Keywords: Children – Child Abduction – non-Hague Convention country- best interests of the child
In the recent case of Acquaah-Akuffo & Abioye  FamCAFC 194 (4 November 2016), the Full Court decided, under Family Law Act 1975 (Cth) (the “Act”) section 60CC (outline what considerations determine the best interests of the child in a given case), that the Court should take into account welfare and public policy considerations which discourage removing children from their homeland, and therefore ordered that the parenting dispute between the mother and the father be heard in the child’s habitual place of residence (Ghana, being a non-Hague Convention on Child Abduction country).
The father had asserted that the trial judge failed to give sufficient weight to the risk that the child may not be returned to Australia if an order was made for the child’s return to Ghana. The trial judge found that this risk was outweighed by the benefit of the child returning to the care of his primary caregiver, the mother, and the father’s appeal was dismissed.
The main issue in this case was what was in the best interests of the child. We see from this case that the mother had the best interests of her child at heart. On the other hand, it was ultimately found that the father was somewhat selfish and was only concerned about his own interests.
The parties were both Ghanaian nationals who married in 2005 and divorced on 28 January 2011. The child was born in 2006 in Australia, but had since February 2007 lived in Ghana with his mother. At the time of the divorce, in Ghana, the mother obtained orders from a Ghanaian court which provided that she have custody of the child, but allowed the father to see the child.
The father lives in Australia, although he has travelled to Ghana to spend time with the child for a few weeks each year. During 2013 the father removed the child from Ghana for the first time without the mother’s consent and brought him to Australia. On that occasion, the mother sought assistance from the authorities to secure the child’s return. The father returned the child to Ghana.
On 17 August 2015 the father transported the child from Ghana for a holiday in Australia with the mother’s permission. The mother’s permission was given on the basis that the child would be returned to Ghana for the commencement of the school term on 9 September 2015. The father wrote to the mother and told her that the child would return to Ghana on 3 September 2015. He did not return the child to Ghana, and instead filed an application for parenting orders in the Federal Circuit Court of Australia in March 2016. The matter was transferred to the Family Court.
The mother commenced proceedings in the High Court of Ghana for assistance in having the child returned to Ghana, and on 13 May 2016 that court made ex-parte orders for the child to be returned.
Whether the child was better off living with his mother in Ghana or with his father in Australia?
Reasons for decision
On appeal, the Full Court of the Family Court considered the effect, on the child’s welfare, of the father’s withholding of the child from his mother in Ghana as long-term primary carer. Of particular concern to the Court was that the change of location to Australia was unfamiliar to the child whereas the return to his mother in Ghana was a return to the familiar. The mother has been the parent with whom the child had lived since a baby.
The Court’s decision was made in accordance with the exercise of the court’s welfare jurisdiction and, therefore, gave precedence to the child’s best interests. Importantly to the Court, the child had lived primarily with his mother (in Ghana) for eight and a half years; arrangements in relation to the child had been formalised by orders of the court in Ghana (which ordered the mother to have “custody” of the child) and from which the father had not appealed, nor sought to change; and finally, the father had himself invoked the jurisdiction of the Ghanaian High Court.
The evidence did not demonstrate that if the child were returned to Ghana, it would operate to destroy the relationship with the father. The mother had met the medical, emotional and intellectual needs of the child whilst the child was in Ghana, and at the same time had facilitated a relationship between the father (residing in Australia) and the child. Indeed, the mother was unable to come to Australia without a visa, but the father had regularly visited in Ghana in the past.
It followed for those reasons that, having regard to the considerations determining the best interests of the child, separation from the mother was of greater significance than a potential separation from the father in Australia. Further, it did not help the father’s case that his action in retaining the child displayed little concern for the significance of the relationship between the child and his mother in Ghana.
The father argued that the mother sought to have the child returned to a non-Hague convention country. The Court found, however, that Ghana was the appropriate forum in which the dispute should be heard (and where the child should return and reside in the interim), because Ghana was the country of the child’s residence, up until the time he was brought to Australia and retained here by the father.
According to the Full Court: “In the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child’s welfare is the first and paramount consideration.”
This was therefore one of the cases of child abduction from a non-Hague Convention country, where it was appropriate for a court to conduct a speedy summary hearing and to order the return of the child, in this case to his mother in Ghana.