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
Introduction
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”[2]
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
· Money
· 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.
Example:
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[1992] 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[3]:
“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
1988;
(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
other.
(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 renewe
