Cullen & Secretary, Department of Families, Fairness and Housing
[2023] FedCFamC1A 46
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cullen & Secretary, Department of Families, Fairness and Housing [2023] FedCFamC1A 46
Appeal from: Department of Families, Fairness and Housing & Cullen [2022] FedCFamC1F 1027 Appeal number(s): NAA 13 of 2023 File number(s): MLC 6353 of 2022 Judgment of: TREE, CHRISTIE & SCHONELL JJ Date of judgment: 13 April 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks to adduce further evidence – Where the applications before the Court do not meet the requirements of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Applications refused.
FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague convention – Where the appellant asserts the primary judge erred in his application of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) – Where the appellant asserts the primary judge failed to take into consideration the objections of the child – Whether the primary judge conflated the “gateway stage” with the “discretionary stage” in applying reg 16(3)(c) of the Regulations – Where the primary judge found that the child’s objections did not show a strength of feeling beyond the mere expression of a preference or wish – Where the primary judge was entitled to exercise his discretion – Where no error is established – Appeal dismissed.
Legislation: Family Law Act 1975 (Cth) s 111B
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Family Law Amendment Regulations 2004 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.01, 13.39
Hague Convention on the Civil Aspects of International Child Abduction arts 12, 13
Cases cited: CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Commonwealth Central Authority & Sangster [2018] FamCA 765
House v The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Re K (Abduction: Case Management) [2011] 1 FLR 1268; [2010] EWCA Civ 1546
Re M (Republic of Ireland) (Child Objections) (Joinder of Children to Appeal) [2015] 2 FLR 1074; [2015] EWCA Civ 26
Number of paragraphs: 110 Date of hearing: 28 March 2023 Place: Heard in Melbourne, delivered in Cairns Counsel for the Appellant: Mr Wilson Solicitor for the Appellant: Kennedy Partners Counsel for the Respondent: Ms Devine Solicitor for the Respondent: Secretary, Department of Families, Fairness and Housing Solicitor for the Independent Children’s Lawyer: Did not participate ORDERS
NAA 13 of 2023
MLC 6353 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CULLEN
Appellant
AND: SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
TREE, CHRISTIE & SCHONELL JJ
DATE OF ORDER:
13 april 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal to adduce further evidence filed 30 January 2023 is dismissed.
2.The Application in an Appeal to adduce further evidence filed 14 March 2023 is dismissed.
3.Appeal NAA 13 of 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cullen & Secretary, Department of Families, Fairness and Housing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, CHRISTIE & SCHONELL JJ:
On 20 December 2022 the primary judge made orders for return of a child from Australia to Poland, pursuant to Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). This is the mother’s appeal from that decision. The Central Authority, in this case, the Secretary of the Victorian Department of Families, Fairness and Housing, resists the appeal.
The mother is Australian by birth, with Country L heritage. Much of her family is in Australia. The father is Polish by birth, although for much of his life lived in Country N. X, the subject of the return order, was born in City O in 2007 (“the child”). Accordingly, she was, at the time of trial, 15 years of age.
There is no question about the child’s habitual residence, it being an agreed fact that she has lived in Poland since May 2009.
It was also uncontroversial before the primary judge that the appellant had brought the child to Australia on 20 March 2022 without the knowledge and consent of the father.
In 2016 divorce proceedings were commenced in the R District Regional Court in City M (“the Polish Court”) and both parents have sought parenting orders in those proceedings.
On 12 January 2017 the appellant applied to the Polish Court for orders permitting her to take the child to Australia for a holiday.
The Polish Court dismissed the appellant’s application citing the appellant’s lack of ties to Poland and her desire to permanently return to Australia as matters supporting the father’s concern that the appellant would not return the child.
In the Polish proceedings the appellant then sought to take the child for a holiday to Australia between 20 April and 13 May 2018 and later from 17 July 2018 to 14 August 2018 and on 29 June 2018 the Polish Court dismissed the application for travel.
The primary judge set out an excerpt from the Case Outline of the Central Authority at [12] as follows:
1.5 The Polish proceedings reveal a high conflict case where the child was undergoing court ordered therapy to improve her relationship with the father and where the [appellant] makes allegations of family violence, and the father asserts a process of the [appellant] alienating the child from him.
1.6 The court ordered therapy involving the requesting father and the child was interrupted by the removal of the child from the jurisdiction of the Polish courts.
1.7 The continuation of the Polish proceedings in May 2022 was interrupted by the absconding of the [appellant].
The primary judge found at [172]:
In the circumstances, on balance, I am satisfied that [the child’s] objection, so analysed, does not show a strength of feeling beyond the mere expression of a preference or wishes. Alternatively, I find that any strength of feeling has been brought about by the [appellant’s] enmeshment of and with [the child].
And further at [200]:
Even if I had found the [appellant’s] defence under reg 16(3)(c) made out, such that a discretion to decline to order [the child’s] return to Poland were enlivened, I would not exercise such discretion in the [appellant’s] favour for the following reasons.
The appellant challenges the decision. The focus of the appellant’s contentions is that the primary judge misapplied the statutory test and/or failed to give appropriate consideration or attach appropriate weight to various aspects of the evidence.
Appeals from discretionary decisions face the usual challenge as discussed by the majority of the High Court in House v The King (1936) 55 CLR 499 at 504-505:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
For the reasons which follow, we are not satisfied that the primary judge’s discretion miscarried nor are we persuaded that his Honour misapplied the requisite statutory regime, and hence the appeal fails.
APPLICATIONS IN AN APPEAL
On 30 January 2023 the appellant filed an Application in an Appeal seeking leave to adduce further evidence at the hearing of the appeal, including a report of Ms TT, a psychologist, and an affidavit which she had sworn attaching documents.
On 14 March 2023 the appellant filed another Application in an Appeal seeking leave to adduce further evidence at the hearing of the appeal, namely a further report by Ms TT.
Those applications were listed for hearing on the day of the appeal.
The power to admit further evidence on appeal is set out at s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). This discretionary power is described by the High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172 (“CDJ v VAJ”) at [111]:
… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. …
Rule 13.39(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) obliges a party seeking to adduce further evidence to identify the grounds to which the application relates.
Counsel for the appellant conceded that the material sought to be adduced was not material which could have been before the primary judge as it related to matters which arose after the hearing had concluded and reasons given and orders pronounced. He contended that it may be relevant to any issue of re-exercise of the discretion but conceded that his client sought remittal of the matter if successful.
It is necessary to understand the nature and content of the evidence sought to be adduced to determine whether the applications should be granted.
The appellant’s affidavit attached an email from the Independent Children’s Lawyer (“the ICL”) to the appellant’s lawyer, Mr UU and the Central Authority following a meeting between the ICL (and Ms G, Child Court Expert) and the child on 10 January 2023 which email included the following paragraph:
[The child] was extremely distressed throughout our meeting. Of most concern, [the child] expressed suicide ideation, repeatedly making comments that she would “kill herself” if made to return to Poland. [The child] indicated that she had not had these thoughts before and that she had not thought about how she might go about doing so. …
(Affidavit of appellant filed 30 January 2023, Annexure MC-2)
Both parents were informed about this meeting and what had been said by the child.
Both Ms TT’s reports postdate the meeting with the ICL. The child had met with Ms TT the day prior to the meeting with the ICL and Ms TT contacted the child and spoke with her after the meeting and recorded:
21.7 … She acknowledged her heightened emotional reactivity in that meeting was triggered by her desperation of not being listened to.”;
21.8 “Although she was assessed at that point with no active suicidal ideation, intent or plan, or other self-injurious behaviour, she did communicate the concerning belief that “life is not worth living and may as well be dead” if she were to return to Poland”.
(As per original) (Affidavit of appellant filed 30 January 2023)
The subject matter of the further evidence itself was not without controversy. The evidence was from a psychologist engaged by the appellant to provide treatment to the child. The witness was not a single expert but a psychologist providing treatment to the child. It follows that her report must only address r 7.01(1) of the Rules:
(1) …
(a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;
(b) evidence form an expert who has been retained for the purpose other than the giving of advice or evidence, or the preparation of a report for a proceeding or anticipated proceedings, being evidence:
(i) about the expert’s involvement with a party, child or subject matter of a proceeding; and
(ii) describing the reasons for the expert’s involvement and the results of that involvement;
(c) evidence form an expert who has been associated, involved or had contact with a party, child or subject matter of a proceeding for a purpose other than the giving of advice or evidence, or the preparation of a report for a proceeding or anticipated proceeding, being evidence about the expert’s association, involvement or contact with that party, child or subject matter…
The more recent of the two reports of Ms TT’s dated 3 March 2023 contained the following paragraph:
13. However, [the child] reported an underlying anxiety since the outcome of the Return Order. In particular, she described an uneasiness towards her father’s non-responsiveness to the conditions of the order that applied to him. [The child] described feeling disturbed and unsettled by her father’s non-action. She further described persistent feelings of worry, hypervigilance. In terms of risk, [the child] denied experiencing suicidal ideation or thoughts of self-harm at that point in time. She responded well to the idea of focusing what was within her control, maintaining a sense of “normal” and certainty/familiarly in her day to day through routine and structure. She reported feeling more grounded and positive to be engaging in activities and connections that were meaningful to her.
It is fair to observe that significant sections of Ms TT’s reports contained material which fell outside the scope of that which would be permitted by the Rules.
We accept that if the psychological evidence sought to be relied upon had taken this case into the category of cases where it was necessary for us to receive it to avoid an error “which cannot be otherwise remedied by the application of the conventional appellate procedures” (see: CDJ v VAJ at [109]) then we would have acceded to the application. This was not such a case since the child has been in the care of a treating psychologist who was best placed to provide evidence that there was an acute risk to the child’s health in circumstances which make plain that the psychologist had explicitly explored the risks posed by suicidal ideation and self-harm.
Having considered the evidence sought to be adduced we are not persuaded that it supports a ground of appeal and demonstrates error on the part of the primary judge. Accordingly, the applications for the receipt of further evidence will be dismissed.
THE LAW
Australia’s obligations under the Convention are implemented by the regulation making authority conferred by s 111B of the Family Law Act1975 (Cth) (“the Act”). The Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) give effect to Australia’s Convention obligations.
The appellant conceded that the child’s removal from Poland satisfied the requirements of reg 16(1) and (1A) set out below:
(1) If:
(a) an application for a return order for a child is made; and
(b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub regulation (1A);
the court must, subject to sub regulation (3), make the order.
(1A) For sub regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d) the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child’s removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
Where the prerequisites to return are satisfied, as they were in this case, a judge is obliged to make a return order unless one of the matters in art 13 of the Convention is established.
Even if one of the matters in art 13 of the Convention is established, the Court retains a discretion to order return.
Article 13, in so far as it relates to the objection of a child to return, reads:
The judicial or administrative authority may also refuse to order the return of a child if it finds 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 its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.
In Australia, the provisions of art 13 are embodied in the Regulations, which as we have said, are made pursuant to s 111B of the Act. Section 111B(1B) provides:
The regulations made for the purposes of this section must not allow an objection by a child to return under the Convention to be taken into account in proceedings unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes.
Accordingly, from the time of the amendment of s 111B(1B) in 2004, reg 16(3) has provided:
(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii) the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
As is clear from reg 16(3)(c), the appellant was obliged to demonstrate that each of the three limbs of the test were satisfied before the discretion to refuse the return order would be enlivened. If she failed to discharge the onus in respect of any one limb, then return remained mandatory.
Even if she satisfied each limb, it was open to the primary judge to order return as a proper exercise of his discretion.
THE TRIAL
The trial before the primary judge took place on the basis that the appellant conceded that the child’s removal from Poland had been wrongful but sought that the application of the Central Authority for return be refused on the basis that the evidence would satisfy the Court either:
(a)The child’s objection met the requisite standard as set out in the Regulations; and/or
(b)The return of the child would expose her to a grave risk of harm or otherwise place her in an intolerable situation.
At the hearing the legal representatives for the appellant indicated they would no longer pursue the second of those two matters and hence the sole focus of the hearing and the fact finding exercise was on the child’s objection.
The evidence upon which the Court relied in reaching the conclusion that the evidence did not satisfy the definition in the Regulations came from a number of sources including:
(a)the child’s parents;
(b)expert evidence from Poland; and
(c)a Hague Report prepared for the purpose of these proceedings.
The primary judge’s assessment of the evidence led him to the conclusion that, while the child had satisfied the first limb of the test – she plainly objected to return (although properly analysed, the objection was to returning to where the father lives – at [165] of his Honour’s reasons) nonetheless the evidence had not persuaded him that she had sufficient maturity to satisfy the requirements of reg 16(3) of the Regulations. In reaching that conclusion he was very concerned that the manner in which her expressed views had been formed spoke to her immaturity, at least in this sphere.
Importantly, his Honour went on to say that even if he had been persuaded that the reg 16(3)(c) defence had been established on the evidence, there were a number of factors in this case which would have caused him to order return in any event, as the Regulations permit. For this reason, in order for the appeal to succeed it is necessary for the appellant to demonstrate that the exercise of the discretion, which is the subject of the final ground (Ground 6), miscarried. For that reason we will consider Ground 6 first.
GROUNDS OF APPEAL
Ground 6: Did his Honour give too much weight to matters or too little weight to matters relevant to the exercise of his discretion?
This ground provides:
6.The learned trial judge erred in not properly assessing and balancing the relevant factors at the ‘discretion’ stage by:
(a)Focusing on the [appellant’s] conduct to the exclusion of other considerations, an error of principle, with the result that the child is to suffer for [the appellant’s] wrongs;
(b)Failing to give any proper or adequate consideration to the child’s age and degree of maturity; and
(c)Failing to give any proper or adequate consideration to the emotional effect upon the child of being ordered to return.
It will be appreciated that this ground deals with the manner in which the primary judge approached the discretion which is conferred by reg 16(3). The regulation commences: “[a] court may refuse…” this confers a broad and unfettered discretion on the primary judge. A number of matters have emerged in the Australian and international jurisprudence as relevant to the exercise of the discretion but those guidelines are no more than a non-exhaustive list of potentially relevant matters. Provided the discretion conferred by the regulation has been exercised in a proper manner, no successful appeal may lie from its exercise.
His Honour was not satisfied that the appellant had discharged the onus to establish the reg 16(3)(c) defence and accordingly, the discretion did not arise, but at [200] his Honour said:
Even if I had found the [appellant’s] defence under reg 16(3)(c) made out, such that a discretion to decline to order [the child’s] return to Poland were enlivened, I would not exercise such discretion in the [appellant’s] favour for the following reasons.
In support of the contention that the primary judge’s discretion had miscarried the appellant submitted that his Honour was unduly critical of the appellant’s actions. We accept that if a judge hearing the matter had made either unwarranted or irrelevant criticisms of the appellant then that may be a basis upon which to assert that the discretion miscarried. That is not the situation here.
The first matter raised by this ground related to his Honour’s comment at [205] where his Honour said:
As to the comparative suitability of the forum in which to determine the child's future in substantive proceedings, I am of the view that, notwithstanding these proceedings in this Court, which have overwhelmingly been directed to the issue of forum, the Polish court is the more suitable forum. Proceedings have been pending in that court for over six years. True it is that those proceedings have been protracted, however, there is no evidence which would suggest that the legal system in Poland, a fellow contracting State, is to blame for this state of affairs. There will also be delays in this court, where substantive parenting proceedings have not been instituted. To the contrary, on the evidence, I am satisfied that the [appellant] has substantially contributed to those delays, including by routinely appealing any decisions with which she was dissatisfied, her complaints to the Polish Ministry of Justice, the President of Poland, the Human Rights Ombudsman and to the European Court of Human Rights and the legal action taken by her against the presiding judge in the Polish parenting proceedings personally, which I am satisfied, on the balance of probabilities, is the reason for which that judge has since recused herself, causing further delay.
Read as a whole, it is plain that his Honour’s comment amounts to a conclusion available to him on the evidence about how he should weigh one of the matters commonly accepted to inform the exercise of the discretion. Moreover that conduct was not viewed to the exclusion of other considerations.
The next two matters advanced by the appellant under this ground as supportive of the conclusion that the discretion miscarried are said to arise from the conclusion which his Honour expressed at [206] and [208].
It is important when approaching the primary judge’s reasons not to cherry pick paragraphs or parts of paragraphs in support of a proposition which is unavailable when the comment is viewed in the broader context of the paragraphs around it or the judgment as a whole. It is necessary to set out [206] to [208] to demonstrate why the ground is ill conceived:
206. It is difficult to predict with any degree of certainty, at this stage, the likely outcome, in whichever forum, of the substantive parenting proceedings. True it is that [the child] is nearly 16 years of age, (at which time the Regulations and the Convention will no longer be applicable). It is highly likely that the parenting dispute will continue to be litigated between the [appellant] and the father, either in Poland or in Australia. The court in which such litigation takes place, in either country, will need to grapple with two competing factors. First, the child will be 16 or 17 years old, an age at which her wishes may well carry weight, and she will soon be beyond the jurisdiction at least of this Court. Secondly, however, on the evidence to date, those wishes have been significantly influenced, and probably overborne, by the [appellant]. I find that whilst, far from certain, it is more likely than not that the father / daughter relationship may be repaired, with therapeutic involvement, if they are physically in the same city.
207. The situation which would await the [appellant] and the child, if compelled to return, will be no different to that which they left. [The child] attended school in Poland, and happily so. The [appellant] was, and had been, in paid employment in Poland and there is no suggestion that she will be unable to secure employment there. She was able to access not only legal assistance in the proceedings there, as well as social assistance, but was able to make submissions to the Ministry of Justice, the President of Poland, the Human rights Ombudsman and the European Court of Human Rights. In circumstances where the [appellant] abandoned her defence of “grave risk” under reg 16(3)(b) by reason of the war in neighbouring [the] Ukraine and where, in any event, that situation pertained both at the time of her wrongful removal of [the child] from Poland in March 2022 and at the time of the trial of these proceedings before me in October 2022, I give no weight thereto in this respect.
208. As to the anticipated emotional effect upon [the child’s] best interests of an immediate return, which is a significant but not paramount factor, whilst I accept that she will be very unhappy, that unhappiness is largely attributable to the [appellant’s] actions, in enmeshing [the child] and alienating her from the father and in wrongfully removing her from Poland. Further, it is beyond debate, at least in this Court, as a general proposition, that children should have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests, and that children have the right to know and be cared for by both their parents, and to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development. I see no reason why, in the exercise of any discretion, the objects of Part VII of the Family Law Act 1975 (Cth), cannot be taken into account, in a general sense, in the same way that the best interests of children (provided for in ss 60CA and 65AA of the Act) may be taken into account at this stage. Given the [appellant’s] demonstrated antipathy towards the father, her alienation of [the child] from him and the vigour with which she [h]as opposed the proceedings in the Polish courts and this Court, I do not accept that the repair of the father’s relationship with the child has as great a chance of succeeding if they are situated at opposite ends of the world than if in the same place. For example, I do not accept that continued therapeutic intervention could be undertaken anywhere nearly as effectively by video-conference between Poland and Australia as would be the case if the father and [the child] were in the same location. Further, by reason of my findings above, whilst the [appellant] might well not be truly supportive of such therapy even if living with [the child] in Poland, I am satisfied that she would be even less so in Australia, with the tyranny of distance between them.
Reading the entirety of the paragraphs with the whole of the judgment gives context to the impugned paragraph such that no error can be established.
The further examples which the appellant addressed in her written submissions arise from [209] and [210] of the reasons. Again, it is important to understand the whole of the text of those paragraphs to appreciate why we are not convinced they show an inappropriate exercise of his Honour’s discretion.
The gravamen of the complaint is that the primary judge conflated two distinct concepts – the motivation or trigger for leaving Poland identified by the appellant (namely the war in the Ukraine) and the forensic decision taken in the litigation not to pursue a grave risk defence at trial.
On the evidence his Honour was within his rights to be sceptical of the reason given by the appellant for leaving Poland for a number of reasons, including the fact that it did not seem to be of significant concern to the child prior to departure, that the family therapy between the child and the father had, objectively, begun to show promise in the period immediately prior to removal and that the issue was not raised at any time prior to departure.
However, assume for a moment that the reason given by the appellant was genuine. The forensic decision to concede that the grave risk defence was unavailable was a concession that the appellant accepted that return would not amount to grave risk by reason of the war in the Ukraine. The two matters are related but not conflated.
The next matter said by the appellant to speak to a miscarriage of discretion is an alleged failure to afford sufficient weight to the age of the child at the time of the order for return. The primary judge did not and could not ignore the age of the child. It is plain that he acknowledged the child’s age but determined, in the whole of the circumstances of this case, that fact alone would not be dispositive of outcome.
To the extent that the appellant contends that the primary judge failed to give adequate or proper consideration to the emotional effect of the return order on the child, the appellant’s counsel properly acknowledged that this was a weight ground. The primary judge found that the child would be “very unhappy” (at [208]).
The appellant’s affidavit material did not address whether or not she intended to accompany the child to Poland. The trial commenced on 12 October 2022. The appellant was legally represented.
The appellant’s evidence as it emerged on the fourth day of the trial, in answer to a question by counsel for the Central Authority, was as follows:
[COUNSEL]: Finally, ma’am, if this court makes an order requiring [the child] to be returned to Poland, do you intend to go with her?
[THE APPELLANT]: At this stage, no.
[COUNSEL]: And so given that is the case, that’s not a view that you’ve expressed anywhere in any of your documents, is it?
[THE APPELLANT]: I wasn’t asked to express that view. I - - -
[COUNSEL]: Don’t think it’s important for the court to know?
[THE APPELLANT]: If – I don’t know – my solicitor said that it should be in there, it would have been in there, but I don’t know. I don’t know.
[COUNSEL]: That wasn’t the question I asked?
[THE APPELLANT]: Because I wasn’t sure. I still don’t know. I still don’t know; okay?
(Transcript 19 October 2022, p.381 lines 1-12)
This is not a case where the appellant argued that there was a legal impediment to her accompanying the child if an order for return were made. The appellant is within her rights to remain in Australia. But where the primary carer of a child whose relationship with the left behind parent is significantly compromised elects to compound the situation for the child, the Court is left to balance the factors in a manner which pays attention to the objects of the Convention. Counsel for the Central Authority during cross-examination put to the appellant that it was her case that but for the war in the Ukraine she and the subject child would still be in Poland. In those circumstances the primary judge approached the matter, as he was entitled, that is to consider that the appellant may, as her evidence suggested, change her mind about return.
Counsel for the appellant acknowledged that the discretionary stage involves weighing a number of competing considerations against one another so as to ensure that the principles in the Convention receive proper application. They include the desirability of prompt return, respect for judicial comity, deterrence, and the preference for best interests adjudication in the place of the child’s habitual residence, amongst others. They also include giving proper meaning to the art 13 exceptions to return. The weight given to each factor in any given case will differ. We are not persuaded that in balancing these considerations the primary judge afforded too much weight to matters which did not warrant it or too little weight to matters which warranted greater attention. The primary judge, in command of the evidence as a whole including the cross-examination, was well placed to apportion weight in accordance with the overarching framework provided by the Regulations and we are satisfied he did. It follows that we are satisfied that the discretion afforded by reg 16(3) was properly exercised.
The effect of this is that, even if his Honour were in error in reaching the conclusion which he did about objection (and as shall be shortly seen, we are not satisfied error has been demonstrated) then he was still entitled to refuse to order return. It follows that it is not necessary to consider the other appeal grounds in any significant detail.
Ground 1: Did the primary judge conflate the “gateway stage” with the “discretionary stage”?
In Re M (Republic of Ireland) (Child Objections) (Joinder of Children to Appeal) [2015] 2 FLR 1074 (“Re M”) Black LJ set out a two stage test for the consideration of the objection defence. Her Honour Justice Bennett discussed this test in Commonwealth Central Authority & Sangster [2018] FamCA 765 as follows:
52.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). 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). 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”.
53. In Re T (Abduction: Child’s Objections to Return) 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?
These are very helpful considerations when assessing evidence of the child’s stated objections.
(Footnotes omitted)
We should immediately observe that there is no equivalent of reg 16(3)(c)(ii) in the relevant United Kingdom provisions giving effect to the Convention, and hence even authoritative decisions on the United Kingdom provisions need to be approached with some caution, in the Australian context, particularly given that the scope of inquiry under reg 16(3)(c) is necessarily considerably broader than is required in the United Kingdom.
The appellant contends that the primary judge conflated the “gateway stage” with the “discretionary stage” which means matters that should have been considered and balanced at the discretion stage, were dismissed by the primary judge at the gateway stage.
While the two step approach to the consideration of the reg 16(3)(c) defence may well be a useful method of considering the evidence, we are not persuaded that there is a strict requirement that the matters which are considered at the gateway stage ought not come into play at the stage of exercise of the discretion nor vice versa. The suggestion that it is necessary to slavishly separate the factual findings relevant to the establishment of the objection from those which may be relevant if the discretion is enlivened is artificial. Indeed reg 16(3)(c)(ii) clearly requires some analysis of the objection which analysis may well touch on matters relevant to the exercise of the discretion.
The argument that his Honour’s assessment of the child’s maturity and the strength of her feeling was “infected” by matters best considered at the discretion stage misses the important role that an assessment of whether the expressed views have an objective foundation plays in reaching the conclusion about maturity.
Ground 2: Did the primary judge fail to give any real consideration to the child’s concerns in relation to the war in the Ukraine?
The appellant submits that the reasons for judgment of the primary judge did not give adequate consideration to the child’s concerns in relation to the war in the Ukraine. Further it is submitted that he mistook or misconstrued evidence from Ms G about the significance of the child’s concerns in relation to the war in the Ukraine, with the result that the child’s objections were not properly assessed pursuant to reg 16(3)(c)(i) and her level of maturity was not properly assessed pursuant to reg 16(3)(c)(ii).
It is important to review all of the evidence which was available to the primary judge which relates to the child’s views concerning the war in the Ukraine and its relationship to the formation of her objection.
At the time of the removal from Poland to Australia the child was engaged in family therapy with a psychologist, Ms F, who had been engaged as a consequence of the court proceedings in Poland.
Ms F met with the child and the father on a number of occasions between 1 September 2020 and 27 September 2021 and then again for several sessions from 8 January 2022 culminating in their final session on 19 March 2022 (less than two days before the removal).
The reasons for judgment cite Ms F’s report at [113]: “[the child] was outraged by Russia’s invasion of [the] Ukraine, but she herself did not feel threatened by it, and there were no anxiety reaction visible in her behaviour”. This is significant given one would imagine that any anxiety about this topic may have been more evident when the child was in Poland.
His Honour also had regard to the observations of Ms G, who was appointed to prepare a Hague Report for the Court, on this issue as set out in his reasons at [152]:
152.… [the child] maintained to [Ms G] that [her departure from Poland] was led by her fear and uncertainty about the conflict in [the] Ukraine, later adding that she and her mother were “scared”. She reported that some of her friends had moved to other countries to avoid the conflict, which [Ms G] opined as being “further justification of it being ‘my decision’ to leave Poland” (at [17]). …
There is little evidence, in the decisions of the Polish courts or in the reports of the Polish psychologists pursuant to orders of those courts, of any wish on the part of the child to travel to Australia for any reason other than to visit her maternal family here as opposed to living here. Accordingly, his Honour’s decision to afford little weight to the reason given by the child for the departure of the child and appellant from Poland was sound. Indeed, Ms G notes that in Ms F’s report dated 15 April 2022 to the Polish court, Ms F reported having observed the child and her father talking about the conflict in the Ukraine with no apparent fear or anxiety shown by the child, and that they spoke positively about their and the appellant’s efforts to help refugees escaping the conflict (at [152]).
Ms G returned to that theme during cross-examination by counsel for the appellant:
[COUNSEL:] And does that have any impact on your views about [the child’s] wishes insofar as they may be based on the conflict in [the] Ukraine? That the [appellant] is no longer agitating the issue of risk?
[MS G:] I think my views about [the child’s] wishes and, I guess, caution being placed, the weight on those, it doesn’t necessarily change my assessment. I think I will go back to what [Ms F] had observed between [the child] and her dad on [14] April where [the child] and her father have spoken positively about their and [the appellant’s] efforts to help refugees. And that there was no apparent fear or anxiety shown by [the child] during those discussions with her dad.
(Transcript 19 October 2022, p.396, lines 3–10)
His Honour returned to the issue at [164] where he recorded that the child “reported to Ms [G] that she was fearful, uncertain and scared by the war in [the] Ukraine” and at [165] where he noted that Ms G records, at paragraph 32 of her report, that the child “stated that the geographical distance [between] Poland and Australia makes it easier for her to manage her feelings in relation to both the conflict in [the] Ukraine and the protracted proceedings in Poland”.
The primary judge commented that the appellant having chosen not to pursue a defence based on grave risk arising out of the war in the Ukraine, effectively pursued a “proverbial ‘backdoor’” grave risk defence in support of her reg 16(3)(c) defence (at [165]). The appellant submitted that this observation distracted the primary judge from a proper consideration of the role the war in the Ukraine may have played in the development of the child’s objection to returning to Poland.
The difficulty with that submission is that it is plain that the primary judge did give consideration to the express views of the child as expressed to Ms F and Ms G concerning the war in the Ukraine. Concluding at [167], with reference to Ms G’s report:
(a) …
[The child’s] expressed fear and uncertainty appeared to be impacted by her inability to process difficult emotions and feelings and/or to consider other options to feel safer. [The child] is reported fear about the conflict in [the] Ukraine and the consequences for her safety seems to differ from the discussions she had with her father during time spent in the presence of a psychologist, and appear to reflect [the appellant’s] views in this regard.
(b) … Ms [G] also reports that [the child] presented with feelings related to low sense of safety and security, she opines this may be related to a combination of experiences of the impact of the conflict in [the] Ukraine, exposure to long-standing parental conflict, feeling unheard and managing possible inner turmoil related to her family and court issues…
The further evidence of the child’s views about the war in the Ukraine emerged from the affidavit material filed in the appellant’s case. In the affidavit of Ms EE (sister of the appellant) of 4 August 2022 at paragraph 21 she said:
In March of 2022, I received a distressed video call from [the child] who was becoming increasingly concerned about the situation in [the] Ukraine which was continuing to escalate. She told me, “Auntie [Ms EE], there was a bomb scare at my school yesterday… I am really worried the war is coming to Poland… My friends were talking about the possibility of a nuclear explosion today and how long we would have to take cover before impact… I am feeling very scared Auntie [Ms EE]. It is not safe for us to stay here.”
The material filed by the Central Authority relevant to this issue included the affidavit of Mr B (the child’s father) filed 1 September 2022:
16. …
16.3. … [The child] spoke with me about the war in [the] Ukraine and did not mention being scared, only outraged and expressing her willingness to help refugees. …
…
17. …
17.70.… I confirm that there was a bomb scare incident in [the child’s] school (a false alarm) but this had nothing to do with the war in [the] Ukraine.
It is necessary to approach the evidence about this topic after the wrongful removal more carefully since it is plain that the appellant represented to the father on 4 April 2022 that she had removed the child from Poland and cited the “volatile situation in [the] Ukraine” as the catalyst for the decision (at [110]).
In July 2022 when the child had been in Australia for more than three months she sent a text message to her father which read in part:
…one thing that makes me really really happy is that I am safe, and far away from the war, even the other day a boy came from [the] Ukraine and there are so many Russian/Polish/Ukrainians here that he felt right at home even though most of his family was still in [the] Ukraine. …
(Affidavit of Mr B filed 1 September 2022, Annexure MB-1)
Her views appeared to have changed at that point from those which she had previously expressed while living in Poland to views which more significantly approximated those expressed by the appellant.
In Ms G’s report dated 2 August 2022 she recorded some of the matters which she had discussed with the child during their interview on 12 July 2022. The report records:
17.Regarding the departure from Poland, [the child] maintained that this was led by her fear and uncertainty about the conflict in [the] Ukraine, later adding that she and [the appellant] were “scared”. [The child] gave two examples related to the conflict. The first being a bomb scare at her school, and the second related to the Russian military allegedly hacking the engineering of the train network (reportedly shared with her by her father). [The child] reported that some of her friends had moved to other countries to avoid the conflict as further justification of it being “my decision” to leave Poland. …
…
32.[The child] stated that the geographical distances between Poland and Australia made it easier for her to manage her feelings in relation to both the conflict in [the] Ukraine and protracted Court proceedings in Poland. … [The child] expressed her strong views that their “mental health” would be adversely impacted if they were forced to return. The report writer noted that in the psychological and pedagogical assessment of [the child], dated 28 September 2021, there was no record of any signs of anxiety being present, and the writers were of the view that [the child] did not require regular psychological therapy.
And further:
35.What, if any, objections [the child] has to returning to Poland.
…
b.… [The child] spoke at a slightly more rapid pace as she talked about how she and [the appellant] would be restricted from leaving Poland in an emergency (related to the conflict in [the] Ukraine) because her passport was with her father. [The child] rejected the notion that her father would help to ensure her safety if there was an emergency. [The child] presented with feelings related to low sense of safety and security. This may be related to a combination of her experiences of the impact of the conflict in [the] Ukraine, exposure to long standing parental conflict, feeling unheard, and managing possible inner turmoil related to her family and Court issues.
And later:
36.Whether any objection shows a strength of feeling beyond the mere expression of a preference or ordinary wishes.
a. [The child’s] empathic objection to returning to Poland indicated a degree of desperation, and wanting to avoid both the situation in Poland related to her parents’ entrenched conflict and the ongoing Court proceedings, as well as her feelings of being unsafe in the context of the conflict in [the] Ukraine.
During cross-examination Ms G contextualised the child’s expressed views about the war in the Ukraine and its relationship to her opposition to return in light of the earlier expressed views, the appellant’s views and the apparent change in the child’s views. That context was key to the primary judge’s assessment of this issue as well.
The appellant had originally contended that the primary judge mistook or misconstrued the oral evidence of Ms G. That submission as it appeared at paragraph 8 of the appellant’s submission, was made in error and accordingly, when this was drawn to counsel’s attention, Ground 2(b) was withdrawn by the appellant at the hearing of the appeal.
The appellant has not established that the primary judge failed to consider the child’s views.
Appeal Ground 2(a) is without merit.
Ground 3: did the primary judge apply too strict an approach to reg 16(3)(c)(ii) or take into account irrelevant matters or fail to consider relevant matters?
As is plain there are three separate complaints contained in amended Ground 3. The appellant says the primary judge:
(a)applied too strict a requirement to the assessment of the strength of the child’s feeling;
(b)took into account matters not relevant to determination of the strength of feeling; and
(c)did not take into account the likely effect of the appellant’s unpreparedness to accompany her daughter into account when assessing the child’s views.
The manner in which the appellant developed the argument in support of Ground 3(a) was to focus on the emphatic nature of the child’s views. It was submitted that Ms G’s description of those views as emphatic ought to have satisfied the primary judge that those views had sufficient strength of feeling. The regulation is expressed as requiring that each of its three separate limbs must be satisfied before the discretion to dismiss the application will be enlivened.
The way in which the ground was argued demonstrates some of the difficulties which present when the language of the legislation or regulations, which implements the Convention obligations, differs from convention country to convention country.
Article 12 of the Convention itself does not contain reference to “strength of feeling beyond the mere expression of a preference or of ordinary wishes”.
We have earlier noted that reg 16(3)(c)(ii) and s 111B(1B) were inserted by the Family Law Amendment Regulations 2004 (Cth), and that the language used in the Australian legislation and Regulations is more prescriptive than that in other Convention jurisdictions but the international jurisprudence, particularly in the United Kingdom, has echoed the Australian language: Re M and also see Re K (Abduction: Case Management) [2011] 1 FLR 1268.
As is set out above the “child objects” defence is a three limbed test in Australia, which is provided for by both s 111B(1B) and reg 16(3), and the middle limb is expressed as “(ii) the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes”. The approach of the appellant to the complaint in appeal Ground 3(a) proceeded on the basis that, once it was established that the objection demonstrated strength of feeling, the remainder of the clause was redundant. That cannot be the case. It is necessary to have regard to the plain meaning of the words which required the primary judge to find in the child’s objection a strength of feeling which took the objection outside the category of an expression of wish or preference. This was not the imposition of too strict a requirement but rather the proper reading of the whole clause.
One of the reasons why the phrase “beyond the mere expression of a preference or of ordinary wishes” is significant is because it appreciates that a child’s views, no matter how emphatic, are not the whole answer to what, in effect, is a forum dispute.
The appellant submitted that the question of the child’s objection and the strength of feeling exhibited by the child was not to be assessed by reference to whether such views are based in objective rational fact but rather to be assessed by reference to the subjective views of the child. That approach would produce an artificial result since the inquiry at the third stage into the child’s maturity must include an assessment of whether the objection is soundly based from an evidentiary perspective.
Ground 3(b) asserted that the primary judge had taken into account irrelevant matters when assessing the strength of the child’s feelings. Those matters were said to be the ones discussed at [169(b)], [169(c)] and [170] of the primary judge’s reasons.
At [169(b)] the primary judge concluded that the child is likely to be exposed to parental conflict whether she lives in Australia or Poland. He did so in the context of discussing whether or not the child’s expressed belief that remaining in Australia might assist her to manage the situation. The appeal ground asserts that such a finding amounted to taking into account an irrelevant consideration. We disagree. The primary judge understood this view of the child, in the context of the available expert evidence, as suggesting a naivety. That is relevant to assessment of the strength of her feelings.
At [169(c)] and [170] his Honour was considering the expert evidence about the possibility of an enmeshed relationship between the child and the appellant. To the extent that this was relevant to his Honour’s assessment both of the manner in which the child’s view had been formed, his assessment of her maturity and the overall discretion conferred by the Regulations, no error is demonstrated.
Under Ground 3(c) the appellant effectively argued by reference to the further evidence (but even if it were not to be admitted, in any event) that the primary judge failed to pay sufficient attention to the fact that the child’s strength of feeling would no doubt have been greater if she had been aware that the appellant was not intending to accompany her if an order for return to Poland were made. That submission had a number of difficulties:
(a)The primary judge had already found that the child would be “very unhappy” if a return order were made (at [208]);
(b)The appellant had not framed her case as one in which she would not return at the time of the evidence being taken (the issue appears to have arisen after the appellant had given her evidence and the matter had been on foot for several days) so it is difficult for her to now argue that a matter which arose in effect at the end of the case should have informed the approach to the case as a whole;
(c)The onus was on the appellant to establish a defence. She cannot now be heard to complain about the manner in which she ran her case or seek to now run it differently (Metwally v University of Wollongong (1985) 60 ALR 68);
(d)As to the suggestion by counsel for the appellant that the primary judge was in error when he declined to allow her counsel to cross-examine Ms G about this issue, the submission is misconceived since counsel for the appellant at trial plainly asked questions about this topic:
[COUNSEL]: It was stated by [the appellant] in court this morning that if there was an order for [the child’s] return, that [the appellant] said, at this stage, she wouldn’t go. That [the appellant] wouldn’t go back to Poland. Was that something you explored with [the child] at all?
[MS G]: I think it’s in my report. We’ve referred to it earlier, that [the child] was of the view that [the appellant] would return to Poland with her.
(Transcript 19 October 2022, p.400 lines 23-28)
As part of the submission in support of this ground, the appellant argued that the primary judge’s consideration of the sound public policy reasons behind reluctance to place too much weight on a situation which has been brought about by the conduct of the abducting parent should not have impacted on his Honour’s assessment of the strength of the child’s feelings. We agree. The two are separate considerations. However, we are not convinced that the primary judge did allow his legitimate conclusions about the appellant’s conduct to infect his thinking about the strength of the child’s feelings. Accordingly, this ground must fail.
Ground 4: Did the use of the word “significant” at [197(c)] amount to a departure from the statutory test?
The appellant points to a paragraph of the reasons in which the primary judge, having discussed the child’s views at length, observed:
197. …
(c)Insofar as [the child] may, in isolation, have attained an age at which it may be appropriate to take account of her views, the requirement in reg 16(3)(c) is conjunctive, namely, “the child has attained an age, and a degree of maturity”. Given [the child’s] enmeshment by and with [the appellant], as well as her alienation from her father by [the appellant], I am not satisfied that, despite her age, she has attained a degree of maturity at which it would be appropriate to take any significant account of her views. As Bennett J said in State Central Authority v Hotzner at [147.e]:
If the Court should come to the conclusion that the child’s views have been influenced by some other person, for example the abducting parent, or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views.
(Emphasis in original)
It is important to understand that when reg 16 speaks of the three mandatory factors, the third is expressed: “(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views”.
The expression “take account of” is not synonymous with “make orders in accordance with”. The requirement to “take account of” is one which requires the primary judge to take that objection into consideration. The fact that, when discussing the views which constituted the objection, the primary judge indicated that he was not inclined to “take any significant account” of the child’s views, was situated in a long, detailed and considered discussion of how those views had been formed. This does not demonstrate error.
Ground 5: Was the primary judge’s finding that the relationship between father and daughter had more prospect of repair if the return order was made available on the evidence?
The evidence which the primary judge sets out at [112] to [114] is key to his Honour’s finding about the prospects of improvement to the parent child relationship if a return order were to be made. They read as follows:
112. On 14 April 2022, [Ms F] prepared a further report, addressed to the Regional Court, in which she summarised the father's time with [the child], in her presence, on five occasions, since her last report to that court dated 22 November 2021. [Ms F] reported that, since January 2022, she had observed a marked change (for the better) in [the child’s] behaviour:
First of all, the girl began to address her father directly and talk to him. Previously, most of what she said was directed to me, even as it concerned directly [the child’s] father. Their conversations with each other became much more natural and covered more and more topics. [The child] was more willing to tell her dad about school, her new classmates, and how she spent time with them (including at a [...] restaurant).
113. In relation to the war in [the] Ukraine, [Ms F] reported that:
[The child] was outraged by Russia's invasion of [the] Ukraine, but she herself did not feel threatened by it, and there were no anxiety reactions visible in her behaviour. The girl excitedly told her dad how she and [the appellant] helped refugees, i.e. that they took food, including a cake baked by [the child], to a humanitarian aid centre. [The father] told his daughter how he helped a girl from [the] Ukraine who found shelter in his house. [The child] was very interested, as she had met her before. [The child] asked her dad to give this girl her phone number.
114. [Ms F] reported that [the child] "told her father about an incident she had concealed from [the appellant], knowing that she would not approve of it which, in her opinion, "testifie[d] to the daughter's rebuilding trust in her dad". Further, the "change in [the child’s] behaviour also manifested itself in the fact that the girl gave her phone number to her dad". [Ms F] also reported that, from January 2022, she observed that [the child] felt increasingly at ease at her meetings with her father, she smiled more often, was generally more cheerful and open. Further, the improvement in the quality of the meetings between [the child] and the father and, therefore, her relationship with him, was also manifest in the fact that the meetings were of longer duration than previously and were not cut short by [the child].
The submissions in support of this ground made reference to the evidence of Ms G which referred to there being “some glimmer of hope” that the relationship could improve (Hague Report dated 2 August 2022, paragraph 39). Fairly, the submissions also acknowledge the evidence of Ms F (as detailed above) which detailed the advances in the family therapy immediately prior to the child’s removal.
To conclude, as the primary judge did, that the relationship between the child and father may, on balance, have a better prospect of repair if a return order were made, was unassailable. Three factors informed the conclusion: the first was the finding that the appellant was not supportive of the relationship when the parties were living in close proximity, supporting a conclusion that this was unlikely to be improved by distance. The second was his Honour’s finding that the court ordered family therapy had begun to show signs of changing the father/child interaction in a positive manner. Lastly, the significant geographical challenge which would be posed to the repair of the relationship if the father and child were in separate countries as opposed to the same city. The only countervailing factor (and one which his Honour did consider) was the possibility that, by effectively giving the appellant the outcome she desired – one in which the child had also become invested – the father/child relationship might improve. Either conclusion would have been speculative. His Honour’s finding on the balance of probabilities was open. The ground must fail.
DISPOSITION OF THE APPEAL
For reasons set out above, the appeal must fail. Given the child’s age, a differently constituted court at first instance may have well reached a different decision, but it is trite to note, this alone does not demonstrate appellable error.
On 25 January 2023 the orders were stayed pending the outcome of the appeal. It follows from the delivery of reasons and making of orders in this appeal that the stay ceases to operate. The effect of dismissing the appeal therefore is to revive the suite of return orders and conditions of 20 December 2022.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Christie & Schonell. Associate:
Dated: 13 April 2023
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