Commissioner of Police, South Australia and Selik

[2017] FamCA 256

FAMILY COURT OF AUSTRALIA

COMMISSIONER OF POLICE, SOUTH AUSTRALIA & SELIK [2017] FamCA 256

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the child was wrongfully removed from the United Kingdom – Where the father argued the child was habitually resident in the United Kingdom, while the mother contended the child had no habitual residence at all – The Regulations tend in favour of finding the child has habitual residence because otherwise there is no protection from abduction – Decided the child was habitually resident in the United Kingdom – Where the mother alleged there was a grave risk of psychological harm to the child due to his separation from her, caused by her deciding not to accompany him back to the United Kingdom, or alternatively, by her accompanying him back but suiciding once there – Where the expert evidence established there was a potential of her suicide – Where the mother could lessen the risk by engaging with the many social welfare services on offer to her in the United Kingdom – Decided the risk of harm is not so high as to justify its description as grave – Where the mother alleged the child’s return to the United Kingdom would place him in an intolerable situation by reason of the same facts – Concluded the child should be returned to the United Kingdom – Ordered the parties are required to file and serve the orders they propose to implement the child’s return

Children (Scotland) Act 1995, s 3
Family Law (Child Abduction Convention) Regulations 1986 (Cth), rr 4, 15, 16

C v C (Abduction; Rights of Custody) [1989] 2 All ER 465
C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961
Commonwealth Central Authority & Cavanaugh [2015] FamCAFC 233
DP v Commonwealth Central Authority (2001) 206 CLR 401
LK v Director-General, Department of Community Services (2009) 237 CLR 582
MW v Director-General, Department of Community Services (2008) 244 ALR 205
Re F (A Minor) (Child Abduction) [1992] 1 FLR (UK) 548

APPLICANT: Commissioner of Police, South Australia (State Central Authority)

RESPONDENT: Ms Selik

FILE NUMBER: ADC 4774 of 2016

DATE DELIVERED: 28 April 2017

PLACE DELIVERED: Adelaide/Newcastle

PLACE HEARD: Adelaide/Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 7 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Keane

SOLICITOR FOR THE APPLICANT: Crown Solicitor’s Office

COUNSEL FOR THE RESPONDENT: Ms Pyke QC

SOLICITOR FOR THE RESPONDENT: White Berman

Orders

1. The parties shall file and serve by Friday 5 May 2017 the minutes of orders they propose be made to ensure the return of the child, B (born … 2013), to the United Kingdom.

2. The proceedings are adjourned to 9.30 am on Friday 12 May 2017 for further hearing as to the form of the substantive return orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCA & Selik has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE/NEWCASTLE

FILE NUMBER: ADC 4774 of 2016

Commissioner of Police, South Australia

Applicant

And

Ms Selik

Respondent

REASONS FOR JUDGMENT

Introduction

1. In early October 2016, the respondent mother fled the United Kingdom with her young son without either the permission of the child’s father or the Court’s authorisation. She now lives with the child in Adelaide, South Australia.

2. The Commissioner of South Australia Police (“the Central Authority”) began these proceedings under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) on 8 December 2016 seeking an order compelling the child’s return to the United Kingdom, where litigation concerning him is already underway between his parents.

3. The mother resisted the application on a number of bases. She contended:

   (a)The child was not habitually resident in the United Kingdom at the time of his removal to Australia, in consequence of which his removal from the United Kingdom was not wrongful; and alternatively

   (b)Any order for the child’s return to the United Kingdom would expose him to the grave risk of psychological harm or place him in an intolerable situation.

4. In accordance with the Regulations (reg 15), the proceedings were swiftly listed for hearing on 7 February 2017 but, as both parties sought an adjournment to adduce further evidence, the hearing was deferred for two months until 7 April 2017.

Short history

1. The mother and father are both currently 31 years of age. Their relationship formed in about October 2012 and ended in February 2014, though they only cohabited for the last few months of the relationship.

2. Their only child, who is the subject of the proceedings, was born in 2013 in the UK and is now three years of age.

3. Up until October 2016, both parents and the child lived in or around C Town, Scotland. The father is a Scottish citizen and the mother deposed she has “dual British/Australian citizenship”.

4. Following the breakdown of their relationship, proceedings between them in respect of the child were instituted under the Children (Scotland) Act 1995 in the C Town Sheriff Court. The first proceedings between the parents (Suit No. …) were dismissed for want of prosecution in September 2014, but the second proceedings were commenced by the father in November 2014 (Suit No. …) and remain incomplete. A series of interim orders were made during the second proceedings that either bound or still bind the parents’ conduct in respect of the child.

5. Relevantly:

   (a)On 3 December 2014, an injunction was made restraining the mother from removing the child from the United Kingdom without either the father’s consent or further order of the court;

   (b)On 20 July 2016, orders were made for the child and father to have “contact” each Saturday (10.00 am until 6.00 pm), with the child’s exchange to be facilitated by the maternal grandmother at the mother’s home, and for Ms D (solicitor) to “investigate and report to the court on the circumstances of the child…and in particular the question of residence and contact of the said child” (which court report was later prepared and furnished to the court and the parties);

   (c)On 24 August 2016, an order was made varying the injunction earlier made in December 2014 by allowing the mother to take the child from the United Kingdom to Australia for a holiday, but only between 7 December 2016 and 4 January 2017; and

   (d)On 5 October 2016, apparently in reliance upon the contents of the court report furnished by Ms D, an order was made expanding the “residential contact” between the child and father to alternate weekends (10.00 am Saturday until 6.00 pm Sunday) and intervening Saturdays (10.00 am until 2.00 pm).

6. The day before the last of those interim orders were made, the mother’s solicitor provided her with a copy of the court report, which recommended expansion of the child’s contact with the father to “some weekly residential contact”. The mother imputed that to mean overnight visits, to which she was opposed. After receiving and reading that report, against the background of her perception of the father’s vacillation over his consent for her to live with the child in Australia, the mother conceded she:

   …panicked and arranged for [the child] and me to leave Scotland immediately.

7. The mother did not attend the court for the hearing on 5 October 2016, though she was legally represented at it. Even if she departed the United Kingdom before she was aware of the precise terms of the orders made by the court that day, she plainly anticipated the type of orders that would likely be made because of her knowledge of the contents of Ms D’s report. In any event, there was no dispute her flight from the United Kingdom with the child was contrary to the terms of the continuing injunction made on 3 December 2014 and the order of temporary exemption made on 24 August 2016, both of which she well understood.

8. The mother admitted she did not inform the father of her intended departure from the United Kingdom or her plan to permanently relocate with the child to Australia. He was subsequently notified by correspondence between the parents’ solicitors.

9. At the time of the mother’s departure from the United Kingdom with the child, the Scottish litigation was next listed before the court on 16 November 2016 for case management, in expectation of the final trial then being fixed.

Applications and evidence

1. The Central Authority moved on the Application filed on 8 December 2016, seeking orders facilitating the child’s return to the United Kingdom, and relied upon:

   (a)The material annexed to the Application, including:

   (i)The undated affidavit of the father (Annexure L); and

   (ii)The undated affidavit of the father’s Scottish lawyer, Mr I (Annexure K).

   (b)The affidavit of Ms E filed on 8 December 2016 (which annexed additional copies of the affidavits of the father and Mr I).

   (c)The affidavit of Ms E filed on 17 February 2017 (which annexed the father’s second affidavit).

   (d)The affidavit of Ms E filed on 20 February 2017 (which annexed the father’s third affidavit).

   (e)The affidavit of Ms E filed on 21 March 2017.

2. To resist the application, the mother relied upon:

   (a)Her Answer and Cross Application filed on 25 January 2017 (comprising four pages), wrongly date-stamped 19 January 2017.

   (b)Her Cross Application dated 25 January 2017 (comprising three pages), which annexed her affidavit sworn on 25 January 2017.

   (c)Her second affidavit filed on 15 February 2017.

   (d)The affidavit of Dr F, psychiatrist, filed on 17 February 2017.

   (e)The affidavit of Ms G, psychologist, filed on 17 February 2017.

3. The father, mother, Dr F, and Ms G were all cross-examined.

Contested issues

Child’s habitual residence

1. The child’s removal from the United Kingdom could not have been “wrongful” under the Regulations unless his habitual residence was in the United Kingdom at that time. The Central Authority contended the child’s habitual residence was in the United Kingdom, whereas the mother contended the child had no habitual residence at all.

2. The Regulations tend in favour of finding that a child has habitual residence, because otherwise the child cannot be protected from abduction (see Re F (A Minor) (Child Abduction) [1992] 1 FLR (UK) 548 at 555; Commonwealth Central Authority & Cavanaugh [2015] FamCAFC 233 at [29]).

3. There was a sharp factual controversy in the evidence which the parties apparently believed required resolution. The mother alleged the father agreed the family could move to live in Australia and then, after they separated, he agreed she and the child could move to Australia. Conversely, the father alleged the mother agreed the family should remain living in Scotland. I reject the evidence of both parents about there being any concluded agreement one way or the other, though it is unlikely either of them deliberately fabricated their evidence. Rather, they each probably have different recollections of many conversations that occurred between them over many months, several years ago in 2013 and 2014, and their memories have evolved to correlate with the construction of past events they each favour.

4. The parties’ argument about the existence of an agreement between the parents about the child’s future place of residence was arid because, even if there was an agreement, one parent or the other was liable to recant over such a sensitive and emotional topic. Aside from questions of consent or acquiescence to removal or retention (reg 16(3)(a)(ii)), which are not pertinent to the antecedent determination of habitual residence (reg 16(1A)(b)), parents are not estopped from changing their minds about important issues related to their child’s welfare and courts are not bound to make findings about a child’s habitual residence by reference only to agreements tentatively struck by parents in moments of high emotion. Parental agreement is but one factor to consider. The determination of “habitual residence” permits consideration of a very wide variety of circumstances that bear upon a child’s place of residence and whether or not it can be qualitatively described as habitual (see LK v Director-General, Department of Community Services (2009) 237 CLR 582 at 592, 596; C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961 at 965).

5. The emphasis placed by the mother upon her unilateral intention to make Australia the child’s place of residence was also misplaced. The use in the Regulations of “habitual residence” in preference to “domicile” as the touchstone means discarding the law’s approach to domicile, which gave questions of intention decisive importance. A person’s intentions about place of residence will usually be relevant, and sometimes very important, but should not usually be given controlling weight. Instead, the test of habitual residence identifies the centre of a person’s personal and family life as disclosed by the facts of the individual’s activities. In the case of a young child, that involves examination of the habitual residence of the child’s carers (not just the primary carer) because a young child cannot acquire habitual residence in isolation from those who care for him. Generally speaking, neither parent can unilaterally change a child’s habitual residence (see LK v Director-General, Department of Community Services at 593-596; Re F (A Minor) (Child Abduction) at 551, 556). Therefore, findings about parents’ intentions and settled purposes are not dispositive of the issue of habitual residence (see Commonwealth Central Authority & Cavanaugh at [31]).

6. There were some uncontroversial factual circumstances that bear directly upon the question of the child’s habitual residence. The mother returned to Scotland from Australia in July 2012 to undertake study as a tertiary student in City H. Her dual citizenship enabled her to study in Scotland as a domestic student. The course she commenced entailed three years of study, with an additional honours year if she was eligible. She therefore intended to live in Scotland until 2015 or 2016. She met the father some months after her arrival and learned of her pregnancy in early 2013, during her first year of study. The mother withdrew from her studies in about May or June 2013 and looked for work. Towards the end of 2013, just before the child was born, the mother and father began cohabitation in C Town. The mother conceded in cross-examination that, at that time, she still intended remaining in Scotland, though not permanently. She admitted she could have returned to Australia while she was pregnant, but she chose not to do so.

7. On occasions prior to their separation in February 2014, the parents discussed the prospect of them moving to live in Australia. The mother maintained she never agreed the family should remain living in Scotland permanently and the father maintained he never agreed to the family moving to live permanently in Australia. Most probably, both gave truthful and accurate evidence about the lack of any concluded agreement between them about the family’s permanent place of residence and so they remained living in Scotland for the time being, at least until circumstances changed.

8. Circumstances did change once the parents separated in February 2014. The mother deposed that she then discussed with the father her plans to return to Australia:

   …as soon as [she] could make the appropriate arrangements and “tie things up” in Scotland.

9. Although the mother was unspecific about the “appropriate arrangements” that needed to be made and the “things” that needed to be “tied up”, most likely they were unresolved issues related to the child’s future. The mother could have returned to Australia alone on a whim, but she did not because the parents were in dispute over arrangements for the child, which both wanted settled.

10. The father commenced the Scottish proceedings within weeks of the parents’ separation. He moved quickly to restrain the mother from removing the child from the United Kingdom without his consent and to implement a parenting regime under which he had regular contact with the child. He sent text messages to the mother at or about the time he commenced the litigation in February 2014, suggesting his willingness to allow her to return to Australia with the child, but the contents of the text messages were plainly inconsistent with the relief he sought in the litigation. The contemporaneity of those messages and his contradictory application to the court is consistent with his explanation that he was merely trying to placate the mother with the messages. He wanted to maintain regular contact with the child in the United Kingdom but, in order to maintain harmonious relations with the mother, he considered her hope of an eventual return to Australia had to be re-assured.

11. The mother and father continued to negotiate the family’s future. The father allowed the litigation to be dismissed for want of prosecution in September 2014 because he alleged the mother “promised that she would no longer seek to relocate to Australia” and so he saw no need to pursue the litigation. His belief is plausible since, despite there then being no court orders in existence to prevent it, the mother did not take the opportunity to depart the United Kingdom with the child. She admitted she could have done so because she procured the child’s passport by April 2014. Most likely, the father allowed the proceedings to lapse and the mother did not immediately depart because they hoped or expected they would reach consensus about the family’s future. When that eluded them, the father commenced fresh proceedings in November 2014 and the mother submitted to the jurisdiction.

12. In December 2014, orders were made restraining the mother from removing the child from the United Kingdom without the father’s consent or court order. She was permitted to take the child to Australia for a holiday in April 2016 and they dutifully returned to Scotland. In August 2016, an order was made allowing the mother to again take the child to Australia for a holiday in December 2016, but by October 2016 she could no longer tolerate her circumstances in Scotland and decided to take the child to Australia permanently, knowing she had neither the father’s consent nor the court’s permission.

13. Until orders were made in the Scottish proceedings in December 2014 restraining the mother from removing the child from the United Kingdom, she refrained from doing so without the father’s consent because she was sensitive to their disagreement over the subject and respectful of the child’s right to know the father through frequent contact. She voluntarily continued to live with the child in Scotland until then as part of the regular order of their life, for the time being at least, pending agreement with the father or the court’s permission otherwise. For the remainder of the litigation in Scotland, until October 2016, the mother submitted to the court’s authority preventing her permanent departure from the United Kingdom with the child.

14. By October 2016, the child was about to attain three years of age and he had a residential connection with the United Kingdom which was habitual, not merely transitory. C Town, Scotland was the centre of the child’s personal and family life, even though his parents lived in two different households in or around that township. The fact the mother wanted to relocate with him to Australia for most of his life did not change that fact. He was settled in the United Kingdom unless and until the mother secured the father’s permission or the court’s authority to change his place of residence.

1. For the purpose of these proceedings, the child’s habitual residence was the United Kingdom at the time of his removal in early October 2016.

Father’s “rights of custody”

1. While the mother did not expressly deny the father’s “rights of custody” in respect of the child, she did not admit them. She only admitted their paternal connection. It is therefore necessary to make a finding about whether the father had “rights of custody” in respect of the child under Scottish law, since the existence of such rights is a pre-condition to the child’s removal from the United Kingdom being “wrongful” under the Regulations (reg 16(1A)(c)).

2. The Regulations (regs 4(2), 4(3)) define “rights of custody” inclusively to mean any rights relating to the care of the child and, further, recognise that such rights may arise by operation of law, pursuant to judicial decision, or by agreement (see MW v Director-General, Department of Community Services (2008) 244 ALR 205 at 252).

3. Mr I deposed, without challenge, that the father had “parental rights and responsibilities” in respect of the child pursuant to operation of s 3(1)(b)(ii) of the Children (Scotland) Act 1995 merely by reason of his registration as the biological father on the child’s birth certificate, and there was no dispute the father was so registered.

4. Regardless, the interim parenting orders made by the C Town Sheriff Court under the Children (Scotland) Act 1995 between December 2014 and October 2016 invested the father with “rights of custody” in the child. Moreover, those rights of custody were being exercised by the father and the mother had no reason to think he would not continue doing so.

Child’s wrongful removal

1. Once determined the child’s habitual residence was in the United Kingdom at the time of his removal to Australia and the father then had rights of custody, the child’s removal from the United Kingdom by the mother was “wrongful”. Subject to those findings, she did not assert otherwise.

2. Although the Central Authority averred in its Application that the child had been “wrongfully retained in Australia by the mother”, which she formally denied in her Answer, the parties actually contested the issue of the child’s wrongful removal from the United Kingdom, not his wrongful retention in Australia. The distinction between removal and retention should always be made clear (see LK v Director-General, Department of Community Services at 589-590, 600) and, although it was not clear from the pleadings, it was clear from the manner in which the case was conducted by the parties. There was no misunderstanding between them.

3. For clarity, it is desirable to eradicate any misconception that the mother’s surreptitious removal of the child from the United Kingdom in breach of an order made by a Scottish court restraining her from doing so rendered the child’s removal wrongful under the Regulations. It did not. It was wrongful in another sense, but not wrongful for present purposes (see Re F (A Minor) (Child Abduction) at 551).

Grave risk of harm

1. The mother opposed any order for the child’s return to the United Kingdom by her invocation of the exception prescribed by reg 16(3)(b) of the Regulations.

2. The manner in which she asserted the exception was established remained quite unclear throughout the trial, since the pleading of the issue in her Cross Application was not particularised and she only deposed discursively in her first affidavit:

   I am gravely concerned for [the child’s] immediate, and long-term, welfare if he has to return to Scotland. The father is abusive, violent, aggressive and erratic. He has no capacity to care for [the child]…

3. Accordingly, in final submissions, the mother was asked to articulate her case plainly. She contended the child’s return to the United Kingdom would expose him to the grave risk of psychological (not physical) harm. When pressed to explain the nature of the potential psychological harm, she asserted it to be the harm the child would suffer through separation from her, since she was and is his primary attachment figure. It was contended the risk of such harm would arise in one of two ways: either she would refuse to accompany the child back to the United Kingdom or, if she decided to return with him, she might commit suicide once back in the United Kingdom.

4. Once impelled to such clear enunciation of her case, it became plain the eradication of any and all risk of psychological harm to the child lay entirely within the mother’s power. She could decide to accompany the child back to the United Kingdom, desist from harming herself, and remain his primary carer during the pending Scottish litigation (in which proceedings she would presumably advocate for parenting orders that would enable her to return with the child to live in Australia). They would be the rational decisions for the mother to make in order to avert the risk of any harm to the child.

5. The issue therefore distilled to whether the mother had the psychological resilience to make such rational decisions since, as the High Court has recognised, a parent suffering from “major depressive illness” may “not [be] in command of [his/her] situation” (see DP v Commonwealth Central Authority (2001) 206 CLR 401 at 427). In such cases, the evidence needs to be measured carefully to ensure the object of the Regulations is not cynically defeated by a parent creating the risk in order to sustain the “grave risk” defence (see DP v Commonwealth Central Authority at 410; C v C (Abduction; Rights of Custody) [1989] 2 All ER 465 at 471). If threats of suicide by parents, with the consequential risk of harm to their children, are “easily upheld” as the basis upon which the “grave risk” defence is established then such claims would multiply enormously (see DP v Commonwealth Central Authority at 449). Of course that does not mean the defence cannot be engaged by such facts; only that the evidence must be sufficiently sound to do so.

6. The mother bore the burden of proving the grounds to engage reg 16(3)(b) of the Regulations (see DP v Commonwealth Central Authority at 408, 416, 417, 442-443). In an effort to do so, she relied upon evidence about her unhappy situation in Scotland before her escape to Australia and medical evidence about her current psychological state.

7. The mother deposed:

   My relationship with the father was marred by frequent violent, controlling, and abusive behaviour by the father towards me.

8. Self-evidently, while that may have been the mother’s opinion or conclusion about the nature of their relationship, it was not evidence of the facts upon which an objective conclusion to the same effect could be reliably drawn. The distinction between fact and opinion was important, not pedantic, because the father denied any violent or abusive conduct towards the mother.

9. The mother alleged the father once locked her inside a hotel room, physically assaulted her and damaged her property, but the father denied each of those alleged acts. It was difficult, if not impossible, to reconcile the mother’s allegation of her “physical assault” by the father with her evidence in cross-examination. She was impelled to admit she told a medical practitioner, upon her return to Australia in October 2016, words to the effect that the father had not been “significantly physically violent” towards her. Furthermore, she conceded there had been no violence at all between them “in a physical sense”, as the father did not hit her or force her participation in sexual congress. Rather, she said the father engaged in a “pattern of aggression” by shouting at her in the child’s presence, which she said was “sporadic”. While it is accepted that domestic violence connotes much more than just physical assaults and threats thereof, the evidence adduced did not objectively support the mother’s contention about her repeated victimisation by the father’s violent or oppressive conduct. It may not always be easy to discern, but there is an important distinction between conduct that constitutes domestic violence and that which only manifests relationship conflict in its many variant forms. Even if there were episodes of domestic violence in the parents’ relationship as the mother alleged, they were not such as to now justify a finding under reg 16(3)(b) that the child should not be returned to the United Kingdom.

10. The mother also alleged the father’s behaviour was “erratic” but, aside from galvanising her decision that he was an unsuitable domestic partner, it remained unclear to what end such evidence was adduced. The father’s behaviour was indeed, in some respects, erratic. He lied to the mother about his older child, he gave her mixed messages about his consent to her relocation to Australia, and he was convicted of following a young woman in his car, though the mother gave conflicting evidence in-chief and in cross-examination about whether she only learned of that conviction when she read about it in the court report in October 2016 or much earlier at the time of his conviction in January 2015. Undoubtedly she found those events distressing, but they hardly objectively warranted her flight to Australia with the child.

11. It was common ground in the Scottish proceedings that the mother also acted erratically on three separate occasions: in January 2016 by taking an overdose of pills that required her hospitalisation; in May 2016 when she telephoned the father and told him she was at a train station and was contemplating suicide; and in June 2016 when she overdosed on prescription pills and alcohol and required hospital treatment.

12. The father raised those incidents in the Scottish proceedings as bearing upon the parenting orders that should be made for the child, but the mother denied in the Scottish proceedings that the incidents impinged upon her parenting capacity. She formally pleaded as follows in respect of those facts:

    Admitted she threatened to self-harm but under explanation that she did not self-harm and had no intention of doing so. Admitted she threatened to kill herself under explanation that she did not attempt to do so and had no intention of doing so…Admitted she text [the father] threatening to commit suicide under explanation she did not do so. She had no intention of doing so…[The mother] has been told she is “perfectly medically fit”…[sic]

13. When the mother consulted with Ms D over preparation of the court report, she provided further re-assurance about her psychological stability. The court report recorded the mother’s comments about those incidents as follows:

    [The mother] confirmed that she has taken two deliberate overdoses this year, once in January and the other in June. [The child] was with [the father] on both occasions and she knew he was returning to her home for handover. She indicated that she had not meant to harm herself. She simply wished to demonstrate to [the father] the impact that his continued refusal to allow her to return to Australia was having upon her. She believes he doesn’t care. 

14. So, not only did the mother refute those events reflected adversely upon her psychological stability, she implied the motive for her dramatic conduct was to manipulate the father’s attitude about her return to Australia. It was therefore inconsistent for her to instead attribute her past conduct to the father’s alleged violent and abusive behaviour, as she deposed in these proceedings:

    I agree that I had some difficulties with my mental health whilst living in Scotland given all of the above and the violence, threats and abuse from the father.

15. Significantly, her position in the Scottish proceedings contradicts her position in these proceedings because, while she asserted in the Scottish proceedings those episodes between January and June 2016 did not amount to evidence of her psychological instability, she asserted in these proceedings they did. She contended that, if she feels forced to return with the child to the United Kingdom under orders made in these proceedings, there is a real risk she will act on the same impulse again and take her own life. She contended that risk was compounded by her sufferance of a recognised psychological condition.

16. Upon the mother’s return to Australia, she set about consulting a psychiatrist and psychologist. She consulted the psychiatrist twice, in December 2016 and again in February 2017, though she was not administered with any form of treatment by him. The first visit was merely for assessment and the second visit was, according to the psychiatrist’s evidence in cross-examination, simply to “clarify things”. Inferentially, what required clarification were details that needed to be included in the report requested from him by the mother’s solicitors for use as evidence in these proceedings. His report to them was written on the same day as his second consultation with the mother.

17. The psychiatrist admitted in cross-examination that, during the first consultation, the mother informed him of these proceedings and of her intention to defend them. He recorded in his consultation notes that the mother was conducting a “defence” which revolved around “habitual residence” and “grave risk to the child”. He must therefore have known, in the absence of her need for any treatment, he was probably being used by the mother as a forensic expert and not a therapeutic expert.

18. The psychiatrist reported:

    Overall this assessment did not confirm…the existence of pre-existing personality or psychiatric disorder.

    …

    [The mother’s] emotional symptoms of distress may be best classified as involving a chronic Adjustment Disorder including grief and self described sense of “torment” also with potential for self harm.

    …

    [The mother’s] return to Scotland with her son is likely to be associated with adverse psychological impact including on the mother/son parental relationship.

19. The psychiatrist reported the mother was invited to attend for further psychiatric review assessment and assistance on an “as needed basis” but there was no evidence she availed herself of the invitation.

20. Under cross-examination, the psychiatrist admitted he would describe the mother’s problem “in global terms” as the “dysfunction and breakdown” of her relationship with the father, which he agreed causes emotional turmoil in ordinary circumstances. He said it would be “easier” for the mother if she did not have to deal with the father face-to-face.

21. The mother deposed she was advised by another psychiatrist she consulted beforehand in October 2016 that she might develop “serious, long-term mental health issues” if she returned to Scotland, but that evidence is given no weight despite its reception. The evidence was hearsay, the psychiatrist to whom the mother was referring was not called as a witness to verify the opinion, and the psychiatrist she instead chose to call as her expert witness did not corroborate the opinion.

22. The mother first consulted her psychologist in November 2016 and has seen her six times. She was referred by her general practitioner. The psychologist reported she did not undertake any “formal psychometric testing” of the mother and, in cross-examination, she agreed both the contents of her report and the therapy she administered to the mother was based entirely upon the mother’s description of her experiences.

23. Like the psychiatrist, she must have been alerted to the prospect she would be drawn into this dispute as the mother’s forensic expert because, at the first consultation, the mother informed her she had received legal advice she could “fight the Hague application”. She reported the mother told her the father only retracted his consent for her return with the child to Australia “following her arrival in Australia”, which was false, because the father’s opposition to her permanent (not temporary) return was unchanged from the time the injunction restraining her removal of the child from the United Kingdom was made on his application in December 2014.

24. The psychologist accepted the mother’s report of the “regular and largely unpredictable pattern of behaviours perpetrated by [the father]”, which she concluded were “consistent with domestic violence”, and accepted the mother was “fearful of her and her son’s physical safety and psychological wellbeing”. Significantly, for the purpose of these proceedings, the mother did not assert the father posed any physical danger to the child. The mother told the psychologist she experienced “direct and indirect threats to her physical safety” from the father, but that was either false or liable to mislead because of the admissions she made in cross-examination. The psychologist also noted the mother’s report of “having to confine herself to a lockable to room to ensure her safety [sic]”, which was a materially different allegation from her allegation in evidence of being involuntarily locked in a room by the father.

25. The psychologist reported that, despite the mother’s “experiences and psychological symptomatology”, she described being “largely…able to maintain an effective parenting style” and “high responsivity to [the child’s] physical, social, and emotional needs”. Notwithstanding her acceptance of the validity of the mother’s positive assessment of her own parenting capacity under such (assumed) trying circumstances in Scotland, the psychologist reported:

    Based on [the mother’s] description of her experiences, her clinical symptomatology meets criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood.

    …

    [The mother]…views suicide as a viable option for her should she be required to return to Scotland or have her son removed from her care as she believes that she would no longer be able to cope with her distress…

    …

    [The mother] has clearly communicated that she felt she would have no choice apart from suicide should she be forced to return to Scotland or have no direct access to her son as she views these situations as unbearable for her to cope with. It is my view that [the mother] would enact these plans in this circumstance.

26. Several points should be made about those statements. First, the psychologist’s opinion about the mother’s psychological state is dependent upon acceptance of the truth and accuracy of the history provided by her, which was either incorrect or inaccurate in several material respects. Second, it might be true the mother told the psychologist she saw no viable option other than suicide if the child is ordered to return to the United Kingdom, but saying it and doing it are quite different things. The psychologist offered no explanation for why she reached her glib opinion, confined to a single sentence in a report of over five pages in length, that the mother would enact her suicide plans. It must mean her six sessions of therapeutic counselling were of little or no value to the mother, and further, she does not believe the mother is capable of acquiring any other counselling or therapy to avert that dire outcome. Third, no explanation was provided for the apparently illogical conclusion that, even though the mother was able to maintain her “effective parenting style” and her “high responsivity” to the child’s needs when living in Scotland before, she would not be able to do so again if the child is returned. Finally, the psychologist acknowledged she would need to revise her opinions if “further information [became] available”, which was important because she was ignorant of the mother’s pleading in the Scottish proceedings to the effect that, despite past episodes of ingesting pills and threatening suicide, she was assessed as “perfectly medically fit”.

27. During cross-examination, the psychologist evaded making logical concessions in response to questions posed to her. She seemed unwilling to be cornered and anxious to remain supportive of the mother’s cause. For example, she was not prepared to acknowledge the availability of many Scottish social welfare services to assist the mother. She said such services might be theoretically, but would not be practically, available to the mother. Her unwavering support of the mother was probably due to her reasoning that the mother’s perception of any lack of it might undermine their therapeutic relationship, which the psychologist seemed eager to preserve.

1. While both the psychiatrist and psychologist diagnosed the mother with an Adjustment Disorder, which causes her to experience disproportionately greater anxious reaction to stress, they held different opinions about the consequences. The psychiatrist’s opinion is to be preferred because his expertise is superior to the psychologist’s and his evidence was more detached. While he considered there would be an “adverse psychological impact” on the mother by her return to Scotland, he considered there was only a “potential” for her to cause “self harm”. Obviously enough, that potentiality would be lessened by her resorting to use of the many social welfare services on offer to her in Scotland, including those provided by the organisation named Relationships Scotland, which dispenses “counselling, family mediation, child contact centres and other family support services” across Scotland.

2. The reg 16(3)(b) exception is only enlivened if the risk of harm to the child is one that warrants the qualitative description of “grave”, which inquiry involves the difficulty of evaluating future possibilities (see DP v Commonwealth Central Authority at 407-408, 417-418, 440-442). The mother failed to discharge her burden of proof that the child would be exposed to the grave risk of psychological harm if returned to the United Kingdom.

3. The child would likely suffer some degree of emotional disturbance if permanently separated from the mother and, while there is a chance she will either choose to let him return to the United Kingdom alone or return with him and commit suicide once there, the risk of her making either of those unwise choices so as to expose the child to such harm is not so high as to justify its description as “grave”. The mother will be distressed, probably even acutely, by being forced to choose between accompanying the child back to the United Kingdom and allowing him to return alone, but she will probably choose to return with him and maintain her role as his primary carer.

4. The evidence to support that conclusion comprises what the mother contended to the court in the Scottish proceedings about her psychological stability, what she told her own psychologist in Australia about her ability to cope in Scotland despite her perception of adversity, and what she said in cross-examination in these proceedings. She said her return to Scotland would make her feel like she was living in prison, but she would never remain in Australia without the child, so her psychological condition is not so fragile that she is deprived of the capacity to make the rational choices her intelligence equips her to make. She sensibly conceded it is plausible she could live in City H with the child and it would be unnecessary for them to return to live in C Town, because any return order under the Regulations would only require the child’s return to the United Kingdom – not to some specific place within the United Kingdom. A broad range of social welfare services will be available to support the mother’s residence with the child in the United Kingdom while the pending litigation between the parents under the Children (Scotland) Act 1995 is finalised.

5. Although no final submission was made about it, the mother deposed of her fear she would be prosecuted for “international child abduction” if she returned to Scotland. Inferentially, she was worried such prosecution would result in her conviction and imprisonment and, consequently, the child’s separation from her. While that possibility cannot be completely discounted, it seems unlikely she would be prosecuted (let alone sentenced by imprisonment), since the Central Authority adduced evidence from its Scottish counter-part that:

   …in our experience it seems highly unlikely that this [the mother’s prosecution] would happen….it would be very unusual for criminal charges to be brought against an abducting parent after a child had been returned to Scotland under the 1980 Hague Convention and we are not aware of any recent such cases.

Intolerable situation

1. The mother asserted the test of whether the child’s return to the United Kingdom would place him in an intolerable situation was wider than the test of whether he would be thereby exposed to the grave risk of psychological harm, but she relied upon the same factual matrix to substantiate the alternate test under reg 16(3)(b).

2. There would be nothing intolerable about the child resuming his relationship with the father whilst remaining in the primary care of the mother, as was the case immediately before his removal from the United Kingdom in October 2016. The mother’s melancholic dissatisfaction with that arrangement might make it a less pleasant situation for the child than it otherwise could be, but not intolerable.

Conclusion and orders

1. The child should be returned to the United Kingdom.

2. Although the Central Authority sought a retinue of orders in its Application to ensure the child’s return to the United Kingdom, it submitted the Court should first determine the issues raised by the mother in opposition to the child’s return and, if her defences failed, the parties be then given the opportunity to formulate minutes of the return orders they each propose. The mother agreed with that approach.

3. For that reason, although the findings set out within these reasons will inform the substantive orders ultimately made under the Regulations, only procedural orders are made at this stage requiring the parties to quickly file and serve the return orders they propose. To the extent that any discrepancy still remains, a final decision can then be made about the form of the return orders.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 28 April 2017.

Associate: 

Date:  28 April 2017