previously been for a limited period of time outside the state of its habitual residence, is not returned to that state at the expiry of such limited period’110
Thus the Australian courts are required to initially examine when the removal occurred and then when the retention occurred.111
[6] If there is inconsistency between the Hague Convention and the Regulations, as long as this does not place the Regulations outside the scope of the Commonwealth’s powers to make such regulations, the duty of the Australian courts is to comply with the plain language of valid Australian law and thus to rely on the Regulations rather than the Hague Convention; however the term ‘Convention’ is defined in terms of the text of Schedule 1 of the Regulations and thus these provisions must be read with those of the Hague Convention.112 Therefore it is evidenced as to what is considered wrongful removal and retention in terms of the Australian law.
Convention.’115 Regulation 16(3)(a)(i) also provides that a court can refuse to grant a child’s return if an abducting parent can prove that,
‘[T]he person, institution or other body seeking the child's return: … was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained...’116
[2] ‘Rights of custody’ are defined in Article 5(a) of the Hague Convention which was adopted by Regulation 4 of the Child Abduction Regulations.117 Within Australia the notion of ‘rights of custody’
must be interpreted broadly without attributing them with a specialist meaning and they are thus to be determined with reference to the statutory definition provided in terms of Regulation 4 and not determined with reference to domestic law.118
[3] The case of McCall and McCall; State Central Authority (Applicant); Attorney-General (Cth) (Intervener) recognized two classes of powers and responsibilities in terms of the Australian domestic law: guardianship and custody.119 As a result, in 1996 and 2006 the Family Law Reform Act of 1995 (Cth) made significant changes to the law relating to children and significantly replaced the concepts of custody and guardianship with the concept of parental responsibility.120 This, however, resulted in complicated statutory provisions regarding the effect of these amendments on the Regulations and the operation of the Hague Convention as seen in sections 111B[2]-[5].121
Regulation 4(1)(b) allows the consideration of the domestic law of Australia to assist in determining the custody rights. Section 111B(2) of the FLA provides: ‘(a) A parent/guardian of a child is no longer expressly stated to have custody of the child; and (b) a court can no longer make an order under this Act
115 Department of Community Services & Raddison supra (n113) at para [32]. According to Regulation 2(1B) of the Family Law (Child Abduction Convention) Regulations, 1986, ‘[u]nless the contrary intention appears, an expression that is used in these Regulations and in the Convention has the same meaning in these regulations as in the Convention.’
116 Department of Community Services & Raddison supra (n113) at para [33].
117 Ibid at para [34]; Bowie op cit (n22) 13.
118 Department of Community Services & Raddison supra (n113) at paras [35]-[36]; MW v Director-General, Department of Community Services supra (n27) at para [86]; McCall and McCall; State Central Authority (Applicant); Attorney-General (Cth) (Intervener) supra (n27); English cases referred to by the Australian courts, which held the same principles, for general reference are: Re B (a Minor) [1994] 2 Fam LR 249 at 257; Re F [1995] 2 Fam LR 31 at 41; Re H [2000] 1 Fam LR at 378.
Thus the Australian domestic law shall not be referred to herein as regards to rights of custody, whereas the South African law is discussed in Chapter [2] due to the reference therein.
119 Nicholls op cit (n22) 4.
120 Ibid at 4-5; Young & Monahan (2009) op cit (n9) 345; Fehlberg & Behrens op cit (n7) 248.
121 Nicholls op cit (n22) 5.
expressed in terms of granting a person custody of, or access to, a child.’ Section 111B(3) of the FLA states that the purpose of subsection (4) is to resolve doubts about the implications of these changes for the Hague Convention. Section 111B(4) provides that for the purposes of the Hague Convention those instances in which a parent or individual has custody, access or parental responsibility in regards to a child.
[4] The concept of custody in the Hague Convention therefore goes far beyond that of custody in terms of the FLA as custody is defined in the FLA as122 ‘(a) the right to have the daily care and control of the child, and (b) the right and responsibility to make decisions concerning the daily care and control of the child.’123 Guardianship124 involves the responsibility for the long-term welfare of the child and the powers, rights and duties that are, apart from the Act, vested by law or custom in the guardian of the child.125 The rights of custody are however specifically excluded from the rights and responsibilities of guardianship.126
The right to determine the child’s place of residence is not a matter which deals with the every day care and control of the child and is thus a matter which falls within the scope of the guardianship for the purposes of the Act.127 Regulation 4(2) adopts Article 5 of the Hague Convention. The practical significance of the aforementioned is that unless an order is made giving the custodian the sole guardianship of the child or an agreement is registered with the same effect, the parents remain joint guardians.128 Thus the child’s removal in the case of joint guardianship in terms of Australian law can also lead to wrongful removal and retention and the Hague Convention would thus be applicable even without a specific breach of a custody order.129 The Australian interpretation of Regulation 4, provided in the case of Jiang and Director-General Department of Community Services, was that ‘rights of custody’ require that the bundle of rights held by the left-behind parent include a right to determine the child’s place of residence.130 The FLA prohibits the removal of a child subject to an order with respect
122 Section 63E(2) of the Family Law Act ,1975 (Cth).
123 Curtis op cit (n17) 628; Fehlberg & Behrens op cit (n7) 248.
124 Section 63E(1) of the Family Law Act, 1975 (Cth).
125 Curtis op cit (n17) 628; Fehlberg & Behrens op cit (n7) 248.
126 Curtis op cit (n17) 628.
127 Ibid at 629.
128 Section 63F(1) of the Family Law Act 53 of 1975 (Cth); Curtis op cit (n17) 629.
129 Curtis op cit (n17) 629.
130 Wenceslas and Director-General, Department of Community Services [2007] FamCA 398; (2007) FLC 93-321 at paras [113], [116] & [165]-[167]; Jiang and Director-General Department of Community Services supra (n111) at paras [59]-[60];
Department of Community Services & Raddison supra (n113) at para [111].
to custody or guardianship, without the consent of any person who is in terms of the court order entitled to custody, guardianship or access in regards to that child.131 Therefore, in Australia if a person, in terms of access rights under a court order, has not consented to the child’s removal or a court ordered removal, the removal is wrongful.132 It, however, remains clear that where a removal is wrongful under the FLA as the only result of the lack of consent of a person entitled to access to the child, whether such removal would be wrongful for the purposes of the Hague Convention is still questionable.133
A right of veto, which is the right of the parent to determine the child’s residence, thus provides the left- behind parent with custody rights in terms of the Hague Convention as well as the Australian Regulations.134 A right of veto may therefore give rise to a right to determine that there be no change in that place of residence135 and the other party has an obligation to observe the status quo and the observance of the obligation will attract the relevant remedies available.136 Regulation 4 is also broad enough to consider the court as the holder of custody rights.137
131 Section 70A(1) of the Family Law Act, 1975 (Cth); Curtis op cit (n17) 629.
132 Curtis op cit (n17) 629.
133 Loc cit. The 1996 reforms abolished the concepts of guardianship, access and custody and replaced them with the concept of parental responsibility which was to be shared jointly by parents except to the extent provided for in any parenting order.
The idea behind the aforementioned was to try and encourage movement away from the belief that custody was a prize: see Fehlberg & Behrens op cit (n7) 247-248. Parental responsibility is defined in the FLA to mean ‘all the duties, power, responsibilities and authority, which by law, parents have in relation to children’. In the absence of a court order, joint parental responsibility is enjoyed although it can be exercised independently of each other. However, the FLA also provides little guidance on what exactly parental responsibility is and contains and it merely states that parental responsibility ‘in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’ See also Monahan & Young (2008) op cit (n6) 361; Section 61B of the Family Law Act, 1975 (Cth).
134 Department of Community Services & Raddison supra (n113) at para [115]; see generally Resina v Resina (supra (n102)) and State Central Authority and Pankhurst [2007] FamCA 1345; Northern Territory Central Authority & Gambini [2008]
FamCA 544 at paras [68]-[69] generally.
135 Jiang & Director-General, Department of Community Services supra (n111) at paras [63] & [66]; Northern Territory Central Authority & Gambini supra (n134) at para [60]; Brown & Burke supra (n99) at para [69]; Wenceslas v Director- General Department of Community Services supra (n130) at para [186].
136 MW v Director-General, Department of Community Services supra (n27) at paras [75]-[76] & [79]. Therefore the ‘right to determine’ in terms of Article 5 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 and Regulation 4 of the Family Law (Child Abduction Convention) Regulations, 1986 is deciphered.
137 MW v Director-General, Department of Community Services supra (n27) at para [86]; Wenceslas v Director-General Department of Community Services supra (n130) at para [223]; Brown & Burke supra (n99) at para [92]; Department of Community Services & Raddison supra (n113) at para [114]; Northern Territory Central Authority & Gambini supra (n134) at paras [79]-[80] & [83]; Brooke, S v Director General, Department of Community Services [2002] FamCA 258; (2002) FLC 93-109 at para [27].
[5] Section 111B(4)(a) of the FLA provides that both parents retain joint parental responsibilities under Australian law and rights of custody, for the purposes of the Hague Convention, unless parental responsibility has been expressly removed by a court order.138
5.2 Rights of custody
[1] In determining rights of custody in Hague Convention matters in terms of the Regulations, the court must have regard to the law at the relevant time in the country from which the child was removed.139 If no order regarding custody exists, then the state concerned must have regard to the possible custody statutes existing by operation of law in the child’s state of habitual residence.140 Regulation 4(3) provides that rights of custody ‘may arise’ by operation of law, judicial or administrative decision or agreement ‘having effect under a law in force in Australia or a Convention country’ which therefore indicates that custody rights can arise from other sources.141
[2] The case of Wenceslas v Director-General Department of Community Services considered the following:
‘… [M]ere rights of access are insufficient to constitute rights of custody, unless accompanied by the right to determine the place of residence of the child. In other words, the right to determine the place of residence of the child is not just sufficient, but necessary to establish ‘rights of custody’ for the purposes of Regulations.’142
138 Australian Government Attorney-General’s Department Frequently Asked Questions about International Parental Child Abduction, available at http://www.ag.gov.au/www/agd/agd.nsf/Page/Families InternationalFamilyLawFrequentlyAsked QuestionsaboutInternationalParentalChildAbduction, accessed on 31st March 2011; Young & Monahan (2009) op cit (n9) 345.
139 Department of Community Services & Raddison supra (n113) at para [39]; Department of Community Services v Crowe (1996) 135 FLR 443; 21 Fam LR 159; FLC 92 – 217; F Bates ‘Child abduction, the Hague Convention and Australian law – a specific overview’ (1999) 32 CILSA 93-94. This was also supported by the case of Police Commissioner of South Australia v Temple (1993) FLC 92-365 at 79, 827; McCall and McCall and State Central Authority supra (n27); State Central Authority and Ayob supra (n93).
140 Curtis op cit (n17) 628; Department of Community Services & Raddison supra (n113) at paras [52]-[53].
141 Department of Community Services & Raddison supra (n113) at para [40]. Professor Pérez-Vera discusses that these agreements must have legal effect in the country concerned and not be prohibited. In order to have legal effect they must include any agreement not prohibited by law and which may provide a basis for presenting a legal claim to the competent authorities. In regards to Regulation 4(3) however there is no Australian law which interprets the phrase ‘legal effect’
although the Judge in Raddison refers to the fact that the Hague Convention is an international treaty and decisions of other signatory countries also provide guidance in the interpretation hereof: Department of Community Services & Raddison supra (n113) at paras [76], [78] & [80]; E. Pérez-Vera ‘Explanatory Report on the Hague Child Abduction Convention’ (1982) at para [70], available at http://hcch.e-vision.inl/upload/expl28.pdf, accessed on 12 June 2010.
142 Brown & Burke supra (n99) at para [67]; Wenceslas and Director-General, Department of Community Services supra (n130) at paras [166]-[167]: ‘Given the desirability of consistency in matters relating to the interpretation of international conventions, and especially in the absence of informed argument on both sides of the present appeal, we are of the firm view there is no reason for us to depart from the approach adopted by the Full Court in Jiang. Hence, we conclude that mere rights of access or contact are insufficient to constitute rights of custody, unless accompanied by the right to determine the place of
[3] Gambini referred to the decision in Jiang which accepted a ‘three-stage approach’ in Australia to determining whether a removal breached rights of custody and would thus be wrongful: Wenceslas stated this three-stage approach as the following:143
‘1. The first task of the court is to establish, on the evidence before it, what rights, if any, the parent seeking the return had under the law of the foreign country in relation to the child at the time of removal;
2. The next stage is to resolve, as a matter of Australian law under the Regulations (being the law of the forum where the Convention has been invoked), whether they amount to 'rights of custody' within the meaning of the Regulations; and.
3. Finally, the question is whether or not the removal or retention of the child was in breach of those rights, and therefore whether or not the removal was wrongful within the Regulations.’
This three-stage process is also used by the Australian courts to be able to capably make requisite decisions. The final requirement for a successful application, ‘Habitual residence’, shall be discussed below.