Today I presented at the 2015 Legalwise family law conference in Brisbane. The paper was called Children Across Borders
. The first part of the paper is devoted to preventing international child abduction from Australia. The second part is about bringing babies home from overseas when they have been born there under a surrogacy arrangement.
Children Across Borders
I wanted to discuss with you today about how children move across borders or how to prevent children moving across borders.
I am not covering Hague Convention cases. Hague cases are a topic amongst themselves. However I will address you briefly about some assumptions that are made by practitioners about Hague cases that are incorrect.
“Child Abduction, whether the child is retained in Australia or is taken overseas, is one of the scourges of this jurisdiction. It happens all too frequently, it courses great heartache to the families involved, it is usually a blatant disregard of authority of the Court and of the rule of law in our society, and it gives rise to consternation and concern within the community generally. It also involves considerable cost to the other party and the community. The Court must be vigilant to mark out its disapproval of conduct of that type in a positive way and give proper weight to the interests involved in a particular case and in the wider community and indeed the international concerns which cases of this type frequently attract”
Prevention is better than cure
It is always better to prevent a child being abducted than to then go through the process of trying to recover the child whether by virtue of a recovery order or otherwise.
Rule 1 It’s all about risk assessment and evidence
I know this is law 101, but if you are seeking an order to prevent someone from leaving Australia you have to have evidence, not supposition. What is the real risk of flight? What are the attachments of the person to Australia and/or to the foreign country? What threats have been made, if any, to take the child away? What citizenship does the person hold or is the child entitled to? What money does the other party or their family have that will enable the child to be removed? What preventative steps can be put in place easily and at relatively cheap cost to minimise child abduction?
Rule 2 If the child is or may be abducted it is better for the child to remain in Australia than be allowed to go overseas.
Possession as they say is nine tenths of the law.
Rule 3 Assume that the potential abductor will engage in fraud.
It is necessary to be one step ahead of any abductor. To exit Australia what is ordinarily required is:
· A ticket on a plane or passage on a boat
· A passport
If you have a particularly devious abductor they may decide to take the child by yacht thereby avoid the usual procedures with airport watch lists. If you have possession of the child’s Australian passport you should assume that the potential abductor will declare to the Department of Foreign Affairs and Trade that the passport has been lost, that a new passport needs to be obtained and rely on f0rged signature of your client (or if a single woman, claim that the father is unknown). In order to prevent this, your client should fill out a child alert form and lodge it immediately with the Australian Passport office. This will prevent a new passport issuing without your client being notified. Obviously your client needs to update their contact details so that they are aware of any contact from the Australian passports office following an application for a passport being made.
Rule 4 If children have multiple citizenship they are entitled to multiple passports.
The first job is to ensure that the potential abductor does not have access to an Australian passport for the child. You must also ensure as far as possible that the abductor cannot obtain a passport for the child from the foreign jurisdiction. This can be an incredible challenge.
John is Australian Chinese. He holds an Australian passport and a Taiwanese passport. His wife Mary holds a Chinese passport. The child, Julia, therefore may be entitled to Australian, Taiwanese and Chinese citizenship. China generally only recognises sole citizenship but this should not be taken for granted.
Rule 5 Foreign Governments will determine when or if they issue a passport for the child, not Australian courts.
Don’t make the mistake of assuming that an Australian court order will necessarily be respected by an overseas country. Some countries such as the UK and Canada invariably respect orders made under the Family Law Act as to passports, but other countries do not.
Saad & Saad FamCA 44
The husband and wife migrated from Jordan. An interim custody order was made in favour of the wife with access to the husband each weekend. An injunction was ordered preventing the removal of the child from South Australia. Following the making of that order the husband, without the wife’s knowledge or consent applied to the Jordanian Embassy and caused the child’s name to be added to the husband’s existing Jordanian passport. It was then his intention to return to Jordan indefinitely and to obtain orders from an appropriate Jordanian court granting him custody of the child. The husband was only unsuccessful because he was thwarted by the intervention of Australian Federal Police at Adelaide International Airport as a result of the injunction and the child having been placed on the airport watch list.
In subsequent court proceedings the Registrar of the Adelaide Registry was to write to the Jordanian Embassy requesting that the child be withdrawn from the husband’s Jordanian passport. The Registrar wrote to the Embassy but, as described by the Full Court:
“That letter was not fruitful, in the sense that the Jordanian embassy and/or the Jordanian Government did not take any steps to remove the name of the child Raja from the husbands then existing Jordanian passport.”
Subsequently following his release from prison for contempt, the husband was ordered to deliver up to the Registrar his Australian passport, his Jordanian passport and all passports relating to the child and was prohibited from applying or obtaining any other passport for himself or for the child and paying $5000 by way of bond to the wife’s solicitors in case he didn’t return the child on time.
The husband was also restrained from removing the child from the Commonwealth of Australia, from the State of South Australia and for applying for a passport either for himself or for the child from the Commonwealth of Australia, the Jordanian Government, from any Jordanian authority and from any other source.
The husband complied with the order in delivering up his Jordanian passport to the Adelaide Registry.
When the matter returned to court the trial Judge stated:
“The husband has given evidence that he has abandoned ideas of abducting Raja to Jordan and it is quite safe for him to have his passport returned. I’m not satisfied that he has abandoned all ideas of taking Raja out of the country…. If the husband’s Jordanian passport was returned to him I’m certain that this would have a very detrimental effect on the wife’s health and general wellbeing. Any such effect on the wife as custodial parent would of necessity have a detrimental effect on the child… I am satisfied that the passport should not be released. … the wife is agreeable to the husband’s Australian passport being released to him on occasions when he required to travel overseas provided however that she is given proper notice and has the opportunity to apply to this court if she opposes such release. As an additional safe guard I will suspend access during any period that the husband has his Australian passport in his possession. That however is not a sufficient safe guard … it concerns me that the husband on occasion when he visits Jordan might secure under another Jordanian passport with Raja registered on that passport pursuant to a custody order which might or might not now exist in Jordan. The whole purpose of the order requiring the husband’s existing Jordanian passport to remain in the custody of the Registrar of this court would then be thwarted… before the husband is allowed to resume access after a visit to Jordan I would require to be satisfied that there is not a Jordanian passport in existence in his name other than the one presently held by the Registrar of this court. If this results in hardship to the husband then he has brought it upon himself by his failure to make full disclosure of the present situation relating to custody of Raja in the Jordanian court and by his past actions.”
The husband subsequently applied to enable him to travel to Jordan including seeking a release of his Australian passport and the distraction of his Jordanian passport with the exception of three identified pages. The husband said that he had a confirmed flight reservations and was willing to retrieve his Australian passport from the Australian Federal Police at the airport on the morning of his departure provided that the Family Court had handed that passport to the Federal Police early enough for that to occur. The three pages of his Jordanian passport that he did not want destroyed were those with the photograph, the page with the American Visa and the final cover page with the file number.
Orders were then made to enable the husband to travel overseas and for the destruction of the Jordanian passport save those three pages. The passport was then destroyed.
The husband subsequently sought a new Jordanian passport to issue without the child’s name being on it.
The husband applied to the court for a Jordanian passport for himself. He said in his affidavit:
“The order… prohibits me from making a passport application from any authority in the whole world. I have complied with this order. I want to apply to the Jordanian Authorities to re-establish my ‘destroyed’ Jordanian passport, but have no intention to do so unless permitted by this court… I have consented to the Jordanian passport being destroyed but needed to retain 3 specific pages to allow me to get a new Jordanian passport. The wife consented to this. There is no other reason why I wanted these pages. The pages are now in my possession. But, following the making of consent orders I have realised I am still bound by the previous order… preventing me from getting a Jordanian passport even without Rajah being endorsed upon it. This is the oversight I now apply to correct. I feel that I have demonstrated over the past four years that I do have a true commitment to remaining in Australia; I do have a strong love for my son; I do have a strong relationship with my son; and I do comply with all court orders… when I visited Jordan using my Australian passport I was subjected to intense interrogation by the Jordanian Authorities as to the ‘state of my Jordanian passport’. I want to be able to visit my home country with my new wife and daughter without restrictions and interrogation. This is important to me as Jordan (is) my birth place and my new wife’s birth place and we both have our immediate families and relatives there.”
In a subsequent affidavit the husband said:
“I am prepared to surrender my Jordanian passport immediately upon my return to Australia. I am prepared for my access entitlements to be suspended whilst the Jordanian passport is out of the custody of Family Court. I am prepared to undertake not to add Rajah to the passport without the wife’s written consent. Although I was able to add Rajah to my passport once before I have no idea if that was still possible particularly bearing in mind the terms of the Family Court Orders and Injunctions that, I understand, have all been conveyed to the Jordanian Embassy and further taking account the letter written by the Deputy Registrar… to the Jordanian embassy. As a result of this I have no idea if I could add Rajah to my passport at all as I have not tried to do since the 1987 incident.”
The husband’s application was dismissed with costs. The husband appealed.
The Full Court held first that ordinarily the ruling in Rice & Asplund applied and that there appeared to be little authority upon the power of the court to dissolve a final injunction, in such authority as there is suggests that, at best, such injunction may be dissolved only where the foundation for it has been removed by subsequent events. In any case consideration by the trial judge was an exercise of judicial discretion fettered only by her duty to proceed regularly according to law in to the practice of the procedure of the court, and by her obligation regard of the welfare of the child Rajah as the paramount consideration.
The wife did not oppose the issue of a new passport to the husband, provided that it was an Australian passport and that, once issued, it was returned forthwith to the custody of the Registrar of the court to be held until required by the husband for travel overseas.
The significance of the wife agreeing to an Australian passport issuing, other than a Jordanian passport, was of course to prevent the child Rajah being added to the husband’s passport.
The trial Judge, Murray J held:
“I do not propose to discharge… the order… made by Justice Burton to enable the husband to obtain a Jordanian passport. I heard no evidence from any expert as to the possible loss of the husband’s Jordanian citizenship nor of any difficulties that he might have if he does not travel to Jordan on an Australian (sic) passport (clearly, her honour meant to say ‘a Jordanian passport’.) He is an Australian citizen and can travel on an Australian passport under the circumstances of this case. My view is that that is the proper alternative for him. He has not discharged the onus of proof that lies on him when he claims that his wife is unreasonable and her lack of trust in him. He is not prevented from travelling to his country of origin by virtue of having available to him only an Australian passport. I can take judicial notice of the fact that foreign governments are not bound by orders of this Court.”
Her Honour then said:
“I accept the husband’s evidence that he has remarried, that he now has a 9month old baby daughter, that he has completed a further degree in Australia and that he has been searching for a better job. Be that as it may, I am also aware that when the husband’s father arrived in Australia Justice Bulbeck ordered that the husband caused the delivery to the wife of his father’s current Jordanian passport as soon as possible after the father’s arrival in Australia and prior to … access taking place.”
Her Honour then said:
“As regards the application to discharge… the order remains a necessity for the husband to produce a letter from the Kingdom of Jordan or some Jordanian authority that there is not in existence a Jordanian passport. Obviously his Honour in his reasons was concerned that a foreign country might be able to issue another passport to the husband which may lead to difficulties in the matter as regards the non-removal of Rajah from Australia. This court has no jurisdiction over what happens outside the Australian commonwealth, and in view of the lack of proper evidence as to what attitude the Jordanian authorities have to granting another passport to the husband, I am not disposed to discharge that order”.
The Full Court held that there had been changed or new circumstances since the original order, this being the following one the consent orders made for the destruction of the husbands then existing Jordanian passport, to which Rajah’s name had been added, and the carrying out of that order.
1. That effectively brought to an end the husband’s capacity to remove Rajah from Australia without the wife’s knowledge or consent (in the absence of his secretly obtaining a new Jordanian passport also including Rajah which, if he intended to do, he would not be pursuing this application to this court) and left him without any Jordanian passport notwithstanding his Jordanian’s citizenship.
2. The husband’s evidence that he travelled overseas to Jordan for the purpose of which his Australian passport held by the Registrar was delivered to him at Adelaide International Airport on the date of his departure and then re-delivered by him to the Registrar forthwith upon his arrival back in Australia.
3. The husband’s further evidence that during that visit by him to Jordan he encountered difficulties with the Jordanian authorities in the form of “Intense Questioning and Cross-Examination as to how a Jordanian person by birth who looks Jordanian is travelling on an Australian Passport” and “Intense Interrogation” as to the state of his Jordanian passport, and further difficulties in obtaining and attempting to obtain from them the written evidence required by the original order, all of which caused him considerable embarrassment concern, particularly as he wishes to continue to visit Jordan with his new wife and their child as they each have their immediate and extended families there.
4. The husband’s evidence, which was not challenged by the wife, that he has continued to comply with all Orders of the court since the making of the earlier orders so that, effectively, his period of strict compliance with all orders of the Court has been extended from under 2 years of the time that those orders to over 4 years at the time of hearing of the appeal and that during that extended period he has re-married and started a new family, continued to work and live in Australia, pursue further studies here, and generally put down further roots in this country without abandoning his ties and with affinitive for his place of birth.
5. The husband’s evidence, denied by the wife in her Affidavit but subsequently substantially admitted by her during cross-examination that the wife expressed at least a tentative willingness to consent to the husband obtaining a new Jordanian passport provided that Rajah’s name was not added to it and provided it was held in the Registry of the Family Court at all times and delivered to the husband only immediately prior to any proposed departure by him from Australia, but that when he presented to her document for a signature evidencing such consent until she consent she refused to sign it until it had been considered by her lawyers for which purpose the husband refused to leave the document with her.
6. The husband’s evidence of his fear and insecurity in relation to:-
(a) the possibility of losing his Jordanian citizenship if unable to renew his Jordanian passport, particularly in light of the circumstances of the destruction of his existing passport; and
(b) the possibility that on any subsequent visit to Jordan he may be unable to obtain from the Jordanian authorities the documentary evidence to satisfy the earlier Orders the consequence of which his access to Rajah might be suspended for some inordinate period of time, or even indefinitely (although that evidence did not tend to prove, and was not admissible to prove as a fact, that the husband would or was likely either to lose his Jordanian citizenship or to be unable to obtain the necessary documentation to satisfy those orders, it was admissible to prove the husband’s state of mind in respect of those matters which, in this context, we believe to have had some relevance.
7. The evidence of the husband’s willingness, from the outset of his application, and maintained throughout the proceedings before Murray J, to make any Jordanian passport which he may obtain for himself, pursuant to the Court’s leave to apply for one, the same security restrictions as his Australian passport, namely that they be lodged with the Registrar whenever the husband is in Australia, only to be released to him at the Airport immediately prior to any proposed departure by him from Australia be re-lodged immediately upon his return to Australia back with his access being suspended until that is done).
8. The fact that the child Rajah had matured by a further 2 ½ years from 5 ½ to 8 ½ approximately during the intervening period.
The full court agreed that Murray J’s complied conclusion that in the absence of expert evidence as to law of Jordan or the policy of its government, she could not be satisfied the fact that the husband was in any danger of losing his Jordanian citizenship. Although her Honour did not go on to say that she could see the husband’s fear of losing his citizenship, in the absence of such evidence, to be unreasonably held, the Full Court thought that such a conclusion was inevitable and should be inferred.
The Full Court did not agree with her Honour’s further implied assertion that in the absence of expert testimony from him, she could not find that the husband was likely to experience difficulties travelling to Jordan without a Jordanian passport. That was simply a question of fact, in the true sense, and not a question of foreign law or of the policy of a foreign government upon which expert testimony would be required. There was evidence from the husband of the difficulties which he in fact faced (in the way of intensive interrogation and costs examination by immigration officials) when he travelled to Jordan in 1989 on his Australian passport, and to obtain an on the spot visa for entry to his country of origin, which evidence was not challenged in cross examination by the wife. The Full Court considered that in the absence of clear and unequivocal rejection by the trial judge of the husband’s evidence on that point, together with some explanation of the reasons for rejecting whether or not that had been challenged the trial judge, the trial judge was bound to accept that evidence, and then to go on to consider whether, in the light of that past experience, it was more likely than not that the husband would experience similar difficulties in any future journey to Jordan. Her Honour’s failure to follow that cause was an error of principle which it was at least capable of vitiating for exercise of discretion.
The appeal succeeded. The Full Court found:
“1. In our opinion, the circumstances relevant to the imposition and maintenance of the restraints imposed by the relevant Orders upon the husband’s ability to obtain a Jordanian passport for himself and resume his access to Rajah following any journeys overseas undertaken by him, have changed significantly since those Orders were made, which changes we have set out earlier in this reason.
2. In our opinion, having regard to those changed circumstances, in the safeguards proposed by the husband against the possibility of any future unauthorised removal by him of the child from Australia, it is no longer reasonably necessary, in the interest and welfare of the child, that the child be prevented by Orders of this Court from exercising his lawful right to apply for and obtain a Jordanian passport for himself. Further, in our opinion, having regards to those matters, the wife’s resistance to the restoration to that right, and a mistrust of the husband upon which it is based, are unreasonable, illogical, and without any firm foundation.
3. The husband has paid a heavy price for his foolish attempt to remove the child from restraint in August 1987. He was appropriately punished by the Court for that attempt, and he has paid his penalty to society in respect of it. Nevertheless, the shadow of that attempt has continued to hang over his head, and is naturally effected practically every Order which this Court has subsequently made in relation to the conduct with his child, whom he undoubtedly loves, and with whom he shares a good relationship. In that sense, he has continued to suffer and still continues to suffer the consequences of his foolish actions. Whilst it may be right that he do so in some degrees, with the passage of time and his continuous obedience of and respect for the Orders to this Court we are of the opinion the Court should attempt to ensure that the glory of that suffering is no greater than is strictly necessary to safeguard the wealth of the child. It is no part of the court’s function to maintain draconian restraints upon his freedom of action merely to pander to the wife’s fears, however sincerely held, that somehow or other he may gain attempt to remove the child from her custody and from the jurisdiction of this Court, the application of all logic and common sense indicate that those fears are, on the balance of probabilities, unjustified. In our opinion, that position has arrived in relation to the orders in question and the time must therefore come for them to be modified sufficiently to ameliorate the degree of the husband’s suffering consistent with the welfare of the child.”
The effect of the orders made by the Full Court was as follows:
6. That until further order the husband be restrained and an
Injunction is granted restraining him from the following:
(a) removing the said child from the Commonwealth of Australia;
(b) removing the said child from the State of South Australia;
(c) applying for or obtaining any passport for or in respect of the
said child from the Commonwealth of Australia, the Hashmite Kingdom of
Jordan, from any Jordanian authority or from any other source, without
first obtaining the leave of this Court;
(d) applying for an order releasing any Jordanian passport hereinafter
issued to him from the custody of the Registrar of this Court (into
whose custody such passport shall have been delivered pursuant to
paragraph 8(c) of these orders) without first giving fourteen (14)
clear days’ notice in writing to the wife and her solicitors of his
intention so to do
(e) removing from the wife’s solicitors the sum of $5,000 paid to them
by the husband pursuant to the order of Gun J. of the 18th March
(f) applying for an order releasing his Australian passport from the
custody of the Registrar of this Court without first giving 14
clear days’ notice in writing to the wife and her solicitors of his
intention so to do.
7. During any time that the husband is in possession of an Australian
or Jordanian passport all access pursuant to this order is suspended.
8(a) That in the event of the husband applying at any time for the
issue of a Jordanian passport to him, he shall, until further order,
forthwith notify the wife and her said solicitors in writing of the
fact and date of such application, and of the address of the Embassy,
Consulate or other office of the Jordanian Government to which such
application has been made, and give to the wife and her said
solicitors a true copy of such application as lodged by him;
(b) That in the event of his applying as aforesaid, the husband is
restrained, and an injunction is hereby granted restraining him, until
further order, from receiving into his hands any Jordanian passport
issued or proposed to be issued to him pursuant to such application
until he has given or caused to be given to the wife and her said
solicitors at least five days’ notice in writing of the granting of his
application and of his intention to collect such passport, and of the
date, time and place upon which he proposes so to collect it;
(c) That in the event of the issue to the husband of any such
passport, or the receipt by him of notification of intention to issue
such passport to him, he shall forthwith do all such acts and things
and execute all such documents as may be necessary to be done by him
to ensure that such passport is delivered forthwith upon its issue
into the custody of the Registrar of this Court at Adelaide to be held
by such Registrar in safe custody;
(d) That any such passport delivered into the custody of the said
Registrar pursuant to paragraph (c) hereof be released to the husband
only by and in accordance with an order of this Court or by and in
accordance with the terms of an express consent in writing by the
wife or her said solicitors to such release; and
(e) that each party have liberty to apply for any further or other
orders in relation to the disposition of any such passport issued to
the husband as aforesaid upon two days’ notice in writing to the
(4) That the husband have leave to apply for renewal of his
Australian passport and to that intent the Registrar do deliver to the
husband at his request such passport, provided however that once the
husband obtains such renewal he do forthwith deliver up such renewed
passport to the Registrar of this Court.”
Rule 6 There are two ways of getting out of Australia – by plane or by boat.
This might seem obvious but focus is always given to someone leaving by plane and often no thought has been given to the possibility of someone leaving by boat.
The two most notorious cases were that of Ibbotson and Gillespie.
In Ibbotsen and Wincen Fam CA103;(1994) FLC 92-496 the husband owned a yacht. Orders had been made for the husband to have access to the child for two weekends out of three and for half of the school holidays. Just before the September 1993 holidays the husband sold his home unit and placed his furniture in storage. He changed the name of his yacht and took it to Indonesia. The yacht was registered in New Zealand although he lived and worked in Townsville. He had remarried. He told a friend that he intended to take the child to Disneyland in California and then return to Indonesia some time during September/October and live on his yacht near Bali. He said that his new wife would educate the child whilst they were living on the yacht.
He wanted to get around the predecessor to s.65Y namely that because there was a custody order in favour of the wife the husband could not take the child out of Australia without her written consent or an order to that effect, the husband persuaded the wife, after initial reluctance by her to consent in writing to him taking the child to California to visit Disneyland during those school holidays. It was agreed that they would leave on or about 16 September and be returned to her by 1 October. The husband, his new wife and the child travelled to California via Indonesia on 18 September. On 30 Septemberhis solicitors received a fax from the husband stating that he had “decided to extend our stay in America” and it would be appreciated if his solicitors would inform his wife of the decision. His solicitors immediately wrote to the husband to the hotel at which he had stayed telling him that to unilaterally extend the time of possession of the child would amount to contempt of court and advising him to return to Australia at the earliest possible time. It was unclear whether or not the husband received that letter. The child was not returned.
Barry J made a number of orders subsequently including requiring the husbands’ solicitors and others to provide information about the husband, permitting the wife to publish in the media information related to the abduction of the child, and for the issue of a warrant for the arrest of the husband.
The wife engaged an inquiry agent who specialised in international abduction cases. The wife discovered that the husband and child had moved to Cyprus. The wife and the PI approached the yacht and spoke to the husband. The husband told the wife he was ready if necessary to sail from Cyprus to an undisclosed destination and that there was no way that she could take the child as he had been advised that if she attempted to do so she would be charged with kidnapping under the laws of Cyprus! It was said he was aware of all the Hague Convention countries and had kept in contact with his solicitors. He also told her he had US$200,000 in cash on board. However the following day he agreed to the child going with the wife for one day. Not surprisingly the game as now up. The wife obtained possession of the child. She, the PI and the child immediately went to the airport, obtained a flight to Athens and then to Australia. Four days later, on the husbands return to Australia, he was arrested at the airport.
Barry J found the husband guilty of contempt over section 112AP(1)(b), namely the Contravention of an Order of the Court which “involves a flagrant challenge to the authority of the court” and sentenced him to 12 months imprisonment, to be suspended after 6 months if he paid to the wife costs of approximately $70,000. The husband appealed. Barry J granted a stay pending the determination of the appeal.
Barry J stated:
“For the respondent it was argued that this court lacked jurisdiction to hear the matter in that the offence occurred outside Australia. This is simply a repetition of a submission put yesterday that the respondent had no case to answer.
I rejected the submission at that time, and for the same reasons rejected it again. The offence is in the breaching of custody orders validly made in Australia. So long as the respondent deprived the applicant of custody of the child it was an ongoing-offence in this country. It matters not whether you hid behind Ayers Rock or the Pyramids. I am unable to say on the available evidence where the respondent actually took the child other than to infer it was on his yacht and from the notations on the back of the photos… it appears that the respondent and the child visited Indonesia and Egypt.”
The wife’s counsel said that if the husband were restrained from disposing of or dealing with his yacht pending a property settlement and he sold it beyond the jurisdictional limits of Australia, scuttled it and returned, could he say to the Court “you cannot try me”? That is, relevantly here, where the contempt is alleged to be the breach in the Australian order that breach may occur outside ordinary territorial limits provided that the Order is otherwise binding upon that party and no difficulties about service. Were that not so circumstances much near to the realities of this case may arise but which would render the Court powerless to act. For example, if the agreement between the parties in this case had been that the return of the child to the mother was to take place, not within Australia, but at a location in the United States, it would, in the Full Court’s view, be alarming if the husband were to breach that Order overseas, then return to Australia, but not be amenable to the Court for those actions.
The husband was unsuccessful in this appeal. The Full Court stated:-
“The facts of this case are particularly blatant. It was a conscience and deliberate attempt by the husband to thwart the Orders of the Court and to act in complete disregard of the rights of his former wife and his child. In addition, it is important to bear in mind that substantial community interest which is involved in cases of this type and the importance of a general deterrent”.
The other notorious yacht case was that involved in the children of Jacqueline Gillespie. In 1991 the husband, a Malaysian prince, consented to a Family Court Order granting sole custody to the children then aged approximately 8 and 6 to the mother. Eight months later the husband picked up the children from an access visit. He did not return them. What the father did was drive from Melbourne to Weipa to put the children on his yacht, sail through Indonesia, bribing an Indonesian naval captain to Irian Jaya, then to Svlawesi (where he obtained a retrospective custody order)and take them to Malaysia, where they remained ever since. The children were 10 and 8. An Order was made by the Family Court to prohibit Australian media from interviewing the children. Numerous journalists from Australia travelled to Malaysia and interviewed the children or were supposed to do so. Despite the Order
As Frederico J stated:-
“The situation in relation to the children has been very much of the public domain, and has attracted wide spread publicity in Australia, Malaysia and other countries. This public interest will continue. Reports as to interviews with the children by representatives of the media have recently appeared in the Australian media, and my Order cannot effect continue publication countries other than Australia”.
Frederico J continued the order. His Honour stated:-
“My impression is that it was the father rather than the mother who involved the children in the manner to the extent of having them interviewed and filmed by the media. This offered self-causes concern that the children are being manipulated by the father to achieve his own ends and being further marginally traumatised in the process. Such concerns are increased by recent events, including the proposal by the father for the mother to have “access” to the children a live commercial TV programme to be telecast in Malaysia and Australia, subject to certain conditions, one being that the mother agrees not to cry. I find this whole concept to be bizarre and demeaning”.
The children were never returned and frequently told the media how they loved living in Malaysia and never wanted to see their mother again.
He then went to Sulawesi where the Indonesian authorities retrospectively awarded him custody (as he was the father) and then to Malaysia. The father’s accomplice spent 1 year planning the abduction, arranging vehicles and a boat and studying the escape route. The accomplice later served 9 months in an Australian jail for his part.
Jacqueline Gillespie who changed her name to Pascarl, did not see her children again until 2006 when her daughter Sha was 20. Her son Iddin returned to Australia in 2006 to visit his mother after 14 years of separation. According to the Wikipedia entry for Jacqueline Pascarl “Jacqueline is now in contact with her children most days”.
Rule 7 Aside from yachts, the Watch List is effective
An essential step with preventing a child from leaving Australia is to have the child placed on the Airport Watch List maintained by the Australian Federal Police, often called a PACE alert. To obtain it there must be either an injunction specifically preventing the removal of the child from Australia or pending an application to that effect. Without either a court order or an application for such an order, there is no basis to place a child on the Watch List.
It will be your obligation to keep the Australian Federal Police notified of each step. Having a child placed on the Watch List does not occur automatically on the making of an order by the court. The Australian Federal Police have to be alerted to the order or the proceedings and then kept apprised of the order or proceedings. The Australian Federal Police will tell you how long the alert remains in place. You must have systems in place to ensure that, if orders remain in place that the child isn’t taken off the Watch List. If you are no longer acting for the client at that stage, you need to advise your client in writing of those steps. Nothing would be worse than for a child to be abducted because of a lack of attention by the client as you failed to advise them of their obligations.
Similarly if the order has been discharged, you need to tell the Australian Federal Police immediately. It would be an awful thing for the child to remain behind and not travel overseas on a holiday because the child remains on the Watch List even though there is an order which discharges the child on that Watch List.
The Watch List works.
Mary and Tim have separated. They have two young children. Tim has not been named on the birth certificate of either child. Mary and Tim entered into consent parenting orders. Arrangements between them broke down. Tim started further proceedings. Mary stays in a women’s refuge. Mary is an NZ citizen. Urged on by refuge workers she obtains a passport for each of the children claiming that the father is unknown. When she presents at the airport to take the children overseas, the children cannot go because Tim has had them placed on the Watch List – unbeknownst to Mary.
Mary pleads guilty to an offence under the Australian Passports Act and receives a substantial fine. A conviction is recorded.
John was ordered to pay child maintenance. This was in the days before the Child Support Agency could issue a notice prohibiting someone from leaving Australia.
John lived in Guam, which is not a signatory to any child maintenance enforcement convention, and which did not have a reciprocal agreement with the Child Support Agency. John came to Australia for a quick visit. He was due to leave the following Thursday. On the Friday afternoon I obtained an ex parte order under section 114(3) prohibiting him from leaving Australia. John was served with the order on Friday and shortly afterwards placed on the Airport Watch List.
On Sunday, four days before he was to leave Australia, and from Sydney airport instead of Brisbane, John attempted to leave Australia. He was stopped by Australian Federal Police Officers at the Sydney Airport. He claimed at the time that he had the money in his account in Guam and could pay by cheque.
Not surprisingly, he was able to leave Australia for Guam on Thursday – but only after payment of the outstanding amount was made.
He made payment!
Rule 8 Just because a country is a Hague country doesn’t mean that the child will be returned.
Sometimes I see in orders allowing a parent to travel overseas the requirement that the parent can take the child overseas provided that it is to a Hague country. The definition of what is a Hague country is very vague and has not been defined properly in the order. There are any number of conventions signed through the Hague Conference of Private International Laws. Which one? Presumably it is the 1980 convention that we typically call the Hague Child Abduction Convention.
I have seen an order which says that a party is only entitled to take a child to a country that has ratified the Hague Convention. One of the parents came from Europe and wanted to take the children back there. As a result of the form of order, the cost of travel to Europe has increased dramatically. It would appear on its face to be sloppy work by the lawyers involved. If one goes to the relevant web page of the Hague Conference in Private International Law (www.hcch.net) one can see that there are different ways of signing up to The Hague Convention.
· R – Ratification
· A – Accession
· A* – Accession giving rise to an acceptance procedure
· C – Continuation
· Su – succession
Stop Over Points to Europe
Based on the form of order it would appear that to get to and from Europe the parent would have to travel via the United States!
Considering whether to allow a parent to go to a Hague country or non-Hague country there are two obvious points to make:
1. As illustrated in the cases above the reach of Australian courts (subject to the Hague Convention or Courts in a foreign country acting in comity) is extremely limited.
2. Once a parent gets to a country overseas, such as Singapore there is nothing in place that would prevent them (subject to what might happen to them on their return to Australia) to travel to some other country where the chances of return of the child is extremely remote as a non-Hague country, such as Pakistan.
Just because a country is a Hague country, it should not be assumed that a child will be able to be easily returned from there. For example if the child is taken to the United States and not returned, US courts are certainly keen to return children under the Hague Convention. However, the person funding the representation in the US court for the Central Authority will be the non-abducting parent. In practical terms this may make it next to impossible to get the child back, subject to having US officials arresting the abducting parent for child stealing or a similar offence.
The US State Department has a very useful survey which it publishes in about April each year of how other countries respond in returning American citizens. It’s a good starting point to identify the country in question.
By all means if you are seeking to put information before the court about a particular country and its laws and processes, then ordinarily you should obtain evidence from an expert, preferably a lawyer in that country.
Don’t make the mistake of assuming that because a child goes to a Hague country that the child will be returned easily. Don’t make the mistake of assuming that because the child goes to a non-Hague country that it will be difficult to have the child returned.
Rule 9 Bonds are not the be-all and end-all
Sometimes it is suggested that a bond is a good way of ensuring compliance in returning a child. The answer is that you are measuring risk and you want to minimise the risk of the child being abducted. A bond may not be necessary. It may be as seen in Saad that all the roots are in Australia and that there is fairly low risk in the child being taken. However, if there is a high risk, particularly a high risk country, such as Pakistan, then a bond may be entirely useless. So what if you have a bond for $100,000 if the court’s in Pakistan form the view that the only person who has custody of the child is the father, who happens to have been the person who took the child back to Pakistan? Or the child ends up in a tribal area near Afghanistan?
Having said that I once obtained an order to allow a client of mine to take her child back to the Philippines for a family event in circumstances where she had previously threatened to abduct the child to the Philippines and not return. A bond of over $100,000 was sufficient. Clearly it would have funded a lot of legal activity in the Philippines and Australia. Not surprisingly, the order was complied with. The child was returned on time and the bond did not need to be paid.
Rule 10 Don’t hold the passport
Most the time in my view a passport does not need to be held. You would only have the passport held in custody if you thought there was a real risk of abduction.
If the passport is to be held by anyone, particularly for those who live in Metropolitan areas, then it ought to be held by the Registrar of the Court. While this can be a pain to have the passport released, it is in my view better than holding it by the solicitors.
There are several weaknesses in an order saying that solicitors are to hold the passport:
· You will be retained in the matter. Once your retainer is over, presumably your client won’t want to pay you another cent. Yet somehow you have agreed to an order that you hold a passport and have to undertake administrative duties every few months or years and not get paid for it.
· The devil is in the detail as to the form of order. The order might provide “the wife’s solicitors”. What happens if they change? If the wife changes her solicitors can’t she unilaterally move the passport to a new firm of solicitors? What if they are not familiar with the terms of the order and readily give the passport out? If the order specifies “Joe Bloggs and Co, Partners in Paradise” as the solicitors to hold the passport, what if that firm changes its name?
Rule 11 Never forget section 65Y
Section 65Y of the Family Law Act provides:
Obligations if certain parenting orders have been made
Penalty: Imprisonment for 3 years.
Note: The ancillary offence provisions of the Criminal Code , including section 11.1 (attempts), apply in relation to the offence created by subsection (1).
(a) it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or
(b) it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1).
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).”
Section 65X defines: “parenting order to which this subdivision applies”
(1) In this Subdivision:
“parenting order to which this Subdivision applies” means a parenting order to the extent to which it provides, or would provide, that:
(a) a child is to live with a person; or
(b) a child is to spend time with a person; or
(c) a child is to communicate with a person; or
There are several features about section 65Y which are notable:
1. There must be an order.
2. The order must be of the right kind. An order that says, for example, that the child is to live with the father and that he is to have sole parental responsibility (which would therefore enable him to ensure a passport to issue for the child to travel internationally) but which provide that the child is to have supervised time with the mother means that if the father or someone on his behalf, takes the child overseas without either a court order or the mother’s consent as authenticated, then an offence is committed.
3. It is preferable to have an order from the court covering this issue specifically so your clients do not run foul of section 65Y.
The authentication of consent in writing is contained in Regulation 13 of the Family Law Regulations 1984. The consent must be authenticated by a person mentioned in section 8 of the Statutory Declarations Act 1959 (Cth) endorsing on the consent a statement that:
a) The person is satisfied about the identity of the person signing the consent; and
b) The consent was signed in the person’s presence.
Who may be a witness to a Commonwealth Statutory Declaration is contained in schedule 2 of the Statutory Declarations Regulations 1993 (Cth). There is a very wide range of people who can be a witness. This can includes: a physiotherapist, member of the Australasian Institute of Mining and Metallurgy, member of Engineers Australia, other than at the grade of student, teacher employed on a full time basis at a school or tertiary education institution and veterinary surgeon.
Section 65Z has similar provisions to taking the child out of the country whilst proceedings are pending. If there is an appeal pending the proceedings are taken to be pending so that sections 65Z and 65Z(B) rather than 65Y and 65Z(A) are to apply: s.65X.
Rule 12 Giving notice to the owners of vessels or aircraft.
In addition to using the airport Watch List, there is ability under sections 65ZA and 65ZB to give notice by way of statutory declaration to the owners or charterers of a vessel or aircraft which then makes it an offence for that person to take the child overseas.
There is an exception if the child leaves in the company or with the consent in writing (authenticated as prescribed) of the person who made the statutory declaration in accordance with an order of the court. The statutory declaration must contain full particulars of the order including the full name and date and birth of the child and the full names of the parties and the order must be made at least 7 days before it was served.
I note that section 65ZB although in its heading refers to “aircraft and vessels” in (1)(b) only refers to a vessel. This would appear on its face to be an unintentional lacuna by parliament. Section 65ZB concerns if parenting orders are pending.
It can be burdensome and costly to serve the statutory declarations on a multiplicity of airlines.
Bringing the Baby Home
If you have a child born overseas via surrogacy, how do you get the child home, aside from the obvious answer of “on a plane”?
I will assume for the purposes of this exercise that your clients are Australian citizens. The starting point is as to what country they have undertaken surrogacy. If they have gone to a developing country, in the past this was typically India or Thailand, and more recently Mexico and Nepal, they won’t have had any court order. If they’ve gone to the US or Canada then they will have a court process and an order at the end of that process naming them as parents and giving custody in their favour.
What I haven’t dealt with in this exercise is to look at the criminality of the actions of the intended parents, your clients. I have assumed for the sake of argument that the intended parents come from Queensland or from Northern New South Wales and have therefore committed an offence:
· In Queensland of entering in to or offering to enter into a commercial surrogacy arrangement and the separate offence of making payment under a commercial surrogacy arrangement;
· In New South Wales of entering into or offering to enter into a commercial surrogacy arrangement.
ACT, Queensland and NSW law is quite clear that for people who are ordinarily resident in those jurisdictions (and in New South Wales an alternate test of domiciled) the offence is committed no matter where it may occur in the world.
In those countries the typical approach of the Australian Government is that a citizen of that country will not be entitled to travel to Australia unless they have obtained a visa in that country. A child born to an Australian couple in India will be a non-citizen and stateless by virtue of the effects of the Indian Citizenship Act 1955. Therefore the actions for someone who might have travelled to India for surrogacy will be to persuade Australian officials in New Delhi that the child is an Australian citizen, and therefore is entitled to an Australian passport.
The two countries in which Australians are undertaking surrogacy to any great degree which have a judicial process are the United States and Canada. In each of those countries when the child is born the child will be entitled to US or Canadian citizenship respectively. With each of those countries we have a travel waiver visa which means that a citizen of that country can apply to travel to Australia as a tourist by way of an electronic travel visa applied for online.
Therefore, typically the Australian intended parents will have obtained their order in the relevant US or Canadian court, obtained a US or Canadian passport for the child and then apply for the travel visa online for the child. The child will then travel to Australia and, once in Australia will then apply for citizenship.
DNA or no DNA.
The Australian Citizenship Act 2007 prescribes, by section 16 that if a child is born to a person who is an Australian citizen and that birth occurs outside Australia then the child is entitled to apply for Australian citizenship.
There is a very poor definition of who is a parent and who is a child.
The traditional view of the Department of Immigration (now Immigration and Border Protection) is that the child must be genetically the child of an Australian citizen. In other words, if we have a couple who are Australian citizens and they rely on a foreign egg donor then citizenship is assured by relying on the DNA of the father.
What happens though when a child does not have the DNA of the parents? For example:
· The intended parent or parents may have relied on both egg and sperm donation;
· There was a mistake in the lab.
Example of mistake in the lab
Russell and Kurt are a gay couple. Russell is an Australian citizen. Kurt is a South African citizen. Russell and Kurt go to the We Make Babies Surrogacy Agency in Chennai, India. Only Russell’s sperm is provided. Russell and Kurt are quite clear that they want to obtain Australian citizenship for the child.
Everything goes well. The child is conceived and born. It is a Caucasian child. The DNA test is undertaken – but to their horror Russell’s sperm was not used. The donor is not known.
The Federal Court in H v Minister for Immigration (2010) a decision of the Full court of the Federal court, made it plain that who is a parentunder the Australian Citizenship Actis not limited to either the genetic parent of the child or the person who is a parent under the Family Law Act. The Federal Court was quite clear in saying that Parliament intended to take a broad interpretation of who was someone commonly considered to be a parent and is not limited to DNA.
Case 1 from H v Minister for Immigration
An Australian man met a Chinese woman on the internet. She was already pregnant to a Chinese man who had deserted. The Australian man was in love with the Chinese woman and agreed to marry her. He said that after they were married he would raise the child as his own and have his name placed on the birth certificate as the father. All that came to pass. The Federal Court found that he was a parent within the meaning of the Australian Citizenship Act.
Example 2 from H v Minister for Immigration
A 30 year old Fiji woman wanted to migrate to Australia to live near her father, stepmother and half siblings. At the time her mother was pregnant, her mother, a Fijian woman, told her father, an Australian man that she was pregnant to him. After the child was born a blood test was undertaken confirming the same that the baby had the same blood type as the Australian man. He quickly acknowledged paternity and paid child support. He, his wife and children would visit the child or the child would visit them in Sydney.
When a DNA test was undertaken to support the Citizenship Application, all were horrified that it showed that the man was not the father. A second DNA test was undertaken. He was not the father. It turns out that the mother had sex with another man at the relevant time. That man, believed to be an Australian citizen, had since died. The Federal Court found that the Australian man who believed for 30 years that he was the father of the child was the parent within the meaning of the Australian Citizenship Act.
The key to obtaining citizenship for the child is that the parent/child relationship must be existent at the time of the child’s birth.
Where there is a non-biological link between parent and child, the Australian Citizenship Instructions, which are not law of any kind, but are internal guidelines for officers of the Department of Immigration and Border Protection in considering citizenship state (at 19.4.2):
“It is unlikely that any one piece of non-biological evidence would be sufficient to prove the required parent-child relationship. The decision maker more likely will be required to weigh up any relevant factors, including social and legal, to reach a finding of fact as to whether the claimed parent is (was) or is (was) not a parent of the applicant at the relevant time.
Evidence that the claimed parent-child relationship existed at the time of the applicant’s birth may
include, but is not limited to:
· anything which would show the Australian citizen’s inclusion as a parent on the birth certificate was done with their prior consent
· evidence that the Australian citizen was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth and prenatal and postnatal care
· evidence that the child was acknowledged socially from or before birth as the Australian citizen’s child, for example, the child was presented within the Australian citizen’s family and social groups as being the Australian citizen’s child and when a child is born through a surrogacy arrangement – a formal surrogacy agreement entered into before the child was conceived and lawful transfer of parentage before or at time of birth in the country in which the surrogacy was carried out.
· Evidence that the Australian citizen treated the child as their own from some point in time after birth would not by itself be evidence that they we
re the child’s parent at time of birth, but would lend weight to evidence of the types mentioned above.
Under policy, in the absence of satisfactory evidence of biological parentage, any other evidence provided should be closely scrutinised and verified to the maximum practical extent. (Emphasis added)
“Relevance of foreign law
The status of a person as a parent under a foreign law may be taken into account, but is not determinative as to whether that person is a parent for the purposes of the Act.”
Why Immigration officials want to closely scrutinise and verify parentage to the maximum practical extent is obvious – to ensure that Australia meets its international obligations and it prevents child trafficking. The illustration of what can go wrong is no better put than in the case of Mr Truong and Mr Newton. Peter Truong is an Australian citizen of Vietnamese ethnicity from Brisbane. His partner Mark Newton was a dual US/Australian citizen.
Mr Truong and Mr Newton went to Moscow and undertook surrogacy there. Mr Newton was shown as the genetic father of the child. So as to obtain Australian citizenship for the boy, relying on Mr Newton’s nationality they obtained a consent order in a court in the United States giving them custody of the child. They subsequently obtained an adoption order from the United States court as well. Australian citizenship was obtained.
They appeared to be the poster boys of gay couples undertaking surrogacy. It was all a lie.
The truth came out when a man in New Zealand put in his computer for repairs. The shop owner, seeing child porn, quickly notified authorities. The awful truth emerged. Mr Truong and Mr Newton had bought the baby for $9000. The documents saying that Mr Newton was the genetic father were forgeries. The child was expressly obtained for the purposes of being photographed and filmed for a global paedophile ring. Men (I’m afraid to say including a lawyer) were arrested in Australia, New Zealand, various parts of the United States and various parts of Europe.
The child who would be now about 10 is in the care of extended family in the United States. Each of Truong and Newton are likely to spend the rest of their lives in jail.
In light of the Truong and Newton case it is essential for those who do not have a genetic link with their child who has been born through surrogacy overseas that there is maximum planning that demonstrates that at the time of the child’s birth there is a parent-child relationship between the Australian citizen and the child.
It is unclear based on a series of disparate judgments from the Family Court as to whether or not the intended parents are parents of the child on the child’s return. With rare exception, intended parents do not want to go to the Family Court and pay substantial monies to us in addition to the costs that they have incurred in undertaking surrogacy overseas. The chances are that they will be found not to be parents of the child, but will then have a parenting order in their favour.
The alternatives open to them are to:
1. Register the overseas child order with the Family Court;
2. Make sure they have a properly drawn will which specifically names their child and an associated statutory declaration which clearly states that they consider the child to be their child even if their child is not their child as a matter of law.
The last thing that they would want to do is, by some sloppiness on their part or on the part of one of us is to disinherit their child, which may occur because of presumptions under the Status of Children Act 1978 and a failure to ensure that there is a properly drawn up will in place.
Harrington Family Lawyers
11 March 2015
Stephen Page is a partner of Harrington Family Lawyers Brisbane. He was admitted in 1987 and has been an accredited family law specialist since 1996. He is an international representative on the Artificial Reproductive Technologies Committee of the American Bar Association, a fellow of the International Academy of Matrimonial Lawyers and the first international fellow of the American Academy of Assisted Reproductive Treatment Attorneys (AAARTA). He is the author of the Australian Surrogacy and Adoption Blog: http://surrogacyandadoption.blogspot.com.au