Department of Family and Community Services and Reiner
[2013] FamCA 469
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & REINER | [2013] FamCA 469 |
| FAMILY LAW – CHILD ABDUCTION – Hague application – whether a return order should not be made because of grave risk of harm or placing the children in an intolerable situation – Where the abducting parent’s ability to return to the requesting country is uncertain |
| Family Law Act 1975 (Cth) Regulations 14(1)(vi); 14(1)(b); 16(1); 16(3)(b) |
| Gsponer v Johnstone (1988)12 Fam LR 755 Rayo Jabbaz v. Rolim Mouammar 226 DLR (4th) 494 |
| APPLICANT: | Director-General, Department of Family and Community Services |
| RESPONDENT: | Ms Reiner |
| FILE NUMBER: | SYC | 1323 | of | 2013 |
| DATE DELIVERED: | 17 June 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 28 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tockar |
| SOLICITOR FOR THE APPLICANT: | Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Ms Boyle |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW |
Orders
By 17 August 2013 the children M Reiner (female) born … February 2006 (“M”) and N Reiner (female) born … February 2009 (“N”) return to the United Kingdom accompanied by their mother Ms Reiner born … 1975 (“the mother”).
The mother book and pay for the airline tickets for herself and the said children and provide an itinerary for the flights to the legal representative for the Central Authority no later than 5 days prior to the date of intended travel.
The Australian Federal Police permit the mother, M and N, to depart Australia after being presented with the children’s flight details, and a sealed copy of these Orders by the legal representative of the Central Authority.
Alternatively to Orders 1, 2 and 3 above, and in the event that the mother is not permitted to return to the United Kingdom as contemplated in Order 1 above or in the event of her electing not to return to the United Kingdom as contemplated in Order 1 above, it is Ordered that:
4.1.The children M and N return to the United Kingdom accompanied by their father Mr Reiner born … 1953 (“the father”), by no later 17 September 2013;
4.2.The mother book and pay for the airline tickets for M and N and provide an itinerary for the flights to the legal representative for the Central Authority and their father, no later than 14 days before the intended travel;
4.3.The Australian Federal Police permit M and N to depart Australia with the father after being presented with the children’s flight details, and a sealed copy of his Orders by the legal representative of the Central Authority;
4.4.Until further Order of the Court having relevant jurisdiction in the United Kingdom, M and N are to live with the father and the mother shall be entitled to have reasonable contact with them.
Following the departure of M and N from the Commonwealth of Australia, the Australian Federal Police delete the names of the following persons from the Airport Watch List
5.1.4.1 M Reiner (female) born … February 2006; and
5.2.4.2 N Reiner (female) born … February 2009; and
5.3.4.3 Ms Reiner born … 1975
Orders 1, 2, 3, 4 of 19 March 2013, be discharged, and it is noted that:
6.1.in the event of the mother returning to the United Kingdom as contemplated in Order 1 above, she is permitted to obtain from this court the passports relating to herself and M and N, to permit her to leave the country with the said children;
6.2.in the event of the mother not returning to the United Kingdom as contemplated in Order 1 above, the father shall obtain the children’s the passports from the court and the mother is to provide the father with any tickets relating to M and N, to permit them to leave the country with the father;
6.3.in the event of the mother not returning to the United Kingdom as contemplated in Order 1 above and in the event of her failing, refusing or neglecting to purchase the air tickets for M and N as contemplated in Order 4.2 above, the father shall be at liberty to purchase the tickets and to claim the cost thereof from the mother;
6.4.in the event of the children returning to the United Kingdom with the father as contemplated in Order 4.1 above, the father shall book and pay for his own airline tickets
As an alternative to orders 8 to 10 being made, pursuant to Regulations 14(1)(a)(vi) and 14(1)(b) Family Law (Child Abduction Convention) Regulations 1986, the father is granted leave to make an oral application in the terms of orders which are contained in paragraphs 8 to 10, pursuant to Family Law Act.
Pending further order by a court exercising relevant jurisdiction in the United Kingdom:
8.1.Ms Reiner born … 1975 (“the mother”) have sole parental responsibility for all decisions about major long terms issues in respect of M born … February 2006 and N born … February 2009 (“the children”) except for decisions about the country in which the children should reside and their names;
8.2.The children are to ordinarily live with their mother and spend reasonable time with the father.
Pending further order by a court exercising relevant jurisdiction in the United Kingdom, the father:
9.1.in the event of the mother returns to the United Kingdom with the children as contemplated in Order 1 above, and if requested in writing to do so by the mother between the date of these orders and one month after arriving in the United Kingdom, the father vacate the former matrimonial home situate at … B Street, Town C, County D, England (“the Town C property”) and permit the mother and the children to live there free of charge until two months after the mother obtains employment PROVIDED THAT the mother uses her best endeavours as soon as practicable after her return to the United Kingdom to obtain employment in the United Kingdom;
9.2.in the event the mother returns to the United Kingdom with the children, for as long as the mother is unemployed, the father shall pay the mother £300 per week to support the mother and the children;
9.3.whilst the mother and the children reside in the Town C property, the father will pay all regular mortgage payments and any arrears thereof and any regular outgoings on the Town C property (including rates, taxes and insurances) and any arrears thereof.
Both the mother and the father, as soon as is practical, approach a court exercising relevant jurisdiction in the United Kingdom, seeking that an order in similar terms to orders 8 and 9 be made by that court, pending determination by that court of what further interim or final parenting orders should be made.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Reiner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1323 of 2013
| Director-General, Department of Family and Community Services |
Applicant
And
| Ms Reiner |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By way of an application filed 13 March 2013, the Director-General, Department of Family and Community Services (“DOCS”) seek the return of two children to the United Kingdom (“UK”). The mother seeks the application be dismissed. She says her immigration status means she is unable to return to the UK with the children and there is a grave risk the children will be exposed to physical or psychological harm or otherwise placed in an intolerable situation if forced to return to the UK to be in the care of their father, pending determination of any competing parenting applications in the UK.
DOCUMENTS RELIED UPON
The applicant relies on the following:
2.1.Form No. 2 filed 13 March 2013;
2.2.The Affidavit of the father sworn on 11 February 2013 and filed on 13 March 2013;
2.3.The Affidavit of Ms E sworn on 11 February 2013 and filed on 13 March 2013;
2.4.The Affidavit of the father filed on 24 May 2013;
2.5.Affidavit of Mr A sworn 24 May 2013 annexing an unsworn affidavit of the father and an unsworn affidavit from Ms I (the father did not ultimately rely upon evidence from Ms I).
The respondent mother relies on the following:
3.1.Form No. 2A filed 26 April 2013;
3.2.The Affidavit of Ms F filed 26 April 2013;
3.3.Affidavit of Ms G sworn 9 May 2013 and filed 13 May 2013;
3.4.Affidavit of Mr H sworn 22 May 2013 and filed 23 May 2013.
SHORT HISTORY
The Father is a UK citizen and lives in Town C in the UK. The mother is an Australian citizen and has lived in the UK on a working visa (which expired in 2004), an Irish working visa, and later a marriage visa (granted on 5 December 2005 and which has since expired).
The parties were in a relationship between mid-2005 and January 2013, when the mother travelled to Australia.
The children who are the subject of the application for a return order are M, born in February 2006 and now aged 7 years, and N, born in February 2009 and now aged 4 years. M and N are dual citizens of Australia and the UK.
The children were born in the UK and lived there together with the parents until the mother removed them from the UK in January 2013.
On 2 January 2013, the mother flew to Sydney with the two children. The Central Authority in Australia, on the father’s behalf, filed the Form 2 Application on 13 March 2013.
CREDIT
I was invited to find that the mother’s evidence was more inherently likely than the father’s. Both parties were cross-examined to a limited degree. I had the advantage of observing both of the parties give evidence.
The father gave his evidence in a straightforward and thoughtful manner. He did not present as difficult or manipulative. His evidence was consistent.
The mother impressed in the witness box as a reasonably confident woman. I do take into account the mother’s deceptive conduct surrounding what she told the father when removing the children from the UK. There were some parts of the mother’s evidence which I had some difficulties accepting. These relate to:
11.1.Her evidence that the father insisted she insert words in letters which she wrote to persons in authority about her immigration status, that she otherwise would not have written. Of the several statements put to her by the applicant’s counsel, she identified only one statement that was dictated by the father. The others were statements which she said contained elements that she felt to be untrue, but which were nonetheless written by her. I am of the view that statements made by her in those letters did represent her true state of mind at the time and that the father did not insist she write something against her will. For the mother to assert otherwise now does her no credit.
11.2.The ultimatum the mother said she was given by the Children’s Social Care (“CSC”) to leave the father or have her children removed from her, which I refer to in more detail later.
Counsel for the mother submitted that if I was not willing to generally accept the mother’s credit over the father, I would accept the mother’s version about family violence as being more likely given the observations recorded against the father by CSC. I deal with those events in more detail below. Counsel for the mother put to me that I should rely upon the CSC records as corroborative evidence of the controlling nature of the father and on that basis accept the mother’s version of the history of emotional family violence as one that was more inherently likely than the father’s version.
For reasons discussed below, I am unable to conclude that evidence would lead me to accept the mother’s evidence about family violence where it differs from the father’s.
DETAILED CHRONOLOGY
The father was born in the UK in 1953 and is now aged 60 years.
The mother was born in Southeast Asia in 1975 and is now aged 37 years. In 1979, the mother moved with her family to Australia. She is an Australian citizen.
The mother travelled to the UK on a working holiday in about 2002. The parties met in County D, UK in that year.
Between October and December 2004, the parties travelled together to Australia and New Zealand, upon the expiration of the mother’s visa. It is during this holiday, in December, that the mother claims the father pushed her during an argument. He denies he did.
The parties commenced cohabitation in mid-2005.
The parties married in December 2005 in the UK.
On 5 December 2005, the mother successfully applied for a UK Marriage Visa. The visa was valid for two years.
M was born in February 2006 and is now aged 7 years.
In 2006, the mother claims there were two incidents of concern. The first incident was that in April of that year, the father abandoned the mother and M during a holiday in Ireland, forcing the mother to find alternative accommodation and transport back to England. The father says that he was away for two hours after an argument, and during that time the mother left and travelled to her sister’s home in Ireland and stayed there for a week. The second incident was one in which the father allegedly refused to give M to the mother when M was distressed.
The father began to receive an incapacity benefit after contracting septicaemia which caused liver failure. He became M’s carer when the mother obtained full-time work at a government agency.
In 2007, the mother claims that there were two incidents of concern. The first was that the father kicked down a bedroom door while the mother and M were in the bedroom. The father denies he did this. The second incident was that the father began physically disciplining M for tantrums, leaving her with red marks and bruises. The father denies physically disciplining M.
In 2008, the mother claims that the father on one occasion threw a plate of food against the wall during dinner, after she criticised his cooking. The father denies doing this.
N was born in February 2009 and is now aged 4 years. In her affidavit, the mother states that she took five months of maternity leave following the birth of N.
In 2009, the mother says that the father threatened two bailiffs who came to the house in relation to unpaid council tax. The father was initially convicted of criminal damage and assault. The damage alleged was a result of a collision between a motor vehicle driven by the father and one driven by the bailiffs. The father denies that he assaulted the bailiffs, and stated that the conviction was overturned on appeal due to evidence presented by the father and the non attendance of the bailiffs to give evidence. Given that the father was ultimately acquitted of all charges, I am unable to make any adverse conclusions against the father arising from this incident.
In October 2009, the mother says that the father hit her while she tried to prevent him from force-feeding M. The father agrees that he hit her, however, he says that it was inadvertent and that he was apologetic afterwards. He also disputed the severity of the injury to the mother.
In October 2010, the mother claims that the father “made” the mother and the children stay in a hotel for a day following an argument during a holiday. The father says that the argument happened on the last day of a holiday and they had to check out at 10.00 a.m. on that day so he could not have confined them to a room. He says that they climbed a local hill that day, and that the mother met them at the top of the hill in the car as she did not want to walk.
In 2012, the mother says that there was an incident at a party at which the father became aggressive and abusive whilst drunk. The father says that he doesn’t recall the incident, but conceded that he was drunk and that is probable he did speak assertively and /or aggressively.
On 17 September 2012, the mother received a letter from the UK Border Agency. She says that letter said she was no longer allowed to remain in the UK and must reapply for British citizenship. The mother was not able to make a copy of that letter available to the Court, but given the father’s behaviour at the CSC on 21 September 2012, I accept that the letter at least foreshadowed the possibility that the mother may not be able to remain in the UK.
On 21 September 2012, the father took N to County D Council’s Children’s Social Care department. He put N on the counter and walked away a short distance. The Council’s notes record the father threatened that he wouldn’t look after the children if the mother was deported. The father says he had no intention of leaving N, but that he acted in “desperation” in order to get someone to speak to him about the mother’s visa status. There was a home visit made by the CSC on 21 September 2012.
There was a further home visit form the CSC after September 2012 and also several meetings, of which the father was unaware, between the agency and the mother, during which the mother says she received an ultimatum to leave the father or risk having her children removed from her care.
The mother resigned from her employment at the government agency in October 2012 after being suspended from work due to her lack of a visa.
On 25 October 2012, the mother received a letter from the UK Border Agency advising her to contact the Agency with a view to ‘regularising’ her residency. It does not seem that there was an imminent threat that the mother was about to be deported.
The mother and the children flew out of the UK on 2 January 2013 without the father’s knowledge. The mother told the father that she was taking the children to the theatre.
The Australian Central Authority filed a Form 2 Application on behalf of the father on 13 March 2013.
APPROACH
There is no issue in the case that the prerequisites for the court making a mandatory return order as set out in Regulation 16(1) Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Abduction Regulations”) have been satisfied.
Grave risk
The mother asks me to exercise a discretion not to make a return order based upon Regulation 16(3)(b) of the Abduction Regulations.
Regulation 16(3)(b) of the Abduction Regulations is in the following terms:
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
In the course of evidence and submissions in this matter, the mother sought to draw the Court’s attention to various incidents in which the father displayed behaviour which, she submitted, when taken together would satisfy the court that there was a grave risk to the children should they be returned to the UK, if the mother was unable to obtain the immigration clearance to accompany them.
In relation to the defence of grave risk of harm, as set out in Reg 16(3)(b) of the Abduction Regulations, it is incumbent on the court to determine that the child would be at grave risk of one of the following:
42.1.physical harm; or
42.2.psychological harm; or
42.3.otherwise place the child in an intolerable situation.
(see Gsponer v Johnstone (1988)12 Fam LR 755 (at 766), later approved in the High Court judgment of DP v Commonwealth Central Authority). An earlier narrower approach to the interpretation of “grave risk” was eschewed by the High Court by the majority in DP v Commonwealth Central Authority (Gaudron, Gummow and Hayne JJ) which said:
[41] In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a “strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed”. Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
[42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
[43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
[44] These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
[45] That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return. (footnotes omitted)
In relation to the ability of the parent to return with the children, the judgment in the matter of Director-General of Family and Community Services and Davis (1990) 14 Fam LR 381 provides the following guidance. The judgment of Nygh J (with whom Strauss and Rowlands JJ agreed) states (at 386):
It was also alleged before her Honour and before this court that the child, as a result of the order for return, would be separated from the mother because the mother would not be able to accompany the child. To a certain extent, that is a situation which presents some analogy to the situation which was before the Court of Appeal in C v C, supra. As her Lordship, Butler Sloss LJ pointed out at 661, that is obviously a serious consideration. But it is a factor which, if it exists, and in this case I stress that there is no evidence that it does exist, which was created through the unilateral conduct of the applicant, and it would ill behove a party to rely on the fact that he or she has created the very situation which would prevent compliance with the convention. That would, as her Lordship pointed out, “drive a coach and four through the convention at least in respect of applications relating to young children”.
In this case the Central Authority argues that the mother’s current situation is of her own making. The mother says she was forced to leave the UK. I will discuss this further below.
The mother also argues that her inability to re-enter the UK places the children in an intolerable position arising out of the fact that she would be precluded from personally participating in parenting proceedings in which she was seeking the relocation of the children to Australia.
The relationship between “intolerable situation” and a party’s ability to return to a country to prosecute parenting proceedings, was discussed in Director-General Department of Families, Youth and Community Care v Bennett [2000] 26 Fam LR 71 at paragraphs 38 to 49.
That case looks at previous statements made by Joske J in State Central Authority v Ardito where his Honour said at paragraph 40:
In my view the fact that the respondent is unable to gain entry into the United States for the purposes of appearing in these proceedings, amounts to what can only be described as a serious denial of natural justice. The right to be heard is a fundamental requirement of natural justice … Accordingly, I am of the opinion that the fact that the respondent has been denied entry into the United States constitutes a grave, or in this case an almost certain risk that the child Bittany was placed in an intolerable situation.
In 2000 the Full Court in Bennett was invited to find that “the inability of a party to be physically present in court to present their case and/or instruct a legal representative should not be viewed as a rigid requirement of natural justice in every case. It may be that the courts of a requesting country, have or are able to put in place facilities and/or procedures that allow a party to meaningful take place in a hearing without being physically present. An obvious example is the availability of telephone and video links” (paragraph 43). It was further submitted that the onus of proof was on the abducting parent to adduce evidence which established that they would not be able to meaningful take part in the decision making process.”
In Bennett the Full Court, when granting the appeal on other grounds, found that they did not need to engage with that argument. The Full Court however did comment:
88. Cases involving the welfare of the child at appellate level frequently emphasise the special position of a trial Judge in being able to evaluate the parties and their proposals. That special position must clearly be diminished if both of the parties are unable to attend at the hearing concerning the welfare of the child. The fact of an inability to attend, be it through operation of the laws of the requesting country or through circumstances personal to the abducting parent, may be sufficient to give rise to the existence of the Reg 16(3) defence…….
I will comment later about the mother’s ability to participate in proceedings in the UK even if she is unable to be physically present when and where those proceedings are conducted.
Evidence
The mother in her affidavit has set out, in some detail, events and circumstances which she asserts create a pattern of family violence during the marriage.
In summary those alleged facts and circumstances are as follows:
December 2004
Father pushed mother during an argument whilst parties on holidays in NZ
Approximately April 2006
Father left mother and M, 2 months old, at a holiday cabin in Ireland after an argument. Father took the car. Mother received assistance from her friends and her sister to get home, including borrowing money from her sister to pay for flights
July-Aug 2006
Father refused to give M to mother despite M’s distress and entreaties from mother and friend
February 2007
Father kicked in bedroom door when mother and M in bedroom
July 2007
Father began physically disciplining M (18 months) for tantrums. Father threatened mother when she tried to intervene. M sometimes left with red marks, and once bruising
2008
Father threw mother’s bowl of food against wall when she suggested it might need more salt, and swore at her
March 2009
Father threatened bailiffs who came to home about unpaid council tax, then drove into their van. Father convicted in Magistrate’s court of criminal damage and assault. Bailiffs did not attend at appeal; conviction overturned
October 2009
Father physically force fed M when she didn’t want to eat her dinner. M crying and upset; N watched sucking on her fingers. Mother tried to intervene, struck on head by father and fell from her chair and believes she momentarily blacked out
October 2010
Parties on holiday with a sporting club: father angry at mother for feeding children coco pops, and a missing piece of sports equipment. Father made mother and children stay in hostel room all day
2011
Father did shopping with mother to supervise her spending, including maintaining control of the debit card
August 2011
Father threatened to smash mother’s face in during argument at restaurant when on family holiday with a sporting club. Children present
2012
Father argues with mother about her driving home from a party where he was drunk, and tried to drag her out of the car. The children were in the car. A friend intervened and calmed father down
21 September 2012
Father attended Children’s Social Care: threatened to leave N on the counter and argued with staff. Mother required to attend
October 2012
Father shouted at M that she was stupid just like her mother, when trying to teach her multiplication tables. He kept M up past her bedtime trying to teach her
December 2012
N (3 years 10 months) refused to sit at the dinner table. Father dragged her by wrist across the lounge room floor to table to eat her dinner
The father in essence denies that there was any family violence during the marriage.
The most serious incident (and the only incident in which the mother says she was struck) happened in October 2009. The mother’s version is set out in her affidavit at paragraph 29:
29. In or around October 2009, [the father], [M] and I were eating dinner in the kitchen. [N] was in her high Chair and had already been fed. [M] did not want to eat her food. [The father] became increasingly angry at [M], yelling words to the following effect:
“you will eat this food. It’s good healthy food, you’re going to eat it. Open your mouth. I’ll make you eat it!”
[The father] then grabbed [M’s] jaw with his left hand, holding her mouth open, and took her spoon in his right hand and began to force food into [M’s] mouth. [M] was crying while this happened. [N] was sitting in her high-chair and sucking on her middle three fingers. That is what [N] would often do to comfort herself.
I tried to stop [the father] by grabbing his right arm with both of my hands. [The father] then swung back his right arm and struck the left side of my head with the back side of his right hand. I was knocked off my chair by the blow. I think I momentarily blacked out as when I came to I was lying on the floor and there was a ringing sound in my ears. The ringing lasted for about half an hour.
[The father] then shouted at me words to the following effect:
“That’s what you get for trying to interfere. Don’t ever try to do that again. Get up, get out of my sight! I am the father of this family don’t try to get in the way again because that’s what will happen to you. Get out of my sight.”
I went up to my bedroom so that [the father] would calm down. I was very upset and crying in bed. I rang my friend, [Ms J], and told her what had happened but I did not report the incident to the police as I was scared [the father] would find out I had made the report and that would make things worse.
My head remained tender after this incident and I had a headache for a few hours.
The father’s version of this incident was that he was not feeding M at the time but rather giving her medicine, and he was holding her mouth in order to force the medicine down because she was refusing to take it. He said that he became aware that the mother was attempting to stop him from doing so. The mother went to take him by the arm that he was using to put the medicine into M’s mouth in both her hands and he reacted by throwing his arm back. He admits that his hand came into contact with her head but says that he was not looking at where the mother was, did not mean to hit the mother and was apologetic immediately afterwards. He denies that the mother fell to the floor.
The way in which the father gave that evidence was plausible. The mother was not tested on her version. I am unable to say which version is accurate. Even taken at its highest, I find it of some small significance to note that the mother’s evidence indicates that she left the children with the father after the incident. That suggests that even at its most serious, the father’s behaviour did not raise in the mother a fear that he was immediately about to harm the children, if she removed herself from the father’s presence.
There were other incidents that the mother referred to where the father gave credible explanations as to his perception and version of what happened.
In relation to the mother and father having an argument whilst they were on holiday in Ireland and the mother going to her sister’s place, the mother gives that evidence on the basis that the father abandoned her. The father gives evidence that the mother, angry at him, left with the baby whilst she knew he had gone to the pub after their argument.
In relation to the mother’s assertion that after an argument on a camping trip the father confined the mother and the children to their accommodation for the whole day, it seems an agreed fact that that event happened on the last day of the trip and the father’s version is that they had to leave the accommodation by 10.00 a.m. and then went on an outdoor activity during that day. The father’s version seems to be more inherently likely (given that it seemed to be the agreed fact that the parties were not staying at that accommodation that night).
There was another incident in 2012 where the father was said to have attempted to drag the mother out of a car at 1.00 a.m. in the morning after he had been drinking. He admitted that he had been drinking with the men whilst the women and children were in another part of the house (the children were asleep). He admitted that under the influence of alcohol he thought it might be a good idea to drive home. He admitted that a friend of his took him aside and talked him out of that. It is probable that the father has under-reported the level of his assertiveness and aggression during that incident, but it is not an incident which on the evidence that I have, would be described as “family violence”.
The mother also makes a number of allegations about the controlling nature of the father in respect of family finances. The mother’s evidence about this issue was slightly implausible. Her evidence was that at one period of time in fact the father had handed over all responsibility to her in relation to those matters. The last five years of the relationship the mother was the full-time bread winner. Ms G’s evidence arising from her meeting with the father on 21 September 2012 might lead to a conclusion that the father wanted the mother to be financially responsible for the family. The mother put her earnings into a joint account. I am unable to conclude the father in any practicable way restricted the mother’s ability to access those funds.
The mother in medical records refers to the father as a supportive partner.
The mother in letters written to various persons in authority in relation to her immigration status refers in positive terms to her relationship with the father and her desire to keep that relationship together.
The letters in question were not tendered, and did not appear to be available to any of the parties. The extracts were read by the counsel for the Applicant based upon instructions. Each extract was read to the mother and she said that she recalled writing each.
In her letter dated 1 October 2012 to Mr K, a local county counsellor for Town C, the mother wrote “I’ve already paid ₤2,500 in total to be with the man I love, the children that I love and the home that we have built.”
In her letter to Mr L, the local MP for Town C and County D, the mother wrote “I work very hard for my family and want to keep my job so that I, most importantly, keep my family together”
In her letter to Mr O, the leader of Town C County Council, the mother wrote “I invite you to meet my family and I at our home”. That is, the mother is inviting the leader of the Council to come to her home to meet the father, herself and the children and observe them as a family unit.
In her letter to Mr Harper, the minister of Immigration, the mother wrote “I’ve already paid ₤2,500 in total to be with the man I love, the children that I love and the home that we have built.” Also in that letter she wrote “surely keeping our family together is in the best interests of our family and of our society”. This last statement is the only statement which the mother said was added to her letters at the behest of the father. I have already said that I do not accept that the father influenced her to write that statement. The mother stated that the other statements referred to were written by her. I do not accept that they did not represent her state of mind at the time she wrote them.
It is clear the mother was unhappy in the marriage and was not fully disclosing that, but I find it is unlikely that she would have written what she did had she been a victim of systemic family violence of the nature described by her.
The parties have different perceptions as to how the children were disciplined by the father. One thing that mitigates against the mother’s overall story about physical discipline by the father of the children is the father’s description of the children greeting him on the Sunday before the hearing before me and both running into his arms (the mother did not attempt to deny that description). It should be noted that the children have not seen their father face to face for about five months.
I also note that although the mother took support persons with her on the first meeting with the father in Sydney on Sunday 26 May 2013, when she had a further meeting with the children and herself with the father on Monday 27 May, she did so without support and the father, the mother and the children spent the day together (albeit in a public place).
The mother worked full-time when the father was at home for a period of approximately five years prior to the separation. That is, the children were primarily in their father’s care during day time hours. The mother was apparently satisfied during that period of time that the children were in a safe environment.
As already mentioned, counsel for the mother strongly submitted that I should accept entirely her version of what she asserts to be a history of primarily emotional and psychological family violence as against the version given by the father based upon observations made of the father by the CSC on two particular days. I now consider that evidence.
The first day was 21 September 2012. The CSC records, attached to the affidavit of Ms G set out the following under the heading “Parenting capacity and views of the parents/carers”:
On 21st September 2012 At approximately 10.10am [the father] came into reception with a small child, he approached Office Management and when they acknowledged him he stated that he had concerns that some children may be at risk. They asked him his relation to the children (he said he was Dad) and if the family were already known to Social Care. When he said no they informed him that he would need to contact [County D] Direct in the first instance as out department is large and the case would need to be transferred to the correct team.
At this point he became agitated and stated that “No”, he wasn’t’ going to call anyone. They tried to explain to him that they couldn’t ask anyone to speak to him directly at which point he picked up a pamphlet, put it towards a staff members face and told her to call them with an aggressive manner. Again, the member of staff tried to explain the protocol to him but he didn’t want to listen so he then picked up the little girl ([N] aged 3), sat her on the reception counter and walked away.
The staff member called after him saying that he couldn’t leave the child – [The father] shouted that ‘it was up to us to sort it out and he walked away’. Again the staff member called after him that he couldn’t leave the child. He still didn’t want to listen at which point they [sic] staff member stated that if he abandoned his daughter and left they would call the police. A social Worker who was in reception intervened at this point.
The social worker who intervened described the incident:
‘As I was entering the … office reception area, a man had placed his daughter on to the desk and he threatened to leave the child on the desk. The little girl was very quiet and she seemed to be used to what was going on around her as the man became angry with reception staff. This was completely unreasonable and inappropriate behaviour for a young child to see.’
Office management asked me to attend reception as they were concerned that [the father] was shouting in the meeting room where a social worker was alone with him and [N]. When I joined the meeting, [the father] was rude and aggressive and unreasonable. I tried to get him to explain the family situation. What he did say was that the mother was an ‘illegal alien’ and that she worked for [a government agency]. They needed the money that she earned and if they didn’t have it they would lose the house. [The father] also said that if is the mother left the country that he would be dumping the children on the doorstep and we would be looking after them as he wouldn’t. I tried to reason with him and explain that if this worse case scenario happened there is support that would be available to him. I mentioned benefits which he could apply for but he said ‘no you do it’ in a rude and aggressive tone. I discussed his health issues and he advised he was disabled and he mentioned having a heart murmur to which he had refused treatment that was offered and other conditions which he advised that he was refusing treatment for. It was a very challenging meeting and my impression on [the father] was that he is very controlling, aggressive, manipulative and absolutely refuses to take any responsibility and it was clear from the way he spoke about the mother with little respect for her that he expects her to do everything. This included going to work, looking after the children, meeting his needs and being financially responsible for the family. What [the father] was very clear about throughout the meeting was that he had no intention of being the sole carer for his two children.
…
Subsequent to the above, CSC visited the family home to complete an IA and explained to [the father] that his actions were both illegal and abusive to his children. [The father] appeared unable to understand this and throughout the interview presented as awkward and obstreperous.
[The father] presented initially as co operative and an intelligent person. As soon as [the father] was challenged his stance changed significantly, he wouldn’t accept what he had done was wrong or abusive or the fact that we wouldn’t respond to it. He kept repeating that the children were our problem (CSC) and that he could not cope with them. He advised if the mother would have to leave the country he would not be able to care for the children and they would have to be accommodated by CSC. When it was explained to [the father] that this would potentially not be in the best interest of his children he said that he didnt care and that is what is going to happen. [The father] became obstructive during the meeting when any advice or support was given. He was very negative about CSC and was trying to force CSC to do something about the mother not being able to remain in the country. He was not physically threatening as much as he was obstructive and was emphasising that he needed support and wouldn’t be able to care for the children on the own. He would not accept support offered and became awkward – saying that other people would have to deal with his problems. [emphasis added]
The above record seems to be a compilation of the observations of at least four different employees of the CSC. It does not entirely set out which employee made the observation and when that observation was made. Apart from possibly the observation of the social worker, the record seems to have been made at some time after the events.
The Central Authority did not require Ms G to give oral evidence.
The father during the hearing freely conceded that what he did on 21 September 2012 was ill considered.
His evidence was that N did not get distressed because he was within her sight at all times. Both parts of the father’s evidence are consistent with the actual observations of the CSC. Although Ms G (who was not present) records the father “walked away”, the social worker only said “he threatened to leave”. The social worker at the CSC reached the following conclusion “The little girl was very quiet and she seemed to be used to what was going on around her as the man became angry with reception staff. This was completely unreasonable and inappropriate behaviour for a young child to see.” It is difficult to know what weight I could place on that opinion. Counsel for the mother submitted that I should give the opinion significant weight given the qualification and position of the social worker. However, it seems that the social worker only encountered the father and child during this incident. The social worker did not have any other knowledge about or prolonged exposure to the relationship between the child and the father and the comment that the child’s reaction to this behaviour indicated that she was “used to” it has to be seen in that context.
There is no doubt that the father did not in any way endear himself to the CSC on 21 September 2012, with Ms G recording the father was very negative about the CSC particularly when the CSC resisted doing what the father wanted the CSC to do (ie, he wanted them to intervene in the mother’s immigration issues).
In the encounter with the father on a second day, the CSC told the father that his actions were both illegal and abusive to his children and that the father appeared unable to understand this and throughout the interview presented as awkward and obstreperous (i.e. noisy and difficult to control). I assume that the threat to leave N with the CSC was the illegal act.
It is clear that the CSC reached the conclusion that what the father did on 21 September 2012 was abusive to N. The father did not achieve his aim of getting the CSC to intervene with the immigration authorities on the mother’s behalf. What the father did stimulate though was an interaction between the CSC and the mother without the father’s knowledge.
The mother gave oral evidence that this eventually led to the CSC giving her an ultimatum. She described the ultimatum as being one of being told to leave the father or have her children taken away from her. Her oral evidence on this point comprised the following:
She [Ms G] basically said, and I remember the conversation, ‘[The mother’s first name], we’ve been seeing you for over 2 months now and you’ve done nothing to improve the situation at home, and from our perspective we’re concerned about [M] and [N] growing up in such an abusive environment, and the fact is that if you don’t do something about your situation then we’ll be looking at holding a child protection conference which will involve the police, the school and [the father] as well and will look to placing the children in foster care.’
Based on the material that I have read, if Ms G said those words to the mother, it seems to be a fairly high handed position for the CSC to have taken. It does not appear, however, on the face of Ms G’s evidence, that the position that she put to the mother was that extreme. I find it is inherently unlikely that the CSC gave an ultimatum to the mother in the terms given in the mother’s oral evidence.
I find that I am unable to rely upon the observations of the father made by the CSC, to conclude that the mother’s version of a history of family violence should be accepted.
I find on the evidence that the truth about the history of emotional and psychological family violence is probably somewhere between the two versions given by each of the parents. Although I accept that the father can be aggressive and assertive, nothing in his demeanour when he was giving evidence before me would corroborate an assertion that the father had been involved in a systemic pattern of coercive violent behaviour against the mother.
The mother’s ability to return to the UK
The mother’s defence in relation to grave risk was tied to the current uncertainty as to her current ability to re-enter the UK. She asserts that she does not know whether or not she would be allowed back into the country.
The mother conceded that as at 2 January 2013 there was no immediate need arising from her immigration status to leave the UK.
The reason for the mother deciding to bring the children to Australia without the father’s consent was, according to the mother, a coalescence of three different factors:
88.1.difficulties with her immigration status;
88.2.consequent difficulties with her employment;
88.3.her decision, encouraged by the CSC, to end her marriage to the father, because of the father’s family violence.
At paragraph 49 of the affidavit of Mr H sworn 22 May 2013, Mr H indicates that in order for the mother to be granted entry clearance on the basis of family migration, the mother would need to show the following things:
49. In order to be granted entry clearance, [the mother] would need to show
a. That she is aged 18 or over; E-ECPT 2.1
b. The child is under the age of 18 years at the date of application, lives in the United Kingdom and is a British Citizen or settled in the United Kingdom; E-ECPT 2.2
c. Either that [the mother] has sole parental responsibility for the child; or the parent with whom the child normally lives must be a British Citizen in the United Kingdom; not [the mother’s] partner; and that [the mother] is not eligible to apply for entry clearance as a partner under Appendix FM: E-ECPT2.3
d. Provide specified evidence that she has either sole parental responsibility for the child or access rights to the child; and that she is taking or intends to continue to take an active role in the child’s upbringing; E-ECPT 2.4
e. That she will be able to adequately maintain and accommodate herself and any other dependents in the United Kingdom without recourse to public funds; E-ECPT 3.1
f. Provide evidence of adequate accommodation; E-ECPT 3.2
g. That she meets the English Language requirement by proving she is a national of an English-speaking country; E-ECPT 4.1. Section GEN 1.6 of Appendix FM provides that Australia is to be regarded as an English-speaking country.
Exhibit 6 is a letter by Legal Aid NSW dated 23 May 2013 asking questions of Mr H and his answers to those questions.
Mr H was asked what the mother would be required to establish to obtain entry clearance on a “Family Migration Settlement” basis.
In answer 17, Mr H said that the mother’s statutory right to parental responsibility would not be something that she could rely upon:
she would need to provide evidence of access rights by providing a certified copy of a residence order – that is, an order settling the arrangements for the children providing that the children are to live with her (or that their living arrangements will be shared between [the mother] and [the father] – a shared residence order) or by providing a certified copy of a contact order – that is, an order defining arrangements for the children if they are not living with her under a residence or shared residence order, to have direct and/or stay in contact with [the mother].
The Central Authority and the father seek temporary orders, in the event that the mother returns to the UK with the children:
93.1.for sole parental responsibility of the children to the mother;
93.2.for the children to ordinarily live with their mother and spend reasonable time with the father.
These and other facilitative orders can be made pursuant to Regulations 14(1)(vi) and 14(1)(b) of the Abduction Regulations.
Alternatively, during the hearing the father indicated that he would be prepared for this court, on his oral application under the Family Law Act, to make orders in the same terms, pending further order (see Regulation 6 Abduction Regulations).
The father also indicated (at the court’s suggestion) that he would seek that an order be made binding both parties to approach the court for immediate mirror orders in the UK pending the determination of either party’s application for parenting orders in the UK either on an interim or final basis.
In the interests of the children and on the basis that it appears that such orders would facilitate the mother gaining entry clearance to the UK, I find it is in the children’s best interests to grant the father leave to make an alternate application under the FLA to make those orders.
I intend to make orders which I accept are in the best interests of the children if the children return to the UK with their mother and have the extra benefit of increasing the mother’s ability to re-enter the UK.
In relation to the other preconditions set out by Mr H in paragraph 49 of his affidavit, the mother is over the age of 18 years and the children are under the age of 18 years. The father has offered accommodation to the mother and offered support to the mother of £300 per week plus outgoings in respect of the accommodation. I intend to make an order that that support be provided until such time as the UK court deals with the parenting issues provided that the mother uses her best endeavours as soon as practicable, to obtain employment in the UK. The father will maintain the mother until such time as an UK court determines that the mother has not fulfilled the responsibility that this court places upon her to use her best endeavours to obtain employment when she returns to the UK.
I am satisfied that the accommodation which the father offers (being the former matrimonial home in which the parties and the children lived for a substantial period of time) provides adequate accommodation for the children. The mother meets the English language requirement.
Mr H’s evidence is that the mother would be granted entry clearance for a period of 30 months if she meets these conditions.
The Central Authority seeks that the period of time the father should be out of the matrimonial home be three months or until one month after the mother obtains employment, whichever occurs first. The father has indicated that he can stay in his mother’s home which is a short distance from the matrimonial home. I intend to limit the time the mother may use the former matrimonial home to a period of two months after her obtaining employment upon the condition she uses her best endeavours to do so. The order I make is a stop gap one and is reviewable by a court of appropriate jurisdiction in the UK.
The father is to pay regular mortgage payments and outgoings while the mother and the children live in the former matrimonial home.
CONCLUSION
The mother concedes that there is no grave risk that the children will be exposed to physical or psychological harm or otherwise placed in an intolerable situation if she is able to return to the UK with the children.
On the evidence presented to me, I find that on the balance of probabilities it is likely that the mother would be able to obtain entry clearance to return to the UK if the orders which I have discussed are made.
The Central Authority’s application is that the mother be given two months to take the necessary steps to obtain entry clearance to the UK.
The Central Authority and the mother do not agree on what should happen in the event that the mother is unable to obtain clearance.
It is the Central Authority’s position that in the event that the mother is unable to obtain entry clearance within a period of two months, then an order should be made returning the children to their father in the UK with the prospect of a parenting hearing happening in the UK with the mother remaining in Australia attending by video link.
The mother seeks liberty to restore the matter to my list within the two month period if she has difficulties obtaining entry clearance in that time frame or at all.
The basis upon which the mother asserts that an order should not be made automatically returning the children to their father after a period of two months is because to do so would create a grave risk to the children of being exposed to physical or psychological harm or otherwise place them in an intolerable situation.
That assertion in turn is based upon:
110.1.allegations made by the mother of family violence throughout the mother’s relationship with the father. As has already been made clear, in the context of the limited nature of this inquiry, I do not accept the mother’s assertions about family violence;
110.2.an assertion that the mother’s inability to be personally present to participate in a parenting application in the UK places the children in an intolerable situation.
In relation to the argument based upon the mother’s assertions about family violence, even if I did accept those assertions at their highest (and at their highest those assertions would be a significant matter in the determination of competing parenting applications between the parties and relevant to any application the mother may make in the UK for relocation of the children to Australia), her allegations would not lead me to conclude that the making of a return order would create a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place the children in an intolerable situation.
If the children return with their father, the mother has not established that there is a risk that the children would be in a situation with him that would warrant the qualitative description of “grave”. There would be undoubted disruption, uncertainty and perhaps even anxiety in their lives being separated from their primary carer, but it is clear the children know their father and I an unable to find that they are at grave risk of physical or psychological harm or in an intolerable situation if they are in his presence.
If I am wrong about that then there are other reasons why the mother has not established a case. The CSC have taken an active interest in this family. Ms G herself records that should the children be left in the father’s care, she may have to take legal advice as to what her organisation might need to do to approach a court exercising child welfare jurisdiction in the UK. The mother herself, within the two months that she now has, may institute her own proceedings in the UK for whatever orders she might seek (although I have no evidence about what remedies she might have under UK child welfare laws or how expeditiously she might be able to exercise them).
I do not accept the submission by counsel for the mother that any suggestion that the children might be taken into care in the UK in itself is an indication of grave risk of an intolerable situation. That submission is answered in the following ways:
114.1.It is far from clear to me (certainly not at the level of me being able to assess it as a grave risk) that the CSC would have any grounds under child welfare law to remove the children from their father;
114.2.If a properly constituted court in fact found that I was wrong and reached a conclusion there was good reason to place the children into care (including a conclusion based on information I do not have), and that court made an order of a protective nature for the children, in my view that order could not be described as placing the children in an intolerable situation.
In respect of the argument about the mother’s inability to be personally present to participate in parenting proceedings in the UK, the mother has not established to my satisfaction that she would be precluded from effectively participating in those proceedings, having regard to the contemporary sophistication of digital technology. I have noted the Full Court in Bennett in 2000 said the inability to participate in proceedings “may be sufficient to give rise to the existence of a Regulation 16(3) defence”. Thirteen years on, electronic communication, particularly by video conferencing, has dramatically improved (and is often used in proceedings in this court under the Abduction Regulations) and less often in parenting applications where a parent is overseas. The mother provided no evidence as to what facilities may or may not be available to her. I also take into account the involvement, in the mother’s favour, of the CSC in the UK. I am not satisfied that the children are at grave risk of being placed in an intolerable situation arising from any inability of the mother to personally litigation in the UK (if that comes about as a result of me being incorrect about the probability of the mother being able to return to the UK).
For all of those reasons I am not satisfied that the mother has established that the ground which she relies upon pursuant to Regulation 16(3) Abduction Regulations has been made out and accordingly I do not accept the mother’s submission that the court should refuse to make the return order. I find I have no discretion to refuse to make the return order.
I shall make an order in the general terms suggested by the Central Authority.
I do not grant the mother leave to bring the matter back to this court if she is unable to obtain entry clearance to the UK within a two month period. In those circumstances, the children are to return to the UK with their father.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 17 June 2013.
Associate:
Date: 17 June 2013
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Family Law
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