Commissioner of Police (State Central Authority) and Bryson

[2016] FamCA 72

FAMILY COURT OF AUSTRALIA

COMMISSIONER OF POLICE (STATE CENTRAL AUTHORITY) & BRYSON [2016] FamCA 72

FAMILY LAW – CHILD ABDUCTION – Hague Convention – where the child was habitually resident in the United Kingdom – where the child was wrongfully removed to Australia by the mother – where the mother has failed to establish the matters referred to in the exception to a return order – where the Court considers “the best interests of the child” is not a reason in itself to refuse a return order – where the State Central Authority has established the matters referred to in sub regulation 16(1) and 16(1A) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – where orders are made for the return of the child to the United Kingdom.

Family Law Act 1975 (Cth) s 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 4, 8, 16

Hague Convention of 22 October 1980 on the Civil Aspects of International Child Abduction, art 5

Director General; Department of Child Safety & S (2005) FLC 93-249
DP v Commonwealth Central Authority; JLM v Director General, NSW Department of Community Services (2001) 206 CLR 401
McCall & McCall; State Central Authority (Applicant); Attorney General (Intervener) (1995) FLC 92-551
Quarmby v Director General, Director of Community Services (NSW) (2005) 34 Fam LR 8

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

RESPONDENT: Ms Bryson

FILE NUMBER: ADC 4306 of 2015

DATE DELIVERED: 17 February 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 4 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Keane

SOLICITOR FOR THE APPLICANT: Crown Solicitor's Office

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the Application of the State Central Authority filed 18 November 2015 for B (“the child”) born … 2010 to be returned to the United Kingdom pursuant to regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) be granted.

2. That the respondent mother Ms Bryson (“the mother”) do all things necessary to ensure that the child is returned to the United Kingdom within thirty (30) days of the date of this order and to notify the applicant of the date and time of the departure and return not later than ninety six (96) hours prior to departure.

3. That pending the return of the child to the United Kingdom, the mother be restrained and an injunction is granted restraining her from removing or attempting to remove the child from the Commonwealth of Australia.

4. That the Commissioner of the Australian Federal Police and all federal agents and Australian Federal Police shall retain the name of the child B born … 2010 on the Airport Watch List (PACE) at all international departure points in the Commonwealth of Australia.

5. That the said child be removed from the Airport Watch List (PACE) by Officers/Agents of the Australian Federal Police upon receipt of a letter from an Officer/Agent of the Department of Human Services on behalf of the State Central Authority advising on the travel arrangements for the said child to return to the United Kingdom on a date nominated for the said travel in the letter.

6. That the Marshall of the Family Court of Australia and all federal agents and 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.

7. That immediately prior to the departure of the child from Australia, paragraph 2 of the orders made on 24 November 2015 pertaining to the surrender of the said child’s and the respondent mother’s passports be discharged.

8. That the solicitor for the applicant do serve a sealed copy of this order on the proper officer of the Australian Federal Police as soon as practicable.

9. That there be liberty to apply.

10. That all applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Commissioner Of Police (State Central Authority) & Bryson 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 4306  of 2015

Commissioner of Police South Australia (State Central Authority) 

Applicant

And

Ms Bryson

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 18 November 2015 proceedings were issued pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“Child Abduction Regulations”)[1]. The Child Abduction Regulations are the means by which the Commonwealth of Australia has elected to give effect to its obligations as a signatory to the Hague Convention of 22 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The Child Abduction Regulations are made under s 111B of the Family Law Act 1975 (Cth) (“the Act”). The Police Commissioner of South Australia (“State Central Authority”) pursuant to the Child Abduction Regulations[2] is seeking orders for the return of B born … 2010 (“the child”) to the United Kingdom

   [1] Hereafter referred to as “The Child Abduction Regulations”. (By the Secretary to the Commissioner of Police in South Australia the State Central Authority)

   [2] The Attorney General of the Commonwealth has appointed the Commissioner of Police South Australia as the State Central Authority of Australia for the purposes of the Child Abduction Regulations pursuant to Regulation 8 of the same.

2. The child currently resides in Australia with her mother Ms Bryson (“the mother”).

3. The child’s father Mr Bryson (“the father”) continues to live in the United Kingdom.  He has signed an authority empowering the State Central Authority to act on his behalf in respect of the application at hand.  The matter was heard before me on 4 February 2016 in Adelaide.  The State Central Authority was represented by Mr Keane of counsel.  The mother was initially represented by a solicitor who appeared as counsel but upon leave being given for her to withdraw from the proceedings and noting the consent of the mother to the application to withdraw, the mother was self-represented.

BACKGROUND

1. The mother and father commenced their relationship in 2005 in Country C.  The parties married in 2006 and the child was born in 2010 in City D.

2. The father was born in Country C but now holds the status of a citizen of the United Kingdom.  The mother is a citizen of Australia.

3. In August 2011, the mother and the father moved to E Town, England.  The parties remained in E Town until the mother left the United Kingdom and travelled to Australia.  The father remains in England.

4. The mother advised the father in April 2015 that she intended to travel with the child to visit her family in South Australia as a celebration coinciding with her 40^th birthday.  It was the mother’s position that it would be a holiday for both her and the child and the mother expressed to the father that she was keen to spend time with her family.  The father was aware of the mother’s travel plans, but the purchase of tickets and the initial travel arrangements were not conveyed to him.  The father’s consent was obtained upon the mother showing the father that her travel arrangements included a return flight for her and the child.

5. On 16 August 2015, the mother travelled to Australia with the child and had an express intention to return with the child to the United Kingdom on or about 9 September 2015.

6. The father was obviously satisfied with the travel arrangements and considered that the return ticket was sufficient reassurance of the mother’s intentions.  Accordingly, he signed a consent form.

7. Following detailed communication between the parties and various entreaties by the father that the mother honour her promise to return with the child to the United Kingdom, on 7 September 2015 she advised him that she was intending to remain in Australia with the child.

8. It is not contended by the mother that the father gave consent to the child remaining in Australia and there is no suggestion of acquiescence.

9. The application initiating proceedings was supported by a detailed affidavit filed by Ms H, a solicitor at the Crown Solicitor’s Office and is aware of the application by the State Central Authority. 

10. As an annexure to that affidavit is an affidavit of the father where he contends that he has rights of custody to the child arising from him being named on the child’s birth certificate.  He asserts that he and the mother are still married and that no proceedings have been issued seeking a dissolution or divorce order.  Arising from his parentage and care and involvement with the child, he considers he has a right of parental responsibility.

11. Prior to the mother removing the child from the United Kingdom, the parties had lived in E Town.  The child attended the F School and was seemingly well settled.

12. The father alleges that once the mother and the child had departed for Australia, he had little contact.  There were some short phone calls with the child, but generally notwithstanding what he says were his best efforts to make contact with the mother, he was unsuccessful.

13. It is only after considerable effort via telephone, Facebook, Skype and contacting friends of the mother in Australia that he finally received confirmation on 7 September 2015 of the mother’s intention to remain in Australia and not return the child.

14. It appears that it was only when the child was settled in Australia and had been enrolled in a primary school in G Town that the father was advised that the mother and child would not be returning.

15. It appears from the tenor of the text messages between the parties that the mother underpinned her intention to remain in Australia based upon her need to be near her father who was unwell.

16. The following text messages via Skype conveys a reasonable summary of the mother’s strategy:-

    Answer:I’m not messing you around.  I need to be here and so does [the child].  What if something happens to dad and we arent here?  He needs us whilst he is unwell.  I have started [the child] at school here so she continues her schooling whilst we see.  The school happens to be advanced.

    Response:Not good enough.  Why you only tell me this now.  Maybe I would have been more understanding, but I’ve had to wait a fortnight for any message.  Your just giving me the run around.  [The child] can come home, I can come and collect her.  Will you let me come and collect her without any fuss and court involvement?

    Answer:Why do you get to dictate what happens? My dad might not have long and you want to take his granddaughter from him.  Now who doesn’t care?

17. The proceedings first came before the Court on 24 November 2015.  The mother was represented and orders were made by consent such that the child could not be removed from the state of South Australia prior to the determination of the application.  The child was placed on the Airport Watch List (PACE) and an order was made that the mother deliver up both her and the child’s passport to a Registrar of the Family Court of Australia.

18. The mother sought alternate representation and on 30 November 2015 and 4 December 2015 Ms Emes appeared for the mother as a friend of the Court.  She indicated that it was more likely than not that ultimately she would be prepared to represent the mother in the proceedings.  Thereafter, Ms Emes remained instructed.

19. The matter was listed for final hearing on 18 December 2015 and orders were made extending the time for the respondent mother to file and serve all affidavits on which she sought to rely by 15 January 2016.  The matter was then listed for final hearing on 29 January 2016.

20. Leave was given on 8 December 2015 for the mother to issue a subpoena for the production of documents previously held by the mother’s former solicitors.

21. Notwithstanding the best endeavours of the Court to have the matter listed for final determination expeditiously, it was only on 4 February 2016 that the matter appeared ready to proceed.

22. At the commencement of the proceedings an application was made by Ms Emes to withdraw.  It was not explained to the Court the nature of the conflict but it was clear that Ms Emes did not consider that she was able to discharge her professional obligation.  The mother accepted the inevitability of the circumstances and the matter proceeded with the mother as a self-represented litigant.

23. The mother relied upon the following documents:

    (1)Form 2A Response filed 18 December 2015 (including the mother’s Affidavit)

    (2)Affidavit of Scott Penn filed 18 December 2015

    (3)CAHMS Report

DETERMINATION

1. The parties were not ordered to file an Outline of Argument.

2. The documents relied upon by the mother reveal that she had assistance in preparing the material both as to the response to the State Central Authority’s application and subsequent affidavit material relied upon.

3. The mother sets out a short background in her affidavit and confirms that the family moved from Country C to England.

4. It is an important feature of the mother’s opposition to a return order that she is unable to any longer return to the United Kingdom because she cannot obtain a visa.

5. She says as follows:-

   [8]I have exhausted all possibilities of obtaining a VISA to reside in the United Kingdom with the child.

   [9]I had my VISA refused twice;

   a.in the first instance it was denied because The Father had not worked enough to satisfy a partner VISA.

   b.The second instance my VISA was denied because the Father’s Passport had expired.

   [10]There has not been any other reason given to me by English authorities as to why my VISA applications were denied twice.

6. The mother then sets out a history of her obtaining a spouse visa after being married in 2006 which was valid until 2012.

7. The mother does not provide any expert evidence as to her assertion that she is not able to obtain a visa.  She seeks to blame the father for his lack of attention to the conditions required in order for a visa to issue.

8. Importantly, it is the mother’s position that historically she was keen to receive a visa and it was only upon her move to Australia that she has now lost interest in such an application.

9. She attempts to set out her own understanding of what she says is an insoluble problem.  The short summary is that her best endeavours have borne no fruit and she even contends that she has been advised that if she returns to the United Kingdom without a visa she could well be apprehended and detained pending deportation.  She is concerned for the safety of the child if an order is made requiring the child to return to the United Kingdom in her absence.  She considers that if that were to eventuate she holds grave safety concerns for the child.

10. Her affidavit reveals that “[the child] had regular tantrums when she was with the father as he would antagonise her to the point that she was hysterical”.   It is also alleged that the father would grab the child by the head and neck, push the child to the ground on her back with his hands around her neck and then yell at the child.  According to the mother, the consequence of the father’s alleged aggressive behaviour would result in the child being upset and distressed.

11. The mother states that the child would run away if she was made to get on a plane.  The mother later conceded that whilst she says the child is resistive to returning to the United Kingdom, the child’s fear is based on a return to the father and in the absence of the mother.  It is the mother’s position that if a return order is made she intends to return to the United Kingdom with the child.  The mother sets out, but with scant detail, what she says was the marital disharmony in the home and she highlights by general submission examples of poor and potentially abusive conduct by the father.

12. The State Central Authority must prove that the father was exercising his rights of custody prior to the child’s removal from the United Kingdom and whether that removal was wrongful. That must be established before my obligation to return the child pursuant to subreg 16(1) and 16(1A) of the Child Abduction Regulations is activated.

13. Conversely, “the best interests of the child” is not a reason in itself to refuse a return order.

14. There is a tension in Hague Convention proceedings as to whether, and if so to what extent, a Court considering an application for return of a child to a requesting country should take into account matters that might be considered relevant to a consideration of the best interests of the child. Matters that would normally involve the best interests of the child as “the paramount consideration” do not apply in proceedings under the Child Abduction Regulations. Regulation 16 requires that in some circumstances the obligation to make a return order is mandatory even though there is nonetheless some scope for discretion as to whether a return order should be made, any such consideration does not involve consideration of the best interests of the child as “the paramount consideration”.

15. In Quarmby v Director General, Director of Community Services (NSW) (2005) 34 Fam LR 8, the Court was faced with an application for contact by a sibling of a child subject to a return order to the USA. The Court was faced with a consideration as to whether the contact application took priority over the Hague Convention application. Ultimately, the Court disposed of the issue in the following manner:-

    [63]Ultimately this case is about selecting the forum in which it is appropriate that issues relating to S’s future residence to be determined.  The Hague Convention and the Abduction Regulations mandate that in the circumstances of this case, the child having been wrongfully removed from the USA, the appropriate forum is a court in the USA.  The issue of contact raised by A in relation to her ongoing relationship with her sister will no doubt be matters that will be properly considered in the USA in relation to any application brought by the mother for a residence order and permission to bring the child to live in Australia.

16. The relationship between the Hague Convention proceedings and parenting proceedings has been the subject of significant judicial consideration. 

17. The remarks of Kirby J in DP v Commonwealth Central Authority; JLM v Director General, NSW Department of Community Services (2001) 206 CLR 401 at paragraph [128] are apposite:-

    It is in this sense that provisions such as those in the regulations are properly to be classified not, as such, as laws searching for the best interests of the child but rather as laws for selecting the forum where that search is to be undertaken and concluded.  It is easy enough to slip back into a factual enquiry into the child’s best interests, that having for centuries been the duty of common law courts in disposing of analogous cases. But such a tendency must be resisted for otherwise the attainment of the main point of the regulations and the Convention will be frustrated.

18. Initially there was some uncertainty as to the mother’s case, but ultimately she conceded that she relied upon the defence of grave risk as the gravamen of the mother’s opposition to a return order.

19. Subregulation 16(1) of the Child Abduction Regulations requires the Court to make the return order requested by the State Central Authority, in this case if three questions are answered in the affirmative.

20. The first question, pursuant to subreg 16(1)(a), is whether an application for a return order has been made.  That is not a matter of dispute between the parties.

21. The second question, pursuant to subreg 16(1)(b), is whether the application for a return order was filed within one year after the child’s removal or retention.  There was a concession by the mother that she and the child travelled to Australia on 16 August 2015.  The application initiating proceedings was filed on 18 November 2015.

1. The third question, pursuant to subreg 16(1)(c) is whether the State Central Authority has satisfied the Court that the child’s removal or retention was wrongful under subreg 16(1A).

2. Subregulation 16(1A) requires the Court to be satisfied of five factors if it is to be satisfied that the child’s removal or retention was wrongful for the purposes of subreg 16(1)(c).  The State Central Authority carries the burden of proof in relation to the factors referred to in subreg 16(1A) (see subreg 16(1C)).

3. The first factor pursuant to subreg 16(1A)(a) is whether the child was under the age of 16 years at the time that she was removed to Australia.  This factor is clearly satisfied.  The child was aged 5 years at the time of the hearing.

4. The second factor pursuant to subreg 16(1A)(b) is whether the child was habitually resident in a Convention country immediately before the child’s removal.  This condition is satisfied.  The mother does not take issue with the fact that the child was habitually resident in the United Kingdom.

5. The third, fourth and fifth factors in subreg 16(1A) all concern the father’s “rights of custody” namely:-

   (a)Pursuant to subreg 16(1A)(c), is whether the father had “rights of custody” in relation to the child under the laws of the United Kingdom immediately before the child was removed to Australia;

   (b)Pursuant to subreg 16(1A)(d), is whether the child’s removal to Australia was in breach of those “rights of custody”; and

   (c)Pursuant to subreg 16(1A)(e)(i) and (ii), is whether, at the time of the child’s removal the father either was actually exercising the “rights of custody” (jointly or alone), or would have exercised those rights if the child had not been removed or retained.

6. The starting point is reg 4 of the Child Abduction Regulations which provides as follows:-

   (1)For these regulations, a person, institution or other body has rights of custody in relation to a child if:

   (a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and

   (b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.

   (2)For the purpose of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.

   (3)For the purpose of this regulation, rights of custody may arise:

   (a)by operation of law; or

   (b)by reason of a judicial or administrative decision; or

   (c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.

7. The child was habitually resident in the England, a Convention country, immediately before her removal to and subsequent retention in Australia (subreg 4(1)(a)).

8. I am satisfied that “rights of custody” in relation to the child is attributed to the father under a law in the United Kingdom. See the approach taken in McCall & McCall; State Central Authority (Applicant); Attorney General (Intervenor) (1995) FLC 92-551 per Nicholson CJ, Ellis and Fogarty JJ.

9. The mother does not contest that the father was a joint guardian of the child and obviously the mother, father and the child resided together as a family immediately before the removal of the child from England.  The mother concedes that it was only after her arrival in Australia that the father was advised of the mother’s intention not to return the child as discussed with him.

10. The “rights of custody” that have been attributed to the father by operation of law in the United Kingdom clearly fall within the definition of “rights of custody” within the meaning of the Child Abduction Regulations.

11. A removal or retention of a child is in breach of “rights of custody” if the State Central Authority establishes simply that the removal, or retention, is “contrary to” or “interferes with” “rights of custody” as defined in art 5 of the Hague Convention (as reflected in reg 4 of the Child Abduction Regulations). See Director General; Department of Child Safety & S (2005) FLC 93-249 at [35].

12. The child’s removal to Australia was in breach of the father’s right to determine the child’s place of residence.  The mother’s removal has interfered with the father’s ability to exercise that right.  The State Central Authority has established that the child’s removal to and subsequent retention in Australia was in breach of the father’s “rights of custody” for the purpose of subreg 16(1A)(d).

13. I am further satisfied as to the matters referred to in subreg 16(1A)(e)(i-ii) namely, that the father was at the time of the child’s removal to Australia “actually exercising the rights of custody (either jointly or alone)” and/or the father “would have exercised those rights if the child had not been removed or retained”.

14. In any event, it is not contended by the mother that the father did not exercise his “rights of custody” prior to the child’s removal.

15. I am therefore satisfied that the child’s retention in Australia was wrongful within the meaning of subreg 16(1A).  I am therefore obliged to make a return order as requested by the State Central Authority subject only to the applicability of any of the exceptions contained in subreg 16(3). 

16. The mother understands that if she is to be successful in opposing the return order, she must satisfy me that one or more of the exceptions contained in subreg 16(3) of the Child Abduction Regulations apply namely:-

    (3)A court may refuse to make an order under subreg (1) or (2) if a person opposing return establishes that:

    (a)   a person, institution or other body seeking the child’s return;

    (i)…

    (ii)  had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

    (a)   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; or

    (b)  each of the following applies:

    (i)the child objects to being returned;

    (ii) the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

    (iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views;

17. The exceptions provide a means by which a respondent may resist an application for a return order despite the applicant establishing the factors referred to in subreg 16(1) of the Child Abduction Regulations (and by necessary corollary, by establishing that a wrongful removal or retention of a child has occurred with reference to the five factors in subreg 16(1A) of the Child Abduction Regulations).

18. Importantly, I am not required to refuse to make a return order merely because the mother has established an exception within the meaning of subreg 16(3) of the Child Abduction Regulations due to the residual discretion provided for by subreg 16(5).

19. Helpfully, it is not contended by the mother that she seeks to press that there was consent or acquiescence by the father to the removal and retention pursuant to subreg 16(3)(a)(ii).

20. Nor does the mother press subreg 16(3)(c) as a ground to resist a return order.  There is no evidence of any wishes of the child other than the mother’s assertion that the child is apparently resistive to seeing the father.  The mother’s evidence on this point was unimpressive.  The mother alleges that the child expressed an intention to run away if an attempt was made to put her on a plane.  The mother ultimately conceded that if accompanied, the child would not be resistant to returning to England or indeed, to any other place.  It is the mother’s intention to return with the child in any event.

21. There is no evidence that the child has expressed an objection to being returned.  Given the child’s age, such a contention would likely be afforded little or no weight.  The purported attitude of the child to return is a matter reported by the mother but not the subject of separate evidence.

22. The mother admitted that she has spoken to the child about the proceedings and apparently has informed the child of the father’s conduct and the prospect that the child may be returned.

23. It is clearly inappropriate for the mother to have had such a conversation with the child, particularly when the mother conceded that she did not discuss her intention to return with the child if a return order was made.

24. I do not consider that the child has attained an age and a degree of maturity that would justify any weight or regard being had to the child’s wishes or views and given that any conversation with the child about returning to England was based upon a false premise namely, that the child may be unaccompanied.

Subregulation 16(3)(b) – grave risk or intolerable situation.

1. The submissions of the parties were directed towards the applicability of this exception.  The submission on behalf of the State Central Authority is that there is no evidence of grave risk. The best that can be said is that the mother has “grave safety concerns for the child” arising from her observations that the father is negligent and deficient in his parenting capacity.

2. The mother argues that if a return order was made the child may be placed in an intolerable situation in that the child does not wish to leave Australia without being accompanied by the mother.

3. There is no suggestion that such an outcome would eventuate.  It is obviously a matter for the mother, but I am entitled to take the mother’s case at its highest namely, that if a return order is made the child will be accompanied back to the United Kingdom.

4. Accordingly, any belief on the part of the mother as to the care arrangements for the child upon the child’s return, can be no more than mere speculation.  The mother’s concerns may well have some validity if the parenting arrangements for the child were under consideration.  They are not.

5. The mother presents no evidence as to her mental or psychological health, nor that of the child.  There is no evidence of the mother having a fragile presentation or of having accessed psychiatric or psychological assistance either in Country C, the United Kingdom or in Australia.

6. The mother has entirely misconstrued the manner in which the Child Abduction Regulations are applied.

7. Judicial consideration has been given to the manner in which subreg 16(3)(b) is to be applied.

8. In DP v Commonwealth Central Authority (supra) Gleeson CJ said at [9]:-

   To my mind, it is unhelpful to say that reg 16(3)(b) is to be construed narrowly. In a case where there is no serious question of construction involved, such a statement may be misunderstood as meaning that the provision is to be applied grudgingly. The task of the decision-maker is to give effect to the regulation according to its terms. The meaning of the regulation is not difficult to understand; the problem in a given case is more likely to be found in making the required judgment. That is not a problem of construction; it is a problem of application.

9. At [44] Gaudron, Gummow and Hayne JJ said:

   These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and a “broad” construction of the regulation. If that is what is meant by saying that is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.

10. The onus of proof in establishing a subreg 16(3)(b) exception rests with the mother who opposes return.  The assessment as to whether there is a grave risk must be based on evidence of what may happen if the child is the subject of a return order.  I accept that the proof is not required to be overwhelming but can extend to a risk that a return order may expose the child to physical or psychological harm.

11. The mother presents no evidence of risk either directly to the child or by any detrimental effect on the mother’s level of functioning which thereby affects her ability to parent the child.

THE MOTHER’S VISA STATUS

1. The mother’s Response states in categorical terms that she is not able to reside in the United Kingdom because she cannot obtain a visa.  She states that she made numerous attempts to obtain a visa, but that for various reasons mostly directed to the lack of engagement by the father, she was never successful in obtaining a visa to gain permanent residency in the United Kingdom.

2. The argument has a consequence.  If the mother is not able to return to the United Kingdom and a return order is made, this would inevitably place the child in the care of the father.  If that occurs, then given the mother’s misgivings as to the father’s capacity to parent, she says the child may well be at risk.

3. The difficulty for the mother is that she now concedes an application can be made for a visa to issue which would allow her to return and importantly, remain in the United Kingdom.  The mother has simply chosen not to exercise that option.

4. It is not that the State Central Authority categorically asserts that the mother will be entitled to a visa, but rather, that her protestation of a visa application being rejected and therefore her inability to obtain a visa is either at best a misunderstanding on her part or at worst, a deliberate attempt to misrepresent the situation known to the mother namely, that upon an application being made the prospects of obtaining a visa were high.

5. The State Central Authority relies upon the affidavit of Ms H filed 1 February 2016.  That document confirms that one of the criteria for issuing a visa is that the father is a citizen of the United Kingdom.  Annexure LMH1 confirms that is more likely than not.

6. Annexure LMH2 is a letter from the Home Office directed to the mother and sets out the reasons for refusal.  Whilst it is not the Court’s position to interpret what was intended to be conveyed by that letter in terms of the likelihood of a visa being granted upon an application being made, the mother concedes that the letter provides a pathway for a renewed application and that in all likelihood the information that would be required is available to her.

7. I am satisfied that the assertions of the mother that she is not able to obtain a visa to return to the United Kingdom are without foundation.

8. Accordingly, upon a return order being made, the mother should be able to accompany the child back to the United Kingdom and if so advised consideration can be given to instituting proceedings in respect of parenting arrangements as between the parties.

9. I do not doubt that the mother would prefer to remain living in Australia.  Prior to the removal of the child from the United Kingdom, the father, the mother and the child were living in a settled environment.  The child attended school and it is a concession made by the mother that there was a level of duplicity in the representations made to the father in order to secure his consent.

CONCLUSION

1. The mother has failed to establish the matters referred to in the exception to a return order pursuant to subreg 16(3) of the Child Abduction Regulations.

2. In summary, the State Central Authority has established the matters referred to in subreg 16(1) and 16(1A) of the Child Abduction Regulations. Accordingly, I consider I have an obligation to make the requested return order.

3. I make orders that appear at the commencement of this judgment.

I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 February 2016.

Associate: 

Date:  17 February 2016