Department of Child Safety and Baker

[2008] FamCA 171

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & BAKER [2008] FamCA 171

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – 13 yo boy – habitually resident in USA – retained by mother in Australia – objecting to return to USA/preference to remain in Australia – exception not made out – child returned

APPLICANT: DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

RESPONDENT: MS BAKER

FILE NUMBER: BRC 13994 of 2007

DATE DELIVERED: 22 February 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 22 February 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Parrott, instructed by the Crown Solicitor, Brisbane, Qld

COUNSEL FOR THE RESPONDENT: Ms McDiarmid

SOLICITOR FOR THE RESPONDENT: Briese Mahon

Orders

1. That the child, …, (“the child”) born … November 1994, be returned to the country of the United States of America and for the purposes of giving effect to this order:-

a.That the said child leave the Commonwealth of Australia on or before 20 March 2008;

b.That pending the said child, … born … November 1994, returning to the United States of America, the Respondent mother, … born … April 1969, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from the Commonwealth of Australia;

c.That pending the return of the said child, … born … November 1994, to the United States of America, the Respondent mother, … born … April 1969, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child, …, born … November 1994, from the premises where the respondent mother and the said child are currently residing, namely, …, Queensland;

d.That until further order, the Respondent mother, … born … April 1969, surrender forthwith to the Registrar of this Honourable Court all current passports relating to herself and the said child, … born … November 1994;

e.That subject to sub-paragraph f. below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent mother, … born … April 1969, and the said child, … born … November 1994, on the PACE Alert System at all international departure points in Australia;

f.That the said child, … born … November 1994, and the Respondent mother, … born … April 1969, be removed from the PACE Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Child Safety advising of the travel arrangements made for the said child to return to the United States of America, from 12.00am on the date nominated for the said travel in the letter;

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

h.That to facilitate the return of the said child, … born … November 1994 to the United States of America, the Registrar of the Family Court shall, upon receipt of a letter from an officer of the Department of Child Safety advising of the travel arrangements made for the said child to return to the United States of America, release to the person nominated in the letter, all current passports relating to the child for the purposes of the said child's return to the United States of America, and release the Respondent mother’s passport to her or her nominee upon request.

i.That liberty to apply be granted to the Applicant to seek any further orders necessary to allow him to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.

j.That the Director of Court Counselling arrange for a Court Counsellor (and it is requested the Counsellor be Ms H) to meet with the child, …, for the purposes of discussing the Court’s decision to order his return to the United States of America, and so far as is appropriate in the view of the Court Counsellor so appointed, the reasons for the decision.

1. That there be liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Department of Child Safety & Baker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC13994/2007

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

Applicant

And

MS BAKER

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is an application by the Director-General of the Department of Child Safety on behalf of the Central Authority under the Convention on the Civil Aspects of International Abduction for the return of a 13 year old child from Australia to the United States of America.

2. It has been established that the child was born and raised in Australia until November of 2004.  His parents married in January of 1992 and separated in January of 2001. 

3. It is agreed that, on 2 May 2001 in the Magistrates' Court at Toowoomba, the parties entered into consent orders which provided, amongst other things, that the child should reside on a full-time basis with the father, who was to be responsible for the child's day-to-day care, welfare and development.

4. The father re-partnered and married in early 2004, and the father, his new wife and the child moved to the United States at the end of 2004 with the respondent mother's consent.

5. The parents reached agreement about arrangements for contact, which were to be by agreement, and including provisions for regular contact by phone and email, and in practice the child returned to Australia in June and July of 2006 and 2007 for the extended United States vacation.

6. The child spent his time in Australia in 2006 without incident.  He travelled to Australia again in June of 2007 and was to be returned to the United States on 30 July 2007.  The child was not returned by the respondent mother and has been retained in Australia without the consent of the father.

7. The respondent mother says she refused to return the child as a consequence of a strong and persistent expressed wish on his part to remain in Australia and not to return to the United States.

8. I am satisfied on the evidence that: (1) at the time of the retention by the respondent mother, the father had rights of custody as that term is defined in the Regulations; (2) that prior to the retention, the habitual residence of the child was the United States of America, and that that is a Convention country; (3) that the retention by the mother breached the father's rights of custody.

9. The object of the Hague Convention is to ensure the prompt return of children wrongfully removed or retained, and the purpose of the Regulations under which this Court operates is to enable the performance of the obligations of Australia under that Convention. 

10. The Regulations provide a mechanism for the return of a child to the country of habitual residence from which a child was wrongfully removed or retained and is designed to enable outstanding issues relating to the child's longer term custody and access to be dealt with in the Courts of the country of habitual residence.

11. This is the forum which determines applications under the Convention and the Regulations.  It is not the forum to determine issues of custody and access.  The proceedings relating to the mere return of children are traditionally conducted in a summary nature, and that has quite properly occurred in this matter.  The Central Authority filed material and provided the Court with submissions; the mother and members of her family filed material, and she was represented by counsel who prepared written submissions and made oral submissions.

12. In this matter, there was little significant conflict in the evidence, in that the parties largely agreed about the history and largely agreed about the circumstances leading to the current state of affairs and this application.  Where they differ is in relation to their perceptions of their respective parenting abilities and what they have in the past offered their child, and that is understandable.  They each acknowledge that they have very different parenting styles and personalities.  This is one of those cases where I am not troubled by outstanding issues of fact and met with vastly different versions of key events.

13. On the facts of this case, and having made the findings I have made relating to rights of custody, habitual place of residence and Convention country, I need to observe that this Court is required to make an order for the return of the child unless the matter is one which falls within the so-called exceptions identified in the Regulations, and reg 16.3 in particular. 

14. If the applicant makes out a case that this is an exception - and the onus does rest upon the mother in this case - it does not necessarily follow that the Court will refuse to return the child.  Establishing an exception would give rise to a discretion to order the child to return or to refuse to do so.  I emphasise the expectation that is upon our Australian Courts is that, ordinarily, children will be returned.  Even if a party does identify an exception, the Court is still obliged to consider returning the child, and in that context it must have regard to not only the matters the subject of the exception, but also to the overriding consideration of comity between countries and adherence to the treaty. 

15. I now turn to the respondent mother's case in this regard.  She gives evidence herself.  She produces evidence from a number of witnesses who are largely family members.  She produces evidence indirectly from the child himself in terms of some letters written by him.  I need to observe that, ordinarily and appropriately, Courts need to be quite cautious about receiving such evidence from children because of the risk that children can be manipulated to say and write things and the Court needs to be mindful of that prospect.  However, I also need to record that, in this case, I have no sense of the child being manipulated by his mother or members of the family.  I accept that what appears on the written letters are the child’s own words chosen by him.  I am reinforced in that view because what he sets out in those letters is entirely consistent with what the mother has said and what a number of relatives have said and what the counsellor has confirmed.  I do have the benefit of a report from a family counsellor, which report was dated 21 January 2008.

16. That body of evidence indicates to me that the child has a strong preference to remain in Australia and to live with his mother.  Through those sources, he states clearly that he does not wish to return to the United States and he outlines a number of aspects about his life in the United States he does not like. 

17. I should record that, in her written submissions, counsel for the mother addresses two of the exceptions, the first relating to the Court's right to refuse to return if it determines that there is a grave risk of physical or psychological harm.  Ms McDiarmid did not press that matter further in her oral submissions.  I need to simply observe that, in my view, the case falls far short of the requirements of that exception.  The words need to be given their ordinary meaning and “grave risk of physical or psychological harm” are terms identifying very serious matters.  There is no suggestion that, in the past, the child has come to any physical harm in his father's care.  The material does not make any suggestion of future risk.  The father is a strict disciplinarian, but the evidence indicates that he is a dedicated parent and one who would not deliberately expose his son to any harm.

18. There can be little doubt that there are psychological implications for the child in that a return against his wishes would cause him hardship and the need to make adjustments.  Obviously, a return against his wishes would have an impact upon his wellbeing.  However, this ground requires cogent evidence of grave risk of harm.  Those matters identified by the report writer relating to the prospect of intense depression if he is returned, as set out in paragraphs 20 to 22 of the report, were based on the premise of three designated outcomes for the child, and that is that he is: (1) required to be returned to the United States against his wishes; (2) required to remain in the United States throughout his teenage years; and (3) not allowed to have contact with his mother.  The evidence does not enable me to conclude that the second and third limbs of that proposition will come to pass.  I need to deal with the matter on the basis of the required return against his wishes, and the evidence certainly does not go to the required degree postulated by the counsellor. 

19. In my view, the reservations the child expresses about life in the US speak of dislikes and preferences and, as such, are not to the degree that would leave him exposed to the type of harm identified in that subparagraph.

20. I return, therefore, to the principal thrust of the mother's case and her counsel's submissions, sub-paragraph (c) of reg 16.  That provision requires the Court to consider whether the evidence establishes that: (1) the child objects to being returned; (2) the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and (3) the child has obtained an age and a degree of maturity which it is appropriate to take into account.  If those preconditions are established, then, as I say, a discretion is vested in the Court to refuse to return.

21. I am required to examine the statements of the child and determine whether they constitute an objection to being returned, and further that that objection is beyond a mere expression of wishes or preferences.  It is important to note that the relevant objection is an objection to being returned to the country of habitual residence.  It is not a question of objecting to living with a particular parent.  The relevant time to assess such matters is at the time of trial.  I can take into account all of the evidence leading up to this hearing.

22. When one examines the child’s statements through the mother, through the other relatives, through his letters and through the welfare report, the following picture emerges.  The body of evidence from the mother and the rest of the family has its origins in apparent statements by the child when he was asking his mother when would he have the right to decide where he could live.  Other statements made to the mother and others include the fact that he missed his mother and the extended family when he was so far away.  He also expressed concerns about aspects of his living and schooling arrangements with his father.  In particular, he objected to having to change to another school.  He says he is resistant to the prospect of moving and he identified issues with his stepmother, in that there is some conflict between them.  He also identified some issues with his stepsister. 

23. The mother says that he has told her in strong terms that he wants to stay in Australia, he wants to stay at his current school, and wants to stay with his friends.  It is said that he has told her that he would contemplate running away if he was required by the Courts to return to the United States. 

24. In the first letter where he lists his concerns about being returned, Exhibit KLB2, he merely repeats those matters identified by the mother in her material to the effect that he misses his family when he is in the United States; he gets along better with the mother's current partner than he does with the partner of the father; he is sick of moving, and he thinks that his father can be too strict.

25. However, it is to be noted, both in the material that comes from the mother and that from his own hand, the child is keen to reiterate that he loves his father. 

26. Perhaps the most telling information from the child emerges from his letter to his father.  I accept that, in terms of expressed wishes, weight should be placed on statements made by a 13 year old child to the parent he or she is intending to leave.  It does take some courage for a child to tell a parent he loves that he wants to move away from that parent. 

27. Exhibit KLB6 commences with the child reassuring his father that he has "spent seven long happy years living with you", and he compliments his father on the way he has parented him and educated him and the values he has given him and he asserts that, through that guidance, he has become a good person.  Having made those acknowledgements, he goes on to say that:

    I would like to spend the rest of my teen years with my mum.

    And later he says that he would like to settle down and spend time with the family.  In the balance of the letter, he says that “that is my decision”.  He proceeds to explain his preferences and wishes, and explain his decision, and he asks his father to respect those wishes.

28. I now turn to the contents of the family report.  It is necessarily a document I give considerable weight to.  On the totality of the evidence, I have concluded that, whilst the child has reached a clear decision about where he would prefer to live and has articulated that well, he nevertheless is also struggling with the fact that he loves both of his parents very much and does not want to hurt either of them.  Sometimes that appears to colour the language, and a good illustration of that is the difference in tone between Exhibits KLB2 and KLB6. 

29. Whilst the child would continue to be aware of the sensitivities surrounding what he was saying to the counsellor, it is perhaps a little bit more removed from the direct communications with his mother, on the one hand, and with his father, on the other.

30. When examining the child’s views, the counsellor describes the views of the child on the notion of whether he objects to returning to the United States of America in paragraph 5 in the following terms:

    I wasn't happy in America, but I love being with my dad.

    He later indicated that he just did not like “the whole American thing”.

31. He went on to expand upon these matters in terms of the reasons, in that he saw a better life for himself in Australia.  He had a preference at this time in his life to spend time with his mother and extended family.  He saw more positive things about schooling in Australia and he was establishing friendships.  He indicated that he did not want to have to move again.  He anticipated that further moves were a component of life in America.  He was to tell the counsellor that it was his turn to spend time with mum, and that he liked what he has had in Australia since July of 2001.  The child reiterated to the counsellor that he had a close attachment to his father.

32. In paragraph 14 of the report, the counsellor confirms my interpretation of the totality of the evidence.  She says:

    Whilst [the child] reported feeling much happier and settled living in Australia on the information available there is no evidence to suggest that his objections to returning to the United States show a strength of feeling beyond an expression of considerable preference at this point.  

33. I take the view that what the child is expressing through his mother and each of the sources is a strong preference at this stage of his life to remain in Australia and to live with his mother and to have contact with extended family.  If it could be argued that those preferences should also be construed as an objection, at the very least I am not satisfied that the expressions show a strength of feeling necessary to meet the prerequisite.

34. I do need to record for the sake of completeness that I am of the view that the child is of an age and of a maturity where it is appropriate to take account of his views.  He is 13 and he appears to be an intelligent, mature, young man who has reflected carefully on his decision.  He is aware of the consequences and is able to be balanced in his expressions. 

1. On the other hand, I again return to the report where, in paragraph 15, the counsellor says:

   At 13 [the child] still requires guidance and supervision from an appropriate stable and supportive adult to assist him through his early adolescence, but in my opinion he has gained a level of maturity that would warrant the views being given some consideration.

   I concur with those views.

2. Finally, I agree with what the counsellor set out in paragraph 18 of her report:

   [The child] offered little in the way of compelling reasons that would prevent him returning to the United States of America, and it is my view that the reasons he has offered amount to what could be considered a strong preference.  Neither he nor his mother voiced any concerns in relation to his physical safety or emotional wellbeing whilst in his father's care.

3. I again concur with the counsellor. 

4. My interpretation of the totality of the evidence is that the child has a strong preference to remaining in Australia, but that evidence does not enable me to conclude to the required standard that he objects to being returned to the United States.

5. In those circumstances, I do not have a discretion.  The discretion does not arise and exception has not been made out.  Accordingly, I must make all necessary orders to secure the return of the child in accordance with the treaty Australia has entered into with the United States of America.

RECORDED   :   NOT TRANSCRIBED

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: