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Gorce v Miller [2003] TOLawRp 43; [2003] Tonga LR 316 (18 November 2003)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

FA 43/2003

Gorce

v

Miller

Ford J
15 and 17 November 2003; 18 November 2003

Family law – custody – Australian Family Court orders made – child returned

The parties are the parents of a four-year-old girl, Kayla Alyce Miller-Gorce (born 7 January 1999). They both filed ex parte applications that sought custody of the child coupled with a request for urgency. The court granted urgency but directed that the applications would need to proceed on notice. A fixture was allocated for 11 November but on the morning of the scheduled hearing, both counsel indicated that they were in agreement that the fixture should be vacated and the matter should be heard and determined on affidavit evidence alone. Neither party was Tongan and neither had any established connection with Tonga. The respondent was residing in Vava'u with Kayla and an older child, Korey, aged 13, and she indicated to the court that her intention was to continue residing in Tonga indefinitely.

Held:

1. The court considered whether it should give Ms Miller temporary custody of Kayla on condition that she return the child immediately to Australia. Ms Miller had done nothing to merit the trust of the court and, if left to her own resources, the court had no confidence that she would obey any order made. Having consideration of the background it was difficult to have any confidence that Ms Miller would obey an order to return the child to Australia. However, Mr Gorce was back in Brisbane so there was no option for the court to make an order granting him temporary custody of his daughter.

2. The court granted Ms Miller temporary custody on condition that she immediately return Kayla to within the jurisdiction of the Australian courts and, within 48 hours of her arrival ensure that the child was taken before the Federal Magistrates Court in terms of the order of that court dated 31 October 2003.

3. If the order was not strictly complied with by Ms Miller then any interested party was granted leave to immediately notify the court and further, more drastic, orders will be made.

Cases considered:

A and another (minors), Re [1992] 1 All ER 929

E (an infant), Re [1967] 1 All ER 329

H (infants), re [1965] 3 All ER 906

Statutes considered:

Child Abduction and Custody Act 1985 (UK)

Children's Act 1989 (UK)

Reciprocal Enforcement of Judgments Act (Cap 14)

Counsel for applicant: Ms Tupou
Counsel for respondent: Mr Tu'utafaiva

Judgment

Proceedings

The parties are the parents of a four-year-old girl, Kayla Alyce Miller-Gorce (born 7 January 1999). They have both filed ex parte applications seeking custody of the child coupled with a request for urgency. I granted urgency but directed that the applications would need to proceed on notice. A fixture was allocated for 11 November but on the morning of the scheduled hearing, both counsel saw me in Chambers and indicated that they were in agreement that the fixture should be vacated and the matter should be heard and determined on affidavit evidence alone.

The facts are far removed from the usual type of custody application that comes before the courts in the Kingdom. Neither party is Tongan nor do they have any established connection with Tonga. The court has jurisdiction, however, because the respondent is presently residing in Vava'u with Kayla and an older child, Korey, aged 13, and she has indicated to the court that her intention is to continue residing in Tonga indefinitely.

Before turning to the issues before the court, I should briefly outline the relevant factual background.

The relationship

The respondent, Ms Miller, is an Australian citizen. She has just turned 40, having been born in Brisbane on 10 November 1963. Mr Gorce is 32. He was born in Limoges, France, on 13 May 1971. The couple met in early 1997 at Miami High School on the Gold Coast of Australia. Mr Gorce was teaching French at the High School under a 12 months work visa and Ms Miller was working at the college as a swimming teacher.

At that stage, Ms Miller had two children from previous relationships -- Korey, and an older daughter Cynthia, who was born when Ms Miller was 18. Ms Miller, in fact, had married Korey's father in 1989 but the couple separated when Korey was about 2 years of age. It is not clear from the documentation before the court whether they have ever been divorced.

After serving out his 12 month contract, Mr Gorce returned to France and in April 1998 Ms Miller visited him in that country and fell pregnant with Kayla. Mr Gorce subsequently visited Mandy in Australia on two or three occasions and he was present at Mandy's birth in January 1999.

In May 1999 the couple began living together on the Gold Coast. The relationship lasted only until July 2001, however, when they separated due, as Mr Gorce put it, "to a divergence of views and lifestyle." Mr Gorce subsequently experienced considerable difficulties in trying to have contact with Kayla. He was able to see her only once between July and November 2001. He believed that Ms Miller's hostility towards him in this regard was a result of her stated view that he had used their relationship to gain residence status in Australia. It is an allegation which Mr Gorce vigorously denies.

Orders in Australia

Towards the end of 2001 Mr Gorce pursued action through the Family Court of Australia to obtain access to Kayla. On 25 January 2002 he was granted limited regular supervised contact under an "Interim Children Order" but on 13 March 2002 he made further application to the court for better contact arrangements. In response, on 22 July 2002, the court ordered a "Family Report" and in August 2002 Mr Gorce was interviewed for the purposes of the Family Report by a court-appointed Family Court Councillor, Sandra Eyre. Ms Eyre's 13 page report dated 6 September 2002 is before the court. It is an impressive document. It recommended that Mr Gorce be granted regular unsupervised contact with Kayla upon completion of a "Triple P Parenting Course". (As an aside, it is noted that on 2 December 2002 Mr Gorce was awarded a Certificate from the Parenting and Family Support Centre of the University of Queensland confirming that he had completed the "Level 4 Group Triple P Positive Parenting Programme).

Mr Gorce had access to Kayla on 1 September 2002 and then on 9 September both parents were required to attend before the Family Court of Australia at Brisbane when Ms Eyre's report was expected to be considered. Unfortunately, that court fixture never eventuated. Ms Miller disappeared off the scene.

The absconding

Mr Gorce later ascertained from the State Central Authority that on 8 September 2002 she had left Australia with Korey and Kayla and flown to Fiji. It was a deliberate and calculated action designed to remove Kayla from the jurisdiction of the Australian Courts and, hence, from all contact with her father. In Fiji Ms Miller changed Kayla's name to "Jessica" and shortened and dyed her hair - changing it from blonde to light brown.

Mr Gorce was unrelenting in his search for Kayla and on 2 December 2002 he obtained a Recovery Order from the Federal Magistrates Court in Brisbane. It was an all embracing order which authorised officers of the Australian Federal and State Police Forces to search for Kayla and for that purpose to stop, search and enter any vehicle, vessel or aircraft in which at any time they believed the child might be found. By that stage, however, Kayla was already outside the jurisdiction of the Australian courts.

Mandy and the two children eventually left Fiji on 26 March 2003, having overstayed their visitor's permit by more than two months. On that day they flew to Tonga where they were issued with a one-month visitors' permit. The permit has since been renewed and it next expires on 5 December 2003.

In Tonga

The case first came to the attention of this court on 11 June 2003 when Mr Gorce filed an ex parte application pursuant to the Reciprocal Enforcement of Judgments Act (Cap 14) to register the Order of the Federal Magistrates Court in Tonga. In the alternative, he sought a Recovery Order pursuant to section 50 of the (UK) Children's Act 1989. At a Chambers hearing on 12 June 2003 it was pointed out to counsel that neither option was available. The Australia and Federal Magistrates Court is not one of the courts recognised in the schedule to the Reciprocal Enforcement of Judgments Act and, even allowing that the UK Children's Act did have application by virtue of the Tonga Civil Law Act, the section in the UK legislation relied upon by the applicant was not relevant to the facts of the present case.

Counsel for Mr Gorce then made urgent application (again pursuant to the Civil Law Act) for orders under the (UK) Child Abduction and Custody Act 1985 but at a Chambers hearing on 20 June 2003 I ruled that that Act simply ratified the convention relating to international child abduction known as the Hague Convention (1980) and there was no evidence before the court that Tonga had ever ratified the convention in question.

Counsel for the applicant then made a further application to the court relying upon another English statutory provision that did appear to be relevant to the case in question. On 26 June 2003 I made orders requiring the respondent to appear before me at Nuku'alofa on 3 July 2003 when a timetable order would be drawn up for the hearing of Mr Gorce's application. I also made orders prohibiting the respondent from leaving Tonga and requiring her forthwith to surrender her passport to the court. It was ascertained at that point in time that Ms Miller and the children were living at Pangai which is the main town in the Ha'apai group of islands.

The order dated 26 June 2003 was served on Ms Miller at the Evaloni Guest House in Pangai on 30 June by the officer in charge of the Ha'apai Police District. The officer subsequently reported to the court that the owner of the Guest House had told him that Ms Miller had left Ha'apai on the early-morning flight on 2 July 2003 to travel to Nuku'alofa. That information turned out to be a ruse. Ms Miller did not fly to Nuku'alofa and she did not appear for the Directions Hearing on 3 July or surrender her passport to the court. Extensive inquiries made by the applicant's counsel failed to locate her whereabouts.

On 17 July 2003 the court issued a warrant for the respondent's arrest and the Tonga Police Force and Immigration officials were alerted accordingly. At one stage it was feared that Ms Miller and the children had already left Tonga by yacht from Ha'apai.

The arrest

The next development in the case came on Monday 20 October 2003 when Ms Miller was arrested by the police in Vava'u. It transpires that instead of flying south from Ha'apai to attend the court fixture at Nuku'alofa on 3 July, Ms Miller had flown north to Vava'u. She was apprehended on a remote bush allotment on the main island in the Vava'u group of islands. The police officer involved in the arrest, WPC (Woman Police Constable) Sela Tokolahi, reported to the court that Ms Miller had been associating with a male person known to have appeared in court on drug-related charges. The children were not located. The Constable said that when apprehended, the respondent had called out to the children to run away. I ordered that she be held in the police cells overnight.

When she appeared before me the following day, the respondent was uncooperative and aggressive. She refused to give the court any information relating to the whereabouts of her two children. She also denied ever having been served with documents by the police in Ha'apai. Immediate contact was then made with the officer in charge of the Ha'apai Police District and he confirmed having personally served Ms Miller with the relevant court order on 30 June 2003. From that point on, Ms Miller did not persist with her denials. I, therefore, made an order on that same day recording that the respondent was prima facie in contempt of court in failing to comply with the order of 26 June 2003 and I again ordered that she was to be held in custody overnight. At the same time, I appointed her two children wards of court and I ordered the police to locate them and bring them both before me as soon as possible.

Later that same day, Constable Tokolahi returned to the court with the respondent and the two children. On that occasion Ms Miller's demeanour was noticeably different. She was then co-operative and pleasant. She told the court that she (not the police) had arranged for the children to be brought before me and she said that they had not been on the bush allotment where she had been apprehended but in a house in Neiafu. (Presumably, the call to the children to "run away" when she had been apprehended by the police had been an attempt to mislead the police into believing that the children would be somewhere on the bush allotment).

Contact in Vava'u

At that same Chambers hearing, Mr Vaipulu appeared on behalf of the applicant. Counsel told the court that Mr Gorce was on his way from Brisbane to Tonga on the first available flight and he would pay the expenses involved in having Ms Miller and the children kept at accommodation in Neiafu until his arrival. Ms Miller continued to be completely co-operative. She surrendered her passport and I released her from custody. Mr Vaipulu made arrangements for her and the children to stay in an upmarket backpackers lodge in the centre of the township until Mr Gorce arrived in Vava'u.

Following on from that Chambers hearing, I made a further order appointing Chief Inspector Ashley Fua, the officer in charge of the Vava'u Police District, Guardian ad Litem for the two children. I should add that there is no equivalent in Tonga to the government social welfare agencies that one finds in New Zealand and Australia, nor are there any registered psychologists, social workers or counsellors. Inspector Fua has, however, over recent years acted as the court appointed Guardian ad Litem for children in all adoption and guardianship cases coming before the court in Vava'u. In carrying out this task, the Inspector has shown considerable acumen, compassion and sound judgment. He enjoys the confidence of the court and his recommendations are invariably acted upon.

On 23 October 2003 Mr Gorce arrived in Neiafu. At that stage Ms Miller had Mr Taufaeteau acting for her. Both parties were seen separately in Chambers with their lawyers and then it was arranged that Mr Gorce would meet with Kayla in the court library in the presence of Constable Tokolahi and the court interpreter Mrs Loupua Kuli. Mr Gorce had not met with his daughter since 1 September 2002. The court was impressed to see that he had brought with him from Australia some of Kayla's toys and a small photograph album containing numerous high-quality colour photographs recording obviously joyful moments they had shared together.

Assisted by the photographs, Mr Gorce, within a very short time, began to re-establish his association with Kayla. The two observers reported very favourably on the outcome of that first contact meeting. They both admitted to being in tears when, after looking through the photographs, Kayla recognised Mr Gorce as her father and hugged him. I then made a further order that Mr Gorce was to have supervised access to Kayla up to one hour a day during his stay in Vava'u. At that stage he was expecting to depart on Monday 27 October. The contact supervisor appointed by the court was Constable Sela Tokolahi.

On 31 October 2003 Counsel for Mr Gorce saw me in Chambers back in Nuku'alofa and indicated that the applicant had decided to stay in Tonga for another week and Counsel made an ex parte application for his access rights to be extended during that time for up to four hours a day. Counsel indicated that the reports she had received were that the father-daughter relationship was being re-established reasonably satisfactorily but the one hour time-limit needed extending. The request seemed reasonable and I agreed to grant extended access but obviously the court could not expect Constable Tokolahi, who had her other regular work to attend to, to supervise access during the extended hours and so I allowed Mr Gorce to have unsupervised access to Kayla, subject to him first surrendering his passport to the police as security.

Unfortunately, my order has never been acted upon. Ms Miller was informed of the order on Saturday 1 November but all access ceased the following day. On that Sunday afternoon Kayla had apparently arrived at Mr Gorce's hotel with her mother and grandmother (Ms Miller's mother who at this stage head travelled over from Australia) but Kayla was hysterical and said that she did not want to be there. After seeing how upset Kayla was, Mr Gorce allowed her to remain with her mother and grandmother. Mr Gorce deposed he believes that because Ms Miller was totally opposed to the access hours being extended, she manipulated Kayla into the frenzied state she was in on the Sunday afternoon. She had, as he put it, "brainwashed her against him".

The evidence

The court has now received affidavit evidence from both parents recording their respective views on the access arrangements that did take place between 23 October and 2 November. On 29 October Mr Gorce filed his formal application for a custody order in respect of Kayla and Ms Miller filed her application five days later. Both applications were accompanied with supporting documentation. Mr Gorce has also filed a copy of an "Interim Residence Order" issued by the Federal Magistrates Court. The order is dated 31 October 2003. It has been issued by Federal Magistrate Baumann, the same magistrate who issued the Recovery Order back in December 2002. Under the Residence Order, interim residence for Kayla is granted to Mr Gorce. Upon 48 hours of Kayla's return to Australia she is to be taken before the Federal Magistrates Court.

In addition to all the evidence I have just referred to, I have also had significant assistance from Constable Tokolahi and Chief Inspector Fua. At this point, I should formally record the court's gratitude to both of these police officers for their assistance and co-operation at a time when neither, I suspect, could really afford the time away from their regular duties. Constable Tokolahi has now provided the court with a comprehensive and informative day-to-day account of her observations during the contact period. For his part, Chief Inspector Fua could not have been more co-operative. In his written report to the court as Guardian ad Litem he endorses Constable Tokolahi's observations and recommendations. For the record, I confirm that copies of the reports (translated copies in Constable Tokolahi's case) were made available to both counsel.

The law

The relevant legal principles the court is required to have regard to in cases of this nature are, as I apprehend it, those embodied in the common-law prior to 1985 in which year the United Kingdom ratified the 1980 Hague Convention. In this context, the welfare of the child is the paramount consideration.

Had the Kingdom of Tonga been a party to the Hague Convention then this court would have had no discretion in the matter. Provided proceedings to recover the child had been commenced within 12 months of her abduction (which they were), then I would have been obliged to order Kayla's immediate return to Australia. As Balcombe LJ expressed it in Re A and another (minors) [1992] 1 All ER 929, 936:

"The scheme of the Convention is thus clearly that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they had been wrongfully removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return."

The convention itself was the agreed international response to a problem that had become all too prevalent. It was identified by Cross J. in re H (infants) [1965] 3 All ER 906, 912 where His Honour said:

"The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and, as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing."

In the re H case the mother, following on from divorce proceedings in the United States, had taken the two children to England in contravention of a consent order made in the Supreme Court of New York granting the father visitation rights. The father later travelled to England and applied for an order that the mother should deliver the children (who at that stage had been made wards of court) into his care and that he should be at liberty to take them back to New York. The trial judge, without conducting a full inquiry into the merits of the dispute, allowed the application and made an order that the boys were to be delivered forthwith into the care of their father so that they could be taken back to New York. Towards the end of his judgment, Cross J. said (915):

"In infancy cases the welfare of the child is, of course, the chief consideration; but it is far from being the only consideration. When, in what I may call for short a "kidnapping" case, the judge has to decide whether to send the child back whence he came or allow the case to be fought out to the end over here, he has to weigh various considerations which may to some extent conflict with one another. On one side there is the public policy aspect, the question of comity and the question of "forum conveniens". Again, on the same side there is the question of the injustice which may be done to the wronged parent if the court delays matters and allows the kidnapped child to take root in this country. On the other side, the court has to be satisfied, before it sends the child back, that the child will come to no harm."

The case then went on appeal to the English Court of Appeal. Counsel for the mother argued that the trial judge was precluded from making an order allowing the two boys to be removed from the jurisdiction of the English courts unless and until he had himself conducted a full inquiry into the whole merits of the dispute between the father and mother and formed his own conclusions. The Court of Appeal [1966] 1 All ER 886, dismissed the appeal. The headnote to the report states:

"Held: although the court had jurisdiction to make full inquiry, if it wished, into the merits of all the matters in dispute between the parents before deciding whether to send the boys back to the United States, yet the court was not bound to do so, and, being satisfied that the boys would come to no harm if their father took them back there, the trial judge had rightly decided to authorise their return to the United States.

The authorities also recognise that in special circumstances the court might be obliged to conclude that, despite all considerations of comity, the child should not be returned – see Re E (an infant) [1967] 1 All ER 329.

Conclusions

In terms of the present case, the situation I find myself in is not dissimilar to that faced by the trial judge in re H. Like Cross J. I have before me a considerable body of documentary evidence but I cannot pretend to have conducted a full inquiry into every aspect of the dispute between the parents. I have, however, as result of my partial investigation into the merits, reached firm views as to where the justice of the case lies.

Applying the test approved of by the Court of Appeal in re H, Ms Miller has been unable to point to a single shred of evidence to persuade me that Kayla might come to some harm if she is to be returned to Australia. On the contrary, I have no doubt that the Family Court of Australia, with its concentrated expertise in this area coupled with the plethora of resources and professional expertise at its disposal, is eminently suited to deal with the matter and make sound judgment calls on the issues involved.

It is not necessary for me to express my considered views on the numerous claims and counterclaims made by each parent. The earlier issues have been thoroughly canvassed in the impressive Family Report from the Court counsellor, Ms Sandra Eyres, which I have already referred to. Suffice it to say that my own observations mirror many of the points made by the counsellor. In particular, apart from the statement made in the second sentence which will now need to be revised in view of all that has happened over the last 12 months or so, I concur with the final paragraph of her report under the heading "Summary and Conclusions" which reads:

"58.It is my assessment that Mr Gorce has the capacity to care for Kayla in a safe and nurturing manner, however, Ms Miller's anxiety about this issue should not be underestimated. While Ms Miller has adequately supported Kayla's contact with Mr Gorce, she is in a primary position to ensure any future arrangements are facilitated and the relationship between Kayla and Mr Gorce is fostered and encouraged. It will not be in Kayla's best interests to disrupt her current healthy adjustment and relationship with both parents and any future contact regime should seek to reassure Ms Miller about Kayla's well-being and safety in order to avoid potential overt or covert destabilisation for Kayla."

I find the observations of Constable Tokolahi and Chief Inspector Fua to be most revealing. They were both appointed by the court at extremely short notice to become actively involved in the case. They took up the challenge objectively with no preconceptions whatsoever. After some two weeks of observing the actions, reactions and various nuances between Ms Miller, Mr Gorce and Kayla, Constable Tokolahi (a mother of three children) was able to conclude in her report to the court:

"Vincent does love Kayla very much as does Kayla, as Kayla knows that Vincent is her father and she does love him but she's afraid of her Mum. I do believe without doubt that Mandy manipulates Kayla because of what's happening between her (Mandy) and her father. I do believe that Kayla would be better off going to Vincent as the environment that they (Mandy and Kayla) are living in is not too good."

The constable then went on to explain her reference to the unsatisfactory environment. She proceeded to name two of Mandy's male acquaintances who had each appeared in court on drug-related charges.

For his part, Chief Inspector Fua concluded his report as Guardian ad Litem with the following recommendation:

"Recommendation:

Guardian ad Litem supports recommendations of WPC Tokolahi. It is the belief of this report (sic) that the child's welfare would be better served with both parents offering their love and care. That cannot be served if the child remains here in Tonga. As seen, the child Kayla struggles with her emotions -- it is feared that this may have some effect on her behaviour and mental state. Kayla's welfare would be better served in an environment with both parents. That cannot be met in Tonga."

The evidence in favour of Mr Gorce's proposal to return the child to Australia is quite overwhelming and I propose to make an order that will ensure Kayla's return to within the jurisdiction of the Australia Family Court.

Orders

I have given anxious consideration as to whether I should entertain the option of giving Ms Miller temporary custody of Kayla on condition that she returns the child immediately to Australia. The problem I face is that Ms Miller has done nothing whatsoever to merit the trust of the court and, if left to her own resources, I have no confidence that she would obey any order that I may make. For over a year now Ms Miller has been running from the authorities and during that time she has been in contempt and deliberately flouted court orders with scant or little apparent regard for the traumatic effects such a lifestyle must be having on her two children. That attitude remains. I have no doubt, because of her opposition to the extended contact order I recently made in favour of the applicant, that Ms Miller went out of her way to work Kayla into such a state of emotional upheaval that all contact suddenly had to come to a halt. Against that background, it is difficult to have any confidence that Ms Miller would obey an order to return the child to Australia.

In these circumstances, had Mr Gorce still been in the Kingdom, I would have made an order granting him temporary custody of his daughter. I am satisfied that he would have returned her immediately to Australia. However, he is back in Brisbane and so that proposal is not an immediate option.

What I have decided, therefore, is to grant Ms Miller temporary custody on condition that she immediately returns Kayla to within the jurisdiction of the Australian courts and, within 48 hours of her arrival ensures that the child is taken before the Federal Magistrates Court in terms of the order of that court dated 31 October 2003. As I understand it, there is a direct flight from Tonga to Sydney every Monday and I order that Ms Miller and her children are to leave the Kingdom on the next direct flight to Sydney, departing Tonga on Monday 24 November 2003. The passports for Ms Miller and the two children, presently held by the registrar, are to be released to the Head of the Immigration Department in Nuku'alofa and they are to be handed to Ms Miller at the airport on the day, and at the time, she checks in for the flight.

A copy of this judgment is to be released to Chief Inspector Fua and to the officer in charge of the Immigration Division in Nuku'alofa. I also direct that a copy of the judgment is to be delivered to an appropriate officer at the Australian High Commission here in Nuku'alofa with a recommendation that the Attorney-General's Department in Canberra be informed of my order and of the fact that Kayla will be returning to Australia on the flight detailed above. Hopefully, that Department might be able to assist in the funding of Kayla's return flight.

If this order is not strictly complied with by Ms Miller then any interested party is granted leave to immediately notify the court and further, more drastic, orders will be made. The order making the two children wards of court will automatically be revoked upon their departure from the Kingdom.

Costs have not been sought and no order is made as to costs.