Commissioner of Police South Australia (State Central Authority) and Wimborne (No. 2)

[2013] FamCA 504

FAMILY COURT OF AUSTRALIA

COMMISSIONER OF POLICE SOUTH AUSTRALIA (STATE CENTRAL AUTHORITY) & WIMBORNE (NO. 2) [2013] FamCA 504

FAMILY LAW – CHILD ABDUCTION – Hague convention – Child ordered to be returned by the father to the USA with conditions imposed on the mother

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

De L v Director General & NSW, Department of Community of Services & Anor (1996) FLC 92-706
DJL v Central Authority (2000) 201 CLR 226; Director-General, NSW Department of Community Services & JLM [2000] FamCA 1502
DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401
Gazi and Gazi (1993) FLC 92-341
Gsponer v Director General, Department of Community Services, Vic (1989) FLC 92-001

APPLICANT: Commissioner Of Police South Australia (State Central Authority)

RESPONDENT: Mr Wimborne

FILE NUMBER: ADC 629 of 2013

DATE DELIVERED: 3 July 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 30 May 2013, 2 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Olsson

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

COUNSEL FOR THE RESPONDENT: Ms Ross

SOLICITOR FOR THE RESPONDENT: Alderman Redman Lawyers and Mediators

Orders

1. That the child L born … May 2003, (“the child”) be returned to the United States of America in the company of his mother Ms Wimborne.

2. For the purposes of paragraph 1 of these orders, each party do all acts and things necessary to seek and obtain a passport for the child AND IT IS REQUESTED that the United States Embassy officials in Melbourne responsible for the issue of such passport do all things possible to expedite the issue of the passport to enable the return of the child consistent with Australia’s obligations under the Hague Convention.

3. That subject to completion of the orders hereafter, paragraphs 1and 2 of the orders made on 14 May 2013 are discharged.

4. That for the purposes of giving effect to this order:

   (a)The child leave the Commonwealth of Australia on a date to be agreed and failing agreement no later than 2 weeks before the first school term commences at the conclusion of the Summer holidays in the town where the mother lives;

   (b)That pending the child returning to the United States of America, the respondent father continue to be restrained and an injunction is hereby issued, restraining him from removing or attempting to remove the child from the Commonwealth of Australia;

   (c)That the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the name of the child L born … May 2003 on the All Ports Watch Alert System at all international departure points in Australia;

   (d)That the said child be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Commissioner of Police for the State of South Australia on behalf of the State Central Authority advising of the travel arrangements made for the said child to return to the United States of America on the date nominated for the said travel in the letter;

   (e)That the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders;

   (f)That liberty to apply be granted to the applicant to seek any further orders necessary to allow such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.

5. That paragraphs 1 and 2 of these orders are subject to the following conditions:

   ·    that the mother acknowledge immediately that she will do all things necessary to indicate to any law enforcement agency in the United States Of America that she does not desire the father to be prosecuted for abduction of the child;

   ·     the mother forthwith arrange for therapy for the child to commence as soon as practicable after he returns to the United States and for such period as the therapist considers necessary;

   ·    That the mother authorise the United States based therapist to speak to Dr P and for the therapist to decide whether it would be useful and helpful for a (or any) therapy session to occur involving Dr P;

   ·    the mother ensure that the child has on-going dental, optometry and paediatric care (relating to the child’s eating disorder) and that she authorise all such professionals to speak to and provide the father with such information about the child’s health and treatment as they consider appropriate;

   ·    the mother enrol the child in the school in the town where she now lives and that he remain there at least until the end of the current academic year; and

   ·    the mother acknowledge that she will abide by all existing orders for the father to have Skype communication with the child.

6. That there be liberty to apply.

7. That all other applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Commissioner of Police South Australia (State Central Authority) & Wimborne (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 629  of 2013

Commissioner Of Police South Australia (State Central Authority)

Applicant

And

Mr Wimborne

Respondent

REASONS FOR JUDGMENT

1. On 22 February 2013, the Commissioner of Police for South Australia as the relevant State Central Authority filed an application under the Family Law (Child Abduction Convention) Regulations 1986 seeking the return of L, (“the child”) to the United States of America.

2. The father of the child is Mr Wimborne. Initially, he opposed the return of the child.  At the hearing in May 2013, his counsel made submissions about the nature of the objections and indeed, called evidence from the child’s treating psychologist. The evidence of the Psychologist Ms P (which is further mentioned below) continued on 2 July 2013. The father then sought to cross-examine the mother over opposition from counsel for the Applicant. I ruled in the father’s favour and cross-examination followed with the mother attending by telephone from the United States of America. It was only after the conclusion of the cross-examination that I expressed concerns about whether the evidence relied upon by the father was sufficient to overcome the burden of proof he faced. The father’s position as expressed by his counsel was that he would not return to the United States even if an order for the child’s return was made. I observed that it was much harder in those circumstances to make conditions on the return order because I would be leaving the parenting aspects to the courts in the United States. After the lunch break, counsel for the father agreed that he would no longer oppose the return of the child but wanted conditions some of which were opposed by the State Central Authority.

3. The issue therefore is about what conditions should be applied as part of the return order.

4. The father’s responding material was filed on 8 May 2013 and there was a variety of reports involved. The father did not give evidence. 

5. It is also important to observe that the delay in the hearing of this matter was the result initially of limited judicial resources but then the matter had to be adjourned part-heard because of the absence of counsel on holidays. 

6. I was significantly assisted by both counsel and was provided a written outline of argument.

Background

1. The mother of the child is Ms Wimborne who is 37 years of age.  The father is 36 years of age.  They married in the United States in 1999.  Their marriage broke down and they divorced in December 2007.  As part of the divorce proceedings, the parents of the child were granted what was described as joint legal custody and the child was to be shared between them on an equal basis.

2. The child was born in May 2003 so he is just 10 years of age.

Legal proceedings in the United States of America

1. In December 2009, the father indicated a desire to move away from where he was living but the mother objected and that led to proceedings in 2010 and 2011. Those proceedings may be looked at in a number of ways but as I assess them, they were what Australia would know as parenting proceedings. The dispute seemed to centre on whether the father could relocate the child with him to Australia. That application was refused and reasons were given.

2. In July 2011, a family court commissioner in the N County Circuit Court awarded primary physical placement of the child to the mother and granted access to the father to travel to Australia for holidays.  Various other orders were made in relation to communication between the child and his parents.

3. It is important to note that in the July 2011 judgment, it was ordered that the child’s habitual state of residence and the jurisdiction of custody and placement issues were to remain in the N County Wisconsin.

4. The father returned to Australia to live.

The child comes to Australia

1. In June 2012, the father flew to the United States to collect the child and then returned to Australia for the summer break provided under the July 2011 orders. 

2. In August 2012 when the child should have been returned to the United States, the father unilaterally withheld him.  In September 2012, the mother requested the father return the child to the United States and he declined.  The application under the Hague Convention then followed. It is most unfortunate for the child in this case that the proceedings have been delayed and protracted. Regardless of what physical and emotional condition the child was in when he arrived in Australia, he was here for a holiday. The father took exception to the condition of the child and arranged dental treatment and also the attendance upon psychologist Dr P.

3. On 21 December 2012, the father commenced proceedings in Wisconsin in the United States for variation of the earlier orders.  Those proceedings are still pending.

4. In the meantime, the Hague Convention proceedings began in Australia.

The Hague proceedings

1. The father conceded all of the necessary jurisdictional issues.  He conceded:

   ·       He retained the child after the agreed return date;

   ·       The mother had rights of custody under the law of the United States of America;

   ·       He was in breach of the mother’s rights of custody;

   ·       The mother was exercising her rights of custody or would have exercised those rights had the child not been overheld; and

   ·       There was insufficient evidence to establish any acquiescence by the mother in the retention in Australia. Indeed, quite the contrary, the mother wanted the child back and was only contemplating his trip to Australia as part of a holiday order.

2. Before conceding the return of the child, the father raised two major issues under the regulations to which I shall return:

   (a)there was a grave risk that if the child was returned to the United States, it would expose him to physical or psychological harm or otherwise place him in an intolerable situation; and

   (b)The child expressed a clear, strong and considered wish to stay in Australia.

3. As the proceedings began, psychologist Dr P was called to give evidence. Dr P prepared a report on the instructions of the father’s legal practitioners. Dr P has prepared family and welfare reports in the past but she was unaware of the proceedings in either the United States nor what the relevant regulations contemplated. Her role as she saw it, was to answer the questions she was asked. Whilst that is an appropriate approach as a treating professional, it must be questionable if the report writer is being asked to give expert evidence.  

4. Whatever Dr P thought her role was, the purpose of her evidence from the father’s perspective was to support his case which required that he prove the assertion that there was a grave risk of psychological harm to the child if he was returned to the United States. 

5. It was also the psychologist’s evidence that she had spoken to the child about his wishes and that report became relevant to the question about his wish or preference to stay in Australia.

6. Dr P did not speak to the mother.  The history she was provided came entirely from the father and the child. In cross-examination, she conceded that she was reliant upon the accuracy of that history. Having regard to the cross-examination of the mother, I have some doubts about the accuracy of the history given. For example, it was put to the mother that she had not been diligent about getting the child some glasses. This formed part of the father’s argument that the mother neglected the chiild’s welfare. Her answer which I accept was that the child did have glasses but had outgrown them. She spoke to the father about them being replaced upon the child’s arrival in Australia. A similar situation arose about the lack of dental hygiene for the child. All of these matters had been the subject of an expressed concern by the psychologist about the mother’s responsibility as a parent. Absent some discussion with the mother about all of that, the opinion of the psychologist may have been flawed.

7. Since July 2012, the psychologist saw the child on 19 occasions.  The first of those occasions was 26 July 2012.  That was at the end of the period that the child should have been in Australia but for the mother agreeing to a short extension of time and the father’s subsequent overholding. It is hardly surprising then that the child had become settled in Australia, was happy with his father and reticent about returning to the United States.

8. It is also somewhat troubling that the attendance upon Dr P was not only unilateral by the father but that Dr P did not have the benefit of discussing the issues with the mother.  As I mentioned earlier, she did not see that as her responsibility but that gives rise to the question of the dichotomy of treating professional and expert witness.

The health of the child

1. Dr P said that the child presented with multiple psychological and physical symptoms.  She described him as very withdrawn, shy and reserved.  There were symptoms of extreme anxiety, manifested through little to no eye contact, limited speech and worried facial expressions.  Counsel for the Applicant put to the witness that the stress of having just arrived may have accounted for the state that she found the child in but Dr P rejected that. I have some concerns about that evidence because presumably, the child knew that his mother wanted him to come back (they were seeing each other by Skype) and Dr P was asking questions about what would happen to the child if he was required to go back. Her own description of how the child reacted suggests that he was under enormous pressure and that he did not want to decide between living with his mother and his father.

2. Dr P primarily focussed on exploring the child’s anxiety and for that purpose began establishing routines and behavioural management strategies.  She focussed on enhancing the communication between the child and his father but also maintaining connections with his mother by Skype.

3. Dr P educated the child about his feelings. A significant problem for the child before he left the United States was his dislike of certain foods. Not much changed when he arrived in Australia until Dr P began working with him. A therapeutic pathway was established and management issues were put in place which appear to have been successful.

4. The child’s relationship with his mother was explored from one side but without input from the mother. The child witnessed his mother crying on occasions during their contact on Skype.  The mother gave evidence that she spoke to the child probably on three out of four weeks of the month and for times of 45 minutes to over an hour. There were times where he was uncommunicative but others where he showed her his computer skills. My sense of the evidence of the mother was that she was sensitive to the child’s needs and very conscious of his absence but not to the extent that she was psychologically pressuring him. That is relevant to the issue of one of the two objections initially raised by the father to a return.

5. Over the long period of time that Dr P saw the child, she observed significant improvement in his anxiety and in his willingness to attempt different foods. In her second day’s evidence, Dr P expressed concern that the child might not get the treatment she considered he needed. I am satisfied after hearing the mother that that is not likely to be a problem.

6. Dr P thought that the child would require support and monitoring whether in Australia or in the United States as well as attachment-based therapy with his parents to help build secure relationships.  That is somewhat difficult to see having regard to the tyranny of distance and the state and nature of the parents’ current relationship which is clearly one in which they disagree where the child lives.

7. Dr P opined:

   As [the child’s] psychologist, I am very concerned that returning him back into the care of his mother will not only cause significant harm, but may cause [the child] to developmentally regress. 

8. As support for that conclusion, she said that when she discussed possible outcomes of the application to return to the United States, the child began to speak in a “baby” voice with a lisp.  Her views about the psychological damage to the child by returning to the United States were dependent upon the mother being unable to provide psychological assistance for the child. Dr P said that the manifestation of the anxiety she observed indicated that nothing was being done by the mother about the child’s problems.  Having heard the mother cross-examined, I find that she can do all of the things that the child needs and more importantly, has agreed to do them. Far from finding that the mother neglected the child before he came to Australia on holidays, I find that whilst there were some difficulties with insurance and timing but otherwise, the mother seemed to have looked after the child well despite the condition observed initially by Dr P. 

9. The child told Dr P that he missed his mother. I must take into account that there were considered orders of the United States courts about where the child was to live based in part on the nature of that parenting relationship.

10. Dr P told the child that there would be a prospect that he might have to go to the United States and he reverted to baby behaviour.  He spoke in a quiet voice and in her view that meant that he was “under trauma” and if that continued, he could go back developmentally.

11. At its highest, the evidence indicates that the child needs assistance from both his parents and from professionals.

the child’s wishes

1. Dr P said the child deeply loved both of his parents and felt that he might disappoint one of them if he chose the other.  He would prefer to stay in Australia.  When asked why, his explanation was that it was safer in Australia, there was “Movie World”, he had a bunch of game consoles, and he had pets, money and lots of food.  The question is whether that amounts to strength of wishes beyond a mere preference.

2. In relation to the child’s level of maturity, Dr P thought that he was intelligent because he was able to read at a 15 year old level but he was clearly not wishing to be involved in the decision-making process of where he lived as between his parents.  The child misses his mother and would prefer to stay in Australia for reasons that most children would understand but he was specifically avoiding the issue of what impact his view would have on any court process in the United States.

The mother’s evidence

1. As I earlier indicated, the mother wanted to give evidence and the father’s counsel wanted to cross-examine her. Counsel for the Applicant opposed that course but I found it helpful. Indeed, it confirmed that there is not only no risk for the child in returning to his mother but that he can have all of the necessary professional services in the new town in which his mother lives.

2. Counsel for the father probed the mother about why she had made residential and employment changes but nothing turned on those matters. I found the mother a forthright witness.

3. When asked whether she would support all of the programs that were happening in Australia, the mother agreed. That was not just an agreement to get the child back. Her explanations were plausible. Nothing I read in the documents provided from the United States court proceedings would concern me such as to say that giving the mother the care of the child was inappropriate and nothing I heard about what had happened since those orders were made was troubling about the mother’s ability to care for the child. Thus, after hearing from the mother, to the extent that there was some evidence put forward by the father on the issue of there being a grave risk to the child in a return order to the United States by exposing him to physical or psychological harm or otherwise place him in an intolerable situation, I reject that.

4. The father sought that there be conditions on the return. Before dealing with those because in my view, they are not really contentious, it is important to consider the legal aspects of this case.

5. The application was made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

6. The Regulations made under the Family Law Act 1975 (Cth) (“the Act”) give effect to the Convention on the Civil Aspects of International Child Abduction. For ease of convenience, I will refer to the Convention as the Hague Convention. 

7. The Regulations embody the principles and objects of the Convention which recognises:

   that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence.

   Here, courts do not decide which parent will have “custody” of the child. It is important to make the distinction between returning the child to the country of habitual residence, and returning the child to the other parent: DJL v Central Authority (2000) 201 CLR 226; Director-General, NSW Department of Community Services & JLM [2000] FamCA 1502.

8. Regulation 16(1) provides the power to make a return order. The Regulation mandates an order for return if the Court finds the removal was wrongful as defined in the regulations. That is no longer an issue as the father concedes the return order should be made.

9. Regulation 16(3) provides that the Court has a discretion to refuse to make a return Order if one or more of the matters identified in that sub-regulation are proved. In this case, they are not.

10. The applicant bears the burden of proving each of the elements in Regulation 16(1A) unless as here, the father concedes the issue. That concession enlivens the power to make a return order.

11. There was some discussion about the process here. I did not order an Independent Children’s Lawyer nor a family report. I had the benefit of Dr P’s report with its limitations but that addressed the issues raised by the father. I also had the benefit of the orders and reasons of Dawe J in this case delivered on 14 May 2003.

12. The process is designed as a summary one to deal with the speedy return of children found to have been wrongly removed from their habitual residence. The reason for that approach can be seen in the Full Court decision in Gazi and Gazi (1993) FLC 92-341 at 79,623. Having said that and taking into account the opposition of the applicant, I thought it would be helpful to hear from the mother to know the circumstances under which the child would return if his father refused to return with him. I had also taken into account that whilst the Court requires expedition of the process, it has been cautioned about an “over-hasty and insufficient hearing” (see De L v Director General & NSW, Department of Community of Services & Anor (1996) FLC 92-706). All of that contributed to the father’s concession that the child had to return.

13. It is still the Court’s function however to ensure that the return is appropriate given the discretionary nature of the determination. Having regard to the “defences” raised by the father, I considered what Gleeson CJ observed in DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401 where his Honour said that ‘[t]he nature and degree of physical or psychological harm is unspecified, but guidance as to what is in contemplation is given by the words “or otherwise place the child in an intolerable situation”’. Nothing I heard from either Dr P or the mother would satisfy me that the child fell into that intolerable category.

14. The harm must be of a substantial or weighty kind (Gsponer v Director General, Department of Community Services, Vic (1989) FLC 92-001). Here, the child will return to the United States with his mother and the evidence is clear as to the closeness and loving nature of the relationship between them. I could not find therefore that such a return would create an intolerable situation.

15. I have also contemplated and raised in discussion with counsel the psychological risk to the child in being separated from his father. Nothing in the evidence of Dr P or the evidence in the documents of the previous proceedings in the United States would give rise to that concern because the child will be with his mother who until the over-holding occurred, was his primary attachment figure.

16. Regulation 15 of the regulations permits a court to include in an order conditions it considers appropriate to give effect to the Convention. The provisions of s 111B of the Act and regulation 1A of the relevant regulations make clear that the appropriate country for the determination of disputes about a child’s care, welfare and development is the country of habitual residence. In this case, there are currently extant proceedings in the United States. Pending those matters being determined, I think it is important to recognise that there were contentious issues about the child’s welfare. Whether they are justifiable concerns or not is a matter for the country of habitual residence to determine. Pending that determination, and having regard to the mother’s sensible acquiescence, I consider it is appropriate to make conditions in the return order.

17. The father sought orders that:

    ·       the mother not press criminal charges for abduction;

    ·       the mother organise on-going therapy for the child for 6 months including involving Dr P;

    ·       the mother ensure on-going dental, optometry and paediatric care (relating to the child’s eating disorder) and that the father be authorised to speak to the professionals;

    ·       the mother ensure that the child remain in the school where the mother lives at least until the end of 2013;

    ·       the mother attend Australia to collect the child;

    ·       the American passport be renewed; and

    ·       the mother comply with Skype orders.

18. The applicant opposed the conditions on the basis that the mother’s evidence would indicate her willingness to do those things simply as part of her parenting responsibilities.

19. Having regard to what I have just said about the impending court proceedings in the United States, I consider it is appropriate for some of the conditions to be included in the return order.

20. I propose to order that the child be returned to the United States of America in the company of the mother. For that purpose, I will order that each party do all acts and things necessary to seek and obtain a passport for the child and further, the order will be endorsed with a request that the United States Embassy officials in Melbourne responsible for the issue of such passport do all things possible to expedite the issue of the passport to enable the return of the child consistent with Australia’s obligations under the Hague Convention. I will order that the return occur on a date to be agreed and failing agreement no later than two weeks before the first school term commences at the conclusion of the summer holidays in the town where the mother lives and that the following conditions apply to such order:

    ·       that the mother acknowledge immediately that she will do all things necessary to indicate to any law enforcement agency in the United States Of America that she does not desire the father to be prosecuted for abduction of the child;

    ·        the mother forthwith arrange for therapy for the child to commence as soon as practicable after he returns to the United States and for such period as the therapist considers necessary;

    ·       that the mother authorise the United States based therapist to speak to Dr P and for the therapist to decide whether it would be useful and helpful for a (or any) therapy session to occur involving Dr P;

    ·       the mother ensure that the child has on-going dental, optometry and paediatric care (relating to the child’s eating disorder) and that she authorise all such professionals to speak to and provide the father with such information about the child’s health and treatment as they consider appropriate;

    ·       the mother enrol the child in the school in the town where she now lives and that he remain there at least until the end of the current academic year; and

    ·       the mother acknowledge that she will abide by all existing orders for the father to have Skype communication with the child.

I certify that the preceding Fifty Seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 July 2013.

Associate: 

Date:  3 July 2013