Department of Child Safety and Starky - [2009] FamCA 774

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & STARKY

[2009] FamCA 774

FAMILY LAW - CHILD ABDUCTION – Hague Convention - 2½ year old boy – Father has residence order in UK – Wrongfully retained in Australia – Consented to order for return – Authorities in Australia and UK unable to implement – Grave risk to child – Discharged order

APPLICANT:

Director-General, Department of Child Safety

RESPONDENT:

Mr Starky

FILE NUMBER:

BRC

10061

2008

DATE DELIVERED:

19 August 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Jordan J

HEARING DATE:

19 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr K.A. Parrott

Crown Law

SOLICITOR FOR THE RESPONDENT:

Ms C. Dart

Legal Aid Queensland

Orders

IT IS ORDERED

That the Orders of this Honourable Court made on 9 April 2009 be discharged.
That Orders 1, 2, 4 and 5 of the Orders of this Honourable Court made on 13 November 2008 be discharged.

IT IS REQUESTED

That the Australian Federal Police remove the names of MR STARKEY born … February 1972 and the child R born … November 2006 from the All Ports Watch Alert system at all international departure points in Australia.

IT IS DIRECTED

That any passports currently held by the Family Court in the names of MR STARKY born … February 1972 and the child R born 7 November 2006 be returned to the Respondent Father.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10061 of 2008

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

Applicant

And

MR STARKY

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

This is a troubling matter in a number of ways. It has its origins in an application by the Department for the return of the child, R, born in November 2006. The child is the product himself of a troubled relationship. He is one of three siblings of that relationship. Two of his older siblings are presently in the care of the maternal grandmother. The evidence before the Court indicates that, amongst the difficulties in this case, is a history of alcohol dependency on the part of the children’s mother. It appears that, as a consequence of that and other difficulties, the two older children were placed with the maternal grandmother and the father subsequently obtained an order for custody of the child, R.
There is a dispute between the parties about the level of contact between R and his mother, with the father contending that she had little contact, the mother contending that she had regular contact. In any event, in August of last year, the father was given permission to travel to Australia by the United Kingdom courts.
Another seriously troubling aspect of this case is that that permission was given in a background where the father gave undertakings to a Court not to permanently remove R from the jurisdiction and to return to the jurisdiction after a period of time in Australia. He was meant to return to the United Kingdom on 26 August 2008, and he failed to do so. I have previously made comment about that aspect of the case, and the fact that it is incumbent upon this Court to not only have regard to the serious obligations created by the Treaty but, in this matter, to have regard to the very significant added layer of responsibility Courts have to act in support of one another, particularly when dealing with children’s matters. I place a heavy emphasis upon the undertakings given and breached.
It was established on the evidence that the habitual place of residence by R prior to his removal was the United Kingdom, which is a convention country. The mother had rights of custody at the time of retention and the retention was in breach of the mother’s rights of custody.
In earlier material, the father had argued that, notwithstanding all of those matters, this was a case where the Court should conclude that an order for the return of the child exposed him to a grave risk of harm.
Despite raising that defence, on 9 April 2009, the father and the Department entered into consent arrangements, which became consent orders of this Court, requiring the return of the child to the United Kingdom. That was to occur on or before 21 May 2009.
Since that time, the father provided evidence as to his current poor financial circumstances, his inability from time to time to secure legal representation, and his inability to fund the cost of his return with the child to the United Kingdom.
As a consequence, the Central Authority has embarked upon an exhaustive exercise designed to secure proper arrangements for the return of the child by ensuring that the child is accompanied by a familiar person.
The matter has returned to the Court on several occasions in an effort to address those issues. It has emerged that all of those efforts have failed to bear fruit at this time, it being determined by the authorities in both Australia and the United Kingdom that, given the history and the uncertainty of the mother’s presentation, the attendance of the mother at Australia to accompany the child is not appropriate.
The authorities in both countries have, from time to time, explored the prospects of the maternal grandmother, the mother’s brother, and the maternal grandfather accompanying the child. On each occasion, those efforts have proved to be unsuccessful. The authorities in the United Kingdom now request an adjournment for a period of a further two weeks to enable them to continue to explore options to put to the Court.
Mr Parrott, who appears on behalf of the Department, has been frank with the Court about the unsatisfactory nature of the efforts made to date, or the unsatisfactory outcome. He acknowledges that the responses from England have been less than optimum. He acknowledges the impact of the delays and the prospect that further adjournments may serve a limited purpose in terms of arriving at any clear option without difficulties.
In honouring his obligation to the Court, Mr Parrott has drawn the Court’s attention to the provisions of regulation 19A, the regulation which covers the situation where orders have been made for the return of a child and where the Court might consider discharging such orders.
In broad terms, that discretion arises if the Court concludes that it is impracticable to carry out the order, or where there are otherwise exceptional circumstances which justify a discharge of the order. In the end result, his submissions on that point were largely neutral.
Ms Dart, who appears on behalf of the father, argues that the Court should find that the circumstances in this case are exceptional and discharge the order. In the alternative, she supports the adjournment of the matter for a further two weeks.
I doubt that there has been any Judicial officer who takes the obligations created under the Treaty any more seriously than myself. I hold strong views consistent with that Treaty and the obligations imposed by it to take all proper steps to ensure that children wrongfully removed are returned. Of course, that approach is adopted not only for the benefit of the subject children, but also with a view of deterring others who may be contemplating taking the law into their own hands and abducting or retaining children inappropriately. Such conduct must be met with a vigorous response.
In this case, I am reinforced in that general view by the fact that a Court has been misled. That combination of factors causes me to contemplate very robust responses.
However, as compelling as those matters are, I must not allow those presumptions prevent me from considering issues relating to the circumstances of this case and, in particular, whether there are exceptional circumstances in this matter.
In determining whether or not there are exceptional circumstances, I have reference back to the provisions of regulation 16(3)(b) which are, of course, not directly germane to this application because they refer to an earlier discretion to refuse to make an order. In this case, an order has already been made. Nevertheless, I take the view that provisions such as regulation 16(3)(b) are appropriate to consider in providing guidance in how one might interpret exceptional circumstances in this case. The provisions of that regulation talk of grave risk of psychological harm or of otherwise placing a child in an intolerable position. I accept that the bar needs to be set very high in considering regulation 19A, which is to cover situations after an order has been made.
I take account of the fact that the order was made by consent on 9 April 2009 so that, at that point, the Court was not called upon to consider regulation 16(3)(b). In this case, I take account of the fact that the subject child is only two and a half years of age. One can anticipate that he is at a very vulnerable stage of his life. The prospect of such a young, vulnerable child being removed from his father, who has been his primary caregiver all his life and his sole caregiver for the last 13 months, in an abrupt way and deposit him in a very distant part of the world with strangers, is a troubling, daunting one.
In relation to the adjournment application and the efforts made by Departments here and in the United Kingdom, it is apparent that, with the passage of time, whoever might be available to attend in Australia would inevitably largely be a stranger to this child. On one view, even the child’s mother may be a stranger if she has, in fact, had the limited contact indicated by the father. Members of her extended family are likely to be even more estranged.
I take account of the fact that the extended members of the family have either been unable or unwilling to commit to this exercise. Without diminishing the significance of the undertaking, it would appear that they are not able to accommodate the travel needs of this young child and it may well be that the unsuccessful efforts made by the Department are further indication of the somewhat chaotic circumstances existing in the United Kingdom, consistent with the father’s evidence.
I take account of the fact that there is a history of alcoholism on the mother’s side and that the father did have orders for residence in his favour. Given that pre-existing history and the fact that the father has cared for the child now for 13 months in Australia, I feel reasonably safe in observing that the mother may be facing a very difficult task in the event that contested proceedings were embarked upon in the United Kingdom. If the likely outcome is that the child would be placed in the care of his father, the whole exercise of returning him may prove to be a exercise in futility and one which may have occasioned harm, in the meantime.
I take account of the father’s family circumstances in Australia and the fact that R would be separated from his older sibling and the other children in the household. I take account of the father’s financial circumstances. I take account of the extraordinary delays in this case, some of which, of course, have been created by the father, but others which have been created by circumstances beyond his control.
I take the view that the interests of this child and the interests of justice really require me to bring this matter to an end one way or the other and not to further protract the anxieties on both sides.
At the end of the day, when one balances the need for robust responses, particularly in the face of the breached undertakings, against the individual considerations of this child, I have formed the view that the circumstances of this case are, indeed, entirely unique and that a return of this child would be likely to expose him to harm and create what might turn out to be an intolerable situation. I have concluded that both limbs of the regulation 19A discretion are made out.
In all the circumstances, it appears impracticable to proceed with the orders, and exceptional circumstances justify an exceptional response and, for all of those reasons, I discharge the orders made on 9 April 2009.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate:

Date: 26 August 2009