Department of Community Services and Tarritt

[2007] FamCA 1400

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & TARRITT [2007] FamCA 1400

FAMILY LAW – HAGUE CONVENTION – Child in Australia pursuant to an order of an American court – Child not returned at the end of the discrete period under the order – “Defence” of grave risk considered – Consideration of 11 year old child’s objections.

Family Law Act 1975 (Cth)

De L v Director-General of New South Wales Department of Community Services (1996) 87 CLR 640; (1996) 20 Fam LR 390; (1996) FLC 92-706
In Re R [1995] 1 FLR 716
S v S (Child Abduction) (Child’s views) [1992] 2 FLR 492
The Secretary of the Department of Human Services State Central Authority and Lenz (unreported) 20 November 2002, Kay J

APPLICANT: DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

RESPONDENT:  MS TARRITT

FILE NUMBER: SYC 6193 of 2007

DATE DELIVERED: 20 November 2007

PLACE DELIVERED: Albury

PLACE HEARD: Sydney

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 1 & 2 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS TOCKAR

SOLICITOR FOR THE APPLICANT: LEGAL SERVICES UNIT, DEPARTMENT OF COMMUNITY SERVICES

COUNSEL FOR THE RESPONDENT: MR ANDERSON

SOLICITOR FOR THE RESPONDENT: CALDERCOTT & WILLIAMS

Orders

1. That the applicant forthwith make such arrangements as are necessary to ensure the return of the child … (female) born … October 1996 to United States of America forthwith in the company of such person and upon such conditions as may be necessary pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction.

2. That subject to these orders, paragraphs 1 and 3 of the minutes referred to as Exhibit 1 in the orders of Judicial Registrar Loughnan are discharged to enable the said child to be returned to the United Sates of America.

3. That sealed copies of this Application and these orders be served upon the Commissioners of the Australia Federal Police.

4. That the parties are at liberty to apply herein on twenty-four hours notice.

5. That the mother’s application (Form 2A) filed 4 October 2007 be dismissed.

6. That the application of the applicant filed 3 September 2007 be otherwise dismissed.

7. That the copy of the letter dated 1 November 2007 from Oliver Law Firm, the mother’s “proof of evidence” document and the copies of the legislation of the State of Iowa be exhibits in the proceedings and remain on the Court file.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6193  of 2007

DEPARTMENT OF COMMUNITY SERVICES 

Applicant

And

MS TARRITT

Respondent

REASONS FOR JUDGMENT

1. On 2 November 2007, I dealt with a defended application by the Director-General of the Department of Community Services (NSW) for the return of the child born in October 1996 to the United States of America pursuant to the provision of the Family Law (Child Abduction Convention) Regulations which enact into law aspects of the Hague Convention.

2. The application was filed on 3 September 2007.

3. The application is opposed by the mother of the child.  She is the respondent to the proceedings.

4. It was not disputed that the child was habitually resident in the United States of America before the child came to Australia in June 2006 nor that before the child came to Australia, her father was exercising rights of custody.  The case was primarily about whether there was a “defence” provided under Regulation 16(3) of the Regulations.  Without that, it is clear that there is a mandate for the prompt return of the child to the United States of America.  Because the issue was about those defences, the mother proceeded to present her case first.  Her defences were fourfold:

   (a)there is a grave risk that the return would place the child in an intolerable situation;

   (b)the child objects to being returned;

   (c)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and

   (d)the child has attained an age, and a degree of maturity, at which it is appropriate to take into account her views.

5. Before looking at the defences, it is important to put the facts in context.

6. There are two children of the relationship of Mr Herald (the father) and the respondent mother.  The subject child is the younger of the children.  The other, C, was born in 1990 and is therefore 17 years of age.  The parents separated in 2000 and there has been significant litigation in America since.  Suffice it to say, the child was placed in the care of her father pursuant to court orders in America and she remained so until a consent arrangement embodied again in an order of a court in Iowa was executed in 2006 under which the child was to spend until 1 August 2007 with her mother in Australia. 

7. It is the fact that since 1 August 2007, the child has been retained by the mother in Australia in contravention of the order of the American court.  Indeed, the mother applied to the Family Court of Australia for a parenting order in consequence of what she says was legal advice that entitled her to do so.

8. After the parties separated in 2001, the mother moved to New Zealand with her present husband Mr Tarritt and in 2003 the Tarritts came to Australia.  With Mr Tarritt, the mother has two children, aged 4 and 5.  She is expecting another child soon.

9. The history of the litigation in America appears to have been heavily fought but the only hearing which I propose to deal with was that resulting in a judgment in July 2004 of Judge Carla Schemmel of the 5^th Judicial District of Iowa.

10. The judgment indicates that both parties were represented by lawyers and the children were represented by their attorney and guardian ad litem.  The children’s attorney made recommendations about the children being with their mother.  The judge rejected that.  The judge found the father had devoted his time and attention to the children.  The judgment speaks glowingly of him as a parent.  The judge referred to the evidence of counsellors, case manager, teachers and school staff not to mention a therapist who all spoke of the father as responsive and devoted to his children. 

11. The problem then and now still alleged by the mother is that the child is at risk with her brother C.  In 2004 the judge rejected that referring to the apparent conflict in the house as “bickering and rough-housing” as would be anticipated as normal and expected between siblings.  Any concerns about the child’s safety were rejected.

12. Most of the focus of the discretionary defences in the hearing before me, centred around the child’s brother C.  Rough-house or bickering though Judge Schemmel may have viewed it, it would be fair to conclude that C was a troubled young man.  He clearly had no relationship with his mother.

13. By February 2006, C was described by his child psychiatrist as a boy with a history of behavioural problems.  At that time, the psychiatrist recommended long term residential treatment.  He was given therapy and anti-depressant medication.  He was diagnosed as having a personality disorder with narcissistic, anti-social and borderline features.  It was predicted he would get into serious trouble.  The psychiatrist thought the father and son relationship had deteriorated.  During this same time, the child lived in the household of her father. 

14. By August 2006, C was placed with an organisation in a residential program called W Facility.  This arose out of delinquent acts.  At that time, the father’s rights to C were terminated.

15. Just prior to this residential program, discussions took place between the father and the mother.  The mother was then living in Australia.  The father seems to have conceded by some time around early 2006 that the child was having difficulty settling at school and socially.  I am not surprised.  The father described the child as having a relationship with her mother from afar in the sense of her mother being a fantasy down a phone line.  Documents show that the father thought a different regime for the child would be good but he insisted that the arrangement for a year with the mother be documented formally through the courts.  The evidence is that the mother was reluctant about the formality.  Despite that, the consent order to which I referred in paragraph 6 was then made and the child came to Australia for the discrete period until 1 August 2007.

16. Counsel for the Director-General suggested that if the mother was now really serious about the concern for the child in respect of her brother C as raised by her defence, why would she have agreed in 2006 to a specific return date.  Whilst there might be an inference so drawn, it could equally be presumed that with C’s long term prognosis, the future contact between siblings would be unlikely.  More to the point, as 1 August 2007 approached, the email correspondence indicates that plans were still on track for the child’s return to America.  That might also be viewed as a stalling mechanism by the mother.  Around that time, the mother was certainly obtaining advice about the child not returning to America.

17. In so far as the mother’s defence revolves around the protections of the child from C, it is important to look at the evidence of what happened to C. 

18. By November 2006, W Facility described C’s behaviour as having improved but there was still inconsistencies.  His education report showed him to be polite and an active participant in school.  His skill development showed improvement.  Importantly, there were weekly family phone calls, unlimited mail and visits.  The “family” was referred to as his parents and grandparents. 

19. I was provided with something akin to a pre-sentence report from the juvenile court services and an evaluation of the State Training School in Iowa but they pre-dated the W Facility report which I found more helpful.  The State Training School evaluation could be seen as positive. 

20. By June 2007, C graduated successfully from the W Facility and was released.  He “learned and demonstrated his ability to make thoughtful and helpful choices whilst also considering their effects on himself and his family”.  It was recommended he remain at home with continued support.  That report was sent to both parents upon C’s release and through her counsel, the mother acknowledged having received it yet it did not seem to have appeared in her material before this Court.  Quite the contrary, the picture painted of C was bleak.

21. The father swore an affidavit on 10 October 2007 ostensibly to refute statements of the mother.  Some of this material was contentious, emotive, unhelpful and probably inadmissible.  However, the father spoke of the child being excited about coming home until mid-July 2007 but added that now the child does not speak with C. 

22. As for C, the father said that he had been “rehabilitated” and had gainful employment of about 30 hours per week.  This evidence significantly affects the issues of the defences and the discretionary matter to which I shall turn in a moment. 

23. On 12 September 2007, Judicial Registrar Loughnan made an order under s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”) for a family report to be prepared. It was prepared by family consultant Ms F in anticipation of this hearing. Two issues were addressed. They were:

    (a)the question of whether the child objected to being returned to America;  and

    (b)whether the child had attained an age and maturity at which it was appropriate to take into account her wishes.

24. There can be little doubt that the child does object to a return to America but in reality, that should be read as an objection to returning to her father.  She gave a number of explanations.  She was critical of her father’s care of her.  I have to take into account that she has not been in her father’s care for over a year.  She criticised her father for keeping her but that also has to be seen in the context of the extraordinary litigation that has gone on over the preceding years.  To have any weight, that sort of comment would have to be seen in the context of what the judge in Iowa said about the father’s care.

25. The child was critical of her brother C saying that she was scared of him, had spoken to him since his release from “kids’ gaol” and believed he would bully her.  That may be consistent with the sort of behaviour that C was engaged in over the years before 2006 but the litigation in America still has to be seen as having a complimentary outcome for the father.  There was also a criticism of the father’s partner by the child.

26. I draw some comfort from the statement of the father that he wanted the child to have relationship with her mother in 2006 and that he acknowledged she was then having problems.  I am very conscious in respect of those issues that I am not deciding a parenting case but rather determining whether the forum for that determination should be America or Australia.

27. When I turn to the second of the two issues considered by the family consultant, her evidence which I accept, is that the child feels it necessary to portray her father negatively because otherwise, her mother might reject her and/or she might not be allowed to remain in Australia.  The family consultant said that the positive sign was that the child wanted to see her father and C albeit on a limited basis.  The family consultant however said that the child was not mature enough to understand the complexities of the situation but that her wishes ought appropriately be given some weight.

28. Without the evidence being fully tested and the parties being in a position to be interviewed along with the child, it is difficult to do more than accept at face value just what the family consultant says.

29. I turn then to the defences.

30. The issue of some substance and concern was that if the Convention was applied and the child returned to her father in Iowa, the mother would not be able to bring any application for variation of the Iowa orders for a period of six months.  Mr Anderson for the mother argued that Iowa would have no jurisdiction.  Mr Tockar for the Director-General pointed to the Iowa legislation and said that Australia became a defined “Home state” and if this Court declined jurisdiction as a result of the Hague Convention, Iowa then had it.  Mr Anderson said that in any event, with his client’s pregnancy, she would not be returning to America so that to some extent the issue of the six months rule if it applied, becomes irrelevant.  Should that not be the case however, I find that the position about the law in Iowa is not at all clear.

31. Counsel for the mother handed to me an advice dated 1 November 2007 from an attorney in Iowa, Michael Oliver.  Mr Oliver said that as the child had been in the mother’s care for longer than six months then pursuant to the requirements of Chapter 598B of the Iowa Code, it was his opinion that although the original child custody order was found in the State of Iowa, as a result of a length of time out of that State, the establishment of a residence for the child in Australia and the presumption that Iowa would be an inconvenient forum to hear the matter, then the Iowa Code permitted the mother to prosecute a modification of the custody orders through the Australian courts.

32. I was handed excerpts of the Iowa legislation.  Under the Iowa law, “Home state” means the state in which the child lives for at least six consecutive months immediately before the commencement of a child-custody proceeding.

33. Iowa Code 598B.107 says that a court in Iowa shall treat Australia as if it were a state of the United States of America for the purposes of applying the law.

34. Iowa Code 598B.201 says that a court in Iowa has jurisdiction to make an “initial child-custody determination” only if:

    (a)Iowa is the home state of the child on the date of the commencement of the proceedings or was the home state of the child within six months prior to the commencement of the proceedings and the child is absent from Iowa but a parent continues to live in this state;  and

    (b)a court of another state (by which I understand to mean Australia) does not have jurisdiction under (a) above or a court in Australia has declined jurisdiction on the ground that Iowa is the more appropriate forum.  A number of other provisions apply which in my view do not affect the question of jurisdiction.

35. Iowa Code 598B.202 says that a court of Iowa which has made a child-custody determination such as that made in 2004 has exclusive, continuing jurisdiction until:

    (a)an Iowa court determines that the child does not have a significant connection with the state;  or

    (b)the Iowa court or a court of another state (by which again I understand to include Australia) determines that the child does not presently reside in Iowa.

36. Iowa Code 598B.203 says that a court in Iowa shall not modify an order made by a court of another state (including obviously Australia) unless it has jurisdiction to make the initial determination pursuant to s 598B.201 and more importantly, the court of the other state (by which I understand to mean Australia) determines that it no longer has exclusive, continuing jurisdiction.

37. Whilst some of those matters may seem confusing, it still seems to me that if this Court, recognising its obligations under the Hague Convention, refuses or declines to exercise jurisdiction under the Act in respect of a parenting matter, then there is no impediment for the courts in Iowa to deal with the matter.

38. Counsel for the mother argued that in respect of the exercise of discretion to decline to return the child, I could take into account the question of the child being settled and the obvious delay.  Mr Anderson was not referring to the fact that an applicant is required to bring an application within 12 months of the unlawful retention but rather that the philosophy behind that regulation is to avoid children settling and then being disrupted.  The child has been in Australia well over 12 months now.  However, the difficulty with that analogy is that:

    (a)in this case, there was a specific agreement embodied in a court order that anticipated that the time for the child in Australia was appropriate for her but, without any equivocation, she was thereafter returning to America; and

    (b)during the absence of the father from the child, there has been an ongoing relationship and at all times, it was anticipated and discussed that the child would be resuming her residence in the United States.

39. It was also said that the mother’s inability or desire not to return to Iowa would place the child in an intolerable situation by being separated from her mother.  I reject that having regard to the findings of the judgment of Judge Schemmel in 2004. 

40. Counsel for the mother also argued that returning the child to her father exposed her to a grave risk of psychological harm because of the environment into which she would be going included C as well as the father’s new partner.

41. In respect of the question of grave risk, all counsel referred me to the High Court decision in De L v Director-General of New South Wales Department of Community Services (1996) 187 CLR 640; (1996) 20 FamLR 390; (1996) FLC 92-706. That court said that those words have no special meaning. Kirby J although dissenting, described the situation as meaning “intolerable, extreme and compelling”. In this case, I could not find the return to be in that category.

42. Mr Anderson said that the child’s objection was firm and rationally based.  The family consultant referred to the fact that the child was doing well at school and critical of the father as I have set out above.  Notwithstanding the absence from her father and therefore being under the influence of her mother, could I say that the objection was firm and rationally based?  In this case, I am satisfied that the child does not understand the complexities of the family dynamics to which she would be returning notwithstanding her firmly held views.

1. Strength of feeling beyond the mere expression of a preference or ordinary wishes was another defence raised.  To a very great degree, this subjective determination must be guided by the same principles as that set out in the previous paragraph.  I could not be satisfied that the child’s views are more than her preference.  The family consultant described those views as the child feeling happier in Australia because she “goes to a lot of places and learns a lot of things whereas when she lived with her father he locked himself away in his room with his girlfriend, […], and just turned the TV on for [the child] to keep her occupied”.  The child was of the view that things were a lot better with her mother in Australia.  She gave as an example that her mother helped her with her homework whereas her father did not.

2. The child viewed the situation as her father not caring about her and sometimes being mean to her.

3. Again, I am conscious that these are the words of an eleven year old child who does not understand the historical and more importantly, the current complexities of either of the families with whom she would be living.  The strength of her preference is therefore not something that would persuade me as being strong.

4. Accordingly, I find:

   (a)the retention of the child in Australia was wrongful;

   (b)the application for return of the child has been made within appropriate time;

   (c)the father was exercising his rights of custody when the retention of the child occurred;

   (d)there is not a grave risk that the return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation; and

   (e)of the principles in Regulation 16(3)(c), only her objection applies.

5. Significant in these proceedings is the fact that the return issue is still a matter of discretion.  About discretion, the Regulations are silent.  In De L v Director-General of New South Wales Department of Community Services, the High Court of Australia at 83,456 said that the discretion was unconfined except as to the guidance or direction of the Act and Regulations. As such, I am entitled to consider the welfare of the child as part of that process. Against that however there are the very persuasive judgments of other courts on this issue. In Re R [1995] 1 FLR 716 Balcombe LJ said:

   In exercising that discretion (the application of the Hague Convention) it is clear that the policy of the Convention and its faithful implementation by the courts of the countries which have adopted it, should always be a very weighty factor to be brought into the scales whereas the weight to be attached to the objections of the child or children will clearly vary with their age and maturity.

6. Balcombe LJ went on to say:

   It is sometimes said that the Convention was to prevent the wrongful abduction of children.  It also applies expressly to the wrongful retention of children after an authorised visit.  The purposes of that are fairly clear.  When parents separate and they are living in different countries, it is in the highest degree important for the welfare of the children generally that the custodial parent in one country, whether the father or the mother, can send the children for visitation, access or contact (whatever it be called it embodies the same concept) to the non-custodial parent in the confident belief that at the end of that period the children will return pursuant to any agreement or order of the court which already exists.

   It is just as detrimental to the welfare of children generally that that confidence should be maintained as to prevent them from being abducted, because if a custodial parent fears that a child may not be returned pursuant to existing orders or agreements at the end of a visitation period, they will be reluctant to send the children for access and that must be to the detriment of the children generally.  That seems to me a clear social policy behind a convention, which it is the duty of our courts to implement.

7. In S v S (Child Abduction) (Child’s views) [1992] 2 FLR 492 Balcombe LJ said:

   Thus if the court should come to the conclusion that the child’s views have been influenced by some other person eg the abducting parent, or that the objection to return is because of wish to remain with the abducting parent then it is probable that little or no weight will be given to those views.  Any other approach would be to drive a coach and horses through the primary scheme of the Hague Convention.

8. In The Secretary of the Department of Human Services State Central Authority and Lenz (unreported) 20 November 2002, Kay J was dealing with a case in which the mother said that she could not go back to the German court and prosecute her claim because there was no certainty of legal aid.  Kay J said that if the inability to obtain appropriate legal aid was a recognisable defence under the Convention, then it would be the law that no child would ever be returned to America because the Americans do not provide legal aid.  His Honour went on to say:

   The proverbial coach and four followed by Kirby J’s buses and camels would parade themselves through the Convention rendering it unrecognisable.

9. It seems to me that all of the defences raised by the mother are such that if they were accepted based on the findings that I have made, then what Kay J said would be right and that no child would ever be returned and the proverbial coach and four together with buses and camel would parade themselves through the Convention rendering it unrecognisable.

10. Accordingly, I propose to make the orders for her return to America.

I certify that the preceding Fifty Two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  19 November 2007