question of whether the children were settled as being one of degree however stated that ‘… it was not sufficient, really, just to look at how the child is behaving in the home or how the child is fitting into the immediate environment of the home. One needs to look beyond that at how the child is fitting into society, in general, outside the home: the making of friends; the development of ties with school; and all sorts of matters of that kind.’
(Bates at 79).
229 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n220) at para [3.24]; Bates op cit (n142) 79.
230 Ibid at para [3.28].
231 Director-General Department of Families, Youth and Community Care & Moore supra (n211) at para [67]; Director- General, Department of Community Services & M & C & Child Representative supra (n211) at para [88]. The Judge herein said that it involved both a physical element of being established in a community and an environment and also an emotional constituent denoting security and stability. As the majority of the High Court pointed out in De L’s case (supra (n23)) it is the Regulations that must be applied. The test is to be applied either at the time of the application being made or at the time of trial.
232 Bates op cit (n210) 50. Although this case dealt with a different regulation, Regulation 16(3)(c), the court still followed its decision.
233 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n220) at paras [3.6] & [3.30]; Bates op cit (n139) 79-80.
234 Bates op cit (n139) 80; Northern Territory Central Authority & Gambini supra (n134) at para [108]; Graziano and Daniels supra (n208) at 78,437.
235 Bates op cit (n139) 80.
236 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n220) at para [3.31].
237 Ibid at para [3.32]; State Central Authority v Ayob supra (n93) at para [79]; Bates op cit (n139) 80–81, where the Judge distanced himself from the views in Re N supra (n211) at 417; Northern Territory Central Authority & Gambini supra (n134) at paras [109]-[110]; Kay op cit (n179) 42.
qualify the word 'must'.238 The result of this is clear and without ambiguity ‘that the plain meaning of the section is that the Court no longer must order the return of the child if it is satisfied the child is settled in its new environment.’239 The court in Gambini however held that the court does retain a discretion where a child is settled in the new environment. The aforementioned is the prevailing approach of the Judicial and Administrative authorities within Australia. The wording of the Regulations is thus clear and unambiguous and thus it is unnecessary to refer to the Hague Convention in order to assist with interpretations herein.240 The discretion must be carefully exercised as the child’s settlement in the new environment could very well be a reason for not ordering their return.241
[6] The relevant time for determining whether the child is settled in their new environment was questioned as being either the time at which the date of the proceedings commenced, rather than at the date of the hearing.242 The better interpretation in terms of the Regulations is that of the date of
238 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n220) at para [3.32]; State Central Authority v Ayob supra (n93) at para [82]; Bates op cit (n139) 81.
239 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n220) at paras [3.32] & [3.33]; State Central Authority v Ayob supra (n93) at para [80]. Where it has been found that a child is settled in their new environment then it is clear that the mandatory requirement in terms of Regulation 16(1) is inapplicable although it does not take away from the power of the Court to order the child’s return in terms of Regulation 15 as this remains unaltered by any finding of the child’s settlement in Australia, although it would continue to a factor to be considered; State Central Authority v Ayob supra (n93) at para [84]; Bates op cit (n139) 81. The case of Moore, as discussed, previously held that where ambiguity exists between Regulation 16, that Regulation 15 provides the court with the requisite discretion. It was held in the Gambini case that it seems on the proper construction of Regulation 15 that it is a source of a general discretion for the court to order a child’s return and it should be read subject to the provisions of Regulation 16, however where this leaves the question open, Regulation 15 provides the relevant discretion: Northern Territory Central Authority & Gambini supra (n134) at para [111]. A contrary view was expressed in the case of SCA and CR where Kay J further held that the Regulations provided no source of a power to allow the court discretion to make an order where the child is settled: Northern Territory Central Authority & Gambini supra (n134) at paras [112] & [114]; SCA and CR supra (n209) at 80,016 where Kay J states that: ‘If the intention of the Regulations was to permit a discretion to return to exist even though the settled exception was established, then I would expect to find that power somewhere within Regulation 16(5). It is not surprising that it is absent given that the Regulations are seen as giving effect to the preamble and the objects of the [Hague] Convention namely to secure the prompt return of children wrongfully removed to or retained in any Contracting State. As discussed at length in Ayob, the compromise reached between those who wanted a short time limit and those who wanted an open ended mandatory return was to opt for the settled exception. If it is established that a prompt and summary return under the Hague Convention is no longer seen as appropriate, the ‘best interests’ considerations that accompany the exercise of local jurisdiction should be left to determine where the case should be heard and what orders should be made to provide for the child 's welfare in all the circumstances.’ Department of Child Safety & Kells supra (n212) at paras [38].
240 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n220) at para [3.32]; State Central Authority v Ayob supra (n93) at para [86]; Bates op cit (n139) 81.
241 Bates op cit (n139) 81.
242 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n220) at para [3.14]. The respondent also cited the case of Director-General, Department of Community Services v Apostolakis (1996) FLC 92-718 in support of this submission.