Child returned to a non-Hague Convention country – Summary Hearing

By Amanda Humphreys, Senior Associate, MST Lawyers

In Acquaah-Akuffo & Abioye [2016] FamCAFC 194, the Full Court of the Family Court of Australia considered an interim order made for the return of a child from Australia to a non-Hague Convention country, Ghana.

The child was born in Australia in 2006 and was taken to live in Ghana by his mother in 2007. In 2011, parenting orders were made in Ghana giving the child’s mother full custody and allowing the father, who lives in Australia, to visit him.  In 2013, the father removed the child from Ghana without the mother’s consent.  He subsequently returned the child after the mother sought assistance from the authorities.  This was followed by further proceedings relating to the child in Ghana.

With the child’s mother’s consent, in August 2015, the father brought the child to Australia for a holiday. He then refused to return him to Ghana.  The mother issued proceedings in the High Court of Ghana, which made an order requiring the child to be returned.  The father issued proceedings in the Federal Circuit Court of Australia, seeking the child live with him in Australia.  The mother sought orders in the Australian proceedings for the child to be returned to her care in Ghana.

In June 2016, the trial judge made interim orders requiring the father to return the child to live with the mother in Ghana and for her to have sole parental responsibility for the child, concluding:

“51.        Whatever orders are made here involve a degree of change of circumstances for [the child], and each includes an aspect of separation from a parent. There is no neutral position. If he remains in Australia, then he is separated from his mother and previous home for an unknown period. If he returns to Ghana, then he is separated from his father. Of the two sets of circumstances, remaining in Australia constitutes the more significant change of circumstances. The mother is unable to come to Australia without a visa, whereas the father has regularly visited in Ghana (although it is unknown whether his actions in retaining [the child] will constitute a barrier to further opportunities to seeing [the child] in Ghana). The mother has been the parent with whom he has lived since a baby and the criticism made of her by the father is of limited significance. At present, separation from the mother is of greater significance than a potential separation from the father.”

In dismissing the father’s appeal, the Full Court:

• Confirmed the issue to be decided by the trial judge was where (in Australia or Ghana) the parenting dispute should be heard. This issue had to be determined by recognising what was in the child’s best interests.  The Full Court distinguished between a speedy summary hearing, which would be appropriate in a case such as this, and an application for summary dismissal, which was not.   The Full Court referred to authorities including the High Court in ZP v PS (1984) 181 CLR 639; [1994] HCA 29 and the Full Court in Pascarl & Oxley (2013) FLC 93-536; [2013] FamCAFC 47 and Kwon and Lee (2006) FLC 93-287 (also reported as EJK & TSL [2006] FamCA 730;                                 
• Held it was up to the trial judge to find it was in the child’s best interest that he be returned to his mother without any further delay; including delay caused by appointing an independent children’s lawyer and a family report at an interim stage, as was sought by the father. In respect of this issue, the Full Court considered what was said in Bondelmonte & Bondelmonte (2016) FLC 93-698; [2016] FamCAFC 48; and
• Found the trial judge was well aware of the risk the mother may not return the child to Australia if an order was made for his return to her care in Ghana but that this was outweighed by the benefit of returning the child to her care.

MST Lawyers’ Family Law team has significant expertise in international parenting matters and child abduction (Hague Convention) cases, including litigation and cross-border mediation. If you require assistance with an international family law matter please contact us by email at family@mst.com.au or by telephone + 61 3 8540 0200.