DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & LUGGE
[2012] FamCA 67
•24 February 2012
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & LUGGE | [2012] FamCA 67 |
| FAMILY LAW – CHILDREN – Hague Convention – where the mother travelled from the United Kingdom to Australia with the parties’ two children – where the mother has retained the children in Australia – where the High Court of the United Kingdom issued a declaration that the children were habitually resident in the United Kingdom and had been unlawfully detained in Australia – whether the children were habitually resident in the United Kingdom prior to their retention in Australia – consideration of relevant intention – where parents were agreed that the children would be returned to the United Kingdom – where the father had “rights of custody” – whether those rights of custody have been breached – where the father’s rights of custody were breached when the mother did not return to the children as agreed between the parties – where the mother argues the children will be at grave risk of harm if returned to the father – where the mother alleges conflict between herself and the father involving firearms – where no suggestion that the children were at risk of physical harm as a result of the conflict – where the mother alleges non-involvement by the father in the children’s lives – whether the children at grave risk of harm – where parenting proceedings are on foot in the United Kingdom – where the father has undertaken to the High Court of the United Kingdom not the remove the children from the mother’s care unless there is an agreement to that effect, or an order of the court – where the children are not at grave risk – where orders made requiring the return of the children to the United Kingdom. |
| Family Law Act 1975 (Cth) Eugene Scoles, Peter Hay, Patrick Borchers and Symeon Symeonides, Conflict of Laws (West Group, 4th ed, 2004). |
| Director-General, Department of Families Youth and Community Care & Hobbs (2000) FLC 93-007 DP v Commonwealth Central Authority; JLN v Director-General Department of Community Services (2001) 206 CLR 401 Harris & Harris [2010] FamCAFC 221 LK v Director-General Department of Services (2009) 237 CLR 582 Panayotides & Panayotides (1997) FLC 92-733 TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515 |
| APPLICANT: | Department of Communities (Child Safety Services) |
| RESPONDENT: | Ms Lugge |
| FILE NUMBER: | BRC | 10920 | of | 2011 |
| DATE DELIVERED: | 24 February 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 3 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Green |
| SOLICITOR FOR THE APPLICANT: | Crown Law |
| COUNSEL FOR THE RESPONDENT: | Ms Hogan |
| SOLICITOR FOR THE RESPONDENT: | Sarah Cleeland Family Lawyers |
Orders
IT IS ORDERED:
That paragraph 2 of the order of Federal Magistrate Baumann made 14 November 2011 in proceeding BRC7861 of 2011 be discharged.
That paragraphs 1, 2 and 4 of the order of the Honourable Justice Murphy made 13 December 2011 be discharged.
That the children, M Lugge born … May 2004 and S Lugge born … December 2007 be returned to the country of the United Kingdom of Great Britain and Northern Ireland; and for the purposes of giving effect to this order:
a. That the said children leave the Commonwealth of Australia on or before 9 March 2012;
b. That the said children arrive in the United Kingdom of Great Britain and Northern Ireland on or before 10 March 2012;
c. That pending the said children returning to the United Kingdom of Great Britain and Northern Ireland, the respondent mother, Ms Lugge, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children from the Commonwealth of Australia;
d. That pending the return of the said children to the United Kingdom of Great Britain and Northern Ireland, 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 the children and her are currently residing namely, a suburb of Brisbane 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 Court Services Unit, of the Department of Communities advising of the travel arrangements made for the said children to return to the United Kingdom of Great Britain and Northern Ireland 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 the United Kingdom of Great Britain and Northern Ireland, an officer of the Department of Communities be at liberty to release to the respondent mother all current passports relating to the children for the purpose of the said children’s return and release the passport of the respondent mother to her or her nominee upon her request;
i. That liberty to apply be granted to the applicant to seek any further orders necessary to allow her or officers of the Department of Communities 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.
That the respondent mother Ms Lugge born … 1970, pay all the necessary expenses associated with returning the children to the United Kingdom of Great Britain and Northern Ireland, including the cost of airfares and departure taxes (if any) for the children to travel from Brisbane International Airport to the United Kingdom of Great Britain and Northern Ireland, 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 Lugge, in returning the children to the United Kingdom of Great Britain and Northern Ireland, within two business days of the applicant making a written demand for reimbursement of the said expenses.
That all other applications be dismissed.
That there be liberty to apply.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities (Child Safety Services) & Lugge 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: BRC10920 of 2011
| Department of Communities (Child Safety Services) |
Applicant
And
| Ms Lugge |
Respondent
REASONS FOR JUDGMENT
M Lugge (…May 2004) and S Lugge (…December 2007) are currently in Australia, having been brought here by their mother in April 2011. Until that time, the mother and children had been living in the United Kingdom with the children’s father for some years. S was born there.
The mother and children came to Australia for a five-month holiday with the father’s consent. The mother is Australian but has lived in the United Kingdom with the father since about December 1994. She married the father there in September 1996. During her time in England, the mother, and at various times the father and children, have spent varying periods of time in Australia.
On 19 July 2011 the mother advised the father that she and the children would not be returning to the United Kingdom. On 2 September 2011 the High Court of the United Kingdom issued a declaration that the children were habitually resident in the United Kingdom and had been unlawfully detained in Australia and that the children should be returned to the United Kingdom.
On 6 September 2011 the mother filed an Application for parenting orders in the Federal Magistrates Court of Australia. On 30 September 2011 the High Court of Justice Family Division in the United Kingdom made an order that the children “remain wards of the Court” and that the mother should “return the wards by not later than 23 November 2011”. She did not do so.
The applicant, in its capacity as the Central Authority, seeks an order for the return of the children to the United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”), asserting that they were wrongfully retained in Australia on the weekend of 26/27 November 2011.
The Regulations
It is conceded that Regulation 16(1) of the Regulations applies in that an application for a return order for the children has been made and the application was filed within one year after the children’s asserted retention.
Accordingly, this Court must make an order for the return of the children if the Central Authority satisfies the Court that the children’s retention was wrongful pursuant to sub-regulation (1A) and that sub-regulation (3) does not apply.
Was the Retention Wrongful?
It is contended on behalf of the mother that the children were not “habitually resident” in the United Kingdom immediately before the children’s retention in Australia (Reg 16 (1A)(b)).
It is also argued that the order made by the High Court of Justice Family Division on 2 September 2011 (which, it is contended, was made without notice to the mother) extinguished rights of custody of the father (Reg 16(1A)(c).
Were the children habitually resident in the United Kingdom?
The mother relies upon a number of matters said to result in a conclusion that the children were not habitually resident in the United Kingdom immediately prior to 26 November 2011.
It is contended that the mother conveyed an intention not to turn to the United Kingdom in July 2011 and, by 26 November, was habitually resident in Australia. The ages of the children and their dependence upon the respondent for their day to day needs, their connection with Australia by reason, for example, of their earlier travel to this country and the fact the mother’s (and thus, the children’s) extended family live here and their asserted assimilation in this country, are relied upon in support of that intention.
It is further argued on the mother’s behalf that the children have been in Australia since April 2011 and, since that time, have become involved in educational and extracurricular activities with the result that they have been “significantly assimilated in Australia”. Lastly, the mother contends that the parties jointly determined on two occasions (in 2004 and 2008) to enrol the children in a school in Brisbane which, it is said, evidences (a joint) intention that the children should reside in Australia at that (then future) time.
“Habitual residence” is not defined in the Regulations or, indeed, in the Convention on the Civil Aspects of International Child Abduction (“the Convention”). In LK v Director-General Department of Services (2009) 237 CLR 582 (“LK”) the term was considered by the High Court of Australia (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
The determination of the issue involves a broad factual enquiry. The search must be for “where a person resides and whether residence at that place can be described as habitual” (LK at [22]). Recognising that a “wide variety of circumstances” might bear upon the question, the High Court has emphasised that “the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances, like the duration of the person’s connections with a particular place of residence.” (LK at [23]).
Habitual residence is to be determined at the date of the wrongful retention (Reg 4(1)(a); Panayotides & Panayotides (1997) FLC 92-733). It has been said that “[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person’s personal and family life as disclosed by the facts of the individual’s activities.” (Eugene Scoles, Peter Hay, Patrick Borchers and Symeon Symeonides, Conflict of Laws (West Group, 4th ed, 2004) at p 247, par 4.14, cited in LK at [25].)
Relevant intention is, often, not easily determined. This is partly because “[i]ndividuals do not always act with a clearly formed and singular view of what is intended (or hoped) that the future will hold. Their intentions may be ambiguous.” (LK at [29]). In that regard “… in asking whether a person has abandoned residence in a place, it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place…” (at [33]).
Moreover, and important in the circumstances of this case, the High Court held in LK that, when considering the issue of intention in the context of where a child is habitually resident:
34… attention cannot be confined to the intentions of the parent who in fact has the day to day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitually residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
Later in the judgment, the Court held that “… the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled …” (at [44]).
It needs to be borne in mind that the intention of the parents is not necessarily determinative, nor is it, necessarily, the decisive consideration in determining the question at hand (LK at [28]). Further, as the written submissions on behalf of the Central Authority correctly point out, a consideration of habitual residence “invite[s] attention to whether presence at a place has a ‘degree of settled purpose from the child’s perspective’” (LK at [45], emphasis in original).
It is difficult to attribute an intention to S (given her age and level of maturity) that can be distinguished from that of her parents. M was, as at November 2011, aged about 7½. That, too, is not an age to which a sufficient degree of maturity attaches so as to attribute to him an intention separate from his parents. Yet, he his old enough to give some indication of how he is thinking and there is evidence of that before the Court.
A report from a Ms C is exhibited to the husband’s affidavit; it is described as a summary “written in compliance with the order issued on 25 January 2012 by the Honourable Mr Justice Bodey at the Royal Courts of Justice London”. Ms C is employed as an outreach worker by a “child and family support service for children aged 5-13 …”. The mother made a request of that service on 13 December 2010. A home visit was conducted on 21 January 2011. Ms C subsequently saw M at school on 2 February 2011 with “a final session” on 23 March 2011.
On 9 February 2011, Ms C reports:
[M] spoke of his worries that his parents were still arguing about going to Australia and he told me this made him feel ‘sad and unhappy and sometimes I shiver’. [M] said to me unprompted that he did not think ‘there was any point in going to Australia’. He understood that his mother wished to return to Australia, but his father wanted to remain living here on their farm. [M] described the idea that his parents might separate as ‘being really silly’.
I agree with the submission that M evidences a particular connection with life on the farm (in the United Kingdom).
It is pointed out by Mr Green, counsel for the Central Authority, that M (now aged 7 years, 10 months) has spent approximately four months of his 94 months of life in Australia (together with the additional 10 months that he has been in Australia since arriving here with his mother in 2011.) Time is not, of course, itself determinative of the issue, particularly given that the inquiry is directed towards the position as at the time that the wrongful removal or detention occurred. When the children arrived in Australia in April 2011 they had not been in Australia for about two years (since approximately April 2009). It is of some significance to note that the children’s maternal great-aunt deposes to the fact that when she first saw the children in Australia “they seemed a little shy as they were not familiar with many family members on their mother’s side”.
Taken together, these matters, together with other factors, are in my view a significant pointer to the United Kingdom being “the centre of the personal and family life” for a boy of M’s age.
The direct expression of the parties’ intentions is, as it seems to me, an important matter. In that respect, as counsel for the Central Authority contends, the mother’s expressed intention was to stay in Australia for an extended holiday for about 5 months. It is common ground that the father agreed to a holiday of that duration. Axiomatically, as it seems to me, the joint intention of the parties as at the date of departure for Australia in April 2011 was that the children (and the mother) would return to the United Kingdom in approximately September of that year. Subsequent to proceedings in the United Kingdom on 2 September 2011, the mother and father entered upon a process of negotiation. Ultimately, they agreed that the children would be returned to the United Kingdom by the weekend of 26/27 November 2011. In fact, the mother suggested an itinerary that would see the children return on 23 November 2011.
The argument on behalf of the mother that she conveyed an intention not to return to the UK in July 2011 and, by 26 November, the children were habitually resident in Australia is, in my view, not sustainable on the evidence before me.
Nor am I persuaded that the involvement of the children in school and extracurricular activities that have evolved during their time in Australia points to habitual residence in this country. It may well be an important issue if best interests was at the centre of the current enquiry but in the current context it weighs little in the balance.
There is little doubt that matrimonial conflict had attended the parties’ relationship in the period leading up to the mother’s departure with the children in April 2011. Within that context, the mother deposes to the father saying to her on the way to the airport words to the effect that “if [she] needed to take a year, then to take it”. The father rejects the notion that there was any agreement by him that the mother and children could travel to Australia for an undetermined period of time. There is some dispute about what words were or were not said on that occasion, but, what is known is that there is no suggestion anywhere in the affidavit material that this topic had been returned to by either of the parties subsequent to the mother’s departure.
Counsel for the Central Authority contends that “the mother’s unilateral decision was not to return the children, not to ‘take the father up’ on any offer he allegedly made to take a year in Australia.” I accept that submission.
Rights of Custody?
I accept the submission of counsel for the Central Authority, that the affidavit of Mr Argyrou, who is the solicitor for the father and practises in England, is the only evidence before the court which pertains to rights of custody (as referenced to the law of the United Kingdom).
Mr Argyrou deposes that, under United Kingdom domestic law pursuant to s 2(1) of the Children Act 1989, if a child’s parents are married, the father (relevantly) will have “parental responsibility”. The concept is created by s 3(1) of that Act and is defined, according to Mr Argyrou, as “all the rights, duties, powers, responsibilities and authority which by law (English Law) a parent of a child has in relation to the child and his or her property.” Mr Argyrou deposes that s 2(6) of that Act provides that more than one person can have parental responsibility for a child.
Mr Argyrou deposes that the effect of the wardship order made by the English court on 2 September 2011 “does automatically make the children wards of court as per Senior Courts Act 1981 Section 41(2). This provides a child with instant legal protection because whilst a child is a Ward no important step can be taken without the Leave of the Court.”
In my view, the father retained rights of custody by reason of retaining (at the least) parental responsibility in respect of the children, notwithstanding the order of the United Kingdom court. While an order of the type made in the United Kingdom may in this country remove parental responsibility (or other rights of custody otherwise vested in a parent), nothing in the evidence before me suggests that the order of the United Kingdom court removes parental responsibility (or, indeed, other rights of custody) of, relevantly, the father.
Further, I accept the submission of counsel for the applicant Central Authority that, even if that is not so, the United Kingdom court had (and was exercising) rights of custody as at 26/27 November, by reason of the order made by it. In that respect, the affidavit of Mr Argyrou deposes that it has been held that a court that has made children wards acquires rights of custody (citing Re J (A Minor) (Abduction) [1990] 1 FLR 276.). In addition, I also accept the submissions made by counsel for the Central Authority that, by negotiating with the mother in respect of the return of the children (which, ultimately, resulted in the mother agreeing to do so on 23 November) the father was exercising rights of custody by reason of exercising parental responsibility in respect of the children.
By not returning the children on the weekend of 26/27 November, the mother was in breach of the rights of custody of the father or, in the alternative, the rights of custody of the United Kingdom court.
Summary of Findings: Regulation 16(1A)
It is not in issue that the children the subject of the application are aged under 16 (Reg 16(1A)(a)).
It is not in issue that the United Kingdom is a Convention country (Reg 16 (1A)(b)).
In my judgment, the children were habitually resident in the United Kingdom immediately before their retention in Australia on 26/27 November 2011 (Reg 16(1A)(b)).
As at that date, the father possessed rights of custody in respect of the children under the law of the United Kingdom which is the country in which the children habitually resided immediately before their retention in Australia (Reg 16(1A)(c)).
The children’s retention in Australia is in breach of those rights of custody (Reg 16(1A)(d)).
As at the date of the children’s retention, the father was actually exercising his rights of custody (by seeking to negotiate the return of the children) or would otherwise have exercised his rights of custody had the children not been retained (Reg 16(1A)(e)).
Should the Court Refuse to Make an Order for Return?
Principles
As earlier referred to, as a result of the findings just made, this court must make a return order for the children to return to the United Kingdom unless the mother establishes, relevantly, that “there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” (Reg 16(3)(b)), noting that the Court is not precluded from making a return order “only because [that matter] … is established by a person opposing return” (Reg 16(5)).
The relevant alleged risks and the description “grave” is each referable to “those faced by the children, not the parent” (per Hale LJ in TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515 at [44] cited in Harris & Harris [2010] FamCAFC 221 at [142]).
Here, the issue at the centre of the exception sought to be relied upon by the mother must take account of the fact that judicial process in the United Kingdom will pertain, and have as its centre, the best interests of these two children. The proceedings in that country are familiar to this jurisdiction as are its judicial processes (see DP v Commonwealth Central Authority; JLN v Director-General Department of Community Services (2001) 206 CLR 401 at [33] (“DP”)).
“Often enough the answer to [that claim] … will be that the feared harm will form a central issue in subsequent judicial proceedings in the country of return” (DP at [39]). Here, those proceedings are on foot and in a country whose judicial system and processes will relevantly involve an inquiry about best interests (cf. DP at [43]). As Hale LJ (as her Ladyship then was) said in TB v JB (Abduction: grave risk of harm), above:
57. … it cannot be the policy of the Convention that children should be returned to a country where, for whatever reason, they are at grave risk of harm, unless they can be adequately protected from that harm. Usually, of course, it is reasonable to expect that the home country will be able to provide such protection …
[Emphasis added]
It is also important to observe that a person cannot, by their own actions, create a situation only to rely upon that self-created situation so as to constitute the alleged grave risk (see e.g., Director-General, Department of Families Youth and Community Care & Hobbs (2000) FLC 93-007 per Lindenmayer J at [98] – [100]).
The first task is to determine whether the evidence in this case establishes whether there is indeed a grave risk (DP at [40]). The Court is required “… to make the kind of enquiry and prediction that will inevitably involve some consideration of the interests of the child” (DP at [41]). Importantly however, whilst certainty is not required, the Court must be persuaded that there is “… a risk which warrants the qualitative description ‘grave’” (DP at [42]). Because of that “… it may well be true to say that a court would not be persuaded of that without some clear and compelling evidence” (DP at [43]).
Does the Evidence Establish Grave Risk?
Some of the assertions made by the mother in her affidavit relate to what might be described as general concerns about the father’s involvement in the children’s care and/or lack of attention to them. For example, it is asserted by the mother that if she left the children in the father’s care “he would go off to the farm and leave the children in the house unsupervised. [The father] had a very lax attitude toward the children.”
Similarly the mother asserts that the father “used to threaten [M] that if he was naughty he would put him out in the cold” and refers to one occasion upon which, she alleges, he did so. The mother also deposes that on an earlier (single) occasion the father “was driving like a madman”. There is no suggestion in the affidavit that the children were in the car or otherwise involved in that incident.
Ms Hogan submitted that, in combination with the alleged incident which allegedly occurred on 28 January 2011, to which attention will turn in a moment, “grave risk” arose by reference to the physical or psychological harm that the children would suffer if returned to the United Kingdom, particularly arising from the asserted erstwhile lack of involvement by the father in their care. Ms Hogan points to material contained at paragraph 81 of the father’s affidavit. I do not find it persuasive of that assertion.
Ms Hogan also points to a referral (obtained in Brisbane) from a Dr G to the Child Youth and Mental Health Service … in respect of S who, it might be noted, was almost four at the date of that referral. The report refers to: S being “upset easily”, “getting anxious about a potential return to the UK”, “having nightmares, upset”, “witnessed traumatic event between parents”. Upon examination the doctor notes “she is happy talking normally, but when discussed nightmares or returning to UK, very scared, upset and refusing to discuss”.
In so far as this evidence of behaviours and concerns on the part of S is relied upon as evidence of anxiety whose cause is perceived fear or risk, in my view the words of the High Court in DP are apposite:
45.It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur and may well be magnified by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
Dr G’s report does not in my view assist in establishing “grave risk”; the evidence in my view can be placed no higher than indicating that a four year old, whose father lives in the United Kingdom and who is with her mother in Australia, and who, on any view of the evidence, has experienced conflict between her two primary loved objects is suffering some anxiety as a result.
The matters just referred to are said to combine with what is submitted to be the grave risk of physical harm said to emanate from the alleged incident alleged to have occurred on 29 January 2011. The mother asserts that the incident occurred after the mother told the father that she wanted a “temporary separation”. The mother deposes:
123.On [the day of the alleged incident] we talked about separation again and [the father] would not agree to let me go. I remember we were in the kitchen. [The father] just walked away from the conversation. He was gone for awhile as I was cleaning up the kitchen and then he came back with a rifle. He held the rifle so that it was pressed against his chest and facing up under his chin pointing it at himself. He said to me “this is it I have had enough I am going to kill myself”. At this stage the children walked into the room. They saw their father holding the gun to his head and saying that he was going to kill himself. My son looked absolutely terrified. [S] was behind [M]. I just reacted straight away and said “Daddy don’t be so silly, you don’t play with guns” trying to lighten the moment for the children.
124.[The father] then in front of the children pointed the rifle at me and said “see how you like it”. I froze for a minute and I just remember grabbing my keys, bag and kids and left for the rest of the day.
The father denies this incident. In addition, the father relies upon an affidavit by a witness who deposes to events occurring on 29 January 2011, the effect of which, if accepted, is that such an incident could not have occurred at the time on the date as alleged by the mother.
Moreover while denying an incident perpetrated by him with a gun, the father asserts an incident involving a gun perpetrated by the mother. He says that, on 27 December 2010, the mother pointed a gun at herself and said “very calmly and coldly that she could not handle life any more, that she had enough of the farm, enough of this family, and enough of me as her husband. She exclaimed that she could not carry on anymore and that she was sorry for all the hurt and pain she had caused me and the children”. The father asserts “that the mother was very clear that if I did not let her go she would kill herself.” The father also asserts that M came out and asked what was going on and the mother said “nothing”. He says, “I grabbed the gun off the respondent and quickly put it back in the gun cabinet and locked it up”. The mother denies this incident.
Apparently, the mother reported the incident asserted by her to the Sussex police. In an affidavit filed on behalf of the father it is suggested that the father mentioned the incident with the gun as he alleges it to a police officer.
Ms Hogan submitted that there were a number of matters emerging from the evidence which would lead the court to reach a conclusion of grave risk emanating specifically from the incident on 29 January 2011.
First, it was submitted that the father’s denials were “closely worded”. Ms Hogan used as an example that he distinguished between owning a rifle and a shotgun. Secondly, it was submitted that it was only in response to the mother’s allegations in respect of behaviour about the father that the father raised an allegation in respect of the mother that, it was submitted, was effectively a “mirror image” of the allegations made by the mother against the father.
It is submitted that this submission gains force by reason of there being no reference to the alleged incident in the material filed by the father in the proceedings in the United Kingdom. In particular, it is pointed out that the Application in that jurisdiction requires (at page 4) the applicant to describe any harm and no such allegation there appears. It is said that the submissions also receive force by reason of the fact that the father agreed to the children coming to Australia with the mother for a period of 5 months – an action, it is said, that surely would not have been contemplated by the father if the mother presented the degree of risk of harm evident in the incident which he alleges.
It goes without saying that no incident involving a firearm in the context of matrimonial dispute is anything other than very serious. However, whichever of the two versions is preferred ultimately, it seems plain on the evidence before me that in respect of either version no direct harm was threatened to the children nor does either party allege that the conduct of the other involved any threat or immediate risk to either of the children.
That is not to say, of course, that children being involved in such an incident (as each party alleges occurred) is not a very serious matter. Plainly it is. However, the issue is what is the nature and magnitude of the risk to the children themselves in circumstances where the children’s return to their country of origin will see their interests assessed and protected in that other country. The incidents described are the only incidents in all of the affidavit material filed by each of the parties (which, it might be said, lists a long history of matrimonial dispute and unhappiness) in which any form of harm involving the children of the required type is alleged.
In the report from Ms C earlier referred to, it is recorded she was consulted “… to support [M] as his parents were having difficulties in their relationship and they realised that this was having a negative impact on [M]…”. At that time Ms C reports “that both parents confirmed that there had been no physical violence between them, but a lot of shouting and that [the mother’s] threats to leave home had left [M] feeling insecure…”.
In an affidavit sworn by the maternal grandmother, she depose that “in my conversations with [the mother] she has told me through tears that if the children were ordered to return to the UK, she does not think that she could return with them, due to her fear of [the father].”
No such deposition appears in the affidavit material filed on behalf of the mother.
Ms Hogan was permitted to advise the mother’s position from the bar table. Mr Green did not oppose that course subject to it being noted that the mother had not given a sworn statement as to her intentions. The mother’s position, as advised by Ms Hogan, is that if a return order is made, the mother will travel with the children to facilitate their return, will remain in the United Kingdom for a period of two or three weeks, and thereafter return to Australia. She says that this course of action results from her fear of the father. I am not entirely sure how any such asserted fear is ameliorated by remaining for two or three weeks rather than longer, nor do I readily understand that if there is a perceived grave risk to the children, how their position is enhanced by those actions nor, more generally, how that position assists an assertion of grave risk. Nevertheless, I neither find nor suggest that these statements were made by the mother as a means of attempting to, as it were, tie the Court’s hands.
As I have earlier made clear, I consider it important that the country of return is the United Kingdom with a legal system familiar with, and attuned to, dealing with issues of the type under discussion. Proceedings are already on foot in that jurisdiction which and, by reason of the order made in the United Kingdom High Court, that court already has a role to play in respect of these two children. In addition, the father has undertaken to that court not to remove the children from the care of the mother upon their return to the United Kingdom without written agreement or further order of the court.
In my judgment, neither the alleged incident which allegedly occurred on 29 January 2011 alone, or it in combination with the other matters upon which the mother relies, establishes that there is a grave risk that the return of the children to the United Kingdom would expose them to physical or psychological harm.
Conclusion as to Applicaton of Regulation 16
For the reasons earlier given, in my judgment:
(a)The retention of the children in Australia was wrongful within the meaning of Regulation 16(1)(c) and (1A).
(b)There is no basis for the court refusing to make an order by reference to Regulation 16(3) and, specifically, Regulation 16(3)(b) is made out.
(c)Regulation 16(5) is accordingly, not applicable.
As a result, the Court must make a return order.
Terms of the Return Order
The mother contends that if an order is made for the children to return to the United Kingdom, they should do so at the end of the current school term. It is said that this will allow the children to make all arrangements as might be necessary with their friends and to allow a smooth changeover back to their English school, given that the holiday period here is coterminous with a holiday period in the United Kingdom.
The Central Authority contends that there is no reason why the orders ought not be put in place immediately. It is submitted that the sooner that M is placed in his English school the better (S is not yet at school). It is also submitted that the circumstance that the mother had agreed on an earlier occasion to the children returning in late November 2011, which such agreement was not fulfilled, is a factor that points against a delay in return.
Particularly given the underlying intention of the Regulations and the period of time that has elapsed since November 2011, I am not persuaded that the return order should be delayed beyond a period necessary to make all necessary travel arrangements with expedition.
In my view, return should take place within 14 days of the date of order.
I will, then, order in terms of the draft submitted by counsel for the Central Authority and shall substitute for the dates contained there, the relevant dates fourteen days from the date of the making of the order.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 24 February 2012.
Associate:
Date: 24 February 2012
1