Department of Child Safety and Kells
[2009] FamCA 452
•29 May 2009
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF CHILD SAFETY & KELLS | [2009] FamCA 452 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Family Law (Child Abduction Convention) Regulations1986 – construction of Regulation 16(2)(c) “settled in his or her new environment” – whether the child so “settled” – whether a discretionary power exists per Regulations 15(1) and 16(2) – the criteria for the exercise of discretion – whether the discretion be exercised in favour of one of the parties |
| Family Law (Child Abduction Convention) Regulations 1986 Regulations 14, 15(1), 16(2), 16(3) |
| Townsend v Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842 State Central Authority & Uurainen (No.2) [2008] FamCA 1046 |
| APPLICANT: | Director-General Department of Communities (Child Safety Services) |
| RESPONDENT: | Ms Kells |
| FILE NUMBER: | BRC | 1299 | of | 2009 |
| DATE DELIVERED: | 29 May 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | The Hon. Justice Rose |
| HEARING DATE: | 18 May 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Crown Law |
| COUNSEL FOR THE RESPONDENT: | K. Parrott |
| SOLICITOR FOR THE RESPONDENT: | Journey Family Lawyers |
Orders
That the Application of the Applicant filed 16 February 2009 is dismissed.
That Orders numbered 1, 2, 3, 4 and 5 made 25 February 2009 are discharged.
IT IS NOTED that publication of this judgment under the pseudonym Department of Child Safety & Kells is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1299 of 2009
| DIRECTOR-GENERAL DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) |
Applicant
And
| MS KELLS |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the applicant seeks an order for the return of the child pursuant to the Family Law (Child Abduction Convention) Act and Regulations 1986.
The application filed 16 February 2009 (“the Application”) is made pursuant to Regulation 14.
Orders are sought pursuant to Regulation 15.
The child the subject of these proceedings is a daughter born in July 1997 (“the child”).
The child was born in New Zealand.
The parents are the respondent mother and Mr MT.
The mother resides in Australia.
The father resides in New Zealand.
The child resides with the mother.
The mother and the father lived together in New Zealand for a period of about 8 years which commenced in 1996 and concluded when they separated in 2004.
On 9 January 2008 the mother and child left New Zealand and commenced to live in Australia. The mother has lived in Australia with the child since that time. There is no issue in relation to those matters.
There is also no issue in relation to the following matters, namely that:-
(a)Both New Zealand and Australia are signatories to the Hague Convention[1].
(b)The habitual residence immediately prior to the child’s removal by the mother was New Zealand.
(c)The father had rights to custody in relation to the child pursuant to the Care of Children Act 2004 (NZ) immediately prior to the removal of the child by the mother.
(d)The child has been wrongfully removed by the mother from New Zealand.
[1] The Convention on the Civil Aspects on International Child Abduction 1980
The mother relies upon each of the following in opposing an order for return of the child to New Zealand:
(a) The child is “settled” within the meaning of Regulation 16(2)(c) and
(i)There is an absence of the requirement to consider the exercise of discretion once the issue of “settled” has been determined in her favour, or
(ii)The discretionary power should be exercised in the mother’s favour.
(b)The father “acquiesced” in the child being removed to or retained in Australia within the meaning of Regulation 16(3)(a)(ii).
(c)There is grave risk that the return of the child would expose her to physical or psychological harm within the meaning of Regulation 16(3)(b).
(d)That the discretionary power pursuant to Regulation 16(3) should be exercised in the mother’s favour.
On 25 February 2009, Interim Orders were made by Jordan J restraining the mother from removing or attempting to remove the child from the Commonwealth of Australia and from changing the child’s usual residence. In addition, Orders were also made to enable the names of the mother and the child to be placed on the All Ports Watch Alert System and requiring the mother to surrender all current passports relating to herself and the child to the Department of Child Safety.
At the commencement of the hearing, I was informed by the legal representatives for the parties that leave would not be sought to cross-examine any of the deponents, notwithstanding the conflict in the evidence in relation to material matters.
Regulation 16(2)
The applicant concedes that the application was made more than one year after the removal of the child by the mother. Consequently, Regulation 16(2)(a) and (b) are applicable to these proceedings.
The first question of law that arises is the interpretation of the phrase “the child has settled in his or her new environment” found in Regulation 16(2)(c).
In Townsend v Director-General, Department of Families, Youth and Community Care[2] the joint judgment of two members of the Court rejected the interpretation given in an earlier judgment of the Full Court[3] which had followed a judgment of the High Court of England that had concluded that the word “settled” had two constituent elements namely involving a physical element of being established in a community and environment and secondly an “emotional constituent denoting security and stability.” Rather, the Full Court in Townsend proceeded to hold that such an interpretation “represents a gloss on the legislation and should not be regarded as accurately stating the law.”[4] The joint judgment in Townsend then proceeded to hold as follows:-
“The test, and the only test to be applied is whether the children have settled in their new environment.”[5]
[2] (1999) FLC92-842
[3] Graziano & Daniels (1991) FLC92-212
[4] Supra at 85,853
[5] ibid
At first blush “the test” referred to in the last paragraph does not seem to advance the matter any further. However, such a “test” has to be read in the context of other relevant passages in the judgment, at times omitted from commentaries by various authors and indeed in subsequent judgments. In Townsend, the judgement to which I have referred, having considered that it “could be misleading” to refer to “two constituent elements one physical and one emotional” proceeded to state that: -
“While the various matters mentioned in the quoted passages are undoubtedly relevant, the analysis of the term into those two distinct components is unhelpful in our view. There are numerous ways in which the various relevant matters could be categorised. One might, for example, include “educational” as a separate category. The two component categorisation adopted in Graziano might lead trial judges to approach the task in a way different from that required by the words of the Act.” (Emphasis added)[6]
[6] ibid at 85,852; 85,853
The other member of the Court in Townsend provided helpful guidance in stating:-
“In order to give the term “is settled in his or her new environment” a normal or usual meaning, reference must be had to the proper meaning of the words that constitute the phrase in the context in which they appear.”[7]
[7] ibid at 85,859 per Kay J
He referred to dictionary definitions and the French language text of the Hague Convention although discarding it. He considered that the most helpful definition was that which defined “environment” as “the aggregate of surrounding things, conditions or influences.”[8]
[8] ibid
Consequently, I will follow the interpretation given in Townsend having regard to the contextual remarks to which I have referred in both the joint judgment and that of the other member of the Court to which I have made reference.
The evidence in relation to whether or not the child has “settled in her new environment”[9] is contained in the affidavits of the mother and her husband Mr L filed on 24 April and 10 May 2009 respectively. No relevant evidence was given by or on behalf of the father in relation to this matter. A Family Report was not sought.
[9] Regulation 16(2)(c)
The evidence of the mother is that the child has been enjoying the facilities of the home of the mother, her husband and their child in Queensland. They all have a close relationship.
The mother’s evidence is that the child enjoys attending school and has been progressing well with her school work. The child has excelled in school athletics which has included taking part in competitions, training and has been selected to represent her district. The child also takes part in other sport and activities.
The further evidence of the mother is that the child has made school friends and has enjoyed activities with them. The child has taken an active interest in the planning for her high school enrolment in Queensland next year.
The evidence of the mother’s husband is that the child has been living with him, the mother and their child in rented premises for several months and those premises have appropriate facilities. The mother’s husband is in full time employment.
The mother’s husband further states that he and the child enjoy a good relationship and that the child has also had the benefit of in effect a secure family life during the course of which the child participates in family activities. He also states that the child has been progressing well at school and has developed a number of friends at school.
The evidence of the mother and her husband has been given in a detailed plausible fashion in their respective affidavits. In view of the manner and detail of such evidence and the lack of any challenge to it, I accept the evidence and make findings accordingly.
Consequently, such findings of fact and the nature and extent of the evidence which I have accepted satisfies me that the child has indeed “settled in her new environment”. It follows that I am satisfied that the mother has discharged the onus of proof.
The discretionary power
It was submitted on behalf of the Applicant that the Court has a discretion to exercise for the return of the child, notwithstanding a determination that the child is “settled in her new environment.”
The solicitor for the Respondent submitted that there is an absence of a discretionary power to exercise and that once a positive finding has been made as referred to in the last paragraph, then the application must be dismissed.
Regulation 16(1) makes it clear that an order for return of a child is mandatory if the conditions set out in that regulation have been satisfied, subject to the provisions of Regulation 16(3). The critical condition provided for in Regulation 16(1)(b) is that the application is filed within one year after the child’s removal or retention. That condition does not apply in these proceedings as it is common ground that the application was filed more than one year after the child’s removal from New Zealand.
The relevant Regulation in these proceedings, namely Regulation 16(2), is silent regarding the existence of a discretionary power in the event that the Court is satisfied that a child “has settled in his or her new environment.”[10] As I have previously made it clear in this judgment, I am so satisfied so far as the child in these proceedings is concerned.
[10] Regulation 16(2)(c)
Of significance so far as the submission for the mother is concerned is that Regulation 16(3) provides a discretion to refuse to make an order for return pursuant to Regulations 16(1) or 16(2) provided that the person opposing return (in this case the mother) establishes one of the matters set out in Regulation 16(3). Yet Regulation 16(3) does not include a Court being satisfied that a child “has settled in his or her new environment” as a basis for a Court to then consider the exercise of discretion in relation to whether or not an order should be made for a child’s return to the country of habitual residence.
Consequently, the provisions of those particular regulations are at best unclear.
At first instance, it was held that the Court does not have a discretion to order the return of the child should the child be found to be settled within the meaning of Regulation 16(2)(c).[11]
[11] Secretary, Department of Human Services State Central Authority & CR (2005) FLC93-243 per Kay J following his earlier judgment in State Central Authority v Ayob (1997) FLC92-746; Contra Director General, Department of Families, Youth and Community Care v Thorpe (1997) FLC92-785
However, when the opportunity has arisen for construction of the relevant Regulations, the Full Court has not done so but rather has indicated a preference for a construction that supports consideration of the exercise of discretion. It has declined to follow the earlier of the first instance judgments to which I have referred by simply indicating that it was “not necessarily persuaded” that there was an absence of discretion.[12]
[12] Director General, Department of Community Services v M & Anor (1998) FLC92-829 at 85,491 – 85,493
In Secretary, Attorney-General’s Department v TS[13] Nicholson CJ at first instance, having reviewed the relevant authorities, proceeded to determine the proceedings on the basis that a discretion did in fact exist although he did so “without expressing any view” to support one line of construction or another.[14]
[13] (2001) FLC93-063
[14] ibid 88,176
Two judgments of the English Court of Appeal and the House of Lords respectively held that on a proper construction of the relevant Articles of the Hague Convention, a discretion existed as to whether or not an order should be made for the return of the child notwithstanding a finding that the child was “settled” within the meaning of the Hague Convention.[15] However, it must be noted that the provisions of the relevant Articles are not identical to the Regulations which I must interpret and apply as has been emphasised by the High Court.[16]
[15] Cannon v Cannon [2005] 1 FLR 169; Re M (Children)(Abduction: Rights of Custody) (2008) 1 All E.R. 1157
[16] De L v Director General, NSW Department of Community Services & Anor (1996) FLC92-706
I have determined to follow the approach to construction of the Regulations stated by Nicholson CJ in Secretary, Attorney-General’s Department v TS,[17] notwithstanding the lack of definitive construction given by him although he had reviewed the relevant authorities fortified by the doubts expressed by the Full Court in two earlier judgments[18] and the assistance in construction provided in the two English judgments to which I have referred. It is certainly arguable that Regulation 15(1) applies in that a general discretion is given “in relation to an application made under Regulation 14.” The application is indeed made pursuant to that Regulation.
[17] supra
[18] Director General, Department of Community Services v M & Anor supra; Director General, Department of Families, Youth and Community Care v Thorpe supra
The exercise of discretion
In view of the absence of specific or general criteria for the exercise of discretion which may be discerned from the regulations and lack of any authority to which I have been referred with regard to the construction of the Regulations, I have concluded that the discretion is at large, subject of course to it being exercised judicially.[19] Assistance is gained in that regard from the speech of Hale LJ in Re M (Children)(Abduction: Rights of Custody) due to her careful analysis[20] and the recent judgment of Jordan J in State Central Authority & Uurainen (No.2).[21] General guidance is also given by reference to the particular facts to which weight was given in Secretary, Attorney-General’s Department v TS.[22]
[19] De L v Director General, NSW Department of Community Services & Anor supra at 83,477
[20] (2008) 1 All E.R. 1157 paragraph 10 et seq
[21] (2008) FamCA 1046
[22] supra at 88,1776 – 88,177
In the course of considering the exercise of discretion, I have determined to exercise it in favour of refusing an order for return for the following reasons.
Whilst much of the evidence and submissions are understandably weighted to the issue of wrongful removal of the child, that can obscure the focus from the issue that has arisen in terms of Regulation 16(2)(c) where in proceedings commenced more than one year after the wrongful removal, the question has arisen as to whether the child has “settled in her new environment”. The context has been well illustrated by Hale LJ in Re M when in her speech the following passage appears:-
“In settlement cases, it must be borne in mind that the major objective of the convention cannot be achieved. These are no longer ‘hot pursuit’ cases. By definition, for what ever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child’s objections as well as her integration in her new community.”[23]
[23] ibid paragraph 47
I have given consideration and significant weight to the provisions of the Hague Convention as reflected in the Regulations. Ordinarily, a court should make orders for the return of the child to the country of habitual residence to give force and effect to speedily rectifying a wrongful removal or retention of a child.
At the same time, it needs to be recognised that an essential element of the Hague Convention requires the need for action to be taken promptly. The purpose of the Hague Convention is undermined by delay. As was observed in Uurainen “This case perhaps highlights difficulties that can arise if parties and/or authorities and/or courts are not enlisted in a way which enables a prompt response to a wrongful removal.” In these proceedings there has been a 13 months delay from the time that the father became aware of the mother’s proposed removal of the child from New Zealand to the making his Application to the Central Authority on 22 December 2008. In November 2007, the father was given written notice by the mother of her proposal to take the child from New Zealand to live in Australia. In January 2008, prior to such travel, the father received a telephone call from the child informing him of the proposed travel to Australia. Consequently, I am determining proceedings in which the reality is that the child has been in Australia for approximately 16 months.
In taking into account the essential objects of the Regulations and the Hague Convention, I must take into account other relevant matters. I have given much weight to my findings that this child is settled in her new environment. That finding represented the aggregate of all relevant matters to which I have earlier referred.
I have given considerable weight to the implication from such findings of fact that it is likely that as a result of an order for return of the child to New Zealand, the consequences for the child would be very disruptive to her progress and development at an important stage of her life. The child has made excellent progress at her school, sport and other activities which undoubtedly have given her confidence and self esteem, as well as making friends at and outside the school. In addition, she has had the benefit of a secure family unit made up of the mother, her husband and their child. The child has a close relationship with all of the members of her household which can only be for her benefit. An order for return would result in that household being fractured so far as the child is concerned. There is no evidence before me which would lead me to find that it will be or is likely to be re-established in New Zealand. Consequently, it is implicit that a return would represent what was described in Uurainen as “a significant physical and emotional disruption to her life which, again, would be likely to have some adverse impact upon the child.”[24]
[24] supa paragraph 20
I have taken into account the benefit to the child of re-establishment in a meaningful way of her relationship with the father. His general proposals are that there would be a re-establishment of her relationship with him and extended family members which of course is important. As against that consideration, the evidence is silent as to the father’s intentions or proposals in terms of travel to Australia or the duration of any stays in Australia for the purpose of spending time with the child, other than his proposal to travel to Australia for the purpose of accompanying the child back to New Zealand. I take judicial notice of the fact that New Zealand is a close neighbour of the State of Queensland and travel is relatively easy in terms of frequency of flights and the cost compared to travel to other countries or indeed other parts of Australia. The father is able to make an application for parenting orders in this Court pursuant to the Family Law Act 1975.
I have also taken into account that the child should not be required to carry the responsibility of her mother’s wrongful removal in circumstances that events had commenced and continued to overtake such wrongful removal. In these particular proceedings, where Regulation 16(2) is a prime consideration, the circumstance which it addresses is the possible harm which can be caused to a child who having been required to meet the challenge of being wrongfully removed from a parent, might then be required to have to contend with “being uprooted again after becoming settled in her new environment.”[25]
[25] State Central Authority & Uurainen supra
In view of my findings of fact in relation to the issue of “settled in her new environment” and the weight which I have given to those findings and other matters relevant to the exercise of discretion, I have concluded that the child should not be made to face serious physical and emotional disruption in her life “for the sake of general deterrence of the evil of child abduction worldwide.”[26]
[26] Re M supra paragraph 54
As was conceded by counsel for the Applicant, the other issues raised in terms of Regulation 16(3) do not require determination in the event that I made findings in support of the mother’s case arising out of Regulation 16(2) and a determination to exercise the discretion in her favour.
Accordingly, the order that will be made is that the Application of the Applicant filed 16 February 2009 is dismissed. Consequently, the relevant interim orders made 25 February 2009 will also be set aside.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose
Associate:
Date: 29 May 2009
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