Department of Community Services and Hadzic

[2007] FamCA 1703

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & HADZIC [2007] FamCA 1703

FAMILY LAW – CHILD ABDUCTION – Hague Convention

Family Law Act 1975 (Cth)

APPLICANT: Director-General, Department of Community Services

RESPONDENT: Ms Hadzic

FILE NUMBER: SYC 5426 of 2007

DATE DELIVERED: 4 December 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 30 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Department of Community Services

COUNSEL FOR THE RESPONDENT: Mr Cairns

SOLICITOR FOR THE RESPONDENT: Malcolm McDonald & Co

Orders

1. That the orders made on 7 August 2007 continue pending further order.

2. The Director‑General has leave to relist the matter before me when in a position to request delivery of the children and the mother's passports currently held by the Court in order to implement the return to the United Kingdom.  The Director‑General otherwise has leave to relist the matter before me to seek any other implementing orders which may be necessary to ensure the return of the children to the United Kingdom as required by this decision.

3. The mother and the Director‑General have leave to relist the matter before me to seek discharge of the interim orders made on 7 August 2007.  Such discharge will be required immediately before the removal of the children from Australia for their return to the United Kingdom.

4. The Director‑General is to make arrangements to ensure the return of the children, MW (also known as W) (male), born … May 2004, and M (male), born … March 2006, to England and Wales in the company of their mother forthwith upon conditions set out by this Court having been satisfied.

5. In the event of the conditions set out by the Court not having been satisfied by 3 March 2008, each party has leave to apply to the Court to discharge the order made for the return of the children to the United Kingdom.

6. The Director‑General's application for costs is reserved to a date and time to be listed before me by arrangement with the Case Coordinator.

Conditions

a)That on or before 2 March 2008 the father provide funds as stipulated by the Director‑General to meet the cost of the air travel from Australia to the United Kingdom. The Director‑General, in conjunction with the mother, is to make airline reservations, the Director‑General to advise the father of the entity to which or whom the payment is to be made by him and the amount of that payment.  The father is not to be provided with information about the date of travel or the airline the children will be travelling on.

b)The Director‑General is to cause the father to be notified of the mother and children's arrival in the United Kingdom seven days after their arrival.

c)The father is to provide to the Director‑General, who is to provide a copy of same to the mother and to the Court, an undertaking in written form witnessed by a solicitor practicing in the United Kingdom or a person authorised to witness affidavits and/or statutory declarations in the United Kingdom.  The undertaking is to be addressed to the mother and to this Court and is to provide as follows: 

i)That he will not approach within 250 metres of the mother or the children without first obtaining an order from a United Kingdom court in proceedings in which the mother has had an opportunity to participate;

ii)He will not contact the mother by telephone, text message or through a third party without a court order obtained in proceedings in the United Kingdom in which the mother has had an opportunity to participate;

iii)That upon the mother giving written notice of her desire to occupy the former matrimonial home, the father leave the property at P within 14 days of such request and make the premises available for occupation by the mother and the children and not approach that property until an order permitting same has been made in a United Kingdom court in proceedings in which the mother has had an opportunity to participate.

iv)Next that the father not seek any orders in any court in the United Kingdom which would prevent the mother and the children living with or close to the mother's mother in B unless and until the mother has had an opportunity to be heard in relation to such an order.

1. The solicitor for the mother is to forthwith deliver to the Registrar of the Court the passports for the children and the mother, which the Court was advised were being held by the solicitor for the mother following the orders made by the Court on 7 August 2007.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5426  of 2007

Director-General, Department of Community Services

Applicant

And

Ms Hadzic

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the central authority for the return of two children, MW, born in May 2004, and M, born in March 2006, to England and Wales, pursuant to the provisions of the Hague Convention on the civil aspects of international child abduction. The mother, Ms Hadzic, filed a response on 26 October 2007 in which she opposes the return of the children. The mother relies on the provisions of regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations. She says their return would expose the children to psychological harm. She says further the return would place the children in an intolerable situation.

2. In support of her case, the mother has filed affidavit evidence.  In her affidavit filed 4 October 2007, I note the following: the mother commenced to reside with the father in June 2003.  They were married in September 2003.  Before the birth of the first child, the father assaulted the mother.  She left for three days.  In May 2004 the parties' first child was born.  In December 2005 the father assaulted the mother, punching her.  Following that assault, the mother spent two weeks with her mother.  On 25 December 2005 the father punched the mother.  She did not separate from him on that occasion.  In June 2006 the father was hitting W.  He used or threatened to use an electronic cord, coat hangers and leather belts.  The father hit the mother on occasions when she intervened to stop the assaults on W.  The father threatened to kill the mother on occasions.  One such occasion was in August 2006.  Some time after September 2006 the mother's sister told her of violent action she observed the father perpetrate on W.  She said he had thrown the child across his room.  In about May 2007 the mother decided to terminate her relationship with the father.  The father wanted to have W live with him.  He said, "If you don't let [W] come with me, in the name of Allah, I will kill you and then myself because I'm not allowed the kids then neither are you, […]".  On 7 May 2007 the father sexually assaulted the mother.  He assaulted her while she held M.  This was a serious assault.  He threatened to kill her.  The mother called the police, who arrest the father.  Since the separation in May 2007 the mother has travelled to Australia.  She arrived on 10 May 2007.  There have been phone calls from the father.  He has told the mother, "When you come back, I'm going to chop you up into little pieces and post you back to each one of your family members".  He has also threatened to take the children to his homeland.

3. The father is not a citizen of the United Kingdom.  The mother says he was relying on his marriage to the mother to support his application for residence.  The father has telephoned nearly every night since the children have been in Australia to say good night to W.  He does not speak to M.  The mother's sister, X, has filed an affidavit in which she attests to the father's violence towards W.  She also saw the father watching sex acts on a computer with W sitting on his knee.  When challenged about W observing this activity, the father said, "It's natural".  The sister also describes an observation, which may amount to sexual abuse of W by the father.  In an affidavit from the mother's solicitor, I learn that the father was charged by the United Kingdom police in May 2007.  He was charged with assault upon the mother.  The charges did not proceed because the mother was not available to give evidence.  The affidavit also contains evidence as to the father's potential ability to remain living in the United Kingdom due to the mother's failing to support his application for residence.

4. On 11 October 2007 a Family Report was provided to the Court.  This report concludes that if the mother and children are returned to the United Kingdom, it would expose them to a risk of physical and/or psychological harm.  The assessment appears to be based upon the mother's allegations of violence by the father towards both she and the children.  On 25 May 2007 the mother made a complaint to the police in Australia.  She said the father had sent her text messages on her mobile since she had been in Australia.  Some of the messages to the mother amounted to apologies by the father for his behaviour towards her.

Consideration of the ground relied upon by the mother

1. I should first record that it is conceded on behalf of the mother that absent a finding in favour of the mother under regulation 16(3)(b) of the regulation, the children should be returned to the United Kingdom.  The mother has also made it clear that if the children are required to return to the United Kingdom, then she would return with them.  Regulation 16(3)(b) is in the following terms:

   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.

2. The evidence which goes to support this ground carries with it an unspoken assumption that the mother and children cannot be protected from the father by the laws and authorities in the United Kingdom.  The Director‑General referred me to the decision of Murray & Director of Family Services ACT, a decision of the Full Court delivered on 6 October 1993.  This was a case where the mother opposed the return of children to New Zealand because of the potential for the father to harm the mother and children.  She claimed the father was a member of the "Mongrel Mob", a motorbike club in New Zealand.  She said that she had no support from family in New Zealand.  On the second last page of the decision, the Full Court said as follows:

   It would be presumption and offensive in the extreme, for a Court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand courts or that relevant New Zealand authorities would not enforce protection orders which are made by the courts.

   In my opinion, the same consideration applies to this case.  The Court should not and would not on the facts of this case presume the authorities in the United Kingdom would not protect the mother and children if the children returned with the mother to the United Kingdom.  In this case, the mother knows that she can be protected because the father was removed from the home by police and charged with serious criminal charges in May of this year.  That enabled the mother to escape to Australia.  I cannot see that the evidence of the mother would satisfy the conditions or terms of regulation 16(3)(b).  There are a number of actions the mother could take to protect herself and the children from the violence of the father.  Those actions would be invoked by her making applications to courts and authorities in the United Kingdom to assist in her protection and the protection of the children.

3. If I be wrong in my conclusion about regulation 16(3)(b), I would, in the circumstances, still require the return of the children to the United Kingdom upon conditions.  The Director‑General submits that I can impose conditions on the return of the children under regulation 15(1).  The Director‑General filed in Court a suggested undertaking, which was marked as exhibit X2, such undertaking to be given, it is suggested, in writing by the father.  The mother sought conditions in a document provided by her counsel.  Those conditions were provided at my request.

4. The first condition required the father to provide evidence of his right to remain in the United Kingdom.  This does not appear, in my opinion, to be an appropriate condition to impose upon the father.  The mother then sought further conditions requiring orders to be made in a UK court, such orders to be consented to by the father.  Again, those conditions appear to me to be more than is reasonably required.

5. I do propose to make conditions for the return of the children, whether that be under regulation 15(1) or a combination of regulation 16(5) and regulation 15(1).  Those conditions will deal with the following: 

   i)The provision of funds sufficient to enable the return of the two children and the mother by air to the United Kingdom;

   ii)The requirement for the father to provide a written undertaking to the Court and to the mother to the following effect: 

   (1)That he will not approach within 250 metres of the mother or the children without first obtaining an order from a United Kingdom court in proceedings in which the mother has had an opportunity to participate;

   (2)He will not contact the mother by telephone, text message or through a third party without a court order obtained in proceedings in the United Kingdom in which the mother has had an opportunity to participate;

   (3)That upon the mother giving written notice of her desire to occupy the former matrimonial home, the father leave the property at P within 14 days of such request and make the premises available for occupation by the mother and the children and not approach that property until an order permitting same has been made in a United Kingdom court in proceedings in which the mother has had an opportunity to participate.

   iii)Next that the father not seek any orders in any court in the United Kingdom which would prevent the mother and the children living with or close to the mother's mother in B unless and until the mother has had an opportunity to be heard in relation to such an order.

6. The father has offered in the documents presented on his behalf to consent to orders or give undertakings which would permit the mother to live in the former matrimonial home or with her mother at B.  It is conceded by the mother that she is a citizen of both the United Kingdom and Australia.  She would, in those circumstances, be entitled to social security and other benefits as a citizen living in the United Kingdom.

Time for return of the children

1. The return of the children and the mother to the United Kingdom is conditional upon the father complying with the conditions that I propose to impose.  A time limit should be placed on his compliance.  There must be a concern that the children will become well settled in Australia if they are not returned expeditiously as required by the Convention.  I propose to require that the conditions be met within three months.  If they are not met in that time, then the return orders should be discharged in the absence of a good reason to the contrary.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  6^th of December 2007