Department of Child Safety, Youth and Women and Moncrieff

[2019] FamCA 844

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & MONCRIEFF [2019] FamCA 844

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application under the Hague Convention for the return of the children to the United Kingdom – Return Order made.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Children (Scotland) Act 1995 (UK)

De L v Director-General, New South Wales Department of Community Services and Anor(1996) 187 CLR 640
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
De Lewinski v Director of Community Services (1997) FLC 92-737

APPLICANT: Department Of Child Safety, Youth And Women

RESPONDENT: Ms Moncrieff

FILE NUMBER: BRC 8239 of 2019

DATE DELIVERED: 15 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shoebridge

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers

RESPONDENT: In person

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous Orders are discharged.

2. The children, X, a female, born … 2008 and Y, a male, born … 2009 be returned to the United Kingdom.

3. For the purposes of giving effect to this Order:

   (a)the said children leave the Commonwealth of Australia on or before 29 November 2019; and

   (b)the said children arrive in the United Kingdom on or before 30 November 2019; and

   (c)the Respondent immediately take all necessary steps and follow all reasonable directions given by Ms A from the Department of Child Safety, Youth and Women, or her nominee, to facilitate the urgent issue of such passports and/or travel documents as are required to facilitate the children’s return to the United Kingdom; and

   (d)pending the said children returning to the United Kingdom, the Respondent, Ms Moncrieff, also known as Ms N, born … 1972, be restrained and an injunction is hereby issued restraining her from removing or attempting to remove the said children from the Commonwealth of Australia; and

   (e)pending the said children returning to the United Kingdom, the Respondent continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children from the premises where she and the children are currently residing, namely B Street, Suburb C in the State of Queensland; and

   (f)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, Ms Moncrieff, (also known as Ms N) born … 1972, and the children X, a female, born … 2008 and Y, a male, born … 2009 on the Family Law Watchlist at all international departure points in Australia; and

   (g)the names of the children and the Respondent be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Child Safety, Youth and Women advising of the travel arrangements made for the children to return to the United Kingdom from 12.00 am on the date nominated for the travel in the letter.

4. 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.

5. Within 48 hours of the making of this Order, the Applicant provide the United Kingdom Central Authority with a copy of this Order, the Reasons for Judgment published today and a copy of all of the affidavits and Exhibits in this proceeding.

6. Within 48 hours of the making of this Order, the Applicant provide the Appropriate officer from Police Scotland with a copy of this Order, the Reasons for Judgment published today and a copy of all of the affidavits and Exhibits in this proceeding.

7. The Applicant has liberty to apply to seek any further orders necessary to allow him or officers of the Department of Child Safety, Youth and Women to make such arrangements as are necessary to facilitate and ensure the return of the children in accordance with this Order and pursuant to the Central Authority’s obligation under Regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

8. All other applications are dismissed.

IT IS DIRECTED THAT

1. A Registrar of the Court cause a copy of Order made today and the Reasons for Judgment delivered today to be sent to the appropriate officer in the D Town Sheriff Court, D Town, United Kingdom.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Child Safety, Youth and Woman & Moncrieff has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8239 of 2019

Department of Child Safety, Youth And Women

Applicant

And

Ms Moncrieff

Respondent

REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 15 July 2019, the Director-General of the Department of Child Safety, Youth and Women in his capacity as the State Central Authority under the Family Law Child Abduction Convention Regulations 1986 (Cth) (“the Regulations”) seeks an order that the children, X born 3 in 2008 in the United Kingdom[1] and Y born in 2009 in the United Kingdom[2] be returned to the United Kingdom.[3] 

   [1] In City E, Scotland.

   [2] In F Town, Scotland.

   [3] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1)(a).

2. The Regulations under which this Application must be determined are made pursuant to s 111B[4] of the Family Law Act 1975 (Cth) (“the Act”) which provides that the Regulations may make provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction (“the Convention”). The Convention, which is set out in Schedule 1 to the Regulations, provides a mechanism for the prompt return of wrongfully removed or retained children between contracting States.

   [4] And, in so far as they make provision in relation to the rules of evidence which are to apply in proceedings under them, pursuant to s 111D of the Family Law Act 1975 (Cth).

3. Australia and the United Kingdom are contracting States to the Convention.

4. The Regulations are to be construed having regard to the Principles and Objects mentioned in the preamble to, and Article 1 of, the Convention and as recognising, in accordance with the Convention, that:

   a)the appropriate forum for resolving disputes relating to children’s care, welfare and development is ordinarily their country of habitual residence; and

   b)the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of Convention countries. 

5. The purpose of the Convention was authoritatively explained by the majority of the High Court in De L v Director-General, New South Wales Department of Community Services and Anor[5] wherein it was emphasised that the Convention is directed to the prompt return of children to the State of their habitual residence, where questions concerning their welfare and the merits of any dispute about where and with whom they should live can be determined. That is, applications like this one, made pursuant to the Regulations, are matters about forum, not about parenting per se.

   [5] (1996) 187 CLR 640.

6. The Court may, pursuant to the Regulations, make a return order or any other order it considers appropriate to give effect to the obligations imposed on the Australian Government by the Convention.[6] If certain prescribed matters are established, the Court is mandated to make a return order.[7]

   [6]Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1).

   [7]Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1).

Why has it taken so long to finalise the application?

1. It is established that the Respondent removed the children from the United Kingdom to Australia on 10 April 2019 and travelled with them to Australia. I accept that, on 13 May 2019, the father caused relevant documents to be filed with the relevant authorities in the United Kingdom seeking to invoke the operation of the Convention; I also accept that the Australian government confirmed that day that the same had been received.

2. As noted above, the Application for a return order in relation to the children was filed on 15 July 2019; on 18 July 2019 I ordered that it be heard on an urgent ex parte basis and acceded in part to the Applicant’s application for information orders for the purpose of locating the Respondent so that she could be served with the Application; after personal service was effected on the Respondent on 13 September 2019, the Application was listed to 8 October 2019 for the making of further interim orders and directions: on this day it was listed for final hearing to 15 November 2019.

Overview of relevant facts and circumstances

1. The requesting Applicant under the Convention is the children’s father; the Respondent to the Application is the children’s mother. Both parents were born in Scotland and they, like the children, are British citizens.

2. The children’s parents married in 2007. They and the children moved to live in Australia in 2010; the Respondent and the children returned to Scotland with the father’s knowledge in 2013.

3. The parents separated in 2013. Proceedings were commenced in the D Town Sheriff Court that year. On the father’s account, the Respondent and the children returned to Australia without his knowledge in 2014 – whilst he had Skype communication with the children, he did not know where they were living for about six months. The Respondent and the children subsequently returned to Scotland in late 2014.

4. The proceedings in the D Town Sheriff Court finally concluded on 27 March 2018: that is, the parents were engaged in what I accept were acrimonious parenting proceedings from almost immediately after their separation until orders were made in agreed terms on 27 March 2018 to (at last ostensibly) resolve such dispute.

5. I accept that, in the course of these proceedings, a number of parenting orders were made – for example, an Order made on 1 August 2016 restrained the Respondent from removing the children from the United Kingdom without the father’s express permission; an Order made on 16 August 2016 provided that, commencing on 22 August 2016, the children spend time with their father between 3.15 pm and 7.00 pm on Mondays and Orders made on 31 October 2016 provided that the children spend time with their father each alternate weekend from 3.15 pm Friday until 5.00 pm Sunday.

6. Consequently, from the time the October 2016 was operative, the parenting orders provided for the children to spend time with their father:

   a)each Monday from 3.15 pm until 7.00 pm; and

   b)each alternate weekend from 3.15 pm Friday until 5.00 pm Sunday,

   with the  father to collect the children from school at the start of their time with him and to return them to the Respondent at the conclusion of their time.

7. I also accept the father’s evidence that he did not work between 13 June 2016 and 22 April 2017 to ensure that he was available to spend time with the children and that, during this period, the children generally spent time with him in the manner prescribed by the operative orders.

8. According to the contents of notes, dated 9 February 2018, from the G Area Social Work Service, the Respondent contacted this service to allege that the children had been abused by their father; however, she could not clarify this allegation and was “vague” about it; she reported that people had told her that the father forced the children to do things they did not want to do and had dragged them screaming along the street; she reported that the children had been given a card (on which was written something like “I don’t want to see dad”) to give to the school, but the school was not listening to them.

9. Despite the Respondent making the complaint outlined immediately above, I accept that, on 27 March 2018, the Sheriff Clerk Depute at the Sherriff Court at D Town made certain parenting orders with the consent of both parents (the March 2018 Orders). I accept that the March 2018 Order remains in force; I also accept that it was not the subject of an appeal by the Respondent.

10. The terms of the March 2018 Orders took into account that the father works offshore on oil rigs on a no less than twenty-eight day rotation; the March 2018 Order provides that, if he has not provided the Respondent with one week’s notice of cancellation of the children’s time with him, they spend the following time with him when he is in the United Kingdom:

    a)each Monday: from the conclusion of school or 3.15 pm until 7.00 pm; and

    b)beginning on 6 April 2018: each alternate weekend, from the conclusion of school Friday until 5.00 pm Sunday; and

    c)for a period of seven nights during the school Easter break each year; and

    d)for a period of 14 consecutive nights during the school X holidays; and

    e)for a period of seven nights in the school October break each year; and

    f)for a period of six nights during the school Christmas break.

11. The March 2018 Orders also provided, by way of a special issues order, that the children continue to attend school/s within the G Area local authority catchment area unless changed by the prior written consent of both parents or Court order.

12. I accept that the father did not provide the Respondent with his prior written consent to change the school at which the children attend at any time before she enrolled them in the school at which they currently attend in Australia; I also accept that no Court order has been made to permit the children to attend any school outside the G Area local authority catchment area.

13. I accept that, despite the March 2018 Order being made in terms agreed by the father and the Respondent, the father last spent time with the children on about 28 May 2018. The father’s assertion is that this happened because the Respondent caused the children to be absent from school on those days on which he was to collect them from there to spend time with them as provided for by the March 2018 Order; the Respondent’s contention is that the children manifested their objection to spending time with their father by running away from school.

14. Other than to remark that it seems to me that, at best for the Respondent, it appears that she was incapable in her parenting of the children of ensuring that they were present at school on those days on which the father was to collect them from there to spend time with them in accordance with the terms of the March 2018 order, I consider it strictly unnecessary to resolve this dispute

15. The father’s evidence is that, as he was both emotionally and financially drained after the conclusion of the acrimonious proceedings between himself and the Respondent (which had endured between 2013 and March 2018), he did not immediately take action to have the matter returned to Court. He said that he continued to correspond with the Respondent about the children spending time with him in accordance with the March 2018 order and, in October 2018, started to look for legal representation to assist in this process.

16. I accept that from about September 2018 until the children were removed from the United Kingdom on 8 April 2019, the father maintained relatively regular contact with the Respondent by which he continued to seek that the children spend time with him as provided for by the March 2018 order; I also accept that the Respondent either failed to respond to his communications or told him that the children were not available to spend time with him.

17. According to the contents of notes, dated 18 October 2018, from the G Area Social Work Service, the Respondent told that service that day that the father had not had contact with the children since April 2018 through his own choice – I do not accept the truth of this assertion; she also reported that a flyer, which bore pictures of the children and their father and which contained the assertions that he loved them and that their mother was stopping him from seeing them (but which did not contain their names) had been placed on her car windscreen and pushed under her door. The father accepts that he had these flyers produced and said that he had done so because he was frustrated and upset about the Respondent’s non-compliance with the terms of the March 2018 order.

18. According to the contents of notes, dated 25 October 2018, from the G Area Social Work Service, the Respondent had contacted police to report that the father had been stalking her and had hacked her emails; police apparently established that the reference to stalking was a reference to a banner that the father had erected in the town and the contents of a blog he had created on Facebook entitled “Fathers matter in the lives of their children.” The notes outline that police had advised that there was nothing criminal in the father’s behaviours and that the blog did not contain any threats, abuse or violence.

19. According to the contents of notes, dated 25 October 2018, from the G Area Social Work Service, the service thought that the children were “in the middle of an acrimonious split between their parents” and that the adult’s behaviours were having or may have an impact on the children’s welfare. It seems that the service spoke with both parents; the Respondent was spoken to about asking the children to leave school only to avoid contact with their father. That she was seems to me to provide support for the father’s contention that it was the Respondent whom was responsible for the children’s absences from school on those days on which he was, pursuant to the terms of the March 2018 order, to collect them from there.

20. According to the contents of notes, dated 8 November 2018, from the G Area Social Work Service, the father contacted the service to report that he had not seen or been able to speak to the children since 3 June 2018; he is recorded as having said that, if he told the Respondent that he was away working, the children tended to be at school on Mondays and Fridays but if he told her that he was back from work, the children were kept away from school. The service ‘strongly advised’ the father to seek legal advice.

21. According to the contents of notes, dated 13 November 2018, from the G Area Social Work Service, the service received a call from a Law Centre, which advised that, on 19 October 2018, they had received a call from X with her mother in the background; the Law Centre expressed that there were concerns about information being shared, which included X collecting leaflets (which the father had posted and in which he stated his love for the children) from the street.

22. According to the contents of notes, dated 16 January 2019, from the G Area Social Work Service, the Respondent contacted the service that day to report that she had been told by a friend on 11 January 2019 that the father had posted comments which were thought to be aimed at the Respondent on his personal blog; the context of these comments appeared to be around him not being able to see the children; the Respondent was not named in the same. Further notes record that the Respondent had made numerous calls to police during which she said that she was terrified the father was planning to take the children to Asia where she had no rights and would not be able to see them until they were 18 years of age; however, she held their passports and it seems the passport office was aware of these concerns.

1. Notes, also dated 16 January 2019, from the G Area Social Work Service, record that the Respondent had advised that she had been at the children’s school at about 2.00 pm on 14 January 2019 having a meeting about her fears about the father having contact with the children when she learned (from the school it seems) that the father had emailed the school to advise that he was going to collect the children that afternoon (it being a Monday and, therefore, a day on which he was entitled to spend time with the children according to the March 2018 order). The notes record that, “in a state of panic”, the Respondent had removed the children from the school and that, as they were leaving, she saw the father who appeared to be recording them using his phone. It seems that the father did not have contact with the children and did not speak to the Respondent; she got herself and the children into her car and drove home calling the police. The Respondent’s report of her actions this day appears to me to provide further corroboration of the father’s assertion that she was responsible for acting to ensure that the children were not at school if she knew that he intended to attend at the school to collect them from there in accordance with the operative March 2018 orders.

2. According to the contents of notes, dated 23 January 2019, from the G Area Social Work Service, the service wrote to the father and the Respondent to acknowledge the January 2019 referral and advised that they seek legal advice. Further notes bearing that date also record that, insofar as the reported concerns related to the father posting on Facebook about his lack of access to the children, there was no indication of threatening or abusive aspects to the posts and, further, there was no indication that the children were directly exposed to the same.

3. According to the contents of notes, dated 29 January 2019, from the G Area Social Work Service, the father contacted the service that day about the 23 January 2019 correspondence; he told the service that he had not been aware of the concerns and was told that the Respondent had reported that she was concerned he would collect the children from school and remove them from the country. The notes record that the father spoke about the Court order and said that he had contacted the Respondent to tell her he was collecting the children but she first collected them from the school; he also told the service that the allegation that he was intending to remove the children from the country was news to him and that he did not have the children’s passports and would not remove them from the country, although the Respondent had previously done this in 2014. Whilst the service recorded that the father said that he was concerned the Respondent might take the children’s lives to ‘get at him”, the service noted that the Respondent had never said this and that there was nothing in the records to suggest that she had ever tried to harm the children. The service advised the father to contact the police and to take legal advice.

4. According to the contents of notes, dated 28 March 2019, from the G Area Social Work Service, the Respondent had advised police that the father had children from another union but did not have contact with them; she advised that he demonstrated “the same behaviour” to the mother of his other children. The notes also record that the Respondent had contacted police on 12 March 2019 after being made aware on 10 March 2019 that the father had set up a page entitled “Fathers matter in the lives of their children”. It seems that the Respondent reported this page again because, despite knowing of it earlier and having previously made a report about it, she said it was then appearing as a sponsored advertisement on social media. The Respondent expressed concerns about the impact on the children of this and said that she felt it was having a negative impact on them and that they were not wanting to go to school; she also reported that she felt it was adversely affecting her business.

5. The notes also record that the Respondent said that she was still concerned about the father’s behaviour, which she described as constant and getting worse; she expressed that she did not know what to do about it – when she was advised about agencies, she is reported as saying that she had dealt with the same (such as social work and Women’s Aid) but felt that they did not help.

6. I accept that, on about 8 April 2019, the father received an anonymous Facebook message telling him that the children were being taken to Australia; he said that he then spoke to the children’s paternal grandfather, who contacted the Scottish police.

7. It is uncontested that the Respondent and the children travelled from City E to City H on 8 April 2019; it seems that the police at F Town questioned the Respondent: she is reported to have told them that she intended to take the children with her from City H to Brisbane.

8. I accept the father’s evidence to the effect that, when he sought legal advice, he was told that he could not prevent the children’s departure from Scotland because the March 2018 order only provided for the children to attend school within the prescribed catchment area; I also accept that he was also told that he could not prevent the children leaving the United Kingdom because they may have been travelling to Australia for a holiday. Nothing in the March 2018 order restrains the Respondent from removing the children from the United Kingdom for holiday purposes.

9. According to the contents of notes, dated 9 April 2019, from the G Area Social Work Service, the father contacted the service that day seeking that they do something as the Respondent had been/was at the City H Airport and was taking the children to Australia without his consent; he was told to contact the police as it was a matter for them.

10. The Respondent and the children entered Australia on 10 April 2019.

11. I accept that the Respondent did not notify the father that the children had travelled to Australia; even on her account during cross-examination, police she had spoken to had been unable to locate the father to discuss, with him, her plan to remove the children from the United Kingdom. I also accept that the Respondent did not provide the father with any details about the children’s location in Australia after they arrived in this country on 10 April 2019. I also accept, though, that the Respondent did contact a friend, whom subsequently forwarded to the father a message she sent to that person in the following terms: “Got car, in the allied health house, children have started school. Just waiting to start job.”

12. I accept that the father signed the application for the return of the children to the United Kingdom on 18 April 2019.

13. I also accept that, on 23 May 2019, the Acting Head Teacher of the F Town Primary School (Ms J) wrote to the father to advise him that the Respondent had advised the school that the children would no longer be attending it and that they were registered at the State School at Suburb K, Queensland.

14. According to the contents of notes, dated 24 April 2019, from the G Area Social Work Service, when the service contacted the children’s school that day, the school advised that the children had not returned from their Easter break on 16 April 2019 so they had contacted the Respondent who advised that she was in temporary accommodation and would advise the school about what school the children were at so that information could be sent. When the service attempted to contact the Respondent by telephone later that day, her number was no longer connected.

15. According to the contents of notes, dated 7 May 2019, from the G Area Social Work Service, the Respondent contact the service that day; the notes record that she outlined that the father had not had any contact with the children since May 2018 after an incident where they ran away from school on a day the father was to collect them; the Respondent is also recorded as having said that the reason the children ran was that they despised having to spend time with their father; she outlined that it was after this that the father started his “Father’s matter in the lives of their children” blog and posted pictures of the children; she said that she had made numerous calls to the police as she was terrified that the father was planning to take the children to Asia; she reported that she had been sent a screenshot of a message the father posted on Facebook which said “when your ex-wife coaches your children to lie to keep you out of their lives” she had called the police to report that she felt threatened by this post; the police attended and spoke to her and explained that there was nothing criminal in the post and concluded that she had intimated that she might like to take up the offer of ‘advocacy’ to discuss this further.

What must the Applicant establish?

1. The Regulations make it clear that the Applicant bears the onus of establishing a number of prerequisites.

2. The children are still under 16 years of age.[8] It is clear that the Application seeking a return order was filed within one year of their removal from the United Kingdom on 8 April 2019.[9]

   [8] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A)(a).

   [9] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1)(b).

3. I accept the father’s evidence that before the children were removed from the United Kingdom on 8 April 2019, they had each attended F Town Primary School for more than four continuous years and had participated with numerous sporting clubs and social organisations in the local area.

4. Whilst the Respondent did not put the following in issue, I consider it appropriate that I record that I am satisfied that the evidence clearly establishes that: 

   a)the children were habitually resident in the United Kingdom immediately before they was removed from there by the Respondent and thereafter retained in Australia[10]; and

   b)by reason of him being the children’s father, and, consequently, their guardian and by virtue of the operation of the relevant provisions of the Children (Scotland) Act 1995 (UK), the father has rights of custody in relation to the children under the law of Scotland[11]; and

   c)the children’s subsequent retention in Australia from 10 April 2019 was in breach of the father’s rights of custody;[12] and

   d)at the time of the children’s removal from the United Kingdom on 8 April 2019 and their subsequent retention in Australia from 10 April 2019, the father was actually exercising his rights of custody, or would have exercised them if the children had not been removed from the United Kingdom and retained in Australia.[13]

   [10] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A)(b).

   [11] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A)(c); by operation of the Children (Scotland) Act 1995 (UK).

   [12] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A)(d).

   [13] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A)(e).

5. In the present case, I am satisfied that the Applicant has discharged the onus of establishing those matters required by it to be established; I am easily persuaded that the Applicant has satisfied the Court that the children’s retention in Australia from 10 April 2019 was wrongful under the Regulations.[14]

   [14] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1)(c).

6. Given this conclusion, and the conclusion that the other statutory prerequisites have been satisfied, I am compelled to make an order for the children’s return to the United Kingdom unless the Respondent establishes an exception particularised in reg 16(3) of the Regulations.

7. Even if the Respondent establishes an exception, the Court is not precluded from making a return order only because she has done so,[15] but may exercise the discretion to decline to order the children’s return to the United Kingdom. 

   [15] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(5).

What must the Respondent establish and does the evidence establish it?

1. The Respondent seeks that the Application is dismissed on the basis that the children object to being returned to the United Kingdom.[16]

   [16] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(c).

Do the children object to being returned to the United Kingdom?

1. In order to establish this exception, the Respondent must establish that the children object to being returned to the United Kingdom and that their objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes, and that they have attained an age and a degree of maturity at which it is appropriate to take into account their views. 

2. I accept that it is clear that the objection must be an objection to being returned to the country of the children’s habitual residence – here, the United Kingdom – and not to living with a particular parent – here, the father.[17]  I also accept that the Court must have regard to the whole of the evidence in determining, however they articulate their views, whether the children object in the relevant sense. 

   [17]De Lewinski v Director of Community Services (1997) FLC 92-737 at 83,939.

3. Before discussing the contents of the report prepared by Dr L following his interview of the children on 28 October 2019, it is pertinent to have regard to the contents of reports prepared in the proceedings in the United Kingdom following interviews undertaken there. It is, I think, pertinent that I record that there is no mention in Dr L’s report of even the existence of these previous reports; there is nothing in his report to suggest that, in undertaking the process in which he was engaged, he took up the contents of the same in order to attempt to assess whether what he reports the children telling him during their respective interviews was in fact “independent” or not.

Report dated 19 October 2016

1. I accept that then eight year old X and then seven year old Y were interviewed by a Ms M on 16 September 2016 as part of the process of the creation of a Welfare Report for the D Town Sheriff Court.

2. According to her report – dated 19 October 2016 – when she spoke with the children they were “keen” to give her what came across to her as a list of complaints: for example, X said that her father kept filming her and had taken a photograph of her homework diary, whilst  Y said that the father had tried to film him when he was doing rock climbing; he also told Ms M that his mother had told him that the father had told her that the children did too many after-school activities. When Y told Ms M that the father tracked them via their Ipads (a complaint made by the Respondent to Ms M), she asked the children how they knew that he was tracking them - Y told her that “mum told us”. Ms M reported that X then said that the father tried to control their mother through them: when Ms M asked X what made her think that, the child told her that her mother had told her that, whilst Y simultaneously said “we just know”.

3. Ms M also reported that, after discussing with the children the various activities they had done with their father (which discussion did not cause her to form the impression that the children had been unhappy doing any of these activities or that they were things they hadn’t wanted to do), she spoke with them about whether they might spend over-night time with their father or try out a short holiday with him - both children said that they would not like to stay over. When she asked them why, X told her that the father’s house stank and then burst out laughing, whilst Y told her that “he is pretending to be nice to us by buying stuff and doing stuff with us.” When Ms M asked Y what had made him think that, he told her that “mum told us”.

4. Having interviewed the father, the Respondent, the children and their teachers, Ms M reported that she could not find any independent evidence to substantiate the Respondent’s claims that the children had been severely upset after spending time with their father on Mondays; she thought that the Respondent was clearly anxious about the children’s contact with their father and that it was conceivable the children had picked up on her anxiety.

5. Ms M also reported that she was very concerned to learn from the children that the Respondent seemed to be saying things to them, or in front of them, that she (Ms M) thought were “wholly and completely inappropriate”. She expressed her opinion that “some of the things that they [the children] told me that they had been told by their mother are very damaging to their relationship with their father…”

6. Ms M also stated, in essence, that given the information the children seemed to have been given by the Respondent, she was not surprised that they were saying they didn’t want to attend for “residential contact” with their father.

Report dated 14 November 2017

1. Ms M met with nine year old X and eight year old Y again on 9 October 2017 for the purpose of ascertaining their views about their time with their father.

2. In her November 2017 report, Ms M said that X had told her that she had a good time during the weekends with her father; that she enjoyed her contact with her father but preferred to be overnight at her mother’s home because she let her stay up late; she also said she enjoyed spending overnight time with her father. Ms M said that Y had told her that he sometimes had fun when with his father and sometimes he did not; he said he did not know how he felt about seeing his father.

3. Ms M remarked that, whilst Y had said these things, he had also spoken to her in positive terms about the contact with his father that had occurred.

Report dated 4 November 2019[18]

[18] Exhibit 1.

1. Dr L reported that:

   a)the Respondent told him that she had discussed with the children that the interview was for them to express their views about how they felt about the situation;[19] and

   b)the Respondent’s view was that the children strongly objected to being returned to the United Kingdom and, especially, to spending time with their father; and

   c)the Respondent said that the children were angry that their previously expressed feelings and views were not reported accurately following their earlier interview for the proceedings in the United Kingdom.

   [19] Exhibit 1 at [7].

2. Given the Respondent’s views and the fact that the children have not had any meaningful communication with their father since about May 2018, I think it appropriate to consider whether it is likely or not that the children have been subjected to active or passive manipulation by the Respondent vis-à-vis the views expressed to Dr L.

3. Dr L said that 11 year old X presented as very confident, expressive, passionate and articulate; 10 year old Y was calm, well-mannered and forthright in his views. Both children spoke very positively about residing in Australia and said that they had adjusted and adapted well to their environment here.

4. Dr L reported that X was of the view that they moved to Australia because “we wanted to get away from our father….. We’ve been wanting this for a long time.”[20] She clarified that this meant she and Y; she said they had not been kidnapped - as their father tried to make people believe - but were just trying to live a happier life. She said she was worried her mother could go to jail and that they would try to make her live with their father and if that happened she would just run away: she then started to sob.

   [20] Exhibit 1 at [13]

5. X also spoke very negatively about her father, their experiences together and their relationship: she said that he did not treat them “nice” and that when she was little he had spanked her a lot; she said that the previous year he grabbed her arms and put her in her room if she was upset and kept her in there for hours.  She also said that she had hated going to spend time with her father the previous year; could not sleep at his place because she was nervous and upset; that when she told him she wanted to go home to her mother, he would say “tough” and not let her brother come in to comfort her. She said she did not want to go to spend time with him at all.

1. X told Dr L that she and Y decided in mid-2018 (without their mother’s knowledge) to abscond from school one day their father was meant to spend time with them. She said they ran away as they didn’t want to go with him; she said they couldn’t do anything else and that they had not resumed spending time with him after that. She also said that she had been very upset when previously interviewed during family law proceedings in the United Kingdom (when she was apparently eight years of age) because “they minced my words… They didn’t report what I told them correctly… I told them I wasn’t happy with seeing dad and they didn’t listen.”[21]

   [21] Exhibit 1 at [17].

2. Dr L reported that X became vocally louder when she said “I can’t go back (to the UK)… I don’t want to go back… I don’t want to see him (the father)… My friends are all lost and everyone knows all our secrets now… I just would be with mum…. here… It’s so good here… I’m trying to stand up….. to try and get away from dad….. to be happy.”[22]

   [22] Exhibit 1 at [18].

3. Dr L reported that Y raised similar feelings to X about previously having his “words twisted” during previous family law proceedings; he said “I don’t really like my dad… We don’t do much together…. Never have really… I just want to live with mum.” He said the time he had spent with his father between March 2018 and mid-2018 was not fun and that he didn’t really like his father. He said his father could be quite scary and that he had made banners of them and had put up their photos and information everywhere.

4. Y told Dr L that he very much wanted to stay in Australia; he did not miss anything in the United Kingdom really and things were going so well: his mother had a good paying job and they could do so much now. He said that he didn’t really know his father and that, if they had to go back to the United Kingdom, he would still not want to see him.

Consideration of Dr L’s asserted opinions and conclusions

1. I consider that Dr L has failed to make explicit in his report how his “specialised knowledge”, obtained by virtue of his "training, study or experience" and on which the opinions he expressed in his report is "wholly or substantially based" applies to the facts he assumed or observed in this case so as to produce the opinions he has expressed in his report.[23]

   [23]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85].

2. I consider that, in essence, his report consists of little more than a recounting of the words spoken by each of the children during his interview of them and the recitation, word for word on occasion, of those matters prescribed in Regulation 16(3)(c). I am completely unable to determine how Dr L arrived at the opinions that he expressed, other than to conclude that he did so because – contrary to his assertions when cross-examined - he accepted, without reservation or inquiry, that what the children told him was true and accurate vis-à-vis their past interactions with their father. His report contains no expressed consideration at all of the possibility that what he opined, from only the children’s statements to him, to be their independently held opinions were possibly the consequence of their exposure to their mother’s attitude toward their relationships with their father or her influences (whether overt, deliberate or accidental) on them.

3. It is, I consider, impossible from reading Dr L’s report to ascertain what in particular -  other than a complete acceptance of the truth and accuracy of the children’s account of past events and their asserted past experiences -  provided the basis for the opinions he expressed about the children’s asserted objections to returning to the United Kingdom or about his assertion that such objections showed a strength of feeling beyond the mere expression of a preference or of ordinary wishes or any real assessment of the independence or otherwise of the comments the children made to him during their interviews.

4. There is nothing in Dr L’s report to suggest that he actually undertook any independent consideration at all of the children’s comments to him in the context of the history of the acrimonious parenting dispute in which their parents have been engaged for many years; there is nothing in his report to demonstrate how he considered this fact in arriving at the opinions he expressed about the children’s comments to him; there is nothing in his report to demonstrate that he actually considered the possibility that the children were not really expressing independently held opinions but were, rather, saying things that were the consequence of them being exposed over a number of years to the Respondent’s view of their relationships with their father; there is nothing in his report to demonstrate that Dr L actually engaged in independent analysis to arrive at his implicit rejection of the possibility that the children’s comments to him were the consequence of exposure to their mother’s influences.

5. The significant concerns I have expressed about the contents of Dr L’s report and his evidence generally were not in any way alleviated by his response to the Respondent’s only question of him during her cross-examination of him.  When she asked him, in essence, whether having met the children he thought that they had spoken honestly and had spoken their own opinions or whether they were coached in any shape or form, he answered to the effect that there was no indication or information to suggest that the children were coached or that what they had said was anything but their own opinions: this answer, of course, completely ignores the evidence given by the father (as contained within the Form 2 Application) about why it was that the children had not spent time with him since not long after the March 2018 orders were made and it also completely ignores the contents of the reports prepared during the proceedings in the United Kingdom.

6. After Dr L’s cross-examination, I was left in no doubt at all that he failed to undertake any evaluation of the children’s words in the circumstances which exist in this case – circumstances which include X telling him that she was upset about her previous interviews for the proceedings in the United Kingdom because “they minced” her words and did not report what she had told them accurately. This comment did not even cause Dr L to consider exploring, in attempting to arrive at an opinion about the independence of the children’s comments to him, the possibility of the children that the children had been spoken to by the Respondent about the contents of those reports.

7. I do not accept Dr L’s evidence during cross-examination that, in undertaking his task, he did not assume that anything was true: I consider that he clearly simply accepted that, in fact, the children themselves had decided to  avoid time with their father by independently removing themselves from school and he also clearly accepted the Respondent’s account that she had not known of this; he then appeared to say that, having accepted these assertions as truthful and accurate he relied on them as constituting information that suggested that the children’s comments to him during the interviews were their own views: I consider this to be a further example of the fundamental flaws in his approach to his task.

8. Dr L said that both children became “noticeably emotive” with what he considered to be “genuine anger and concern” when discussing the prospect of them returning to the United Kingdom. Beyond asserting a conclusion, his report is absent any explanation of the basis for the drawing of the same.

9. I do not accept Dr L’s conclusion that the children’s reasons for saying that they objected to returning to the United Kingdom extended beyond mere ordinary wishes. His report contains no expression of the analysis he undertook to arrive at this conclusion.

10. I do not accept Dr L’s assertion that the children’s reasons for saying that they objected to returning to the United Kingdom went beyond expressions of a mere preference of parents; his report contains no explanation of the weight, if any, he gave to X’s expressed concern that she was worried her mother could go to jail if they returned to the United Kingdom in assessing her comments that she did not want to return to the United Kingdom.

11. I consider that the children’s comments as reported by Dr L clearly focused upon them preferring to live with their mother and preferring not to spend time with their father, as opposed to a real objection to returning to the United Kingdom. Further, given those matters contained within the October 2016 and November 2017 reports, I think it much more likely than not that the children have been exposed to their mother’s views about returning to the United Kingdom; given this, I am not remotely persuaded that the “objections” voiced to Dr L are really the independent objections of the children as opposed to utterances reflective of their mother’s views. I think it highly likely that both children have been significantly influenced by the Respondent about their expressed views.

12. Despite his earlier recounting of the manner in which X presented to him, Dr L outlined his view that “both children” appeared to give “calm and considered and independently formed responses” when he explored their experiences, views, relationships, the current situation and possible future scenarios. Absent him demonstrating proper (or any) reference to and consideration of the contents of the material contained in the Form 2 Application, I do not accept Dr L’s assessment that the comments the children made to him constituted “independently formed responses” at all. It follows that I reject his opinion that the children’s responses demonstrated an ability to think independently, consider things thoughtfully and “future forecast”.

13. I also am not persuaded, given their exposure to their mother’s views about their relationships with their father and their situation in Australia, that the children have attained a degree of maturity such that it is appropriate for their views to be taken into account with confidence.

14. Dr L outlined that, from the information available to him, both of the children experience significant concerns about returning to the United Kingdom because of their perceived negative experiences of spending time with their father and any ramifications on their lives caused by the fact that their personal information had become “public knowledge”. I am not persuaded that the asserted “significant concerns” the children expressed constitute an objection which shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

15. Dr L also said there was nothing to suggest the children were not speaking factually, nor that their opinions and feelings were not genuinely and independently felt. He can only have made that comment because he had completely rejected the father’s evidence where it was contrary to the assertions made to him by the children.

16. Dr L concluded that it appeared likely that, if the children’s wishes to remain in Australia were denied, this would cause them emotional distress and further uncertainty about their future. Even accepting this assessment, it is insufficient to establish that which the Respondent must establish in order to persuade of the existence of this exception.

17. Whilst I generally accept that the children have attained an age at which it is appropriate to take their views into account, I am not persuaded that either of them has attained a degree of maturity such as requires their views to be taken into account. This is because I am not persuaded that the views expressed by each of them to Dr L are independent of the views of their mother or that they are doing little more than broadcasting her views about their father and remaining in Australia.

18. Given these findings, I am not persuaded that the Respondent has established this exception to the mandatory return of the children to the United Kingdom.

19. However, in case I am wrong in concluding that the Respondent has failed to establish an exception to the mandatory making of a return order in relation to the children, I will consider whether, if the Respondent had persuaded of the existence of an exception to the mandatory making of a return order, I would have exercised the discretion to make a return order or to refuse to make a return order.

Exercise of discretion[24]

[24] De L v Director General, Department of Community Services (NSW) (1996) 187 CLR 640, 661; State Central Authority v DB [2002] FamCA 804, per Kay J; HZ v State Central Authority (2006) FLC 93-264; Harries & Harries (2011) 45 Fam LR 598.

1. As already noted, Regulation 16(5) provides that the Court is not precluded from making a return order for the children only because the Respondent has established a matter mentioned in reg 16(3); the Court retains a discretion, where a defence is made out under reg 16(3), whether or not to make a return order.[25] Whilst the Regulations are silent as to the matters to be taken into account in the exercise of the discretion, it must be exercised judicially, having regard to the subject matter, scope and purpose of the Regulations.

   [25] De L v Director-General New South Wales Department of Community Services (1996-97) 187 CLR 640; (1996) FLC 92-706; (1995-96) 20 FamLR 390.

2. In determining to exercise the discretion in favour of making an order for the return of the children to the United Kingdom, I have taken into account their wishes as reported by Dr L; however, I consider these are not determinative of the matter because to treat them as if they were would, in essence, mean that other relevant considerations are simply ignored. I have taken into account the Respondent’s evidence, when cross-examined, that before the 28 October 2019 interview conducted by Dr L, X had been very homesick (which I took to be a reference to being homesick for her home in the United Kingdom). I have accorded significant weight to the terms of the March 2018 order and the clear restriction it imposes on the Respondent’s ability to remove the children from schools within the prescribed local area. I have also accorded particular weight to the underlying purpose and intent of the Convention: namely, to enable the performance of the obligations of Australia under the Convention and to secure the prompt return of children wrongfully removed or retained in a contracting State, noting as I do that where, as here, it has been concluded that children have been wrongfully retained in a country other than that of their habitual residence, the obligation on the Court to order their return to that country is almost absolute.

3. I have no hesitation at all in concluding that the circumstances of this case are such that the purpose and underlying philosophy of the Convention would be completely frustrated if an order was not made for these children to return to the United Kingdom.

4. I have also taken the children’s welfare into account and accept that a return to the United Kingdom is something that they have said they are opposed to; I accept that having to return to the United Kingdom will result in a further disruption to their education and will remove them from the environs in which they have lived since their arrival in Australia on 10 April 2019. Whilst it will also mean that the Respondent will be required to resign from her current employment – as her evidence was that she did not object to retuning to the United Kingdom and would accompany the children if they were ordered to return to the United Kingdom - I note that she resigned from employment in the United Kingdom after she unilaterally determined to remove the children from their school contrary to the terms of the March 2018 order.

5. In deciding to exercise the discretion in favour of making an order for the return of the children to the United Kingdom and declining to exercise it in favour of refusing to make such an order, I have accorded greater weight to the matters set out in paragraphs [95] and [96] than to those matters which relate to the children’s welfare.

6. Given that the object of the Convention is to secure the prompt return of children, and that the children have been retained in Australia from 10 April 2019 (following their removal from the United Kingdom on 8 April 2019), I consider that they should be returned to the United Kingdom as soon as practicable. 

7. For the reasons outlined above, I am satisfied that a return order should be made in the terms set out at the commencement of these Reasons. 

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 November 2019.

Associate:     

Date:              15 November 2019