Department of Community Services and Taggart

[2009] FamCA 132

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & TAGGART [2009] FamCA 132

FAMILY LAW – CHILD ABDUCTION - Hague Convention – adjournment to allow mediation – child brought from England to Australia – application brought more than twelve months after child first removed or retained – whether the father consented to permanent removal - whether the child is “settled” in new environment – issues of mother’s immigration status in United Kingdom

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: Director-General, Department of Community Services

RESPONDENT: Ms Taggart

FILE NUMBER: BRC 4534 of 2008

DATE DELIVERED: 25 February 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 17 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ward

SOLICITOR FOR THE RESPONDENT: Ms Adams

Orders

1. The application of the Central Authority is dismissed.

2. The mother is declared to have rights of custody in Australia with respect to the child D born of her relationship with the child’s father Mr D, born … February 2005.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: BRC 4534  of 2008

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MS TAGGART

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are brought by the Director-General of the Department of Community Services as the Central Authority, seeking orders for the return of the child D pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).

2. The application by the Director-General was filed on 20 May 2008 and a cross-application opposing an order for the return of the child and seeking a declaration that the mother has rights of custody in Australia was filed on

   
   25 November 2008

   .

3. The child was born in February 2005 and he was aged 3 years and 10 months at the time of the hearing.

4. Each of the mother and the father were born in 1975, the mother having been born in Australia.

5. The mother has lived in Ireland and in England as well as Australia.

6. She has given birth to eight children, including the subject child, but this application is only with respect to one of what she asserts are two children in her care, by the same father.

7. Presently residing with the mother are:  her daughter J aged 6 years;  her daughter H aged 4 years;  her son D, the subject child, aged 3 years 10 months;  and a child T who is approximately 6 months of age.

8. The mother asserted that D and T are children of the same father.

9. It was conceded by the mother that the child D was habitually resident in the United Kingdom when she brought the children to Australia.

10. She accepted that rights of custody existed in the father at the time she brought the child to Australia.

11. She asserted that the father consented to the child coming to Australia and produced a document to which is appended, she says, his signature which appeared to give such consent.

12. The father asserted that the document is forged.

13. No forensic evidence has been adduced.

14. Whilst there are some similarities between the signature appearing on the document and one of three signatures of the father in the material before me, I am not able to say that on the balance of probabilities the father consented to the child coming to Australia and the mother has not discharged the onus of proving consent.

15. The Central Authority conceded that the application is brought in excess of twelve months from the removal and in excess of twelve months from the date on which it is said occurred the first wrongful retention.  That date is said to be when the father spoke to the mother and she refused to return the child, which was approximately in November 2006.

16. Accordingly, the conduct of this matter is governed initially by the provisions of Regulation 16(2) which requires that I must order the return of the child if:

    “(a)an application for a return order for a child is made”.

    It is conceded that such an application has been made.

    “(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia”.

    It is conceded that this is so.

    “(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment.”

    It is contended by the mother that the child is so settled.

17. The mother in her affidavit deposed, and her assertions are not gainsaid, that she came to Australia in July 2006 and resided in Queensland until October 2007 when she moved to New South Wales.  The mother initially lived with an uncle in Sydney for three months and then obtained her present residence, which is an apartment provided by the Department of Housing in M, where she has lived since 21 December 2007.

18. She deposed that the home is a comfortable four bedroom residence.

19. She resides there with J, H, D and T.

20. H and D have been placed in day care four days of the week from 8.00 am until 4.00 pm.

21. She deposed that they are both developing well and seem to enjoy their time at day care.

22. She applies herself during the day to the care of the youngest child, T.

23. She has resided in her home in M for twelve months and in Australia for two years and five months.

24. The mother deposed that she has many friends in the local area and that she has weekly contact with extended family, including an uncle and cousins.

25. The mother has had problems in the raising of her children and has come under the notice of child welfare authorities both in Ireland and England.

26. Upon her coming to Australia her child safety file was transferred from England to Queensland.

27. On the mother’s evidence, the Queensland Department of Child Safety has visited her on one occasion but has taken no action in respect of the care of her children and closed her file.

28. They were advised by the mother when she left Queensland that she was moving and her file was provided to the Department of Community Services in New South Wales.

29. That is the Department which is in this State responsible for the welfare and protection of children and they have afforded to the mother regular contact with them and support and she deposed as finding that support and contact both useful and helpful.

30. She has engaged in a programme on a voluntary basis which has afforded her the opportunity of improving her parenting skills and she deposed to attending regular interviews and information sessions.

31. She deposed that the course she attends has assisted her to properly care for her children alone.

32. The Central Authority conceded (it being the same Department) that no application is being made for the removal of any child from the mother’s care and they concede also that she is engaged in this voluntary programme and receives the continuing support of the Department.

33. It seems to me upon a consideration of this evidence that it is clear that the child D is residing in a settled environment – geographically, socially, familially and even perhaps educationally.

34. He has enjoyed his home and his child care group now for a considerable time.

35. The child D has the benefit of the environment provided by his half-siblings and his sibling T, and by a mother who is improving her parenting skills and affording him with the support of others with the security which a child of his age needs.

36. In all the circumstances I find that D has settled in his new environment.

37. It was a matter of discussion as to whether I, following making that finding, had discretion under the provision of the Regulations to return the child notwithstanding that finding.

38. I find that I have no such discretion and that having made that finding the case should be dismissed.

39. However, if I am wrong in that, I consider that I would not exercise such discretion as I may have to return the child because of a number of factors including:

    a)the fact that the mother is in receipt of social security benefits and has not the means to return to the United Kingdom, nor support herself there;

    b)the only evidence before the Court in relation to the likelihood of the mother procuring a residence visa or indeed a visitor visa to the United Kingdom was that given by the mother of the advice tendered to her by an immigration officer to the effect that when she accepted voluntary deportation to Australia that it would not be open to her to return to the United Kingdom with or without the children, given her status as a voluntary deportee.

    This advice is not the subject of any evidence from the Central Authority to the contrary.

40. In my view, this child having become well settled, it is likely that any return would subject him to a degree of psychological trauma.  Any separation from his mother and his siblings has to give rise to concern about the impact on his health, and on that basis I would not make any order for his return if I had a discretion to do so.

41. In addition, given there are two children of the one father, such a return would necessitate litigation in two countries if the parties cannot now agree, the youngest child having been born here.

42. Having indicated to the parties before me my views on these matters, I invited them to consider undertaking mediation so that the issues between the mother and father as to the future relationship between not only D but his sibling, T, with their father might perhaps be resolved without the attendant cost in time, money and emotion and further litigation.

43. The Department and the mother agreed to explore the possibility of such mediation and accordingly on their request I adjourned this matter to a date to be fixed and to be reviewed by me in chambers.  It was my hope that the parties might be able to reach an agreement which admits of the possibility of these two children having as meaningful a relationship with each of their parents as time, money, technology and geographical circumstances permit.

44. The matter having again come before me today and I being informed that no such mediation has been agreed to by the father, I formally make the orders set forth above.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  25 February 2009