Al v Trl
| Jurisdiction | Trinidad & Tobago |
| Judge | Peterson, J. |
| Judgment Date | 10 August 2015 |
| Neutral Citation | TT 2015 HC 260 |
| Docket Number | FH 01327/2015 |
| Court | High Court (Trinidad and Tobago) |
| Date | 10 August 2015 |
High Court
Peterson, J.
FH 01327/2015
Ms. Nikeisha Thompson for the applicant
Mr. Martin George and Ms. Shalini Sankar for the respondent
Family Law - Children — Return application filed by the Civil Children Abduction Authority of the Ministry of the Attorney General on behalf of the father — Whether a case was made for the summary return of the children to Australia — Whether the father exercised rights of custody to the children — Whether the children were wrongfully retained in Trinidad and Tobago — Whether the father consented to the permanent relocation of the children — Whether a grave risk existed that if the children returned to Australia they would be exposed to physical or psychological harm or be otherwise placed in an intolerable situation — Child Abduction Act.
Peterson, J. The applicant AL (‘the father’) and TLRL (‘the mother’) have two children, LHLL, who was born in Trinidad and Tobago on 16th April, 2012 and is now three years old; and BDL, who was born in Australia on 29th November, 2013 and is now twenty months old (together referred to as ‘the children’).
It is not in contention that the Republic of Trinidad and Tobago and the Commonwealth of Australia are Contracting States to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). Trinidad and Tobago acceded to it on 7'11 June 2000. By the International Child Abduction Act of Trinidad and Tobago, Chapter 12:08 (“the Act”), the Convention has been incorporated into the national law of Trinidad and Tobago. The Convention entered into force here on 1 September 2000, and there is bilateral operation with Australia since 1st May 2001.
The Convention applies to any child under the age of sixteen years, who was habitually resident in a Contracting State immediately before any breach of custody or access rights [Article 4 of the Hague Convention on the Civil Aspects of International Child Abduction].
On 3rd August, 2015 this court ordered the return of the children to the Commonwealth of Australia, and indicated that a written judgment providing full reasons for the decision would subsequently be provided.
A return application was commenced by a Notice of Application filed by the Civil Child Abduction Authority of the Ministry of the Attorney General Trinidad and Tobago (“the Authority”) on 16th June 2015 on behalf of the father. The mother opposes the father's application. She relies on Article 13 of the Convention, namely that she has not wrongfully retained the children in Trinidad and Tobago in that the father consented to her leaving Australia permanently with the children in 2014. The mother asserts three of the exceptions to mandatory return of children to their habitual residence, firstly that the children have now been in Trinidad and Tobago for over twelve months and are well settled here; secondly that the father was not exercising his custody rights; and thirdly that there is a grave risk that the children's return to Australia would expose them to physical or psychological harm or otherwise place the children in an intolerable situation.
The mother and the father relied on affidavit evidence. The court required no clarification of the written evidence. Neither of the Attorneys-at-Law suggested that oral evidence was necessary. The submissions of both Counsel and the numerous authorities cited were particularly helpful.
This court embarked on the initial four stage analysis to determine whether a case has been made for the summary return of these children to Australia. Firstly, the ages of the children were determined, secondly the issue of the habitual residence of the children was determined, thirdly, whether the father had rights of custody with respect to the children, and fourthly whether the father exercised rights of custody with respect to the children. The burden of proof for the foregoing is on the applicant.
The age of each child, their habitual residence and the father's rights of custody are not in contention. There is no judicial decision in Trinidad and Tobago or Australia concerning the custody rights for these children. The father has rights of custody which arise by operation of law in both Australia and Trinidad and Tobago.
One of the exceptions to mandatory return of children to their place of habitual residence is the left-behind parent's non-exercise of rights of custody to children. Under Article 3 of the Convention, a removal or retention will only be considered wrongful where it is in breach of custody rights which were actually exercised by the applicant immediately before the removal or retention.
“The removal or the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
The mother's case is that she and the children had been abandoned by the father prior to their departure from Australia. After their departure from Australia, she nevertheless provided access between the father and the children via voice and video telecommunication. I am satisfied that the father exercised rights of custody with respect to the children and maintained a relationship with the children immediately prior to the alleged retention. The court is satisfied that there is no evidence that the father has relinquished any custody rights to his children. The father at the time of the alleged retention actually exercised custody rights over the children and still possesses the right to be granted the physical care and control of his children.
The father has therefore discharged the burden of proof placed on him as applicant. A prima facie case has been established that the children have been wrongfully retained in Trinidad and Tobago by the mother. As a result of this the Court is mandated to order that the children be returned to the country of habitual residence unless any of the defences in Article 12 and Article 13 of the Convention are established by the mother.
Article 12 of the Convention provides that if the return application is made within one year of the date of wrongful removal or retention, the Court of the requested State shall order the return of the child immediately. Even where the proceedings are commenced after the expiration of the period of one year after the date of wrongful removal or retention, the Court of the requested State shall order the return of the child, unless it is shown that the child is now settled in its new environment. The respondent's Attorney-at-Law submitted that more than one year has elapsed since the children have been in the jurisdiction of Trinidad and Tobago. The true issue is whether or not a period of one year had elapsed between the wrongful retainer of L and B in Trinidad and Tobago, and the date when these proceedings were initiated. It is difficult to determine when time started to run for the purposes of Article 12 because there is inadequate proof of the agreed duration of the mother's stay in Trinidad and Tobago with the children.
In paragraph 50 of his affidavit sworn to on 27th January 2015 and exhibited to the first affidavit of Jerrel Samaroo-Campbell, the father stated that in September 2014 the mother told him of her intention not to return to Australia. He exhibited copies of emails dated 22nd October 2014 as ATL 01-ATL 04 to his affidavit filed on 7th July 2015 in each he stated “Last night she informed me that she would not be returning and she wants a divorce.” The court makes no finding on the accuracy of the information contained in these emails.
I am satisfied that the children arrived in Trinidad and Tobago in July 2014. I am satisfied that the retention commenced subsequent to July 2014. These proceedings commenced in June 2015. Since a year did not elapse between the wrongful retention of the children and the commencement of return proceedings, there is no need for the court to determine whether or not the children are settled in their new environment.
The court then considered whether the father has consented to the permanent relocation of the children in Trinidad and Tobago. Article 13(1)(a) of the Convention stipulates:
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that-
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention.”
The mother's case is that the father's consent may be implied from the fact that he purchased one-way tickets, the fact that she and the children were no longer living together with the father as a family at the time of her departure, and the family's circumstances in Australia immediately before their departure. The father denies that he consented to the children's permanent relocation to Trinidad and Tobago.
The case of Re K. (Abduction: Consent) [1997] 2 FLR 212 provided useful guidance on this issue. In Re K., the Honourable Mrs. Justice Hale (as she then was) reviewed an number of English...
To continue reading
Request your trial