Department of Child Safety & Wilkins

[2007] FamCA 583

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & WILKINS [2007] FamCA 583

FAMILY LAW - CHILD ABDUCTION – Hague Convention – Child brought to Australia from New Zealand by maternal grandmother following mother’s violent and suicidal behaviour on the understanding that the child would return after the mother had received appropriate treatment – 14 year old child remained in Australia after request for his return – Hague Convention invoked – Defence of child objecting to being returned conceded – The child was of an age and level of maturity at which it was appropriate to consider his strong wish not to return to New Zealand - Risk of potential physical and/or emotional harm including depression, self harm or suicide if returned – Even if the child was returned to New Zealand the likely outcome of any proceedings there would be that the child be permitted to live in Australia with his grandmother – Discretion exercised not to order the child’s return to New Zealand

Family Law Act1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

TB v JB, formerly JH (2000) EWCA 337
Zaffaopoulos v State Central Authority (2006) FLC 93 264

APPLICANT: DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

RESPONDENT: MS WILKINS

FILE NUMBER: BRC 2919 of 2007

DATE DELIVERED: 28 May 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Kay J

HEARING DATE: 28 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR PARROTT

SOLICITOR FOR THE APPLICANT: CROWN LAW

COUNSEL FOR THE RESPONDENT: MR DOOLEY

SOLICITOR FOR THE RESPONDENT: DOOLEY SOLICITORS

Orders

1. The formal order of the Court will be that the application filed on 8 March 2007 is dismissed;

2. the order made to the interlocutory orders of Smith JR made 15 March 2007 cease to have effect forthwith.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC2919 of 2007

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

Applicant

And

MS WILKINS

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed on 8 March 2007 by the Director General of the Department of Child Safety seeking an order pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for the return of B born … May 1992 to New Zealand.

2. The applicant to the New Zealand Central Authority which motivated the application brought before this Court was the child’s mother as Ms R.  The respondent to the application is Ms R’s mother, B’s maternal grandmother. 

3. Ms R has two children, the child, the subject matter of this application, B, and his elder brother, K.  The elder brother is at least 16 years of age or slightly older.

4. The circumstances surrounding the background of the application were that the children were living with their mother in New Zealand.  Their grandmother received a call to urgently attend because the circumstances of the children were such that it was appropriate that they should be removed from the care of their mother at the time.

5. There seems little dispute to the fact that the mother has had a problem with alcohol, perhaps exacerbated by drugs.  She had been involved in a violent relationship and had a history of some psychiatric instability.  Matters came to a head in early November 2006 in circumstances about which there are some minor disputes, but basically there existed circumstances that made it appropriate that the children be removed from their mother's care.

6. The circumstances are described amongst other places in a recent affidavit of Ms N who is the team leader of the Department of Child Safety who has made some inquiries of the relevant Department, the Child Youth and Family Services in New Zealand.  The New Zealand records show that the New Zealand authorities received a notification in November of 2006.  An ambulance had been called by one of the children after an incident with the mother who was extremely intoxicated who had made phone contact with the maternal grandmother in Australia stating that she was going to harm the children:

   Hello mother, I'm going to kill your grandson.

7. The New Zealand report goes on to say:

   The mother then began hitting [the elder brother] over the head and face with her cell phone, grabbed him by his hair and head butted him three times (there were further attempts to harm him but [B] interfered and the boys left the address.)  When the ambulance arrived, the mother had locked herself in a room and had overdosed on tablets.  The police had to break the door.  The mother was taken to the hospital to have her stomach pumped and was assessed by the mental health team.  The notifier further reported the mother had planned to hang herself at the home address.

8. Ms N goes on to say the New Zealand material further discloses that when the mother was discharged from hospital, she returned home where the children were staying.  The mental health team were concerned.  The children were taken to the police station for interview and to allow time for a social worker to find alternate care arrangements, and while the police were interviewing the children, the grandmother came over from Australia to care for the children.

9. It is in those circumstances that the children were brought to Australia by the grandmother. 

10. Whilst the original application asserted that there was some form of agreement that the children were to be brought to Australia for a period of two weeks, subsequent material seems to indicate that it was an open-ended arrangement, albeit one that would be reviewed when the mother was past whatever crisis that had brought about the circumstances in early November 2006.

11. The children came with the grandmother to live with her in Queensland.  After a modestly short period of time the elder brother determined that he did not like living with his grandmother and eventually he returned to New Zealand to live with his mother.  One can understand that there may well have been some friction between the elder brother and his grandmother when one reads the elder brother's own material describing his lifestyle which no doubt the grandmother may have found some difficulty adjusting to.  Alternatively the elder brother may have found some difficulty adjusting to the grandmother's discipline.

12. The elder brother describes himself in the following way:

    I am a Goth which means I wear black clothes, boots, long hair, black lipstick and piercings.  Nana did not approve of that.  She threatened to tear out my piercings which are in my lips, and my tongue.  She hid my clothes underneath the bed, and laid out a pure pink outfit for me to wear.  She insisted I wear it and took me out on three separate occasions in public.  I was very embarrassed and people called out abuse to me.  I also had to work in those clothes, and at the end of the day if I had a bit of dirt on them she gave me a three hour lecture saying I was a good for nothing grandson, I don't deserve to live with her, and the scum of the [grandmother’s] family.

13. By way of contrast the child says that:

    “[B] and Nana got on extremely well.  She referred to [B] as her Golden Child and treated him completely different to me…

    So in those circumstances it may well be quite understandable why the elder brother found life with grandmother less than satisfactory and it is no surprise that he has chosen to leave.  The position with B, however, is that he has elected to stay.

14. There is no dispute that in the formal sense B was at all relevant times to these proceedings habitually resident in New Zealand.  There is no dispute that the mother had the custody of the child pursuant to New Zealand law and that the retention of the child in Australia, when the mother requested his return which occurred certainly by late November 2006, if not earlier, was a retention contrary to her custodial rights and, thus, invokes the jurisdiction of the Hague Convention and the Child Abduction Regulations.

15. The Court is mandated to order the return of the child unless it is satisfied of the existence of one of the defences set out in regulation 16, in which case, the Court is no longer mandated to return the child but has the power on a discretionary basis to order the return or the dismissal of the application.

16. The defences that were sought to be raised in this case were

    ·    there was a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place him in an intolerable situation. 

    ·    the child objected to being returned.  The objection showed a strength of feeling beyond the mere expression of a preference or ordinary wishes, and the child had attained an age and degree of maturity at which it was appropriate to take account of his or her views.

17. Finally, but falling on less than sympathetic ears, there was an attempt to argue that the return of the child would not be permitted by fundamental principles of Australia in relation to the protection of human rights and fundamental freedoms.  I know of no suggestion that making Australians go and live in New Zealand is likely to encroach upon their fundamental freedoms or the protection of their human rights and no judicial authority was provided to give support to that defence.

18. I think for my purposes in these proceedings, it is sufficient that I focus on the child objection defence and not focus upon the grave risk defence. 

19. Mr Parrott, on behalf of the Department, conceded, and quite properly, that each of the elements of the defence required by the regulations was made out on the evidence before me, which evidence is constituted significantly by a family report dated 23 April 2007.

20. The report by a Court counsellor, Ms G, indicates that she has spoken with B and that B has made it abundantly clear that he does not wish to return to New Zealand.  She concludes that his strength of feeling exceeds that of a mere expression of a preference or an ordinary wish and she further asserts that B is of sufficient maturity for his opinions to be taken into account in reaching a decision in the matter.  She summarises her conclusion by saying as follows:

    29.[B’s] relationship with his mother is currently fractured, and he has made extensive allegations which raise issues related to his safety while in the care of his mother. The Court in my opinion will require further information from relevant authorities in relation to allegations of past incidents. There appears no doubt however that he has witnessed at least one incident, in November 2006, in which his safety and emotional welfare was compromised by his mother's actions.  From accounts of this incident provided by both [B] and his mother, there is little doubt that this would have been a distressing and traumatic incident for him.

    30.In view of this incident, together with [B’s] allegations, there are concerns that [B] may be at risk of further physical and/or emotional harm should he be returned to New Zealand. The depth of [B’s] objections associated with a return, in conjunction with his notably anxious and distressed manner when discussing this, returning reinforces concerns relating to his emotional and psychological wellbeing should he be compelled to do so.

    31.While [B] does not present as currently depressed, if he is forced to return to New Zealand. I can not confidently rule out the possibility that he could become depressed, with the attendant risk of self harm or suicide. There are a number of pertinent risk factors in this respect, specifically [B’s] tendency to internalize emotions, an apparent lack of existing emotional supports for him in New Zealand, and a family environment in which he has been exposed to self harming behaviours by close family members.

21. In those circumstance it was quite appropriate for Mr Parrott to make the concession that the defence has been made out.  He still, however, submitted that it was appropriate that, in the exercise of my discretion, I should order the return of the child.  I was taken to the decision of the Full Court in Zaffaopoulos v State Central Authority (2006) FLC 93 264 and, in particular, to the Court there relying upon a number of principles that were set out by Waite J in W v W Child Abduction Acquiescence (1993) 2FLR 211 as approved by Hale LJ, (as she then was), in TB v JB, formerly JH (2000) EWCA 337.

22. Those principles or considerations include looking at the comparative suitability of a forum to determine the child's future in the substantive proceedings.  There are competing proceedings.  The mother has brought proceedings in New Zealand seeking orders relating to the child.  The grandmother has yet to partake in those proceedings.  At the same time the grandmother has proceedings pending in this Court seeking an order that B live with her and the mother has chosen to utilise the path of the Hague Convention rather than defend those proceedings at this stage.

23. Either forum is suitable to determine the issues.  There are serious reasons why New Zealand would be an appropriate forum, namely that is where the child has been living for many years.  That is where much of the evidence about the quality of care that the mother can offer the child, and all of the problems attendant upon the care that she has given, can be fully explored.  The witnesses are all there.  However, the witnesses as to the grandmother's capacity to care for the child; the witnesses as to the circumstances in which the child would live in Australia are available here.

24. The second issue that is relevant to the exercise of discretion is the likely outcome, in whichever forum, of substantive proceedings.  I think Mr Parrott appropriately conceded that if B's wishes remain constant and consistent it is an unlikely outcome that would see B return to live with his mother.

25. The matter that was urged upon me by Mr Dooley to pay consideration to was the situation that would await the child if he was compelled to return and the anticipated emotional effect upon the child of an immediate return.  It is clear that the child’s only option upon a return to New Zealand would be to go and live with his mother.  It is clear that the circumstances from which B was removed were circumstances which were grossly unsatisfactory.  It is urged upon me on behalf of the State Central Authority that the mother has given evidence that things are better and that she is now past her problems.

26. The difficulty with accepting the mother's evidence is that there is very little, if any, specialist evidence to support that and the history of involvement with State welfare authorities is not of one isolated recent incident, but a history that extends over the past decade with welfare authorities both in Australia and in New Zealand.  I have no confidence on the material available before me that things are likely to have changed to any significant degree so as to remove the underlying risks that would face B if he was returned to the mother's care.

27. It is clear from the welfare report that there would be serious emotional difficulties attendant upon the child's return.  The welfare reporter goes on to comment that she could not even confidently rule out the possibility of attendant risk of self-harm and suicide.  That has to be seen in the context of the elder child having already attempted suicide and the mother having attempted suicide.

28. In those circumstances I would think that it is abundantly clear that the discretionary matters that are raised as to whether or not I should order the return of the child strongly favour the dismissal of the application.

29. As I have indicated, I have not addressed the grave risk defence in detail because I do not think it is necessary having regard to the outcome that I propose, namely that I am exercising my discretion not to order B’s return based upon his wishes.

30. In order to further deal with the grave risk defence there are a number of factual issues involved that would need to be determined.  On balance I would indicate the material would favour a finding of grave risk with the long history of alcohol; the entrenched relationship with Mr R, who appears to be behind much of the domestic unrest in Ms R's household; the issues of the continued intervention of State authorities; the sibling rivalry that exists between the two children.  All of these matters would militate in favour of a finding of grave risk to this particular child, B, if he was returned having regard to the matters identified in the family report.

31. The orders will be that the application be dismissed.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate: 

Date:  13 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Department of Child Safety & Wilkins