Recent Court of Appeal Judgement – 1996 Hague Child Protection Convention

by Michelle McDermott on August 23, 2013

Michelle McDermott

In the very recent decision of Cape & Cape, the Full Court had its first opportunity to consider the operation of the 1996 Hague Child Protection Convention (“the Convention”). The Convention was signed at The Hague on 19 October 1996 and was subsequently implemented in Australia in 2002. The Convention established conflict of law rules to be applied in parental responsibility litigation with an international aspect.

Her Honour Justice Crisford had permitted the mother and the parties’ 10 year old son to relocate to Germany. The father appealed against the Orders and also applied for a stay of the Orders pending the outcome of the appeal.

When the father then applied for a stay of the orders, Her Honour ordered that the mother execute an undertaking pursuant to the Convention to provide that in the event the father’s appeal was successful, the mother would return the child to Australia. Her Honour ordered that the mother’s written undertaking be registered both in the Family Court and in a Court of competent jurisdiction in Germany. The mother and son could relocate to Germany, even though the Appeal had not been determined. The father appealed Her Honour’s decision in respect of a stay of the Orders.

When looking at the Convention, the Full Court noted that the Australian Acts and Regulations with respect to the Convention give no apparent assistance to a parent who wishes, or is required, to send an Australian parenting order to another country for recognition and enforcement. The Court referred to, and found very useful, a discussion of the recognition and enforcement provisions of the Convention in a yet to be published paper by Michael Nicholls QC of the English and Western Australian Bars entitled ‘Australia and the 1996 Hague Protection Convention’.

Mr Nicholls highlighted that the basic rule of the Convention was that, subject to very limited exceptions, measures taken by the authorities of a contracting state must be recognised by operation of law in all of the contracting states. What this meant was that it was unnecessary to issue legal proceedings in Germany for the Australian undertaking to be recognised.

In this case, the Full Court found that it was unclear in Her Honour’s Orders whether the mother would be permitted to take the child to Germany once she had executed the required undertaking or whether she could only do so after that undertaking was registered in the Australian and German courts. There was also no provision for the father to be informed that the requirements of the order had been met.

Having decided that it was in the best interests of the child to be able to go to Germany with his mother, the Full Court preferred not to rely on an undertaking, but rather base the safeguards on Orders of the Court. Accordingly, the appeal was allowed but the Full Court replaced Her Honour’s original orders with more detailed orders ensuring that the mother provided proof that she had obtained from a German Court either advance recognition or a declaration of enforceability in Germany of the original relocation orders and the Full Court’s orders.

The time limit for the father to appeal to the High Court has not yet expired.

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