Department of Communities and Justice and Sarapo (No 2) - [2019] FamCA 829

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES AND JUSTICE & SARAPO (NO. 2)

[2019] FamCA 829

FAMILY LAW – CHILD ABDUCTION – HAGUE APPLICATION – Where the child has been wrongfully retained in Australia – where an Application for Return has been made – where the Court is obliged to return the child to Chile unless an exception applies – where the child objection exception is made out – consideration of the elements of the objection exception.

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

Colak & Viduka [2016] FamCAFC 79
De L v Director-General NSW Department of Community Services [1986] 187 CLR 640
DP & Commonwealth Central Authority; JLM & Director-General New South Wales Department of Community Services [2001] 206 CLR 401
Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26
S v S (Child Abduction)(Child’s Views) [1992] 2 FLR 492
SCA & Castillo [2015] FamCA 792
SCA v Hotzner (No 2) [2010] FAMCA 1041

APPLICANT:

Secretary, Department of Communities and Justice

RESPONDENT:

Ms Sarapo

FILE NUMBER:

SYC

5558

2019

DATE DELIVERED:

11 November 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

30 October 2019, 1 November 2019 & 6 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harper

SOLICITOR FOR THE APPLICANT:

Department of Communities and Justice

COUNSEL FOR THE RESPONDENT:

Dr Behrens

SOLICITOR FOR THE RESPONDENT:

Elringtons

Orders

The Respondent has established in relation to X (born … 2010) the child objection exception as set out in Regulation 16(3)(c) of the Family Law (Child Abduction) Regulations 1986 (Cth).
The proceedings are adjourned to a date to be determined to hear the parties as to the exercise of the discretion to make a return order or, in the absence of such exercise of the discretion, as to the orders to govern the return of the child to Chile.

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 Communities and Justice & Sarapo 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 CANBERRA

FILE NUMBER: SYC 5558 of 2019

Secretary, Department of Communities and Justice

Applicant

And

Ms Sarapo

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings brought under the arrangements to support the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). They are conducted pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Hague Regulations”), and are in relation to an application to return X (born in 2010) to Chile. X travelled to Australia with his Mother, Ms Sarapo, (“the Respondent”) following orders made by the Family Court of City A permitting X to travel to and remain in Australia from 1 March 2018 until 31 January 2019. X has subsequently been retained in Australia following the expiration of that period.

Material Relied On

The Secretary relied on the following:
a)Hague Convention Return Application, filed 22 August 2019; and
b)Affidavit of the Department of Communities and Justice, filed 25 October 2019.
The Mother relied on the following:
a)Affidavit of Ms Sarapo, filed 11 October; and
b)Affidavit of Ms Sarapo, filed 24 October.
A Report prepared by Family Consultant Ms B, dated 25 October 2019 was relied upon by both parties (“the Wishes Report”).

Legal Framework

The relevant legal framework for determining parenting matters under the Hague Convention is the Hague Regulations. This legal framework is distinct from the general scheme for child related proceedings set out at Part VII of the Family Law Act 1975 (Cth).
Pursuant to the Hague Regulations, if the removal or retention of a child to or in Australia is established as wrongful, and a return application is filed within one year of the retention or removal, then the Court is obliged to order a return unless an exception is made out. If an exception is made out, it then lies within the Court’s discretion to decline to order a return.
In these proceedings, the Mother concedes that X was wrongfully retained and that a return application was made within one year of the retention. It is the Mother’s case that an exception is made out on the basis of X’s objection. If the exception is made out, then an order for the return of X becomes discretionary rather than mandatory.
The exception relied upon by the Mother is the child objection exception set out at reg 16(3)(c), which provides that a court may refuse to make a return order if the person opposing return order establishes that:
(c) each of the following applies:
(i)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views;
Each of these matters necessitate factual conclusions,[1] which require proof on the balance of probabilities. It may be observed that the onus rests upon the Mother to establish each of the three conditions.[2]
[1]SCA & Castillo [2015] FamCA 792 at [213].
[2] DP & Commonwealth Central Authority; JLM & Director-General New South Wales Department of Community Services [2001] 206 CLR 401 (“DP”).
The first question to be dealt with is whether X objects in the relevant sense.
The High Court, in De L v Director-General NSW Department of Community Services [1986] 187 CLR 640 (“De L”), dealt with what was meant by the term “objects.” While the Hague Regulations are now cast in different terms to how they were when the High Court dealt with the matter, the changes do not alter the meaning of “objects” but rather add further requirements to the child objection exception.
When considering the objection, the plurality adopted what had been said in dissent by Nicholson CJ in the Full Court, saying:
Further, as was pointed out by Nicholson CJ in the present case, the policy of the Convention is not compromised by hearing what children have to say and by taking a literal view of the term “objection”. That is because it remains for the Court to make the critical further assessments as to the child’s age, maturity and whether in the circumstances of the case the discretion to refuse return should be exercised.
The plurality rejected the term “objects” being read in a “strict or narrow” fashion, rejecting the application of a gloss to the word, and accepting that it is part of a phrase “expressed in broad English terms.”
In SCA &Castillo [2015] FamCA 792 (“Castillo”), Bennett J, adopting the reasoning in Re M (Republic of Ireland)(Child’s Objections)(Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26, explained that the child’s objection must be to “returning to the country of habitual residence rather than returning to particular circumstances in that country”, although her Honour noted that there may be difficulty in separating the two.
In determining whether a child’s objection was an objection to returning to their country of habitual residence, the plurality in De L said that this was to be determined “upon the construction indicated by Nicholson CJ and in the authorities, to which we have referred above, from Canada, Scotland, England and New Zealand.” One of those authorities referred to was that of Balcombe LJ in S v S (Child Abduction)(Child’s Views) [1992] 2 FLR 492, which the plurality extracted as follows:
“[T]he return to which the child objects is that which would otherwise be ordered under Art 12, viz, an immediate return to the country from which it was wrongfully removed, so that the courts of that country may resolve the merits of any dispute as to where and with whom it should live…There is nothing in the provisions of Art 13 to make it appropriate to consider whether the child objects to returning in any circumstances.”
Balcombe LJ had continued (44)
“Thus, to take the circumstances of the present case, it may be that S would not object to returning to France for staying access with her father if it were established that her home and schooling are in England, but that would not be the return which would be ordered under Art 12.”
Accordingly, a qualified objection can still constitute an objection. The objection is to be to return as contemplated, as opposed to requiring an objection under any circumstances.
The second question relates to X’s strength of feeling, a matter subjective to X.
The strength of feeling in relation to the objection must be beyond the mere expression of a preference or of ordinary wishes. It may be acknowledged that this does not create a clear standard with a readily identifiable border between ordinary wishes and wishes that are not ordinary, or when something moves beyond mere preference. In that context, it remains the case that the Mother is burdened with establishing, factually, that the strength of feeling in respect of the objection by X is beyond the mere expression of a preference or of ordinary wishes.
It should be noted that this enquiry is not directed to whether X’s feelings are rationally connected to his circumstances, but merely as to their intensity.
The third question relates to an assessment of X’s age, and his degree of maturity. This is relevant in determining whether or not it is appropriate to take account of his views.
In Castillo, Bennett J found that:
There is no fixed age below which a child’s objections will not be taken into account. However, the younger the child is, the less likely it is that he or she will have the maturity which makes it appropriate for the court to take his or her objections into account.
In construing this aspect of the regulation, it is necessary to bear in mind the general approach to construction taken by the High Court above in De L and then in DP where, in relation to another exception, the majority said:
Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified…”
That is, there is no default position of narrow construction. However, unlike reg 16(3)(b), the content of what must be shown to meet the test “appropriate to take account” in reg 16(3)(c) is not clearly identified.
What is required, on the terms of the provision, is that the objection be sufficient, in terms of the age and the maturity of the objector, to be taken into account by the court determining the question of return. This was grappled with by the Full Court, to some degree, in Colak & Viduka [2016] FamCAFC 79.
No particular guidance is given as to under what circumstances a view should be taken into account, other than that taking it into account is a product of age and maturity. The connotation of age and maturity is that the view is the product of an understanding of the subject matter and its impact upon the child. That does not import a requirement of perfect understanding of either of those aspects, but, in a circular fashion, a requirement that the level of understanding means that the child’s own ideas about what should happen to the child should be given regard.
It is useful to return to Nicholson CJ’s observation in De L as approved by the plurality, and as quoted above, where he noted that the Convention was not “compromised by hearing what children have to say,” as the weight, in the form of “critical further assessments”, is a matter for consideration as to the exercise of the discretion not to return a child.
That is, even in the context of the Hague Regulations that have the purpose of protecting children from wrongful removal or retention, to ensure their prompt return and to “ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting State”,[3] there is no high threshold before a child’s view is to be at least taken into account. If it is to be taken into account, the assessment of weight is a matter for the discretion. The establishing of the exception requires merely that it be appropriate to take the view into account, not that it also be capable of bearing ultimate or even significant weight in the discretionary assessment.
[3] See Reg 1A and its adoption of the Preamble and Article 1 of the Convention as set out in Schedule 1 of the Regulations.
In assessing these matters, consideration may be given to the reasons for X’s views, to the extent that those reasons shed light on the assessment of his maturity in respect of those views. X’s understanding of the implications of his views may also shed light on the maturity underpinning his view. If it can be ascertained that X’s views are the result of influence, that may or may not be a matter relevant to assessment of maturity, but may also be taken into account if the exception is established and the Court is called upon to exercise a discretion as to whether to return. Under those circumstances, it was said in SCA v Hotzner (No 2) [2010] FAMCA 1041 by Bennett J, that influence, or an objection founded upon a desire to remain with the abducting parent will be matters relevant to the exercise of the discretion.

Evidence of the objection

Evidence as to objection came from three sources. Firstly, each of the parents gave evidence that bore upon either expressions of views by X, or background against which the expression of the views ought to be assessed. Secondly, a Report was prepared by a Family Consultant, Ms B, on 25 October 2019, directed to the objection exception’s three conditions. Thirdly, Ms B was cross-examined on 1 November 2019 and 6 November 2019 in relation to her evidence.
The Mother reported X expressing to her his reluctance to return to Chile, at times with displays of distress.[4]
[4] See [11] of the written submissions on behalf of the Mother.
Of particular note, the Mother referred to a telephone conversation, involving both parents and X, in which the Father made comment about the police and the Mother. The precise content of the conversation is disputed, but was sufficient to suggest to X that the police may do something with the Mother should she return to Chile.
The Mother pointed to factors which she asserted demonstrated both strength of objection and maturity. She raised what she asserted were long term problems in the relationship between the Father and X. For example, X’s reluctance to see the Father. Long term reluctance on X’s part was disputed by the Father. However, the Father did accept, that X had become reluctant to see him shortly before the trip to Australia, commencing in 2017.
The Mother also pointed to an incident shortly before the travel to Australia, where the Father spent a weekend with X. During that weekend there was an incident between the Father and X. The details are disputed, but involve X biting the Father.
Against the assertions of an underlying poor relationship, the Father said that following X’s arrival in Australia, the Father and X initially spoke on the telephone, using Whatsapp. This ceased early in 2019. The Father said that the calls occurred nearly every day or every second day, although this was disputed by the Mother.
The Father accepted that two conversations had occurred between he and X in which X had said that he wanted to remain in Australia.
The Father thought that X was being pressured by the Mother.
As noted above, a report was prepared by Ms B. This involved her interview of X. Key aspects of what X told Ms B are as follows:
·In relation to a return to Chile, X said “I would be crying so bad”. He said that he did not wish to spend time with his Father. Ms B noted that he was holding back tears as he said this and indicated that the prospect of living in Chile was difficult for him to consider and upsetting.
·X said that he felt sad about his Father yelling at him and pushing him, was worried about spending time with him and also worried about his Mother being arrested.
·X listed a number of problems with Chile including tsunamis, volcanoes, and crimes.
·X said that he would “love” to go to Chile for holidays but not if it meant that he would have to live there or if it will cause trouble for his Mother.
·X could not remember anything positive about spending time with his Father, describing his Father as being mean and shouting at him.
·X reported that the last telephone conversation with his Father was not good, because when he told his Father that he wanted to stay in Australia his Father started screaming and said that X’s Mother would be arrested.
·X expressed positive views about being in Australia and living with his relatives here.
In assessing X’s views, Ms B thought that, for X, the return to Chile and his Father are inextricably linked. There are, however, aspects of what X says that stand apart from his Father, such as the issues of crimes, tsunamis, volcanos and the possibility of the Mother being arrested.
Ms B described X as expressing a “strong wish” that was primarily related to concerns about his own and his Mother’s safety. Ms B said that the thought that his Mother may be arrested, and no longer being able to care for him, was “particularly emotionally distressing and threatening for X, who is at an age and stage of development, when he is emotionally reliant on his mother for a sense of safety and security.”
Based on this, and the range of X’s fears in respect of Chile generally and his Father in particular, Ms B assessed that X’s “objections to being returned to Chile are more than the mere expression of preference or ordinary wish.”
Ms B was also called upon to assess X’s degree of maturity. At the time of the interview, X was almost nine years old. She assessed him as appearing “mature for his age.” She observed him to be clear and consistent in his views, giving detailed reasons. The detailed reasons were an “important consideration in assessing his maturity.” She noted that he was able to “articulate instances when he has experienced psychological distress, and he could identify adults to be trusting whom, he perceives, have his best interests at heart.”
While in the report, Ms B assessed that X’s thinking was “not black and white and showed a degree of nuanced understanding of the differences between adults in his life,” she accepted that his thinking had become black and white in respect of his parents.
In her report, Ms B was unable to say whether X had sufficient maturity to “appreciate the long-term ramifications of his views” but that he could “reliably express where he feels emotionally safe.” In her oral evidence, Ms B’s evidence firmed to say that she did not think that X would understand the ramifications of long term separation from his Father for his own development.
In her report, Ms B also thought that “due to X’s emotional dependency on her, his mother has likely influenced X in his views.”

Assessment

As noted above there are three elements that are necessary to be established to enliven the child objection exception. The first is as to an objection to return.
X has expressed two strands of an objection, one being returned to his Father, the other being returned to a place where his Mother might be arrested and where he might be in danger. The objection question under the regulations is an objection to return to the country. The contemplated arrest of the Mother and fear are entangled with the return to country. They are the matters that make the return untenable in X’s contemplation. The return to his Father is perhaps less so.

X also expresses in strong terms that he would like to return to Chile at some point, saying that he would “love” to go there. However, he is clear that he does not want to live there, and does not want to be there if his Mother is in trouble.
As noted above, the term “objects” is not to be read in a strict or narrow fashion.
What X has said equates to X not wanting to live in Chile, X not wanting his Mother in trouble with the police in Chile, and X not wanting to be in danger in Chile. This falls within an understanding of “object” cast in “broad English terms.”
While this objection is qualified by his expression in strong terms, to go to Chile, that is for a visit and not in the nature of the return contemplated by these proceedings. Noting the plurality of the High Court in De L, this qualification does not result in X’s view being less than an objection.
The second requirement is that the objection shows a “strength of feeling beyond the mere expression of a preference or of ordinary wishes.” That is a qualitative threshold expressed against standards which, of themselves, lack clarity. Within that context, the focus of the inquiry is as to the “strength of feeling”.
X’s manner of expression to Ms B, his expression of fears, and his Mother’s and Father’s descriptions of X’s repeated representations of a desire not to return, along with Ms B’s assessment, point to a conclusion that, the objection that shoes a shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes. While the objection encompasses a preference for Australia over Chile, the strength of feeling, and fear in expression and ongoing position, means that it is beyond a mere preference.
The third aspect relates to X’s age and maturity.
The Mother relied on problems in the relationship between X and his Father as showing a rational basis for X’s opposition to return, and hence of maturity on X’s part.
It has not been established by the Mother that the relationship between X and his Father was as troubled as has been portrayed by the Mother, notwithstanding what X has said about it to Ms B, and despite the incident on the last occasion that X spent time with his Father. The Mother’s assertions are undermined by her offer to the Father to have a week with X prior to him leaving Chile, and also by the Father’s evidence.
The significance of this is that, to the extent that such was relied upon by the Mother to establish a rational basis for X’s views, and thereby maturity in those views, it is not available.
That is not to say there are no rational bases for X’s views. In particular, his parents’ arguments and reference to the police give him reason to not want to go.
Ms B thought that X displayed some emotional sophistication in his differentiation between the adults in his life. She observed that X was able to articulate reasons for his views. She assessed him as mature for his age, although it remains that he is only just turned nine.
The Regulations require consideration of age and maturity and specify no numeric cut-off. However, it remains the case that it is for the Mother to establish relevant maturity, a task that becomes harder the younger the child. That task becomes even harder where, as here, Ms B accepted that X did not understand the long term implications of his view.
These matters detract from the weight that might ultimately be accorded X’s views. But there are aspects of those views that call for them to be taken into account despite their limitations.
X’s views about return, his articulation of reasons, connected to the fears that he has expressed about his Mother, and held in the context that he can see both benefits and problems with returning to Chile, mean that there is sufficient understanding to render it appropriate to take them into account.
Perhaps, ultimately, on the exercise of the discretion, these will carry little weight due to the limits in his maturity. But that is not the threshold test, which is whether it is appropriate to take account of those views.

Conclusion

The Mother has established each of the three limbs of the child objection exception. X’s return now falls to be considered as a matter of discretion. Procedural orders will be made to determine that issue.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 11 November 2019.

Associate:

Date: 11 November 2019