Department of Community Services and Atili

[2008] FamCA 535

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & ATILI [2008] FamCA 535

FAMILY LAW – CHILD ABDUCTION - Hague Convention

Family Law Act 1975 (Cth)

DP v Central Authority; JLM v NSW Department of Community Services (2001) FLC 93-081

APPLICANT: DEPARTMENT OF COMMUNITY SERVICES

RESPONDENT: MS ATILI

FILE NUMBER: SYC 2097 of 2008

DATE DELIVERED: 11 July 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bell J

HEARING DATE: 11 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Legal Services Unit, Department of Community Services.

COUNSEL FOR THE RESPONDENT: Ms Gillies

SOLICITOR FOR THE RESPONDENT: Adams & Partners

Orders

1. That the applicant make such arrangements as are necessary to ensure the return of the children R (female) born … January 2001 and O (female) born … January 2001 to New Zealand in the company of the mother, Ms Atili, born … February 1975, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.

2. That the Registrar of the Family Court release the passports of the mother born … February 1975, R (female) born … January 2001 and O (female) born … January 2001 forthwith to the solicitor for the State Central Authority for the purpose of organising the return of R (female) born …January 2001 and O (female) born … January 2001 to New Zealand.

3. That the solicitor for the State Central Authority provide the passports of  the mother born … February 1975, R (female) born … January 2001 and O (female) born … January 2001  to the mother’s legal representative by express post at least 48 hours before their return flight to New Zealand.

4. That the Australian Federal Police permit the mother born … February 1975, R (female) born … January 2001 and O (female) born … January 2001  to depart Australia and travel to New Zealand after being presented with the flight details for the mother born … February 1975, R (female) born … January 2001 and O (female) born … January 2001 and a copy of these orders by the solicitor for the State Central Authority.

5. Following the departure of the mother born … February 1975, R (female) born … January 2001 and O (female) born … January 2001 from Australia for New Zealand in accordance with paragraph 1 of these orders then the Australian Federal Police remove the names of the following persons from the PASS Alert system in operation at all Australian international arrival and departure points as soon as practicable.:

   a.The mother born … February 1975

   b.R (female) born … January 2001

   c.O (female) born … January 2001

6. Following the departure of the mother born … February 1975, R (female) born … January 2001 and O (female) born … January 2001 from Australia in accordance with paragraph 1 of these orders the orders made by Judicial Registrar Loughnan on 22 April 2008 be discharged.

7. That the State Central Authority as soon as practicable serve sealed copies of these orders upon the Commissioner, Australian Federal Police.

8. That in the event that R (female) born … January 2001 and O (female) born … January 2001 do not return to New Zealand in accordance with paragraph 1 of these orders by 30 September 2008 the return order in paragraph 1 of these orders is discharged.

9. That in the event that the return order in paragraph 1 of these orders  is discharged by reason of the occurrence of the event in paragraph 8 of these orders then the Applicant Central Authority shall make such arrangements as are necessary to ensure the return of the children R (female) born … January 2001 and O (female) born … January 2001 to New Zealand as soon as practicable and in the company of the father of the children or another person selected by the applicant if that is an available option for return of  the children.

10. That in the event that R (female) born … January 2001 and O (female) born … January 2001 do not return to New Zealand in accordance with paragraph 9 of these orders by 10 October 2008 the return order in paragraph 9 of these orders is discharged.

11. That the mother born … February 1975 deliver the children to the offices of the Department of Community Services at … at a time and date to be specified in writing to the legal representative of the mother born … February 1975 at least 48 hours in advance for the subject children R (female) born … January 2001 and O (female) born … January 2001 to be handed to a person nominated by the applicant to accompany the children for the return journey to New Zealand.

12. That there be liberty to restore on 24 hours’ notice to the Court as to the implementation of the return order.

IT IS NOTED that publication of this judgment under the pseudonym Department of Community Services and Atili is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2097 of 2008

DEPARTMENT OF COMMUNITY SERVICES 

Applicant

And

MS ATILI

Respondent

REASONS FOR JUDGMENT

1. This is an application on behalf of the authority via in New South Wales Department of Community Services for an order for the return of two children of the respondent, the children’s mother, to New Zealand.  The father is Mr M, and the two children to which I have referred ‑ the parties never married ‑ are R and O, twins, born in January 2001.  The father and mother commenced their cohabitation in or about 1998.  They were resident of the Pacific Islands.  I understand they were born there, and they came to New Zealand, or they migrated to New Zealand, in or about 1999.  Since the birth of the children, the parties separated either in late 2002 or mid‑2003.

2. The father, since that time, has had rights of custody, as has been conceded by Ms Gillies of counsel for the mother, in these circumstances the respondent to the authority's application, by way of findings in the New Zealand Family Court and orders whereby she has custody of the children and the father has contact with the children.  Such contact, I think, initially was on each alternate weekend.  This has been carried out to a greater or lesser extent over a period of years.  That order was made, I believe, on 20 April 2004.

3. May I say in passing that, Ms Gillies of counsel quite properly on behalf of her client has conceded that all the formal matters necessary to enliven, if I may put it that way, the Hague Convention regulations have, in fact, been complied with and that the only matter for my determination is whether the mother, upon whom the onus is, has proved an exception to the principle that the children shall be returned to their place of domicile.

4. In 2005, the mother indicated that she desired to relocate to Australia.  The father opposed this and eventually the mother, in April, I believe it was, 2005, made an application for variation of custody but did abandon this on about 6 September 2005 and sought an order that she be permitted to relocate and remove the children from Wellington, to Christchurch, and was unsuccessful.  Subsequent to that there were endeavours by the father to force compliance with the orders for contact.  Orders were made, and, eventually, an order was made, a warrant was issued for the recovery of the children, if my memory serves me correctly.  This was made, and the children have had contact with the father for a period.

5. In January 2008, there was an unfortunate incident between the father and the mother.  He says it was as a result of her informing him that contact was no longer going to take place.  As, perhaps, may I say, as is usual in these unfortunate contested cases in this Court, a fracas developed in front of the children.  Naturally, of course, that was not in the best interests of the children.

6. In February, the father ascertained that the mother had left New Zealand and come to Australia.  I am informed that the mother's extended family ‑ perhaps not the total family but a part of her extended family ‑ are resident in Australia, they being her mother, stepfather, sister and cousins and children.  She has resided in Australia since that time and submits that she can prove an exception to the general principle, and that that exception is the regulations set out in 16(3), which says:

   A Court may refuse to order a child's return under sub‑regulations (1) and (2) if the person opposing the return establishes that ...  (b) 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.

7. I have been assisted in this case by Mr Anderson of counsel's submissions and summary of argument on behalf of the authority.  Ms Gillies of counsel, once again, acting very properly, has indicated that she accepts the interpretation of the various authorities put before this Court by Mr Anderson in his summary, and, consequently, I am greatly assisted thereby.

8. I wish to emphasise the authority of DP v Central Authority; JLM v NSW Department of Community Services (2001) FLC 93-081 88,389. In particular, I wish to refer to page 88,390, with the High Court being seized of two appeals from the Family Court considered this exception, this regulation exception. At paragraphs 42 onwards, they initially considered whether, in fact, the Full Court was right in saying there was a narrow construction. They say it is not necessarily narrow or broad. They have to apply the general meaning of the words, as I read their decision. But at paragraph 42 onwards, it says:

   Necessarily, there will seldom be any certainty about the prediction (grave risk of physical harm).  It is essential, however, that certainty is not required.  What is required is persuasion that there is a risk which warrants the qualitative description "grave".  Leaving aside the reference to "intolerable situation" and confining attention to "harm", the risk that is relevant is not limit to harm that will actually occur.  It extends to a risk that the return would expose the child to harm.

   (43) Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a Court will not be persuaded of that without some clear and compelling evidence [my emphasis].  The bear assertion by the person opposing return of fears for the child may well not be sufficient to persuade the Court that there is a real risk of exposure to harm.

9. In paragraph 44, they deal with the narrowness against broad construction.  In paragraph 45 they go on to say:

   That is not to say, however, that regulation 16(3)(b) will find a frequent application [my emphasis].  It is well nie inevitable that a child taken from one country to another without the agreement of one parent will suffer disruption, uncertainty and anxiety.  The 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 article 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 and/or psychological harm on return.

10. I have referred to that in particular because, as fell from me I do believe during argument, unfortunately, this is a case which all too frequently appears before the Family Court, not only here but, I would assume, in New Zealand.  I say it is the type of case, there are allegations and counter allegations of conduct which is inappropriate either on behalf of the mother or on behalf of the father.  There are allegations which require a determination of with whom the truth more probably lies, and it is absolutely essential that these allegations be ventilated in full.  This Court, acting under the provision of the Hague Convention, does not have the capacity to enter into and, in fact, it has been held it should not, enter into a question of interim custody, and I use the word "custody" advisedly, because that is a word which I understand is used in New Zealand.  We have here allegations by the mother which she says are of such a compelling nature that the Court would be satisfied that the onus ‑ and it is a very high onus ‑ upon her has been satisfied.

11. What, then, is the evidence?  I have briefly touched upon it, and I refer, in particular, to the evidence of the mother, contradicted by the evidence of the father.  I refer to the affidavit in which the Independent Children's Lawyer, Ms Gray, in New Zealand, has indicated that she was seized of the matter until late 2006.  It appears as though her instructions may be re-enlivened recently.  She says that the parties were able to resolve their differences to such an extent that in 2006, a consent order was made in relation to contact for the father.  Therefore, I have asked of Ms Gillies what is the difference since then, and she emphasises that, on her instructions, the conduct of the father is such as particularised in Dr G ‑ more of whom in a moment ‑ report is such that it has been exacerbated by that time, and the mother is feared and puts forward that there is a grave risk of physical and/or psychological harm to the children.

12. Dr G was requested to give a psychological assessment by order of this Court, and there was forwarded to her a letter of engagement, if I may put it that way, which is exhibit 3.  Inter alia, in that quite proper letter, it was said:

    We seek that a report be prepared in respect of the children's mental health and any risk of psychological harm that the children may be subjected to should they be returned to New Zealand.

13. Regrettably, that was not the test that she should have considered.  The test is that there was grave risk of psychological or physical harm. As I have said, and as the High Court held, I am not considering the intolerable situation, as it has not been submitted that this would be the case.  However, she was requested to do that.  With great respect to Dr G, I do not believe that she directed her mind to the letters of instruction.  She set out in a very full, comprehensive report the statements made by the mother and the children to her, and she came to certain conclusions, which are encapsulated in her saying that the children were suffering, so far as she was concerned, adjustment disorder and anxiety symptoms that are ongoing.  She was requested to explain what these anxiety symptoms are showing anxiety, and she indicated the children were particularly worried.  They were worried that they were going to be removed from their mother.  They did not know what was going to happen.  Nowhere is there in any evidence of this expert witness that the children feared risk to themselves physically or psychologically if they were returned to New Zealand, not to the father, but to New Zealand.

14. It faintly fell from Ms Gillies that there may have been some doubt as to whether, in fact, the mother had a continuing order for custody, and she referred me to a letter or a document from the authority in which it could be inferred and an endeavour was made to set aside the provisions of an order which, as I understand ‑ I have not seen this order ‑ gave custody to the mother and contact to the father.  However, that has been cleared up, and it was an application for substituted service.  That application has not in any way been dealt with fully.  As a result thereof the order is still in force and existing.

15. It is not, and I emphasise this, the fact that the children are being returned to the father.  They are being returned to New Zealand, a court of the domicile of the parties for the purpose of that court determining what orders should be made in relation to the welfare of the children.  Even accepting all of the evidence, which I do not, set forward in the report, which is exhibit 2, if my memory serves me correctly, I do not believe that it shows a grave risk of physical harm.  It may show some risk of physical harm, but not a grave risk.  Since I am not satisfied that the mother has overcome the very high onus which is upon her, I will have to order the return of the children.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell.

Associate: 

Date:  15 July 2008