Department of Family and Community Services and Watkins
[2017] FamCA 197
•31 March 2016
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & WATKINS | [2017] FamCA 197 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where an Application is made for the return of a child to the United States – Where the mother relies upon Regulation 16(3)(b) to oppose the return of the child – Where the mother says she will not return to the United States – Where the mother does not establish that there are personal circumstances genuinely precluding her from returning to the United States with the child or the “grave risk” exception – Where an order is made for the return of the child to the United States – Where orders are made placing conditions upon the return order. |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) | |
| Department of Family and Community Services & Abraham [2016] FamCA 847 | |
| APPLICANT: | Secretary, Department of Family and Community Services |
| RESPONDENT: | Ms Watkins |
| FILE NUMBER: | SYC | 7916 | of | 2016 |
| DATE DELIVERED: | 31 March 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 17 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson, SC |
| SOLICITOR FOR THE RESPONDENT: | York Family Law |
Orders
The applicant and respondent make such arrangements as are necessary to ensure the return of the child, B, born … 2014 (“the child”), to the United States of America
In the event that within 14 days the mother changes her position and decides to return to the United States of America:
2.1.Within 14 days from the date of these orders, the mother is to give a written notice to the Department of Family and Community Services and the father that she has reconsidered her decision not to return to the United States of America and that she now intends to return to the United States of America;
2.2.In the event the mother gives that notice to the father, the father is to provide t the Respondent and the Applicant an undertaking in writing that he will:
2.2.1.Not file any application or motion in the Supreme Court of Connecticut for the mother to be dealt with for contempt or contravention of the current ex parte order that the mother return the child or any related order;
2.2.2.The father shall give an undertaking not to do anything or sign any document that would have the effect of commencing or continuing proceedings against the mother for contempt or contravention of court orders in the State Court of Connecticut arising from any conduct of the mother to up until the date of the implementation of the return order;
2.2.3.The father shall give an undertaking to do all things and sign all necessary documents to indicate to any authority that he does not wish to be involved as a witness in the criminal prosecution of the mother for any criminal offence arising from the mother’s retention of the child in Australia and that his wish is she not be prosecuted for any criminal offence arising from the mother’s retention of the child in Australia;
2.2.4.The child is to return to the United States with the mother;
2.3.The father allow the mother to stay in the father’s apartment without him until the Supreme Court of Connecticut makes interim parenting and financial orders;
2.4.The father seek a variation of the current ex parte order so that upon her return the child stay with the mother until further orders are made by the Supreme Court of Connecticut;
2.5.The father do all things and sign all documents to seek expedition of the current family law proceedings in the United States.
In the event the mother maintains her resolve to remain in Australia notwithstanding that the return order has been made, the return order is not to be implemented for a period of 28 days from the date of these orders with a view to allowing the mother some time to wean the child from breastfeeding and the child shall return to the United States with the father.
Orders 1, 2 and 5 made 15 December 2016 are discharged.
The Registrar of the Family Court of Australia is to release to the Department of Family & Community Services the child’s passport surrendered by the mother pursuant to order 5 made 15 December 2016 and the Department is to provide that passport to the parent who will be travelling with the child to the United States.
In the event the mother provides the notice referred to in order 2.1, the Registrar of the Family Court of Australia is to release her passport to the mother.
Until further order, the respondent Ms Watkins born … 1978, by her servants and/or agents, be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia except in accordance with these orders and it is requested that the Australian Federal Police give effect to this order.
Order 3 made 15 December 2016 be suspended to enable the child to leave Australia in accordance with these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Watkins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7916 of 2016
| Secretary, Department of Family and Community Services |
Applicant
And
| Ms Watkins |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The child B, born in 2014, currently aged two years and seven months (“the child”) is habitually resident in the United States of America (“the United States”). The child is a dual citizen of Australia and the United States. On 24 August 2016 the mother wrongfully retained the child in Australia after travelling here on a holiday with the consent of the father and then failing to return to the United States.
The Secretary of the Department of Family and Community Services as the Central Authority (“the Department”) filed an application on 30 November 2016, pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), seeking orders to ensure the return of the child to the United States.
The mother opposes those orders saying that there is a grave risk that the return of the child under the Regulations would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
Regardless as to whether or not the court makes an order requiring the return of the child to the United States the mother says that she has no intention of returning to the United States.
The child’s father says that if the mother will not return to the United States with the child then he is willing and able to travel to Australia and return to the United States with the child.
DOCUMENTS RELIED UPON
The Department relies on those documents set out in Schedule One. The mother relies on the documents set out in Schedule Two.
A large volume of documents have been relied upon in these proceedings, particularly by the mother. The truncated nature of these proceedings means that not everything that is contained in material that has been provided by each of the parties was put to the other party in cross examination. I do not place great weight on the fact that a particular allegation was not challenged in circumstances where the other parent has generally put into issue an overall assertion made by the other parent.
CREDIT
The evidence given by the father was given via video link after some difficulty in establishing that link. The link was generally reliable although at times the audio was inadequate.
Senior counsel for the mother submitted that statements made by the father in his financial affidavit in Exhibit 3 were misleading. I do not place great weight upon any inaccuracies in that document.
The Form 2 filed by the Department contains an incident report by the Department of Police of City C, Connecticut stating that the father told police that he had spoken to the mother “several times, but at times she does not answer the phone or blocks his phone calls”. When the inconsistency between this statement with the statement in his affidavit to the effect that he had not communicated with the mother was put to the father, he said that he had communicated with the mother by email. The father also agreed with senior counsel for the mother that he had told police that he had significant concern that the child may be at risk of abuse and neglect in Australia and that that concern was based on his concerns in relation to the maternal grandparents when he knew at that time that the child was in fact residing with the maternal aunt (albeit the maternal grandmother resides in an adjoining residence).
The father agreed that his statement in his second affidavit that the mother had seen and signed his 2016 tax return was untrue.
The father denied that he was attempting to create an excuse for bad behaviour by asserting that some of the text messages produced by the mother had been taken out of context to make it seem as though he lives a “gangster life” saying that he writes about “gritty urban gangster life and create content … that do contain elements of drug culture and violence that are not part of my life and lifestyle”.
Although questions were asked in cross examination of the father which apparently went to matters of credit, no general submission was made by senior counsel for the mother in respect of the father’s credit.
The mother did not make any specific allegations in relation to domestic violence (apart from saying that the father drank excessively and on two occasions he used intimidating language towards her and placed his hands on her) to the counsellor, Mr D (page 163 of the annexures to her affidavit). I do not accept the suggestion that that was because she did not want to aggravate the situation. As I indicate below, I am of the view that the mother has embellished her evidence about matters going to family violence. I place greater weight on the reports she made at times which were closer to the relevant events.
Counsel for the Department made no general submission in respect of the mother’s credit.
Although each parent made statements which I thought were improbable, overall I formed the impression that both parents attempted to give their evidence in a relatively straightforward manner. I do not make any general finding relating to the credit of either parent.
BACKGROUND
The mother was born in Australia in 1978 and is currently 38 years old.
The father was born in 1983 in Europe and is currently 33 years old. He is a citizen of the United States.
From 2009 to 2011 the mother resided in the United States on a student visa whilst studying. The mother says she supported herself through her own savings and other financial support she received from her family in Australia.
In 2011 the parties commenced a long distance relationship.
In February 2012 the mother travelled to the United States as a visitor and between June and September 2012 she obtained a Tourist Visa.
In October 2012 the mother applied for a United States Fiancée Visa. In August 2013 that Visa was approved.
On 14 September 2013 the mother relocated from Australia to Connecticut in the United States.
In 2013 the parties married and resumed residing in Connecticut where they had lived together prior to their marriage.
On 25 May 2014 the mother received work authorisation enabling her to work in the United States. She subsequently worked four days per week in paid employment from July 2015 to May 2016. The mother otherwise obtained unpaid employment in the United States and received financial assistance from her family in Australia.
In July 2014 the mother and father attended upon Mr D, therapist on a number of occasions until 2015.
In August 2014 the child was born in City C, Connecticut in the United States. The child has resided in an apartment in City C, Connecticut since his birth
In December 2014 the mother was granted a conditional lawful permanent residence by the United States Citizenship and Immigration Services (a “Green Card”) for a period of two years.
From 28 January 2015 to 9 April 2015 the child went to Australia on a holiday with the mother.
On 28 April 2015 the child was granted Australian citizenship with the father’s consent.
On 26 June 2016 the mother took the child on a holiday to Australia to visit her family. The maternal grandfather accompanied the mother and the child on the flight to Australia having been visiting the United States in the month previously. The mother had paid for a return ticket to the United States on 4 August 2016. The father consented to the mother taking the child on this holiday. The mother says that the father was interested in obtaining permanent residency in Australia. The father denies this assertion. Shortly after her departure to Australia, the mother’s relationship with the father broke down.
On 4 August 2016 the father says the mother sent him a text message advising him that she would be remaining in Australia for some additional time in order for the child to have a speech and swallowing evaluation. The father suggested the mother change her return ticket to so the child could spend his birthday in Connecticut. After this communication, the father says the mother blocked all verbal communication with him and only communicated with him through email. Conversely, the mother says that she has attempted to contact the father but he has not been available and has often not answered her attempts to communicate with him. In oral evidence, the father stated that the mother and the child had spoken to the paternal grandmother through Skype and that he has spoken to the child on the phone but the mother has attempted to shorten these conversations and obstruct the father from seeing the child by video.
It is agreed that the mother wrongfully retained the child in Australia on 24 August 2016 when she failed to return to the United States with the child.
In September 2016 the mother failed to apply for an extension of her Green Card, which allowed her to live and work in the United States and freely move in and out of that country.
In September 2016 the child commenced attending a child care centre initially one day per week increasing to two days per week. The mother says he has settled into this new environment in Australia and has made friends. The child did not attend day care in the United States.
On 7 November 2016 the father filed an Application for Dissolution of Marriage, sole legal custody of the child, child support, an order for post-secondary education for the child and property settlement in the Connecticut Superior Court. On the same day, orders were made in the Superior Court of Connecticut for the father to have temporary custody of the child; for the mother not to interfere with the father’s custody and for the child to be returned to City C, Connecticut.
As already mentioned, on 30 November 2016 the Department filed an application seeking the return of the child to the United States.
The mother’s Green Card expired in December 2016, pending the mother filing and obtaining approval of an Application to Remove Conditions on Residence.
On 15 December 2016 ex parte orders were made by me restraining the mother from removing the child from Australia and likewise restraining the mother from leaving Australia until these proceedings were heard. Both the mother and the child were placed on the airport Watch List.
FACTORS IN REGULATION 16(1A) ARE SATISFIED
The mother accepts that the factors in Regulation 16(1A) of the Regulations are satisfied in that:
40.1.The child is under 16;
40.2.The child habitually resided in a Convention country, namely the United States, immediately before the child’s retention beyond the agreed date of 24 August 2016 in Australia;
40.3.The father had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s retention in Australia;
40.4.The retention of the child in Australia is in breach of the father’s rights of custody; and
40.5.The father would have continued to have exercised rights of custody if not for the fact that the mother retained the child in Australia.
Consequently, unless the mother establishes an exception the court must make a return order.
THE EXCEPTION UPON WHICH THE MOTHER RELIES
The mother relies upon Regulation 16(3)(b) of the Regulations which provides that a court may refuse to make a return order if a person establishes that 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.
The mother accepts that the onus of proof in establishing the facts relevant to Regulation 16(3)(b) rests with her.
If that exception is made out, the mother requests that the court exercise its discretion and decline to order the return of the child to the United States.
The plurality in DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401 (Gaudron, Gummow and Hayne JJ) said at 417 to 418:
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 Director-General, Department of Families & RSP (2003) FLC 93-152, the Full Court discussed at 78,508 whether or not these statements by the High Court in JLM altered what a previous Full Court in Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001 had said about the interpretation of Regulation 16(3)(b) of the Regulations in the following terms:
31. The need to consider ... the following comments made by the Full Court in Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001 at 77,159:
“In our view the three categories are to be read separately and to that extent we agree with the submissions of senior counsel for the wife. However it needs to be emphasised that there must be a ‘grave risk’ of the occurrence of one or more of such events. Further, it is impossible to ignore the existence of the words ‘or otherwise’. The consequence of those words is to link the quality which each of the first two categories must have to the emphatic words which describe the third category (‘an intolerable situation’). That is, it is not the grave risk of any physical or psychological harm which would satisfy the first two aspects of this subparagraph. The physical or psychological harm in question must be of a substantial or weighty kind.
This accords with the views of the Court of Appeal in Re A (supra), where at p 372, Nourse LJ said this:
‘I agree with Mr Singer, who appears for the father, that not only must the risk be a weighty one, but it must be one of substantial, and not trivial, psychological harm. That, as it seems to me is the effect of the words “or otherwise place the child in an intolerable situation”. It is unnecessary to speculate whether the ejusdem generis rule ought to be applied to the wording of an international convention having the force of law in this country. Assuming that it ought not, I nevertheless think that the force of those strong words cannot be ignored in deciding the degree of psychological harm which is in view.’”
The Full Court in RSP concluded that the High Court in JLM had restated the approach to be taken under s 16(3)(b):
34. We consider that little is to be gained by endeavouring to establish whether statements concerning the application of reg 16(3)(b) by the Full Court of this Court which pre-date JLM continue to have validity. In our opinion, the necessary guidance in relation to the application of reg 16(3)(b) is to be found in the paragraphs just quoted from JLM. [namely [41] – [45] as set out above].
In Wolford& Attorney-General’s Department (Cth) [2014] FamCAFC 197 the Full Court discussed with apparent approval the trial judge’s reliance upon In Re E (Children) (Abduction: Custody Appeal) [2011] 4 All ER 517, a decision of the Supreme Court of the United Kingdom in 2011. The Full Court said:
57. Reliant on In Re E at [33] the primary judge correctly proceeded on the basis that the predicted risk “… must have reached such a level of seriousness as to be characterised as ‘grave,’” and, from the same passage that although the word “grave” characterises the risk rather than the harm, “there is in ordinary language a link between the two.” It is useful that we now set out in full that paragraph and the following paragraph of In Re E:
[33] Second, the risk to the child must be 'grave'. It is not enough, as it is in other contexts such as asylum, that the risk be 'real'. It must have reached such a level of seriousness as to be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as 'grave' while a higher level of risk might be required for other less serious forms of harm.
[34] Third, the words 'physical or psychological harm' are not qualified. However, they do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation' (our emphasis). As was said in Re D [2007] 1 All ER 783 at [52], ' "Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate" '. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. [Mr R] accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.
In an oft-quoted passage in In Re C (A Minor) [1989] 1 FLR 403 at 410, Butler-Sloss LJ stated:
The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him…Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent.
Senior counsel for the mother acknowledges there are many decisions against refusing to return a child merely because the abducting parent refuses to return to the country of the child’s habitual residence because it would thwart the aim and purpose of the Convention and the Regulations (citing State Central Authority & Perkis [2010] FamCA 649 at [174] and the observations of Kent J in Director-General, Department of Communities, Child Safety and Disability Services & Delany (No. 2) [2015] FamCA 683 at [150] – [164]). Senior counsel for the mother acknowledges that approach is maintained notwithstanding that refusal by an abducting parent to return to the child’s habitual residence with a child can create a grave risk of harm to the child if the non-return of the abducting parent would cause the child severe emotional or psychological trauma or otherwise be intolerable.
The respondent mother however relies on what the Full Court said in Director-General, Department of Families Youth and Community Care v Bennett (2000) FLC 93-011 at 87,230:
47. ...where a very young baby was wrongfully removed or retained in circumstances that would otherwise lead to its return being ordered, if it was being breast-fed by its “abducting” mother and her personal circumstances genuinely precluded her return with the child (eg. her medical condition or perhaps even her incarceration), then the reg 16(3)(b) exception might be made out. In Re G (Abduction: Psychological Harm) [1995] 1 FLR 64 Ewbank J declined to order the return of a child to the USA when the evidence demonstrated that a forced return of the mother (who would not part from the three very young children) carried with it a likelihood that she might become psychotic, and that such a serious deterioration in her health would adversely affect the children.
(Emphasis added)
The mother seeks to make out the Regulation 16(3)(b) exception upon the basis invited by Bennett. In the rulings on objections, a number of the rulings were predicated on the basis that relying upon Bennett, the following argument was open to the mother:
Regulation 16(3)(b) ground might be made out if:
1) The abducting mother’s decision not to return has to be based on a genuine belief by her that there are circumstances which preclude her from returning with the child; AND
2) There are in fact personal circumstances which genuinely preclude her from returning with the child; AND
3) The mother’s decision results in “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”.
By way of shorthand I will refer in these Reasons to this formulation as the Bennett argument.
In final submissions senior counsel for the mother quoted the following passage by Singer J from Re: O (Child Abduction: Undertakings) [1994] 2 FLR 349 at 362:
In this case the children would find themselves in an intolerable situation if upon their return to Greece they were for any appreciable period to find themselves deprived of the continuity of day-to-day care hitherto afforded them by their mother. So would it be if they returned to live in a home shared contrary to her wishes by the father, or visited by him irrespective of her opposition. And whereas for many families financial constraints are inevitable (as in Re A and in B v B), were these children to be subject to a situation where the resources to finance their customary lifestyle risk being cut off, that would constitute a situation of hardship severe enough in the context of their experience to be described as intolerable. So would it be for them if their mother was unable to effectively function as their carer, as for instance, if she were subject to the type of extreme emotional bombardment to which marital disharmony sometimes leads, or if she were subjected to penal sanction or civil penalty for her actions initially in removing the children wrongfully, or for the manner in which subsequently she had resisted an order for their return in these courts. In the local and social isolation in which the mother would find herself, so seemingly humdrum a facility as the use or the withholding of a car might well represent for the children, because of its direct and indirect impact on their daily lives, the difference between a tolerable situation and one that was not.
A CARRIAGE AND FOUR: ARE CIRCUMSTANCES CREATED BY THE MOTHER’S CONDUCT?
The mother has decided not to go back to the United States. She claims there are reasons why. She further claims that as a consequence the parties’ two and a half year old child is at grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Part of the mother’s claim as to why she can’t go back falls squarely within the rubric articulated by Butler-Sloss LJ in In Re C because:
54.1.As discussed below, the mother currently does not have residency status in the United States as a result of her failure to do what was necessary at the end of 2016 to achieve that status;
54.2.The mother is in breach of a United States court order to return the child; and
54.3.The mother has retained the child in Australia in breach of United States law.
DOES THE MOTHER MAKE OUT THE BENNETT ARGUMENT?
Is the abducting mother’s decision not to return based on a genuine belief by her that there are circumstances which preclude her from returning with the child?
As indicated, the mother gave evidence that even if a return order was made by the court she would not return with the child. Given the demeanour of the mother when giving that evidence I was comfortably satisfied that as at the date of the hearing, she had made the decision not to return with the child if a return order for the child was made. I also find that the mother has a genuine belief that there are circumstances which preclude her from returning with the child. The Department did not challenge the mother in relation to the genuineness of her belief but they submitted that the reasons for her not wanting to return to the United States were not persuasive. Accordingly, I find that the mother makes out the first element of the Bennett argument.
Are there in fact personal circumstances which genuinely preclude the mother from returning with the child?
The mother says there are a number of circumstances which preclude her from returning to the United States. In her affidavit filed 31 January 2017 the mother says:
19. I have no family support in the USA. I have no home to go to and live in the USA. I have no car in the USA. I have no financial means or resources to enable me to live in the USA and support myself and [the child] financially. I have no health insurance in the USA … I understand that [the child] is covered under a … Health cover under the State of Connecticut…
20. I have no right to apply for or receive social security benefits in the USA and I cannot access or apply for public housing in the USA. I have no job to go to in the USA. Even if I am able to return to the USA (which I do not want to) and I am able to find a job, the income I will generate will not be sufficient to meet my or [the child’s] needs.
The mother says that when she lived in the United States she felt isolated and had little support. She says the only people she knows in the area in City C, Connecticut, where she was living, are residents of other apartments or acquaintances. She says that the father’s family rarely assisted in caring for the child.
The mother says the cultural issues she experienced of being a “white woman” “living in an African American family and neighbourhood were challenging”. I noted in that regard that the appearances of both of the child and the father make it obvious that they are members of an African American family and the father indicates he has a personal involvement in the “black” community.
The mother says she has no guaranteed status in or entry into the United States
The mother’s conditional lawful permanent residency status expired in December 2016. In order to renew this status, she was required to file an Application to Remove Conditions on Residence 90 days prior to the expiry of the grant of residency and no application was filed.
In the instructions provided to Mr E by the mother’s Australian lawyers, there is an admission that the mother was aware that the Green Card she had would expire after two years and would be required to file an application to extend the Green Card. The mother’s understanding was that that would thereafter provide her with a Green Card for a period of ten years. The mother knew she had not applied for that extension. The letter of instruction to the United States attorney indicates that the mother recalled that in September 2016 the father informed her in a phone call that she had received a package from the Department of Home Land. The mother asserted that the father never forwarded the package to her but the mother had formed the belief that the package from the Department would have been about her Green Card.
In her affidavit filed 31 January 2017 the mother says at paragraph [77] that she recalls being advised of the requirement to make this Application about two years after her Green Card was granted to avoid it expiring. At paragraph [78] of her affidavit the mother says that the father failed to forward her any correspondence or documents relating to the expiry that would have been sent to their home in Connecticut and did not alert her that such application was required to be made. This evidence by the mother contrasts what is set out in the letter of instruction to Mr E set out above, that the father had informed the mother that she had received a package from the Department of Home Land. The father says that he advised the mother that mail had been delivered to her in City C but she told him to keep it and leave her alone. The father’s version is more likely.
The mother knew she had to take steps to make the application before the end of 2016. The fact that she did not is not explained by her saying that the papers were sent to the address at which she had formerly been living in the United States. By the time the application was due the mother had taken the decision not to go back to the United States and consequently had no motivation to actively pursue the renewal of her Green Card.
Mr E, a solicitor in the United States specialising in immigration law, is acting for the mother in relation to her immigration issues. The evidence of Mr E covers a range of issues but of central importance is his opinion about the mother’s ability to obtain what in effect is an extension of time for the late filing of the application for the renewal of her Green Card. The extension of the Green Card should have been dealt with by way of the filing of an Application to Remove Conditions on Residence by September 2016. He says that the mother is unable to return to the United States with an expired lawful permanent resident card unless the United States Citizenship and Immigration Services (USCIS) accept an Application to Remove Conditions on Residence. Importantly he gives evidence that:
…we have been retained to prepare and file an Application to Remove Conditions of Residence requesting a waiver of the joint filing requirement given the pending divorce and the extreme cruelty to which [the father] has subjected [the mother] and requesting that the application be accepted as timely filed even though it is late. Our position, very simply, is that she could not travel to the United States and file the Application to Remove Conditions on Residence in a timely manner once the Hague Convention case had started in Australia. Given there is a divorce pending and with evidence of the extreme cruelty and emotional abuse as well, USCIS is likely to find this a compelling argument. If USCIS accepts the application, the agency will issue a receipt. A receipt will automatically extend [the mother’s] lawful permanent residence for an additional year and gives work authorization and travel permission for one year. While the case is pending, USCIS will also stamp [the mother’s] passport with an endorsement indicating that she continues to be a lawful permanent resident.
It is important to note in this evidence that Mr E says that the mother’s application to extend time for renewal of her Green Card is based upon a compelling argument. In the letter of instruction to Mr E dated 18 January 2017, he was asked whether the mother could file an Application to Remove Conditions on Residence and other questions about the filing, conditions and processing of that application. In his report dated 18 January 2017, Mr E advises that he has been “retained to prepare and file an Application to Remove Conditions on Residence requesting a waiver of the joint filing requirement”. I was not told at the hearing whether that application had in fact been made and if so, whether there had been any progress.
Mr E also gives some evidence that there is “some risk” that customs and border protection will not admit the mother to the United States because even though she has a receipt evidencing her Application to Remove Conditions on Residence, that receipt will be dated after her conditional lawful permanent residence has expired and she was outside of the United States when her conditional lawful permanent residence expired.
Even if the mother was retained at the border, it seems the mother would be immediately taken to an immigration judge to determine whether or not the mother was eligible to retain her lawful permanent residence. That case is likely to take a year or longer to conclude. In those circumstances the mother would be permitted to be in the United States while her case was pending. In those circumstances the mother would still be able to work but she would not be able to travel internationally during that time.
Whilst I acknowledge the evidence that there may be some risk for the mother at the border, I do not accept that that risk is sufficient to create a personal circumstance which genuinely precludes the mother from attempting to return to the United States.
Mr E advises that his first course of action is to “salvage” the mother’s lawful permanent residency first but failing that, he will attempt to make an Application to Remove Conditions under the Violence Against Women Act (“VAWA”). He explains that VAWA:
…provides immigration benefits to victims of domestic violence and domestic abuse when the abusive spouse is a United States citizen or lawful permanent resident. This typically is used in situations where the non-citizen victim does not have a claim to lawful permanent residence and is already in the United States, however, it can be filed while the victim is outside the United States provided the abuse occurred while the victim was in the United States. When the person is outside the United States, a VAWA case is a two-step process. The initial step is a petition with USCIS. Once USCIS approves the petition, the case is forwarded to the United States consulate for issuance of an immigrant visa. USCIS will require credible evidence of the physical, mental, or emotional abuse. Typically, it will take a year to eighteen months for the two steps to be completed.
Mr E advises that if the mother’s application pursuant to VAWA was successful, “it is unlikely that her application would be assessed prior to 2018”. The mother would not be able to travel to the United States while the VAWA petition was pending. Although the final adjudication is likely to take a year or longer, Mr E says that if her case is approved she will be a lawful permanent resident and will be able to work and live in the United States without restriction.
The mother will say to USCIS that her pending divorce “and the extreme cruelty to which the father has subjected the mother” creates a compelling argument for her to receive an extension of time. Whilst I discuss the issue of family violence below, I accept Mr E’s opinion that the mother can mount a case to the USCIS which makes it likely that the mother will receive an extension of time to make an application to renew her Green Card. I conclude that it is likely that that application would be successful. Accordingly, I am unable to find that the mother’s status in or ability to re-enter the United States is a personal circumstance which genuinely precludes the mother from returning to the United States.
The mother says she may be separated from the child at the airport when she arrives in the United States
The mother has not established that this is a significant risk. I note the mother’s father travelled with the mother and the child to Australia in June 2016 and I infer there is nothing stopping him travelling with the mother on a return journey back to the United States.
Under the current ex parte order the child would at least temporarily be placed in the father’s care. The mother could make an application to the United States Court that the child temporarily remain with her upon her return to the United States. In addition, if the mother agrees to return I will impose a condition that the father make that application.
The mother says she may face criminal charges and she may face possible contempt charges
In Department of Family and Community Services & Abraham [2016] FamCA 847 Le Poer Trench J refused to return a child at [375] where he found that the circumstances of that case satisfied him that there was a real threat of separation of the child from the abducting mother due to the incarceration of the mother and that that separation posed a real risk of the child suffering or being exposed to psychological harm and/or being placed in an intolerable situation. Justice Le Poer Trench in that case also accepted that the child would be placed in an intolerable situation if returned to the United States because the abducting mother would not have the resources to support the child while in the United States. Senior counsel for the mother contrasts the case of Abraham with the case of Delany where Kent J found that the abducting mother had failed to adduce evidence to show that any criminal prosecution of her in the United States was likely to result in her being incarcerated.
The mother has filed evidence from Mr F (a lawyer engaged by the mother in the United States) in relation to two potential difficulties upon the mother returning to the United States. The first is that she might face possible contempt of court or contravention of orders charges. The second is the possibility of criminal charges.
The mother has been served with an ex parte order made by the Supreme Court of the State of Connecticut that the child is to be returned. Mr F opines that since the mother has violated that order she would be subject to a finding of contempt. He opines that there is a risk the father would initiate such an application. He opines that if she is found in contempt the finding would weigh against her chances of receiving joint or sole custody of the child. He also says that if she returns she could face civil incarceration until she turns the child over to the father in accordance with the order. He does not say she would face incarceration because she had not expeditiously complied with the order made in the Supreme Court of Connecticut to return the child.
The Supreme Court of Connecticut has the authority to find a person in contempt upon its own motion. However, Mr F says that this is extremely rare. Mr G, the father’s lawyer, also said it was “extraordinarily unlikely” that the judge in the parenting proceedings would bring contempt charges against the mother of the court’s own motion and I infer that the court could only entertain a contempt or contravention application if the father files a motion for contempt or contravention. The father has agreed not to do this. Mr G also says, and I accept, that it is highly unlikely the mother would be subject to incarceration as a result of non-compliance with the order.
Secondly, Mr F opines that the mother’s failure to return the child to the United States is a “violation of Connecticut Statutes concerning interference with custodial relations” and while criminal charges have not yet been brought against her, if they are then there is a “substantial chance that she could face criminal prosecution” but would have a chance to achieve bail. Mr F also gives evidence that a Connecticut penal statute makes taking a child outside of the State of Connecticut a felony punishable by a term of imprisonment of one year to five years in prison. Australia has a similar penalty in s 65Y of the Family Law Act1975 (Cth). That section provides a penalty of imprisonment of three years. Mr F says “if convicted [the mother] would definitely be sentenced to at least one year”.
Mr F in his affidavit of 15 March 2017 gives further evidence about the inability of the parties, by agreement, to control what a prosecutor might do in the prosecutor’s discretion once a criminal complaint is made.
Importantly Mr F expresses no opinion about the likelihood of charges being laid against the mother, he simply expresses the opinion that if they were laid and if a conviction was obtained against the mother, then she would “definitely be sentenced to at least 1 year”. Mr F’s evidence does not allow me to assess the risk of a charge being laid by the prosecution. I accept Mr G’s opinion that the reasonable expectation is that no criminal charges will be laid.
There is no reasoning and no way of me being able to assess the basis upon which Mr F has expressed the opinion that the mother, if convicted, would definitely be sentenced to at least one year. Mr F gives no information about how many convictions there have been (if any) in the State of Connecticut in recent times.
The father did make a complaint to police once he became aware that the mother had retained the child in Australia. Mr G gave evidence that he had recently done a search and no charges had been laid against the mother by the police. Mr G agreed that given the mother being out of the country might be a reason as to why a charge has not yet been laid. Mr G said it would be a matter brought by the prosecution and then also a presiding judge to decide whether any warrant was issued and any charge is pursued.
Mr G however was not moved from his opinion in his affidavit sworn 23 February 2017 that the mother “will reasonably be expected to have no criminal exposure for custodial interference if she appears in the United Sates accompanying [the child] as a result of a Hague return order”.
I am unable to find on the evidence that the magnitude of the risk of the mother being incarcerated upon her return to the United States constitutes a personal circumstance which genuinely precludes her from returning to the United States.
The mother says she has no welfare, healthcare or food stamps available to her upon her return
Mr E states that the child would be entitled to SNAP (social security entitlements) and other United States Federal assistance programs but the mother would not be eligible for the same. He says, “[t]he aid agencies in the United States have formulas to calculate how aid is changed when there is a mix of United States citizens and non-qualifying relatives in a household”. He says that sometimes applicants under VAWA have access to additional aid programs but he does not believe the mother would be eligible for such assistance.
The father asserts that the mother will be eligible for health insurance under a program called “Cobra” in the United States.
This difference in the evidence was not explored during the hearing and I am unable to make any finding as to the eligibility of the mother to health insurance. The more general issue is whether the mother has established she would be unable to sustain herself in the United States and pay for her essential needs.
The mother says she cannot work in the United States and if she could work, she is unable to obtain sufficient remuneration in the United States
The mother presented as an intelligent woman who demonstrated she knew what was in the voluminous material that had been prepared in her case. The mother has had a tertiary education in Australia. She sets out her work history in the United States. The mother gives evidence as to why she doesn’t think she could obtain employment in the United States and if she could obtain employment that the income she could earn would not be sufficient to support herself and the child.
The only paid employment obtained by the mother in the United States was from July 2015 to June 2016 (after the child was born) where she worked in a casual “pick-n-pack” positon until the company relocated and she lost her job. Prior to that position, the mother worked as a volunteer. She has also volunteered in a cafe in the United States, a two hour train commute from City C. The mother conceded in her oral evidence that after she ceased work in June 2016, she did not apply for any jobs in the United States given the proximity of her departure to Australia and that is the reason she does not have a job to go back to in the United States. She went on to say that her understanding of the job opportunities available to her in City C would require some training or tuition to complete qualifications meaning that she would not be able to step off the plane from Australia and obtain full time employment that would enable her to immediately support herself and the child in a sufficient manner.
Currently, I infer the mother is paying for the child to be in preschool two days a week. The mother says that while in Australia along with the assistance from her family she has been accessing government benefits.
I have found it is likely the mother would be able to go back to the United States. If she did she would have the right to work. I am unable to find that the mother would have no earning capacity and that with the assistance provided by the father she would be unable to support herself and the child when the child was with her.
The mother says she would have nowhere to live in the United States
The mother gives evidence of rental accommodation she has sourced in the United States and says she is unable to afford suitable accommodation in safe locations within walking distance of public transport.
In his affidavit sworn 21 February 2017 the father said that if the mother and child return to the United States he would allow them to stay in his apartment without him, with family or friends, or at a hotel until they appear in court “on the next business day to establish a parenting plan”. The mother says she is unaware whether she could occupy the property currently occupied by the father should she return. I accept the father’s offer of accommodation is limited. The father was not asked about the offer. If the mother was to return I intend to impose a condition on the return order that the father allow the mother to stay in the father’s apartment without him until the Supreme Court of Connecticut makes interim parenting and financial orders.
The mother says the father cannot support her and the child and that she has no “independent” wealth or resources
The mother gives evidence of the father’s work history being one that was intermittent and relatively low paid. She says his income was not sufficient to meet their needs. She says that she used some of her savings to pay for their expenses and her parents and other family members also provided money to meet their living expenses. She says that the father received food stamps due to his low income and unemployment benefits during periods of unemployment. She says that because of his intermittent employment, the father’s health insurance coverage was often temporarily discontinued. She says when she worked in the United States she was earning $175 per week net and could not survive on food stamps and the $75 a week she had left after paying $100 to a babysitter every week when she worked.
During the directions made in preparation for the hearing of the matter and during cross examination, there was much focus on the father’s financial position. It is the mother’s case that there is no realistic prospect that the father can support her and the child if they return to the United States.
The father is currently in full time employment but his primary occupation is in an industry where permanent employment is not guaranteed. The father asserts that he stands ready and has the capacity to financially support the mother and child upon their return to Connecticut.
The father’s assertion was tested in cross examination. There was particular focus on Exhibit 3 which was a financial affidavit filed by the father in the family law proceedings in the Superior Court of the State of Connecticut. The father was challenged in relation to his statement that his weekly income was US $3,107.96 gross. The instruction to that statement is for gross weekly income based on year-to-date but no less than 13 weeks and if less than 13 weeks an explanation was required. He said in his oral evidence that the figure would not be the year to date but rather was based on the 13 weeks of work prior to him swearing that document. Exhibit 6 is an aide memoire based on the father’s payslips that examines the father’s income between 8 December 2016 and 18 February 2017 and calculates a gross weekly income of US $1,200 gross over a 13 week period to 25 February 2017. When the father tried to align those two figures together, he said that the US $3,107.96 figure he stated in his financial affidavit was as accurate as he could ascertain. I accept that US $3,107.96 gross was not a correct average figure for the 13 weeks prior to the dates of the father signing the financial affidavit.
Counsel for the Department drew attention to the wage slip at page 261 of the exhibits which form part of the affidavit filed by the Department on 15 March 2017. That pay slip discloses that as at 3 March 2017 the father’s 2017 year to date gross earnings was in a sum of US $24,990.95. That pay slip would indicate an average weekly gross earning by the father in 2017 of US $2,824 gross per week.
Without a full analysis of the volume of financial material that the father has provided (which I was not invited to carry out), I am unable to make any finding as to the father’s current weekly earnings.
The father’s rent is US $253 per week. The father agreed his rental statement for the period ending 1 February 2017 indicated that he was in $2,527 of arrears. He has commitments to an auto loan of US $75 per week and pays US $50 per week on his credit card (in respect of which he has a debt of US $6,419). The father has stated that (at a level of income of US $3,107) his income tax is US $679 and his mandatory retirement contribution is US $192; health insurance is US $199; Medicare US $45 and state income tax deductions US $31. I infer that some of those deductions would be less if his gross income was in fact less. Those deductions set out in Exhibit 3 do not include any expenses for clothing, groceries, travel or entertainment.
I am unable to conclude, as invited by senior counsel for the mother, that the father does not have the capacity to pay spousal maintenance or child support. I accept the father’s evidence that he has every intention of doing so should the mother have returned to the United States. The extent of the father’s capacity to pay support for the mother and child upon return will ultimately be a matter for determination by the United States authorities.
As discussed elsewhere, the mother’s status in the United States would allow her to work. She is an intelligent, healthy woman and has the capacity to seek employment.
In addition, there is evidence that the mother does have as a financial resource, support from her family in Australia. The mother confirmed that her father is funding her legal proceedings both in Australia and the United States. The mother has been able to afford private representation during the course of the preparation of the volume of material and the hearing in this case (including representation by senior counsel at two directions hearings and the final hearing). The mother has been supported by her family upon her return to Australia. She has not obtained any employment since she has been back in Australia. She says that she is not certain that she will continue to receive the financial assistance she has obtained in the past from her family should she return to the United States. Given the history of support to date I place little weight upon the mother’s stated uncertainty about her family supporting her in the future.
It should be remembered that in the context of this hearing, the financial circumstances of the mother only need to be considered in the short term given that if a return order is made the medium and longer term financial circumstances of the mother and father will be a matter for consideration by the Superior Court of Connecticut in circumstances where I infer that had the mother returned with the child the mother would be making an application to that court for her to be able to return to Australia with the child.
I conclude that the financial circumstances of each party in this case are not such that they are personal circumstances of the mother which genuinely preclude her from returning to the United States.
The mother says she would have no motor vehicle in the United States
The mother says she has no car in the United States and that her lack of use of a car contributed to her feelings of isolation in the United States. The mother says the “area in which we resided in at City C is a location whereby it snows four (4) months in the year. Supermarkets are at least two (2) miles away from our home. There are some bus routes”. The mother says that she was able (with some logistical difficulties) to borrow the paternal grandmother’s motor vehicle when the father’s was unavailable.
I am unable to find the possible lack of access to a motor vehicle in this case turns a tolerable situation into an intolerable one for the mother and I find the possible lack of access to a motor vehicle, when there are some bus routes, does not genuinely preclude her from returning to the United States.
The mother says no condition placed upon a return order or undertakings given by the father could ameliorate any of her concerns
Had the mother agreed to return to the United States I would have imposed conditions including:
107.1.The father undertake not do anything to press criminal charges against the mother;
107.2.The father not make any application that she be dealt with for contempt or contravention of court orders;
107.3.The father seek a variation of the current ex parte order so that upon her return the child stay with the mother until further orders are made by the Supreme Court of Connecticut;
107.4.The father provide short term accommodation for the mother and the child; and
107.5.The father do all things and sign all documents to seek expedition of the current family law proceedings in the United States.
I find the father has the capacity to do all these things.
Are there other reasons why the mother does not wish to return?
The evidence discloses there are other reasons apart from those that the mother gives as being relevant to the question as to why the mother does not wish to return. They include:
109.1.She was unhappy in the marriage in which she claims the father exercised coercive and controlling family violence against her. The mother, correctly in my view, did not submit that the history of family violence alleged by her (and discussed below) was a personal circumstance which genuinely precluded her from returning to the United States. That history is not one that would support an argument that the mother would not be able, in the United States Courts, to obtain orders that gave her appropriate protection based upon that history, should she convince that court of that history and that protective orders were warranted. Rather, the mother relied upon the history of family violence to assert that the child was at a grave risk that the return of the child without her to the United States would expose the child to psychological harm and otherwise place the child in an intolerable situation;
109.2.She felt minimally supported by the father;
109.3.She didn’t have available to her the supports that she has in her country of birth (primarily her mother, father and aunt who live in Australia);
109.4.The father’s culture was different from hers; and
109.5.The father’s parenting style was different from hers. The mother states that one issue that caused conflict between her and the father was their different approaches to parenting, especially in relation to the child’s dietary issues.
Overall I infer that the mother was unhappy in the United States and either before she left the United States for Australia or after she came back to Australia she formed the view that she would be happier if she resided in the place that she considered her home. The mother’s unhappiness is in part a function of some of the reasons she gives as to why she believes she is genuinely precluded from returning but also in part a function of these other issues. I accept the mother would be unhappy upon having to return to the United States. The level of the mother’s unhappiness and the factors which underlie that unhappiness would of course be the subject of exploration and examination in the family law proceedings currently pending in the country of origin in the context of any relocation application made by the mother.
The mother’s mental health
In JLM there was a “very serious risk” or “high risk” of suicide. In that case there was unchallenged evidence that the mother was suffering from a major depressive illness. The High Court at 427 rejected an argument that the mother was “the originator of the source of the risk of harm” because the mother was not in command of her situation by reason of her illness. Similarly in RSP, there was evidence from the mother’s treating psychologist of the potential of her suicide and that her suicide would expose the child to psychological harm.
At paragraph [124] of her affidavit the mother says:
By December 2014 I was so tired and stressed I broke out in shingles. By January 2015 I felt very sad and depressed being away from my family, and scared of [the father’s] retribution towards me for any behaviour or parenting practices of which he disapproved.
She goes on to say at paragraph [127]:
By June 2016 I felt trapped in the relationship. I felt isolated at home despite the fact that I had been working four (4) hours each day up to May 2016. I had little access to the car as [the father] needed it for work. I often had to justify my whereabouts, the company I kept, spending and my behaviour in front of family and mutual friends that [the father] found questionable. [The father] often returned home from his work saying, “I am sick of seeing you and our apartment”. He used to then take off in the motor vehicle and not return home until late at night.
At paragraph [95] of the mother’s affidavit filed 31 January 2017 I admitted as evidence of her current state of mind a statement by her that she had previously suffered from post-traumatic stress disorder both while living in the United States and since returning to Australia. In other parts of her affidavit she refers to the fact that she had post-partum depression.
In response to a question from counsel for the Department the mother said she had no a medical condition preventing her from returning to the United States. When specifically asked if she had any serious psychiatric condition preventing her from returning, the mother responded by saying that “a psychiatrist would be able to tell you that for sure”. The mother agreed that she had not produced any evidence from a psychiatrist.
The mother led no independent medical evidence about her having had post-partum depression or post-traumatic stress disorder. The mother gave no other information about the effect that these conditions had upon her or the duration of those conditions.
In the father’s affidavit sworn 21 February 2017 at paragraph [23] he states that the mother’s mental health was a problem during their marriage which features were exacerbated by “pregnancy and postpartum depression, racial and cultural differences, and her distance from Australia”. He says that he sought to obtain treatment for her although it is unclear whether he was successful in doing so.
Dr H (“Dr H”), psychiatrist, in his report dated 31 January 2017 opines, in the context of him accepting the hypothetical circumstance of the mother being incarcerated upon her return to the United States for a period of at least one year, “[i]t is also likely that should the mother be incarcerated that she will become depressed. She is vulnerable to developing a significant depressive illness, as it appears from her material that she has already suffered some form of Post-Natal Depression”. He added that in these circumstances the child “will once again be presented with a depressed mother which will negatively alter the quality of the relationship between them”. I can place no weight upon that opinion because:
118.1.Dr H has not met the mother; interviewed her or made any mental status assessment of her;
118.2.Dr H was relying on evidence that was only admitted as to the mother’s state of mind and not as to the establishment of the earlier diagnosis (although the father subsequently confirmed he understood the mother had “postpartum depression”);
118.3.Dr H’s phrase “some form of Post-Natal Depression” itself evidences the lack of information Dr H had about her condition;
118.4.The opinion is based upon an assumption the mother will be incarcerated for a period of at least one year upon her return to the United States and as I have discussed above the likelihood of that happening has not been established to my satisfaction.
Conclusion
Having considered all of the matters which the mother says genuinely preclude her from returning to the United States with the child and for the reasons discussed above, I find that none of them individually or any or all of them cumulatively genuinely preclude her from doing so. This finding means that the mother fails to make out the exception under Regulation 16(3)(b) of the Regulations. The mother’s own actions should not be a basis upon which she can resist a return order being made.
GRAVE RISK AND INTOLERABLE SITUATION
If I am wrong about the mother’s personal circumstances genuinely precluding her return to the United States, I turn to the issue of whether there is a grave risk that a return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation if the child is returned without his mother.
The primary submission made by the mother is that the child’s primary attachment is with her and removing the child from his primary attachment would expose the child to a grave risk and that the return of the child would expose the child to psychological harm or otherwise place the child in an intolerable situation
Senior counsel for the mother submits that the child is very young. He has never had any significant absences from his mother (the father agreed that that was so). The child continues to breastfeed. The history from his birth as outlined in the mother’s affidavit makes plain that his primary attachment is with her. Senior counsel for the mother submits that “[t]hese factors speak forcefully to support the conclusion, even without expert opinion, that removal from his mother would be extraordinarily traumatic, psychologically damaging and intolerable for him in every sense of that term”.
Senior counsel for the mother submits that if a return order was made in the face of the mother’s current intention not to return to the United States with the child, the child:
123.1.Could not be expected to have any sustained regular communication with his mother;
123.2.Will be cared for by a father who has had a minimal role in his day to day care and who in the past has demonstrated very different attitudes to parenting and discipline;
123.3.Will abruptly cease to breastfeed the child without him being properly weaned;
123.4.The day to day care of the child is unknown as the father has not provided evidence as to who, how or where the child will be cared for whilst his father is working.
123.5.The father has shown little compassion towards the mother and has demonstrated intolerant attitudes towards the child.
I accept that the child has his primary attachment with his mother. I do not accept however the categorisation of the child’s relationship with the father as being “minimal” or that the father had “intolerant” attitudes towards the child. In the context of this truncated hearing it has not been demonstrated to my satisfaction that the father showed “little compassion towards the mother”.
A Departmental record from the Department of Children & Families State of Connecticut tendered by the mother in these proceedings discloses that on 14 October 2014 the mother called the Department to discuss with them difficulties she and the father were experiencing in their attitude to breastfeeding. At that time, when the Departmental officer questioned the mother regarding the father being abusive towards her and if she felt safe in the home, the mother denied the father was being abusive but said the mother didn’t like how the father talks with her and she didn’t want the child being raised in tension. The record notes that the mother “reported Father loves his son and he is really good to the son”. This report (at a time when the child was about two months old) provides a small piece of objective evidence to indicate that the father had an active involvement with his new born baby.
Dr H’s Evidence
The mother relied upon an affidavit by Dr H who is an experienced child and family psychiatrist in private practice.
Senior counsel for the mother submitted that there was no cross examination of Dr H; the “central and obvious” planks relied upon by Dr H provide a proper basis for the opinion he advanced which were in strong terms and there could be no challenge to the conclusions he reached.
Dr H’s report is admitted into evidence subject to any future ruling in relation to its relevance and subject to the question of what weight should be placed upon his evidence. The mother seeks to rely on Dr H’s opinion, based on the mother’s account of the child and history, that a removal of the child from the mother would have long-lasting detrimental and devastating effects on the child’s future development and further that the child will be exposed to significant psychological harm and will be in an intolerable situation.
Dr H was informed that it was the mother’s contention that there was a grave risk that the return of the child under the Convention would expose the child to psychological harm and would otherwise place the child in an intolerable situation in the event that the child was ordered to be returned.
Dr H did not see either of the parents or the child. He had only the evidence filed by the mother, the mother’s United States immigration lawyer and the mother’s United States family lawyer. For reasons of which I am not aware, the mother’s lawyer did not provide Dr H with the Department’s Form 2 which, inter alia, contained an affidavit from the father.
The reservations upon placing any or any significant weight on evidence of the nature that Dr H has given do not need to be discussed (see Re W & W (Abuse Allegations; Expert Evidence) (2001) FLC 93-085 (contained in the mother’s list of authorities; the Dr H in that case is not the same Dr H as in this case)).
The lawyer for the mother requested Dr H to assume that the court will accept the matters outlined in the mother’s affidavit and in particular “her intention is not to return to the USA regardless of what order the Court will make” for the reasons that are outlined in her affidavit material as well as accepting the evidence that is contained in the affidavits from the United States attorneys in relation to immigration, criminal and other sanctions that the mother will face were she to attempt to return to the United States. The letter of instruction also asked Dr H to assume a finding would be made that the mother was the primary carer for the child and “therefore the child’s attachment lies with [the mother]”. Dr H was firstly asked upon that assumption to “outline and consider the consequences to the child (sic) psychological welfare and what would occasion the child in the event of the child returns to the USA without [the mother]?”
Dr H was secondly asked to assume that the mother did return with the child and contempt proceedings or criminal sanctions awaited her and that she was incarcerated for a period of one year. Having assumed that fact, Dr H was asked to outline and consider the consequences to the child’s psychological wellbeing and welfare.
Thirdly, Dr H was asked to assume that the mother did return with the child and that she was refused entry at the US border and taken into custody and brought before an immigration judge and as a consequence the child was separated from her. Based on that assumption, Dr H was asked to discuss the consequences for the child’s psychological wellbeing if the child was separated from the mother for a short or lengthy period of time.
In response to those instructions and having read only the mother’s material, Dr H provided an opinion confirming the mother’s contention, namely that there would be in the circumstances put by the mother, a long-lasting, detrimental and devastating effect on the child’s future development and that the child would be exposed to significant psychological harm and be in an intolerable situation if he was returned to the father. Dr H gave the following reasons based upon the mother’s evidence:
135.1.The father is unlikely to be sensitive to psychological issues;
135.2.The father would be likely to misinterpret and then treat the child’s bewilderment and grief punitively;
135.3.The father is unlikely to maintain constant phone or Skype contact between the mother and the child;
135.4.The father is unlikely to speak lovingly of the mother in the mother’s absence;
135.5.There would be nothing to keep the memory of the mother “alive” for the child and in essence, the mother would be dead to the child;
135.6.Children of this age lack the verbal capacity to integrate and make any sense of such a major loss;
135.7.The long term effects of this type of early childhood loss of a parent in the circumstances described are “the development of depression in later childhood, adolescence and adult life”;
135.8.The only way of the child coming to terms with his loss is to attribute himself as the cause of the loss;
135.9.There is a risk of the child developing a sense that he is bad and dangerous to adults close to him;
135.10.There is a risk that the child will shut off emotionally in order to spare other adults the same fate;
135.11.The child’s capacity to trust familiar adults to keep the world safe and predictable is also shattered by the sudden loss of a parent and that that is likely in later life to impair the capacity to trust others and to form loving and lasting relationships.
Dr H also accepted as unquestioned the mother’s assertion that “this child has been subject for a major part of his early life to a household of family violence”. Based on that assumption, Dr H opined that the child was vulnerable to exposure to further trauma “such as would seem to be a regular feature of the father’s lifestyle in particular his erratic work hours and drug taking”.
Finally, Dr H opined that the emotional gains that had been achieved for the child by the child being retained in Australia would be lost.
In answering the second question (in relation to an assumption the mother was incarcerated in the United States for a period of at least one year), Dr H assumed that at times the father had physically abused the mother and had threatened her life.
In response to the second question, Dr H opines that there is a risk in the child’s adolescence that he might turn to drugs to relieve the bad feelings or self-harm. “In early adult life they may become frankly suicidal – particularly following the break-down of a significant relationship” (the use of the word “they” underscores the fact that Dr H is giving very general generic advice as to possible long term risks if the position put by the mother is fully accepted).
As earlier indicated, Dr H opined that if the mother was incarcerated for more than a year she may develop a significant depressive illness and in those circumstances he said that her child will once again be presented with a depressed mother which will negatively alter the quality of the relationship between them.
In response to the child being taken from the mother at the border, Dr H said this:
I am assuming for the purposes of this proposal, the father would apply for custody of [the child]. If such an application were made, then I think it would be in the child’s best interests to be notified as a child at risk and possibly placed in temporary care pending an investigation into matters of the child’s emotional, psychological and physical safety in the care of the father. It may be in such a circumstance (temporary care or foster - care) that [the child] stabilised emotionally to some extent, and that his distress be tolerated and understood, rather than punished.
Dr H opined that if the child was taken into care then it might be that the child would be able to see the mother more frequently than if the child was with the father and in an emotional environment which was not adverse to the child (as Dr H believes it was during the period of the parents’ cohabitation).
Much of Dr H’s opinion is predicated upon the assumption that the court in the country of origin would not expeditiously hear an application by the mother in which the mother put proposals to the United States Court as to what arrangements would be in the best interests of the child, particularly in the short term, and presumably the mother would maintain in those proceedings her assertion that the child’s best interests would be facilitated by an order allowing the child to return to Australia and primarily live with the mother in Australia.
Parts of the material that Dr H read and apparently relied upon were excluded on objection or otherwise admitted as to the mother’s state of mind only. I have made findings contrary to a number of matters assumed by Dr H.
There is insufficient evidence before me to establish a number of the other propositions that Dr H relies upon in expressing his opinions.
As stated in Re W & W (Abuse Allegations; Expert Evidence) at 88,464, there are grave dangers in reliance upon expert evidence given in the circumstances in which Dr H provided his evidence in this case. The Full Court at 88,464 to 88,466 discuss those grave dangers in detail. I place very little weight on Dr H’s evidence because of the nature of the information upon which he has expressed his opinions and his lack of opportunity to properly assess the issues.
The father’s work patterns
The mother says while they were residing in the United States, the father would work long hours and on occasion would not return home for days or weeks. She says that the father would not be able to care for the child given his work commitments and other interests and the father has not cared for the child more than one to two hours at a time previously. The mother says the father’s mother, who lives in the United States, has spent little time with the child. The father asserts that he spent considerably more time with the child than asserted by the mother.
The father was taken to a payslip ending 1 September 2016 at page 286 of the exhibits to the affidavit of the Department filed 15 March 2017. That payslip indicates that the father worked 16.2 hours per day in one day. The father had previously denied that there had been occasions when he worked 16 – 18 hours per day. In explaining why his payslip indicated that he had worked 16 hours in one day out of five, the father said that the company he works for pays him for the use of his laptop by adding to the hours he works and he also suggested that he was paid royalties by putting additional hours onto his payslip. He said his employer does not want to make gross payments for equipment so they add it to the hours worked. I found the father’s evidence about this particular pay slip unconvincing.
The father’s says, and I accept, that he has a “well-established family support network” and the child’s paternal grandmother, great-grandmother and cousins, whom the child has close relationships with, all reside in City C. He also says that the artist community in which he lives “loves and nurtures” the child. In his oral evidence that father said that he works as a consultant and his employer is understanding of the need for him to put his family first.
The father’s assertions about the child’s environment in Australia as compared to that in the United States
The father says that he is fearful of the child’s environment in Australia as he believes the mother and child are in contact with the maternal grandmother who he does not believe to be a suitable carer. He has significant concern that the child may be at risk of abuse or neglect in Australia. Specifically he says that the maternal grandmother is an active alcoholic and subjected the mother to neglect and abuse when she was a child. He also believes the maternal grandfather to have a psychiatric illness.
The mother and child reside at the mother’s aunt’s home in Australia where she and the child share a room. The maternal grandmother resides in a unit downstairs which has its own entrance. She says she has not left the child in the mother’s sole care as she “suffers from alcohol dependency”. She says she and the child spend time with her father who lives a short distance away.
Breastfeeding
One of the basis upon which the mother says there is a grave risk to the child of psychological harm or would place the child in an intolerable situation is the fact that a return order would create an abrupt end to the mother breastfeeding the child. Breastfeeding was a matter specifically mentioned in Bennett’s case but in the context of a “very young baby” which the child in this case is not.
Dr H did not refer to breastfeeding as a matter that concerned him when he was providing his opinion in relation to grave risk.
At paragraph [97] of the mother’s affidavit she gives the following evidence:
97. [The child] was born with a cows milk protein allergy which the paediatrician diagnosed when he was 8 weeks old. The paediatrician suggested that I trial eliminating dairy from my diet for 2 weeks to see the effect on [the child]. I did what he told me. He also referred me to a lactation consultant whom I also saw. It was recommended that he be given a special formula but the cost was outside of our budget so I continued breastfeeding. The lactation consultant recommended to me in [the father’s] presence that “you should breastfeed [the child] til he is 2 years old. that (sic) is our recommendation”. After we left the lactation consultant’s offices, [the father] was very unhappy with her recommendation and said to me words to the effect: “Just put him formula. This is bullshit.” By the time [the child] was one year old, he started to breastfeed about once every 4 hours during the day.
In her oral evidence, the mother said that the advice she received in relation to breastfeeding was to do so until the child was least two years of age. At paragraph [155] of her affidavit the mother says that the child is now “eating well”. In her oral evidence the mother said that her normal breastfeeding pattern when the child is not at preschool is when the child wakes up, before a nap in the middle of the day, before bed and during the night. She said that when the child is at preschool, he is given oat milk.
The mother’s evidence is that the child currently uses breastfeeding as a way of obtaining comfort from the mother. He has gone past the point needing breastfeeding for nutrition.
The mother indicated it is her intention to wean the child after he is three years of age, in less than six months or more.
Risks of Family Violence
The mother’s case is that family violence is relevant to the issue of grave risk. As I have indicated, senior counsel for the mother did not seriously urge me to find that the history of family violence as asserted by the mother was a personal circumstance of the mother which genuinely precludes her from returning with the child to the United States.
Given the mother says she is not returning to the United States, the mother says if orders are made returning the child she holds “grave concerns” for the child’s psychological wellbeing because he will be exposed to his father’s bad temper and excessive drinking.
The mother says the father was physically violent towards her. She also says that the father was verbally abusive and financially controlling.
The mother says on two occasions she thought the father threatened her life. At paragraph [141(d)] of the mother’s affidavit she says on 20 July 2015, when the father locked her in a bathroom that he later told her “If I was a real nigger you wouldn’t have time to call 911. It would already be too late”. At paragraph [142(d)] the mother says that in January 2015 while she was in Australia, she posted a photo of herself online to which a male friend of hers gave a compliment. The mother says she received a text message from the father stating “Do not cuckold me because I will come there and kill you both”. The father denied sending this text message and whilst the mother has provided screen shots of other text messages she has not provided a copy of this one.
The father was not asked whether or not he had threatened the mother’s life but generally denied that there had been any verbal abuse in their relationship.
There is no indication in any of the records from police, child welfare, Maternal, Infant and Early Childhood Home Visiting program or other professionals that the mother made any contemporaneous or indeed any complaint that the father had threatened her life.
The mother also alleges that the father smokes, ingests marijuana and recounts various incidents where he was intoxicated.
Whilst there is significant material provided by the mother in support of her assertion that her marriage was one that featured family violence, the truncated nature of the hearing meant that issues in relation to family violence were not fully explored. A proper exploration of the mother’s allegations of family violence is a matter for the court who hears the final parenting controversy between the parties. The father generally denies all allegations of family violence made by the mother. He denies that any form of physical violence occurred during their relationship and while he acknowledges that they had arguments and troubles, he asserts there were no incidents of verbal abuse.
The mother says that in 2014 the father told her he had a gun. She says in addition, he keeps at least three weapons lying around his house being a ‘butterfly’ fighting knife, a spring loaded dagger and some knuckle dusters. The father was cross examined about keeping a gun in the house. He stated that he had never owned a gun in his life and was in fact “anti-gun”. Notwithstanding the objective records indicate that the mother made a complaint to authorities about the father keeping weapons in the home, I accept the father’s evidence on that point. She says she is also concerned about matters the father informed her of during their relationship where he informed her of illegal activities and employment benefits fraud.
The mother says that throughout the parties’ relationship the father would constantly put her down and did not support her. She says the father was verbally, emotionally and physically abusive towards her. Where not exclusively set out, the father otherwise generally denies the allegations made by the mother. The mother gives the following examples:
167.1.When the child was about three weeks old the mother says the father said to her, “I will slap the shit out of you for being disrespectful of me in front of my family”. The father denies that this occurred.
167.2.In mid-May 2014 the mother says the father arrived home intoxicated and wanted the car keys. The mother would not give them to him and the father began to yell and shove the mother. She says he threw her phone, wallet and jewellery across the room and grabbed the keys and forcibly removed the front door key from the key ring and threw it across the room. He then ripped the sweater the mother was wearing off her. When the mother tried to leave the bedroom, she says he repeatedly blocked her exist, held her by her biceps, shoved her onto the bed and jerked her head, forcing her to face him where he yelled at her from a distance of about once inch from her nose. She says he shoved his fingers onto her temple, shoved her head sideways and squeezed her face hard.
167.3.The mother accessed the services of the Center for Family Justice on 19 May 2014, 20 June, 10 July, 24 July and 4 August 2014. In a letter dated 18 August 2016 an Adult Advocate at the Center states that the main focus of the mother’s sessions was “domestic violence counselling, discussing and helping [the mother] to learn more about life skills, as well as actively safety planning for each incident that was being reported by [the mother]”. In their “Domestic Violence Intake” form dated 19 May 2014 the mother recorded that an incident of physical assault had occurred two days previously where an unregistered gun and maybe a knife was used [the mother gives no evidence in these proceedings of the father using a gun and a knife during a physical attack]. In that form she notes there have been further previous episodes of physical and verbal/emotional abuse. On 20 May 2014 the mother reported to the Center that the father had shoved her at times when he is angry and is most aggressive when he is drunk. In a further intake form dated 4 August 2015, the mother reported to the Center that an assault had occurred a couple of weeks ago. On 18 November 2015 the mother reported that there had been several incidents with the father. She said that an incident had occurred where she had tried to walk away from the father but he blocked her from the stairway and she was uncertain as to whether he was going to push her down the stairs or not. The mother also disclosed that she feels as though the father is trying to control her and the child.
167.4.On 14 June 2014 the mother says that the father threatened her in a text message by saying “I will end somebody if they approach me wrong” and went on to threaten that he would injure their neighbour. The father says that this argument was in relation to the mother’s relationship with a neighbour in which he says he was “posturing gangster language”. I took the use of the word “posturing” to be connected to the father’s reference to him writing scripts for entertainment production in that genre.
167.5.On 11 October 2014 whilst the child was in the mother’s care, the child rolled off a couch and fell onto the floor. The mother took the child to a hospital. While she was at the hospital, she expressed to the staff that she was concerned for the child’s welfare and gave them a history of the way the father treated her. She says she told authorities that the father used to chase her around their apartment, poked and shoved her when he spoke to her, threatened to hit her, had a gun and frequently carried knives for protection. When the father later attended the hospital, he discovered that the Department of Children and Families Services and the police had been called. In the Department of Children and Families Services report following this incident they state that the father “reported that he was trying to assist mother in caring for [the child], but mother didn’t want to allow him to hold his son. Father confirmed following mother around the home in attempts to assist in the care of [the child]. Father admits to making a statement that he was going to slap mother in the face”. In cross examination the father agreed that he had followed the mother around their home but denied that he had told the Department of Children and Families Services that he was going to slap the mother, saying this was a mistake made by the author of the report. I think that it is unlikely the Department of Children and Family Services would have recorded the father’s admission if he had not made it. He denied that grabbing the mother’s arm when she tried to walk away was intimidating or frightening, saying he did not do it in a frightening way. He also said that the author’s comments that he was forward and aggressive in his approach to arguments with the mother was not what he stated rather, he explained that the mother and he had different styles when it came to conflict and he addressed it head on. The Department later closed their intake of the family, stating that the mother “reported Father is not abusive towards her or the minor child”. They found that there was no “pattern of coercive control”. No adverse observations or findings were made in relation to the child.
167.6.On 20 July 2015 the mother says the father became angry when she did not return from a neighbour’s apartment in time for dinner. When she returned home she says he bullied her physically into corners of the house and continued to interrogate her as to why she was not at home. She attempted to take the child out of the apartment for a walk but the father tried to remove the child from her. The mother managed to go back to the neighbour’s apartment with the child but the father followed them and waited outside the apartment. The mother says when they all returned home, the father locked the bathroom door so the mother could not exit. The mother then called emergency services. In oral evidence the father denied locking the mother in the bathroom and said he could not have forced her to come out of the bathroom. He said he left their home because he didn’t want to argue and needed to cool down. While there is no police record for this incident, the documents produced by the Maternal, Infant and Early Child Home Visiting program include a record from a visit they conducted at 2.30pm on 21 July 2015 where they noted that “the police were unable to do anything because [the father] denied [the mother’s] report about the verbal aggression and locking her in the bathroom”.
167.7.In November 2015 the mother says that the father attempted to block her from exiting their front door and followed her and the child attempting to force them to return home.
167.8.In January 2016 the mother says the father hit the child in the face. She says that she reported this incident to the Maternal, Infant and Early Childhood Home Visiting program who note in their report dated 20 January 2016 that on 16 January 2016 the mother had an agreement with the father after he told her the child should be weaned from breastfeeding and while she was breastfeeding, he was slapping her hand. The mother reported that the father “was very upset, walked over and “plucked” [the child] on his cheek”. The father denied that he slapped the mother’s hand. The father said that he gave the child a “weasel” on his cheek and gave him a gentle touch to show him the difference between that and slapping. He said that the mother was mad that he gave the child a “weasel” which caused his face to turn red (although he says the child was laughing). On this date, the Maternal, Infant and Early Childhood Home Visiting program also noted that the father returned home as the visitor was leaving and described the father as presenting as “somewhat confrontational”. In oral evidence the father did not remember this incident and denied that he would present as confrontational to a guest.
Information from Mr D
In a letter dated 1 December 2016, Mr D, a therapist whom the parties attended upon in 2014 and 2015 states that the focus of his sessions with the mother was her experience as a new mother and “her sense of feeling minimally supported by the father’s family, and the sense of loss regarding not only being away from her biological family, but the overall cultural differences she was experiencing daily that culminated in an ongoing sense of depression and exhaustion”. Mr D notes that the mother had disclosed two incidents where the father used “intimidating language” towards the mother and placed “his hands on her in a way to establish dominance and control”. The mother had told Mr D that the father would behave in this manner when he drank excessive amounts of alcohol. The mother raised no further concerns about the father at this time. In her oral evidence the mother said she did not do so due to fears for her personal safety if the father were to become aware. However, counsel for the Department submitted that such an explanation was not credible when the mother had reported more serious allegations to other persons. I place some weight on the mother’s reports to her therapist in 2014 and 2015 when assessing the level of family violence in the parent’s household.
On 22 March 2015 the mother emailed Mr D stating that “she was in Australia and that she had growing concerns about returning to the United States with their son for fear of both her and her son’s wellbeing.” The mother and Mr D consequently had a discussion over Skype where she reported “two different incidents that either had or were currently being investigated by the state related to reports of physical abuse (it is not clear in my notes), and that she feared both retribution as well as ongoing episodes of extreme behaviour should she return”.
Conclusions about family violence
Counsel for the Department submitted that there was scant evidence to suggest anything occurred other than raised voices or perhaps verbal abuse. True it is that the mother does not allege that she was physically injured by the father at any time. The extent of the mother’s complaints is set out above. The mother’s complaints were at different times the subject of inquiry by child welfare authorities and on one occasion by the police. As indicated, the Department concluded that there was no pattern of coercive control and the police were unable to proceed on the conflicting statements made by the parties. The mother has failed to establish that there is any risk, let alone a grave risk, of the child being physically harmed by the father if the child is returned to the United States and placed in his care.
Counsel for the Department also correctly pointed out that the mother has not at any time sought any order in the United States which would protect her from the father.
In the context of this truncated hearing, I find that in the dynamic of the relationship between the parents, there was no systemic coercive controlling violence by the father against the mother. It is likely that her contemporaneous account to her therapist and child welfare authorities is more reliable than the elaboration by the mother which puts the incidence of family violence at a level of greater seriousness.
As mentioned, the parents had different approaches during arguments between them. The mother would seek to disengage and walk away from an argument. The father had the opposite approach and considered it disrespectful to walk away from someone when they are speaking to you. On balance I find that there were significant verbal arguments between the parties. The father conceded that he held the mother during at least one of those arguments so that she wouldn’t walk away.
The mother asserts that she was the subject of certain incidents of physical violence. The only act of physical restraint that the father accepts is holding the mother by the wrist during one argument so that she wouldn’t walk away from him.
There is nothing to suggest that the court in the country of origin is not equipped to fashion and enforce orders dealing with any issue of family violence that arises in this case, particularly given the parameters of the family violence which I have described.
The mother says that she has sought treatment from a paediatrician and a food therapist for the child’s eating aversions and he has made considerable progress. He says his “grimacing teething is all but disappeared” and he no longer appears anxious.
In the event that an order is made for the return of the child to the United States, the mother says that she will be prevented from entering the United States due to her immigration status (discussed above), separating her from the child.
Conclusion about grave risk
Counsel for the Department submitted that the mother’s evidence does not get to the point where a finding is open that there is grave risk in the sense required by the Convention.
There is no basis to find that the child would be at physical risk if an order was made to return him to the state of his habitual residence. I acknowledge that in the short term, as a result of the mother’s decision not to return to the United States, there are risks that the child would suffer psychological distress. That is not a risk that I would find to be a grave risk of psychological harm. I am unable to find that separation of the child from his mother places the child in an intolerable situation.
I am mindful that the court in the country of origin is ready, willing and able to mediate, hear and determine competing parenting applications between the parents which will lead to agreement or orders in the country of origin which are in the child’s best interests.
The mother may have a reasonable case to seek an order allowing her to relocate with the child to Australia. Any such application needs to be pursued by her in the court in the state of the child’s habitual residence.
CONDITIONS
Regulation 15 of the regulations provides as follows:
(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:
(a) make an order of a kind mentioned in that regulation; and
(b) make any other order that the court considers to be appropriate to give effect to the Convention; and
(c) include in an order to which paragraph (a) and (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
Whilst I have accepted the mother’s evidence that it was her intention as at the date of the hearing not to return to the United States even if an order was made for the return of the child, I do not discount the possibility that the mother may reconsider that position when faced with the reality that a return order has been made.
In the event that the mother changes her mind, then I shall make an order which applies the following conditions:
184.1.Within 14 days from the date of these orders, the mother is to give a written notice to the Department and the father that she has reconsidered her decision to return to the United States and that she now intends to return to the United States.
184.2.In the event the mother gives that notice to the father, the father is to provide an undertaking in writing that he will:
184.2.1.Not file any application or motion in the Supreme Court of Connecticut for the mother to be dealt with for contempt or contravention of the current ex parte order that the mother return the child or any related order;
184.2.2.The father shall give an undertaking not to do anything or sign any document that would have the effect of commencing or continuing proceedings against the mother for contempt or contravention of court orders in the State Court of Connecticut arising from any conduct of the mother to up until the date of the implementation of the return order;
184.2.3.The father shall give an undertaking to do all things and sign all necessary documents to indicate to any authority that he does not wish to be involved as a witness in the criminal prosecution of the mother for any criminal offence arising from the mother’s retention of the child in Australia and that his wish is she not be prosecuted for any criminal offence arising from the mother’s retention of the child in Australia; and
184.2.4.The child is to return to the United States with the mother.
184.3.In the event the mother maintains her resolve to remain in Australia notwithstanding that the return order has been made, the return order is not to be implemented for a period of 28 days from the date of these orders with a view to allowing the mother some time to wean the child from breastfeeding and the child shall return to the United States with his father.
Other orders should be made varying the ex parte orders made 15 December 2016.
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 31 March 2017.
Associate:
Date: 31.3.2017
SCHEDULE ONE
Form 2 filed 30 November 2016;
Affidavit of Ms I filed 24 February 2017;
Affidavit of Ms I filed 8 March 2017; and
Affidvait of Ms I filed 15 March 2017 with two volumes of exhibits.
SCHEDULE TWO
Form 2A filed 31 January 2017;
Application in a Case filed 2 February 2017;
Affidavit of the mother filed 31 January 2017;
Affidavit of the mother filed 2 February 2017;
Affidavit of Mr E filed 31 January 2017;
Affidavit of Mr F filed 1 February 2017;
Affidavit of Mr F filed 15 March 2017; and
Affidavit of Dr H filed 2 February 2017.
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