Father-of-two who claimed wife ‘wrongfully removed’ children from Australia to Scotland has petition for daughters’ return refused

A judge in the Court of Session ruled that the the father had “acquiesced” in the mother’s wrongful removal of the children and that it would be inappropriate to return them from the UK to Australia.

Lord Stewart heard that father petitioner FJM and mother respondent CGMhad two female children together following their marriage, aged eight and six at the time of the hearing.

The parties lived together and their children were habitually resident in the State of New South Wales, Australia until 13 December 2014, when the petitioner claimed that the respondent abducted the girls and wrongfully removed them to Scotland.

The petitioner sought the return of the children to New South Wales by an application to the Court of Session made in terms of article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, of which both the Commonwealth of Australia and the United Kingdom are signatories.

The respondent accepted that she removed the children wrongfully, but she contested the application for a return order on the basis that the petitioner had acquiesced in the removal and argued that the court should exercise its discretion not to return the children.

Part of the respondent’s case for acquiescence was that the petitioner undertook during mediation held in Scotland not to insist on his Hague Convention return application and agreed that the children should remain in Scotland.

But the petitioner argued that evidence of what occurred during the mediation was “inadmissible” by the application of section 1 of the Civil Evidence (Family Mediation) (Scotland) Act 1995.

The respondent countered that one of the 1995 Act exceptions to inadmissibility applied.

Having allowed the evidence about what reportedly occurred both at the mediation and also immediately after the mediation under reservation, the judge repelled petitioner’s objections and held that the mediation evidence was admissible.

The judge interpreted what occurred at the mediation session, in its context, which included email exchanges between the parties, to include a “unilateral undertaking” by the petitioner that he would abandon his Hague Convention return process; and an agreement that the children would stay in the UK and, specifically, for at least 12 months, in Scotland.

In a written opinion, Lord Stewart said: “Whatever the precise intentions about the future residence of the children, there was no clear suggestion after the early stages of the separation that the children should return to Australia. I find as a fact that the mutual understanding was that the children would live in the United Kingdom, though it may not have been settled whether ultimately in Scotland or England. This is all that matters when the issue is about acquiescence in the removal from Australia.

“I find that the petitioner did acquiesce in the removal of the children from Australia. I also note that the acquiescence evidenced at the mediation session was expressed after the petitioner had had an opportunity to satisfy himself about the children’s living conditions in Scotland, about their schooling and about their emotional state… The above findings and inferences about acquiescence are made on the assumption that the mediation evidence is admissible.”

Section 1(1) of the 1995 Act provides: “Subject to section 2 of this Act, no information as to what occurred during family mediation to which this Act applies shall be admissible as evidence in any civil proceedings.”

The issue between counsel was whether the section 2(1)(a) exception applied: “Nothing in section 1 of this Act shall prevent the admissibility as evidence in civil proceedings of information as to any contract entered into during family mediation or of the fact that no contract was entered into during such mediation.”

Counsel asked the judge to decide whether or not the “understanding” made between the parties during their mediation in Dunfermline was an excepted “contract” within the meaning of the Act.

For the petitioner it was submitted that a distinction has to be drawn: a “contract” was a concluded agreement resolving the whole issues and in respect of which there is a formal undertaking to adhere; whereas the document founded on in this case, in contrast, was a summary of areas of discussion, not an agreement between parties but a recording of the mediator’s impression.

For the respondent it was submitted that “contract” did not have a technical meaning; “contract” simply meant an “agreement”; and that the “understanding” which was “made” between the parties was an agreement between the parties.

However, the judge held that, in any event, the 1995 Act did not apply to mediations about Hague disputes.

And even if the mediation evidence were to have been excluded, the judge would have found that the petitioner acquiesced in the removal of the children from Australia.

Lord Stewart also declined to make a discretionary order for the children’s return to Australia.

He said: “The petitioner is entitled to feel legally wronged and emotionally hurt by the respondent’s actions. The respondent has also offended against the international legal order. Her conduct is to be disapproved of. However, it is not a function of these proceedings to punish the respondent. Balancing as best I can all relevant considerations and weighing the competing submissions of counsel, I have come to the view that it is not appropriate in this case to exercise the power confided to me by the Hague Convention to return the children to New South Wales.”