DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & ABRAHAM

[2016] FamCA 847

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & ABRAHAM [2016] FamCA 847

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application by central authority to return child to Texas, USA – Whether the left behind parent has rights of custody – Consideration of what amounts to “rights of custody” – Statutory interpretation of regulation 4(2) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the Texas court did not have jurisdiction to make a return order – Where the Texas court made findings after the child’s removal that the father had custodial rights – Where it was found that, at the time of removal, the existing orders in Texas did not amount to “rights of custody” for the purposes of the Regulations – Where rights of access found not to constitute rights of custody for the purposes of the Regulations – Where the application was dismissed.

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Grave risk of harm defence under regulation 16(3)(b) – Whether an order that the child be returned to USA would create a grave risk of harm or intolerable situation to child – Where evidence adduced that the judge in Texas, USA, had intention to send respondent to gaol upon her return to Texas – Where the child would likely be placed with the father – Where the father had a history of drug addiction – Where there were allegations of domestic violence against the father – Where the respondent deposed she would be unable to financially support herself or the child if returned to the USA – Where it was found that if orders made for the return of the child to the USA, the child would be placed in an intolerable situation – Where the defence under regulation 16(3)(b) was established.

FAMILY LAW – CHILD ABDUCTION – PRACTICE AND PROCEDURE – Expert evidence – Where the only expert evidence adduced was partisan – Discussion of the weight to give the expert evidence – Where it was found that regulation 29 of the Family Law (Child Abduction Convention) Regulations 1986 applies to admit only to the evidence of the applicant – Where the Evidence Act 1995 (Cth) still applies to the respondent’s evidence – Where it was found that the court has discretion as to the weight to give the admissible evidence– Where little weight could be given to the expert evidence due to its lack of impartiality.

FAMILY LAW – PRACTICE AND PROCEDURE – Respondent’s application to re-open refused.

Family Law Act 1975 (Cth), ss 65Z; 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth), regs 4; 4(2); 16(3)(b); 17; 29
Evidence Act 1995 (Cth)
Acts Interpretation Act 1901 (Cth), ss 15AA; 15AB
Legislative Instruments Act 2003 (Cth)
UN Convention on the Civil Aspects of Child Abduction 1980

Brown & Burke (2007) 39 Fam LR 276
Brooke v Director General, Department of Community Services (2002) FLC 93-109
J & Director-General, Department of Community Services (2007) FLC 93-342
MW v Director-General, Department of Community Services (2008) 244 ALR 205
Hill v. William Hill (Park Lane) Ltd [1949] AC 530
Cooper Brookes (Wollongong) Pty LtdvCommissioner of Taxation (1981) 147 CLR 297
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd & Ors(1920) 28 CLR 129
Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321
Soysa & Commissioner of Police [2011] FamCAFC 39
DP v Commonwealth Central Authority (2001) 206 CLR 401
De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

APPLICANT: Secretary, Department of Family and Community Services.

RESPONDENT: Ms Abraham

FILE NUMBER: SYC 2703 of 2016

DATE DELIVERED: 23 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 1 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Department of Family and Community Services

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Hannams Solicitors

Orders

1. The Application in a Case filed by the respondent on 15 September 2016 seeking leave to re-open to tender documents attached to the accompanying affidavit sworn by the respondent’s solicitor is refused.

2. The Application filed 4 May 2016 is dismissed.

3. The orders made on 10 May 2016 are to stand discharged as and from the expiration of one calendar month from the date hereof.

4. At the expiration of one calendar month from the date hereof all documents surrendered by the respondent to the Registrar of the Court pursuant to the orders of 10 May 2016 are to be returned.

5. The applicant is to serve a copy of this order upon the Australian Federal Police.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family & Community Services v Abraham 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 SYDNEY

FILE NUMBER: SYC 2703 of 2013

Secretary, Department of Family & Community Services

Applicant

And

Ms Abraham

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application filed by the delegate of the Central Authority in Australia pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking an order for the return to the USA of the child X (a male) born in 2010 (“the child”). That application is opposed by the child’s mother Ms Abraham (“the respondent”) who is an Australian citizen and proposes that she will live in Australia with the subject child.

2. The evidence in this case includes an insight into the administration of justice in the State of Texas, USA. The evidence points up a significant contrast with what might be experienced in a court proceeding in Australia. The contrast, as will be seen later in these reasons, is quite confronting and ultimately impacted upon the determination of this application.

3. The Form 2 Application (“the Application”), filed by the applicant on 4 May 2016, commenced the proceeding. The respondent filed a Form 2A Answer and Cross Application on 1 July 2016. That document did not clearly state the ground relied upon to oppose the Application. On 1 August 2016, the date of the hearing, the respondent filed, unopposed, a document titled “Amended Answer”. The document stated the respondent’s defences to the application. The defences are summarised as follows:

   a)Until 6 March 2016 the child was habitually resident in the USA.

   b)The removal was not wrongful within the meaning of the Regulations because at that time:

   i) The father did not have rights of custody; and/or

   ii) To the extent that the father asserts that he had rights of custody, he was not exercising those alleged rights.

   c)In the alternative, 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 and a return order should be declined. 

4. Another aspect of this case, which appears to be out of the ordinary, is the amount of documentation which the court is required to consider. In this case there is approximately 1,000 pages of material. Most of that material came from the applicant.

5. Yet another aspect of this case which is unusual is that a Judge of the District Court of Denton County, Texas, purported to exercise power to make an order under Article 12 of the UN Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention”).

6. The order was made by Judge Sherry Shipman of the District Court, 16^th Judicial District, Denton County, Texas. Judge Shipman made a number of orders on 24 March 2016 which appear at page 55 of Volume 1 of the exhibit to the affidavit of Ms H sworn 26 July 2016.

7. The order of 24 March 2016 is titled “Order for Return of Child”. The order includes the following:

   The Court finds that it has continuing, exclusive jurisdiction over the child, [X], and that a suit involving the parent-child relationship is pending as described in the above style.

8. It is noted that the pending suit is described as:

   [Mr A’s] Emergency Motion to Sign Jurisdiction Order was presented to the court on March 24, 2016 and after considering the request, the Court makes the following findings and enters the following orders regarding the child [X]. (original emphasis)

9. It should be noted that there is nothing in the order made, or the material relied upon by the applicant, to show that this order was made after hearing from the respondent’s legal representative. The orders continue as follows:

   The Court FINDS that [the child X] was wrongfully removed from his habitual residence by the Respondent, [Ms Abraham].

   The Court FINDS that [Mr A] has custodial rights and would have been exercising those rights if the abduction or wrongful retention had not occurred.

10. The evidence then shows, on page 56, that the Texas court ordered:

    IT IS THEREFORE ORDERED that the child [X], be returned forthwith to the 16^th Judicial District Court, Denton County, Texas no later than April 1, 2016, pursuant to article 12 of the Hague Convention on the Civil Aspects of International child Abduction 1980.

11. That Article is as follows:-

    Article 12

    Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

    The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

    Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. (Emphasis added)

12. Clearly the 16^th Judicial District Court in Denton County, Texas USA cannot be “the judicial or administrative authority of the Contracting State where the child is”. Thus, there appears to be no jurisdiction which would enable that court to make the order it made on 24 May 2016 under the claimed authority of Article 12 of the Convention.

13. There are other consequential orders made against the respondent by the District Court Judge in that same proceeding. The orders included requiring that the respondent purchase a ticket for travel for the child to Dallas Fort Worth Airport in Texas. According to those orders, the respondent is to give the father written notice of the intended arrival of the child in Texas. If the child cannot be transported by a commercial aircraft because of his age, then the respondent is to give notice to the father and she is to deliver the child to the father at Sydney airport.

14. It should be noted that the last mentioned order intended that the child, aged six and a half years, travel unaccompanied on the international flight from Australia to Texas. It is only if that order proves impossible to comply with is it then required that the father travel to Sydney Airport, Australia and there collect the child from the respondent. The respondent’s counsel made comment about the specifics of where the handover was to take place at Sydney Airport. It is suggested by that requirement that the father had some concern that he might not be permitted to enter Australia. That matter is, however, peripheral to the determination of this proceeding.

15. In the Orders of 24 May 2016 and before the operative portion of the order is set out, the following warning appears in bold type:

    IMPORTANT WARNING TO [MS ABRAHAM] OF [B Street], [Suburb Y], NSW … Sidney (sic) Australia.

    If you, [MS ABRAHAM] disobey this order you may be held to be in contempt of court and may be imprisoned, fined or have your assets seized.

16. In Australia, the government’s obligations arising from Australia being a signatory to the above named UN Convention are embodied in the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). It is that legislation which binds this Court. Unlike other countries, it seems the USA and/or the State of Texas is one, Australia has opted not to simply agree to adopt the convention in its entirety and in its precise wording.

17. Regulation 17 contains the following wording:

    Declaration that removal or retention was wrongful

    (1)   On application, a court may by order declare that:

    (a)    the removal of a child from Australia to a convention country; or

    (b)    the retention of a child in a convention country;

    was wrongful within the meaning of Article 3 of the Convention.

    (2)   The court may ask a responsible Central Authority to arrange for the person, institution or other body making a request in relation to the return of a child under the Convention to obtain an order of a court, or a decision of a competent authority, of the country in which the child habitually resided immediately before his or her removal or retention declaring that the removal or retention was wrongful within the meaning of Article 3 of the Convention.

18. No request was made to the USA seeking a determination by way of a declaration that the removal or retention was wrongful within the meaning of Article 3 of the Convention.

19. Article 3 is as follows:

    Article 3

    The removal or the retention of a child is to be considered wrongful where—

    a     it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

    b     at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

    The rights of custody mentioned in sub‑paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

20. I pause here to observe that, in my opinion, a determination by the Texas court on the matters referred to in reg 17(2), where that determination was made before any order or direction under that regulation was given by this Court, requiring the Australian Central Authority to obtain such determination from the Texas court, would not prevent this Court from considering the USA court determination as part of the evidence in this case.

21. On page 5 of the case outline document provided by the applicant, the effect and weight of the determination made by Judge Shipman is reinforced by reference to a determination made by the Texas Court of Appeal for the Second District of Texas, which upheld the decision.

22. The “Relator’s Petition for Writ of Mandamus” is contained in Volume 3 of the exhibit to the affidavit of Ms H and commences at page 412. The respondent in this case, is the person identified as the “Relator” in that action.  At page 431, the order sought by the respondent is set out as follows: “Respondent [Judge Shipman] abused her decision when she signed the March 24, 2016 Order for Return of Child.”

23. On page 428, the respondent identified the order which was the subject of that action, namely:

    Respondent found that the Child was wrongfully removed from Denton County, Texas without Father’s permission; and

    Respondent ordered that the Child, who is currently six-years’ old, be returned by himself via commercial airline to the 16^th Judicial District Court in Denton County, Texas no later than April 1, 2016.

24. On page 442, the remedy sought, which would flow from the issue of the writ requested, is a direction by the Court of Appeals to the Judge to vacate the order complained of.

25. In the argument advanced by the respondent, as set out on pages 429 and following, the basis upon which the writ might be available is set out, including, “Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law, where there is no adequate remedy by appeal.”

26. The decision of the Court of Appeals was delivered on 28 April 2016. The writ was denied, No reasons are included in the applicant’s evidence and consequently this Court must proceed on the assumption that no reasons were provided by that court.

27. The Summary of Argument and Case Outline document provided to this Court by the applicant states as follows:

    The application seeks that the child the subject of the application, [X] born … 2010 now aged 6 years and 6 months be returned to the USA (Texas) which is his habitual residence immediately prior to his wrongful removal and subsequent retention on or about 6 March 2016. It is asserted that the child was brought to Australia on or about 6 March 2016 by the respondent mother, and that she has since retained the child in Australia without the consent of the child’s father.

28. The Application, on page 4 paragraph 3, under the heading “Details concerning the child”, states, “The child was wrongfully removed from the United States of America in or around 6 March 2016”. There is no notice therefore of the applicant pursuing an alternate case of “wrongful retention”. Further, the written submissions of the applicant do not address such a controversy or claim.

29. For the purpose of this determination I have assumed that the applicant pursues a case of “wrongful removal” to Australia and not a case of “wrongful retention” in Australia of the child. There is no allegation by the respondent in this case that the father consented to the removal of the child to Australia, nor is there any claim that he acquiesced in the removal. Such matters can be the subject of a defence on the part of the respondent and in this case she does not suggest such a defence is available to her. The consequence is that the applicant pursues a recovery to the USA of the child on the ground of “wrongful removal”.

30. The respondent’s primary position is that the father did not have rights of custody as defined by the Regulations. That definition of “rights of custody” is found in reg 4 and provides:

    Meaning of rights of custody

    (1) For these Regulations, a person, institution or other body has rights of custody in relation to a child if:

    (a)   the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and

    (b)    rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.

    (2)   For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.

    (3)   For the purposes of this regulation, rights of custody may arise:

    (a)    by operation of law; or

    (b)    by reason of a judicial or administrative decision; or

    (c)    by reason of an agreement having legal effect under a law in force in Australia or a convention country. (Emphasis added)

31. It is particularly sub-reg 4(2) above which the respondent has addressed. She says that the evidence establishes, on any reasonable and objective view, that the father had no right to determine the place of residence of the child at the time the respondent removed the child from the USA, namely, 6 March 2016. She submits that right was removed from him, if he ever had such a right, by the making of the operative court orders by the District Court, Denton County, Texas, on 21 August 2014, or subsequent “possession and/or access” orders made pursuant to the Mediated Settlement Agreement entered into between the father and the respondent and dated 15 February 2016.

1. The respondent further relies upon the defence set out in reg 16(3)(b) in the event the court determines the father did have rights of custody at 6 March 2016 and that he was actually exercising those rights (see reg 16(1A)(e)).

2. Regulation 16(3)(b) states as follows:

   (3)   A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

   (a)    the person, institution or other body seeking the child’s return:

   (i)    was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

   (ii)    had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

   (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; or

   (c)    each of the following applies:

   (i)    the child objects to being returned;

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

   (iii)    the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

   (d)    the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms. (Emphasis added)

3. To add further complexity to this case the evidence demonstrates that on 15 February 2016 the parties completed mediation and signed a document titled Mediated Settlement Agreement. That document is in evidence. The document was provided to the District Court, however, the formal order required by the agreement has not been provided to the Court. As will be seen in these reasons the order document was prepared by the respondent’s attorney and provided to the father’s attorney, however, it has not been completed. The probable reason for that failure on the part of the father’s attorneys is that the father now seeks different orders to those agreed to in the Mediated Settlement Agreement following the events of 6 March 2016. In those circumstances the question legitimately is posed as to the effect of the agreement. As will be seen herein I have proceeded on the assumption that the agreement did have force and effect on 6 March 2016 albeit that some evidence from the father’s attorneys argues against the correctness of making such assumption.

4. On 16 September 2016 the Court notified the parties that judgment would be handed down in this matter on Monday 19 September 2016. Unbeknownst to me, on Thursday 15 September 2016 the respondent’s solicitor sought leave to file an Application in a Case seeking to re-open this case in order to put before the Court further evidence being copies of documents filed by the father in the District Court in Texas. Those documents were annexed to an affidavit sworn by the respondent’s solicitor and consisted of a copy of an undated “Motion To Abate” filed by the father and a copy of an affidavit of the father signed on 26 August 2016. The affidavit sworn by the respondent’s solicitor informed the Court that no further submission was sought to be made in relation to the documents if admitted to evidence.

5. Having considered the documents I formed the view that nothing contained therein was of any moment, given the other material relied upon by the respondent and I therefore refuse the respondent’s application to reopen.

Background Facts

1. The following appear to be the undisputed facts which address the first portion of the respondent’s defence and create the obligation upon the applicant to establish that the removal of the child from the USA was wrongful.

2. There is no dispute that on 6 March 2016 the child was habitually resident in Texas in the USA. It is also agreed that on 6 March 2016 the respondent departed the USA with the child and arrived in Australia that day or the next. Since that time the respondent and the child have been living in Australia.

3. There is no issue that the father is the biological father of the child. He is a citizen of the USA and resides there. The respondent is an Australian citizen. The child is a citizen of the USA.

4. The applicant relies on the expert evidence of Mr Kip H. Allison, a licensed attorney in the USA, as to the laws of Texas relating to whether the father, at the relevant date, had and was exercising, rights of custody, as defined under the Regulations. The evidence of that witness for the applicant is admissible by operation of reg 29. There remains, however, discretion in the court to determine what weight to give to that evidence. Mr Allison is the attorney acting for the left behind parent, the father. He has represented the father, both in person and through an employed attorney of his firm, in proceedings conducted in the District Court in the State of Texas and in an appeal before the Appeal Division of the Supreme Court of Texas. The ability of the Court to rely upon that evidence as objective is to be considered in this determination.

5. There is no evidence to show why the Central Authority either in Australia or in the USA could not have provided evidence, in relation to the crucial questions of law to be answered in this case, from an agreed single expert engaged with the consent of each of the respondent’s and the father’s attorneys based in Texas, USA.

6. The respondent has also sought to rely upon evidence from her Texas attorney, Ms Mueller, addressing many of the same questions of law which are addressed by the applicant’s witness Mr Allison. The applicant submits that such evidence is subject to the Evidence Act 1995 (Cth) and as such, objection is taken to the court receiving any evidence which would be rejected upon the application of the rules of evidence applicable to litigation conducted in Australia. No specific objections were made to the affidavit, however, the areas identified as objectionable included hearsay statements and conclusion.

7. On 21 August 2014, an “Agreed Final Decree of Divorce” (“the Divorce Order”) (pages 12 to 49 of the Application) was the subject of court sanction and order by the presiding judge of the District Court, 16^th Judicial District, Denton County, Texas. That judge would seem to have been Judge Sherry Shipman. Such conclusion arises from the similarity of signature appearing on the orders and that appearing on subsequent orders made by that judge since the relevant date. If that not be the case, nothing flows from same.

8. The important parts of the orders made on 21 August 2014 are as follows. These provisions have been highlighted by each of the parties in this hearing.

9. The respondent has the benefit of the following order:

   IT IS ORDERED that [Ms Abraham] is appointed Sole Managing Conservator and [Mr A] is appointed sole Possessory Conservator of [the child]…

   IT IS ORDERED that [Ms Abraham], as parent sole managing conservator, shall have the following rights and duty:

   1. the exclusive right to designate the primary residence of the child;….

   5. the exclusive right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;…

   7. The exclusive right to make decisions concerning the child’s education;… (Emphasis added)

10. The orders further provide:

    IT IS ORDERED that [Ms Abraham] shall have the exclusive right to apply for and maintain possession of any passports of [the child]. IT IS FURTHER ORDERED that [Mr A] shall comply with any and all requirements necessary to obtain a passport for the child within three (3) days of a request from [Ms Abraham]. (Emphasis added)

11. The Divorce Order also provides for “Possession and Access” orders, which provides as follows:

    IT IS ORDERED that [Mr A’s] access to the child shall be restricted and [Mr A] may have possession of the child at times, for such durations, and under such circumstances as may be determined by [Ms Abraham] to be in the best interests of [the child].

12. There is a heading “Supervised Visitation”. Thereunder the following appears:

    The Court finds that credible evidence has been presented that possession of the child by [Mr A] should be supervised. IT IS THEREFORE ORDERED that until the child attains the age of fifteen (15) years, ALL periods of possession of the child by [Mr A] as set out above in the Possession Order above shall be under the supervision of Mr. [S] and/or [Ms M].

13. Other provision was made for supervision should those abovenamed persons not be available.

14. The Divorce Order provides severe restrictions upon the father during any time that he has the child in his “possession” Those restrictions are set out on page 21 of the Application.

15. The restrictions go some way to providing background to the statement made by Judge Shipman in that part of the transcript of the proceeding before her on 10 March 2016, which are repeated on page 570 of Volume 3 of the exhibit to Ms H’s affidavit sworn 26 July 2016, that, “Mr A [the father] is a drug addict.”

16. The father was required to subject himself to drug testing. Pages 21 and 22 of the Application set out the precise terms of the order made on 21 August 2014. The father was required, by order, to authorise any testing authority carrying out drug screening of the father pursuant to any other court order to provide copies of any drug screening test results to the respondent within 24 hours of the results being made available. Further, whether the father was subject to any other order requiring him to undergo drug screening, he was required to submit to drug screening commencing within a month of the court order, and thereafter at such times as a named institution may randomly require, up to three times per month until the child is 18 years of age. If the father returned positive to drug screening, or failed to comply with the drug screening order, then “all periods of possession of the child by [Mr A] shall be immediately suspended until further order of the Court.”

17. In relation to the last recited order, should it be necessary for the Court to have evidence of compliance by the father with the order, there is no such evidence presented to the Court. In fact, the respondent has annexed to her affidavit, evidence of the father having failed to comply with that order shortly after the order was made. Detail of that evidence is set out later in these reasons. The consequence of that failure by the father to comply with the aforementioned order must be that he had no right to “periods of possession of the child” without a further order of the court. The evidence, detailing the father’s access to the child, shows that no access had occurred after that breach of the orders, before the “Mediated Settlement Agreement” was signed in February 2016.

18. On pages 22 to 25 of the Application there are orders relating to child support. The father was required to make payments of US$1,710 per month.

19. On pages 25 to 30 of the Application there are orders which set out each party’s obligations in relation to provision of Health insurance for the child.

20. On page 32 of the Application there is a heading, “Termination of Orders on Remarriage of Parties but Not on the Death of Obligee”. These orders provide for the “current child support” to “terminate on the remarriage of [Ms Abraham] to [Mr A]…” Immediately under that provision, on page 32, is the heading “Information Regarding Parties”, which thereunder lists the personal information of the respondent, including her name, residential address, telephone number and email address. The order specifies that the aforementioned information is required by section 105.006(a) of the Texas Family Code. That Code is a public document.

21. On page 33 of the Application, in capital letters, is a notice which appears under the heading “Required Notices”. This is a provision which has been relied upon by the applicant. The relevant provision is as follows:-

    EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE PARTY’S CURRENT RESIDENCE ADDRESS, MAILING ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS OF EMPLOYMENT, DRIVER’S LICENSE  NUMBER, AND WORK TELEPHONE NUMBER. THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE THE 60^TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE DATE THAT THE PARTY KNOWS OF THE CHANGE.

    THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD.

22. On 15 February 2016, the respondent and the father entered into a “Mediated Settlement Agreement”. The agreement document was filed in the Denton County District Court on 16 February 2016. The applicant relies on this document in part to establish the case prosecuted by it. The agreement is set out at page 50 of the Application. The agreement purports to bind the parties.

23. The Mediated Settlement Agreement provides for “Conservatorship” to “remain the same as previously ordered.” In this case that can only be in accordance with the order of the court made 21 August 2014 and detailed above. The agreement details matters of agreement in relation to Child Support and then “Possession”, which is better understood in this Court as “spending time with” or, in a former descriptive, “access”. The agreement provides for the father to have supervised access to the child from 9.00 a.m. to 1.00 p.m. every first, third and fifth Sunday until the end of May 2016. That regime of time for the father with the child increases as specified. The father is then required to choose one of three options (however, only two options are detailed) relating to drug and/or alcohol testing. He is required to provide evidence to the mother in relation to same.

24. There are miscellaneous provisions which appear to be a revising of the orders made on 21 August 2014 relating to property and financial settlement.

25. On page 54 of the Application, the last hand written amendment to the Mediated Settlement Agreement appearing on that page is “Atty for Fater (sic) will prepare the final order.” There is nothing further provided to show what order, if any, was entered pursuant to that provision. As stated earlier I have proceeded on the assumption that the Mediated Settlement Agreement is and was binding on the father and the respondent on 6 March 2016. There is further stated later in these reasons about that probability.

26. There is nothing in the agreement, above referred to, which specifically changes the provision of the order of 21 August 2014 providing to the respondent “The exclusive right to designate the primary residence of the child”. Rather, the Mediated Settlement Agreement of 15 February 2016 specifically states “Conservatorship: remain the same as previously ordered.”

Evidence

1. Both parties relied upon affidavit evidence.

2. The applicant relied upon an affidavit signed under oath by Karen Kennedy on 21 July 2016. Ms Kennedy is an attorney in the firm called Allison Associates. That firm was engaged by the father to act on his behalf in both the proceedings in Texas and also to provide evidence to this Court. That evidence is presented to this Court by the applicant as expert evidence upon which the Court can rely. The affidavit is annexed to the affidavit of Ms H dated 26 July 2016. The affidavit is clearly and unabashedly partisan. The following extracts support that conclusion:

   a)Paragraph 20, page 14: “What then followed was a firestorm of activity in which Mother attempted to have Father forcibly removed from an addiction treatment centre so he could appear in court and be thrown in jail for not paying his child support even though she knew he was unemployed and had no assets.”

   b)Paragraph 14, page 15: “It is my opinion that Mother’s goal was to prevent Father from exercising his visitation at all. I base this opinion on my personal involvement in numerous attempts to meet her exacting and ever-shifting requirements. No matter how outrageous the requirements, Father would comply only to have Mother add contradictory requirements until it was impossible to comply. For example, Mother insisted that Father designate the time and place for visitation and that he be present at the location for the entire visitation period and that, if he is 20 minutes late for visitation, it is considered a missed visitation. Then, she claims he has to pick up the child from her residence 45 minutes away from the designated location. And, he is not allowed to drive a car with his child in it. So, unless Father owns a teleporter, there is no way he can pick up the child, transport him 45 minutes away without using a car and be there in under 20 minutes.  When challenged about the fact it would be considered a missed visitation if Father was not at the designated spot for visitation because he went to pick up his son, Mother’s attorney actually laughed.”

   c)Paragraph 16, page 17: “Numerous attempts were made to schedule her deposition to find out what evidence, if any, she had to support her allegations. Mother vigorously resisted giving her deposition….Judge Shipman admonished Mother…”

   d)Paragraph 17, page 17: “Before the deposition began, the first bizarre demand was made. Mother wanted to make her own independent recording of the proceedings which is prohibited in Texas.”

   e)Paragraph 18, page 17: “As the deposition proceeded, Mother refused to answer questions regarding her allegation that the paternal grandparents were dangerous because she alleged answering the questions could put her life in danger…Judge Shipman….[entered] a ruling…and Mother was ordered to answer questions regarding her allegations…The deposition proceeded and Mother continued to make inflammatory allegations…”

   f)Paragraph 19, page 18: “The deposition as a whole is a good example of Mother’s irrational allegations based on unfounded or flat-out make-believe fears and her stubborn refusal to cooperate, or even take seriously, the judicial proceedings that have slowly eroded her credibility with the 16^th District Court over the last two years.”

   g)Other examples include the balance of paragraph 18, 21, 22, 24, 25.

3. In paragraph 22 of her affidavit, Ms Kennedy says: “Upon return of the child to Texas, Father will present the 16^th District Court any medical records required to prove his continued sobriety during his son’s absence and he will seek sanctions against Mother and her attorney for violating the terms of the protective order.” (Emphasis added)

4. Notwithstanding the content of paragraph 22 of her affidavit, Ms Kennedy in paragraph 26 seeks to reassure this Court that no harm will come to the mother if she returns to Texas with the child. She deposes:

   The current order adjudicating custody of [the child] is the Agreed Decree of Divorce (sic) entered August 21, 2014. That order remains in effect until a subsequent order is entered…No action has been taken to punish Mother for violating any court order. No action has been taken on any pending motion in the underlying suit and no action will be taken until Mother has returned to Texas with the child.  

5. I note that Ms Kennedy misstated the name of the order which is actually the “Agreed Final Decree of Divorce” (see page 12 of the Application). Given the partisanship which has been demonstrated by her in her affidavit, unfortunately, this court could not conclude that misstatement was unintentional. In Australia the inclusion of the word “Final” in the wording of an order carries legal significance. The fact that the word is included in the title of the Texas court order suggests it has legal significance in that jurisdiction also.

1. Further, in relation to the reassurance sought to be provided by Ms Kennedy about the liberty of the respondent upon return to Texas, I note that the content of the “Response to Petitioner’s Motion to Recuse” which is replicated on page 394 of the exhibit to the affidavit of Ms H sworn 26 July 2016, suggests to the contrary. That document was filed in the court bearing the name of Mr Allison and the name and signature of Ms Kennedy. In that document, the following appears as part of the support urged for the refusal of the petition which sought the recusal of Judge Shipman from the further hearing:

   Mother has repeatedly acted contemptuously towards the Court. While she may have been shielded from the immediate imposition of punishment for her contempt at the March 10^th hearing, that does not change the fact that her actions constituted contempt toward this court. Notification, in no uncertain terms, that her current course of action toward the Court can and will land her in serious trouble is not the basis for recusal. (Emphasis added)

2. The clear implication from the above set out words contained in the Response to Petitioners Motion to Recuse is that the Texas court, of its own motion, can proceed to punish a party for contempt of court.

3. Another inference which may arise from the last quoted portion of paragraph 26 of Ms Kennedy’s affidavit is that the father, through his legal representatives or otherwise, controls any action which could be taken against the respondent of a punitive nature once she arrives in Texas, or even before her arrival.

4. That position does not appear to be in the mind of the Judge Shipman who will hear any further proceeding involving the respondent and the parenting orders which affect the care of the subject child. So much is clearly evident from the transcript of the proceeding conducted before Judge Sherry Shipman on 10 March 2016. In addressing the respondent’s attorney, Judge Shipman said, “You tell her that the minute her feet hit U.S. soil, she’s going to get arrested, and she’s going to get put in jail.” Those words clearly convey an understanding from the Judge that she has the power, of her own motion, to take action against the respondent.

5. It also needs to be remembered that the subsequent history of the proceedings conducted in the District Court, Denton County, Texas, show that the respondent’s application to have Judge Shipman recuse herself following her words and actions of 10 March 2016 was refused. Further detail of the occurrences of 10 March 2016 in the court of Judge Shipman and other courts of the State of Texas which have heard the proceedings between the father and the respondent post 6 March 2016 are addressed further in these reasons.

6. The applicant further relies on the expert evidence of Mr Allison. This affidavit is relied upon to establish that the father did have “rights of custody” for the purpose of the Australian Regulations. This is a lengthy affidavit and in submissions the applicant referred to specific portions of that affidavit. After identifying those portions of Mr Allison’s evidence to be relied on, the question of the weight to be given to that evidence will need to be considered. The weight considerations in relation to Mr Allison include the following:

   a)He is apparently the principal of the firm retained by the father to act on his behalf in the Family Law dispute.

   b)Mr Allison, in addition to his employee or associate Ms Kennedy, appeared before Judge Sherry Shipman on 10 March 2016 (see page 579 Volume 3 of the exhibit to the affidavit of Ms H sworn 26 July 2016) and made no complaint to that judge about the way in which she dealt with the respondent’s lawyer or the matters of clear pre-judging of the respondent which she entered on the record.

   c)The respondent filed a “Motion to Recuse Judge” in the District Court, 16^th Judicial District, Denton County, Texas on 18 March 2016. A copy of that motion is replicated at page 375 of the exhibit to the affidavit of Ms H sworn 26 July 2016. That document was served on the father’s legal representatives. On 21 March 2016, the father, by his attorney Kip Allison and Karen Kennedy, filed a Response to Petitioner’s Motion to Recuse. It appears the response document was only signed by Karen Kennedy.

   d)The father’s defence to the action is directed to a stated “improper purpose” of the Motion, i.e. the father said the real purpose was to avoid further hearing of the alleged wrongful removal of the child from Texas.

   e)The defence stated, “Judicial remarks during the course of a trial [proceeding] that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Authority for that statement was provided.

   f)The father’s defence also made the following claim: “Mother and her attorney, to the decree (sic) she is found to be complicit in this deception, should be sanctioned and ordered to pay the reasonable and necessary attorney fees incurred as a result of their conduct.”

   g)Mr Allison shows that he is acting as an advocate for the father in the content of his affidavit when read as a whole.

7. There are specific provisions of the affidavit of Mr Allison which the applicant took the Court to in oral submission. Those portions are as follows: paragraphs 11, 12 and 13 as appearing on page 26 of the affidavit of Ms H sworn 26 July 2016; paragraph 18 on page 29 of Ms H’s affidavit; Texas Code 153.073 which appear on page 30; paragraphs 23 to 25 on page 32; paragraph 33 on page 35 and 36 of the affidavit; paragraph 52 on page 42 of the affidavit.

8. In paragraph 11 of Mr Allison’s affidavit he deposes: “A parent with the right to establish the residence of a child is required to give notice to the Court and to the other parent conservator not less than 60 days prior to a change of residence, thus allowing the Court or the parent to intervene and restrict the change.” The footnote to that statement says, “More fully discussed in paragraph 43 and 44.”

9. In paragraph 43 the deponent says, “Mother admits in her Affidavit that she removed the child from the jurisdiction of the Court without giving any notice as required by the Final Decree and the standing orders of Denton County.” In relation to that statement there is a footnote numbered 26. That footnote repeats only part of an order which appears on page 22 of the Divorce Order (page 33 of the Application).

10. Mr Allison has either deliberately or carelessly failed to include in his affidavit the entirety of the order made by the Texas court as part of the Divorce Order granted 21 August 2014. The balance of the order which was omitted from Mr Allison’s affidavit is as follows:

    IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE DATE THAT THE PARTY KNOWS OF THE CHANGE.

    THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OR ACCESS TO A CHILD.

11. On the evidence placed before the Court by the applicant, the father knew of the change of residential address for the respondent at the hearing held before Judge Shipman on 10 March 2016, four days after the respondent’s departure from the USA.  There is no evidence to establish the mother knew she would be departing the USA 60 days before 6 March 2016. The evidence suggests the decision was made by the respondent only a matter of days before 6 March 2016.

12. The transcript of the proceedings on 10 March 2016 suggests that at that date there was no evidence that the respondent was not proposing to return to the USA on the date specified in the return air travel document which she had purchased. It is reasonably clear that it was the father’s case and belief at that time that the respondent intended to change the child’s residential address permanently on 6 March 2016 when the departure from the USA occurred. If the father had believed the respondent was in Australia for the purpose of holidaying with her family and would return to the USA shortly thereafter, it is hard to imagine why he would have brought the matter before the Texas court on 10 March 2016. The irony in this case is that the very act of instituting those proceedings and giving Judge Sherry Shipman the opportunity to voice the words which fell from her on that day may well have been the catalyst which caused the respondent to not return, as she may have done, should she have changed her mind about remaining in Australia (see paragraphs 46 and 47 of the respondent’s affidavit as to her intention to change her residence on 6 March 2016). The evidence shows she had purchased a return passage for herself and the child later in the month of March 2016.

13. The other particular aspect of the Divorce Order which appears, perhaps unusual, is that there is no obligation under the orders to notify any other person or body in the event of a change in the child’s “residence address”. This was a matter submitted by the respondent in oral submission before this Court. It was submitted that the respondent as the person with the sole and exclusive right to determine the primary residence of the child, could have arranged for her mother to care for the child either as a temporary or indefinite basis and not been required by that order to notify anybody.  I note, however, that other obligations she had under the Divorce order to provide the father with information may have been invoked (see page 15 of the Application, “the duty to inform” which the respondent had as “a parent sole managing conservator”).

14. The applicant has not in this hearing sought to establish that the respondent has breached that order of the court (the required notice of change of residence), or if the applicant has sought to so establish that is the case, I find the evidence is insufficient to satisfy the Court that has occurred.

15. Further, in relation to the evidence of Mr Allison on the above topic, reference was made to the “standing orders” of Denton County which have application to the orders made in the parenting and divorce proceedings between the respondent and the father as specified elsewhere in these reasons. Those standing orders were the subject of address before Judge Shipman on 10 March 2016.

16. The standing orders (which are contained in a public record accessible by the internet) have been placed in evidence as an annexure to the affidavit of Ms Mueller sworn 3 August 2016. The standing order which was referred to in the hearing before Judge Shipman on 10 March 2016 was standing order 1.1 (see page 570 of Volume 3 of the exhibit to the affidavit of Ms H). That particular standing order is extracted below in its entirety, and clearly does not apply to the respondent:

    1. NO DISRUPTION OF CHILDREN.  All parties are ORDERED to refrain from doing the following acts concerning any children who are subjects of this cause:

    1.1Removing the children from the State of Texas for the purpose of changing the children's domicile or residence, acting directly or in concert with others, without the written agreement of all parties or an order of this Court; provided, however, that this paragraph shall not prohibit or restrict a party from so removing the children if an active prior court order gives that party the right to designate the children's primary residence outside the State of Texas or without regard to geographic location.

17. The respondent has argued that the Divorce Order of 21 August 2014 did bestow on her the exclusive right to designate the child’s primary residence and that order was without geographic restriction. The respondent’s argument is that, given the order actually made on 21 August 2014, when coupled with the wording of standing order 1.1 as above set out, then in the absence of a specific order to the contrary the respondent must have had the right to relocate the child’s primary residence out of the State of Texas and, if she thought appropriate, out of the USA.

18. The above illustrated approach of Mr Allison, in the provision of his “expert evidence”, highlights why the Court should consider his evidence with caution as to the application of weight.

19. The Full Court in the decision of J & Director-General, Department of Community Services (2007) FLC 93-342 discussed the problem of parties to proceedings under the Regulations relying upon partisan expert legal advice in order to establish relevant provisions of the law of a signatory State where the child was habitually resident.

20. In their judgment in J & Director-General, Department of Community Services, the Full Court (Finn, Holden and Mushin JJ) adopted, as their general approach to a conflict in expert legal advice, that set out in the English judgment of S v H (Abduction: Access Rights) [1998] Fam 49, in which Hale J said, at p 52:

    It is regrettable, to say the least, that an English court is faced with such a conflict between foreign lawyers on a point of such importance.  I bear in mind the observation of Staughton L.J. In re B (A Minor) (Abduction) [1994] 2 F.L.R. 249, 268 that we should resist the temptation to make our own findings as to foreign law and stick to the expert evidence. But where that evidence is in conflict we have to do the best we can.

21. In J & Director-General, Department of Community Services, the Full Court was provided with expert evidence from each of the mother and father’s foreign solicitors, as well as a professor for the mother. At trial, the father’s solicitor’s evidence had been preferred, and on appeal this preference was challenged on the basis, inter alia, that the father’s solicitor had “provided no evidence to the Court of his qualifications and experience”, and that the solicitor’s evidence contained “numerous pejorative statements that demonstrate that he is not an independent expert, but instead an Attorney who has entered the arena as an advocate for the father”.

22. The Full Court set out extensively the opinions of the various experts for examination. Their Honours ultimately accepted that there was merit in the grounds of appeal in relation to the father’s solicitor’s expert evidence, and held that the evidence of the professor ought to have been accepted. The Full Court set out:

    54.Given the lack of evidence of the qualifications of Mr Somerstein and the partisan quality of his report on the one hand, and given on the other hand the evidence available concerning Professor Kurtz’s qualifications (set out at the commencement of his report) and the overall quality of his report (in the sense of depth of reasoning and reliance on authorities), we consider that it was Professor Kurtz’s opinion which should have been accepted by his Honour. In reaching this conclusion we have had regard to the observations of Hale J in S v H (quoted in paragraph 38 above) concerning the approach which an English Court should take when confronted with a conflict in expert evidence in relation to foreign law.

23. What may be drawn from this is that doing “the best we can” requires a weighing of the merits of each opinion individually. Where that exercise gives rise to a conclusion that it would be unsafe to accept in an authoritative way the evidence of any proffered expert evidence on the matter, then the court, in my view, can only look to that part of the evidence which provides restatement of relevant statutes, orders made by courts, and matters such as “standing orders”, which has been the case here.

24. In this case, subject to the exception which I set out later in these reasons, I have reached the conclusion that it would be unsafe to rely upon the legal advice proffered by any of the Texas lawyers engaged by each of the father and the respondent. I will have regard to the statutes, orders, standing orders and such like matters referred to in their evidence, however, in relation to their expressed opinions as to the consequence or legal meaning of same, I find it would be unsafe to rely upon same due to their demonstrated partisan approach.

25. Having so determined it is necessary to determine what evidence gives the court its “best” evidence in order to determine whether the father had “rights of custody” under the law applicable in Texas, and was exercising those rights at a relevant time. It is further relevant to determine whether the father had the right under that law “to determine the place of residence of the child”, which is a requirement under Australian Reg 4(2).

26. To the extent that it is necessary to make findings as to whether the law in Texas and the USA gave the father “rights of custody” under the convention and under the Australian Regulation I propose to have regard to the relevant statutes, orders made by courts, and matters such as “standing orders” which were operative in Texas and the USA on the date of the removal of the child (6 March 2016) and any other relevant date, where there is evidence of those matters presented to this Court.

27. There is an affidavit signed by the father on 28 March 2016 which is attached to the Application (see page 139 of the Application). There is another affidavit by the father expressed to be “Applicant’s Rebuttal to Mother’s Affidavit”. That document is dated 21 July 2016 and commences at page 74 in the affidavit of Ms H sworn on 26 July 2016. In the affidavit of 21 July 2016, the father answered many of the allegations made by the respondent in her affidavit. Some of those matters are referred to later in these reasons.

28. There was no cross-examination of either the father or the respondent. The Court is left therefore to give weight to that part of each of the father’s, the respondent’s, and each other witness’ evidence which appears relevant, credible, reliable and in an acceptable form (i.e. not hearsay or unsupported conclusion).

29. It is part of the applicant’s case, as best I understand it, that whether or not the respondent had the exclusive right, without consultation with the father, to change the residence of the child, she could not do so while there were pending proceedings about the parenting of the child in the Texas court. In relation to this assertion, there is evidence that there was “a proceeding” between the respondent and the father continuing as at 6 March 2016. Whether any such pending proceeding related to the parenting of the child is another matter.

30. In Volume 1 of the exhibit to the affidavit of Ms H sworn on 26 July 2016, at pages 9 to 16, is a printout of a “Register of Actions” published by the Texas court that lists the filings and events between the respondent and the father. On page 13 of Volume 1 there is the following entry, “02/16/2016 Mediated (Settlement) Agreement”. There is a notation next to this entry, I have assumed made by the father’s Texas attorney, stating, “Parties reach mediated settlement agreement giving Father specific visitation; begins with Feb 20^th, March 6^th, March 19^th; Attch 008 – Agreement”.

31. It is difficult to understand what was achieved by the filing of the Mediated Settlement Agreement. The document suggests a formal order engrossing the effect of the Agreement was to be entered in the Texas court with the consent of each party. A document later appearing on page 124 of Volume 1 of the exhibit to Ms H’s affidavit sworn on 26 July 2016, adds support to that supposition. That is a document prepared by the respondent’s attorney titled “Motion to Enter Final Order Based on Mediated Settlement Agreement”. That document shows it was filed on 8 April 2016 at 11.00.47 a.m. The court record of filings shows that document as filed (see page 15 of Volume 1 of the exhibit to Ms H’s affidavit).

32. It may be that the filing of the Mediated Settlement Agreement which was signed on 15 February 2016 and filed in the court the next day, did not formally extinguish all outstanding proceedings between the parties which dealt with parenting, child support and the other topics addressed in the document. It may be that a formal document to that effect was required. However, clearly the parties to the agreement and their attorneys acted as if they understood that the document did bind the parties, as it asserted, as and from the date it was signed. If it did not then there was no order for the father to spend time with the subject child other than that dated 21 August 2014 in relation to which any provision for time had been extinguished by the father’s failure to comply with the drug testing requirements as previously stated in these reasons.

1. Given that the applicant, the respondent and the lawyers in Texas have presented their case on the basis that the terms of the Mediated Settlement Agreement were binding upon the parties on 15 February 2016 I have said I will proceed on the basis that such an assumption was correct. However, flowing from that position the inference must also arise that the agreement had the effect of resolving all outstanding parenting proceedings, child support and property proceedings then existing before the Texas court as the agreement dealt with all of those matters. No reliable evidence is placed before the Court to satisfy this Court such an assumption should not be made.

2. The respondent relied upon the following documents:

   ·Form 2A Answer/Cross Application filed 1 July 2016. Annexed to that document is a copy of the Agreed Final Decree of Divorce dated 21 August 2014 and the Mediated Settlement Agreement dated 15 February 2016.

   ·Exhibit R1, being titled “Amended Answer”. This document identifies the reasons, grounds and defences relied upon by the respondent in opposing the Application.

   ·Exhibit R2, a document titled “Second Amended Counter-petition to Modify Parent-Child Relationship”. This document was served on the respondent on 22 March 2016.

   ·The respondent’s affidavit sworn 29 June 2016.

   ·Affidavit of Paulette Mueller sworn 28 June 2016.

   ·Affidavit of Ms O sworn 1 July 2016.

   ·Affidavit of Paulette Mueller sworn and filed 3 August 2016 pursuant to leave granted on 1 August 2016.

3. Exhibit R2 referred to above is a document served upon the respondent having been filed on behalf of the father. This document is titled “Second Amended Counter-petition to Modify Parent-Child Relationship”. It bears no date of filing, however, it is clearly filed after 6 March 2016 and was served on the respondent’s attorney on 22 March 2016. In this document the father moves the District Court, Denton County, Texas, to make orders which would provide him with the rights and duties of “sole managing conservator”, the role currently held by the respondent. He seeks that the respondent pay him child support, and other orders relative to the parenting of the child. This proceeding is now pending before the Texas court.

4. The respondent’s affidavit sworn 29 June 2016 provided evidence of which the following is considered by the Court to be germane to the identified issues to be determined. The respondent was not required for cross-examination (no criticism intended). Much of her affidavit is not in a form which enables the Court to give it any weight.

5. The respondent is an Australian citizen.

6. The respondent married the father in 2008. At that time the father was serving probation following conviction in 2005. This is conceded.

7. During the parties’ cohabitation there were occasions when the respondent was frightened by the behaviour of the father and she took evasive action to protect herself. She provided the example of locking herself in a bedroom.

8. The child X was born in 2010.

9. In the second half of 2011, the father picked up the respondent and threw her into a wall. She cried.

10. On about 5 December 2011, there was an occasion when the father screamed while conducting a telephone call. He said, “I wanted to beat the shit out of you”. The respondent asked him to stop. He was in a “rage”. The father grabbed the respondent by the upper arms and squeezed them hard which left red marks which later turned into bruises. The respondent locked herself and the child in a bedroom. The respondent was frightened of the father at that time. The respondent travelled to Australia with the child after that incident and stayed with her parents for six months.

11. I note the above evidence cites an occasion of alleged physical violence. In response to that allegation, the applicant relies upon a hand written statement which appears on the bottom of page 36 of the Divorce Order as set out on page 47 of the Application. The handwriting states, “There has been no incident of family violence or child neglect while this action is pending or within 2 years prior to the filing of this cause”. Those words have the hallmark of words which are required to be included in such a document as the Divorce Order, so that some other statutory obligation cast upon the court or the parties is obviated.

12. Such a provision is set out as part of Section 153.004 of the Texas Family Code, which section has the heading “History of Domestic Violence or Sexual Abuse”.  Paragraph (d) of that section provides:

    (d) The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that:

    (1) there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit;…

13. The balance of that provision appearing as paragraph (2) has no application to this case.

14. In July 2013, the father was admitted into rehabilitation. I note there is no issue that the father has suffered from addiction. In his affidavit in reply to the affidavit of the respondent, the father deposed, “I admit that I have struggled with addiction since I was a teenager, but I am clean and sober now and am committed to staying that way.” He admits to experiencing “a cycle of relapse” when in a relationship with the respondent.

15. The respondent annexed to her affidavit a copy of a hand written document given to her by the father, in his handwriting, in which he confirms “spending our familys (sic) money on drugs and other harmful behaviours”, “loosing (sic) my temper and scaring you and [the child] when I’m angry and high”, “Abusing you mentally, emotionally and physically while high.”

16. That evidence must go significantly to refuting the accusations of the father’s counsel, Ms Kennedy, that the respondent has manufactured her evidence of family violence, and a fear she says she has of the father and the possible implications for both herself and the child should the father be in a state of “relapse” into drug use.

17. The father was incarcerated between October 2013 and December 2013.

18. In October 2013 the father said to the respondent, “If you leave me I will kill you, [the child] and kill myself.”

19. On or around 14 February 2014, at a hotel, the father’s behaviour was such that the respondent was frightened. The respondent deposes that she became “scared” of the father and locked herself and the child on one side of the internal door in their room.

20. In the first half of 2014 the father spent some periods of time in gaol. On 11 August 2014 the father commenced participation in a residential rehabilitation facility.

21. On 21 August 2014 the orders were made pronouncing that the Agreed Final Decree of Divorce was granted. Since that time, the father has not spent any unsupervised time with the child.  

22. The respondent sets out her concerns about the father following the Divorce Order. In October 2014 the father told the respondent, “I am not going to go into any treatment facility unless you do as I tell you.” The respondent spoke to persons involved in the rehabilitation of the father. In October 2014 she became aware the father had left a rehabilitation facility. She was “extremely frightened” when she learned that information. She contacted the police. She slept the night in a locked bedroom with the child. On 2 October 2014, the respondent received a text message from the father “OK…when you get here come in and bring pills.” She telephoned him.

23. In October 2014 the respondent says the father commenced proceedings to have the Agreed Final Decree of Divorce set aside. This is a conceded fact. The respondent says “I have been bombarded with legal process ever since. This has caused me an extreme amount of fear and anxiety and I am worried about how I am going to be able to financially take care of [the child] if I have to pay attorney fees.”

24. In October 2014 the father moved his residence to a place three and a half hours’ drive from the respondent’s residence.

25. The father last saw the child in July 2015. It was in a supervised contact visit. The father’s parents last saw the child before August 2014.

26. The Divorce Order entered into in August 2014 required the father to undergo drug testing. He failed to do so and a letter was written by the relevant body to Judge Shipman informing her of the father’s failure. A copy of that letter is annexed to the respondent’s affidavit. That failure of the father to comply with the drug testing provisions of the orders of 21 August 2014 had a consequence under those orders.

27. On 3 February 2016, there was an incident at the child’s school where the respondent’s uncle interposed himself between the father and the respondent.

28. On 15 February 2016 the respondent and the father attended court ordered mediation. The Mediated Settlement Agreement was signed, the respondent says with reservations on her part. During the mediation the father tried to “facetime” with the respondent and she felt intimidated and fearful. I note the father specifically denies this allegation.

29. The respondent deposes that the father failed to comply with the provisions of the signed Mediated Settlement Agreement in that he:

    a)Failed to provide any of the records or other documents or select a drug testing option at any time prior to 6 March 2016 as set out in paragraph 4 of the Agreement. This made the respondent fearful for the safety of the child; and

    b)The father did not “pick up and deliver back” to the respondent the child on any access visit.

30. On 6 March 2016 the respondent travelled to Australia. She did so for the stated reason “to protect [the child] from the risk constituted by his father’s unresolved substance abuse issues and the threats that he has made to me that he would kill me and [the child] and himself.”

31. The respondent is fearful for the physical safety and psychological wellbeing of the child if he is returned to the USA. The respondent is not an American citizen and she may be deported.

32. If the Court orders the child be returned to the USA the respondent will accompany him. She would have no means of support there. She would not be able to afford to engage an attorney and she would not be able to have any form of legal aid. She estimates that she would require US$4,893 per month to support herself and the child.

33. The respondent owes her Texas attorneys US$44,276 and has a quote for a further US$50,000 to continue the Texas litigation.

34. The respondent annexes to her affidavit a copy of the transcript of proceedings before Judge Sherry Shipman conducted on 10 March 2016. The respondent says that having read that transcript, she is convinced she will be arrested immediately on her arrival in Texas and the child given into the care of the father. The respondent’s attempts to have Judge Shipman recuse herself from the further litigation have failed.

35. If the respondent returns to the USA her financial position will be such that she will be unable to support herself. She has depleted all her savings in meeting legal fees and paying mortgage instalments. She receives no child support from the father. She has no car. The father obtained an injunction order from the District Court Texas which restrains the respondent from selling or encumbering the former matrimonial home at P Street, Town Z, Texas, so she has no capacity to sell the asset to obtain funds. The respondent has sole right, title, interest and claim in that property pursuant to the Divorce Order dated 21 August 2014. She has no health insurance for herself or the child. The father has failed to pay the child support and health insurance as required by the Divorce Order.

36. The respondent provided a response to the affidavit of the father sworn 28 March 2016. She repeats evidence which she has set out elsewhere in her affidavit.

37. The evidence of Ms O is contained in her affidavit sworn 1 July 2017. She is a qualified psychologist. She is the treating psychologist for the respondent. She is treating the respondent for symptoms of anxiety and stress. She has had 11 therapeutic sessions with the respondent since 23 March 2016.

38. The respondent relies upon two affidavits of Paulette Mueller, the attorney who had been representing the respondent in the Texas District Court proceeding. The affidavits are sworn 28 June 2016 and 3 August 2016. The applicant objects to the content of the affidavit sworn 28 June 2016 based upon the Evidence Act 1995 (Cth) (“the Evidence Act”). The specific objections were stated in the applicant’s written submissions to be as follows:

    The evidence of Paulette Mueller filed in this court on 30 June 2016 is inadmissible since the rules of evidence apply to the evidence relied upon by the respondent in these proceedings, absent any legislative authorization: Department of Family and Community Services & Svoboda [2012] FamCA 998 at [9] and [26]. The affidavit is hearsay, and assembles multiple conclusive submissions without establishing the basis for those conclusions.

39. In oral submissions, the applicant made clear that reg 29 was relied upon to have all the applicant’s filed and tendered documents accepted into evidence as admissible evidence. However, the applicant submitted the same exception does not apply to any affidavit evidence or document sought to be tendered by or on behalf of the respondent. However, the applicant conceded that the court has a discretion as to the weight to give to the evidence placed before the court by the applicant and thus no significant advantage flows to the applicant should it seek to rely upon hearsay evidence or conclusions expressed where no proper foundation or basis is established to make such conclusions.

40. The applicant does, however, seek to protect the “expert evidence” relied upon by the applicant to prove matters of law in the State from which the child is alleged to have been “wrongfully removed”.

41. The applicant concedes that sub-reg 29(3) is not confined to the material attached to the Application or to any document given in support of the Application. The distinction relied upon by the applicant is that the wording of sub-reg (2) provides that any document “relating to” or “in support of” the Application “is admissible as evidence of the facts stated” therein. Whereas, sub-reg (3) does not contain reference to the Application.

42. Thus, it is conceded by the applicant that the court can receive an affidavit by a witness for the respondent who resides outside of Australia, however, the Evidence Act applies to the content of the affidavit and the court can, and should, rule on any objection raised.

43. With respect to the applicant I accept that is the position, albeit that such a position removes, to a certain extent, the concept of a “level playing field” between the applicant and respondent. In reality, because of the matters set out earlier as to how the court applies its discretion as to the weight to apply to all evidence placed before it, that difference is probably insignificant in this case.

44. Turning then to the content of the affidavits of Ms Mueller, and considering the aspect of weight which the court might be able to give to those parts of the affidavit which are accepted into evidence.

45. The criticism which has been levelled at the applicant’s experts in relation to matters of law in the State of Texas, relevant to the determination required in this case, is equally applicable to Ms Mueller when understanding that she is the attorney who had represented the respondent in proceedings in Texas between the father and the respondent this year. Ms Mueller did, however, take a stand against the judicial behaviour of Judge Shipman and attempted to convince another judge of the District Court of that County, that Judge Shipman should be required to stand down from the further conduct of any proceeding between the father and the respondent.

46. A somewhat surprising aspect of this case and the consideration of the objection to the affidavit of Ms Mueller sworn 28 June 2016, is that her affidavit has been the subject of a responding affidavit sworn on 20 July 2016 by both Kip Allison and Karen Kennedy as joint deponents (see page 44 of the affidavit of Ms H sworn 26 July 2016). This affidavit is the strongest example of advocacy on the part of the father’s attorneys. The affidavit sets out verbatim portions of the sworn evidence of Ms Mueller. As such, reg 29 operates to admit to evidence those parts of Ms Mueller’s affidavit which are otherwise objected to by the applicant. That, however, does not overcome the court’s obligation to apply appropriate weight to that evidence.

47. Where in the affidavit of Mr Allison and Ms Kennedy, referred to above, there is a statement of fact or law attributed to Ms Mueller and which is agreed to by the father’s lawyers, such a statement, in the absence of any other particular circumstance, can be relied upon in assisting the Court to determine whether the father had rights of custody under the Texas/USA law and whether he was exercising those rights at a relevant time. The agreed evidence as to facts and law may also be given significant weight when determining other aspects necessary to reach a conclusion and determination in this case.

48. As can be seen, there is very little in the referred to affidavits of the applicant’s expert witnesses, which show agreement in relation to the “expert evidence” of Ms Mueller and which impact upon the determination which this Court needs to make. This simply serves to emphasise the point that it would be dangerous to rely upon the “expert evidence” proffered by either the applicant or the respondent to the extent that evidence professes to provide opinion as to the effect of any statute, standing order, or code operating in Texas and relevant to this dispute, or any ruling made in the Texas court.

49. With those matters in mind, the following parts of Ms Mueller’s evidence can be the subject of some weight in this determination.

50. Ms Mueller has legal qualification to practice law in Texas, about which there is clearly no contest. She appeared before the District Court of that State as the transcript of proceedings and other court documents relied upon by the applicant clearly show.

51. There can be no objection to the documents annexed to her affidavit sworn 28 June 2016, which are copies of documents filed by either the father or the respondent in the court in Texas. Many are repetitive of the documents that the applicant has tendered and therefore are of no further probative value. I will, however, read those parts of the affidavit which identify the documents attached, without giving weight to speculative conclusion about the purpose ascribed to the father in commencing or taking any particular action.

52. There are aspects of the evidence of the deponent which are supportive of the applicant’s case. As such, I should give those portions weight. The evidence of the contact the father had with the child in 2015 is such evidence (I note, however, that Mr Allison answers that assertion, with objection, by saying such matters cannot be within the knowledge of Ms Mueller). The emails passing between the respondent and the father relative to those sessions of contact should also be given weight.

53. Ms Mueller, in her affidavit sworn 28 June 2016, attaches a copy of the Texas Legislation. This is a public document and uncontroversial in this proceeding. At annexure “J”, she attaches a copy of section 153.132 of the Texas Family Code. That document is important to the determination this Court is to make. Annexure “E” to Ms Mueller’s affidavit is a copy of particular sections of the Texas Family Code which the deponent refers to in the affidavit. Those provisions are, on their face, of potential relevance.

54. One of the documents referred to in the transcript of proceedings before Judge Shipman on 10 March 2016 is the “Denton County Standing Order Regarding Children, Property and Conduct of the Parties” (“the standing orders”). This is, as best this Court can determine from that proceeding (and as specifically stated on the document), a set of standard orders which apply to all orders of the District Court of that County in Texas, where such order has not been specifically negatived by another contradicting order made by the court. The respondent relies on order 1.1 of the standing orders as it appears on page 153 of Ms Mueller’s affidavit sworn 28 June 2016. That section has relevance and is as follows:

    1.      NO DISRUPTION OF CHILDREN.  All parties are ORDERED to       refrain from doing the following acts concerning any children who     are subjects of this cause:

    1.1Removing the children from the State of Texas for the purpose of changing the children's domicile or residence, acting directly or in concert with others, without the written agreement  of all parties or an order of this Court; provided, however, that this paragraph shall not prohibit or restrict a party from so removing the children if an active prior court order gives the right to designate the children's primary residence outside the State of Texas or without regard to geographic location.

1. The first thing to note when considering this question is that the Convention and the Regulations distinguish between “rights of custody” and “rights of access”. A right of access does not amount to a right of custody under the Regulations. In MW v Director-General, Department of Community Services (2008) 244 ALR 205, the majority of the High Court, made up of Gummow, Heydon and Crennan JJ, stated:

   84The Authority fails in its reliance upon the Access Order as the source of custodial rights of the father because its argument does not adequately observe the distinction drawn in the Regulations and in the Convention between rights of custody and those of access. The importance of the preservation of the distinction in construing the Convention was, with respect, correctly emphasised by the House of Lords in In re Re D (A Child) (Abduction:  Rights of Custody) [2007] 1 AC 619 at 635.. Reference was made by the Authority to the "frustration" of the rights of access given the father pursuant to the Access Order, by removal of the child from New Zealand. But that description of the events that happened does not translate the rights of the father to a right of determination of the place of residence of the child and thus to a right of custody.

2. The initial order of the court, the Agreed Final Decree of Divorce, gave the father “rights of access” in the event of the respondent agreeing to same. The precise wording of that order is as follows:

   IT IS ORDERED that [Mr A’s] access to the child shall be restricted and [Mr A] may have possession of the child at times, for such durations, and under such circumstances as may be determined by [Ms Abraham] to be in the best interest of [the child], M.R.A.” (see page 18 of the Application).

3. That order appears under the heading “Possession and Access”. The right of the father to access to the child and/or actual physical possession of the child was not created out of his declared appointment as “sole parent possessory conservator”. The rights arising from that appointment are found on pages 14 and 15 of the Application.

4. The father’s right to possession of the child arise in the Divorce Order of 21 August 2014 only from the operation of the provisions stated in the order itself (see pages 18 and following of the Application). That order further specifically orders that the father not remove the child from the respondent’s possession unless there be a prior written agreement or in the case of an emergency. That order is stated as applying to each party.

5. As a consequence of the above, it is clear to see that as from 21 August 2014, until at least the Mediated Settlement Agreement was entered into by the respondent and the father on 15 February 2016, the father’s rights in relation to any aspect of the care of the child were severely limited. The evidence from the respondent is that the father has had no unsupervised time with the child (access). He last had supervised time with the child on 25 July 2015. He was due to have a period of supervised time with the child on 17 June 2015. The father did not attend.

6. In September 2015 the Texas court was notified that the father was not attending for court ordered random drug screening testing. That failure triggered a suspension of any access ordered at that time.

7. The evidence of the respondent is unclear as to how many sessions of supervised access the father had with the child between 21 August 2014 and the Mediated Settlement Agreement which was entered into on 15 February 2016.

8. The Mediated Settlement Agreement entered into on 15 February 2016 is a relatively compact document. It has handwriting forming part of the document, which although somewhat difficult in parts to decipher, generally is able to be understood by the Court and no issue is raised that either party wrongly interpreted the operation of the agreement because of the handwritten portions.

9. The aspects of the Mediated Settlement Agreement which are clear and relevant to this determination include the following:

   a)The agreement was intended to resolve all outstanding issues pending in the District Court, Denton County.

   b)Part of the agreement relates to the father’s implementation of possession rights and duties. This provided for the father to have specific periods of supervised access to the child subject to preconditions to be satisfied by the father.

   c)The preconditions were stated under a heading “Substance Abuse rehabilitation/counselling”. The father was to choose one of two options available to him to deal with the requirements of “Drug/Alcohol Testing”. It was clear from the document as a whole that the father was required to comply with the provisions as to “Drug/Alcohol Testing” as a condition of the supervised access he was to have with the child.

   d)The supervision requirement was to operate until the commencement of what was described as “Phase 2” and “assuming the father misses no more than 2 Sunday visits…and he passes all drug tests”.

   e)There were a number of miscellaneous provisions of the agreement including the following: “Injunction: Ordering an injunction against Father from having any alcohol or drugs (other than used strictly as prescribed by a physician) at anytime (sic).” The father was also to sign a release form so the mother could obtain copies of his mental health records. 

10. The Mediated Settlement Agreement made provision for face to face time for the father and the child to commence in February 2016 subject to the father complying with the requirements of drug testing and the provision of mental health and medical records. It is the respondent’s evidence that the father failed to comply with the conditions of drug testing prior to her departure on 6 March 2016.

11. One of the issues which seemed to emerge post the signing of the Mediated Settlement Agreement was that the father required the respondent to sign a confidentiality agreement before he would authorise the provision to her of either his drug testing results or his mental health records. Where that issue had progressed to prior to 6 March 2016 is unclear. There also appeared to be an issue about the practicality of the orders for the father to spend time with the child if he was required to collect the child from and return the child to the respondent at each end of the time he was to spend with the child.

12. In any event the evidence confirms that between 15 February 2016 and 6 March 2016 the father did not spend time with the child.

13. Evidence has been provided by the father and his attorneys as to his endeavours to ready himself for face to face supervised time with the child post 15 February 2016. He had not been able to achieve the first session of access with the child before the respondent left the USA. However, I consider there is sufficient evidence to satisfy the Court that if the respondent had not left the USA with the child on 6 March 2016 the father would have, within a reasonably short period of time, achieved a position where he was able to comply with all the conditions required by the Mediated Settlement Agreement and present himself for at least the first scheduled period of supervised access. To that end, the Court must conclude that the father would probably have managed to exercise his access to the child had the respondent not removed the child from the USA.

14. Having made that finding in favour of the father, I reiterate that the finding relates to the exercise of “rights of access”, and not of “rights of custody”.

15. The conclusion must be that as reg 4 requires the ability to determine where the child resides (place of residence) as a indicia of a person having a “right of custody” nothing in the “Mediated Settlement Agreement” gave the father such a right and therefore he could not have been exercising such rights at the time the child was removed from the USA.

The Grave Risk defence of the respondent

1. It is the respondent’s case that the father has had very little time with the child since 21 August 2014, at which time the child was four and a half years of age. The father concedes that he has not had access to the child since July 2015. He attributes the cause of such circumstance to the act of unreasonable refusal on the part of the respondent. The child is now six and a half years of age.

2. The father provided an affidavit of rebuttal to the affidavit evidence of the respondent. That affidavit is annexed to the affidavit of Ms H sworn 26 July 2016 and commences on page 74 of that affidavit. The father largely takes issue with all statements of fact in the respondent’s affidavit. He claims to have complied with all the requirements of the respondent during 2015 to enable him to exercise access to the child, which he continues to describe as his custody right. He answers many of the statements of fact attributed to the respondent by saying, in summary, that the respondent has since August 2014 actively sought to frustrate his attempts to see the child. At the very least, there is an underlying complaint that the respondent has sought to avoid any contact with him as would be necessary to implement his access to the child.

3. The respondent’s written submissions set out a submission on the impact of a return order upon the child and asserts such an order would satisfy the Court that the “grave risk” defence referred to in reg 16(3)(b) is satisfied. I set out hereunder a more detailed summary of the respondent’s submission on the aspect of “grave risk”.

4. As a further reason why the child should not be returned to the USA, the respondent says that to do so would create a grave risk that such return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation. The circumstances which would create that grave risk, the respondent claims, include the following:

   a)The child could not be returned to the father because the father is not prepared to enter Australia. (I note it is asserted by the respondent that the father is prepared to arrive at the Sydney Airport yet not formally enter Australia by seeking to pass the immigration/boarder control line. The inference the respondent seeks to raise is that the father would not be permitted to enter Australia for some reason.)(If that be the true position I do not consider it is particularly relevant to the defence the respondent raises);

   b)The child could only return to Texas with the respondent;

   c)The respondent does not have the resources to support herself in Texas;

   d)The respondent fears incarceration upon her return to Texas;

   e)Any separation from the respondent, whether the respondent is incarcerated or not, would place the child in an intolerable situation.

5. The respondent submits that the post departure proceedings in the Texas courts only have relevance in these proceedings by raising concern about what might befall the respondent if she were to return to Texas as the applicant seeks.

6. In support of this defence under reg 16(b)(2), the respondent submits:

   a)The respondent has always been the primary carer of the child now aged six years;

   b)It would not be appropriate to separate the child from his carer for any extended period of time. (This submission is essentially to the effect that such an action would amount to cruelty);

   c)The respondent is assured of being arrested and detained and thereby separated from the child upon arrival in Texas. (See the words which fell from Judge Shipman on 10 March 2016);

   d)The respondent is unable to support herself and consequently the child, at a sustainable level in Texas;

   e)The respondent is not a citizen of the USA and will therefore be subject to the sufferance of that country as to her ability to remain there.

7. The respondent relies upon the High Court decision in DP v Commonwealth Central Authority (2001) 206 CLR 401.

8. In relation to the reported words of Judge Shipman of 10 March 2016, that she will be having the respondent arrested and gaoled as soon as she sets foot on US soil, the respondent says Judge Shipman has also made clear that the child will be placed with the father in an unsupervised situation.  The words “and he better bring a little suitcase too”, in reference to her description of “the kid”, make such an outcome probable and believable. Such is a foundation for the respondent’s stated defence. The respondent further emphasises the resolve of Judge Shipman to make good her threat because the Judge is aware of the father’s shortcomings as a parent having described him, on the record, as a “drug addict”.

9. The respondent addressed the apparent distinction at law between the approach of the Australian courts and that which applies in the State of Texas as to “apprehended bias” and prejudgement in a judicial officer hearing a particular case, and the obligation to recuse where such “apprehended bias” and “prejudgement” is established. The respondent set out a direct quote from the High Court decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at pages 344-349, in particular the following extract:

   6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. (Footnotes omitted)

10. It is submitted by the respondent that the words which fell from Judge Shipman (and which have been identified above), would comfortably meet the test as giving rise to a requirement for recusal, and nor would Judge Shipman fit the description of demonstrating “independence or impartiality”. The respondent submits that it is reasonable to conclude that Judge Shipman “would not bring an unbiased mind to the question of where [the child] would live and whether or not [the respondent] should go to jail”.

11. The respondent says that the Central Authority was given the opportunity (upon notice from this Court) to place evidence before the Court to assure the Court that the respondent would not be arrested immediately upon arrival in the USA and have the child removed from her care. The assurance required by the Court was that no action in relation to the liberty of the respondent, or her care of the child, would be taken until a judge of a court within the jurisdiction had an opportunity to consider what orders should be made having regard to the best interests of the child (at least as a major part of any such hearing). The submission of the respondent is that assurances from the father’s attorneys go nowhere near meeting the required evidence to satisfy this Court.

12. I pause here to note the reference in the submission from the respondent, as to the Central Authority having been given the opportunity (upon notice from this Court) to place evidence before the Court, is a reference to a matter raised by me with the applicant on 26 May 2016, a date prior to the hearing date. On that day, the applicant’s legal representatives appeared and the respondent appeared in person with her legal representatives. I raised with the applicant the circumstances of a case heard by this Court earlier this year where an order was made for return of children to the USA, specifically the State of Michigan. In that case, despite orders being made in the USA court pursuant to conditions precedent to the return of the mother and children, the mother was arrested on arrival and the children placed into the custody of the father on that same day without any opportunity for the mother to be heard and without any apparent consideration of the best interests of the children in making that order. Having raised the circumstance of that case in open court, I asked that the applicant consider obtaining evidence from relevant police and State authorities in the relevant State (Texas) and such other evidence to satisfy this Court that if an order was made for return of the subject child to the USA, the child and the respondent would not have a similar experience as occurred in the case referred to.

13. The respondent submits that there is a real basis to the respondent’s fears that the child will be immediately placed with the father upon arrival in the USA. The respondent refers to the transcript of 10 March 2016 evidencing the words of Judge Shipman, where she said to the respondent’s lawyer:

    “Your client better be glad that mediated settlement exists. Because if it didn’t, I would say that he can have unsupervised visitation of the kid as soon as he gets back to the United States to go live with him.”

14. I note the above words were delivered by Judge Shipman in an unsolicited statement.

15. The above passage is also relied upon as a basis upon which the Judge should recuse herself from any further hearing, and yet refuses to do so and has been supported in that position by determinations of another judge of the same court, and also possibly the Court of Appeal. I say possibly because no reasons which fell from the Court of Appeal were provided to this Court.

16. The respondent submits that there is no evidence to establish how long it might take for the Texas courts to determine the parenting issues and other financial issues the father now seeks to re-visit. The one source of possible financial relief for the respondent has now been closed off by the Texas court making an order which prevents the respondent from dealing with the property which was hers under the Agreed Final Decree of Divorce of 21 August 2014. Thus, there are significant practical aspects as to the respondent’s ability to remain in the USA due to immigration restraints and lack of financial support. There is no evidence that the father has the capacity to provide any support for the respondent or the child for even a short period, let alone a sustained period of time.

17. The respondent lists a number of aspects of a return order which would cause hardship upon the respondent and the child and thereby place the child in an intolerable situation. Not the least of these matters is the evidence of the respondent’s current psychological state and separation from her therapist.

18. The evidence of the respondent, about which there is little dispute on this point, established that following the birth of the child, the respondent was in Australia with the child (and not with the father) from the end of 2011 or early 2012 for a period of six months. She was again in Australia for two months in 2013.

19. Between October 2013 and December 2013, the father was incarcerated. He was also incarcerated for some periods in 2014. The father says that occurred on two occasions. The father does not cavil with the respondent’s assertions that he had a serious drug addiction.

20. Sixty days before the Divorce Order was made on 21 August 2014, the respondent filed for Divorce and ancillary orders including parenting orders (see page 12 of the Application). It is unclear on the evidence whether the father and the respondent were cohabiting during this period.

21. The above facts support a conclusion that the respondent has very likely been the child’s primary carer for the whole of his six and a half years of life, and has been his sole parent for the majority of the last two years. There is no evidence to allow the Court to determine how the child would cope if separated from his mother for any time, let alone overnight or for a series of nights. This is important information to have in order to consider this grave risk defence, as the respondent contends there is a high probability that if she returns to the USA with the child, she will be arrested at the instigation of Judge Shipman and summarily incarcerated until Judge Shipman decides that she has been there long enough.

1. In relation to this last point, the matter to be determined by this Court is whether the respondent’s fear of arrest and imprisonment are well founded and whether such occurrence would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.

2. At the commencement of these reasons, I said “The evidence in this case includes an insight into the administration of justice in the State of Texas, USA. The evidence points up a significant contrast with what might be experienced in a court proceeding in Australia.” In order to provide context to that statement I here set out some of the transcript from the hearing before Judge Shipman in the District Court, Denton County, Texas on 10 March 2016. Some segments of this transcript are cited earlier in these reasons. In this segment of transcript, Ms Mueller is the lawyer representing the respondent, the Court is Judge Sherry Shipman, and Ms Kennedy is the lawyer for the father.

   Ms Mueller:     If they want information, there is a mechanism in place to ask for information. We received no requests. What we received is this emergency motion for access. Let me speak directly to the legal grounds for the motion, and that is, there’s no geographical restriction. Number two, the standing order does not apply and does not require her to stay here. Number three, there is a –

   The Court:     Wait a minute. The standing order says you shall not remove children from the jurisdiction of the Court.

   Ms Mueller:   Provided, however, that this paragraph shall not prohibit or restrict a party from so removing the children if an active prior Court order gives that party the right to designate the child’s primary residence outside the State of Texas or without regard to geographic location. And that’s repeated in paragraphs 1.2 and 1.4 of the standing order of Denton County. Would you like a copy?

   Ms Kennedy: 1.3 also says, no hiding or secreting of the child from the other party.

   The Court:     I am going to tell you this. Ms. A— came into this court with every benefit of the doubt on her side. Mr. A— is a drug addict.

   Ms Mueller: I’m not finished with my argument. I’m not finished with my argument.

   The Court:     Well, I’m not finished. Let me finish. You tell her that the minute her feet hit U.S. soil, she’s going to get arrested, and she’s going to get put in jail. I am done with her, and I’m done with her shenanigans. She has no cause to take this child to another country for any reason whatsoever. And you can make that argument until the cows come home. It’s not going to fly in this court. You can take it to the Court of Appeals if you think that’s what you want to do.

   She has ignored my Court orders. I have ordered, and I have set in place very specific access provisions that protect the child. And this Court has gone above and beyond. Y’all have been in here I don’t know how many times on unscheduled motions in front of me. And I have done everything I possibly can to protect that child and have continued to do so. And her actions are not justified under any circumstances, under any rule of law that I’m aware of.

   And she is flaunting the law. I don’t give a crap if she’s a citizen of Australia or China. She doesn’t have any right to remove the child from the jurisdiction of this Court until I say that she can. And there are provisions under the Hague Convention that can get that child back here whether she decides to come back here or not.

   Ms Mueller:   I understand, Your Honor. And I apologize if you find me offensive this morning, but I have a client who has threatened to take me to the State Bar. And I beg you to please let –

   The Court:     Well, there are ways that you –

   Ms Mueller:   -- me make my argument.

   The Court: -- can deal with that. Do not argue with me. That is not acceptable, and you can be held in contempt of this Court right now for that. I have had it with you and your client.

   Ms Mueller:   My apologizes.(sic)

   The Court:     There are ways you can deal with that. It is called a motion to withdraw. If your client is not taking your advice and not following what you tell her to do, then you withdraw, as an attorney with any common sense would do.

   Ms Mueller:   And I have filed a motion to withdraw, and opposing counsel objects. He doesn’t want me out of this case.

   The Court: I don’t really care what he objects to. If you are a lawyer, and you have a law license, and you’re concerned that you have a client who is going to file a grievance against you or do whatever, you bring that to this Court. I am not in a habit of making lawyers stay on cases when their client is threatening to grieve them.

   In fact, I quite regularly let people off cases whenever it is to the detriment of the entire case because I don’t do that. I used to practice law myself, and I didn’t want to get a grievance filed against me. I’m not going to force you to do that. But to the extent that you continue to facilitate your client’s contempt of this Court, then you put yourself in a very bad position, Ms Mueller.

   Ms Mueller:   Your Honor, I would never, never –

   The Court:     So it is your testimony this morning that you had no idea that your client was going to abscond to Australia with this child?

   Ms Mueller:   Yes, ma’am.

   The Court:      You had no knowledge of that whatsoever?

   Ms Mueller:   No, ma’am.

   The Court:     Is it, in fact, true that she is in Australia with this child right now?

   Ms Mueller:   To the best of my knowledge, yes, she is in Australia.

   […]

   The Court:      I’ve used this once, I’m about to use it again

   Ms Kennedy: None of that has anything to do with this.

   The Court:     Your client better be glad that mediated settlement exists. Because if it didn’t, I would say that he can have unsupervised visitation of the kid as soon as he gets back to the United States to go live with him. I mean, she is doing nothing but trying to obstruct the Court’s authority at this point. She’s in contempt of Court right now. Tell me when is it she’s coming back to the United States.

   Ms Mueller:   The information that’s been given me is she has a return ticket for the 19^th, which is Saturday, the day before the next scheduled possession.

   The Court:     So that’s a week from?

   Ms Mueller:   Tomorrow.

   The Court:     Saturday.

   Ms Kennedy: Week from Saturday. And if you think, it’s a 24-hour flight. And he’s coming back on Saturday. And so 9:00 a.m. he’s going to be delivered to where?

   The Court:      I tell you what’s going to happen. And I’m starting a murder trial that Monday morning. I want y’all in my courtroom at 8 o’clock Monday morning kid in hand. We’re going to get this mess straightened out. And he better bring a little suitcase too. All right.

3. What makes the circumstance in which this Court finds itself more troubling is that an application made to have Judge Shipman recuse herself or to have her prohibited from further hearing of the case between the father and the respondent after 10 March 2016 was refused. An application to a higher court in the Texas judicial structure for a writ of Mandamus, sought against Judge Shipman, failed. An appeal against the orders made by Judge Shipman on 24 March 2016 failed. Thus, it is the case that the display of judicial behaviour complained of by the respondent as giving rise to an apprehension of bias and prejudgement of her case has been found by a judge of the same court as Judge Shipman and judges of the Texas Supreme Court to be no ground to prohibit Judge Shipman from continuing to hear litigation between the respondent and the father relative to parenting and the care of their child or, it appears, any other dispute.

4. In the submission provided by the respondent reference is made to the Australian High Court case of Ebner. That case states the test for recusal of a judge on the ground of “apprehended bias”. That is the test the Australian courts and Government, in the sense that no legislation has been enacted to overrule that decision, embrace for the benefit and protection of their citizens litigating in this country. That test, if applied to the words which fell from Judge Shipman on 10 March 2016, would comfortably lead to a required recusal of that Judge from hearing any further the current proceeding in the Denton District Court between the father and the respondent.

5. The reaction of Ms Mueller, as apparent from the transcript above recited, to the manner in which Judge Shipman was addressing her, demonstrated clearly that she found same as confronting and possibly intimidating.

6. Some of the statements which flowed from Judge Shipman appeared to be made in a vacuum of knowledge of the circumstances of the respondent and father, notwithstanding that Judge Shipman had been significantly involved in the litigation between them prior to that time and since August 2014. An example of that is found in her words: “[the respondent] She has no cause to take this child to another country for any reason whatsoever.” Such a statement cannot be correct. The respondent was an Australian citizen. During the relationship with the father she took the child to Australia on two separate occasions, unopposed by the father. The respondent has family in Australia. Does Judge Shipman mean to prevent a parent and child holidaying in Australia to renew family ties? That, on its face, seems to be one legitimate reason for the respondent to take the child to Australia and there are probably more such reasons.

7. This circumstance in which the respondent now finds herself, of having to return to Texas and face Judge Shipman and predictable incarceration with the child going into the custody of the father, a person described by Judge Shipman as “a drug addict”, squarely raises the defence of “grave risk”.

8. The real threat of a separation of the child from the respondent due to the incarceration of the respondent as predicted by Judge Shipman is enough in my view, given the history of the care of the child during his lifetime, to satisfy the court there would be a real risk of the child suffering or being exposed to psychological harm and/or be placed in an intolerable situation.

9. It falls to the respondent to bear the burden of establishing the defence. One might say therefore that the respondent should have put before the Court clear evidence from an acceptable expert that the removal of the child from the respondent’s care would expose the child to a grave risk of psychological harm. However, in this case, the harm which is feared includes the placing of the child with the father and the respondent has no ability currently to marshal that evidence as it would require a professional assessment of the relationship between the child and the father as well as an assessment of the ability of the child to tolerate any separation from the respondent.

10. In the ordinary course of hearing a parenting application in this Court in relation to a child of six and a half years, in the absence of agreement between the parents, this Court would not ordinarily be seen to place a child with a father for the purpose of living with him unsupervised, where there is opposition from the child’s traditional carer, and in a circumstance where the father had the history of drug addiction together with there being no professional assessment of the child’s relationship with the father and the father’s parenting capacity. Such a move would require the court to receive compelling expert evidence as to the impact upon the child of such a move and an assessment of the risks which might attend such a placement. It is against that experience of this Court’s concern for the overriding welfare of the child that serious concern must be harboured for the welfare of the child, should he be removed from the respondent immediately upon his arrival in the USA and placed in the care of his father.

11. In addition to the above matters, while still considering the reg 16(3)(b) defence, I accept that the child would be placed in an intolerable situation if returned because the respondent will not have the resources to support the child while in the USA. I accept that she will not have access to the only significant asset she has in the USA, namely her residence, following orders made by the Texas court. I accept she will not have employment, at least not immediately upon her return. It is also the case that if she has employment and the care of the child at that same time, then she will have to have access to out of school care for the child.

12. The respondent has said that she has depleted all her savings in paying legal fees related to the Texas litigation and she has a significant debt still to pay to her current attorneys.

13. In such circumstances, in the absence of the father fulfilling “conditions of return”, which might be ordered by this Court, the child would be placed in a situation which would be intolerable.

14. Having regard to all the above matters and the available evidence about the history of the care of the child since his birth, I reach the conclusion that on the balance of probabilities, the child would be placed in an intolerable situation if a return order was made. Further I find on the balance of probabilities the child would be exposed to a grave risk of psychological harm if a return order was made.

15. Notwithstanding the last mentioned findings, the court has discretion to make a return order. The circumstance in which such order is usually made is one where the court imposes conditions to be met before the child is required to be returned. The conditions, if complied with, remedy the areas of concern for the court which have satisfied the “grave risk” defence.

16. The ability of the court to impose conditions sufficient to deal with all the circumstances which would create an intolerable situation for the child in this case is questionable and I will address that matter hereafter.

17. The above facts raise for consideration the defence specified in reg 16(3)(d) as follows: “the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms”.

18. The above defence arises from the wording of Article 20 of the Convention, which is as follows:

    Article 20

    The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

19. This ground was not argued before me in this case and therefore cannot be taken into consideration in this determination. I raise it purely for the purpose of enlivening the possibility of the Article being considered in any proceeding which might have a similar fact circumstance in the future.

Should the Court make a return order notwithstanding it being satisfied the respondent has made out the defence in Regulation 16(3)(b)?

1. In this matter, the first aspect of the defence proffered by the respondent under reg 16(3)(b) involves the probability that the respondent would be arrested and incarcerated immediately upon arrival in the USA. Such a situation would see the child separated from his primary caretaker. To the extent that it may be that he could accompany his mother to gaol, I find that such a situation itself would be intolerable for the child. There is no evidence about that possibility or the circumstances of the prison where the respondent may be incarcerated.

2. In order to frame a condition precedent to negate such an intolerable situation, it would be necessary for the pre-condition to interfere in the administration of the Denton District Court. I consider such a pre-condition to be entirely outside the scope of being “acceptable” under the Regulations, the Convention, or the comity which exists between courts of different countries.

3. As a consequence of the determination that no acceptable condition could be imposed to negate the intolerable situation the child would face if a return order is made, no such requirement for conditions to be complied with can be made.

4. The consideration of whether to make an order for return notwithstanding the court is satisfied that a defence has been made out arises from the discretion to do so created by the wording of the Regulations. Regulation 16(3) uses the words “A court may refuse to make an order”. Such words create the discretion.

5. Decisions made by the Full Court of the Family Court of Australia establish that this Court can have regard to the best interests of the subject child as one of the matters to be taken into account when exercising that discretion. It cannot be an overriding consideration per se. (See De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640, particularly the judgment of Kirby J at page 684).

6. As one of the matters to be considered therefore, I determine it would not be in the best interests of the child to make a return order because it does not seem that matters immediately germane to his best interests would be considered by Judge Shipman before making orders which she has given notice she intends to make.

7. Following from the above determination, I find the defence established and determine the Court should not make the return order irrespective of such finding.

8. The order of the Court will be the dismissal of the Application.

I certify that the preceding three hundred and ninety-four (394) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 23 September 2016.

Associate: 

Date:   23 September 2016