Department of Child Safety and Jarrett and Anor

[2009] FamCA 283

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & JARRETT AND ANOR [2009] FamCA 283

FAMILY LAW – CHILD ABDUCTION – Hague Convention – 2 year old boy removed from New Zealand – Exception – Grave risk of harm – Father’s threats – Case made out – Dismiss application

APPLICANT: Director-General, Department of Child Safety

FIRST RESPONDENT: Ms A Jarrett

SECOND RESPONDENT: Mrs C Jarrett

FILE NUMBER: BRC 11642 of 2008

DATE DELIVERED: 25 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 25 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr K Parrott

SOLICITOR FOR THE APPLICANT: Crown Law

FIRST RESPONDENT: First Respondent is self represented

SECOND RESPONDENT: Second Respondent is self represented

Orders

IT IS ORDERED

1. That the Form 2 Application Initiating Proceedings filed on 24 December 2008 be dismissed.

2. That Orders 2, 3, 5 and 6 of the Orders of the Hon Justice Barry made on 22 January 2009 be discharged.

IT IS REQUESTED

1. That the Australian Federal Police remove the names of THE MOTHER born … January 1988 and THE CHILD (a male) born 13 May 2006, from the All Points Watch Alert System at all points of international arrivals and departures in Australia.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 11642 of 2008

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

Applicant

And

MS A JARRETT

First Respondent

And

MRS C JARRETT

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This case is, in my view, an exceptional and rather extraordinary one.  I am acutely mindful of the letter and spirit of the Hague Convention and my obligations as a Judge to ensure that the treaty is properly recognised and properly enforced by appropriate orders.  In this case, however, I am satisfied that there are circumstances which justify a departure from that approach. 

2. I am satisfied that the Department has established all the preconditions to an order for the return of the child.  I am satisfied that the material filed by the respondent gives rise to a proper consideration of an exception under the regulations, being that exception referred to as the need to consider whether an order to return the child to his habitual place of residence would expose the child to a grave risk of physical or psychological harm, or otherwise place him in an intolerable position. 

3. In my review of the evidence of this matter, I do not propose to labour.  The material speaks for itself.  It is largely uncontested.  The matters in issue require a focus upon the circumstances of a very young child, a child born in May 2006.  The child is a child of the respondent mother, Ms A Jarrett, and the applying father, Mr D. 

4. It is clear the parents had a troubled relationship.  It is also clear from the evidence that the father has a very troubled background.  Placed before this Court is his criminal history, which includes no less than 11 pages of offences over many, many years.  He is described as spending the bulk of his adult life in prison.  Many of those offences involved incidents of violence and others involved direct challenges to the authorities of Courts and of the police. 

5. The father’s offences include a charge of assault against the mother on 12 April 2006, just one month after a temporary protection order was made in the (New Zealand) District Court on 9 March.  During the course of that incident, the father produced a knife and, as the Court found, the mother was terrified as a consequence of that incident. 

6. On 9 June 2006, the temporary protection order was made final. 

7. Notwithstanding the previous charges and the existence of the protection orders, on 19 July 2006 the father seriously assaulted the mother over an extended period, causing multiple injuries to her, including a fracture of her cheekbone which required the installation of a metal plate.  The father was arrested on 21 July 2006 and remanded in custody. 

8. In October 2006, the father was convicted of the assaults upon the mother and was sentenced to two months jail in relation to each of those charges.  At the same time, he was otherwise sentenced in relation to other offences.  He was sentenced to a total of two years imprisonment, which he served until his release on 20 October 2008. 

9. On 27 June 2008, the chidl was removed from New Zealand to Australia by the mother and her parents. 

10. I should indicate that, by orders made on 21 January 2007, the maternal grandparents obtained an interim parenting and guardianship order and that order was made final on 22 November 2007, so that the day to day care of the child vested primarily in the maternal grandparents. 

11. The material indicates that there have been strains in the relationship between the maternal grandparents and the child's mother.  I gather this was largely as a consequence of their concern about the continuing relationship between the mother and the father.  It appears that those relations have been repaired and the mother and the maternal grandparents now reside in Australia and, as has been set out in the material, they have chosen to do so as a consequence of their stated fear for their safety once the father is released from prison.

12. In his affidavit in support of this application, the father said in para 10 of his affidavit:

    "I have totally changed my way of life and am looking forward to spending more time with my son.  His birth has made a real difference to me and my lifestyle".

13. The case presented to me asserts that the mother and the maternal grandparents do not accept that proposition put forward by the father.  They inform the Court that they are very concerned that the father would seek them out and cause them harm, potentially serious physical harm, and they seek to justify that concern through the contents of the affidavit material filed.

14. The father has not provided any reply to the material filed by the respondents. 

15. The respondent's material includes the father's criminal history and correspondence written by the father to the grandparents from prison.  It is noteworthy, in my view, that nowhere in the father's affidavit or in his correspondence does he express any regret or remorse for what he did to the mother.  He offers neither the mother, nor this Court, nor the maternal grandparents, any reassurances or undertakings in relation to his future behaviour.  To the contrary, the only material that I have available from the father beyond his affidavit material and the broad statement by him that he has changed his life and his attitude, is his correspondence.  That correspondence suggests anything but a change of attitude.  The correspondence is vile in its language and its content.  It is aggressive, violent, abusive correspondence.  It contains express and implied threats to the respondents and anyone else who would have the nerve to stand between him and his son.  It is correspondence which any reasonable person applying objective tests would regard as most threatening indeed.  If it is directed to, and received by people who have been victims of, or witnesses to his past violence, no doubt it would be doubly threatening and concerning.

16. I have no doubt that the expressions of anxiety and concern by the grandparents are entirely genuine in this case.  I accept that the mother and maternal grandmother would be fearful for their own safety, if not for their very lives, and I am satisfied that they are genuinely concerned about the safety of the child. 

17. This child is only two years of age.  The only way he could return to New Zealand would be in the presence of his grandparents and/or mother.  The father has made it clear about his intentions should he locate them in New Zealand and whatever he may do or say on that occasion would necessarily be, or be very likely to be, in the presence of, or proximity of the child. 

18. In terms of an evaluation of his threats, I take account particularly of the fact that the father's criminal history demonstrates the clearest possible disregard for the law.  The Crown draws my attention to the fact that the criminal history discloses some 17 breaches of bail or orders of periodic imprisonment.  I have already observed that the two serious assaults against the mother were occasions after Courts had made protection orders against him.  He has been charged with offences interfering with the authority of police.  He has not curtailed his attitude or threats even in the presence of the police and, in particular, in this matter he has made a very clear threat on the life of the grandparents in the very presence of police officers. 

19. It has been said in some cases that it would be a rare case indeed where one convention country, and a Court in that convention country, would proceed on the basis that another convention country is unable to adequately protect its citizens and its children.  In this case, we are dealing with countries of similar cultures and make up and similar legal systems and, ordinarily, one would be most reluctant indeed to assume that New Zealand and Australian authorities would be incapable of providing adequate protections.  However, of course, every case must be judged on its own facts and the facts of this case are such that my observations are not a reflection upon the law of New Zealand and its officers, but are rather an observation upon the nature and character of the person the authorities would be dealing with in New Zealand.  The reality is that, in New Zealand, as in Australia, there are some people who behave beyond the law and no amount of proper application of the remedies available to Courts and its police officers are able to contain the conduct of such a person.  In this matter, objectively, the father has demonstrated on so many occasions that he does not regard himself as being bound by orders of the Courts or bound by the law.  In those circumstances, of course, I would have been likely to have had scant regard for any undertaking that might be offered by the father.  It is noteworthy, however, that the father has not even offered such an undertaking.  Even if he had, the correspondence that he has sent to the grandparents would strike at the fabric of such an undertaking. 

20. In my view, this is not a question of treating the father as one who has lost his rights because of his criminal history.  It is not a question of further penalizing the father.  He has rights under the Convention which must be recognised.  It is merely a question of identifying and evaluating any risks associated with an order for return.  A return of this child with one of his carers would expose the carer directly to a grave risk of harm.  Particularly having regard to the child’s age, a risk of serious harm to the child’s carer represents risks to this young, dependent child, both directly and indirectly.  Further, I am satisfied that the gravity of the risk in this case is such that the existence of that risk and its impact upon the carer would be likely to seriously compromise the capacity of the adult accompanying the child to function in a way which would enable that person to properly parent and care for the child, and that, at least in that indirect sense, the child would be placed in an intolerable position.

21. For all of those reasons, I find, firstly, that the exception has been made out and the discretion arises and that, in the circumstances of this case, having regard particularly to the very tender age of this child and his dependency upon the adults who are directly under threat, I should exercise my discretion in favour of the respondents and dismiss the application brought by the applicant.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: