Department of Children, Youth Justice and Multicultural Affairs & Golub
[2021] FamCA 435
•24 June 2021
FAMILY COURT OF AUSTRALIA
Department of Children, Youth Justice and Multicultural Affairs & Golub [2021] FamCA 435
File number(s): BRC 16958 of 2020 Judgment of: BENNETT J Date of judgment: 24 June 2021 Catchwords: FAMILY LAW – CHILD ABDUCTION – where final return order made in respect of two children to Serbia – where taking parent files an incompetent application for a stay of a return order- where the Full Court dismisses the taking parent’s application for an extension of time in which to file notice of appeal.
FAMILY LAW – CHILD ABDUCTION – where taking parent seeks a discharge of the return order pursuant to Regulation 19A(2)(c) of the Family Law (Child Abduction Convention) Regulations 1986 – where taking parent alleges that children’s threats of suicide if forced to return to Serbia are exceptional circumstances which justify the return order being discharged.
FAMILY LAW – CHILD ABDUCTION – where an urgent social science assessment is available and made under Regulation 26 – where Court is not satisfied that children’s threats of suicide are an exceptional circumstances – taking parent’s application for discharge of order dismissed.
FAMILY LAW – CHILD ABDUCTION – Mechanics of return – finding that children should have no time for communication with the father preceding the children’s departure from Australia- considerations of delivery of children’s belongings.
Legislation: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Family Law (Child Abduction) Regulations 1986
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Sentencing Act 1989 (NSW)
Cases cited: Baker v the Queen (2004) 223 CLR 513
De L v Director General, NSW Department of Community Services & Anor (1995) FLC 92-706
Department of Communities and Justice & Kingsley (No.2) [2021] FamCA 308
Department of Family and Community Services Secretary & Smollett (No. 2) [2018] FamCA 372
Number of paragraphs: 83 Date of hearing: 18 June 2021 Place: Melbourne Counsel for the Applicant: Mr Golub In Person Solicitor for the First Respondent: McInnes Wilson Lawyers Counsel for the First Respondent: Mr Harper Counsel for the Second Respondent: Ms Budimir In Person ORDERS
BRC 16958 of 2020 BETWEEN: MR GOLUB
Applicant
AND: DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS
First Respondent
MS BUDIMIR
Second Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.The children, X GOLUB born … 2010 and Y GOLUB born … 2012 (“the children”) be and are hereby placed in the care of the Director General from the Department of Children, Youth Justice and Multicultural Affairs pending the departure of the children from the Commonwealth of Australia in implementation of paragraph 3 of the Order made 11 March 2021.
2.The application of the father pursuant to reg 19A(2)(c) of the Family Law (Child Abduction Convention) Regulations 1986 for a discharge of paragraph 3 of the Order made 11 May 2021 be and is hereby dismissed.
3.The applicant father, Mr Golub, be restrained by injunction by himself his servants or agents from attending at or within 5km of Brisbane airport from 10:00am on Saturday 19 June 2021 to 5:00pm on Monday 21 June 2021.
4.The second respondent mother do all acts and things necessary to facilitate the children making contact with the father by video call upon their arrival in Serbia provided that the duration of the call is a matter within her discretion.
5.That upon the mother and the children passing through customs at an international port in Australia paragraph 6 of the Order made 17 June 2021 be and is hereby discharged.
6.For the purpose of paragraph 9 of the Order made on 11 March 2021 the proper officer of the Department of Children, Youth Justice and Multicultural Affairs send the fathers passport to him by prepaid post.
7.The father deposit the belongings of the children with the desk officer in charge of Queensland police at Roma Street for collection by an officer of the Department of Children, Youth Justice and Multicultural Affairs.
8.Ms B send to the mother any email communication received by her from the father for the children.
9.There be liberty to apply urgently in relation to the implementation of this Order and for this purpose my associate inform the afterhours service of the court and any matter arising be listed before me.
10.The proper officer of the Department be responsible for service of a sealed copy of this Order on Queensland Police at Roma Street.
11.The application of the father is hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Golub has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[1]
FATHER’S APPLICATION
[4]
BACKGROUND
[7]
LAW
[19]
HEARING
[29]
REGULATION 26 REPORT DELIVERED ORALLY
[34]
DR C, PSYCHOLOGIST
[51]
FATHER’S EVIDENCE
[54]
DISCUSSION
[59]
Findings as to the exceptional circumstances relied upon by the father
[62]
Decision on whether there are exceptional circumstances which justify the return order or part of the return order being discharged
[64]
MECHANICS OF RETURN
[66]
Time and communication between the children and the father pending the children’s departure from Australia
[70]
Children’s belongings
[81]
Father’s passports
[82]
CONCLUSION
[83]
INTRODUCTION
On 11 March 2021, I ordered that the boys X who is 10 years old and Y who is nearly 9 years old be returned to Serbia pursuant to reg.16 of the Family Law (Child Abduction) Regulations 1986 (“the Regulations”). The Regulations give expression to Australia’s obligations under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”) which entered into force between Australia and Serbia on 27 April 1992.
On 17 and 18 June 2021 I sat to hear the urgent application of the father that, pursuant to s19A of the Regulations, the return order be discharged or postponed.
I pronounced my orders after regular court sitting hours and said that I would deliver my complete reasons subsequently. These are those reasons. Postponing the delivery of my reasons enabled mother and children to leave the Brisbane Registry at 5:30 p.m. and for the father to deliver such of the boys’ belongings as he had packed for them to the Roma Street Station of Queensland Police for collection by the State Central Authority.
FATHER’S APPLICATION
The father’s application and the grounds for it are articulated in his notes[1] as follows:
[1] Exhibit “F1”
05 March / Doctor gave referrals for both X and Y as requested by the courts. Being for management of stress, adjustment disorder due to parents separation and court proceedings, Referral to: Dr C child psych.
12 March / after speaking with an education and welfare advisor, I was encouraged to write notes regarding the date and time of my sons comments that have deeply concerned me.
On the 11th March @ 3 pm on collection f [sic] my sons from school on the advice of my solicitors, I broached the subject of my boys having to go back to Serbia to be with their mum. Y said “I’m going to kill myself. I will stick a knife in my head”.
On Saturday the 13th March @1.15pm whilst driving in the car going to the beach with my boys X expressed his feelings about going to Serbia. His words were “If I go back to Serbia my life will be ruined and I will kill myself”.
On Tuesday 16th March @ 6pm I took the boys for the first time to meet with Dr C for counselling.
When the session was over Dr C brought to my attention that the boys are unfit to go anywhere and that they require possibly up to one yr of counselling to be fit to travel.
30th March at 9.26 am I received a message from Y’s teacher explaining I need to go and pick him up as we [sic] was not coping well due to outcome of the court case and his return to Serbia.(Teachers are on standby if need to produce an affidavit)
21st April Y was not coping well psychologically. I tried to encourage him to go to school but he was very upset and distraught. He was absent from school.
22nd April I received an email from the school headmaster, Ms D, concerned in regards to Y’s mental state. She highly recommended going to my GP and seeing a psychologist urgently. *Ms D*
I now ask the court to Please take into consideration the children’s rights they have expressed their deepest emotions and not be disregarded. They have made very serious comments which […] I think should not be overlooked. I kindly ask the Court if the children can stay for a minimum of 6 months to continue ongoing counselling and to have them reviewed again after that period to determine whether they have improved psychologically. Thank you.
In the course of submissions, the father clarified that he did not seek an immediate discharge of the return order but sought that the implementation of it be delayed for six months to permit the children to receive counselling. He offered to pay the mother’s rental and other expenses to remain in Brisbane and to share care of the children with her for the six months.
The State Central Authority opposed the father’s application. The requesting parent/mother was present in court. She is a named party but confirmed that she would leave the opposing of the relief sought by the father to the State Central Authority. Her status as a party means that that is bound by this decision.
BACKGROUND
It is necessary to provide some context to the father’s application.
The father is 40 years old and was born in Australia. The mother is 36 and was born in Serbia. The parents married in Suburb E in Queensland, Australia. Both children were born in Australia. The family travelled frequently between Australia and Serbia but it was conceded that the children were habitually resident in Serbia as at 18 April 2020 when the father removed the children to Australia. The mother signed a request to the Serbian Central Authority, the Ministry of Justice, for a return under the 1980 Convention in August 2020. Proceedings were instituted by the State Central Authority for Queensland on 26 November 2020.
The return application was opposed by the father who was legally represented. Amongst other things the father alleged that the mother had consented[2] to the removal of the children to Australia. He relied on a written, notarised statement by the mother to that effect. The mother denied having given her consent to the removal and to having signed the document relied upon by the father. The notary public made a written statement to the Serbian Ministry of Justice advising that the documents purportedly witnessed by her were forgeries. The notary public was to give oral evidence at the trial. The father also alleged that in the lead up to the final hearing the mother had acquiesced to his retention of the children in Australia and produced text messages allegedly between himself and the mother as evidence of her acquiescence. The mother denied sending the text messages relied upon by the father and offered her mobile telephone up for forensic examination to prove that the messages did not emanate from that device. The State Central Authority did not facilitate the forensic examination of the mother’s phone. It did seek that the father produce the mobile telephone on which he said that he had received the mother’s texts. The father did not cooperate initially in that he maintained that he needed uninterrupted use of his telephone to give instructions to his solicitors. When pressed, the father agreed to hand over his device but said that he had inadvertently wiped all message history so a forensic examination would be futile. Consent and/or acquiescence are exceptions to mandatory return pursuant to r.16(3)(ii) and, had either been established, the court would have had a discretion to refuse to return the children to Serbia.
[2] Within the meaning of reg.16(3)(a)(ii)
The father also contended that he would be incarcerated if he returned to Serbia because of criminal proceedings brought on the mother’s complaints of theft and forgery. As best as I understood, the father alleged that his incarceration would place the boys in an intolerable situation within the meaning of r.16(3)(b). The expert evidence did not support the father’s contention of immediate incarceration but did not exclude proceedings being taken against him in the future.
The father relied upon the boys’ objection to return to Serbia under r.16(3)(c) and a r.26 report was prepared by Family Consultant, Ms F, and published on 9 February 2021. In short, the Family Consultant assessed the boys, who had by that time been in the sole care of the father in Australia for ten months, as preferring to stay in Australia but not having attained a degree of maturity at which it is appropriate to take the boys’ objections into account. The boys wanted the father and mother to reconcile and both believed that this was only possible if the mother came to live with them in Australia (as their father would be incarcerated if he went back to Serbia). The boys were critical of their mother, attuned to the father’s views and accepting of the father’s allegation that the mother had promised to come to live in Australia with them as a family and then changed her mind.
On the first day of the final hearing, 11 March 2021, the father agreed that the boys would be returned to Serbia in the care of the mother and final orders were made to that effect. The mother was to travel here, as and when she could, to collect the boys. The father was represented by solicitors and counsel. He consented to the return order. At the hearing of his application to discharge or postpone the return order, the father gave evidence that he did not want to consent to the final order on 11 March 2021 but that he had been ‘instructed’ to do so by his lawyers and barrister who said that there was “no guarantee” that he would succeed in opposing the return order. I do not accept that the father was instructed to do anything. It is for the father to instruct his lawyers and receive advice from them.
The father is self-represented.
In early April 2021, the father lodged on the courts’ portal an Application in a Case seeking a stay of the return order. Due to administrative error, the father’s Application in a Case was not processed, it lay dormant, unfiled and not allocated any date.
In early June, 2021 the State Central Authority informed the father that the mother would be in Australia to collect the children between 17 and 23 June 2021. The father made enquiries of the Brisbane Registry about his application and was informed that it had not progressed due to an administrative error. The Registry sealed the father’s Application in a Case as having been filed on 8 April 2021. The court permitted the father to file an application on 15 June 2021 seeking an extension for time in which to file a Notice of Appeal against the return order. That application was heard by Strickland J, sitting as the Full Court, on 16 June 2021. The father’s applications filed 8 April 2021 and his application for leave to file a Notice of Appeal out of time were dismissed.
On 16 June 2021 the father filed his application under r.19A(2) for a discharge of the return order. It was allocated a return date of 17 June 2021 before me. Late on 16 June 2021, I made an ex parte order requiring the father and mother to attend court for the hearing and for the father to bring the children to the Brisbane Registry of the court on 17 June 2021, and place the Child Minding Centre at Child Dispute Services to abide further order of the court.
The mother was released from quarantine in Sydney on 17 June 2021 and immediately made her way to court in Brisbane.
On 17 June 2021 the father abided my direction to deliver the boys to Child Dispute Services at the Brisbane Registry.
LAW
Regulation 19A provides that if a court makes a return order, pursuant to the Regulations, the court may make an order discharging the return order, or part of the return order. It provides:
(1)The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:
(a)all the parties consent to the return order being discharged; or
(b)since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or
(c)exceptional circumstances exist that justify the return order being discharged; or
(d)the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.
Initially, the father said that he relied upon sub-regulations (b) and (c).
To illustrate to the father how the regulation is applied to the facts of a case, on 17 June 2021, I provided him and the other parties with a copy of the recent and concisely expressed decision of Rees J. in Department of Communities & Justice & Kingsley (No. 2) [2021] FamCA 308. In that case, the taking parent mother had contended, unsuccessfully, that her alleged inability to accompany the two year old daughter back to Canada and the fact that C Province had declared a provincial state of emergency due to the COVID-19 pandemic, rendered the child’s return impracticable and constituted exceptional circumstances which justified the return order being discharged.
On 18 June 2021, Mr Golub informed me that he did not take the opportunity to read the decision of Rees J. in Kingsley’s case but he conceded that the return of the children to Serbia was not impracticable within the meaning of s.19A(2)(b). The father stated that he relies only on the exceptional circumstances ground in r.19A(2)(c).
In Department of Family and Community Services Secretary & Smollett (No. 2) [2018] FamCA 372, an order had been made by our Deputy Chief Justice for the return of a three year old child to New Zealand. Subsequently, the mother applied under r.19A(2)(c) contending that the diagnosis of the child with autism after the return order was made constituted an exceptional circumstance. In dismissing the mother’s application, McClelland DCJ stated:
…in applying Regulation 19A, it is necessary for the court to have regard to the statutory context. That is, the Regulations are made pursuant to section 111B of the Family Law Act 1975 (Cth) which relevantly provides that the purpose of the Regulations is to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the Convention”).
In DP v Commonwealth Central Authority (“DP”) Gleeson CJ said;
…the concern of the Convention is to reserve to the jurisdiction of the contracting state which is the place of habitual residence of the child the determination of rights of custody and of access. This was said to entail a degree of self-denial, the natural inclination of any court before which such a question comes being to make its own assessment of the interests of the child. The objective is to secure the prompt return of children who have been removed wrongfully, or are being retained wrongfully, so that issues of custody and access may be dealt with according to the laws of their place of habitual residence.
In respect to the task before the Court, in Re DP, Kirby J noted that applying the principles of the Convention;
…requires decision makers to face up to what will necessarily, on many occasions, be an unpleasant obligation where there may be a suspicion that the child's best interests, viewed purely as a custody determination, might suggest the child's retention within the jurisdiction, although the proper operation of the Regulations, implementing the Convention, requires an order of removal.
(Footnotes omitted)
In considering Regulation 19A(2)(c), “exceptional” is to be given its ordinary meaning. Baker v the Queen (2004) 223 CLR 513 was a case arising under s.13A of the Sentencing Act 1989 (NSW) which provided that a person serving an existing life sentence could apply for the determination of a minimum term of imprisonment and a parole period. S.13A(3)(a) provided that a person subject to a non-release recommendation was not eligible for a determination of a minimum term and a parole period unless the court was satisfied that “special reasons” existed that justified making the determinations. In Baker v the Queen Callinan J stated [173]:
…Legislative requirements that a judicial determination depend upon the demonstration of exceptional or special matters, events, circumstances, or reasons, are far from unique and have been the subject of much judicial deliberation. Regularly this Court is called upon to decide whether special leave to appeal should be granted. Speaking of the expression "exceptional circumstances" in s 2 of the Crime (Sentences) Act 1997 (UK) required for a decision not to impose a sentence of life imprisonment, Lord Bingham of Cornhill CJ said in R v Kelly (Edward):
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
(Footnotes omitted)
In the event that I am satisfied that “exceptional circumstances exist that justify the return order being discharged” (which I am not), relief under r.19A is discretionary, as evidenced by the opening words of the regulation which are “The court may make an order discharging a return order, or a part of a return order …”. Accordingly, relief under r.19A is preconditioned on a finding that there are exceptional circumstances which justify the return order being discharged. However, even if such a finding is made, it remains for me to decide whether the discretion should be exercised in favour of discharging the return order, or part thereof.
The Regulations are silent as to the matters which are to inform the exercise of the court’s discretion to discharge part or all of a return order. In De L v Director General, NSW Department of Community Services & Anor (1995) FLC 92-706 the High Court considered r.16(3)(c) of the Regulations, which similarly confers a discretion on the court to refuse to return a child without specifying any matters to be taken into account. In De L , the plurality, comprising Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed that the court’s:
discretion is therefore unconfined except insofar as the subject matter and the scope and purpose of the Regulations enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is to be taken into consideration in exercising that discretion.
The consideration of the best interests of the particular children in the exercise of the court’s discretion is significant because in the making of the substantive order the best interests of a child is relevant only to the limited extent that it finds expression in the exceptions to return provided in r.16(3).
Regulation 15(1)(c) provides that, if the court is satisfied that it is desirable to do so, the court may, in relation to an application for return “make any other order that the court considers to be appropriate to give effect to the 1980 Convention”. It follows from the reasoning of the plurality in De L that the purpose and underlying philosophy of the 1980 Convention would, had I come to a different conclusion on the existence of exceptional circumstances, been a relevant consideration in the exercise of my discretion. However, within the context of r.19A(2)(c), a discretion to discharge a return order or part of a return order arises if, and only if, the court is satisfied of the existence of an exceptional circumstance and, because on the fact of this case, I am not satisfied of exceptional circumstance(s), I have no discretion to discharge the return Order made on 11 March 2021.
HEARING
The hearing proceeded remotely on the courts’ MSTeams platform. I sat in Melbourne. The father appeared for himself from the Brisbane Registry. Mr Harper, of counsel, appeared from Sydney for the State Central Authority. The lawyers for and officers of the State Central Authority were in Brisbane. The mother attended the Brisbane Registry, unrepresented.
On 17 June, I ordered that the boys be assessed by a Family Consultant under r.26 of the Regulations. Family Consultant Ms F was available to meet with the children and report back to the court later in the day. The father had taken the children to psychologist, Dr C. Dr C was able to give evidence by telephone from her rooms in the middle of the Family Consultant’s evidence and was asked some questions by the Family Consultant.
Apart from the social science experts, the father gave evidence briefly to confirm that everything he had said from the bar table was true and correct. Otherwise the matter proceeded by way of submissions.
I ordered that the children spend time with the mother in between the hearings on 17 and 18 June and then from when the court rose on 18 June 2021 until they went to the airport on Sunday 20 June 2021. That means that the children did not see their father after he delivered them to Child Dispute Services on Thursday. The children didn’t have a mobile phone and the father could not make contact with them overnight. It was a harsh way to implement the final return order but, for reasons expressed below, I am satisfied that those measures were necessary.
I need to say something about interpreters. The court could not obtain an interpreter to sit with the mother and interpret simultaneously. We were restricted to an interpreter by telephone which meant that we would have been required to stop every sentence or two and wait for interpretation. That is unworkable. The Queensland Central Authority provided a Serbian speaking child protection worker who acted as an informal interpreter and their resourcefulness is to be commended. However, informal interpretation was only sufficient because the mother left carriage of her case to the State Central Authority. Remote hearing technology has been widely taken up by this court as a result of pandemic restrictions. Remote hearing technology has brought some flexibility into court process, but the inability of the court to provide an accredited interpreter for the mother sub-standard and regrettable and other processes must be put in place for subsequent cases. An interpreter should have been available to sit next to the mother in court and translate sotto voce. If that could not be done, an interpreter participating by MSTeams and placed on mute with a phone line direct to the mother would the next best option. It is a shortcoming of the interpreter services used by the Family Courts that not all interpreters are permitted by their agencies to participate on the courts’ MSTeams platform in addition to having a dedicated telephone connection to the person for whom they are interpreting.
REGULATION 26 REPORT DELIVERED ORALLY
Ms F was the Family Consultant and gave evidence in four tranches on 18 June 2021.[3] Ms F had prepared the r.26 report of 8 February 2021 in relation to the objection to return exception relied upon by the father.
[3] 1:25pm-2:04 pm, 2:43-2:55 pm, 4:23-4:34 pm, 4:55-4:58 pm
The Family Consultant saw the boys separately. She found X (10 yo) to still be enthusiastic about life in Australia and still negative about the mother. He said that his mother lies and was forcing him and Y to return to Serbia. He told the family Consultant that he did not want the mother to be part of his family. X stated to the Family Consultant that, if forced to go back to Serbia, he would kill himself and that he had formulated three methods to suicide:
· He would stab himself in the head with a knife.
· He would cut his own throat.
· He would jump off a balcony and land on his head.
The Family Consultant’s evidence was that X believed these three methods would be lethal.
The Family Consultant observed Y (nearly 9 yo) to become angry, stiffen, sad, worried and agitated when talking about returning to Serbia. Y stated that his life would be ruined, he would be better off dead and would stab himself in the head or the neck if he was forced to return to Serbia.
When giving evidence for the first time after interviewing the boys, the Family Consultant’s expressed the view that the boys each required an urgent mental health assessment and recommended a referral of both to G Hospital.
The Family Consultant’s questions of the psychologist, Dr C, were directed at whether the boy’s statement about their mother were based on their own knowledge and experiences.
There was limited cross examination of the Family Consultant. Cross examination by counsel for the State Central Authority was informative and helpful. He asked about X describing how he might kill himself. Mr Harper suggested three ways in which might assess the boys’ statements as well as inviting any other interpretation the Family Consultant might want to add. The first scenario, was whether X’s statements were his way of expressing forceful emotions where he may not have the communication skills to convey the intensity of in another way. The second scenario, was whether the statement is manipulative in the sense of X believing that, if he makes these extreme statements, he might get the outcome he seeks. The third scenario was whether X is genuinely expressing suicidal ideation. The witness was asked to comment how the court could navigate those three options and any other options occurring to the Family Consultant. The Family Consultant responded that she was challenged to do so given she wasn’t able to do a full and comprehensive mental health assessment with X in particular though she leaned towards it being a means of X expressing the distress he is experiencing. She raised that X had asked the Family Consultant whether she could lie when recording what he says and tell the judge that he repeatedly said he would kill himself. The Family Consultant informed X that she could not lie but could say that he repeatedly said he would kill himself. The Family Consultant assessed that X really wanted to press his point of view around his objection to returning and the distress he was experiencing. With regards to genuinely expressing suicidal ideation, the Family Consultant thought that “warranted more unpacking” before she could express an opinion. She stated that X was clear he would not kill himself if he stayed in Australia. His plan to suicide was if he were to return to Serbia. The Family Consultant expressed some difficulty in commenting around the gravity of the risk because, she said, a person will have an intent and plan and carry it out. While a plan can be delayed, she was not sure if a child young as X could delay that plan and maintain a firm resolve to carry it out in the future and on his return to Serbia. The Family Consultant opined that X “can’t tell the future. He’s got a picture of what it will feel like but whether when he gets back to Serbia that’s how he will feel I can’t speak to that” or words to that effect.
Mr Harper suggested that one significant factor in accessing risk would be X’s relationship with his mother. The Family Consultant stated that, in her not having been able to interview with the mother, there was “a big gap in terms of my assessment. I don’t have any understanding of what early attachment was like, I only have X’s statements so I can’t access that.” I asked the Family Consultant if she regarded as a positive the boys saying to Dr C that it would be great if the mother came to Australia. The Family Consultant responded, in effect, “I do agree and I think that was a theme that was certainly strong and still strong today with Y however X’s anger with his mother seems to have amplified to the point he says he doesn’t want her to be part of his family anymore but prior to him saying that he had said it would be better if mum could move, why can’t mum come here”. The Family Consultant accepted that X’s statement indicated that X wants a relationship with the mother.
The family Consultant opined “from my assessment I feel the kids are in a lose lose situation.” Her impression is that the boys were highly motivated to convince the Family Consultant that they would not go back to Serbia though she says that “with the caveat that I wasn’t able to do full mental health assessment and given I’ve met the children on only two separate occasions I don’t have ongoing therapeutic alliance with them but that was the impression that they really wanted to let me know that they couldn’t return.” My observation is that the Family Consultant remained very concerned, from a duty of care perspective, about what needed to be done to ensure the boys’ safety.
The Family Consultant required to see the mother before being drawn on whether the boys should spend time with her on Thursday evening. We adjourned the hearing so that the Family Consultant could meet with the mother. The Family Consultant reported that the mother was insightful and recommended that the boys be able to see their mother in the presence of the Family Consultant. We adjourned again to allow the boys sometime with their mother in the presence of the Family Consultant.
The Family Consultant gave evidence after observing the boys with the mother. She said that the boys were curious, affectionate and greeted the mother enthusiastically. They were happy to see the mother but assumed that the mother had travelled to Australia to reconcile the family. The Family Consultant described that the mother responded appropriately and didn’t deny or confirm that she had come to join them in Australia, she redirected the boys’ attention. The Family Consultant relayed that the introduction “went really well, both children were very excited to see mum. Ran to her and embraced her.” They were speaking in Serbian and English so there was conversation that the Family Consultant could not understand.
I asked the Family Consultant how the reaction of the boys sat with her earlier experience of their angry descriptions of the mother. She responded “they were very angry. Y (9 yo) did ask mum if she had a boyfriend. I couldn’t understand the answer. He wanted to look mum’s phone to go through photos. That didn’t happen of course, mum redirected that behaviour so in terms of them being angry at mum I did not get that sense at all. I got the sense there is lots of confusion around what’s happening and why mums here.”
I asked the Family Consultant whether she had altered her view about the boys’ need for an immediate acute, mental health check. The Family Consultant responded that “I possibly don’t think it’s necessary. But that’s on the proviso the children think they are not returning to Serbia, I don’t know what that would look like if they believed that they were returning to Serbia. They certainly seemed very affectionate towards mum. There’s a loving relationship there given they had not seen each other in a long time.”
The Family Consultant opined that the boys’ reaction at seeing their mother after 14 months was consistent with her early assessment of them and her concerns around their black and white perspective of mum and their fear of dad going to jail being one of the biggest issues for the children about not wanting to return to Serbia.
I asked the Family Consultant to consider how the return order could be best implemented. She said that all means to that outcome were problematic and “difficult”. In the context of the mother wanting to return to Serbia on Sunday 20 June, the Family Consultant opined that flying out in two days allowed the mother very little “repair” time with the boys. In the context of the mother possibly surrendering her non-refundable fares and purchasing alternative tickets and flying out on Wednesday 23 June 2021, she thought that the boys would be conflicted. She expressed the view that such a delay in return may lead to an escalation in the boys’ behaviour and it could “prolong the difficulties in the rupture they’re about to experience in leaving their father’s care”. The Family Consultant suggested that the court should be informed by the mother’s attitude, her perception and thoughts on how the sons would react. The Family Consultant stated “[the mother] knows these children’s better than I do. I’m sitting on the fence around that. I feel like in some ways it would be good to rip the band aid off but I’m curious as to the degree to which the boys might escalate [if any departure is delayed] given what they have experienced over the last year”.
Finally, I asked whether the Family Consultant had a sound and favourable impression of the mother’s insight and parenting capacity. She responded “I’ve met her for the first time today… she gave me some insight into what she perceived the level of manipulation the boys have experienced. The mother has a task ahead of her to repair that relationship with the children in a way which they trust her again.”
I found the evidence of the Family Consultant to be informative and of assistance. I accept her evidence. I am most grateful to Child Dispute Services for re-organising commitments so that the children could be assessed for this application by the Family Consultant who undertook the original assessment in February 2021 and at such short notice.
DR C, PSYCHOLOGIST
The father obtained a referral to Dr C after reading the Family Consultant’s r.26 report in February 2021 which stated “both X and Y are experiencing a high level of anxiety and stress regarding their current situation and instability that warrants supportive and neutral clinical assessment from an experienced child psychologist”. The referrals are dated 5 March 2021 from H Medical Centre.
Dr C perceived her role to be to calm the children’s immediate distress. She believed that she did so because there were no immediate plans for the children to fly back to Serbia and she regarded the litigation about their return as ongoing. However, the father omitted to inform Dr C that, by the time she saw the children for the first time in mid-March 2021, he had agreed to an order returning the children to Serbia and that the order was final.
Whereas the father frames his application around the imperative that the boys be able to remain in Australia “to continue ongoing counselling”. The father has only taken the boys to see Dr C twice and at intervals of eight weeks. Dr C is only now making arrangements to see the boys at regular times in the future.
FATHER’S EVIDENCE
The father gave evidence calmly. He read from a further statement which he wrote overnight and which was tendered.[4] He refers to both the Family Consultant and Dr C having said that the children are not fit to travel. That was incorrect. Neither professional witness said that the boys were unfit to travel.
[4] Exhibit “F2”.
The father’s evidence was that he had done everything possible to obtain psychological assistance for the boys. I do not accept that to be the case. In the context of the father’s case being that the boys require urgent psychological support, he has taken the boys to a psychologist only twice since March 2021. The father was not limited to seeking assistance from Dr C. He could have returned to the boys’ general practitioner and sought other referrals. Indeed, the father believed that he could use the referral to Dr C to have the boys be seen by another psychologist. My impression is that the father did what he considered expedient to make it appear that he had sought and pursued appropriate treatment. When I asked the father what he had done to prepare the boys for their mother’s arrival in Brisbane, he responded that he had not told them that the mother was in Australia or even that she would be in the same court building as them on Thursday because he had been too busy.
Counsel for the State Central Authority tendered a transcript of a conversation between the mother and the father which is said to have occurred after 11 March 2021 and before 9 April 2021 (Exhibit “SCA1”). The transcript is in Serbian and accompanied by a translation. The father conceded that the translation was an accurate record of the conversation which took place. The conversation includes the following interchange in relation to when the mother will arrive to collect the children and that she did not want to tell the father where she would be staying in Brisbane:
The mother: [01:17:15] in Brisbane -- I’m alone. Who am I going to be with?
The father : [01:20:67] Let me see. Show me the space.
The mother: [01:23:29] But why? You don’t believe me?
The father : [01:25:87] No.
The mother: [01:26:73] Well, ok, don’t.
The father : [01:27:37] No, because nobody notified me.
The mother: [01:29:17] Well nobody needs to notify you. Here I’m letting you know. I didn’t want to --
The father : [01:32:60] Well the lawyers should notify me.
The mother: [01:33:90] I didn’t want to let you know, I wanted to let the children know, but when we were alone. But because they don’t want to talk,
and so what am I to do?
The father : [01:44:28] All right. And now...
[01:46:05] Just show me the space, so I can see.
The mother: [01:48:44] I won’t. On purpose.
The father : [01:51:06] Why won’t you? You’re just a common whore.
[01:53:80] I’ll fucking get you for this1, you’ll see. Remember my words.
The mother: [01:56:74] Mm-hm.
The father : [01:57:10] Remember, Ms Budimir.
[01:58:16] Ms Budimir, remember me.
The mother: [01:59:08] Mm-hm.
The father : [01:59:67] This, that you’ll take the children away now, and that I’ll not see them again...
[02:04:38] Remember my words. Sooner or later I’ll get you for this.
Sooner or later. Sooner or later. You’ll see. Just you laugh. Sooner or later. Ok?
The mother: [02:12:30] But, how will you get me, please tell me?
The father : [02:15:75] There is, there is how I’ll do it. But it doesn’t matter. That I’ll, that I’ll, another time you’ll, uhm, see that.
The mother: [02:20:43] Mm.
The father : [02:20:54] Just tell me, yeah, when so I know to get the children ready.
The mother: [02:26:54] Well get them ready, look, in two weeks' time.
The father : [02:29:68] You’ll remember me for this. For this what you’ve done.For this you’ll remember.
The mother: [02:45:35] How will I remember?
The father : [02:47:47] I’ll destroy your whole family. Remember. I will pay. My money. I’ll pay. You’ll see.
The mother: [02:52:18] By what?
The father : [02:52:67] Remember what --
[02:54:14] Remember what I’m telling you. For this, that the children will now go away. So, the whole family. You’ll see.
Remember my words. I’ll pay with money ((for them2)) to destroy you.
(( 2 Serbian is a pro-drop language, which means the pronoun can be dropped. The verb destroy is in the 3rd person plural, hence the addition of the words for them.))
[03:05:77] You’ll see.
The mother: [03:07:00] You are a coward.
The father : [03:07:83] You’ll see.
[03:09:91] It- It doesn’t matter, it doesn’t matter, whatever I am.
Whatever I am. That you’ll take the children away. And destroy them. And that I won’t see them again.
[03:20:18] Just you laugh. (inaudible)
The mother: [03:21:24] Hey that was -- The court made that decision. I’m sorry,
Mr Golub.
The father : [03:26:47] It doesn’t matter.
The following extract is from the same conversation and includes Y speaking to the mother:
Y : [03:35:94] When I get there, I’m gonna kill you.
The mother: [03:38:82] What?
The father : [03:39:61] (inaudible)
Unrecognisable voice: [03:42:18] (inaudible)
Y : [03:42:76] I’m gonna kill you when I get there.
The mother: [03:44:83] Me, Y?
The father: [03:46:18] Hey <X bro X>, watch out that nothing happens to you while you’re in City J now.
The father’s response was that he could have produced text messages in which the mother had spoken to him rudely.
DISCUSSION
It is apparent that the children are very upset and made statements to the Family Consultant about harming themselves that no parent or person who works with children ever wants to hear. However, the opinion of the Family Consultant, after observing the children with the mother, was that the children were likely to be using the threats of suicide to add emphasis and weight to their expressed desire to remain in Australia, possibly in the belief that if they stay here, their parents might reconcile and they can live once again as a family.
The Family Consultant took very seriously boys’ proposals to kill themselves, as do I. The Family Consultant was obviously deeply worried after her interview with the boys on Thursday morning but her concern seemed to be alleviated to some degree after speaking with the mother and then observing the boys in the mother’s company.
In my assessment of whether the boys’ threats to do themselves harm constitutes an exceptional circumstance, I must have regard to the uninterrupted period for which they have been in the care of the father in Australia with the support of members of his family of origin. Further, the boys’ relationship with the mother has been fractured by distance and their acceptance of the father’s description of the mother as breaking her promise to join them in Australia in August 2021 and arranging for him to be arrested and gaoled if he returned to Serbia. The mother has lost any authority over the boys, the father has become omnipresent and the architect of the prism through which they view the mother.
Findings as to the exceptional circumstances relied upon by the father
This is a difficult case but, ultimately, my impression is that the boys’ threats of suicide are the means by which they think that they can best emphasise the importance to them of staying in Australia and perhaps even bring about the reunification of their parents into one family unit. That is consistent with the boys being exceptionally rude to, and about, the mother but then being excited, happy to see her and affectionate. The boys’ alignment with the father is a survival mechanism. It is a measure by which they can remain in Australia and protect their father from going to gaol in Serbia. Alignment with the taking parent is routinely encountered in international parental child abduction cases such as this case. Rejecting behaviour directed to the left behind parent is part and parcel of a child’s attempt to cope with their new life and the abrupt loss of the left behind parent.
The presentation of X and Y is not unusual and it is not exceptional. The thought of the boys killing themselves is horrible in the extreme but, at their stage of development and with their very limited personal autonomy, the fact that they threaten to do so is emblematic of the excruciating situation in which children find themselves.
DECISION ON WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH JUSTIFY THE RETURN ORDER OR PART OF THE RETURN ORDER BEING DISCHARGED
Notwithstanding that I pronounced orders very shortly after submissions were concluded, I gave the determination of this matter a great deal of consideration. I have thought carefully about the evidence of the professional witnesses and the father and the submissions for the father and Mr Harper for the State Central Authority. I am not persuaded that, in this particular case, the boys’ threats of self-harm are an exceptional circumstance within the meaning of r.19A(2)(c) that justifies the implementation of the return order being postponed and delayed in accordance with the father’s application. Indeed, to do so would expose the children directly to a totally unacceptable degree of parental conflict and consequent emotional harm. Counselling for the boys in Australia with a return order hanging over their heads would not be beneficial or constructive. It would simply be an arena in which to play out the very high level of parental conflict which exists between the mother and the father to the very real detriment of the boys.
The father’s application under r.19A(2)(c) will be dismissed.
MECHANICS OF RETURN
There now falls for consideration how the return of X and Y to Serbia can be implemented. As with very many cases of international parental child abduction, the return of the children is more traumatic than the abduction because they are fully aware of what is happening and what is at stake. I have no doubt that is the case here.
The mother wants to leave Australia with the boys on Sunday 20 June 2021 and is equipped to do so with paid for tickets and the children having undergone the necessary polymerase chain reaction test. The vexing issue is what time or communication the children should have with the father between now and their departure.
The father was undoubtedly shocked and dismayed not to be able to speak to the boys after court on Thursday afternoon and at my refusal to allow him to give them boys their telephone and backpacks. I made it clear to the father that he and his family members should not try to contact the boys on Thursday night. On Friday I was informed that the boys tried to contact the father using the mother’s mobile phone repeatedly on Thursday night but the messages were deleted by the mother before they could be read by him.
I am satisfied that the boys are confused, possibly upset, but I have no doubt that they want to see the father. The problem is that communication or face to face time between the boys and the father at this fraught time will jeopardise, and may even defeat, the task of the State Central Authority to facilitate the prompt return of the boys to Serbia.
Time and communication between the children and the father pending the children’s departure from Australia
In his submissions, the father informed me that he was prepared to be supervised and/or abide any condition the court considered should be imposed so that he could “hug them” and “say goodbye” to X and Y in person. Notably, the father had not seen or spoken to the boys, nor they him, since he delivered them to the child minding area at the Brisbane Registry on Thursday morning and said that he would collect them later. If the father could not see the children face to face, he was prepared to communicate with them by telephone or video. Finally, he asked if he could just see them walk by.
The father assured me that he would just say goodbye to the boys but I doubt his capacity for self-control. The father’s submissions at the conclusion of the case contained a high degree of self-justification, which give me concern for how he would present to the children if given an opportunity to farewell them. The following statements were included in the father’s final submissions:
·The mother’s not going to be able to look after [the boys] like I do. Her work is spontaneous.
·They did not know they had to adapt to not having a mother because she was supposed to come join us. She neglected us. She left us. She didn’t want to come be with us. She then reported me to the Hague Convention.
·I don’t see why their mother can’t stay here and be with them either. There’s nothing stopping her being here.
·She deprived herself of them, I didn’t deprive her of them. I never disconnected communication between them. They were always communicating. She deprived herself of them by not coming here. She was supposed to come here. I didn’t tell her not to come here, she was the one who changed her mind.
·The women have more rights. You believe her word over mine anyway so whatever I present today she’s always going to object to it anyway because she wants what she wants.
There was also the wholly inappropriate manner in which Y addressed the mother discussed at paragraph [57] above, apparently unchecked by the father.
On the facts of this case and with the real benefit of having heard the expert evidence of the Family Consultant, I conclude that the return should be effected as soon as possible and with as little disruption as possible.
The implementation of the return order can be subject to conditions or such specifications “that the court considers to be appropriate to give effect to the Convention.” The preamble to the Convention attests to the desire of contracting states “to protect children internationally from the harmful effects of their wrongful removal or retention”.
Obviously the return must be implemented as humanely as possible. I have already commented that the boys’ return to Serbia will be more traumatic for the boys than the father’s wrongful removal of them from Serbia in 2020.
On the facts of this case and with the real benefit of having heard the expert evidence of the Family Consultant, I conclude that the return should be effected as soon as possible and with as little disruption as possible.
I assess that any direct communication between the boys and the father as being disruptive and carrying with it a risk that the father will communicate to the boys an expectation that they must disobey the mother’s directions to board the aeroplane on Sunday for their flight out of Australia. I cannot exclude the possibility that the boys will refuse to board the plane of their own volition but I am satisfied that direct contact with the father will markedly increase the possibility of last minute disruption to the departure by the boys’ refusal to board. The impact of a long drawn out return process would be deleterious to the boys’ emotional wellbeing and may well lead to the implementation of the return being rendered impracticable.
I conclude that it is not viable for the father to have any direct interaction with the boys, or either of them, prior to them leaving the jurisdiction. I am aware that this abrupt departure will be a very confusing, fraught and sad time for the boys and an end to their time in Australia about which they will struggle to make any sense. I deeply regret that the boys are unable to farewell their friends in Australia, their school teachers and their paternal family members. This sad outcome for the boys is not the responsibility of the mother or of the court or of the State Central Authority, it is a direct consequence of the father’s conduct in wrongfully removing the boys to Australia, of disrupting their relationship with the mother and not preparing them for the outcome to which he consented on 11 March 2021. The mother supports the children departing Australia as soon as possible and not communicating with the father in the meantime. Her attitude is not callous, she seeks a return which will be least bad for the children. It is apparent from Mr Harper’s submissions that the mother understands that there will be difficult times ahead and that the boys are likely to resent not having been able to see the father, their family or farewell their school friends. The mother would be well advised to obtain counselling for the boys immediately on their return to Serbia.
I have offered the father the opportunity to write a letter to the boys or do a pre-recorded video message to them, both of which would be vetted by the State Central Authority. The father would not commit to providing a video or a letter but was aware that over the weekend the opportunity existed for him to send same electronically to the solicitor for the State Central Authority with whom he has been in contact.
I will order the mother to facilitate the boys to have video communication with the father once they have arrived safely in Serbia.
Children’s belongings
The father said that he has packed bags for the boys. They can be delivered to a neutral place but must be thoroughly searched by the State Central Authority before given to the boys.
Father’s passports
The father sought the immediate return of his passport(s). I declined to make that order. The Order of 11 March 2021 provides that the father’s passport(s) be returned after the children are returned to Serbia and that is an appropriate arrangement.
CONCLUSION
For the above reasons I make the Orders set out at the commencement of these reasons.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 24 June 2021
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