CHRIS DAWSON (COMMISSIONER, WESTERN AUSTRALIA POLICE) and PELLAR

[2019] FCWA 273

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW (CHILD ABDUCTION CONTRAVENTION) REGULATIONS 1986

LOCATION: PERTH

CITATION: CHRIS DAWSON (COMMISSIONER, WESTERN AUSTRALIA POLICE) and PELLAR [2019] FCWA 273

CORAM: SUTHERLAND CJ

HEARD: 18 DECEMBER 2019

DELIVERED : Ex tempore

FILE NO/S: PTW 6708 of 2019

BETWEEN: CHRIS DAWSON (COMMISSIONER, WESTERN AUSTRALIA POLICE)

Applicant

AND

MS PELLAR

Respondent

Catchwords:

CHILD ABDUCTION - Hague Convention - Child retained in Australia from New Zealand - Whether child at grave risk if returned to New Zealand - Whether father consented to or acquiesced to child remaining in Australia - Order made for return of child to New Zealand

Legislation:

Family Law (Child Abduction Contravention) Regulations 1986

Representation:

Counsel:

Applicant	:	Ms Paljatak
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

Director General of the Department of Family and Community Services v Davis (1990) FLC 91-182

Gsponer v Director General, Department of Community Services, Vic (1989) FLC 92-001

JLM v Director-General (New South Wales) (2001) 206 CLR 401

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chris Dawson (Commissioner, Western Australia Police) & Pellar has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1This application is brought by the Commissioner of the Western Australia Police as the responsible Central Authority, seeking an order pursuant to regulation 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 for the return to New Zealand of the child who was born [in] 2013. The applicant was requested to take this action by the child’s father, who commenced an application under the convention in New Zealand on 1 April 2019. The application is opposed by the respondent, who is the child’s maternal grandmother. The child’s mother filed an affidavit in support of the respondent’s case, but was not, herself, a party to the proceedings.

2The respondent’s Form 2A Response specified the following grounds upon which she objected to the return of the child to New Zealand. Firstly, the parents of the child agreed that the child would reside with the grandparents until the child’s mother finished her university education. Secondly, the child’s mother has travelled to Australia to visit her son on numerous occasions and is happy the child is in a safe and loving environment. Thirdly, the child’s mother has concerns in relation to the child if the child is returned to the father, citing domestic violence, threats and the father’s chosen lifestyle.

3Stated properly, the respondent’s case was that: firstly there is a grave risk that the return of the child to New Zealand would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation; and/or secondly, that the father consented to the child being removed to Australia, or the father acquiesced to the child being retained in Australia.

4The applicant relied upon the following documents:

a)The Form 2 Application filed on 3 September 2019, together with all supplementary documents annexed to that application as follows:

i)The father’s application for return made in New Zealand on 1 April 2019, and the attachments thereto.

ii)The father’s first affidavit, sworn on 1 August 2019.

iii)The affidavit of Mr [M], a New Zealand lawyer, sworn on 5 August 2019.

iv)The affidavit of [Ms T] sworn on 7 August 2019.

b)The father’s second affidavit sworn on 21 November 2019.

c)The family report prepared by [the Family Consultant], dated 2 December 2019.

d)The outline of submissions filed on 13 December 2019.

5The respondent relied upon the following documents:

a)Her Form 2A Application and affidavit filed on 4 November 2019.

b)The affidavit of the mother sworn on 24 October 2019.

6On 29 November 2019, the applicant notified the respondent that each party had to advise the other of their intention to cross-examine any witnesses by 4 December 2019. The applicant gave notice on 4 December 2019 that it intended to cross-examine the respondent and the mother.

7The applicant did not receive any notice from the respondent, and the applicant subsequently wrote to the respondent on three occasions in relation to the matter asking that any notice of intention to cross‑examine be given by 9 December 2019. The respondent did not do so, and accordingly the applicant did not make any arrangements for its witnesses to be available for cross-examination. Shortly prior to the trial, the applicant then gave the respondent notice that it no longer required to cross-examine either the respondent or the mother. Accordingly, the trial today proceeded on the basis of submissions only.

8In terms of the background facts: the mother and the father met in July 2011 in New Zealand and were married [later in] 2011. At the time they were living in [Region A] in New Zealand. In 2012, the mother and the father moved to [City A] so that the mother could attend university there. The mother subsequently fell pregnant with the child. In May 2013, the mother travelled to [City B] to stay with the respondent in the lead up to the birth of the child, and he was born in [mid] 2013.

9A few weeks after the birth, the mother returned to City A and to the father to resume her studies, and the child remained in the care of the respondent until late 2015. Thereafter, the mother and the father returned to City B and lived with the child and the respondent. In February 2018, the respondent moved to Australia. The child continued to live with the mother and father in City B, New Zealand. In late 2018, the mother and father separated.

10There was some confusion in the affidavit evidence about the care arrangements for the child immediately after separation until early 2019. However during his interview, the father told the Family Consultant that after the parties’ separation, the child lived with the mother and he “visited”. The respondent also told the Family Consultant in her interview that the father spent a week with the child over the Christmas period. I am satisfied that the child was in the care of the father for at least part of the time after separation, including spending approximately one week with the father and the extended paternal family in City A.

11The father’s affidavit evidence was that on 16 December 2018, the respondent telephoned him, said that she was back in New Zealand for a holiday and asked if the child could go to Australia with her in January 2019 for a holiday. The father agreed to the holiday, provided that the child was returned to City B by no later than 31 January 2019, for the start of the new school year.

12On 26 December 2018, the father then had a call from the mother. His evidence was that:

a)They discussed the child’s proposed holiday to Australia and the mother confirmed that the child would be returned to City B before the start of school.

b)The father and mother also had some discussions about the child’s living arrangements upon his return to New Zealand.

13The respondent and the mother were both silent in their affidavits as to how the child came to travel to Australia, including in relation to setting out any evidence of any discussions and/or agreements reached with the father. However, the respondent told the Family Consultant, during her interview, that the mother and the father consented to the child travelling to Australia with her for a holiday.

14The father had dinner with the child the night before the child’s flight to Australia. On 3 January 2019, the child then travelled with the respondent to Australia.

15The father’s evidence was that on 6 January 2019, he telephoned the mother to confirm the child’s travel arrangements back to New Zealand. During that call, the mother informed the father that the child would not be returning to New Zealand, he would never see the child again and he had no right to know the child. The father’s evidence was that subsequently he made attempts to contact the respondent about the child’s return, but without success.

16The father told the Family Consultant that he was finally able to contact the respondent in February 2019, but she had refused to return the child to New Zealand. The father’s evidence was also that he sent messages to the mother in February 2019, requesting that the child be returned to New Zealand, without success. The father’s evidence was also that he sent messages to the child’s maternal aunt in March and April 2019, asking when the child would be returned to New Zealand.

17Again, the respondent and the mother were silent in their affidavit evidence in relation to any relevant communications they had with the father after the child had travelled to Australia. However, the respondent told the Family Consultant during her interview that after a few weeks in Australia, the child voiced his preference to remain in Australia and that the mother and the father then both consented to the child remaining in her care in Australia for the remainder of Term 1, 2019, and the parties would then review the situation. The respondent told the Family Consultant that at the end of Term 1, the child stated he wanted to remain with the respondent in Australia. The mother consented to the arrangement, but the father was not able to be contacted.

18Even if I accepted the respondent’s assertion to the Family Consultant as I have set out above, there was simply no evidence that the father consented or acquiesced to the child remaining in Australia after the end of Term 1, 2019. However, aside from the respondent’s general assertions made to the Family Consultant, the respondent conceded during her submissions that there was no evidence in relation to any communications between the father on the one hand, and the respondent and/or the mother on the other hand that could lead me to find, or conclude, that the father did, in fact, consent or acquiesce to the child remaining in Australia.

19On the other hand, there is evidence that corroborates the father’s evidence that he did not consent or acquiesce to the child remaining in Australia, including the father’s communications to the mother in February 2019, the father’s communications with the maternal aunt in March and April 2019, and the father’s actions in starting proceedings under the convention in New Zealand on 1 April 2019.

20The applicant commenced these proceedings in this court on 3 September 2019. On 9 September 2019, the court made standard ex‑parte orders for the child to be placed on the Australian Federal Police watch list and for other consequential orders, including service on the respondent. At the next hearing date on 7 October 2019, the respondent appeared in person. Standard orders were made to program the matter to trial, including the preparation of the family report by the Family Consultant.

21The family report was published on 2 December 2019. In short, the Family Consultant concluded that there was no apparent grave physical risk to the child living in either New Zealand or Australia. However the Family Consultant considered that there is likely to be a significant risk to the child’s emotional and psychological wellbeing if he is returned to New Zealand, unless this is well-managed.

22Turning to the applicable regulations.

23Pursuant to regulation 16(1) of the Regulations, if:

(a)an application for a return for a child is made, and

…

(b)the application … is filed within one year after the child’s removal or retention, and

(c)the responsible Central Authority … satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A),

(d)the court must, subject to sub-regulation (3), make the order.

24Regulation 16(1A) provides that: For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:

(a)the child was under 16; and

(b) the child habitually resided in a convention country immediately before the child’s removal to, or retention, in Australia; and

(c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and

(d)the child’s removal to, or retention in Australia is in breach of those rights of custody; and

(e)at the time of the child’s removal or retention, the person, institution or other body:

(i)was actually exercising the rights of custody, either jointly or alone, or

(ii)would have exercised those rights if the child had not been removed or retained.

25Relevantly to this case, regulation 16(3)(a)(ii) and (b) provide that a court may refuse to make an order under sub-regulation (1) … if a person opposing return establishes that:

(a)the person, institution or other body seeking the child’s return … had consented, or subsequently acquiesced, in the child being removed to or retained in Australia; or

(b)there is a grave risk that the return of the child under the convention would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation.

26Regulation 16(5) provides that the court is not precluded from making a return order for a child only because a matter mentioned in sub-regulation (3) is established by the person opposing return.

27In terms of my findings, I am satisfied that:

a)The application was filed on 3 September 2019, within a year after the child’s retention in Australia.

b)The child was born in 2013, and accordingly is under 16 years of age at the relevant time.

c)The child has resided in New Zealand from his birth until he travelled to Australia, ostensibly for a holiday on 3 January 2019. Accordingly, the child was habitually resident in New Zealand immediately prior to his removal from New Zealand.

d)New Zealand is a convention country.

e)The father had rights of custody in relation to the child. In particular, I accept the evidence of Mr M as set out in his affidavit sworn on 5 August 2019. As the mother and the father were married at the time of the child’s birth, they are the joint guardians of the child under the Care of Children Act 2004 (NZ) and must act jointly in exercising the duties, powers, rights and responsibilities of a guardian in relation to the child, including determining any changes to the child’s place of residence.

f)The child’s retention in Australia was in breach of the father’s rights of custody, namely, the right to determine jointly with the mother, changes to the child’s place of residence. The respondent’s actions in retaining the child in Australia interferes with the father’s separate rights as a guardian of the child, notwithstanding the mother’s consent to the arrangement.

g)The father was exercising his rights of custody prior to the retention and would still be had not the child been retained in Australia. In particular, I am satisfied that the child lived with the father, mother and the respondent from the end of 2015, and then with the father and the mother from February 2018 onwards (when the respondent moved to Australia). After the mother’s and father’s separation in late 2018, the father spent time with the child, including taking the child to City A to visit extended paternal family over the Christmas period and having dinner with the child the night before his flight to Australia. The father consented to the child going to Australia for a holiday with the respondent on the basis that the child be returned to New Zealand no later than 31 January 2019.

28In conclusion, I am satisfied that the child’s retention in Australia was wrongful. In particular, I accept the applicant’s submission that the child was wrongfully retained in Australia on or about 6 January 2019, which was the date the mother told the father that the child would not be returned to New Zealand (and notwithstanding that the father had previously consented to the child holiday in New Zealand until no later than 31 January 2019). In light of my findings, as set out in above, I am satisfied that the child’s retention in Australia was wrongful.

29I then turn to whether the respondent has established any of the exceptions set out in regulation 16(3). The respondent maintained that pursuant to regulation 16(3) that I should refuse to make an order for the child to be returned to New Zealand on the basis that: firstly, there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place him in an intolerable situation; [and] secondly, that the father consented or subsequently acquiesced in the child being removed to or retained in Australia.

30The onus of proof of this matter lays with the respondent as the party opposing the return.

31The Full Court in the Gsponer case[1] observed that regulation 16(3)(b) sets out three distinct situations which may lead a court to decline to return a child. These are that there is a grave risk that the return would:

a)expose the child to physical harm;

b)expose the child to psychological harm; or

c)otherwise place the child in an intolerable situation.

[1] Gsponer v Director General, Department of Community Services, Vic (1989) FLC 92-001 ("Gsponer") observed at 77,159

32In DP v Commonwealth Central Authority,[2] the High Court considered the interpretation of the regulation and concluded it should not be given a narrow construction: it should be given the meaning the words require. The majority of the High Court, along with Callaghan J in a separate judgment, observed [at paragraphs 41 and 42] that:

… What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires the courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.

Necessarily, there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.

[2] DP v Commonwealth Central Authority; JLM v Director-General (New South Wales) (2001) 206 CLR 401; [2001] HCA 39

33The majority went on to say that to satisfy the requirements of regulation 16(3)(b) compelling and clear evidence is required, and then emphasised that [at paragraph 45]:

It is well–nigh inevitable that a child, taken from one country to another without the agreement of one parent will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of grave risk to the child of exposure to physical or psychological harm on return.

34Accordingly, it is not sufficient merely to establish some degree of physical or psychological harm. It must be substantial and comparable to an intolerable situation.[3]

[3] Director General of the Department of Family and Community Services v Davis (1990) FLC 91-182 at 78,227-8

35Australian courts should not assume that once a child is returned, the courts of the Convention country are not appropriately equipped to make suitable arrangements for the child’s welfare.[4] Often enough, the answer to a claim of grave risk will be that the feared harm will form a central issue in subsequent judicial proceedings in the country of return, provided that there will be judicial proceedings and the harm will be relevant to those proceedings.[5]

[4] Gsponer: at 77,160.

[5] DP v Commonwealth Central Authority: at 416-7.

36In this case I am not satisfied that the respondent has satisfied me that there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place him an intolerable situation to enliven my discretion to refuse the return of the child. In summary, this is for the following reasons:

a)Although the mother alleged that the father physically punished the child and that he was physically violent to her, the father denied the mother’s allegations. The respondent also raised concerns about the father’s alleged domestic violence, threats and chosen lifestyle which allegations the father also denied. The respondent and the mother also raised concerns about a shooting incident that occurred in the vicinity of the father’s home. However, although the father acknowledged that the incident took place, he maintained that the incident was unrelated to him. I accept the applicant’s submission that neither the mother nor the [respondent] set out any cogent evidence in support of their assertions that could lead me to make a finding that the grave risk was established.

b)There was some evidence in contradiction of the mother’s and the respondent’s allegations including the mother agreeing to the father spending extended time with child over the Christmas 2018 holidays.

c)The child did not raise any concerns with the Family Consultant about the father behaving inappropriately towards him or the mother. The child did not express any fear of the father and in fact, had very positive recollections of activities that he engaged in with the father in New Zealand.

d)Although the Family Consultant considered the child may be at some risk of emotional and or psychological harm, if his return to New Zealand was not well managed, she considered - and I agree - that there was no apparent grave risk to the child living in either New Zealand or Australia. Whilst I accept that the child may well suffer some disruption, uncertainly and anxiety on his return to New Zealand, I am not satisfied that it was substantial comparable to an intolerable situation or amounts to a grave risk of harm to the child.

37The respondent also maintained that the father consented or acquiesced to the child’s removal to and or retention in Australia. As I have already found earlier in my reasons:

a)It was common ground that the mother and the father consented to the child travelling to Australia in January 2019 with the respondent for a holiday.

b)Even if I accepted the respondent’s assertions to the Family Consultant that the father agreed to the child remaining in Australia until the end of the Term 1, 2019 school year, there was no evidence that the father consented to or acquiesced to the child remaining in Australia after the end of Term 1, 2019.

c)However, aside from the respondent’s general assertions to the Family Consultant during her interview, the respondent conceded today that there was no evidence, including in relation to any communications between the father on the one hand and the respondent and / or the mother on the other hand, that could lead me to find or conclude that the father did, in fact, consent or acquiesce to the child remaining in Australia.

d)On the other hand, there is evidence that corroborates the father’s evidence that he did not consent or acquiesce to the child remaining in Australia. This includes the father’s communications to the mother in February 2019, the father’s communications with the maternal aunt in March and April 2019, and the father’s actions in starting proceedings under the Convention in New Zealand on 1 April 2019.

e)In conclusion, I am not satisfied that the respondent has [established] that the father consented or acquiesced to the child remaining in Australia.

38I am satisfied that under regulation 16(1) that the child should be returned to New Zealand.

These reasons are the reasons for decision I delivered on 18 December 2019, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV
Associate

18 DECEMBER 2019