COMMONWEALTH CENTRAL AUTHORITY & SANGSTER
[2018] FamCA 765
•14 August 2018
FAMILY COURT OF AUSTRALIA
| COMMONWEALTH CENTRAL AUTHORITY & SANGSTER | [2018] FamCA 765 |
| CHILD ABDUCTION – Hague Convention – Objection to return – Grave risk of harm – Conditions to return. |
| Family Law (Child Abduction Convention) Regulations 1986 r 16(3) |
| DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401 De L v Director General Department of Community Services NSW (1996) 187 CLR 640 Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children to Appeal) [2015] EWCA Civ 26 Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192 B v K (Child Abduction [1993] 1 FCR 382 In re D (A Child)(Abduction: Rights of Custody) [2007] 1 AC 619; [2006] UKHL 51 McCarthy v McCarthy (1994) SLT 743 Re E (Children) (FC) [2011] UKSC 27 MW v Director-General, Department of Community Services [2008] HCA 12 TB v JB [2000] EWCA Civ 337 |
| APPLICANT: | Commonwealth Central Authority |
| RESPONDENT: | Ms Sangster |
| INDEPENDENT CHILDREN’S LAWYER: | Mr P Fitzgerald |
| FILE NUMBER: | HBC | 1189 | of | 2017 |
| DATE DELIVERED: | 14 August 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 3, 4, 5 & 6 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Sekler |
| SOLICITOR FOR THE APPLICANT: | Attorney General's Department – Australian Government Solicitor |
| COUNSEL FOR THE RESPONDENT: | Ms Mooney |
| SOLICITOR FOR THE RESPONDENT: | Dobson Mitchell Allport Hobart |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Pat Fitzgerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
Orders
IT IS ORDERED THAT:
The application of the Commonwealth Central Authority filed 21 December 2017 in relation to the child X born … 2003 (“X”) be and is hereby dismissed.
Within 35 days of compliance by the requesting parent, Mr Lahbabi, with paragraphs 4 and 6 of this Order, the children Y born … 2010 (“Y”) and Z born … 2013 (“Z”) be returned to The Kingdom of the Netherlands (“The Netherlands”) pursuant to Regulation 14 of the Family Law (Child Abduction) Regulations 1986 and in the company of the mother.
The mother do all acts and things necessary to facilitate the conditional return of the children Y and Z to The Netherlands, the child X be at liberty to travel with Y, Z and the mother on their return to The Netherlands.
Within 14 days the requesting parent:-
(a) pay the sum of €3,000 into an account nominated by the independent children’s lawyer and the independent children’s lawyer forthwith advise the requesting parent of the details of the account into which the monies are to be transferred and such monies be held until disbursed in accordance with paragraph 7 of this Order;
(b) pay into the bank account nominated by the independent children’s lawyer an amount specified by the independent children’s lawyer as necessary to purchase non-refundable economy class airfares for X, Y and Z (“the children”) and the mother from Hobart to City Z.
Within 24 hours of the arrival of the children in The Netherlands, the mother advise the independent children’s lawyer in writing or electronically that the children have entered The Netherlands safely and on the next working day the independent children’s lawyer notify the applicant Central Authority and the father that the children have been returned and the date upon which they entered The Netherlands and the applicant Central Authority notify the Central Authority in The Netherlands accordingly.
As soon as practicable the requesting parent do all acts and things necessary to obtain a declaration of enforceability or render enforceable as between himself and the mother according to the law of the Netherlands orders which provide as follows:-
(a) The requesting parent be restrained by injunction from contacting or approaching the children (or any of them) and from causing, permitting or suffering the children to be contacted or approached by his other family members for a period of three weeks from the date of the return of the children to The Netherlands;
(b) The requesting parent be restrained by injunction from attending at, or knowingly being within 50 meters of any place at which the children (or any of them) or the mother reside, attend school or are employed otherwise than is provided by an order of a court of competent jurisdiction in The Netherlands;
(c) The requesting parent be and is hereby restrained by injunction from instituting any parenting proceedings in relation to the children (or any of them) which require the mother to prepare documents or to appear at court earlier than the expiration of three weeks following the return of the children to The Netherlands;
(d) Until or unless a court of competent jurisdiction in The Netherlands orders otherwise or for the period of three weeks following the return of the children to The Netherlands, whichever last occurs:-
(i)The children reside with the mother;
(ii)The mother have sole parental responsibility for the children such as will enable her to enrol the children at school and seek medical or like treatment for them and to receive any government income tested allowance, pension or benefit with which to support herself and the children;
(iii)The requesting parent and the mother be and are hereby restrained by injunction from causing, permitting or suffering the children, or any of them, to be removed from The Netherlands without the prior written consent of the other parent;
(iv)The mother inform and keep informed the Central Authority for The Netherlands or its nominee of the residential address and contact details of the children, and any changes thereto, AND IT IS REQUESTED that the said Central Authority (or its nominee) not disclose those details to the father otherwise than pursuant to an order of a court on competent jurisdiction in The Netherlands.
(e) An order in accordance with paragraph 5 of this Order.
The independent children’s lawyer disperse the monies referred to in paragraph 4 hereof as follows:
(a) As to the monies referred to in 4(b), in payment of the return airfares for the children X and Y together with the mother and X on economy class air tickets;
(b) As to the monies referred to in 4(a), to the mother within 24 hours of the children Y and Z having been returned to The Netherlands in her company;
(c) Otherwise, by prior written agreement between the mother and the applicant Central Authority.
Until a letter from an officer of the Secretary of the Attorney General’s Department, Commonwealth Central Authority is received by the Australian Federal Police advising of the travel arrangements made for the return of the children Y, Z and X to the Netherlands, the Australian Federal Police retain the name of the children on the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia.
Paragraph 1 of the Order made by the Honourable Justice Benjamin on 21 December 2018 (being the order placing the children Y, Z and X on the Airport Watch List) be discharged upon presentation of the children X, female, born … 2003, Y, female, born … 2010 and Z, female, born … 2013 for boarding the flight to the Netherlands as advised by the officer of the Secretary of the Attorney General’s Department, Commonwealth Central Authority AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by removing the said children from the Airport Watch List upon presentation of the children for boarding.
A sealed copy of these orders be provided by the Melbourne Registry of the Court to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the police Forces and services of the States and Territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
Paragraph 2 of the Order made by the Honourable Justice Benjamin on 21 December 2018 (being the order for the surrender of the passports of the mother and the children Y, Z and X) be discharged and the mother be at liberty to collect all and any of the passports upon presentation of this Order.
Upon presentation of the mother and the children at the airport for boarding the nominated flight to the Netherlands paragraph 4 of the Order made by the Honourable Justice Benjamin on 21 December 2018 (being the order restraining the mother from changing the usual day to day residence of the children) be discharged.
For the avoidance of doubt, the Regulation 26 report by Ms B dated 16 March 2018 may be published by the Respondent Mother and/or Father and/or any representative for the children for the purpose of obtaining advice, giving instructions, and/or participating in negotiation, mediation and proceedings in The Netherlands and/or applying for legal assistance to do so.
The time within which any Notice of Appeal may be lodged be, and is hereby, extended to one month following the publication of my reasons for decision.
There be liberty to the parties to apply on short notice in relation to implementation of this Order including the obtaining of enforceable orders in The Netherlands pursuant to Chapter IV of the Hague Convention of 1996 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
IT IS DIRECTED:
That all exhibits tendered in these proceedings remain on the Court file.
That the Subpoenaed Documents Clerk of the Hobart Registry of the Court return any documents produced on subpoena to the owner after the expiry of the time in which an appeal may be lodged.
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 & Sangster 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 |
FILE NUMBER: HBC 1189 of 2017
| COMMONWEALTH CENTRAL AUTHORITY |
Applicant
And
| Ms Sangster |
Respondent
REASONS FOR JUDGMENT
Index
Orders
REASONS FOR JUDGMENT
Index
Introduction
Extension of time in which to file a Notice of Appeal
Family members
Events Since Removal and procedural history
Legal and procedural structure
Onus of proof
Standard of proof
The law: Objection to return (r.16(3)(c))
The law: Grave risk of harm (r.16(3)(b))
Evidence
The Regulation 26 report
Impression of the witnesses
The mother
The father
The family consultant
The children
X
Y and Z
Allegations of Family Violence
Impact of Return on the Children
Conditions on return
Conclusion on grave risk of harm
Conclusion on objects to return
X
Y
Discretion to refuse to return X to The Netherlands
Conclusion
Introduction
On 1 January 2017, Ms Sangster (“the mother”) removed children, then aged 13, six and three years, from The Netherlands to Australia without the consent of their father. By application filed on 21 December 2017, the Commonwealth Central Authority (“CCA”) seeks the return of the children to the Netherlands pursuant to reg.16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The application is made at the request of the father, Mr Lahbabi (“the father” or “the requesting parent”).
The Regulations implement into Australian law The Convention on the Civil Aspects of International Child Abduction was concluded at the Hague on 25 October 1980 (“the 1980 Convention”).
The policy of the 1980 Convention is that disputes are best determined by the courts of the country in which the child belongs and which reflects the greatest degree of integration by the child in a social and family environment. In the language of the 1980 Convention, that is called the child’s state or country of habitual residence. The precept is that a parent should not be able to unilaterally chose a forum to the disadvantage of the other parent and place themselves and the child beyond the jurisdiction in which most of the evidence, relevant to ascertaining optimal parenting arrangements, is located. The 1980 Convention operates as a forum selection treaty which provides for the mandatory return of a wrongfully removed or retained child to their place of habitual residence in all but exceptional circumstances. The best interests of the particular child is not a pre-condition to return. Whilst the return of the child to the state of habitual residence facilitates determination of parenting arrangements by the courts of that state, there is no requirement for proceedings to be instituted.
The return application is opposed by the mother. She admits that her removal of the children was wrongful within the meaning of regulation 16(1A) of the Regulations but contends that various exceptions within the Regulations apply to the children, or one of them. The objections initially raised by the mother were as follows:-
a)That the father has consented or acquiesced to the children remaining in Australia;[1]
b)That the two oldest children, (aged 14 and seven years) object to returning to The Netherlands;[2]
c)That returning the children to The Netherlands would expose each them to a grave risk of physical or psychological harm arising from family violence at the hands of the father and/or from these siblings being separated; [3]
d)That the proceedings are an abuse of process by the father.
The mother did not press the acquiescence exception or seek a permanent stay of proceedings on the basis of an abuse of process.
[1] Regulation 16(3)(a)(ii)
[2] Regulation 16(3)(c)
[3] Regulation 16(3)(b)
The issues which I am required to determine are:-
·First, whether the return of the children will expose them to a grave risk of psychological or physical harm or otherwise place them in an intolerable situation within the meaning of r.16(3)(b). Within this exception:-
oThe mother contends that the children will be at grave risk of family violence by the father either directly or indirectly.
oThe independent children’s lawyer contends that the return will place the children grave risk of being placed in an intolerable situation by having to return to an environment of high level of parental conflict which, it is alleged, will impact adversely on the mother’s emotional well-being and functioning.
·Second, whether X objects to return within the meaning of r. 16(3)(c).
·Third, if the children (or any of them) are to be returned to The Netherlands, the mother and the independent children’s lawyer seek that the return be subject to various conditions. The court has power[4] to impose conditions on the return irrespective of whether an exception to return applies.
·Fourth, after finding that X objects to return in the relevant sense, whether I ought to exercise the resultant discretion to refuse to order her return.
[4] Regulation 15(1)(b) and (c)
I have found that the grave risk of harm exception does not apply to any of the children. Y (aged seven) and Z (aged four) will conditionally be returned to The Netherlands.
I have determined that X, who is 14 years old, does object to being returned to The Netherlands within the meaning of the Regulations. Further, that I will exercise my discretion to refuse to make an order that she return. This does not necessarily mean that X will remain in Australia or be separated from her mother or her younger siblings. The mother says that she and X will accompany Y and Z back to The Netherlands and X has confirmed to the expert family consultant that, whereas she does not want to return to The Netherlands, she feels unable to remain in Australia without the support of her mother and younger sisters.
Extension of time in which to file a Notice of Appeal
On 24 July 2018 I pronounced the Order set out at the commencement of these reasons and said that I would deliver my reasons subsequently. These are those reasons. Whilst an appeal lies from orders the parties are entitled to have reasons for decision before assessing whether they wish to appeal. Accordingly, I extended the period within which a Notice of Appeal can be filed to commence on delivery of these reasons which is the date that they bear.
Family members
The father was born in Country C and is aged 50 years. He is a citizen of Country C and of Australia. He is a permanent resident of Holland. His primary source of income is pension or unemployment benefit paid by the Dutch government of €1,100 per month. He initially gave evidence that he was not employed outside the home but then said that he has part time employment as a cleaner for which he earns €500 per month. He has previously been employed as a driver. He currently resides in a three bedroom rented apartment in City Z. This is the former family home of which the mother was awarded sole occupancy rights, as between herself and the father, on their divorce in April 2016. The mother has not been at the property since 31 December 2016. The father speaks English, Dutch and Arabic. He gave evidence in English. The father has not re-partnered.
The mother was born in Australia and was raised in Tasmania. She is aged 44 years. She relinquished her Australian citizenship to acquire Dutch citizenship in 2006. In July 2017, after the wrongful removal of the children to Australia, she acquired permanent residency in Australia and in December 2017 and re-acquired Australian citizenship. She also remains a Dutch citizen. She has no right to reside in Country C. Before starting a family she was employed in the hospitality industry and she continued in that employment intermittently during the marriage as well as studying for and being employed in aged care. She is currently undertaking business studies at a Technical and Further Education institution in Tasmania with a view to eventually obtaining employment in administration. She is wholly reliant on income tested pensions and benefits from the Australian government which amount to about $2,800 per month of which half is paid for the four bedroom private rental property in which she and the children reside in Town G under a 12 month lease entered into on 22 December 2017. The mother has not re-partnered.
The mother and father have six daughters. The application directly concerns only X, Y and Z although it is necessary to know something of the other children to put the application into context:-
a)Ms D (23 years old) resides in City Z. Ms D ceased to reside with the family at age 16 when she entered a children’s refuge. She is married but recently separated from her husband. Ms D is estranged from the father and from Ms E (20 years old) and Ms F (18 years old). She residing at an address which she is not prepared to disclose.
b)Ms E (20 years old) was born in Australia. She resides with the father in City Z, works in retail and is self-supporting. Ms E resided with the mother post separation and paid her own way to come to Australia with the mother and the three youngest children on 31 December 2016. She departed The Netherlands unbeknownst to the father and Ms F. Ms E remained living with the mother until her return to City Z in March 2017. On her return to The Netherlands, Ms E resided with Ms D and Ms D’s husband and then moved to live with the father and Ms F in the family apartment. The mother’s evidence is that before Ms E returned to Australia, she told the mother that she had only accompanied the mother to Australia to see her settled and forewarned the mother that she would not be able to communicate with her once back in City Z. Ms E has not communicated with the mother; the father says that is because they are estranged.
c)Ms F (18 years old) was born in Australia. She resides with the father, attends school and works part time in retail. When Ms F was 13 years old, she ran away from the family and was accommodated in a government run youth camp for three months. She then returned home. Ms F was residing with the mother and when the mother and the three youngest children left for Australia. The mother and other children concealed their plan to leave City Z from Ms F because they thought that she would tell the father. Ms F is estranged from the mother.
d)X (14 years old) was born in City Z. She resides with the mother and younger sisters in Town G, Tasmania. She is a student in Year 9 at High School in Town G.
e)Y (7 years old) was born in City Z. She resides with the mother in Town G, Tasmania. She is a student in Grade 2 at Primary School in Town G.
f)Z (4 years old) was born in City Z. She resides with the mother in Town G, Tasmania and is at kindergarten at Primary School in Town G.
The personal characteristics and presentation of X, Y and Z to the family consultant and otherwise are discussed in detail later in these reasons.
The parents are Muslim and the six children have been raised in the Islamic faith.
Henceforth, any reference to “the children” is a reference to the children X, Y and Z.
The maternal grandmother of the children resides in Suburb U which is a suburb of Hobart. Upon their arrival in Australia, the mother and four girls went to live in Suburb U and the three youngest children were enrolled in local schools. Ms E left from there to return to City Z in March 2017. The mother and girls remained in Suburb U until January 2018 when they relocated to Town G which is in the north east of Tasmania.
The father has family members, including his sister and a niece, who live close to the rented family apartment in City Z. His evidence is that his family are very supportive of him, emotionally and practically.
Events Since Removal and procedural history
On 1 January 2017 the mother and the children, together with Ms E, travelled to Australia. Ms F was asleep in the apartment. She thought that her sisters and mother were away from home celebrating Ms E’s birthday.
On 4 January 2017 the father became aware that the mother and children were with the maternal grandmother in Tasmania.
Later in January 2017, the mother applied for Australian citizenship for Z. Z’s citizenship was granted in due course and she now has an Australian passport. The father denies knowledge of, or consent to, the application for citizenship or a passport. Originally the mother relied upon Z’s acquisition of Australian citizenship as indicia of the father having acquiesced to the children remaining in Australia. It became clear, however, that the father did not have an active role in Z obtaining Australian citizenship. Because Z had been the only immediate family member not to already have Australian citizenship her acquisition of it was not as significant as it might have been in other circumstances.
In March 2017, Ms E returned to live in The Netherlands. This was about a month earlier than the date of her return aeroplane ticket but she changed the reservation with the mother’s assistance. The father’s evidence is that it was not until Ms E returned to The Netherlands that he understood that the mother proposed to retain the three youngest children in Australia permanently.
Between January and September 2017 the father had regular telephone communication with the children. The father asserts that this arrangement broke down on 7 September 2017. He blames the mother for unilaterally stopping his telephone communication with the children by blocking his number. The mother said that the communication was upsetting for the children because the father was derogatory of her and told the children that they should love him, obey him and come home. The family consultant subsequently, in March 2018, reported that any interim arrangement for the children communicate with their father would be counter-productive because:[5]
The relationships between all three children and Mr [Lahbabi] have deteriorated to such a point that communication via technology has become very difficult, all three children having now refused to talk to him. Considering Ms [Sangster’s] views and [X’s] estrangement, it is difficult to foresee [Y] and [Z] feeling supported to communicate with him.
[5] Family Report dated 16 March 2018, [63]
The children were placed in school and kindergarten local to the residence of the maternal grandmother. X encountered bulling and discrimination at school. The mother’s evidence was that students bullied X for wearing a head scarf and dressing according to Muslim custom. On one occasion, X had dirt rubbed into her hair and was told that her father was “a terrorist”. The mother gave X a break from school for three months and obtained some psychological counselling support for X on a government funded health plan from which X apparently benefitted.
On the 19 September 2017 the father made an application to the appropriate authority in The Netherlands for the return of the children under the 1980 Convention and in due course the request was transmitted by the central authority of The Netherlands to the applicant Commonwealth Central Authority in Australia.
The father’s request was made nine months after the mother’s wrongful removal of the children and six months after the father said he realised the mother proposed to retain the children in Australia permanently. His evidence was that he experienced bureaucratic impediments in lodging his request. This strikes me as unusual. However, nothing turns on the delay. As long as an application for return is filed in the requested state within one year of the wrongful removal or retention (as is the case here), the return of the child is mandatory unless an exception is made out. If the application is filed more than one year after the wrongful removal or retention (which is not the case here), r.16(2) provides that, in addition to the usual exceptions, the child will not be returned if the respondent establishes that the child is settled in their new environment.
Unbeknownst to the mother, on 21 December 2017 the Australian Central Authority filed a Hague Convention application initiating proceedings[6] in the Family Court of Australia seeking the return of the children which was subsequently served on her.
[6] Form 2, sub-regulations 14(1) and (2).
On 22 December 2017 the mother signed a 12 month lease on rental accommodation in Town G, a substantial township in northern Tasmania which is about 4 hours by car, from the maternal grandmother’s residence in Suburb U in the south of Tasmania.
On 22 December 2017 Orders were made by His Honour Justice Benjamin restraining the mother from removing the children from the Commonwealth of Australia and placing the children on the Australian Federal Police Family Law Airport Watch List Alerts. Further, orders were made requiring the mother to surrender all current passports and airline tickets relating to the children and herself to the Hobart Registry of the Family Court of Australia. The mother was restrained from applying for any additional passports or travel documents for or on behalf of the children. She was also restrained from changing the children’s usual day to day residence from the premises where she and the children were currently residing in Tasmania without the consent of the Australian Central Authority. The children were permitted to remain in her care.
On 25 January 2018 the mother filed an answer and cross-application opposing the orders sought by the father. The mother sought orders that the children be allowed to remain living with her in Australia.
On 2 February 2018 the mother filed an amended cross-application seeking orders that:
a)the father’s application filed 21 December 2017 be dismissed;
b)the children remain living with her in Australia;
c)the father spend time with the children in Australia on such terms as agreed between the parties in writing or as ordered by the Family Court of Australia;
d)for the purposes spending time with the children the father be restrained from removing them from Australia unless otherwise agreed between the parties in writing;
e)the father bear the mother’s costs of and incidental to the proceedings; and
f)such further Orders as the Court deems appropriate.
Regulation 19 provides that where a return application is on foot, a court must not make a parenting order, except an interim order, until the return application is determined. Orders described at in (b) to (e) of the mother’s application are not appropriate for me to entertain in these proceedings. Part XIIIAA – Division 4 – International protection of children of the Act is also engaged. It implements into Australian law the 1996 Child Protection Convention[7] (“the 1996 Convention”). Under Article 7 of the 1996 Convention, the state of habitual residence retains preeminent jurisdiction over the children notwithstanding that they are present in Australia. Section 111CE of the Act prohibits our family courts making anything other than an “urgent” order in this proceeding. An urgent order can be made under s.111CD(1)(b) of the Act and I discuss this later in the context of conditions to return.
[7] The full title of which is The Convention on Jurisdiction, Applicable Law. Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996
On 1 February 2018 Justice Benjamin made an Order setting the matter down for trial and directions for the filing of trial documents. His Honour also made Orders for the preparation of a Family Report pursuant to Regulation 26. The Independent Children’s Lawyer was directed to investigate, and if appropriate, arrange for a specialised Hague Mediation to be convened between the parents and himself following the release of the Regulation 26 report.
The parents and the children were interviewed on 22 February 2018 by the family consultant. The father was interviewed by video link, the mother and the children were interviewed in person.
On 16 March 2018 the Regulation 26 Report was released. I ordered that a copy of the r.26 Report be forwarded to the Central Authority in The Netherlands.
The independent children’s lawyer, Mr Fitzgerald, has played an active and constructive role in this proceeding. Prior to the trial, the ICL:
· met with the children prior to them seeing the family consultant;
· arranged for a senior female independent children’s lawyer to assist X through the process, as X had requested that a female practitioner be involved;
· made arrangements with Victoria Legal Aid for specialist mediators in order to assist the parties to resolve the matter (an offer ultimately not availed of);
· with the assistance of the CCA, the independent children’s lawyer sought information pursuant to the 1996 Convention, in relation to what support services were available in The Netherlands, in the event of the return of the children;
· encouraged the mother to set out what her proposed orders were in the event that the children were ordered to return to The Netherlands; and
· generally oversaw the exchange of relevant information which enabled the parties to prepare for the outcome of the proceedings.
The children’s interests have been well represented by Mr Fitzgerald.
Legal and procedural structure
The 1980 Convention entered into force between the Netherlands and Australia on 1 September 1990.
It is the Regulations, and not the 1980 Convention, which has the force of law in Australia.
Australia is one of the few contracting states to the 1980 Convention in which return proceedings are not prosecuted by the left behind parent. Return proceedings are prosecuted by, and at the expense of, the Australian Central Authority or a nominated State Central Authority. The requesting parent is merely a witness in the Central Authority’s case. The respondent mother has the carriage of her own case as does any independent children’s lawyer.
Not every unilateral removal of a child across international borders qualifies for a return of the child under the 1980 Convention. The applicant bears the onus of proving that the removal of the children from The Netherlands was wrongful within the meaning of Reg. 16(1A). As indicated, all of the jurisdictional facts in this regard are conceded by the respondent mother and the independent children’s lawyer in respect of each child. Those facts are:-
a)the child is under 16 years;
b)the child was habitually resident in the Netherlands immediately prior to her removal to Australia;
c)immediately prior to the removal, the father had rights of custody[8] in relation to the child under the law of The Netherlands;
d)the removal of the child was in breach of the father’s rights of custody;
e)at the time of the removal the father was actually exercising the rights of custody or would have exercised those rights had the child not been removed.
[8] rights of custody is defined by Reg 4 and 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
Once certain jurisdictional facts are established, as is the case here, the return of a child is mandatory unless the court is satisfied that one or more of the exceptions to return is made out. In the running of this case, the relevant exceptions are:-
a)Whether the older two children or either of them object to being returned to The Netherlands within the meaning of reg. 16(c) which implements the third limb of Article 13 of the Convention.
b)Whether there is a grave risk that the return of the children (or any of them) to The Netherlands would expose one or more of the children to physical or psychological harm or otherwise place a child in an intolerable situation within the meaning of reg.16(b) which implements Article 13(b) of the Convention.
Whereas I have referred to the “children”, any exception and any resulting discretion which arises as a consequence of the exception being found to apply must be considered and determined in relation to each child individually.
Where an exception is found to apply, the court has a discretion to refuse return. The matters relevant to the exercise of that discretion include the best interests of the child. I return to what other factors inform the exercise of that discretion later in these reasons.
Onus of proof
The respondent mother bears the onus of proof in relation to whether the exceptions relied upon by her are made out. That said, I would observe the comments of Callinan J in the High Court case DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services[9] that “despite the language of regulation 16(3), the ordinary rules in relation to the onus of proof in civil litigation may not always be able to be applied in an entirely unqualified way in an application brought under the regulation.[…] one of the rules of evidence is the rule in Blatch & Archer and referred to recently in this Court in Vetter & Lake Macquarie City Council and Marshall & Director‑General, Department of Transport, that all evidence is to be weighed and assessed by courts having regard to the capacities of the parties to adduce it.”
[9] (2001) 206 CLR 401 [186] – [187]
Considerable effort was made to obtain information from The Netherlands. Exhibit “CCA4” is correspondence received from the Dutch Central Authority on 23 March 2018. Inter alia, the letter stated:
·The Dutch Central Authority were unable to obtain information from the Dutch Youth Protection Agency that was involved with the family as Dutch Law forbids the agency to share information, without the consent of all parties involved, when their last involvement with the family took place over a year ago;
·However, both parents (as parties concerned) are able to ask the Dutch Youth Protection Agency to provide them with all relevant documents;
·The Dutch Central Authority was unable to obtain information about police involvement as Dutch law prohibits criminal information being passed on to third parties without legal provision;
Exhibit “CCA2” is a bundle of correspondence which is the wife’s authority to the Youth Protection Agency in City Z requesting their release of information in accordance with their procedures. I am persuaded that the mother variously took reasonable steps to obtain evidence from police, social workers and protective agencies in The Netherlands but faced bureaucratic barriers in doing so.
On the separate issue of the exercise of any discretion to refuse to return the children to the Netherlands, which arises in the event that an exception to return is found to exist, the parties bear the onus of proof for the result for which they contend.
Standard of proof
As required by section 140 of the Evidence Act 1995 (Cth) I will apply the balance of probabilities as the standard of proof.
The law: Objection to return (r.16(3)(c))
Regulation 16(3)(c) provides that return can be refused where the court is satisfied that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take into account the child’s views.
Professor Elisa Perez-Vera’s Explanatory Report to the Convention identifies the exception in relation to a child’s objection to return as one of the most significant compromises reached by the framers of the Convention. She discusses the background to Article 13 in the following terms, to which I have regard generally:
In addition, the Convention also provides that the child’s views concerning the essential question of its return or retention may be conclusive, provided it has, according to the competent authorities, attained an age and degree of maturity sufficient for its views to be taken into account. In this way, the Convention gives children the possibility of interpreting their own interests. Of course, this provision could prove dangerous if it were applied by means of the direct questioning of young people who may admittedly have a clear grasp of the situation but who may also suffer serious psychological harm if they think they are being forced to choose between two parents. However, such a provision is absolutely necessary given the fact that the convention applies, ratione personae, to all children under the age of sixteen; the fact must be acknowledged that a child of, for example, fifteen years of age, should be returned against its will. Moreover, as regards this particular point, all efforts to agree on a minimum age at which the views of the child could be taken into account failed, since all the ages suggested seemed artificial, even arbitrary. It seemed best to leave the application of this clause to the discretion of the competent authorities.
In the early days of the operation of the 1980 Convention in Australia, this exception to return was construed so narrowly that it was virtually impossible to invoke. That artificial standard was put to rest in Director General NSW Department of Community Services v De Lewinski (1996) FLC 92-674. A decision in which Nicholson CJ commented that “a Court should not expect children to necessarily express their views within adult formulations”[10]. The minority view of Nicholson CJ was upheld by the High Court in De L v Director General Department of Community Services NSW[11]. In 2000 section 111B(1B) was inserted into the Family Law Act 1975 (Cth).
[10] (1996) FLC 674, 83, 016.
[11] [1996] HCA 5.
I may refuse to make a return order if the person opposing return establishes that:-
·the child objects to being returned; and
·the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and
·the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views.
The exception must be raised by the taking parent at least initially but, thereafter, any party may adduce evidence in that respect.
A clear statement of the law in the United Kingdom is found the judgment of Black LJ, as she then was, in Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children to Appeal)[12]. There, Black LJ described a two-stage test which is concisely summarised by the Hon. Justice MacDonald (Deputy Head of International Family Justice for England and Wales)[13] . First, there is a “gateway” stage. Namely, an examination of whether, as a matter of fact, the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Second, a ‘discretion’ stage, at which the court must consider not only the nature and strength of the objections but a much wider range of considerations, including whether they are authentic and rational as opposed to the product of influence by the taking parent, and the extent to which the objections coincide with, or are at odds with the child’s welfare. Within this context, in Black LJ articulated the following points:
a)Does the child object to being returned? The exercise of answering this question should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.
b)Whether a child objects is a question of fact. The child’s views have to amount to an objection before Article 13 will be satisfied. An objection in this context is to be contrasted with a preference or wish.
c)The objections of the child are not determinative of the outcome but rather give rise to a discretion. Once that discretion arises, the discretion is at large. The child’s views are one factor to take into account at the discretion stage.
d)There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to ‘take account’ of the child’s views, nothing more.
e)At the discretion stage there is no exhaustive list of factors to be considered. The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available. The court must give weight to Convention considerations and at all times bear in mind that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly.
There is, of course, an interrelationship between the two stages from the perspective of the voice of the child. In applying the two-stage test, the Court of Appeal was enjoining the trial judge not to adopt an overly prescriptive, over intellectualised approach at the “gateway” stage and not to adopt an over engineered approach to the “discretion”.
[12] [2015] EWCA Civ 26
[13]“Hearing the Children's Objections1 Some perspectives from a judge hearing cases in England and Wales” (2018) XXII HCCH The Judges’ Newsletter on International Child Protection 45
In Re T (Abduction: Child's Objections to Return)[14] Ward LJ made the following observations (with which I agree) about whether it is appropriate to take account of a child’s objection:
So … that requires an ascertainment of the strength and validity of those views which will call for an examination of the following matters, among others:-
(a) What is the child’s own perspective of what is in her interests, short, medium and long term? Self-perception is important because it is her views which have to be judged appropriate.
(b) To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear to the child to be so grounded?
(c) To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent?
(d) To what extent will the objections be mollified on return and, where it is the case, on removal from any pernicious influence from the abducting parent?[15]
These are very helpful considerations when assessing evidence of the child’s stated objections.
[14] [2000] 2 FLR 192.
[15] Ibid 204.
I do not draw a distinction between the principles and points articulated by Black LJ in Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children to Appeal) and by Ward LJ in Re T (Abduction: Child's Objections to Return)[16] and the current state of Australian law and jurisprudence under r.16(3)(c). These are the principles which I will apply in this case.
[16] [2000] 2 FLR 192.
The law: Grave risk of harm (r.16(3)(b))
Regulation 16(3)(b) provides an exception to mandatory return where the court is satisfied that there is a grave risk that the return of the child will expose the child to physical or psychological harm or otherwise places the child in an intolerable situation. This regulation implements Article 13b of the Convention.
In our High Court, in DP v Commonwealth Central Authority; JLM v Director-General NZW Department of Community Services[17] the majority (Gaudron, Gummow and Hayne JJ) held that the in interpreting r.16(3) it is “to be given the meaning its words require”. They elaborated:-
That is not to say, however, that re 16(3)(b) will find frequent application. It is well nigh inevitable that a child, taken from one country to another without agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Article 13(b) of the Convention intend to refer to more than this kind of result when the speak of grave risk to the child of exposure to physical or psychological harm on return.”
[17] (2001) 206 CLR 401, [2001] HCA 39
The mother’s grave risk contention was originally twofold[18]. First, the children would be exposed to family violence and abuse if they were returned to The Netherlands and were placed in the father’s care. Second, if only Z and Y are returned, they would suffer psychological harm as a result of being separated from their other sibling or siblings (see B v K (Child Abduction [1993] 1 FCR 382).
[18] Respondent’s Case Outline filed 29 March 2018 [9]
The Independent Children’s Lawyer submitted, and I agree, that it is useful to have regard to the nature and extent to which the allegedly intolerable situation or harm existed prior to the wrongful removal.[19]
[19]Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478 per Thorpe LJ
In Re D (A Child)(Abduction: Rights of Custody)[20] Baroness Hale commented the “authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child.”
[20] [2007] 1 AC 619; [2006] UKHL 51
At the trial, it was common ground that the children will stay together. That is, even if the return application in relation to X is refused under r 16(3)(c), she wishes to remain with the mother and her younger siblings and will accordingly, return with them to The Netherlands if they are ordered to return.
It was also recognised that the return under the Regulations is to the state of habitual residence and not to the requesting parent. On the facts of this case, a return under r.16(1) will not automatically result in any of the children being “placed in the father’s care”. Of course there is no guarantee that will not happen but, if it were to happen, it would be due to an agreement between the parents, acquiescence by one parent or intervention of a court of competent jurisdiction in The Netherlands.
It is settled law that assessment of grave risk of harm must be exposure to harm as a consequence of return and not exposure to harm which might emerge at some later time if, after return, an unsatisfactory situation is allowed to persist without alteration. [21]
[21] Per Lord Prosser in McCarthy v McCarthy (1994) SLT 743, 747
Here, the Independent Children’s Lawyer contended that the grave risk of harm that the children would face if they returned to The Netherlands was the impact on them of their parents’ highly conflictual relationship and the deterioration of the mother’s emotional health which would reduce her ability to be emotionally available to the children. The independent children’s lawyer’s vigorous submission in closing addresses was that the evidence of the family consultant, to which I will come later in detail, established that the return of the children to The Netherlands would expose X and Y to additional grave risk of psychological harm otherwise place them in an intolerable situation because they reasonably feared that their mother’s mental state would deteriorate consistently with their experience of her in The Netherlands before and after her separation from the father.
The Independent Children’s Lawyer, whose submissions on emotional harm counsel for the respondent adopted, was particularly persuasive and would have carried the day but for the extent to which the left behind parent was prepared to support a conditional return by provision of funds and entering into a suite of safe harbour orders, all of which are discussed in detail below.
The harm or intolerable situation cannot be assessed in isolation. I will have regard to the extent that the respondent mother can help herself and the children as well as what the requesting parent and the state of habitual residence can provide to alleviate harmful an intolerable circumstances for the children.
I find the four step approach to Article 13b approved of by Baroness Hale and Lord Wilson, delivering the judgment of the Supreme Court, in Re E (Children) (FC) [2011] UKSC 27 to be helpful. With two modifications for local conditions, as discussed below, I respectfully consider the four step approach to describe the application of r.16(3)(b) in Australia. Baroness Hale and Lord Wilson stated:-
32. First, it is clear that the burden of proof lies with the “person, institution or other body” which opposes the child’s return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13b and so neither those allegations nor their rebuttal are usually tested in cross-examination.
33. Second, the risk to the child must be “grave”. It is not enough, as it is in
other contexts such as asylum, that the risk be “real”. It must have reached such a level of seriousness as to be characterised as “grave”. Although “grave” characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm.
34. Third, the words “physical or psychological harm” are not qualified. However, they do gain colour from the alternative “or otherwise” placed “in an intolerable situation”. As was said in Re D, at para 52, “‘Intolerable’ is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’”. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. […]if there is such a risk, the source of it is irrelevant: eg, where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child.
35. Fourth, article 13b is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home. […] if the risk is serious enough to fall within article 13b the court is not only concerned with the child’s immediate future, because the need for effective protection may persist.
36. There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.” (my emphasis)
The first Australian modification relates to the onus of proof which I have discussed above [42].
The second Australian modification is that our High Court has made clear that Hague return cases cannot be process driven. Our High Court endorses Hague return cases being dealt with as expediently as possible but, at the same time, has made it clear that it has reservations about disposition by summary hearing.
As was said by our High Court in De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 at 660-661:
The Convention requires the judicial or administrative authorities of Contracting States to “act expeditiously in proceedings for the return of children” (Art II). The system established for Australia by s 111B and the Regulations is one which engages the judicial power of the Commonwealth. Regulation 15(2), in its present form, obliges a court, so far as practicable, to give to an application such priority “as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows”. Prompt listing for hearing is one thing; an over-hasty and insufficient hearing is another. That point is made in the concluding terms of reg 15(2) set out above. Further, there may be cases where, consistent with those precepts, some, even if restricted, cross-examination upon affidavits is appropriate to assist the court to reach a decision whether to refuse an order for the return of the child.
The plurality of Gummow, Heydon and Crennan JJ of the High Court in the decision of MW v Director-General, Department of Community Services [2008] HCA 12, a case about rights of custody for a New Zealand father, warned against “inadequate, albeit prompt, disposition of return applications.” Their Honours’ observed at [46] to [49] that (footnotes omitted):
… an application for a return order … is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in In re M (Children) (Abduction: Rights of Custody). The oral evidence in that Convention application was heard over two days.
Regulation 15(2) [Article 11] obliged the Family Court, "so far as practicable", to give to the application by the Authority "such priority" as would "ensure that [it was] dealt with as quickly as a proper consideration of each matter relating to the application allows". If within 42 days of its filing the application had not been determined, the Authority would have been empowered by reg 15(4) to seek from the Registrar a written statement of the reasons for the absence of a determination. Regulation 15 reflects the exhortation in Art 11 of the Convention that "judicial or administrative authorities" act "expeditiously" in these matters and the reference in Art 7 to "the prompt return of children".
The judicial or administrative authorities which decide return applications in some Convention countries may not, under their legal systems, have the obligations to provide the measure of procedural fairness and to give reasons which generally apply in common law systems and which were observed here by the Family Court. Thus, in this country, the requirement of promptitude can be an onerous one.
Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another.
Evidence
The application is brought pursuant to Div.2 Pt.XIIIAA of the Family Law Act 1975 (Cth) (“the Act”) so the principles for conducting child-related proceedings and the exclusion of certain rules of evidence provided for in Div.12A Pt.VII do not apply to this case.
Regulation 29 provides that:-
·the applicant’s application or any document attached to or given in support of the application is admissible as evidence of the facts stated in that application or document (reg 29(2));
·affidavits of witnesses residing outside of Australia are admissible even if the witness does not attend for cross-examination (reg 29(3));
·the Court can take judicial notice of the law of The Netherlands (reg 29(5)(a)) and decisions of an administrative or judicial character by the authorities of The Netherlands (reg 29(5)(b)).
The CCA relied on the following documents:-
a)Form 2 Application initiating proceedings filed 21 December 2017
b)Affidavit of the father affirmed 8 March 2018;
c)Affidavit of Ms H, lawyer from the Netherlands, affirmed 30 March 2018.
The respondent mother relied on the following documents:
a)Form 2A answer and cross application filed 25 January 2018 which contains a lengthy affidavit by the mother;
b)Amended cross application of the mother filed 2 February 2018.
A Regulation 26 report was prepared by a family consultant and admitted into evidence. I discuss it in detail below.
There were numerous exhibits. All exhibits were put into evidence as evidence of the truth of what was contained therein with the exception of “C1” which was tendered as evidence of there having been communication between the mother and the child protection authority about access to historical records about the family but which was not professionally translated.
Exhibit “C3” is a record of direct judicial communications between myself and Judge Annette Olland who is the Liaisonrechter Internationale Kinderbescherming (Rechtbank Den Haag) or President of the Dutch Office of the Liason Judge International Child Protection in the Netherlands. These communications were undertaken with the consent of the parties to the proceedings pursuant to the Emerging Guidance regarding the Development of the International Hague Network of Judges and General Principles for Judicial Communications, including Commonly Accepted Safeguards for Direct Judicial Communications in Specific Cases, within the Context of the International Hague Network of Judges published by the Permanent Bureau of the Hague Conference. The communications were helpful in the case and I wish to express my appreciation to Judge Olland for her prompt responses.
On the second day of the proceedings, counsel for the CCA indicated that an application would be made for the CCA to adduce evidence from Ms E (20 years old). Counsel for the respondent mother indicated that application would be opposed and that she would likely get instructions to seek to adduce evidence from Ms D (23 years old). Ultimately, neither proceeded with applications for further evidence. This is an interim proceeding to determine forum. I draw no inferences from the fact that neither parent was supported by evidence of the adult children. All in all, it was better that the children were not asked to give evidence.
There are very many conflicts in the evidence of the mother and the father. Most of the disputed issues and facts are not crucial to this decision about forum and do not require determination. Where it was necessary and I was able to prefer the evidence of one parent over the other and find that evidence by one is compelling or inherently improbable, I will say so. Otherwise, I do not reject the sworn testimony of either parent.
My lack of conclusions about some factual disputes in the evidence of the father and the mother is a consequence of the nature of the proceedings. In forum selection proceedings, such as these, there is a tension between confining the evidence to that which is relevance could not be disputed and allowing evidence to be adduced which could conceivably become relevant on the broader issue of the exceptions to mandatory return under Reg.16(3). There were no objections to evidence. No party urged me to take a restrictive approach to the evidence. As it turns out, there was a significant amount of evidence which was contextual.
The Regulation 26 report
Regulation 26 provides that in proceedings under the Regulations, the court may direct that a family consultant report on such matters as the court considers relevant to the proceedings and to adjourn the proceedings to await preparation of the report. A family consultant is a social worker or a psychologist who is directly and exclusively employed by the Court to provide expert evidence on childhood development and parenting views after separation. The family consultant may report on any other matter that relates to the care, welfare or development of the child. On 1 February 2018, Benjamin J ordered that a Regulation 26 report be prepared in relation to the following specific matters:-
§Whether the child [X] (13 years) objects to being returned to The Netherlands and in particular:-
§Whether [X’s] objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
§Whether [X] has attained an age, and a degree of maturity, at which is it appropriate to take account of his or her views.
§In the event that [X] is found to object to return in the relevant sense and the court exercises its discretion to refuse return, whether the return of her siblings [Y] (7 years) and/or [Z] Lahbabi to The Netherlands either with or without the respondent mother expose either of them to a grave risk of physical or psychological harm or otherwise place either of them in an intolerable situation.
§Whether in the interim, that is between now and the final determination of the application, it would be in the best interests of the children (or any of them) to have communication with the father [Mr] Lahbabi and, if so, how frequently and under what conditions.
§To ask each child (and report her response):-
§If the court orders that that child be returned to The Netherlands, is there anything that would make the return easier for the child;
§If the court refuses the application for return is there anything that would make staying in Australia easer for the child?
§Any other matter which the family consultant considers bears on the interest of any or all of the children and ought to be brought to the attention of the Court.
For the purpose of completing the Reg. 26 Family, the Family Consultant had permission to inspect the Court file and all documents including documents produced on subpoena and released for inspection and any documents provided by the parties and/or the requesting parent through the independent children’s lawyer on notice to the other parties.
83.Benjamin J requested that the family consultant afford the independent children’s lawyer an opportunity to meet the children during the assessment process and this was done.
Preparation of the Reg. 26 report was assigned to family consultant Ms B. Ms B has a Bachelor of Social Work (Hon) (1981) and a Graduate Diploma in Legal Studies (1986) and a Masters in Applied Mental Health Studies (Child and Adolescent) (2017).
The father, the mother, X and Y were interviewed on 22 February 2018. An interpreter was arranged for the father for the Reg. 26 assessment but not used because the father preferred to speak English. The report indicates that the father was interviewed by telelink but he was actually interviewed by video conference facility between his home in City Z and the Hobart Registry. Z (four years) was observed but not interviewed by the family consultant. The report was published on 16 March 2018 and is in evidence.
The focus of the evidence was on the exceptions to return, namely the children’s objections to return and the grave risk of harm they would face if one or more of the children were returned to The Netherlands. In broad terms, the mothers’ evidence is that the father perpetrated family violence towards her throughout their relationship and after their separation, and that all six children were exposed to that violence.
Impression of the witnesses
The mother, father and the family consultant were cross examined.
The mother
The mother was a calm witness with the odd flash of humour but mostly she displayed a flat, almost weary and unemotional affect. Her presentation was consistent with the exhaustion and resignation frequently exhibited by victims of long term domestic violence who have to explain their experiences to multiple audiences who they are confident have had no personal experience akin to their predicament and are likely to be sceptical. The mother’s demeanour is not the basis on which I could be satisfied that the mother has suffered from domestic violence at the hands of the father but I am satisfied that her demeanour was consistent with her having done so.
The mother was a responsive witness who gave evidence against her own interest. An example was admitting that, in The Netherlands, she had lied to authorities about the father’s mistreatment of the children.
Counsel for the applicant Central Authority submitted, correctly in my view, that there were instances where the mother’s evidence suggested degrees of adaptation that were in her own favour. The primary example of that was the way that the mother had described the removal the father from the family home in City Z in January of 2016 as having to be done forcibly by police or court officials after the father refused to abide the order to vacate. Early in her cross examination the mother admitted that the father had left in compliance with the order, late and unhappily, but that no force or intervention by authorities preceded his departure. My impression is that the mother did not intend to deceive the court in that she did not, herself, make a distinction between the father vacating the home because he felt he had no choice (which is what occurred) and him being forcibly removed pursuant to court order (as incorrectly alleged by her). It remains, however, that she was an unreliable witness in that instance.
I regard the mother as a witness who endeavoured to be truthful but who frequently summarised her evidence and spoke generally when she should have been more particular and careful in her responses.
The father
The father was cross examined by video conference facility between his home in City Z and the Hobart Registry. He presented as a quick witted, garrulous, emphatic but largely non-responsive witness. Counsel for the applicant Central Authority pointed out that the father said that he was sleep deprived. She submitted that he was an excitable witness with high emotions but did not disagree that he was unresponsive.
I take into account that the mother had infinitely more exposure in this proceeding than the father. Her version for events played for the entire hearing whereas the father’s appearance was more of a cameo. Counsel for the mother submitted, accurately in my view, that the father was not sidelined. The Central Authority went out of their way to make sure that his material was detailed, translated and supported by documentary evidence in an inappropriate way. My impression was that the father said all he had to say. Prolongation of his cross examination would merely have produced more self-serving statements rather than responsive answers.
The father initially said that he was not employed outside the home but later admitted that he is earning an income as a room attendant or cleaner for €1200 per month. At this point, I clarified for the father that his responsibility was to tell the whole truth and I am satisfied that he understood.
The father’s unchallenged evidence before me was that he has family members, including his sister and a niece, who live close to the rented family apartment in City Z and that his family members would provide him with assistance including funds to meet any conditions to return which I may impose. Interestingly the evidence which he gave to the Court of City Z, and recorded at page 22 of the translation of the decision dated 10 December 2015 (Exhibit “C2”), on the determination of whether the wife should have sole use of the family home was “The husband requested that the wife’s request be dismissed. The husband stated he has no options to reside elsewhere temporarily. He only has a brother who lives in [Country P].” Counsel for the mother submitted that his evidence to the court in City Z appeared to be given untruthfully to support his desire not to be removed from the home.
In the face of the wife’s fairly specific allegations of family violence, the father gave blanket denials. One might have expected that he would recall even one event and explain what occurred from his perspective but he did not. There were two police reports in evidence before me in which the mother described the father’s violence, the authorities in City Z charged and prosecuted the father on family violence related charges. They did not obtain a conviction but there was likely to have been an underlying controversy. There is the history of the mother going to a shelter years ago and the more recent 90 day order to keep the peace, none of which the father responded to specifically. There was also X’s corroboration of the mother’s version of events and a photograph of the mother bruised. The corollary is that the mother has fabricated all allegations of violence by the father which I doubt is the case.
The father stated that he does not have a passport and has not had a Moroccan passport or any passport except for an Australian passport for seven years. That is clearly not correct. The father agrees that he visited Country C in August 2016, he says he travelled on his Australian passport. He provided that passport and it showed that he left The Netherlands but there was no stamp indicating entry into Country C. The mother alleges he has travelled to Country C frequently since at least 2013 and left her to look after the children, or most of them. The mother and the independent children’s lawyer urged me to find that the father was untruthful about not having a Country C passport. I won’t make that finding on the evidence. It is not necessary to do so.
The father has tendency to talk in absolutes. He stated that he would he would attend mediation with the mother in The Netherlands following the return of the children. However, in oral evidence before me he stated that he was not prepared to attend the mediation parallel to these proceedings, to which the independent children’s lawyer invited him, because “mediation is a waste of time. I am not doing this for mediation and to discuss things. I am doing this to get the children back” or words to that effect.
My impression is that the father is not a wholly reliable witness. That said, these are interim forum selection proceedings in which the ascertainment of facts, and therefore the issue of credit, do not loom as large as they would in a final determination of parenting proceedings.
The family consultant
Ms B was an impressive witness. Her report was thorough and well-reasoned. She was able to cogitate in the witness box and articulated her further, deeper considerations, particularly in relation to X and X’s objection to return. Counsel for the mother submitted the following about the family consultant’s evidence:
She answered questions readily. She had, obviously, taken her report away and given it some very careful and anxious thought since she wrote it, because that became very apparent when she started giving evidence. She took her task extremely seriously. She wasn't aligned with either party, quite clearly so. She wasn't accepting the mother's allegations of family violence at face value in any way, shape or form, and that's evident from paragraph 52 of her report.
She did, in my submission, keep an open mind and therefore – and that, in itself, gives the report some probative weight, and she was careful to try and keep herself within the remits of her brief, but she does see things absolutely from a child developmental perspective. Every sentence she uttered was coloured by the fact that she was thinking of the age of the particular child she was thinking of, and what they need to do to reach their full potential in life and, therefore, what they needed in their lives at that particular time, and that coloured all her evidence. Sometimes that's not going to sit with your Honour's task, and sometimes it is.
I concur with that view. I do not understand the family consultant’s evidence to be challenged by any party. I accept her evidence.
The children
The voices of the children were heard principally through the evidence of the family consultant who also gave evidence about their presentation, personal characteristics and the strength of feeling behind their objections and their maturity. The independent children’s lawyer met all of the children. My impression is that his impressions were consistent with those of the family consultant. The independent children’s lawyer was an advocate for the children’s best interests, to the extent that best interests considerations are relevant in these proceedings, and in this regard he was clear and forceful.
X
X was interviewed by the family consultant who described her as follows:[22]
27. [X] Lahbabi (aged 14 years and four months) presented as a healthy, well-spoken, cooperative adolescent. She spoke assertively and positively about being afforded the opportunity to air her views and talk about her circumstances and her family. She impressed as particularly articulate and thoughtful for her age and aware of the significance for her and her family of her opinions.
…
30. [X] described herself positively as “funny”, “unique” and “loving”, making others laugh. X said that she would “do anything” for her mother and younger sisters, while noting that she does “not like” her older sisters for turning against their mother. At another point in her interview she declared that she loves her older sisters like her younger ones.
[22] Family Report dated 16 March 2018
X reported to the family consultant that she is happy to have relocated to Town G and moved to the High School as she found adjusting to a new country and attending her previous school was “hard” as she was excluded and bullied.[23] She said she and her mother decided she needed a break and she took three months off school in 2017, and the issues improved somewhat after that.[24] She was more positive about the High School and says she has made new friends. She says however, that she misses her friends in City Z where she described having a sense of belonging.[25]
[23] Family Report dated 16 March 2018 [28]
[24] Family Report dated 16 March 2018 [28]
[25] Family Report dated 16 March 2018 [29]
In relation to her relationship with her parents, the family consultant describes X’s responses as follows:
31.[X] spoke in wholly negative terms about Mr [Lahbabi]. She said that she does not remember much of her childhood in [City Z] but thinks that her father caused her parents to separate because “he cheated on Mum”. She gave the example of her belief that he is a “bad person”, alleging that he “smuggled drugs” by couriering contraband by car with the family, noting that she thinks “he got away with it because nobody suspects a family”. She said that he is a “secretive” and “violent man”, having threatened to kill her mother by holding a knife to her throat. She said that she witnessed this incident. [X] said that she remembers her parents “fighting” verbally when they were together but that she could not remember how the arguments started. [X] also said that she thinks Mr [Lahbabi] is a “bad father”, having favourites among her sisters, [Ms F] being his most favourite. She said that her older sisters do not recognise him as a poor father in the way that she does because they are “under his spell”.
32.When talking about her relationship with her father, [X] said that she does not have a relationship with him. She said she still loves him and she also reminisced that they “had some good laughs”, but thinks that they never had as a strong relationship because he was never available; “he worked illegally as driver all night and slept all day”. However, she said that his “cheating” on her mother was the reason for the family breakup and that, since the divorce she has learnt more about her father and from having read “the things Mum wrote [in relation to the Court matter]”. [X] also spoke moralistically about her father’s smoking and hiding the fact that he sometimes drinks beer. She said that he lied to his mother about the beer drinking and that there were “probably lots more lies; like Mum said he [secretly] went to see his girlfriends many times”. [X] said that she had some “fun” memories of her father arriving home with special food for the family, but she now knows from what her mother has told her that he was “bribing us” to make “things” better and smooth over problems.
33.[X] spoke in wholly positive terms about Ms [Sangster]. She indicated their having a strong mutual understanding of each other and that she and that she and her mother are alike, her mother being her “best friend”. [X] said that since The Court proceedings commenced, she and her mother talk freely about her father now, noting that she has learnt a lot about her family from being in Australia and now also has a better relationship with her mother than when they lived in [City Z]. [X] said that “just being with Mum makes me happy” and recounted the times when, after her psychology sessions in Tasmania, she loved that she and her mother would have special time together, for instance going shopping.
34.[X] appeared frustrated when describing changes that she has noticed in her mother. She said that, while in Australia, until they became aware that Mr [Lahbabi] is seeking that they be returned to The Netherlands, Ms [Sangster] was “starting to relax”, less angry and happier. She blames her father for her mother having returned to a more upset emotional state.
The family consultant also said that “pairing it all down, purely, [the children’s] attraction to Australia [is] marginal. I don’t think it’s about living in Australia or being here. It’s about being in a place where they feel removed from…troubling memories, in a place where they can see their mother feeling happier, I think – X struck me as an optimistic child. She thinks she can really make a go of it here – is prepared to make a go of it here. The sense of actually Australia or – you know, [Suburb U] or [Town G], any of those places, in themselves, that was not the message I was getting, that we really want to live – Australia’s for us. It was much more the other things that I’ve spoken about… I don’t think it would have been her natural choice about – but the consequences for her have been that her mother seems so much better. She seems to have been revelling in feeling she has got a better relationship with her mother here. You get the sense that she actually thinks she got her mother back by coming here and I don’t think it was coming to this place. It was just to a place of sanctuary really. That’s – that’s the impression that I got.”
I asked the family consultant about the strength of X’s desire not to return to The Netherlands or to remain in Australia, and she said that X’s view was very strongly held; it was in at the highest end of the scale. The family consultant assessed X as wanting with “every fibre of her being” not return to The Netherlands.
In obtaining X’s views about returning to the Netherlands, the family consultant said:[26]
[X] was assertive and clearly communicated her objection to returning to the Netherlands. Her reason relates primarily to her father being “bad” and having caused her mother to be unhappy. She believes that 2018 represents a chance for her to settle into a new environment and school in Tasmania. [X] seemed unwilling to reflect in detail on any advantage to her in returning to [City Z], either in relation to her sisters and father or attending her former school. Her predominate message was to convey the upset that she would feel if she were required to return.
[26] Family Report dated 16 March 2018 [35]
In her oral evidence, the family consultant said she had extended her thinking around X’s objection since writing the report. Her evidence was that:
[After] re‑reading through the report and the notes, everything is there to suggest to me that [X] is – was telling me that she objected to return on a whole range of levels, not – not just returning to [City Z]. She objected returning to the geographic vicinity of where her father lives. But she also objected to returning to a place of past bad memories, a place where her mother was poorly, returning to a place of her parents being in high conflict, returning to the memory of her same house which seemed to be tied into the vicinity of her same school, returning to a whole lot of uncertainty which she was actually trying to herself as a 14 year old resolve like where – where could she live if she were to return, and very much a place where she felt – feels that her mother would do very poorly after she had seen her mother relax and do a lot less poorly in Australia. So I think that’s a fuller picture of [X’s] objection to returning. And it – and I think it’s a picture that is very nuanced and doesn’t actually mean that she particularly dislikes [City Z]. She ‑ the fact that she is open to possibly to one day returning to [City Z], I actually saw as a very healthy comment from her but also highlighted the fact to me that she just does not want to return there at this point.
X reported that if she returned, she would prefer to live in area apart from her former neighbourhood (where her father now resides).[27] The family consultant noted that X raised the option of living with her older sister, Ms D, as possibly a good way to settle back in if she is required to return; the way that her older sister, Ms E, did.[28] However, X also told the family consultant that no one can make any possible return to The Netherlands any easier for her; “Not a Judge, not anyone”.[29]
[27] Family Report dated 16 March 2018 [37]
[28] Family Report dated 16 March 2018 [37]
[29] Family Report dated 16 March 2018 [37]
In closing submissions, counsel for the CCA agreed that the restraint about the father not contacting the children following their return to The Netherlands should operate for “three weeks or the court in The Netherlands making an order to the contrary”.
When I asked if he thought the older daughters would also agree not to contact the children, he said “I think they’ll do what they have to do”; as they want their sisters to return to The Netherlands. I am not sure how to interpret the father’s response. In any event, the elder daughters are not parties to this proceeding and nor are they linked to this matter as the father is by virtue of being the requesting parent and a witness.
The care arrangements for the children post-return are a condition which must be reflected in orders which are enforceable in The Netherlands.
(e) No criminal prosecution of the mother arising out of the wrongful removal
The father also agreed that he would not cooperate with, or allow the mother to be charged with an offence arising out of her removing the children from Holland, he said “it’s the mother of my kids, I wouldn’t do that.” In any event, when this matter was raised, the CCA indicated that they had been provided with a letter of comfort from the prosecution services in The Netherlands which stated the mother’s removal of the children was neither being investigated, nor prosecuted. That letter of comfort was tendered as exhibit “CCA3”. It is not necessary for me to make a condition directed to the possibility of the mother being charged with criminal offences because it is already done. This is a condition which must be reflected in orders which are enforceable in The Netherlands.
(f) Moratorium on court proceedings for three weeks following the return of the children
The mother will require some time to settle the children following their return. She will also need sometime to prepare documents for any court proceedings which the father wants to institute. For the mother to face court proceedings within day of returning to The Netherlands is not conducive to a soft landing for the children. Each parent can institute proceedings whenever they want. The condition which I impose prohibits the parents from causing the other to have to produce documentation or attend court for the first three weeks after the children’s return.
Consequences if the conditions to return are not complied with
If the preconditions to return, such as payment of airfares and the €3000 are not met, the children will not be returned.
Similarly, if a suite of safe harbour orders are not rendered enforceable in The Netherlands, as described above, the children will not be returned.
I have made the date for payment by the father of the airfares and €3000 relatively short, just 14 days. That I because the father’s evidence was that his family had agreed to provide him with funds but, most importantly, it will not be until the funds are paid over, that the mother and the children will know that the first set of conditions to have been complied with and they are very likely to return. Following payment the mother will have 35 days to extricate herself from the lease on her accommodation, ready the girls to go back to The Netherlands and make whatever preparations she can for accommodation and schooling of the girls on their return and obtain legal advice about what steps (if any) she wants to take before courts of competent jurisdiction in the home state. I am mindful of the many things that the family consultant said should be done to prepare the children for return.
For the purposes of this case, if the father does not comply, r19A provides that once a return order is made the applicant Australian Central Authority, the father or the respondent mother may apply to the court, in accordance with a prescribed form, for a discharge of the return order and, if the court is satisfied of certain criteria, it has a discretion to discharge the return order. Such an application can be based on the effluxion of one year from the date of the return order and non-compliance.
If the father does not fund the airfares and remit the €3000, I expect that the mother and children will continue on as they have been in Tasmania. The mother or independent children’s lawyer may wait out the one year referred to in r.19A(2)(d) and then apply for a discharge. Alternatively, one or other may make a discharge application based on other criteria in r19A prior to the expiration of the year which, on my calculation, will be 19 July 2019. In all events, the fact that the children have been in Australia since January 2017, will inform the exercise of the court’s discretion so, to that extent, time remains of the essence.
A consequence of any failure by the father to meet the conditions to return would be that the children will continue to live with uncertainty about whether they will be compelled to return to The Netherlands. Practically, their parenting arrangements remain unresolved. They would be understandably reluctant to return to The Netherlands temporarily for fear they would not be permitted to leave. Any visit by the father or the older sisters who are aligned with him to Australia, for the purpose of seeing the children, might excite some concern notwithstanding that the inunctions restraining their removal from Australia remain in full force and effect.
Conclusion on grave risk of harm
I am satisfied that the return of the children to The Netherlands will be difficult for them. I doubt that they will display anguish or upset in any flamboyant sense. Consistent with the opinion of the family consultant, X and Y will revert to their protective patterns of trying to avoid parental conflict and providing the mother with protection and support. It is an unfair burden but has been a characteristic of their family life. They will approach the return sure in the knowledge that the mother will be suffering and will probably revert to being emotionally unavailable to them. However, hopefully not to the degree that they describe prior to the wrongful removal. The mother is resourceful and frugal and she will have greater financial resources at her disposal than she has previously had. Psychologically, it will be difficult and it is important that the mother obtain expert support and that the girls know this is available to her. As I mentioned earlier [134] the family consultant’s view is that it will be of benefit the children for there to be “lots of preparation about where they would be going, both accommodation-wise, school-wise, how their older siblings would fit into the picture, lots of discussion with them about their thoughts and what would help them in relation to their older siblings.” It will be important for the children to know that the mother had “exceptional, world class, best ever support” because of the perception, especially of X, that the mother would “again suffer psychologically” if they return.
The Commonwealth Central Authority tendered into evidence as exhibit “CCA4” correspondence received from the Dutch Central Authority on 23 March 2018. That letter included the following information:
·The Dutch Central Authority can, if requested and if necessary, inform the Dutch Child Care and protection Board about the return of the children to the Netherlands in advance of their return;
·Upon arrival of the children in The Netherlands, the Dutch Child Care and Protection board will conduct an investigation into the social circumstances and safety of the children;
·If necessary, the Dutch Child Care and Protection Board will take all adequate measures to secure the wellbeing and safety of the children in order to prevent the return bringing physical or psychological harm to the children;
·How the safe return should take place, is up to the Australian Court to decide and if the assistance of the Dutch Child Care and Protection Board is required, the Dutch Central Authority wishes to be informed prior to the arrival of the children.
I take those matters into account generally as I do the protective mechanisms referred to in the correspondence from dated 8 March 2018 which appears as annexure “D” to the father’s affidavit affirmed 8 March 2018.
Having regard to the extent to which the children’s return to The Netherlands will be supported by conditions to return, I am not persuaded that the return will expose them to a grave risk of psychological harm, as alleged, or otherwise place then in an intolerable situation within the meaning of r.16(3)(b).
Notably, I have not considered the implications of Y and Z being separated from X, with whom they have lived their whole lives, because no party asserts there is a current risk of that occurring.
If I am wrong in relation to grave risk of harm, I would have a discretion to refuse to return each child. It is a discretion which would have to be exercised in relation to each child individually. I discuss below the matters which can inform the exercise of my discretion.
Had I been required to consider the exercise of discretion in this case, I would have found the degree to which the children have become accustomed to life in Tasmania quite important as they are doing well and are happy. They will be miserable to return. However, the history of this matter is such that, in respect of the younger children, Y (seven) and Z (four), I would have found The Netherlands to be the more appropriate forum for a determination of parenting arrangements. The family has had extensive involvement with child protection authorities in the Netherlands but the information accessible to this court was sparse in spite of timely requests. Presumably, the competent authorities and the courts in The Netherlands and would have access to relevant evidence and the testimony of relevant witnesses, such as social workers who delivered assistance to the family over the years. They would also have an immediate and accurate appreciation of the reach of social welfare that could be accessed by the mother and of the privations or otherwise which will be endured by the mother and the children if they are compelled to remain in The Netherlands. On balance, and providing that all of the financial and other conditions which are now secured, remained secured, I would probably have declined to exercise my discretion to refuse return. I cannot be more definite than that because it is hypothetical.
Conclusion on objects to return
The objects to return exception is contended for in relation to X and Y.
I have been very much assisted by the evidence of the family consultant, whose evidence was tested in cross examination.
X
I am satisfied that X objects to being returned to The Netherlands and that her reasons for doing so are reasonable and are authentically her own. That is, The Netherlands holds unhappy memories for her and circumstances to which she does not want to return at this time. Particularly, she does not want to experience a deterioration in her mother’s emotional health which she reasonably predicts will eventuate if the children are required to return to The Netherlands.
I am satisfied that the strength of X’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes. The family consultant referred to X’s objection to returning to The Netherlands as being felt at the highest level and “in every fibre of her being.”
I am satisfied that X has attained an age and a degree of maturity at which it is appropriate to take account of her views. X is 14, nearly 15 years old. The 1980 Convention only applies to children under the age of 16 years so, within the cohort of children to which the 1980 Convention applies, X is an older child. She is described as being articulate, intelligent and reasonable. The family consultant was impressed by X’s balanced view, of not excluding the possibility of wanting one day to return to The Netherlands and of liking her life in Australia but not being captivated by her new environment. I accept the family consultant’s evidence that this latter quality of X’s view, and that she can recall positive aspects of life in City Z, indicate that her objection to returning to her state of habitual residence is not borne out of a fascination with life in Australia but out of a realistic and soundly based perception of what life holds for her in The Netherlands at this time. There is no element of what Hale J. (as she then was) described in In the Matter of H.B. (Abduction: Children’s Objections) [1997] 1 FLR 392 as the “risk of ‘grass is greener’ views, especially in adolescence.”
The fact that X says that she will return to The Netherlands with her mother and sisters if her sisters are ordered to return does not, in my view, lessen the strength of her objection to return. It merely indicates that she views life without her mother and young siblings to be intolerable and worse for her than her negative view of life in The Netherlands.
I find that the r.16(3)(c) exception is made out in relation to X.
Y
I am satisfied that Y objects to returning to The Netherlands in the relevant sense but I also find that her views have been strongly influenced by the mother’s attitudes and are, thereby, less than authentic. She has been assessed as intelligent. However, I accept the family consultant’s evidence that Y has not attained the degree of maturity at which it is appropriate to take account of her views. This is not merely referrable to her chronological age but to the family consultant’s assessment of Y.
I find that the r.16(3)(c) exception is not made out in relation to Y. It follows that I have no discretion to refuse to order her return to The Netherlands and an order for her return will issue.
Discretion to refuse to return X to The Netherlands
Having found that the r. 16(3)(c) exception applies to X I may refuse to make an order returning X to The Netherlands.
The exercise of the discretion to refuse return brings into focus the somewhat uneven nature of evidence in a Hague return application, vis a vis the interests of particular children. There has been a lot of evidence from the mother. The father has given evidence extensively by affidavit but relatively briefly in person. The applicant CCA has been appropriately disciplined in containing evidence to that which is relevant to the exceptions to return originally raised and has not traversed in detail matters relevant to the best interests of the children. It has been commentated in another context, and resonates with me now that -
“[when] allegations that may support a defense to the return of the child under the 1980 Child Abduction Convention are made by the abducting parent, [the court] considering the request [is] faced with decision-making in circumstances that invite misunderstanding, insufficient information, and, unfortunately, misplaced sympathies.”[47]
[47] Gloria Folger DeHart, ‘Relationship between the 1980 Child Abduction Convention and the 1996 Protection Convention, The Symposium Issue: Celebrating Twenty Years: The Past and Promise of the 1980 Hague Convention on the Civil Aspects of International Child Abduction’ (2000) 33 New York University Journal of International Law and Politics 83,
The Regulations offer no express terms as to how that discretion may be exercised. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in De L v Director-General, NSW Department of Community Services:
[I]f a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child's return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]’ enable it to be said that a particular consideration is extraneous [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.[48]
[48] (1996) 187 CLR 640, 661.
In TB v JB [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ (as she then was) accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574. The factors were:-
(a) the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b) the likely outcome (in whichever forum) of the substantive proceedings;
(c) the consequences of the acquiescence;
(d) the situation which would await the absconding parent and the child if compelled to return;
(e) the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f) the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.
Lady Justice Hale said:-
55. As to (f), the policy of the Hague Convention undoubtedly weighs heavily in respect of the children's objections. In my view, expressed in Re HB (Abduction: Children's Objections) [1997] 1 FLR 392, it weighs particularly heavily in those cases where children come to visit a parent living here and wish to remain: unless their objections are very cogent indeed, they should return to their primary carer for the dispute about a change in primary care to be settled in their home country. It weighs rather less heavily when the children wish to remain with their primary carer, particularly where, as here, the child has had no contact with the other parent for such a long time…
To the above factors there should be expressly added whether the country of habitual residence permits relocation internationally. That is, if a child is repatriated under the 1980 Convention, is it realistic for the taking/returning parent to apply to the courts of the state of habitual residence for permission to remove the child for the purpose of the child residing out of that jurisdiction permanently? This was clearly a matter contemplated by all members of the court in TB v JB who was satisfied that it would be possible for the mother to make an application to the courts in New Zealand for permission to relocate to the United Kingdom.
The facts of the present case are somewhat similar to the facts in TB v JB. There the children were a daughter aged 14 years, the boy aged nearly 13 years and the youngest son 10 and a half years. At first instance, Singer J had been satisfied that the return of the children to New Zealand would place them at grave risk of physical or emotional harm within the equivalent of r16(3)(b). Singer J was also satisfied that the oldest child objected to return to New Zealand in the relevant sense (consistently with r16(3)(c) of the Regulations). An appeal against Singer J’s findings of grave risk in relation to all three children was allowed by the majority 2:1 with the result that the discretion to refuse return attaching to the grave risk exception fell away. It became mandatory to return the two boys who were aged 13 and 10 years respectively. The position of the daughter was different because the finding of her objection to return was not upset on appeal and consequent discretion to refuse her return remained intact. Arden LJ decided that, as the majority (comprising herself and Laws LJ) were sending the boys back to New Zealand and that the mother would follow, the 14 years old daughter should be sent back to New Zealand as well, albeit contrary to her wishes. Arden LJ reasoned:-
[106] […] K is entitled to separate exception under Article 13 by reason of the fact that she is able to express her wishes and objects to return. She is now fourteen and a half years old. On the judge’s reasoning it was unnecessary for him to consider the exercise of the discretion which arises in her case. It is important that her wishes should be respected so far as possible but on the other hand since her brothers are to return, the court should consider whether it is right to respect those wishes in those circumstances. More importantly she is close to her brothers and her mother. She has been a source of strength to her mother in the past. Her mother says that at times she does not know how she could cope without K. In my judgment, the likelihood is that her mother will return to New Zealand with A and KI. In those circumstances, despite some dislocation in her education, it is in K's best interest to return also. In so concluding, I reach the same conclusion as Hale J (as she then was) reached on the facts of the case in Re: HB (Abduction: Children's Objections) [1997] l FLR 392, referred to with approval on appeal allowed on another point [1998] 1 FLR 422). Other factors include the fact that she has grown up in New Zealand and has the benefit of her mother's extended family there. Having considered those matters, in my view, in the exercise of discretion effect should not be given to K's wishes and she too should be ordered to return.”
The comparative suitability of the forum to determine the child's future in the substantive proceedings;
The evidence obtained by the independent children’s lawyer and the applicant CCA, dated 23 March 2018[49], informs me about the Dutch Civil Code. Both legal systems prioritise the best interest of the children so are equivalent in that regard. The principal benefit of The Netherlands as a forum is that there is documentary and presumably oral evidence about the family members’ extensive involvement with child protection and family violence in City Z which is not available here. This family has been through a lot of strife. It is important that parenting arrangements are arrived at by principled decision making and not achieved by default. The mother’s evidence is that at several points she concealed the extent of the father’s mistreatment of the children from the authorities which, if true, indicates that both parents present a risk to the children, albeit risks of a different nature. However, given X’s age and the period for which she has been out of the country, access to comprehensive historical evidence is less important for her than for her younger sisters. X because she is more independent of her parents. She is, after all, only one year younger that her oldest sister, Ms D, when Ms D left the family home to live in state care and then independently. She is two years older than Ms F when, at 13 years, Ms F ran away and was accommodated in a children’s refuse for three months.
[49] Exhibit “CCA4”
The likely outcome (in whichever forum) of the substantive proceedings
I have considered the likely outcome (in whichever forum) of the substantive proceedings. I have no expert evidence in this regard. I expect that the mother will apply to relocate the residence of the children to Australia. If I exercise my discretion to refuse to order X’s return then she will present to the competent courts in The Netherlands as a young woman who returned of her own will in order to be with her mother and young sisters but who wishes to reside in Australia. Permitting X to remain in Australia if she wishes to do so, is to provide her with a degree of autonomy which is more apparent than real. However, it sits more comfortably with me than forcing her back to The Netherlands and treating her no differently to her seven and four year old sisters. X will submit to the jurisdiction of courts in The Netherlands with a degree of independence and recognised maturity.
The consequences of the delayed application
I have already considered the delay in the father making the application and the consequences which flow. X has become disengaged from City Z and The Netherlands. She would return to an environment in The Netherlands to which she is accustomed but will not slot back into life as would a child who had only been away for a month or so.
The mother effected a blatantly wrongful removal of the children from The Netherlands. However, X’s legitimate experiences cannot be ignored. She arrived in Tasmania on 1 January 2017 with an expectation that Australia was a permanent place of residence for herself, her mother and siblings and that they were not returning to City Z. The girls were enrolled in, and in due course attended, appropriate educational institutions. They were permitted to remain here for nearly 12 months before a return application was filed at the behest of the requesting parent. Life was not entirely harmonious in Suburb U in that X was bullied and withdrawn from school. In December 2017 the mother and three children commenced to relocate to the other end of Tasmania and were enrolled to commence this year in new schools or kindergarten, which they did. X has been permitted to embrace Australia as her home and is, reportedly, happier at her new school in Town G than she was in Suburb U.
I have due regard to the fact that X may not have put down her roots in one general location in Tasmania. Nonetheless, the effluxion of time has permitted, or even facilitated, her to disengage from City Z as being the place in which she was most integrated into a social and family environment. It was in this context that the family consultant adopted the description of X’s objection to retuning to The Netherlands as being and objection that she feels “in every fibre of her being”.
The situation which would await the absconding parent and the child if compelled to return;
The situation which X will face on return has an emotional and a physical aspect. The mother has indicated that she will make an application to the courts in The Netherlands to be able to relocate the children to Australia. In an emotional sense, X’s return to The Netherlands means returning to unrelenting high parental conflict with the added pressure of the mother instituting and prosecuting further court proceedings. There will be no family reunion. X is unlikely to communicate with the father or her middle sisters, who live with the father, unless she feels impelled to do so in order to protect the younger girls. X will lose the relaxed relationship she has developed with the mother since they have been in Tasmania. The family consultant opines that X fears that the mother will regress to her former self which was detached and emotionally unavailable. In X’s perception, a return to The Netherlands, will not reunite her with the father or Ms E and Ms F, rather, she will lose an emotional closeness with her mother who is the parent on whom she depends.
In a physical and practical sense, the father and two sisters are occupying the former family home. The father’s evidence is that he will not vacate the property for the mother notwithstanding that she previously has an order entitling her to sole use and occupation of it. The mother says that she would prefer to live remotely from the father. The children will not return to their former schools or arrangement for kindergarten. The mother and three girls will have go into temporary refuge accommodation until less temporary accommodation is found for them. In the less temporary accommodation, they may still have to share accommodation with other similarly displaced people. They will be dislocated from their friends.
The financial support to be provided by the father will reduce practical pressures on the mother’s household, and therefore on X, in a real and substantial sense. Whilst the mother’s evidence is that she can live very frugally. The financial support from the father will be finite and, once exhausted, the mother and children will be wholly reliant on government benefits. Still, the money to which the mother will have access on return is more of a resource than she has had before.
Finally, there appears no risk of the mother being prosecuted or her removal of the children.
The anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount);
X says that she would rather be with her mother and younger sisters in Australia than be without them. The choice is bleak. The family consultant predicted, as set out above, that upon returning to The Netherlands, X’s pre-occupation with her mother’s wellbeing would derail her, and she would have “poor sleep. Then you have all the signs of stress, the sleeping, the eating, all the difficulties that evolve, especially for teenagers, just impacting on each other, cascading.” Returning to The Netherlands may be the least worse outcome for X but I am not inclined to force that outcome upon her. There is every indication that, uncoerced, she will return voluntarily.
It may appear that X’s objection to return is not as strong as the family consultant has opined. However, that is not my interpretation. X is prepared to return to The Netherlands because she cannot imagine her life without her mother and her younger siblings and she believes that they need her. She is self sacrificing at the same time as she is vulnerable. Currently, it seems X would go anywhere that the mother and her siblings go. If they decided to go to a third country, she would follow them but still maintain a bona fide objection to return to The Netherlands within the meaning of r.16(3)(c).
The extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.
Weighing the policy considerations of the 1980 Convention against the circumstances in which an exception to return is made out can be difficult. Particularly where the exception is the child’s objection to return. Children who are not returned are deprived of a principled resolution of parenting arrangements.
There are many qualifications which must be satisfied before the policy of the 1980 Convention and the mechanism of the prompt return will be displaced in favour of a child’s objection to return. The hurdles include a favourable assessment of nature of the objection, what is objected to, the strength of objection, its authenticity and validity and the age and maturity of the child. If the contender falls at any of those hurdles, the exception will not be made out.
The measured and structured approach to the assessment of an objection to return and the exercise of any resultant discretion has been laid down for the guidance of judges. Care must be exercised so that, with all of the stipulated considerations, the gateway and the stages of assessment, the child’s genuine and sincere objection is not lost in the analysis. I assess X’s objection as strong, rational and authentic. I assess her as mature and thoughtful.
In Hollins v Crozier,[50] Judge Doogue (as she then was) emphasised the need to see the child as an individual rather than an object of an argument between parents about forum. She cautioned against paying lip service to a child’s objection. Doogue J had the benefit of a social science assessment and interviewed the 12 year old child herself. Doogue J found [at 797] that not upholding the views of the boy “would be to elevate the remedial and normative objectives of the Hague Convention unduly ahead of the defence contained in s.13(1)(d) and the obligations this Court has in administering the principles and articles of the United Nations Convention on the Rights of the Child. It would be treating Joshua as ‘an object of concern’ and not the person he is in his own right.”
[50] (2000) NZFLR 775
Having regard to X’s age and degree of maturity, I am not inclined to give precedence to the purpose and underlying philosophy of the 1980 Convention over her sincere, mature and informed objection of life in The Netherlands. She is fast approaching the age when the Regulations will cease to operate in relation to her. The provision for the child’s objections to be able to displace the prompt return remedy, after being carefully analysed and weighed, is as an important feature of the 1980 Convention as the prompt return remedy. On the facts of this case, I will not discount X’s autonomy in favour of policy considerations under the 1980 Convention.
Conclusion to exercise of discretion to refuse return
I am satisfied that it is appropriate to exercise my discretion to refuse to order X’s return. As I have said, it is likely that she will return in any event. However she will do so under her own will and for her own reasons which, of course, may change over time.
Conclusion
I am satisfied that the Order is an appropriate disposition of the case. I will wait to be advised of any assistance the parties or the requesting parent has in relation to obtaining a suite of orders which are enforceable in The Netherlands.
I certify that the preceding two hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 August 2018.
Associate:
Date: 14 August 2018
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