Department of Child Safety and McMahon

[2008] FamCA 498

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & MCMAHON [2008] FamCA 498

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION– 13 yo girl – habitually resident in NZ – wrongfully removed to Australia – objects to being returned – discretion – child returned – mother’s conduct

APPLICANT: DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

RESPONDENT: MS McMAHON

FILE NUMBER: BRC 11723 of 2007

DATE DELIVERED: 24 June 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 24 June 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr K A Parrott, Crown Law

COUNSEL FOR THE RESPONDENT: Mr N McGregor

SOLICITOR FOR THE RESPONDENT: Harrington Family Lawyers

Orders

1. That the child, … born … April 1995, be returned to the country of New Zealand and for the purposes of giving effect to this order:-

a.That the said child leave the Commonwealth of Australia on or before 15 July 2008;

b.That pending the said child, … born … April 1995, returning to New Zealand, the Respondent mother, MS MCMAHON, 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 … April 1995 to New Zealand, the Respondent mother, MS MCMAHON, born … December 1973, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child, … born … April 1995, from the premises where THE MOTHER and the said child are currently residing namely, B Street, T;

d.That until further order, the Respondent mother MS MCMAHON born … December 1973 surrender forthwith to the Registrar of this Honourable Court all current passports relating to herself and the said child, … born … April 1995;

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, MS MCMAHON born … December 1973 and the said child, … born … April 1995, on the All Ports Watch Alert System at all international departure points in Australia;

f.That the said child, … born … April 1995, and the Respondent mother, MS MCMAHON born … December 1973 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 New Zealand, 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 … April 1995 to New Zealand, 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 New Zealand, 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 New Zealand; and release the Respondent mother’s passport to her or her nominee upon request;

i.That the Respondent mother, …, pay all the necessary expenses associated with returning the child to New Zealand, including the cost of airfares and departure taxes (if any) for the child to travel from Brisbane Airport to New Zealand, and in the event the Respondent mother fails or refuses to pay these expenses, the Respondent mother pay to the Applicant the necessary expenses incurred by or on behalf of the Applicant and THE FATHER, in returning the child to New Zealand, within two business days of the Applicant making a written demand for reimbursement of the said expenses;

j.That paragraphs (3) and (5) of the orders of Carmody J made 29 November 2007 be discharged forthwith and paragraphs 1 – 5 inclusive of the orders of Bell J made 26 March 2008 be discharged forthwith.

1. That all other Applications be dismissed.

1. That there be liberty to apply.

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

FAMILY COURT OF AUSTRALIA AT  BRISBANE

FILE NUMBER: BRC11723 of 2007

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

Applicant

And

MS MCMAHON

Respondent

REASONS FOR JUDGMENT

ex tempore

1. There is a great deal at stake in this case and I am troubled by the options I am presented with.  At stake is the welfare of a 13 year old child.  Also at issue are the legitimate aspirations and concerns of the mother and the aspirations and concerns of the child's father.  Also at issue is the question of Australia's adherence to a very important treaty designed to address the obvious very grave prospects that accompany the notion of children being abducted from one country to another without the knowledge or consent of each of the child or children's parents.

2. Notions of international abduction touch not only upon the direct welfare of the children involved, but on the authority of the Courts of various countries designed to protect children and protect the rights and enforce the obligations of children's parents.  The thrust of the treaty imposes upon those countries which prescribe to it an obligation to acknowledge the authority of the Courts of the countries of origin of children's parents and take all reasonable steps to support that authority and prevent it from being undermined by parents who choose to take the law into their own hands.

3. In this case, it has been established that the child in question, is a 13 year old child who was born in New Zealand in April 1995 and who was habitually resident in New Zealand, having been raised in that country until her removal from it by the mother on 2 August 2007.  It having been established that the child’s habitual place of residence at the time of removal was New Zealand, it is further established that New Zealand is a convention country to the Hague Convention to which New Zealand and Australia have prescribed.  It has been established that the child’s father possessed rights of custody at the time of the removal and that the removal was in breach of his rights of custody at that time.

4. Quite appropriately, counsel for the mother has limited his submissions on behalf of his client to argue that, notwithstanding that the removal was wrongful, the Court in the exercise of its discretion should refuse to make an order requiring the return of the child, contending that one of the exceptions referred to in regulation 16 has been made out and, in particular, the ground prescribed in regulation 16(3)(c), which indicates that a Court may refuse an order to return the child if the following is made out:

   (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.

   (3)The child has attained an age and degree of maturity which it is appropriate to take account of his or her view.

5. If those grounds are made out, it then is incumbent upon the Court to take into account a number of matters in determining whether or not it would refuse the application of the Central Authority. 

6. I accept that the most important evidence to take into account in that regard emerges from the report of a family consultant, Mr C, through his report dated 19 June 2008.  Mr Parrott for the Department argues that, in essence, the child answered the wrong question in that, through the report writer, she expressed a fear of residing with her father, and that that is not the question, that is not the test, but, rather, the objection which needs to be identified through this process is an objection to being returned to New Zealand and not an objection to being returned to live with her father.

7. If one has regard to the contents of the family report, I take the view that, notwithstanding that fear of being required to live with her father is a fear identified by the child from time to time, in fact, there are other grounds of objection which emerge through the report process.  In that report, Mr C highlights the emerging importance for the child of peer relationships and that she presents as having a strong group of friends in this country.  It also is clear that she is happy and settled in Australia and with her school and friends.  She makes it clear that she wants to continue to live in Australia.

8. Mr McGregor, counsel for the mother, submits that, in determining whether the child is asserting an objection to return to New Zealand, it is not appropriate to focus only upon the negative comments she has to make about New Zealand and her father, but also necessary to take into account the positive statements she has about the prospect of remaining in Australia.  I accept that it is appropriate to take such matters into account and evaluate them as part of the basis for objecting to being returned to New Zealand.

9. The child does identify, as part of her reasoning process, that she is scared of her father and scared of living with him.  At the same time, Mr C does positively assert that the possibility of returning to New Zealand weighs heavily on the child’s mind to the extent, at one stage, of producing tears. 

10. In par 19 of the report, Mr C makes the bald statement that the child clearly objects to being returned to New Zealand.  I am satisfied that that bald assertion is, in context, an appropriate one and that the child bases her objection upon both her preference for living in Australia and upon a feeling of safety in this country, as contrasted to the fact that she says that she would be fearful about being returned to New Zealand.

11. On the issue of whether or not the fear is limited to only the fear of being required to reside with her father or is broader, I have particular regard to the contents of pars 19 and 26 of the report.  Whilst there is some misapprehension on the part of the child, in that she does refer to being required to live with her father or being with him, it is clear that her fear is broader than that as evidenced by the contents of par 19, when it is asserted, effectively on her behalf, that she is scared when she contemplates the possibility of returning "near her father", and par 26 talks about her anxiety being heightened by the prospect she may be forced "into proximity with her father". 

12. I am satisfied that Mr C is identifying in those comments that, at this stage, the child associates going to New Zealand with being brought into proximity (my emphasis) with her father, and it is that notion that causes her to be anxious.  Such fear is in addition to the prospect of being required to be brought into contact with him, or to live with him.

13. I find that the report establishes to my satisfaction that the child objects to being returned to New Zealand based, in part, upon her strong preference to remain in this country where she is happy and settled and doing well and, in part, upon an apprehension that being returned to New Zealand will bring her into proximity with her father, a notion which she says she finds concerning. 

14. As to the reasons and the strength of the feelings, I find that they are age appropriate and, in that context, I do have particular regard to the emerging importance of peer relationships.  I note the evidence of Mr C that the child is a mature girl.  I note she is 13, which is an age at which, inherently, children are capable of expressing wishes and concerns and understanding the implications of such expressions as a general proposition.  In relation to this specific child, I note that she was assessed as being quiet, deep thinking and considered in the views she expressed by Mr C, who found her to be quite mature for her age.

15. I take the view that, in all of the circumstances, it is appropriate to take account of her views.  As to the strength of those views, I note that Mr C assessed the child as a child expressing a strong fear of being returned to New Zealand.  He contended that the views expressed to him in the interview were consistent and showed a clear desire, both in terms of maintaining some relationship with her father but, at the same time, not feeling safe in his care.  I note his further observations that the child’s expressions appear to be based on her own experiences.

16. In all the circumstances, I am satisfied that the mother has discharged the onus which rests upon her to establish one of the exceptions, that being the one prescribed in s16(c). 

17. That determination gives rise to the exercise of my discretion, and it is in this context that I am most troubled by the competing considerations.  I accept an order requiring the child to return to New Zealand will be against her strong wishes and will expose her to significant disruption in her life.  I acknowledge the importance of her schooling and peer relations at this sensitive stage of her life and development as a young teenager, starting out on her high school journey.

18. I find that the normal disruptions associated with interfering with her progress and doing so against her wishes would be further exacerbated by the fact that she does now carry with her some added apprehension in terms of her anxiety about contact with her father and that, in that sense, it is likely that the combination of those factors would be to compromise the child’s emotional well-being.

19. On the other hand, I am acutely aware of the objects and principles of the convention under which these proceedings have been instituted.  I consider those matters in the broad context of the welfare of all young children who might be exposed to the prospect of being abducted overseas.  If the Courts fail to place proper weight upon the desirability of proper institutions acting in co-operation and ensuring the prompt return of children as a means of discouraging parents from taking the law into their own hands, the entire purpose of the convention can be defeated, leaving children exposed to the consequences of their parents’ wrongful conduct.

20. In addition to those broad considerations, I take into account the specifics of this case.  In this matter, my concerns are heightened by the fact that there was a history of litigation in New Zealand between the parties.  In that litigation, the mother, quite appropriately and with some regularity, submitted to the jurisdiction of the New Zealand Courts.  She enlisted the authority of the courts to properly define and enforce the rights and obligations of each of the parents.

21. In particular, I note that, during the course of that litigation, the mother once approached the courts in New Zealand and sought the protection of an order restraining the father from unilaterally removing the child from New Zealand.  It is impossible to escape the conclusion, firstly, that the mother did so mindful of the harm which might be occasioned to her child if she was abruptly removed from her care and from her country of origin and, secondly, that her conduct in subsequently doing the very thing she sought to restrain the father from doing evidences both a knowledge of what was right and what was wrong and also a callous disregard for the interests of the father and a rejection of the authority of the New Zealand courts in taking the step she did.

22. Further, I take into account the fact that the mother has not only removed the child from any association or relationship with her father but, on the evidence before me, it seems clear that she has compounded that wrongdoing by taking steps to actively withhold information about the child’s whereabouts from her father.  One can only begin to imagine how distressed the mother would be if the father had taken the child to some distant country and then, effectively, gone into hiding, so that not only could the mother not have any association with the child, she would be oblivious to her whereabouts, her welfare and her progress.

23. I take account of the fact that, on the material, the indications are that the child has not had any contact with the father.  Further, the mother is silent in her material about the prospect of the father having any contact with the child and of the child having any contact with her father in the future. 

24. When it comes to the discretionary part of this exercise, my concerns about the adverse impact upon the child of not adhering to the principles behind the treaty and returning her to New Zealand, may have been less if I had before me some evidence and some proposals about what the mother intends to do to meet the child’s apparent wish to have some ongoing involvement with her father.  I see no evidence of the father being provided with copies of school reports, updates as to the child's progress or the provision of information.  As a consequence, perhaps the child’s best or only prospect of being afforded the opportunity to have two parents rather than one is if this matter is returned to the court previously charged with the responsibility for making decisions about the child’s welfare.  In the New Zealand proceedings, there was an Independent Children's Lawyer available to the parties and to the child.

25. As I said in the course of argument, I am very concerned about the impact upon the child of an order for her return at this critical stage of her life but, in that regard, it needs to be understood that this peril has been imposed upon the child by her mother in, firstly, removing the child and then, secondly, in apparently taking steps to keep the child's whereabouts unknown from the father and the authorities in both countries.  The consequence is that we now face the prospect that the child is settled in Australia, she wants to stay in Australia and she is half-way through her first year of high school.  She is now facing the prospect, for the second time in her recent life, of having her life turned upside down by the consequence of the orders that may be made in this case.

26. In weighing up the competing considerations and particularly those relating to the impact of a return upon the child, I have taken into account the fact that the country to which she is to be returned is our near neighbour, New Zealand, only some two hours by plane, and a country which has so much in common with Australia and is obviously a country very familiar to the child and where there is likely to be available family and friends to support her.

27. In a most difficult case, I have decided, on balance, that I should make an order which requires the return of the child to New Zealand to enable the New Zealand Courts to properly determine whether the child should reside in Australia with her mother and whether or not she should have some relationship with her father.

    RECORDED  :  NOT TRANSCRIBED

28. In the circumstances then, I will make those orders.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan.

Associate: 

Date: