Department of Child Safety and Gibson

[2008] FamCA 600

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & GIBSON [2008] FamCA 600

FAMILY LAW – HAGUE CONVENTION – 8 yo boy removed from UK – Consent – Discretion – Refused application for return

APPLICANT: DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

RESPONDENT: MR GIBSON

FILE NUMBER: BRC 2629 of 2008

DATE DELIVERED: 30 May 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 30 May 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr K Parrott, Crown Law

SOLICITOR FOR THE RESPONDENT: Mr C Turnbull, Journey Family Lawyers

Orders

1. That the Form 2 Application filed on 18 March 2008 be dismissed.

1. That Orders 2, 3 and 5 of the Orders made on 15 April 2008 be discharged.

IT IS DIRECTED

1. That any passports produced pursuant to Order 6 of the Orders made on 15 April 2008 be returned to the Respondent.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2629 of 2008

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

Applicant

And

MR GIBSON

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. In this matter, the Central Authority brings an application seeking orders pursuant to the Family Law (Child Abduction Convention) Regulations seeking the return of the child, born in November 1999, to the United Kingdom.

2. The Central Authority has established to my satisfaction and without any real argument to the contrary:

   a)that the child was a child habitually resident, prior to his removal, in the United Kingdom, which was a convention country;

   b)that the applicant mother, Ms Gibson, had rights of custody at the time of the removal; and finally

   c)that the physical removal of the child from the United Kingdom by the father on 29 January 2008 breached the mother's rights of custody in respect of the child which she was exercising at the time and would have exercised but for the removal. 

3. The father acknowledges that he removed the child on 29 January 2008 and travelled to Australia, where he has remained, but contends that he did so with the consent of the mother, thus giving rise to the exercise of a discretion pursuant to reg.16(3) to refuse the application of the Central Authority to have the child returned.  The vast bulk of the material and all of the submissions have focussed on that aspect of the case. 

4. The father did plead that the Court should also consider the provisions of reg.16(3)(b) and (c) relating to the child's objection to being returned and to the grounds that to do so would expose him to grave risk of psychological harm.  Rightly, that third ground was abandoned by his legal representative, it being agreed that the father would accompany the child, and it was not argued that a return would expose the child to those consequences. 

5. As to the child's objection, I have before me a welfare report and, again, quite correctly in my view, particularly having regard to the tender age of the child, Mr Turnbull who appears for the father acknowledged that the gravamen of that evidence was only sufficient to be considered in the context of how I might exercise my discretion in the event that I found consent, and that it was insufficient to stand as a ground itself.  I simply observe that, with or without that concession, it was my intention to make findings to that effect. 

6. My analysis of what the child has had to say through the family consultant is evidence of a strong preference to remain in Australia; to remain in his school; to remain with his father, and to establish that he would be unhappy about being required to go back to the United Kingdom and that he has reservations about spending time with his mother, and that is the highest that it can be taken, in my view.  He will be unhappy, he will be displeased, but he will be supported by his father and he would deal with the consequences of any decision adverse to what is really, in my view, an expression of wishes, rather than a clear identification of the necessary type of objection.  To proceed otherwise would be to allow the expressions of an eight year old to take priority over the weighty matters that are otherwise to be considered under this treaty which is taken very seriously by the United Kingdom and Australia.

7. Accordingly, I do focus, as did the legal representatives, on the central issue relating to the consent of the mother.  There are a number of facts that are agreed.  As is so often the case, however, there are many facts in dispute.

8. The nature of these proceedings is such that the task thrust upon the Court is to consider very weighty decisions which have serious consequences for the parties and for their child or children, a task made all the more difficult by virtue of the fact that, traditionally, these cases are decided on the papers, as this will be.  Quite appropriately, there are no applications to embark upon any cross-examination.  I do the best I can, having regard to the evidence of each of the parties. 

9. The common ground is that the parties married in 1998 and separated in September of 2006.  It is common ground that, thereafter, the father provided the primary care for the child.  There are issues between the parties in relation to the reasons for that fact, which are disputed facts which I cannot resolve and which are unnecessary to examine in any detail.  The mother did exercise contact to the child at various times with some degree of frequency; at other times on a more limited basis, and again, the parties are at odds about the reasons for the disruptions to regular contact between the child and his mother. 

10. It is common ground that, in about October of 2007, the father informed the mother of his wish to move to Australia for a work opportunity for a period of some two years.  There were discussions.  The father describes them as discussions.  The mother describes them as descending into threats and, she says, including a threat that he said if she did not agree, she would never see the child again.  The father, as I say, denies this and says that disruptions to the mother seeing the child were of the mother's doing.  

11. In any event, again trying to deal with the common ground, on 18 December 2007 the mother provided, to that point, the best evidence of her views by filing in the County Court at Coventry an application seeking what is described as a "Prohibited Steps Order", which apparently is the equivalent of an application brought in this jurisdiction to restrain parties from removing children from a country.  At the same time, the mother sought defined orders in relation to residence and contact.  On 18 December 2007, an order was made prohibiting the father from removing the child from England and Wales until further order.  The father was served with a copy of that order and the matter was listed for return on 20 December 2007. 

12. It has been established that, on 19 December 2007, the mother's solicitors wrote to the father advising that they did not intend to proceed on 20 December 2007 with a Christmas contact application and that they were going to have the prohibited steps proceedings stood over.  Those proceedings were eventually adjourned to 7 February 2008. 

13. To that point, all of the objective evidence indicated that the mother was opposed to the prospect of the child being taken to Australia.  However, what has emerged both from the father's material and paragraph ‘w.’ of the mother's affidavit handed to the Court today, which is Exhibit 1 in these proceedings, is the fact that the parties and the father's de facto partner, Ms W, met in a hotel on 21 December 2007.  Both Ms W and the father assert and the mother agrees that, on that occasion, she did affirm that she would allow the father to move to Australia with the child. 

14. What is contended by the mother in her material, and by the Central Authority in argument, is that that consent should not be treated as real, positive and unequivocal. 

15. In relation to the relevant principles, it is clear that the onus of establishing consent rests upon the respondent.  The consent must be before the act of removal and it must not be vitiated by duress or deceit. 

16. Mr Turnbull, who appears on behalf of the father, contended in a written submission that, once given, consent cannot be retracted.  That is, perhaps, an oversimplification of what he had to say.  In any event, he conceded during submissions that it would, in fact, be open to a consenting party to withdraw that consent. 

17. The mother said she did withdraw the consent.  Firstly, she says she gave the consent under duress and largely to secure contact over Christmas, suggesting that the father evinced an intention to deprive her of such contact unless she agreed.  The mother says, in effect, that she availed herself of that contact and then subsequently made it clear to the father that she was no longer consenting. 

18. The father says that the mother consented on 21 December 2007 and that she did not subsequently withdraw that consent and that, in fact, she affirmed her consent by her words and actions. 

19. As I say, I take the view that the mother can, on the one hand, be found to have consented to the move but, at the same time, be found to have subsequently withdrawn her consent, so that at the relevant time, being the time of removal, the father did not, in fact, have the consent of the mother to remove the child.  However, it seems to me an inescapable and logical proposition that, if it is found that the mother consented, as I do in this case find she consented on 21 December 2007, a finding that she subsequently withdrew her consent should only be made if I can be satisfied that the evidence enables me to conclude that she, in fact, changed her mind and that she communicated that change of mind in a real, positive and unequivocal way.  It is a two-sided test, wherein both the consent and any subsequent withdrawal must be established with the prescribed clarity.

20. The respondent must firstly establish that there has been consent and, in my view, once established, it is upon the applicant to demonstrate that that consent was withdrawn. 

21. I examine that key question of consent prior to examining the issue of duress in relation to the consent on 21 December 2007 because, in my view, the matters I take into account in one, have some bearing on the other. 

22. Before I do so, on the question of duress, it is conceded by the Crown, again quite properly in my view, that the mother's evidence on that point is not compelling.  She talks about feeling under “considerable” pressure. 

23. It is noted that the applicant had access to legal representation.  Further, there was a passage of time of some five months from the date when the father first gave the mother notice of intention to the date of departure.  It is also clear that there was, in that time, even on the mother's case, much toing and froing between the parties.  None of the evidence relied upon by the mother really addresses questions of any immediate threats and the like.  However, I am satisfied she has raised a ground worthy of consideration.  I will take account of that matter further after I have focussed on the central issue, which is, having given consent, whether that consent was withdrawn. 

24. It is in this context that the parties are in direct conflict.  The father asserts that the mother continued to consent; the mother asserts that she withdrew her consent.  In that regard, all I can do is review the totality of the evidence, look for corroboration and consider inherent probabilities and undertake the usual exercise undertaken by Courts when confronted with such conflict on the papers. 

25. I will focus firstly upon those matters brought to bear, as it were, on the father's side.  I note that, amongst the matters referred to in the material, is the fact that the parties were, on both versions, in regular communication at a personal level after the decision of 21 December 2007. 

26. In my view, a matter worthy of note, if the mother's version is to be preferred, is her inaction after 21 December 2007.  It is a viable proposition that somebody may feel compelled to use the advantage of the father's pending departure to agree to give permission if that was what she perceived to be necessary to secure Christmas contact, for example.  Christmas is a very important, special time of the year.  It could be a compelling reason, in the absence of ability to access Courts immediately before Christmas, to explain why a person might feel disposed to agree with a proposition merely to secure that contact.  However, when the mother had the benefit of legal representation, it is more surprising, in terms of inconsistency with her proposition, that she would have remained inactive between 21 December 2007 and 29 January 2008. 

27. No proceedings were instituted in any Court; no solicitors were instructed to write letters.  One would have expected to see some evidence of that type of thing if the mother did, as she says, directly inform the father that she was withdrawing her consent.  Further on that point, the mother acknowledges she observed that the father was continuing to apparently take steps to put into effect his move to Australia and she chose not to take any steps.  The applicant says in her material that she was relying on the fact that there were proceedings pending in relation to a prohibited steps order in February.  Such an explanation may be consistent with her version to cover an occasion or two.  However, when all of the evidence and all of the observations of the mother over this long period were to the effect that she had the opportunity to observe that the father was putting in place his plans to move, then, in terms of the probabilities, one would have expected some further enlisting of the assistance of solicitors or a Court.

28. Secondly, and importantly, it is common ground that, on 8 January 2008, the mother signed a visa application with the father.  Of course, I accept absolutely that signing an application for a visa is not, in itself, proof of ongoing consent to a removal.  It is consenting to jointly approach the relevant department to secure a visa only.  However, in terms of circumstantial evidence on the issue of consent, the mother's attendance to sign a visa is more consistent with the father's version, that is, that the mother was continuing to exhibit consent.  Such conduct is less consistent with a proposition that she had changed her mind and clearly communicated her withdrawal of consent to the father.  One of the easiest ways for the mother to have put into effect her withdrawal of that consent would have been to refuse to execute the visa.  The fact that she chose to execute the visa is circumstantial evidence more consistent with the father's account. 

29. On the issue of duress in terms of signing the visa application, a proposition advanced by the mother and refuted by the father, I note that the parties travelled together in a motor vehicle to a solicitor's office for the purposes of the execution and that that execution took place in the presence of a third party, in this case a solicitor.  In my view, such matters are relevant considerations, not only on this question of consent, but also as being indicators inconsistent with any ongoing duress.

30. The third matter I take into account on the father's side is a letter he wrote to the Court on 9 January 2008.  Both parties agree that, on that day, they had a conversation which was about the existing prohibited steps order.  The mother asked the Court to infer that the conversation, from her point of view, was to reinforce to the father that he could not move whilst there was that prohibited steps order and to remind him of his obligations.  The father's version is that, in fact, it was the mother who told him that, if he wanted to proceed with his move consistent with what they had done the day before, he should take steps to get the prohibited steps order removed. 

31. In the circumstances, I must have regard to the contents of that letter (Exhibit 2).  In terms of how one interprets that document, the assertion by the father in that letter that the mother was agreeing to the move cannot be admissible against the applicant on the issue of consent as it is clearly a self-serving statement.  However, in my view, the contents are relevant circumstantial evidence to take into account.  The act of the writing of the letter to a court and the contents of that letter contribute evidence which is consistent with the father's version and inconsistent with the mother's version that she had withdrawn consent.  In my view, it is more consistent with the father's version to observe that he would openly approach a Court, the very Court charged with the responsibility of, firstly, making, and secondly, maintaining a prohibited steps order, and assert the mother was consenting, if, in fact, he knew that she had withdrawn her consent.  Whilst such conduct is not inconceivable, it is, in my view, a bold proposition that he would, in fact, take it upon himself, not only not to try to get an order removing the prohibited steps order, but to boldly assert falsely to a Court something that he knew to be false.  In my view, that letter is more consistent with the father's understanding that the mother had consented to the child's removal from England and inconsistent with a knowledge that the mother had withdrawn it. 

32. The fourth matter I take into account is that it is common ground that the mother became aware that the father had removed the child from school.  I think it was on about 14 January 2008, but it was clearly some time before the father removed the child from the country.  She had also become aware that the father had finished employment.  She even became aware that the father was having a leaving party.  What did the mother do?  Nothing.  She continued to regularly exercise contact and continued to return the child to the father.  Each of the parties say that the father went on to provide the mother with details of the Australian school options that he was considering. 

33. In my view, the mother's inactivity, the mother's continual handing of the child over to the father after contact after she became aware of the child finishing school, aware of the father finishing work, aware of the father having a farewell party, is inconsistent in a fundamental way with her ongoing assertion that she had withdrawn her consent and had communicated that to the father.  If at no other stage, if the mother's version is to be believed, it is almost inconceivable that, firstly, she would simply hand the child over for the leaving party and/or fail to take any steps.  In my view, the mother's conduct at that critical time shortly before the departure is, in fact, entirely consistent with the father's version that the mother had, in fact, given consent and had not withdrawn it. 

34. Of course, those matters, including the regular dialogue, exchanges, changes of contact and the passage of time, all work to mitigate against the mother's proposition that she acted and continued to act under duress, as is her attendance upon the solicitors, the circumstances of the agreement which was made in a public place, in a hotel, with other people around, including the father's partner.  In my view, all of these matters are inconsistent with duress.

35. On the other hand, when I look for objective evidence on the mother's side on this question of withdrawal of consent, there is really a void. 

36. In my view, all of the relevant and important objective indicators are consistent with the father's assertions and are inconsistent with the mother's.  The mother's lack of action is consistent with the father's version and inconsistent with the mother's. 

1. I find, therefore, that the mother consented on 21 December 2007 and I find that, whilst she may have had ongoing reservations, she did not withdraw her consent and clearly and unequivocally communicate that to the father.   

2. That gives rise to the exercise of a discretion to refuse to return the child and make the orders sought. 

3. I should have indicated in this context that there was a preliminary argument advanced on behalf of the Central Authority that the mother's consent was irrelevant.  It was argued that the County Court at Coventry had vested in it rights of custody once the mother instituted proceedings before the Court and there were pending before that Court outstanding issues relating to the custody of the child.  Mr Parrott refers me to authorities: Brooke v The Director General Department of Community Services (NSW); Thomson v Thomson; In Re H; and Wenceslas v The Director-General, Department of Community Services and the High Court authority of MW, which provide some support for that proposition.  However, he then argues that, therefore, the relevant consent necessary to give rise to this discretion is the consent of the County Court at Coventry.  I note in that regard that the High Court in MW apparently determined that a person, institution or other body referred to in reg.16(3) can be broad enough to encompass a Court as a holder of rights of custody. 

4. Mr Parrott correctly drew my attention to the fact that the High Court did proceed to conclude that, notwithstanding that finding, the regulation and requirements that "the person, institution or other body seeking the child's return" limited the relevant rights of custody to the parties before the Court. 

5. Reg.16(3) reads, in the context of a Court refusing to make an order sought in sub-para (a):

   The person, institution or other body seeking a child's return:

   i)         . . .

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

   It is a fact that, in this case, the person seeking the child's return is the mother and the person the father alleges has consented is the mother.  The County Court of Coventry is not a body or institution that is seeking the child's return.   

6. In my view, the fact that some other person or some other body had co-existing rights of custody cannot be a bar to a person arguing that he had the consent of the party seeking the return. 

7. In my view, the relevance of the fact that the County Court also had rights of custody is a matter to be taken into account in the exercise of my discretion, particularly in the context that there was an existing order in place prohibiting the father from removing the child and the desirability of comity between Courts.

8. In my view, the purpose of the treaty and the jurisdiction of the Court is fundamentally designed to protect parties and their children from the harm associated with international child abduction.  In that context, the obligation of the Court and the purpose of the regulations is to protect children and the mother from the consequences of the father's unilateral and precipitous removal of a child without the knowledge or consent of the mother.  The essential question, in my view, is whether it was with or without the mother's consent.  Otherwise, one would be faced with the proposition that the parents consented, and yet there might be a potential bar from another source not a party to the proceedings.

9. The reality is that the County Court of Coventry has no actual interest in acting in a way inconsistent with the proper consent and decisions of the parents of the child.  Indeed, it is a very common fact of life that, subsequent to Court orders, parties often agree about parenting and put in place appropriate arrangements for their children contrary to continuing Court orders.  Indeed, Courts encourage parties to reach agreement and discourage them from litigation if they are able to reach agreement.  In my view, it would be unconscionable, if the mother clearly consented to the father removing the child and observed the father then act upon her consent, that she would then seek to rely upon the technicality that there was some other existing order in place. 

10. I take the view that I should determine this matter as between the parties and that is, in my view, the proper interpretation and proper understanding of the meaning and intent of the regulations and reg.16(3) in particular.

11. At the same time, this consideration then gives rise to the fact that I have determined that one of the matters I need to take into account is the fact that the County Court of Coventry had rights of custody and, even more importantly perhaps, that it had made an order to prohibit the removal of the child until further order. 

12. I also take into account the broad purpose of the treaty, a proposition that I hold very dearly and have applied robustly in my 17 years on the bench.  I am obliged to have regard to the treaty and the purpose behind it.  I am to properly apply the law, which requires me, in appropriate cases, to consider the option of refusing to make the order if one of the grounds is made out.  I have been satisfied in this case that consent has been made out, which gives rise to the exercise of this discretion. 

13. In terms of the orders of the County Court, I take those into account.  I take into account the conduct of the mother in subsequently consenting to the removal in terms of my attitude to the breaching of an order.  This is not a case where I should find that the father removed the child in a flagrant breach of an order and as a flagrant affront to the authority of the Court.  Although it was inadequate, an important element of this aspect of the case is that the father at least sought to be open with the Court.  He sought to write to the Court and inform it of his understanding.  Although he received a reply that he would need to make an application, he says that, in the context of the consent of the mother, he did not believe that that would be necessary.  It is a mistake at law, but in the context of all else that was happening and continued to happen, his was not an unreasonable proposition.  In terms of his bona fides and conduct, the fact that he wrote to the Court was a matter I take into account, both on this issue of deciding the facts between the parties and on the issue of how I should exercise my discretion.  He did inform the Court inadequately, but he did so.  So in those circumstances, I am less robust, as it were, in my support of the desirability of there being comity between Courts and the need to uphold orders. 

14. In the further exercise of my discretion, I take account of the circumstances of the parties and of the child.  Whilst I have not found that the child’s expressions were adequate to establish the ground of objection, I am satisfied that they are views that should be taken into account at this stage.  He is doing well in Australia.  He likes it in Australia.  He wants to stay in Australia.  He would be upset if he was made to return.  It would disrupt his schooling. 

15. I have accepted that the father acted in good faith.  A return would also have implications for him in terms of his career and his ability to provide support for the child. 

16. I take into account the conduct of the mother, which, in my view, was such as to give the father consent, allow him to act upon it to incur costs, only to try to change her mind, as it were, after the event. 

17. In all the circumstances, I propose to exercise my discretion in such a way as to refuse to make the order sought by the Central Authority.

RECORDED:  NOT TRANSCRIBED

ORDERS DELIVERED

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: