FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Communities and Justice & Wilmer [2023] FedCFamC1F 202
File number: SYC 7496 of 2022 Judgment of: CARTER J Date of judgment: 28 March 2023 Catchwords: FAMILY LAW – CHILD ABDUCTION – Hague Convention – child retained in Australia from the United Kingdom – where the date of wrongful retention was disputed – consideration of the principle of repudiatory retention – habitual residence – where there is a disagreement as to the nature and purpose of the parents’ travel to Australia – whether the father was exercising his rights of custody – jurisdictional facts established – where the mother asserted the father consented to the retention – where the mother asserted the father was not exercising his rights of custody – where the mother asserted there is a grave risk – where the mother has not discharged her onus – orders made for the return of child to the United Kingdom Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 15, 16, 25A, 26, 29
Children Act 1989 (UK)
Hague Convention on the Civil Aspects of International Child Abduction art 5
Cases cited: Central Authority & Wageman and Anor 48 Fam LR 254
Director General, Department of Communities, Child Safety and Disability Services & Ibbott (No 2) [2015] FamCA 698
Director General, Department of Families v P (2001) FLC 93-077
Handbury & State Central Authority and Anor (2020) FLC 93–937
HZ & State Central Authority (2006) FLC 93–264
In the Matter of C (Children) [2019] AC 1
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40
Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145
Re H (Minors) (Abduction: Acquiescence) [1998] AC 72
Re H. (Abduction: Habitual Residence: Consent) [2000] Fam Law 590
Re K (Abduction): Consent [1997] 2 FLR 212
State Central Authority & Del Rosario [2019] FamCA 607
State Central Authority & Handbury [2019] FamCA 668
W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211
Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950
Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472
Division: Division 1 First Instance Number of paragraphs: 381 Date of last submission: 1 February 2023 Date of hearing: 30 – 31 January 2023; 1 February 2023 Place: Melbourne Counsel for the Applicant: Mr Paul Guterres Solicitor for the Applicant: Department of Communities and Justice Legal Counsel for the Respondent: Mr Peter Hackett Solicitor for the Respondent: Crane Paskins Law ORDERS
SYC 7496 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: DEPARTMENT OF COMMUNITIES & JUSTICE
Applicant
AND: MS WILMER
Respondent
order made by:
CARTER J
DATE OF ORDER:
28 March…
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- Department of Communities and Justice & Wilmer [2023] FedCFamC1F 202
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- [2023] FedCFamC1F 202
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CaseChat Overview and Summary
The case of Department of Communities and Justice v Wilmer involves a dispute over the return of a child, X, to the United Kingdom. The father, a dual citizen of the United Kingdom and Australia, resides in the United Kingdom and seeks the return of X to that country, while the mother, also a dual citizen, desires to remain in Australia with X. The primary legal issue before the court was whether returning the child to the United Kingdom would expose her to a grave risk of harm or place her in an intolerable situation, which would exempt the case from the mandatory return provisions under the Hague Convention on the Civil Aspects of International Child Abduction.
The court evaluated the evidence presented by both parties, including affidavits and expert testimonies, to assess the mother's mental health and its potential impact on her ability to care for X. The court found the father and his supporting witnesses to be credible, while noting the mother's evidence had inconsistencies and omissions that raised concerns about its reliability. The mother's expert witness, Ms N, presented a report suggesting that the mother's mental health could deteriorate significantly upon return, potentially impacting her parenting abilities. However, the court found that the evidence did not support the conclusion that returning X to the United Kingdom would expose her to a grave risk of harm or place her in an intolerable situation.
The court acknowledged the potential negative impact on the mother's mental health but concluded that the predicted risks did not meet the threshold of being grave, as they did not amount to physical or psychological harm or an intolerable situation for X. The mother had demonstrated insight into her vulnerabilities, sought assistance when needed, and managed to provide high-quality care for X while shielding her from the adverse effects of her mental health issues. Based on this, the court determined that returning X to the United Kingdom would not result in a grave risk of harm or an intolerable situation for her.
The court ordered the return of X to the United Kingdom, as the exception under the Hague Convention was not satisfied. The mother indicated she would return with X if the order was made.
The court evaluated the evidence presented by both parties, including affidavits and expert testimonies, to assess the mother's mental health and its potential impact on her ability to care for X. The court found the father and his supporting witnesses to be credible, while noting the mother's evidence had inconsistencies and omissions that raised concerns about its reliability. The mother's expert witness, Ms N, presented a report suggesting that the mother's mental health could deteriorate significantly upon return, potentially impacting her parenting abilities. However, the court found that the evidence did not support the conclusion that returning X to the United Kingdom would expose her to a grave risk of harm or place her in an intolerable situation.
The court acknowledged the potential negative impact on the mother's mental health but concluded that the predicted risks did not meet the threshold of being grave, as they did not amount to physical or psychological harm or an intolerable situation for X. The mother had demonstrated insight into her vulnerabilities, sought assistance when needed, and managed to provide high-quality care for X while shielding her from the adverse effects of her mental health issues. Based on this, the court determined that returning X to the United Kingdom would not result in a grave risk of harm or an intolerable situation for her.
The court ordered the return of X to the United Kingdom, as the exception under the Hague Convention was not satisfied. The mother indicated she would return with X if the order was made.
Orders
Orders of the court
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Background
Background to the litigation
I have some reservations as to the weight I can put on Ms N’s evidence. The basis for a number of critical conclusions was very competently challenged in cross examination by Mr Guterres. It became apparent that Ms N had based parts of her report on the premise that the mother had been diagnosed with a mental illness, which was incorrect. I will consider in more detail Ms N’s report and evidence when I consider the issue of grave risk. Background The father lives in City C, the United Kingdom. He is 45 years old. He is a dual citizen of the United Kingdom and Australia. He is employed as a professional with P Ltd. He said, and I accept, that since returning to the United Kingdom in 2015 he has not wanted to return to Australia to live. The mother is currently resident at the home of her parents in F Town, in New South Wales with X. She is 38 years old. She is not in current employment. The mother is also a dual citizen of the United Kingdom and Australia. The mother and father met in around 2013 in Australia and started living together. The father had been living here since around 2008. In 2015 the mother and father left Australia and moved to City C. The father purchased a property in City C in 2015 into which he and the mother subsequently moved after it was extensively renovated. The home is close to the father’s parents and situated near a field, where the mother agisted her horse. Whilst living in City C the mother and father both obtained employment there – he as a professional and she as a technician. They were married in City C in 2016. X was born in 2019 in City C. X commenced child care Suburb R, City C in early 2020. She also participated in various extra curricula activities in the area. On a number of occasions from around late 2019 the mother told the father that she wanted the family to relocate to Australia. That was resisted by the father. From early 2020 the family was unable to travel overseas to spend time with the mother’s family due to the COVID-19 pandemic. It is common ground that the mother’s mental health deteriorated at that time. She said at that time her requests to relocate to Australia became more pressing and was repeatedly discussed between the parents. In late 2021 the mother told the father that her father was unwell, and she wanted to travel to Australia for an extended period. When travel restrictions eased in January 2022, the mother and father agreed to travel to Australia. They do not agree as to the purpose or the duration of the travel. The father asserted the travel was for an extended holiday, which he preferred only be for around six months. He said his agreement to travel was conditional upon:(a)him being able to continue to work remotely for his employer whilst in Australia; and(b)X being accepted into childcare in Australia for the period the family was here, commensurate with her peers in the United Kingdom, so her education upon her return was not impacted. The father also asserted that the parents agreed they would return to the United Kingdom together as a family if either parent wanted to return earlier. The father acknowledged the mother did speak about wanting to move to Australia. However, the father said at no point did he ever agree to doing so.
Evidence
Evidence Before The Court
I note that if a return order is made, the mother indicated she would return with X. Evidence and Documents relied upon by the parties The State Central Authority relied upon the following documents:(a)Form 2 – Initiating Application filed 24 October 2022;(b)Affidavit of Mr G filed 24 October 2022, which included the Affidavit of Mr B sworn 4 July 2022; the Affidavit of Ms J sworn 29 June 2022 and the Affidavit of Mr B sworn 9 October 2022;(c)Affidavit of Mr B filed 19 December 2022;(d)Affidavit of Mr H filed 19 December 2022;(e)Affidavit of Ms K filed 19 December 2022;(f)Affidavit of Mr L filed 19 December 2022; and (g)Affidavit of Ms M filed 19 December 2022. I did not permit the applicant to rely on an affidavit sworn by Mr B on 26 January 2023. That was objected to. There was no real explanation as to why that affidavit could not have been filed on time. The respondent relied upon the following documents:(a)Amended Form 2A – Response and Cross Application filed 16 January 2023;(b)Affidavit of Ms Wilmer filed 8 December 2022;(c)Affidavit of Dr E filed 6 December 2022; (d)Affidavit of Ms N filed 5 December 2022; and(e)Affidavit of Mr O filed 5 December 2022 There were a number of exhibits tendered during the trial. I was further provided with a copy of the Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for the treatment of specific mental health issues, and a copy of the relevant Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, diagnostic criteria, as aides. The guidelines were referred to by Ms N, and she was cross examined on the diagnostic criteria. I note that the mother objected to parts of the evidence relied upon by the State Central Authority on various grounds including relevance and hearsay, or that the deponent had included opinions, conclusion, argument and submission. These objections were not pressed in light of the provision of reg 29 which permits the admission into evidence of any document in support of an application made for return. It is a matter for me as to the weight that I put on matters deposed to. All witnesses were required to give evidence – save for Dr E. Arrangements had been made for her to attend, but she did not join the Microsoft Teams link, or respond to repeated calls by the mother’s lawyers on the day she was scheduled to give evidence. Sensibly, Mr Paul Guterres of counsel indicated that rather than the trial being adjourned, the State Central Authority would not seek to cross examine Dr E. Regulation 29(3) at any rate would have enabled Dr E’s affidavit to be admissible as evidence notwithstanding her non-attendance for cross-examination. Credit of Witnesses I found the father and his supporting witnesses to be credible and compelling witnesses. Their evidence was substantially internally and externally consistent. In particular, Ms M and Ms K were impressive witnesses. The mother is clearly a vulnerable woman. She struggled significantly giving her evidence, requiring short breaks on occasion to compose herself. I am not of the view that she has deliberately misled the court, but I do note that at times, her own evidence was inconsistent and at times she had omitted matters from her affidavit material that did not support her contentions. As a result of those inconsistencies and omissions, I have concerns about the reliability of her evidence in relation to what she said was agreed between herself and the father regarding the purpose and duration of the travel to Australia, as well as her evidence regarding her own intentions.
Decision
Reasons for decision
Mr O also agreed that even though the mother’s mental health has at times been poor, he has never had any concerns about her ability to appropriately parent X. He described her as a fantastic mother and that he was amazed at what she was able to manage even at time when she was also struggling with her mental health. He said he had never observed that the mother’s mental health had negatively impacted X in any way. Mr O confirmed that he and his wife would be willing to provide as much support to the mother as they could, irrespective of where she and X were living. He said they would travel to the United Kingdom for extended visits, and could also provide her with some limited financial support. Conclusion as to grave risk and intolerable situation The mother bears the burden of satisfying me, with clear and compelling evidence, as to the grave risks of harm she says X will face upon return. In my view, none of the matters outlined by the mother regarding this exception, taken as a whole are sufficient to found this exception. The court acknowledges that a return order is likely to have some impact on the mother’s mental health. She will be deeply disappointed and distressed if a return order is made. She may become anxious and potentially depressed. She may engage in disordered behaviours. In turn that may have some adverse psychological consequences for X. But in order to establish this exception, the mother must adduce clear and compelling evidence that there is a grave risk that a return order would expose X to “physical or psychological harm or otherwise place the child in an intolerable situation”. The mother’s stated case is that there is a risk her mental health upon return to the United Kingdom would decompensate to the extent that she could not parent X, thereby placing X at a grave risk of harm. However, in my view, the evidence before me could not support a finding that the gravity of the predicted risk to X has reached such a level of seriousness that it can be characterised as ‘grave’. The mother articulated concerns including that she may lack energy, she may not be able to fully engage with X, that she may not be positive or the best mother she can be. I agree with the submissions of the applicant that in those circumstances, any impact on X if she is returned to the United Kingdom could not be described as amounting to a grave risk that X would be exposed to physical or psychological harm, or otherwise be placed in an intolerable situation. I note the mother also referred to her potentially being hospitalised. As indicated she has not been previously hospitalised. Further, the risk of hospitalisation as articulated by Ms N was made on the assumption of the mother having a diagnosis of mental illness. I also note that the mother in this matter has demonstrated excellent insight into her vulnerabilities, sought assistance as needed and has at all times managed X and her mental health issues in a child focussed manner whilst continuing to provide high quality care for X. In doing so, the mother has ensured she has shielded X from being adversely affected at times the mother has experienced poor mental health.
Ratio Decidendi
Legal Principle Established
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