Department of Communities, Child Safety and Disability Services and Berman

[2013] FamCA 613

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & BERMAN [2013] FamCA 613

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Whether the children should be returned to New Zealand – Whether the father had consented to the children remaining in Australia – Whether returning the children to New Zealand would expose them to a grave risk of physical or psychological harm – Whether the mother has established that the children’s objection to returning to New Zealand is more than the mere expression of a preference – Order that the children be returned to New Zealand.

Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) r1A, r14, r15, r16(1), r16(1A), r16(3)

De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640
DP v Commonwealth Central Authority (2001) 206 CLR 401
Harries & Harries [2011] FamCAFC 113
HZ & State Central Authority [2006] FamCA 466
Kilah & Director-General, Department of Community Services [2008] FamCAFC 81
State Central Authority & DB [2002] FamCA 804

APPLICANT: Department of Communities, Child Safety and Disability Services

RESPONDENT: Ms Berman

FILE NUMBER: BRC 3111 of 2013

DATE DELIVERED: Order made 2 August 2013;
Reasons delivered 23 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Ms McLennan

SOLICITOR FOR THE RESPONDENT: John Walker Lawyers

Orders

1. That the children, N born ... January 2000, C born … October 2001 and T born … October 2005 be returned to the country of New Zealand, and for the purposes of giving effect to this Order:

   (a)that the said children leave the Commonwealth of Australia on or before 16 August 2013;

   (b)that the said children arrive in New Zealand on or before 16 August 2013;

   (c)that pending the said children returning to New Zealand the Respondent Mother Ms Berman born … 1982 continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children form the Commonwealth of Australia;

   (d)that pending the return of the said children to New Zealand, the Respondent Mother continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said children from the premises where she and the children are currently residing namely, B Street, Suburb D, 4… in the State of Queensland Australia;

   (e)That subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent Mother and the said children on the All Ports Watch Alert System at all international departure points in Australia;

   (f)that the said children and the Respondent Mother be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Communities, Child Safety and Disability Services advising of the travel arrangements made for the said children to return to New Zealand from 12.00 am on the date nominated for the said travel in the letter;

   (g)that the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders;

   (h)that to facilitate the return of the said children to New Zealand Ms E, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release all current passports relating to the children for the purposes of the said children’s return to New Zealand and release the Respondent Mother’s passport to her or her nominee upon request;

   (i)the Respondent Mother ensure that the children attend upon the Family Consultant, Ms F, at  Child Dispute Services, Level 3, Commonwealth Law Courts, 119 North Quay Brisbane at 2.00pm on Friday, 9 August 2013 for the purpose of explaining this Order to the children;

   (j)that liberty to apply be granted to the applicant to see any further Orders necessary to allow her or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the children in accordance with this Order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986.

2. That the Respondent Mother, Ms Berman born … 1982, pay all the necessary expenses associated with returning the children to New Zealand including the cost of airfares and departure taxes (if any) for the children to travel from Brisbane International Airport to New Zealand and in the event the Respondent Mother fails or refuses to pay these expenses, the Respondent Mother pay to the Applicant the necessary expenses incurred by or on behalf of the Applicant and Mr Berman in returning the children to New Zealand within two (2) business days of the Applicant making a written demand for reimbursement of the said expenses.

3. That all other Applications be dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3111  of 2013

Department of Communities, Child Safety and Disability Services

Applicant

And

Ms Berman

Respondent

REASONS FOR JUDGMENT

1. The Court is asked to determine an Application (“the Application”)[1] by the Director-General, Department of Communities, Child Safety and Disability Services in her capacity as State Central Authority (“the Central Authority”), pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking orders for the return of the children N, born in January 2000 (aged 13 ½ years), C, born in October 2001 (nearly 12 years of age) and T, born in October 2005 (nearly 9 years of age), (“the children”) to New Zealand.

   [1] Filed 23 April 2013

2. The parties are the parents of another child, K, born in April 2008 (currently 5 years and 4 months of age) who remains living with the father in New Zealand.

3. The Respondent moved to Australia on 9 April 2011, leaving all four children in the care of the father. In January 2012 the child N visited the Respondent in Australia for about four days before returning to New Zealand and the care of her father.

4. On 9 June 2012, the children C and T travelled from New Zealand to Australia and were taken into the Respondent’s care. On 9 November 2012 the child N travelled from New Zealand to Australia and was taken into the Respondent’s care. These children have not spent time with their father since these dates. Communication has occurred via telephonic means and Skype but the father alleges that such communication ceased completely in or about March 2013.[2]

   [2] Affidavit of the Father filed 17 June 2013, paragraphs 6-7.

5. On 25 January 2013 the father requested that the children be returned to New Zealand.

6. The Regulations are made pursuant to s 111B of the Family Law Act 1975 (Cth) (“the Act”) which provides that the Regulations may make provision, as is necessary or convenient, to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”). The Abduction Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting States.

7. Australia and New Zealand are contracting States to the Abduction Convention.

8. The purpose of the Regulations is to give effect to the obligations imposed by section 111B of the Act.[3] The Regulations are to be construed:

   a)having regard to the principles and objects mentioned in the preamble to, and Article 1, of the Hague Convention; and

   b)as recognising, in accordance with the Hague Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily that child’s country of habitual residence; and

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

   [3] Family Law Act 1975 (Cth) s111B; Family Law (Child Abduction Convention) Regulations 1986 (Cth), Regulation 1A.

9. The Court may, pursuant to Regulations 14 and 15 of the Regulations, make return orders or any other orders that it considers appropriate to give effect to the obligations imposed on the Australian Government by the Abduction Convention.

10. As the Application was filed within one year after the children’s retention in Australia, if I am satisfied by the Applicant that the children’s retention in Australia was,  under subregulation 16(1A), wrongful, then, subject to subregulation (3), I must make an order for the return of the children to New Zealand.[4]

    [4] Family Law (Child Abduction Convention) Regulations 1986 (Cth), Regulation 16(1).

11. The Respondent concedes that the Applicant has established each of the necessary elements prescribed by subregulation 16 (1A). Having regard to the matters outlined in paragraphs 19 – 30 of the Submissions on behalf of the Applicant, I am satisfied that the Applicant has established each of these necessary elements.

12. The Respondent opposes the making of the orders sought by the Applicant on the basis that the father consented or subsequently acquiesced to the children being retained in Australia;[5] or on the basis that the court would refuse to order the children’s return because of their “objection” to the same; [6] or because there is a “grave risk” that the return of the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation.[7]

Has the Respondent established that the father consented to or subsequently acquiesced to the children being retained in Australia?

[5] Family Law (Child Abduction Convention) Regulations 1986 (Cth), Regulation 16(3)(a)(ii).

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

[7] Family Law (Child Abduction Convention) Regulations 1986 (Cth), Regulation 16(3)(b).

1. The Respondent does not concede that the children were retained in Australia without their father’s consent. Counsel submitted that, in communication between the father and another person in March 2012, the father demonstrated his agreement to the children remaining in Australia and visiting him in New Zealand.[8] However, as would be apparent from the exchange between the bench and Counsel, I am not persuaded that, whatever was the context in which the statements were made by the father in March 2012, such statements are supportive of a conclusion that, having become aware that he was unable to obtain a Visa allowing him to reside in Australia, the father consented to the children remaining living in Australia from the end of January 2013.

   [8] Affidavit of the mother filed 24 June 2013, paragraph 33.

2. Counsel for the Respondent also placed reliance upon the fact that the father sent the children, C and T, to Australia on 9 June 2012 using a one way ticket. It was asserted that such behaviour amounted to a waiver of the rights the father purported to rely upon as those arose from the Statutory Declaration signed by the Respondent in Australia in July 2012. I am not persuaded by these submissions and consider that the father’s actions in sending the children to Australia in the manner that he did is equally consistent with his stated intention that they live in Australia on the proviso that he could join them here also and that, in the event that he was unable to join them in Australia, his position remained that they (the children) would return to New Zealand. So much was clearly known to the eldest child.[9]

   [9] Family Report of Ms F dated 16 July 2013, paragraph 17.

3. Counsel for the Respondent submitted that the father and Respondent were clear in their agreement that the children move to live in Australia. She submitted that what “became unclear” was the father’s “mixed messages in withdrawing that consent.” I do not accept this submission. I consider that the evidence clearly establishes that, as recently as February 2013, the Respondent was undertaking actions consistent with a desire to ensure that the father obtained the necessary Visa to enable him to move to Australia to live. Such actions on the part of the Respondent are, I consider, inconsistent with any assertion that the father had agreed to the children remaining in Australia irrespective of whether he was able to join them here.

4. Whilst Counsel for the Respondent submitted that the father’s actions in sending the children to Australia on one way tickets was consistent with his “ultimate desire and his intention” that “his children grow up in Australia” I consider that such actions occurred in circumstances where both parties continued to act as though their joint intention was that the father also move to Australia to live.

5. I accept the submission that after the children had travelled to Australia the father demanded their return to New Zealand and threatened to have the Respondent charged with kidnapping.  This threat was contemporaneous with the father requesting the Respondent sign a statutory declaration, dated 28 July 2012, in which she agree to return the children to the father by 28 August 2012.[10]

   [10] Affidavit of the Respondent Mother filed 24 June 2013, paragraph 63.

6. I accept the submission of Counsel for the Applicant that “crucially” the Respondent acknowledged, after the children T and C had travelled to Australia on 25 July 2012, that “if [the father] wanted to he could demand girls back there I have been told contact a lawyer in NZ to get advice and also child protective services here.”[11]

   [11] Affidavit of the Father filed 24 July 2013, Exhibit ‘O’.

7. Counsel for the Respondent submitted that the father’s agreement to the children C and T remaining in Australia after 28 August 2012 amounted to either consent to them remaining permanently in Australia irrespective of the situation with his Visa or an acquiescence to the Respondent’s continued retention of them in Australia at that time. I do not accept this submission. I consider it more likely than not, in circumstances where the Respondent continued to act, to the father’s knowledge, so as to support him obtaining a Visa, that the father’s agreement to the children remaining after 28 August 2012 was on the same basis as he had agreed to them travelling to Australia in July 2012: namely, that this was conditional upon him obtaining a Visa so as to enable him to join the children in Australia and them returning to live in New Zealand in the event that he was unable to obtain such Visa.

8. I am strengthened in this conclusion by the contents of the email sent by the Respondent on 2 February 2013 in which she expresses her desire to ‘get the family together’ and states she has been trying to get the father a Visa to come over to Australia.  The Respondent writes this in the context of wanting “what is best for all my girls and family”.[12] 

   [12] Affidavit of the Father filed 24 July 2013, Exhibit ‘Q’.

9. I consider that the agreement between the father and the Respondent whereby the children were to move to Australia was conditional upon the father being able to obtain a Visa to enable him to relocate from New Zealand also. The evidence does not persuade me that the father agreed or consented to the children being permanently relocated to Australia after the Visa application was shown to be untenable. I also accept and find that the father’s consent to the children leaving New Zealand was conditional upon them returning there in the event that his application for a Visa failed. I accept the submission of Counsel for the Applicant that the Respondent has not established that the father consented to the children remaining in Australia irrespective of his ability to join them here and I further reject any contention that the father provided unequivocal consent to the children permanently relocating to live in Australia.

10. I consider that the evidence establishes, contrary to the submissions made on behalf of the Respondent, that the father consistently and persistently manifested an intention that the children not move to live in Australia permanently unless he was able to join them here.

11. I accept the submission of Counsel for the Applicant that there is no evidence which establishes, on the part of the father, informed acceptance of the conduct which amounted to an infringement of his rights of custody. I consider that there was no active or passive conduct by the father from which it could be inferred that he acquiesced to the children remaining in Australia once it became known to him that he would be unsuccessful in obtaining a Visa enabling him to move from New Zealand to live in Australia.

12. I accept, therefore, the submission of Counsel for the Applicant that the Respondent has failed to discharge the onus of establishing a ground of exception within the meaning of sub regulation 16 (3) (a) (ii).

Is there a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation?

1. The authorities establish the flowing principles: [13]

   a)the burden of proof falls on the party opposing the return;

   b)the exception must be given the meaning its words require so that the risks in question are those faced by the children and not by the parent;

   c)the exception requires courts to make the kind of enquiry and prediction that will inevitably involve some consideration of the interests of the children;

   d)establishing that there is ‘a grave risk’ that the return of the children to New Zealand would expose them to certain types of harm or otherwise place them in ‘an intolerable situation’ requires some prediction based on the evidence of what may happen if the children are returned;

   e)the Court must determine whether return of the children to New Zealand would expose them to a risk which warrants the qualitative word ‘grave’;

   f)because what must be established is a ‘grave’ risk, a bare assertion of fears for the children may well not be sufficient to persuade the court that there is a real risk of exposure to harm if a return is ordered;

   g)the risk that is relevant is not limited to harm that will actually occur but extends to a risk that the return would expose the children to harm;

   h)the regulation refers to more than the risk of the inevitable disruption, uncertainty and anxiety accompanying an ordered return to the country of habitual residence when it speaks of a grave risk to the children of exposure to physical or psychological harm on return.

   [13] DP & Commonwealth Central Authority (2001) 206 CLR 401; Kilah & Director-General, Department of Community Services [2008] FamCAFC 81.

2. Counsel for the Respondent submitted that the father has a history of violence directed towards the Respondent, the children, animals and others throughout the relationship which existed between the parties. Additionally, submission is made that the father inflicted injuries to T for taking time to eat her dinner. Further, Counsel submitted that the maternal grandfather was punched in the chest on an occasion and the father tried to choke the Respondent in 2007 whilst they were arguing. Such matters are denied by the father.

1. I accept the submissions of Counsel for the Applicant that it is beyond all reasonable belief that the Respondent, as a caring parent of four children, would leave them in the care of their father if she held genuine concern about the unpredictability of his parenting, potential of violence toward them and excessive alcohol consumption. It was further submitted that it is further beyond belief that she would do so simply upon the father’s promise to her, prior to her move to Australia in April 2011, that he would act in a way so as to ensure that the children were cared for and would improve his alleged behaviours. The Respondent says that, on the basis of this promise, she considered the children were safe in their father’s care. Such evidence establishes that the Respondent believed that the father has the capacity to behave in a manner which does not place the children at risk.

2. Counsel for the Respondent submitted that it was not until the parties’ eldest child visited the Respondent for her birthday in January 2012 that the Respondent “became concerned for their welfare”. By this time the children had lived with the father in New Zealand since the Respondent departed there for Australia in April 2011. The Respondent said that her eldest child told her that the father had been hitting her and her sisters. Despite this, the Respondent remained living in Australia and returned the eldest child to New Zealand.

3. I consider it more likely than not that, if the Respondent considered the children truly to be at risk in their father’s care, she would have returned to New Zealand in order to protect them. I am not persuaded that the Respondent’s decision to return the eldest child to New Zealand in January 2012 was so that the eldest child could act to protect the younger children. I am not persuaded that the Respondent would have determined to place her eldest daughter at risk in this manner if she truly considered that the children were at risk in their father’s care.

4. Such a conclusion is consistent with evidence given by the Respondent that the father has “never hurt the kids”.[14] It is telling that such assertion is contained within an email written after the eldest child visited Australia in January 2012 and was returned by the Respondent to New Zealand. In addition, I accept the submission of Counsel for the Applicant that it is difficult for the court to accept the assertion of an un-specified occasion when T allegedly suffered a black eye at the hands of her father given the Respondent’s email confirming that the father has not hurt the children.

   [14] Affidavit of the Father filed 24 July 2013, Exhibit ‘R’.

5. Further, the unchallenged evidence of the general medical practitioner for the youngest child, K, who remains living with the father in New Zealand is that, from his interactions with the child, there are no clinical grounds to suspect any form of abuse.[15]

   [15] Affidavit of the Father filed 24 July 2013, Exhibit ‘R’.

6. After the three eldest children were in her care in Australia the Respondent made complaint to the relevant authorities in New Zealand raising concern about the father’s care of the youngest child. This complaint was received by those authorities and acted upon. Their investigations, which included a visit to the child care centre at which the youngest child was attending, revealed no concerns - those who were spoken to at the centre reported that they had no concerns about the child’s presentation.[16]

   [16] Affidavit of the Father filed 17 July 2013, paragraphs 15-16.

7. I accept the submission made by Counsel for the Applicant that the Respondent’s support, which continued until about April 2013, for the father to travel to Australia is incongruous with the assertion that the children would be at risk in his care. 

8. I am not persuaded on the evidence before me that the Respondent has discharged the onus of establishing that there is a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm, in the relevant sense, or otherwise place them in an intolerable situation.

Has the Respondent established that the children object to being returned to New Zealand, that such objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and that the children have attained an age and degree of maturity at which it is appropriate to take account of the views?

1. In order to support a finding that the children object to being returned to New Zealand, the evidence must establish that such objection goes far beyond the usual ascertainment of the wishes of children in parenting disputes. In assessing whether such expressions amount to an objection which shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes, it is necessary, of course, to be aware of the possibility that the children’s views have been influenced, consciously or otherwise, by the Respondent. It is also necessary to determine whether it is more likely than not that any objection to a return to New Zealand raised by the children rests simply upon an understandable wish by them to remain with the Respondent wherever she is.

2. The children were interviewed by a Family Consultant (“the Family Consultant”) on 11 July 2013.  At the time she prepared her report she did not have available to her the father’s affidavit material. She was not, therefore, in a position to challenge the assertions made by the children about their care arrangements with the father. It was clear from the Family Consultant’s cross examination that she considered that she may not have expressed the opinion she did in the report had she had such evidence available to her. I accept the Family Consultant’s evidence that she considered it not in the children’s best interests to expose them to a further interview for the purpose of this process.

3. As referred to above, in an email dated 8 January 2012 to her solicitors, the Respondent says that the father had ‘never hurt the kids’.  Once appraised of this, the Family Consultant conceded that the children’s statements about being physically assaulted by the father may have come, not from experience, but from an outside influence.

4. Further, when presented with a Facebook exchange between the father and one of the children, in which love and affection towards the Father was expressed, the Family Consultant stated that, with such information, she would have conducted the interviews in a “completely different way”.  After having the opportunity to have regard to the material contained in the father’s affidavits, the Family Consultant no longer maintained the position expressed in the Family Report.

5. I accept the thrust of the submissions advanced by Counsel for the Applicant to the effect that, for the reasons outlined in his written submissions, the expression by the children of the wishes as recorded by the Family Consultant are no more than a preference to remain with their mother. I am not persuaded, in circumstances where the children have been, since their arrival in Australia, reunited with the parent who departed from them in April 2011, that such expressions demonstrate a strength of feeling beyond the mere expression of a preference or of an ordinary wish to continue to reside with their mother who, despite there being no legal impediment to her return, has stated her intention not to return to New Zealand in the event that the children do so.

The discretion

1. If I am wrong in my determination that the Respondent has failed to discharge the onus of establishing relevant matters particularised in regulation 16(3), I am not persuaded, in the exercise of the discretion[17] to refuse to order the return of the children to New Zealand.

   [17] De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640 at 661; FLC 92-706 at 83,456; State Central Authority & DB [2002] FamCA 804, per Kay J; HZ & State Central Authority [2006] FamCA 466; Harries & Harries [2011] FamCAFC 113.

2. I reach this conclusion because I consider that:

   a)New Zealand provides the more suitable forum for the determination of the children’s future care arrangements given that, until they travelled to Australia in the manner outlined above, they had lived all of their lives in New Zealand;

   b)given the similarities in the law as between New Zealand and Australia, whatever determination arrived at for the children’s future parenting arrangements is that which will be in the children’s best interests;

   c)the return of the children to New Zealand will return them to the primary care of their father in the same way that those parenting arrangements were put into place by the decision of the Respondent to leave New Zealand for Australia in April 2011;

   d)the return of the children to New Zealand will reunite the siblings given that the youngest sibling remains living with the father in New Zealand;

   e)the immediate return of the children to their father’s primary care, as was effected by a joint parental decision in April 2011 when the Respondent left New Zealand for Australia, is likely to result in them experiencing some distress at leaving their mother’s primary care and some enjoyment in reuniting with their father and youngest sister;

   f)the purpose and underlying philosophy of the Convention would be significantly at risk of frustration if a return order were not made in circumstances such as these.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 August 2013.

Associate:     

Date:              23 August 2013