DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & DAYAN
[2015] FamCA 1166
•20 November 2015
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & DAYAN | [2015] FamCA 1166 |
| FAMILY LAW – CHILD ABDUCTION – GRAVE RISK – Whether there is a grave risk that the return of the children to the USA would expose them to physical or psychological harm or otherwise place them in an intolerable situation – Where the mother is the primary carer and retained the children in Australia without the consent of the father – Where ex parte parenting orders have been made by a Court in the USA (after the wrongful retention and the commencement of the subject proceeding) providing that the father has sole legal and physical custody of the children pending the determination of his application – Where the Court accepted the mother’s evidence of family violence against her and the children by the father – Where the Court finds that the children may be exposed to a grave risk of physical and psychological harm if returned to the USA – Where the Court nevertheless exercised its discretion to make a return order, subject to the satisfaction of preconditions. | |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16 | |
| Amador & Amador (2009) 43 Fam LR 268 Harris & Harris (No 2) (2010) FLC 93-454 McDonald and Director-General, Department of Community Services NSW (2006) FLC 93-297 W v. W (Child Abduction: Acquiescence) [1993] 2 FLR 211 |
| APPLICANT: | Department Of Family And Community Services Secretary |
| RESPONDENT: | Ms Dayan |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
| FILE NUMBER: | SYC | 1080 | of | 2015 |
| DATE DELIVERED: | 20 November 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 20 May 2015, 30 June 2015 & 19 August 2015. |
Final submissions from the Applicant received 14 October 2015.
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson. |
| SOLICITOR FOR THE APPLICANT: | Legal Services Unit, Department Of Family And Community Services |
| COUNSEL FOR THE RESPONDENT: | Ms Shae. |
| SOLICITOR FOR THE RESPONDENT: | Lynda Maitland, Legal Aid NSW. |
Orders
Subject to all conditions being first satisfied which the Court herein imposes as a precondition to the return order being executed, the Court orders:
That the applicant, the father and the respondent mother (“the mother”) make such arrangements as are necessary to ensure the return of the children B (female) born … 2009 and C (male) born … 2012 (“the children”) to the USA pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
That the Registrar of the Family Court of Australia release forthwith all passports and air tickets concerning the children to the applicant.
Orders 1 and 2 of the Orders of 27 February 2015 be varied to allow the children to leave the Commonwealth of Australia for the purpose of giving effect to the order above and that the Australian Federal Police give effect to the variation.
Following the departure of the children from the Commonwealth of Australia for the USA the Australia Federal Police shall remove the name of the children from the Airport Watch List in operation at all Australian International arrival and departure points as soon as practicable.
Following the departure of the children from the Commonwealth of Australia to the USA in accordance with the Order made herein, all other Orders made by the Court in relation to this matter be discharged.
The applicant is to serve sealed copies of these Orders upon the Australian Federal Police.
Unless otherwise ordered the children are to travel under the care of the mother.
On or before the expiration of seven days from the date of these Orders the mother is to provide to the applicant in this proceeding the name, address and contact details for the lawyers she has engaged to act for her in the USA upon her return to that country pursuant to these Orders.
The mother is to instruct the lawyers engaged by her in the USA, and as named pursuant to Order (9) hereof, to receive funds on her behalf from the father and to hold those funds upon trust for her and the children and only disburse the funds as permitted by the conditions imposed herein.
The mother is to forthwith contact the air carrier which brought the children and her to Australia to ascertain if the return trip, paid for prior to the mother and children departing the USA for Australia, is still valid and also to ascertain when the return trip portion of that travel will cease to be available for use. She is to notify the father and the applicant of that information forthwith and provide a document confirming same.
CONDITIONS TO BE MET BY THE FATHER BEFORE THE CHILDREN ARE TO LEAVE AUSTRALIA PURSUANT TO ORDER (2) HEREOF
The father is to cause all the Orders made in the State of Michigan, Circuit Court of the County of Z, Family Division under Case Number 15-41841, such Orders being made 2 July 2015 and subsequently, to be revoked and in their stead cause interim orders to be made as follows:
a. That the children live with the mother pending further order.
b.That the father not molest, harass, threaten or abuse or interfere with the mother.
c.The father not knowingly come within 250 meters of the mother, her residence or her place of work pending further order of the Court.
e.That the father be restrained from requesting any further relief, seeking orders or filing any documents whatsoever that are not in accordance with this condition, in the State of Michigan Circuit Court of the County of Z, Family Division, or any other Court of competent jurisdiction in the USA, unless and until the children are returned to the USA in accordance with orders made by the Family Court of Australia.
That the father register, by filing in the State of Michigan, Circuit Court of the County of Z, Family Division an undertaking to that Court that he will not pursue or cause any form of criminal proceedings or sanctions against the mother arising from her wrongful retention of the children in Australia.
NOTE: Such an undertaking does not bind any relevant USA law enforcement body.
The father is to serve a copy of the Orders made in the State of Michigan, Circuit Court of the County of Z, Family Division as required above, upon the mother by email, upon her lawyers in the USA (once known) and upon the applicant in this proceeding.
That the father pay to an account to be held in trust for the mother by her lawyers in the USA (whose name and contact detail is to be supplied to the applicant herein as provided for in Order 9 hereof) the sum of US$6,386 which sum is to be disbursed by them to her as follows only upon her arrival in the USA pursuant to the Orders made herein:
a. An immediate payment of US$2,000.
b. A payment of US$2,193 within seven days of her arrival in the USA pursuant to these Orders.
c. A payment of US$2,193 to her one month after the payment made in paragraph (b) hereof.
Should it be necessary to secure flights for the mother and the children to return to the USA, the father is to pay for, and provide to the mother, a ticket or travel document for air travel from Sydney to Detroit in the USA for the mother and the children, such travel documents to be provided forthwith upon compliance by the father with the balance of the conditions set out above.
In the event of the father failing to comply with the pre-conditions set out herein within the expiration of six calendar months from the date hereof then the Order requiring the return of the children will lapse as and from that date.
Each of the parties has leave to re-list this matter should it be necessary to enforce or modify any of the machinery orders requiring the return of the children to the USA.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Dayan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1080/2015
| Legal Services Unit, Department Of Family And Community Services |
Applicant
And
| Ms Dayan |
Respondent
REASONS FOR JUDGMENT
Introduction
By an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) filed on 19 February 2015 the Secretary of the Department of Family & Community Services (NSW) (“the applicant”) seeks an order be made requiring arrangements to be made to ensure the return of the children, B (a female) (“B”) born in 2009 and C (a male) (“C”) born in 2012 to the United States of America.
By her Answer & Cross Application the respondent mother, Ms Dayan (“the mother”), opposes the application on the ground 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 children in an intolerable situation”.
The proceeding was listed for hearing and the hearing commenced on 20 May 2015. It became necessary to order a further report from the family consultant, which was provided on about 28 May 2015. The hearing initially concluded on 30 June 2015. However, a re-listing was sought and facilitated on 19 August 2015. Each of the parties has provided written submissions, the last being received 14 October 2015. The only issue in the case which is to be determined is whether the one defence promoted by the mother has been made out. All preliminary requirements necessary to otherwise ground an order for return under the Regulations, including a finding that the children were wrongfully retained by the respondent in Australia, are conceded by the respondent.
Background Facts
The mother was born in 1985. The father, Mr Muriad, was born in 1972. The two children, whose names and dates of birth are set out herein, were both born in the United States of America (“the USA”). There is no issue that the habitual residence of the children immediately prior to the retention of the children in Australia by the mother was the USA, a Convention country.
The wrongful retention of the children in Australia occurred around 13 January 2015 by the mother failing to return them to the USA and continuing to reside with them in the suburb of A, New South Wales, Australia.
The mother and the father were married in Country A in 2008. Prior to the mother and the children leaving the USA, they had resided in an apartment in City E, Michigan. The father still resides in this apartment. The father is a citizen of the USA and the mother is a permanent resident.
There is no issue that the father was exercising parental rights in relation to the children in the USA prior to them travelling to Australia with the mother.
The mother and the children travelled to Australia on 10 December 2014. The mother told the father that the purpose of the trip was for a holiday and that she would return to the USA with the children on 13 January 2015.
On or about 10 January 2015 the mother informed the father that she would not be returning the children to the USA and intended to stay permanently in Australia.
On 26 January 2015, the father signed an application authorising the Australian Central Authority to act on his behalf to facilitate the return of the children to the USA by implementing the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) as embodied in the Regulations.
On 19 February 2015, the applicant in these proceedings filed an application under the Regulations seeking orders requiring arrangements to be made to ensure the return of the children to the USA. The applicant supported his application with the following affidavits:
1.Affidavit affirmed by Ms G, a solicitor employed by the applicant, affirmed on 26 February 2015;
2.Affidavit affirmed by Ms G on 23 April 2015;
3.Affidavit affirmed by Ms G on 1 May 2015; and
4.Affidavit affirmed by Ms G on 19 May 2015.
On or about 18 June 2015 the mother filed an application in the Family Court of Australia seeking parenting orders pursuant to the Australian Family Law Act 1975 (Cth).
The mother also filed an Answer and Cross Application to the application filed under the Regulations by the applicant for the return of the children. The Answer and Cross Application was filed by her on 2 April 2015. She supported that Answer and Cross Application by the following affidavits:
5.Affidavit sworn by the mother on 1 April 2015;
6.Affidavit sworn by the mother on 15 May 2015;
7.Affidavit sworn by the mother on 29 June 2015; and
8.Affidavit of Dr H (“Dr H”) affirmed on 8 April 2015.
Both Dr H and the mother were required for cross-examination and cross-examined by the applicant. The family consultant was also required for cross-examination.
The father’s evidence
Annexed to the application filed by the applicant pursuant to the Regulations on 19 February 2015 were affidavits affirmed by the father and by Ms I, the father’s then attorney in Michigan, on 26 January 2015.
In his affidavit affirmed on 26 January 2015, the father deposed that he was currently living in the apartment in City E, Michigan, where the mother and the children used to reside prior to their departure to Australia. He is a citizen of the USA. The mother is a permanent resident in the USA with a Green Card.
The father deposed that in December 2014, the mother and the children went to Australia to visit the maternal family while he stayed behind. A round trip airline ticket, departing on 10 December 2014 and due to return on 12 January 2015, was purchased for the mother and the children.
The father said that on 10 January 2015, the mother informed him via telephone that neither she nor the children would be returning to the USA. The father outlined that B is a kindergarten student and was expected to return to school on 13 January 2015. He also deposed that the mother only had a three month visa in Australia. At the conclusion of his affidavit, the father stated:
I believe that if the Hague Convention power is not invoked, I believe that I will have irreparable harm being that I will never see my children again and my wife could possibly relocate where I will never find my children as she was born in [Country J], married in [Country A], lived in the USA and family residing in Australia.
Ms I in her affidavit affirmed on 26 January 2015 deposed that she had been instructed to act for the father and set out the applicable law in the State of Michigan; namely, sections 722.21-722.31 of the Child Custody Act of 1970, MCL. Evidence of the father’s paternity of the children was provided by way of annexing the children’s birth certificates. Ms I deposed that pursuant to Michigan law, the father has rights of custody as he is the father of the children and was resident with the children for a period of six months or longer prior to the mother’s removal of the children.
The affidavit of Ms G, affirmed on 26 February 2015, annexed an affidavit of Ms I affirmed on 19 February 2015. Ms I deposed to further matters in relation to the father’s paternity and reiterated that pursuant to Michigan law, the father had rights of custody for the children. Also annexed were the relevant provisions of the Michigan legislation.
Ms G’s affidavit affirmed on 23 April 2015 annexed an affidavit by the father affirmed on 21 April 2015. The father deposed that mother has long been a permanent resident of the United States. He outlined that the children were born in Michigan, have always lived in Michigan, and are citizens of the United States. The father deposed to having “a great relationship” with the children and annexed photographs of him with the mother and the children to his affidavit. He said that the mother had told him, when she left to Australia, that the visit would be a short family visit. The father outlined that the mother and the children obtained three month tourist visas for the trip and said that he had no concerns at all that the mother would not return. The father deposed that he knew that the mother missed her parents and other members of her family but he did not have any reason to consider she would not return.
The father deposed that when the mother left Australia, using airline tickets purchased with their joint savings, she also took with her US$2,000 for the visit and had US$6,000 of savings which she had accumulated for gifts and extra money after bills had been paid.
The father stated that on 10 January 2015, when he telephoned the mother two days prior to her scheduled return date, she told him she would not come home and would keep the children there. The father said that the mother told him “I don’t want to live in the USA anymore. I have no family and no friends”. According to the father, the mother had said nothing to him, during that telephone call or at any time, about him being mean to her or the children. The only reason proffered by the mother for staying in Australia was that she missed her family. The father deposed that the mother also invited him to come to Australia and live with her as a family unit with the children. The father agreed with the mother’s recollection of their conversation as set out in her affidavit; namely, that she said “Please come and live in Australia with the children and I, and be part of my family here. It is a good life in Australia”.
The father alleged that it was only after the mother saw a lawyer in Australia that she claimed, for the first time, that he hit her and the children. He stated of these assertions that “Her claims are a complete lie. I have never hit her. I have never hit my children”. The father also denied the mother’s allegations that he coerced the mother to have marital relations with her against her will.
As to the mother’s account of her social isolation in Michigan, the father described this as “a total fabrication”. He said that her evidence that she did not know how to contact anyone was “ridiculous” because she had her own computer and mobile phone, spoke regularly to her family by Skype, communicated through Facebook, and had a driver’s license. The father asserted that the mother had complete access to any of the five cars owned by his extended family in Michigan and that she “came and went as she wished”. He said that the mother left the house to go shopping, visit extended family, and frequented parks, beaches and restaurants. The father said that the mother also had two uncles who lived in Michigan, and a large number of her extended family members who lived in the United States.
As to the mother’s English language skills, the father deposed that the mother spoke English well enough to communicate effectively and could read and write basic English.
The father said that he is devastated that his children had been taken from him. He described his children as being completely settled in Michigan. He outlined that B has attended the K School since September 2014 and that she has many friends in school and out of school.
With respect to the living circumstances of the family in Michigan, the father deposed that the local police department was only a five minute drive from his apartment. The father works in his family business, a convenience store, with his two brothers and another employee which he said allowed for greater flexibility with his time.
In response to the mother’s assertions that she did not disclose her experiences of family violence to her doctors because she was always accompanied by the father, the father said that he accompanied the mother to these appointments as a caring husband and father because the mother had preferred him to do so. The father also deposed that the family’s dentist spoke Chaldean and Arabic and the mother would converse back and forth with her during the appointments.
The father described the mother’s claims that she was not covered by health insurance in the USA as a “complete lie”. The father deposed that the mother had full health insurance coverage at all times and annexed a copy of a Health Account Statement dated 7 April 2015 from “Healthy Michigan Plan” addressed to the mother.
The father denied that the mother developed psoriasis because of his misconduct. He deposed that the mother had psoriasis since she was a teenager and that she told him she had developed this due to the fighting she witnessed in the home she grew up in.
As to the mother’s living situation if she does return to Michigan, the father stated “If [the mother] wants to live separately from me she is entitled to do so and the State of Michigan has ample laws and organizations to provide assistance to her if needed.”
Also annexed to Ms G’s affidavit of 23 April 2015 were affidavits by members of the paternal and the maternal family, and the children’s health care practitioners, in support of the father’s care. In the affidavit of the paternal grandmother, Ms L, sworn on 21 April 2015, she deposed that she had never witnessed the father hitting either the children or the mother. She said that she had seen the mother drive, speak on her cell phone, and go out on excursions with the family and on her own. Ms L also deposed to witnessing the mother speaking and writing basic English. Ms L said that her family, the mother and the maternal family would frequently do things together and, almost always, the mother would be in good spirits. The mother’s brother and sister in law, Mr M Muriad and Ms N, also deposed to the same matters in their affidavits sworn 21 April 2015.
Dr O swore an affidavit on 21 April 2015 in which he deposed that he had been the paediatrician for the children and that both parents had frequently visited his office with the children. Dr O said that he had conversed with the parents during these appointments and had never seen any bruises on the mother or the children. The mother had never told him that the father or his family abused her. Dr O observed that the children and the mother seemed in good spirits during every visit he had with them.
Dr P (“Dr P”), a dentist who practices in Michigan, also swore an affidavit in support of the father’s case on 20 April 2015. Dr P speaks Arabic and Chaldean. She deposed that the mother, the father and B had been his patients for many years. Dr P observed that B and the mother seemed to be in good spirts during their appointments and that she had never seen any bruises on the mother or the children, or any evidence of domestic violence. Dr P deposed to conversing with the mother in her native language.
The mother’s uncle and aunt, Mr and Ms Q, are US citizens and live in Michigan. In affidavits sworn on 19 April 2015 they deposed that they had never observed any bruises on the mother or the children, and that the mother had never told them that she was abused by the father or his family. They said that the mother told them she was going for a vacation to Australia to visit her brother and his wife and the rest of the maternal family, and did not disclose that she planned to live in Australia. They both deposed that the mother called them on her own mobile phone very often, and seemed to be in good spirits when she had visited them.
Ms G affirmed an affidavit on 1 May 2015 which annexed an affidavit affirmed by the father on 24 April 2015 wherein he deposed to the same matters as in his earlier affidavit. Also annexed to Ms G’s affidavit was an affidavit sworn by Ms I on 24 April 2015. Ms I set out evidence based on research she had conducted on services available to a Domestic Violence/Sexual Assault survivor/victim in the R County, Michigan area. Ms I listed the details of two shelters and six available classes. She annexed to her affidavit documents and pamphlets from various service centres.
Ms G’s affidavit of 19 May 2015 annexed an affidavit of the father sworn on 18 May 2015. In that affidavit, the father deposed that he has attempted to call the mother multiple times but no one answered the phone. He said that the mother’s government health care in the United States allows free of charge office visits and prescriptions. It was the father’s belief that as the mother continues to be covered by this insurance, she will still be eligible for this upon her return. The father also said, in relation to the mother’s denial that she had US$6,000 in savings and her assertion that she did not have a bank account, that he and the mother did not have a bank account and used cash at all times.
The father deposed that he was willing to fly to Australia to bring the children back home immediately and would not accept the conditions placed on his access to the children. It is his belief that the main reason that the mother has retained the children in Australia was so that she could be reunited with her family.
The mother’s evidence
In the mother’s affidavit sworn 1 April 2015, the following evidence relative to the ground of defence raised by her under subreg 16(3)(b) is set out.
The mother is a permanent resident of the USA. She is 29 years of age. The mother left the USA and travelled to Australia on 10 December 2014. She came to visit her family. She was able to enter Australia on a three month tourist visa. The period of stay permitted by that visa is three months. A copy of the visa was annexed to the mother’s affidavit.
The mother and the children were due to return to the USA on 12 January 2015. On 10 January 2015 the mother telephoned the father and told him that she and the children would not be returning to the USA. The mother told the father she intended to live permanently in Australia.
The mother deposed that she was currently living with her parents in Sydney in a two bedroom apartment. She and the children share one bedroom. The mother outlined that she had seven siblings, including three who were Australian citizens and two who were Australian residents.
In her affidavit, the mother set out details of her marriage to the father. She was required to spend time in Country S with the father’s mother before she could obtain a visa to reside in the USA. The mother moved to the USA in December 2008. She took up residence with the father in City E in the state of Michigan, USA.
The mother also set out evidence about her life in the USA with the father. She said that she has two uncles in the USA. One uncle lived about a two hour car trip from the place where she lived with the father. The father took the mother to visit her uncles in the USA.
The mother described details of conflict with the father about her access to money. She said that when she asked the father “can I go to church?” he replied “no”. The mother said she had no friends in the USA. About 12 months before she left the USA, the father bought a computer with internet access and the mother was able to contact her family by Skype. The mother made allegations of family violence. The details of that family violence are as follows:
·On one occasion in America (time unspecified) the father hit the mother on the face with an open hand. This gave rise to a bruise. The mother did not seek medical treatment.
·The mother was hit by the father on about one occasion each month whilst living in the USA. During the time that the mother was pregnant, the father did not hit her. When the father did hit the respondent, it was with a closed fist or a slap on her face. There were arguments between the father and the mother at about every two months.
·Arguments between the father and the mother occurred in the presence of the children.
·The father slapped each of the children on the face with an open hand. On one occasion he left a red hand print on the cheek of B.
·The father hit or slapped the children on about one occasion every two months.
·The father forced himself sexually upon the mother. This occurred in frequency of one to two times each week.
The mother said she argued over a lengthy period of time with the father to be allowed to visit her family in Australia. When the mother and the children did make the trip to Australia the father paid for the return flights.
The mother arrived in Australia on 12 December 2014 and since that time has had contact with her siblings and their families.
When the mother telephoned the father on 10 January 2015 to inform him that she would not be returning, she asked him “Please come and live in Australia with the children and I, and be part of my family here. It is a good life in Australia.” The father replied “No”.
If the children are ordered to be returned to the USA, the mother deposed that she will accompany them. However, she does not want to return to the USA. She acknowledges that the children love their father. However, she does not want him to be raising them. The mother said she cannot live with the father again. She said that she is scared of him.
The mother asserted that she is unable to support herself in the USA. She has no skills to work and no one to help care for the children if she did have employment. She said that she had no savings or friends in the USA. She deposed that she does not have a good or close relationship with her relatives who live in the USA.
The mother is not a citizen of the USA. She deposed that she was unaware of what government welfare benefits might be available to her if she was to return.
The mother also stated that “I also don’t have any health care in the USA or the means to pay for it”.
The mother said that she has applied to the Australian government to be able to remain in the country for a longer period than her three month tourist visa.
The mother deposed that the return flight tickets from Sydney to the USA for her and the children, which were booked to depart on 12 January 2015, were e-tickets and had since expired.
In her affidavit sworn 15 May 2015 the mother responded to the affidavit material provided by the applicant.
The mother asserted that the father had not telephoned to speak to the children since 10 January 2015.
The mother acknowledged that she learnt to drive in the USA in May 2014 and obtained a drivers licence on 20 May 2014. She deposed, however, that she has only driven on two occasions in the USA.
The mother acknowledged that she did have heath care in the USA through a government program, Medicaid, at the time she left in December 2014. She described it as a limited government issued health cover, not private health cover. She said that she did not know if she would continue to be eligible for this health care upon her return.
The mother denied the allegations made by the father that she told him she grew up witnessing fighting in her home (that is domestic violence). She deposed that she only developed psoriasis in the USA and did not witness fighting in her family while growing up.
The mother acknowledged that the father gave her US$1,000 in cash when she travelled to Australia. She denied she had US$6,000 in savings as asserted by the father. She said she had no savings and no bank account.
The mother agreed with the father’s evidence that she has a Facebook account and a mobile phone. However, she claimed that her use of the phone was restricted.
The mother stated that she had applied for a permanent visa to live in Australia and had engaged an immigration lawyer to assist her.
The mother also relied on an affidavit she swore on 29 June 2015. In that affidavit she set out the following relevant matters.
Her tourist visa to remain in Australia expired on 15 June 2015. However, she had applied for a visa extension and had been granted a bridging visa whilst her application for an extension was processed.
The mother said that she is the primary carer for the children, who have never been out of her care. She deposed that if the children were to be returned to the USA without her she would be very concerned for their welfare.
The mother set out conditions that she sought should be imposed if the Court made an order for the return of the children to the USA. The conditions included the father meeting the cost of air travel for the return for her and the children and that she be provided with financial support, including her accommodation and living expenses. The mother expressed a concern that the father may instigate criminal proceedings against her in the USA. She sought an assurance that he would not “come near the children and I” and that he would not commence criminal proceedings against her.
In relation to the conditions, if any, to be imposed upon a return order if made by the Court the parties agreed that the Court should determine firstly whether, prima facie, there should be a return order. They would then each address the question of the imposition of appropriate conditions. I will therefore consider that matter later in the reasons.
The mother relied on an affidavit by Dr H affirmed on 8 April 2015. Dr H is a psychiatrist. Dr H provided a report in relation to the mother at the request of her solicitor.
The report of Dr H, dated 30 March 2015, set out the following information. Dr H also set out his qualifications and there is no challenge to those qualifications as a consultant psychiatrist.
Dr H conducted a psychiatric assessment of the mother on 30 March 2015 with the aid of an interpreter.
Dr H set out the background history provided to him by the mother.
At paragraph 30 of his report Dr H said:
[The mother] reported a number of symptoms dating back at least 3 years. She reports low or depressed mood most days. This is exemplified by her report of sitting crying by herself worrying about her “problems” approximately every second day. She said that in these times, she also concurrently develops severe “headaches”. She reports that she has been low in energy most days. She reports that her sleep has been poor for a long time. She reports difficulty falling asleep – lying in bed thinking about problems till approximately 3am then waking early at 7am unable to fall back asleep. She reports that she spends hours ruminating in a negative manner about her life and current situation.
The mother told Dr H that she had not seen a doctor or sought any health care since being in Australia.
At paragraphs 35 and 36 of his report, Dr H opined (italics in original):
It is my opinion that [the mother] is suffering from Major Depressive Disorder as defined in DSM 5 (the current edition of the most widely used psychiatric classification system in Australia). She presents with depressed mood most of the day nearly every day, insomnia, loss of energy, poor concentration, excessive worrying and guilt. This has occurred in the context of significant relationship stress…
I was suspicious of a diagnosis of Post Traumatic Stress Disorder however she did not meet full diagnostic criteria in my opinion. In particular the trauma she reports that she has experienced would not have met the DSM IV criteria (although they may meet the expanded DSM 5 criteria). I note that she has not experienced the classic intrusion symptoms or avoidance symptoms.
In relation to the mother’s prognosis, Dr H said:
It is difficult to be definitive about the prognosis as [the mother] has never sought treatment for her Depression. A poor prognostic factor is the long duration of symptoms. A significant perpetuating factor is her relationship with the Father. She has a number of positive prognostic factors including no alcohol/illicit drug use and current significant familial support. With treatment and some boundaries set around the relationship with the Father I am optimistic that she can improve within a few months and recover within three to twelve months. This estimate is guided more by clinical experience than literature which tends to group people with diagnoses together with little individualisation based on case specific factors.
Dr H, at paragraph 41 of his report, set out a treatment plan and recommendations for the mother, including management of her depression with a GP and a psychologist and/or a psychiatrist, the mother engaging in psychological therapy and the possibility of the mother being treated with a first line antidepressant.
Dr H was asked to answer the question of whether there was “any impact on the [mother’s] mental health if she is required to return to the USA (to live with the [father] or in the alternative, not to live with the [father])”. He anticipated a negative impact on the mother’s health if she returned to live with the father. However, if she did not reside with him but nonetheless lived in the USA, Dr H said:
In this situation provided adequate support can be gained by a treatment plan as outlined above in paragraph 41, the impact on her mental health will still be negative. In particular she lacks significant social support in the USA which she has here in Australia. She reports to me significant social and financial support from her family here in Australia. The lack of social support in the USA would have a negative impact on her mental health.
Dr H was required for cross-examination. In his oral evidence he agreed that the diagnosed Major Depressive Disorder probably existed before the mother arrived in Australia. Dr H was asked whether to his knowledge the treatment that he recommended for the mother was available in the USA. He said he believed that it was but he was unsure of what the funding was for the mother to be able to access that treatment in the USA.
Dr H was asked about the presentation of the mother in interview. He was asked whether he thought she was maybe untruthful to which he answered “No”.
Dr H was asked for his opinion if it was to be the case that the mother’s description of family violence was fabricated. He said in those circumstances this could be evidence of delusional thinking or malingering.
Dr H was asked what his prognosis would be if the mother returned to the USA and could not access treatment as suggested by him. Dr H said “Some people resolve without treatment. Some get worse.” He could not rule out possible self-harm. Dr H opined that if the mother returned to the USA and the relationship with the father stays in the same state, then he would predict her depression would get a lot worse.
The mother also gave oral evidence and was cross-examined.
In her oral evidence the mother was asked to respond to some of the evidence provided by the father. The mother denied the assertion by the father that she was permitted to come and go as she wished from the residence they occupied in the USA. She said that she was unable to go shopping as she had no access to funds. She asserted that she did not have any friends or relatives nearby who she could visit. She denied she ever left the home alone whilst in the USA or that she visited the grocery store every day. She denied that she washed clothes at home and said that she and the father did not have a washing machine. There was a washing machine in the back of the store where the father worked.
The mother agreed that she had attended church on four or five occasions whilst living in the USA. She did not go more frequently because it was too far from where they lived. There was no public transport.
In cross examination by the applicant, the mother confirmed that the statements attributed to her in the report of Dr H are correct.
The mother, in cross examination, agreed that she had a health card in the USA which she used to make a claim for a refund.
The mother agreed that she wanted the father to come to Australia and live with her and the children. She agreed she did not say anything about being upset in relation to domestic violence when she made that request. She qualified this, however, by saying that she thought that if he came to Australia he would change. The mother said that she changed her mind about living with the father in Australia when she was served with the application filed under the Regulations. She said the father told a lie when he denied having ever hit her. That was also the case when he denied he had never hit the children. She said that the assertions by the father’s sister in law, Ms N, included in the affidavit sworn by Ms G on 23 April 2015 that “I have never witness (sic) [the father] hitting…the children” were not true. Likewise, the mother said, the statements by the father’s brother to that effect were untrue.
The mother agreed that she did not ever tell the family doctor in the USA that she had been assaulted by the father. She said that this was because the father was always present when she saw the doctor. She agreed that she did not tell her dentist that she suffered domestic violence even though the dentist spoke Arabic.
The mother denied the assertion that she had fabricated her evidence in relation to domestic violence.
It was put to the mother that she does not have to stay in Australia to look after her mother as her siblings could do this. She denied that this was the case and said that her siblings all had businesses to run.
It was put to the mother that notwithstanding the report from Dr H she has not sought treatment for her depression. She agreed that this was the case and said that she had not sought the treatment because she did not have health insurance.
On 20 May 2015 the family consultant was required for cross-examination. The mother’s lawyer asked the family consultant whether she had read the affidavit evidence of the mother at the time she prepared the report. She said she had not.
The proceeding was then adjourned to enable the family consultant to have regard to the affidavit material filed by each of the parties. A further report was provided by the family consultant on 28 May 2015.
The family consultant provided a report dated 19 May 2015 which became exhibit X1 in the proceeding. The family consultant was asked to provide a report “To address the impact upon the children’s emotional and psychological health and wellbeing of a return order being made on the basis that the children are predominantly under the mother’s care in the USA pending a determination by a court in that country of any application either parent may make relating to the care of the children”. The family consultant noted that the report was sought because the mother has raised the defence of grave risk to the children if they are to be returned to the USA.
In her report, the family consultant recited facts which emerged from the documents which she had been provided prior to the preparation of the report. There is no attack on the facts recorded by the family consultant.
The family consultant had an opportunity to observe and meet with the children, B (then aged five years and nine months) and C (then aged two years and ten months). The family consultant described what she observed in the interaction with each of those children. Some of the matters arising from that observation I recorded are as follows: “[B] seems to be a confident child with a good command of English.” Although B told the family consultant that she had come to speak to her so “I can stay with my mother and not go back to my father”, she also told the family consultant that she misses her father and that her father misses her. She understood that her parents did not miss each other. Much of what B was asked to describe related to her life in the USA and all of what she described appeared to be predominantly in a positive presentation.
The family consultant observed the children interacting with the mother. There did not appear to be anything remarkable in the observation of that interaction.
The family consultant opined that, from a brief observation, the mother and C have a close and secure bond. The mother was observed to provide the children with a secure base and dependable parenting.
The family consultant opined that B’s drawings seemed to indicate that she is missing her father and other members of the extended paternal family as well as her familiar family home.
Under the heading “Impact upon the children’s emotional and psychological health and well-being of a return order being made on the basis the children are predominantly under the mother’s care in the United States”, the family consultant assessed the children as having a secure bond with their mother. She opined that the mother has the capacity to provide the children with appropriate and emotionally supportive parenting. The family consultant outlined that a return of the children to the United States would be for the children a return to a familiar environment. She considered that such a return in the mother’s care is unlikely to have any adverse effect on either child’s emotional or psychological health or their well-being. Rather, it would be the mother’s response to returning to the USA which would be the single most important factor in predicting how the children will adjust.
On 28 May 2015 the family consultant provided a further updated report having had access to the affidavits of the mother sworn on 1 April 2015 and 15 May 2015 (although the date of this affidavit is erroneously referred to by the family consultant as 15 April 2015). The family consultant also read the affidavit of the applicant sworn 19 May 2015.
The family consultant reported that there was nothing in that material which detracted from the opinions given by her in the earlier report.
Both the applicant and the mother filed summary of argument documents which were provided to the Court prior to the first hearing date in May 2015. Each of the applicant and the mother provided very detailed written submissions which were presented to the Court for the hearing on 30 June 2015.
Written submissions of the applicant
It was submitted by the applicant that, because the mother does not dispute that she was meant to leave Sydney with the children on 12 January 2015 but only informed the father of her change in plans on or about that date, it is an accepted fact that the children were retained in Australia after 13 January 2015 without the consent of the father.
It was also submitted that subregs 16(1)(b) and 16(1A)(a) of the Regulations have both been satisfied as the application was filed within one year of the children’s retention and the children are under the age of 16 years.
The applicant outlined that the children have resided in the USA since their birth and asserted that the mother was attempting to unilaterally change their habitual residence. It was submitted that while the mother is not a US citizen, she has a right of permanent residence in the USA.
The applicant submitted that the father has rights of custody pursuant to the law of Michigan. The affidavit of Ms G sworn on 26 February 2015 was relied upon, annexed to which was expert evidence as to the law from Ms I, a licensed attorney practising in Michigan. It was further submitted that there is no dispute that the retention of the children was in breach of the father’s rights of custody, which he was exercising.
The applicant also contended that the mother has not established any of the discretionary matters in subreg 16(3) of the Regulations. It was put to the Court by the applicant that the evidence provided by the mother did not establish her allegations that there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
It follows, according to the applicant, that the Court must make an order for the return of the children to the USA pursuant to subreg 16(1), since all the requirements of subreg 16(1A) are satisfied and no discretionary matters have been established to enable the Court to refuse to make a return order.
The applicant asserted that where there is a contradiction between the evidence provided to the Court, the Court should generally prefer the evidence of the father to that of the mother. The applicant referred, by way of example, to the mother’s previous affidavit evidence that she did not have “any health care” in the USA, and her subsequent change of position that she did have “limited government issued health cover” after the father had provided documentary evidence of the same. It was submitted that the mother had sought to initially mislead the Court and, when faced with contradictory evidence, changed her evidence.
It was also submitted that the assertions by the mother that she was isolated in the USA may safely be rejected by the Court in light of the evidence that she had access to Facebook, used a mobile phone to talk to the father and her relatives, went shopping frequently and was able to drive.
In relation to the mother’s allegations that the father was violent, the applicant pointed to alleged discrepancies in her evidence, including that she had requested the father to come to Australia to live with her and the children, and that there was no mention to the father at the time of her phone call in January 2015, or to anyone else in support of the mother’s case, that the father was violent to her or the children. It was asserted on behalf of the father that the only reason the mother wishes to stay in Australia was because she misses her family, most of who now live in Australia.
The mother’s allegations that the father hit her about once a month with a closed fist or slapped her on the face were denied by the father. The applicant submitted that the mother’s affidavit evidence differed from her “elaborate” and “florid” allegations to Dr H, namely, that the father “had slapped her face and hit her in the abdomen and back on a number of occasions”. It was also submitted that the mother exaggerated the frequency of these alleged attacks to Dr H, telling him that the arguments would happen “a few times a month where they would escalate to verbal and then physical abuse”, which contradicted the evidence in her affidavit that she argued with the father once every two months. The Court’s attention was also taken to the mother’s statements to Dr H that the children “had a good relationship with their father” and “were not scared or afraid of him”.
The applicant outlined that the mother made no report of the father slapping the children on the face with an open hand to any doctors, police officers, clergymen or any third parties. The mother’s allegations that the father forced her to engage in sexual relations with him were also denied.
It was submitted that there was corroborative evidence from the father’s mother, sister in law, the father’s brother, the paediatrician for the children, the dentist, and the mother’s uncle and his wife insofar as none of them have witnessed the father being violent toward the children or the mother.
It was alleged on behalf of the father that the mother first made her allegations of the father hitting her and the children after she saw a lawyer in Australia in relation to these proceedings, and that the timing of those allegations was not satisfactorily explained by her in cross examination.
The applicant advised the Court that the father was willing to fly to Australia to immediately bring the children back to the USA.
The applicant submitted that in light of the discrepancies within the mother’s evidence, she failed to satisfy the onus upon her to prove that there is a grave risk that the return of the children would expose them to physical or psychological harm or place them in an intolerable situation. Accordingly, it was submitted that the Court is unable to make any findings supportive of the mother’s allegations and must make an order for return.
Written submissions of the mother
The mother opposed the making of a return order on the grounds of subreg 16(3)(b) of the Regulations, which provides that the Court may refuse to make a return order if the person opposing return 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 relied upon the authority of DP v. Commonwealth Central Authority; JLM v. Director-General NSW (2001) 206 CLR 401 at 417-418, and particularly to the following principles set out by their Honours Gaudron, Gummow and Hayne JJ in relation to the interpretation of subreg 16(3)(b) (bold emphasis added):
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.
The mother submitted that what must be established is that the risk is grave, not the harm itself. There is no requirement that the risk be exceptional or extreme in nature; rather, it is sufficient that the risk be a serious risk.
It was submitted by the mother that the following evidence established that there is a real and serious, i.e. grave, risk that the children would be exposed to physical or psychological harm if a return order is made:
· The history of family violence, including physical and sexual violence, perpetrated against the mother by the father;
· The exposure of the children to arguments between the mother and the father and to physical violence by the father;
· The father’s withdrawal of financial support in circumstances where the mother was entirely dependent upon him financially; and
· The father denying the mother the opportunity to learn English.
It was asserted on behalf of the mother that her evidence on these matters was “broadly consistent” with the information she provided to Dr H, and that the mother was steadfast in maintaining her allegations under cross examination. Reference was made to the decision of Amador & Amador (2009) 43 Fam LR 268 (“Amador”) as authority for the proposition that while it is true the mother’s allegations regarding family violence are uncorroborated; this cannot be a basis for rejecting her evidence. In Amador, the Full Court stated at paragraph 79:
…Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.
It was submitted by the mother that the lack of corroborative evidence is hardly surprising given that she speaks very little English, has no friends in the USA outside of family, and only ever attended upon doctors in the company of the father with him acting as her interpreter. It is also well accepted that there are several other reasons why victims of family violence may not disclose their circumstances to third parties, including denial, fear and shame.
The mother’s explanation for asking the father to move to Australia to live with her and her children was because, as outlined in her affidavit sworn 1 April 2015, “It is very important in [the mother’s culture]…to remain married” and because the father was able to support her. Additionally, as stated by the mother in cross examination, she thought that the father would change.
It was submitted that the evidence of the father’s supporting witnesses included in the affidavit of Ms G sworn on 23 April 2015 were so lacking in specificity that they must be assessed by the Court has having little or no probative value.
In relation to the mother’s conflicting evidence regarding her health care in the USA, the mother contended that this was not a sufficient basis for a finding that she lacks credibility. It was put to the Court that the concept of health care is not a straightforward one and could easily have been misunderstood or misinterpreted in the translation process.
It was noted by the mother that when Dr H was asked in cross examination whether the mother presented as not telling the truth he answered “Not at all”.
The mother outlined that she has been diagnosed with Major Depressive Disorder and asserted that the lack of social support within the USA would have a negative impact on her mental health. The Court was taken to the evidence of the mother that she has no friends in the USA and that the only people she socialised with were family members. It was submitted that the mother’s family members who lived in the USA were not a source of any significant social support while she lived in the USA and were unlikely to provide any significant support to her in the future if she were to return. This is particularly the case for the mother’s uncle and wife, who provided affidavits in support of the father’s case.
The mother said that the fact that she has a Facebook account and was able to telephone or Skype her relatives does not substantially mitigate the reality of her lack of real and tangible support were she to return to the USA. Her possession of a driver’s license, it was submitted, does not necessarily address her social isolation particularly in circumstances where her evidence was that she only drove on two occasions.
The mother submitted that her lack of significant social support combined with her lack of English language skills, and the power imbalance between her and the father and his family is likely to place her in an extremely vulnerable position in terms of her mental and emotional stability if compelled to return to the USA. Effective implementation of Dr H’s treatment plan would also be hindered by her lack of support in the USA, increasing the likelihood of her depression worsening which in turn would have a negative impact on her parenting abilities.
The mother referred the Court to my previous decision in Director-General, Department of Human Services & Harries [2010] FamCA 1129 (“Harries”), where I found (at paragraph 256) that to return the mother to Canada would “place the mother at her most vulnerable to relapse in her condition”. I note that an appeal against this decision was dismissed by the Full Court. In Harries I concluded, at paragraph 260, that:
…the risk for the children of their mother suffering a major mental illness in Canada, if she is effectively forced to return with the children, is so great that it establishes a grave risk that they would be exposed to psychological harm and an intolerable circumstance.
It was submitted by the mother that the circumstances of this case are similar and that the Court should find that the mother’s mental health is likely to deteriorate if a return order is made, and that accordingly, there is a grave risk that the children will, at the very least, be exposed to psychological harm.
In relation to the mother’s contention that if returned to the USA, there is a grave risk that the children would be placed in an intolerable situation, the Court was referred to the following:
· The children being exposed or subjected to family violence;
· The impact of the deterioration in the mother’s mental health;
· The mother’s (and therefore the children’s lack of social support);
· The lack of permanent, stable accommodation, at least in the short to medium term. It was outlined that the emails from Ms T, a manager at Family Counselling and Children’s Services in Michigan, to the mother’s solicitor (exhibit R2) only indicated the availability of “temporary shelter” accommodation; and
· The lack of financial support.
It was again submitted by the mother that the risks faced by the children are similar to those in Harris where I stated at paragraph 261:
The mother’s state of health upon return to Canada is not the only risk these children face. At this time the mother has no immediate accommodation, longer term suitable housing for herself and the children, financial support or family support in Canada. She returns to a situation she has not experienced before namely living as a single mother, having to care for two small children with limited financial support and facing litigation with an estranged husband.
The mother also relied upon the Full Court’s remarks at para 140 of Harris & Harris (No 2) (2010) FLC 93-454:
Appropriate recognition must be afforded to the serious and invidious nature of domestic violence, its effect on the victim and the corresponding actual or potential effect on a child, or the consequences of requiring the returning child (and perhaps a primary care giver) being isolated and living in impoverished circumstances until parenting proceedings are determined.
It was submitted that the father’s evidence in his affidavit that he was prepared to fly to Australia to “bring the children home immediately”, that he would not accept any conditions placed on his access to the children, and that “they need to return to their home life” indicated his preparedness to separate the children from the mother in circumstances where she had been their primary carer since birth and where C is only three years old and has not seen his father since December 2014. The mother alleged that this is reflective of the father’s lack of insight into the children’s emotional needs and created a grave risk that they would be placed in an intolerable situation should they be ordered to return.
It was submitted that, in light of the above, the Court should find that the grounds in reg 16(3)(b) have been established and should exercise its discretion to refuse to make an order for the children’s return. Reference was made to the decision of the High Court in De L v Director General, NSW Department of Community Services (1996) FLC 92-706 where the Court stated at 83,456 (footnotes omitted, emphasis added):
The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the "discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]" enable it to be said that a particular consideration is extraneous. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
The mother asserted that the evidence before the Court clearly established that the children would be faced with a myriad of physical, psychological and economic pressures if forced to return to the USA. She submitted that whilst the Court may order the return of the children based on certain conditions, no condition would alleviate the risks to the children entirely or remedy the mother’s lack of social support.
The mother relied upon the English authority of W. v. W. (Child Abduction: Acquiescence) [1993] 2 FLR 211, where Waithe J set out a list of factors relevant to the exercise of the Court’s discretion under Article 13 of the Convention:
Six matters appear to me to be relevant to that consideration. They are:
(1) choice of forum;
(2) possible outcome of any family proceedings initiated in whichever forum is chosen;
(3) the consequences of the acquiescence that has occurred in this case;
(4) the situation in Australia that would await the mother and child if a return order were to be made;
(5) the anticipated emotional effect on the child of a peremptory return order;
(6) the extent to which the purpose and philosophy of the Convention would be at risk of frustration if a return order were to be refused in the particular circumstances of this present case.
While the mother conceded that the USA would be the more suitable forum to determine the substantive parenting proceedings, it was submitted that her capacity to effectively participate in those proceedings would be very limited given her lack of English language skills, financial and social support in the USA. The mother also asserted that the power imbalance between her and the father would be much greater in the USA given his extensive family support. It was put by the mother that given the father speaks English, has been able to effectively participate in these proceedings despite not being physically present in Australia, and has informed the Court he could travel to Australia “immediately” to collect the children, he would be in a far better position to participate in substantive parenting proceedings here in Australia than the mother would be if the proceedings were to be conducted in the USA.
The mother also asserted that, based on the father’s affidavit of 18 May 2015, there is a real risk that he would seek to remove the children from her care upon their return to the USA. Given the challenges the mother would face upon her return to the USA, including her difficulties in accessing the legal system there is a risk, it was submitted, that the father would be successful. The mother submitted that the prospect of the children remaining in the care of their primary carer, being herself, is greater if the proceedings are to take place here in Australia.
Reference was made once more to my findings in Harries, where I stated at paragraph 272 that “The emotional impact upon the children of return to Canada is directly connected to the emotional impact upon the mother. If she is adversely affected then so will they be.” It was submitted that the same concerns would apply in the present case. The mother drew the Court’s attention to the comment by the Family Consultant at paragraph 18 of her report that the mother’s response to returning to the USA will be “the single most important factor in predicting how the children will adjust”. Accordingly, the mother contends, an order for the return of the children would be contrary to their welfare.
The mother asserted that while there is no evidence to suggest that the father is willing and able to comply with conditions, if the Court determines that a return order should be made, the operation of that order should be conditional upon the father complying with each of the following:
(a)The father is to pay for tickets for air travel from Sydney to the USA for the mother and each of the children (unless original tickets issued on 9 December 2014 remain valid).
(b)The father is to pay the reasonable living expenses of the mother and the children, in a monthly amount to be determined by the Court (“the monthly amount”) as follows:
(i)The monthly amount is to be paid six months in advance, within 28 days and held in trust by the mother’s lawyers and paid out to the mother at the end of each calendar month, until the issue of spouse and child maintenance is determined by a court of competent jurisdiction in the USA.
(ii)If the issue of spouse and child maintenance is determined by a court of competent jurisdiction in the USA prior to six months, the mother’s solicitors are to return any excess funds paid into the trust account to the father.
(iii)If proceedings in relation to spouse and child maintenance in the USA have not been determined by a court of competent jurisdiction in the USA prior to six months, the father is to continue to pay the monthly amount, CPI indexed, per month to the mother, monthly in advance, until the matter has been dealt with and orders made.
(c)The father is to sign an irrevocable consent to orders being made against him in the USA in the following terms:
(i)That the children will live with the mother;
(ii)That the father will not molest, harass, threaten, abuse or interfere with the mother;
(iii)The father will not knowingly come within 250 metres of the mother or her residence; and
(iv)That the father will not pursue any form of criminal proceedings or sanctions against the mother arising from her wrongful retention of the children here in Australia.
Conclusion
I accept the submissions by the applicant that the children’s retention in Australia after 12 January 2015 was wrongful under subreg 16(1A) of the Regulations. I find, as required pursuant to subreg 16(1A), that the children were habitually resident in the United States immediately before their retention in Australia and that their retention by the mother in Australia was in breach of the father’s rights of custody. Both children are under the age of 16, as required by 16(1A)(a). The other requirements of subreg 16(1); namely, that an application for a return order was made within one year of the children’s removal or retention, are also readily satisfied in this case.
The above matters were properly conceded by the respondent.
Accordingly, the determination of this case centres for me on the allegation of violence which the mother makes against the father and whether she has established the defence, contained in subreg 16(3)(b), that there is a grave risk that the return of the children under the Convention would expose them physical or psychological harm or otherwise place the child in an intolerable situation.
The mother’s allegations fall most seriously into two categories. Firstly, the physical and psychological violence perpetrated by the father upon the mother. Secondly, the physical violence perpetrated by the father against the children.
The mother was cross-examined in the hearing before me. I have therefore had an opportunity, not frequently provided to a trial judge in the determination of an application made for return of children to a foreign country pursuant to the Regulations. As such I have had an opportunity to assess different aspects of her evidence, both oral and written. The father did not give oral evidence in the hearing nor was there any testing of his evidence.
The consequence of the aforementioned circumstance is that, having had the opportunity to see the mother cross-examined, I do accept her evidence in relation to her allegations of domestic violence. All her evidence is very troubling. Most disturbing is the mother’s evidence that the father slapped the children across the face as a means of punishment. In my view, corporal punishment of children is abusive. The physical punishment of a child by slapping their face potentially carries a humiliation which exceeds the hurt which a slap to the rest of the body may convey. The potential of exposing either of the children to such abuse does, in my view, establish the defence in subreg 16(3)(b) relied upon by the mother. A return to their home environment in the USA for the children, without certainty that they would not be again physically chastised by the father, would, I am satisfied, “expose them to a grave risk of physical and psychological harm.”
The violence described by the mother as being metered out to her by the father also has the potential to expose the children to psychological harm. This may occur if the children are exposed to have to reside in the same residence as their parents and then witness any further such behaviour. Such a circumstance may well arise if the respondent has no ability to establish and provide her own accommodation for the children and herself.
Notwithstanding the decision reached by me that the defence in subreg 16(3)(b) is made out, I still have discretion to make an order for return of the children to the USA. I would be prepared to make such an order provided that sufficient safeguards can be put in place to ensure the safety of the children and the mother until such time as the relevant court in the USA can be in a position to hear the case and make orders.
Conditions to be imposed as a prerequisite to the return Order being executed
Following the mention of this matter in Court on 20 August 2015, where I told the parties I had reached a conclusion that I would make an Order for the return of the children to the USA subject to appropriate conditions being able to be formulated and then complied with, I directed that they provide submissions in relation to what conditions, if any, should be imposed.
Submissions and further evidence was received from the parties as follows:
(a) Affidavit of Mr U sworn and filed on 14 October 2015 attaching the written submissions of the applicant;
(b) Written submissions of the mother dated 27 August 2015;
(c) Affidavits of Mr V (“Mr V”) sworn on 30 July 2015 and 21 September 2015 and filed by the applicant;
(d) Affidavit of Mr W (“Mr W”) sworn on 27 August 2015 and filed by the applicant.
(e) Although not specifically relied upon, I note the affidavit of Mr X (“Mr X”) sworn on 7 August 2015 and filed by the applicant has relevance to the consideration of conditions which might be imposed, because the affidavit annexes documents which show the recent institution of proceedings by the father in the State of Michigan, County Court of Z. It also shows that an Ex Parte order was made by a Judge of that Court on 2 July 2015 granting “Sole legal and physical custody” of the children to the father.
Written submissions and evidence filed on behalf of the applicant
In written submissions, the applicant noted the finding of the Court on 20 August 2015 that the children may be exposed to a grave risk of physical and psychological harm if returned to the USA, and the conclusion that the Court may nevertheless be predisposed to exercise its discretion to make a return Order provided that sufficient safeguards can be put in place to ensure the safety of the children and the mother until the relevant court in the USA is in a position to hear the case and make orders.
The applicant submitted, accordingly, that the Court should exercise its discretion to make the return order, subject to any additional conditions it sees fit.
The applicant proposed that the Court make the following Orders:
1.That the father and the respondent mother make such arrangements as are necessary to ensure the return of the children [B] (female) born … 2009 and [C] (male) born … 2012 to the USA pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.
2.That the Registrar of the Family Court of Australia release forthwith all passports and air tickets concerning the children to the legal representative for the Central Authority.
3.Paragraphs 1 and 2 of the Orders of 27 February 2015 be varied to allow the children to leave the Commonwealth of Australia for the purposes of giving effect to paragraph 1 of the Order above and that the Australia Federal Police give effect to the variation.
4.Following the departure of the children from the Commonwealth of Australia to the USA the Australian Federal Police shall remove the name of the children from the Airport Watch List in operation at all Australian International arrival and departure points as soon as practicable.
5.Following the departure of the children from the Commonwealth of Australia to the USA in accordance with paragraph 1 of the order above all other Orders made by the Court in relation to this matter be discharged.
6.That the Australian Central Authority serve sealed copies of these Orders upon the Commission, Australian Federal Police.
7.That there be liberty to restore this matter to the court within 24 hours’ notice to the court as to the implementation of the return order.
The applicant relied on the affidavit of Mr V sworn on 21 September 2015 in support of its written submissions. Mr V, the father’s attorney in the State of Michigan, USA, deposed in that affidavit to the following:
· That the father agrees to pay, in a timely manner, any and all of the mother’s support and maintenance if ordered by a court in the USA. I note this, on its face is in objection to paying any support and maintenance which might be set by this court as a pre-condition to the return of the children.
· With respect to the undertakings requested by the mother concerning conditions to support the return of the children, that the father will provide housing, schooling, food, clothing, medical care and all expenses related to the children. (Again there is no suggestion that housing would be separate from the accommodation which the father has for himself).
· That the father has satisfied the condition of air travel from Australia to the United States.(This appears to be reference to the father ascertaining that the airfares paid for before the children left the USA is still available for transporting them back to the USA).
· That from the information available to Mr V and upon his belief, the father does not pose a threat of harm to his children. He has no criminal history and there is no evidence that the children have been harmed by him in the past.
· That from the information available to Mr V and upon his belief, the mother has violated the order issued by the Court in the USA to make the children available for telephone contact with the father with no justification; and
· That from the information available to Mr V and upon his belief, the mother has kidnapped the children and refuses to return them to the USA in an attempt to coerce the father to relocate to Australia.
Mr V also swore an affidavit on 30 July 2015 in which he deposed that while the rental costs asserted by the mother are not disputed, the father does not agree to pay the mother’s rental costs or living expenses unless ordered to do so by a Court in the USA. Mr V also deposed that the father was willing to pick up the children from Australia and return them to the USA if the mother refuses to return with the children. Mr V also gave evidence that while the Court documents from Circuit Court of the County of Z (“the Michigan Court”) were sent to the mother by registered post on 2 July 2015, the United States Postal Service has notified counsel for the father that the documents were still in transit.
In relation to the matters set out above, flowing from the evidence of Mr V, it is clear from his affidavit that the following applies:-
·The father shows no inclination to abide by or fulfil any condition imposed by this Court as opposed to a court in the USA. As a consequence the father is unlikely to provide funds sufficient to support the mother or the children in her care until a court in the USA can decide the interim issues.
·The father has not agreed to pay the cost of airfares for the return of the children and the mother to the USA. He has ascertained that the contract for carriage of the children and the mother from Australia to the USA is still effective and thus there is no requirement for him to pay anything. He has said he would travel to Australia and collect the children for the purpose of returning them to the USA. I assume in his favour that he would pay the children’s airfares from Australia to the USA should that be necessary to enable that proposed travel. He has not said he would pay for the mother to return to the USA.
·The father does not propose to fund accommodation for the mother and children in the USA so that the mother may return to the USA and reside together with the children separate to the father and his family. The father’s offer clearly is to accommodate and care for the children in his own accommodation and without the mother.
·There is no offer to have the Order made by the Michigan Court on 2 July 2015 suspended until the mother has returned to the USA and has had an opportunity to engage representation and appear before that Court to seek orders that she have the custody of the children.
Also filed in support of the submissions of the applicant was the affidavit of Mr X (“Mr X”), a solicitor employed by the applicant, sworn on 7 August 2015. Annexed to the affidavit of Mr X were documents received by the applicant from the Commonwealth Central Authority on 9 July 2015, including:
162.1The father’s Verified Complaint for Divorce and Ex Parte Request for Temporary Custody and Parenting Time filed by the father’s attorney, Mr V, on 2 July 2015 in the Michigan Court.
162.2A notice to the father and the mother dated 7 February 2015 to appear before the Michigan Court on 15 September 2015;
162.3The Ex Parte Order for custody and parenting time made in the Michigan Court on 2 July 2015. The Orders provide:
·That the father has sole legal custody of the children while the father’s cause is pending, until each child reaches the age of 18, or until further order of the Court;
·That the mother is allowed reasonable parenting time with the children;
·That the children may not reside outside Michigan without prior approval of the Court;
·That the father must notify the Friend of the Court in writing within 21 days of any change of the children’s address; and
·That the mother was to immediately provide the father with a telephone number and make the children available for daily telephone or Skype contact between the father and the children between the hours of 11.00 am and 12.00 pm Australian Eastern Standard Time, and that the contact shall not be interrupted by her.
The applicant also filed an affidavit sworn by Mr W, a solicitor employed by the applicant, on 27 August 2015. Annexed to this affidavit was a ‘Motion of Order Compelling Defendant to Facilitate Return of Minor Children to Z Country and Incorporated Brief’ (“the Motion”). The Motion was prepared by Mr V on 11 August 2015. Mr W deposed that the Motion was received by the applicant from the Australian Commonwealth Central Authority on 21 August 2015. The Motion moved the Michigan Court to enter an Order for the mother to facilitate the return of the children to the jurisdiction. The grounds set out in support of the Motion included:
163.1That on 2 July 2015 the Michigan Court entered an Ex Parte Order providing that the father had sole legal and physical custody of the children while his cause was pending or until further Order or each child reaches 18.
163.2That the Ex Parte Order also provided for the mother to facilitate daily telephone or Skype contact between the children and the father.
163.3That this Order and a Verified Complaint for Divorce were served on the mother by personal service on 15 July 2015.
163.4That to date, the mother failed to file a written objection to modify or rescind the Ex Parte Order or request a hearing on the matter.
163.5That to date, the mother had failed to provide the father with a telephone number or make the children available for daily telephone or Skype contact in accordance with the Ex Parte Order.
163.6That presently, the father is willing and able to travel to Australia to return the children to the USA.
163.7That B (aged six) was expected back at her Kindergarten class at K School to complete the school year on 13 January 2015 and has missed the second half of the school year due to the mother’s refusal to return to the USA. Further, that the father did not know whether B attended any school in Australia during this period due to an unverified immigration status and lack of communication by the mother.
163.8That B is currently enrolled for the 2015-2016 school year at K School.
163.9That while the mother is legally represented by Ms Maitland of Legal Aid NSW in the proceedings before the Family Court of Australia, the father has not received a response to the Verified Complaint for Divorce and the Ex Parte Order served upon the mother by personal service on 15 July 2015 apart from a list of “unreasonable demands” (reference is made to the affidavit of the mother sworn in these proceedings on 29 June 2015 and to the affidavit sworn by the mother’s solicitor, Ms Maitland, on 30 June 2015) to be met by the father in exchange for the return of the children including:
·That the father pay all her accommodation and living expenses of $2,095 per month;
·That the children reside solely with her;
·That the father does not come near her and the children;
·That the father does not commence criminal proceedings against the mother in the USA based upon her abduction of the children.
163.10That the mother has violated the Ex Parte Order of 2 July 2015 without any cause by failing to provide the father with a telephone number or make the children available for daily telephone or skype contact with him.
163.11That it is in the best interests of the children to be returned to the USA pursuant to the relevant legislation based on the following circumstances:
·The father has agreed to the condition that he pay for flights for the mother and the children to return to the USA and that it is the belief of the father that the original return flights for January 2015 are valid until December 2015;
·The father agreed to the condition that he financially support the children as well as paying alimony if ordered by the Court;
·The father has been unjustly denied contact with his children since January 2015 by the mother despite the Ex Parte Order dated 2 July 2015 and that there is no indication from the mother that she will comply with the Court’s orders; and
·That B is enrolled for the 2015-2016 school year at K School.
163.12That the best interest factors pursuant to the relevant legislation weigh in favour of an order for the return of the children to the USA, including:
·the love, affection and other emotional ties between the children and the father;
·the father’s capacity and disposition to love the children and continue their education;
·the father’s capacity to provide the children with food, clothing, and medical care as he is employed in his family business, unlike the mother who is unemployed;
·that the return of the children to the USA would maintain the continuity and environment that the children have known for their whole lives;
·that the living arrangements in Australia and the ultimate immigration status of the children, who are American citizens, are unknown;
·that the father is a hardworking man who is dedicated to his family with no criminal record;
·that the father is of sound mental and physical health;
·that the mother has caused B to miss the second half of her Kindergarten year and has provided no evidence regarding the education of the children over the last seven months;
·that the father has shown a willingness and ability to facilitate and encourage a close and continuing parent child relationship between the children and the mother as he has agreed to pay for the mother’s flight to the USA with the children and to allow her to have “reasonable parenting time”. The father has also agreed to financially support the children and pay alimony to the mother if ordered. On the contrary, the mother has failed to allow any contact between the father and the children for eight months and is requesting no contact with the father as a condition of her return to the USA; and
·that there has been no history of domestic violence between the parties or toward the children.
Written submissions and evidence filed on behalf of the mother
In her written submissions dated 27 August 2015, the mother proposed the following preconditions for the return of the children to the USA:
i. That the father sign an irrevocable consent to orders being made against him in the USA in the State of Michigan, Circuit Court of the [County of Z], Family Division in the following terms;
a. That the children live with the mother pending further order.
b. That the father not molest, harass, threaten or abuse or interfere with the mother.
c. The father not knowingly come within 250 meters of the mother, her residence or her place of work pending further order of the court.
d. That the father not pursue any form of criminal proceedings or sanctions against the mother arising from her wrongful retention of the children in Australia: and
e. That the father is restrained from requesting any further relief, seeking orders or filing any documents whatsoever that are not in accordance with this condition, in the State of Michigan Circuit Court of the [County of Z], Family Division, or any other court of competent jurisdiction in the USA, unless and until the children are returned to the USA in accordance with orders made by the Family Court of Australia.
f. That the mother be served with a copy of the sealed consent order made by a judicial officer of the Circuit Court of the [County of Z], Family Division.
ii. That the father pay for, and provide to the mother, a ticket for air travel from Sydney to USA for the mother and [B] and [C], within 28 days of the date of these orders.
iii. That the father pay for, and provide to the mother, an open ended ticket for air travel from USA to Sydney for the mother and [B] and [C], within 14 days of these orders as follows:
a.Such ticket to be used by the mother in the event of the mother being successful in her application to the USA court to relocate to Australia with [B] and [C], or with the written consent of the father.
iv.That the father pay the reasonable living expenses of the mother and [B] and [C], in an equivalent monthly amount to be determined by the court (“the monthly amount”) as adult and child maintenance, as follows:
a.That the monthly amount (that has been quantified by the court) be paid 6 months in advance, to be paid within 28 days and held in trust by the mother’s lawyers in the USA and paid to the mother monthly in advance, until the issue of adult and child maintenance is determined by a court of competent jurisdiction in the USA.
b.That if the issue of adult and child maintenance is determined by a court of competent jurisdiction in the USA prior to 6 months, the mother’ solicitors are return any excess funds paid into the trust account in accordance with order iv) a) to the father.
c.That if any proceedings in relation to child and adult maintenance in the USA have not been determined by the USA court of competent jurisdiction within 6 months, the father is to pay the monthly amount, indexed to inflation, each calendar month in advance, until the matter has been dealt with and orders made.
d.That if order iv(c) is not complied with, the mother is able to return with [B] and [C] to Australia within 14 days of not being paid the monthly amount by the father.
v.That if the father does not comply with these orders within 28 days, then no order be made by the court requiring that [B] and [C], and the mother, return to USA.
The mother also referred to an affidavit filed by her solicitor, Ms Maitland, on 30 June 2015, which set out the following information on the costs of accommodation and living expenses that Ms Maitland anticipated the mother was likely to incur if she were to return to the USA:
165.1 Cost of one way flight tickets from Sydney to Detroit, Michigan for the mother and the children of approximately $3,400 to $3,855;
165.2 Costs of the mother’s accommodation and general living expenses of approximately US$2,095 per month; and
165.3 Costs of telephone and internet of approximately $US98 per month.
Ms Maitland estimated that the costs of transport would be “significant” due to limited public transport option and car ownership and gasoline costs.
The mother submitted that based on the above set out estimates, the monthly expenses for her and the children would be US$2,193.
I accept that it is very difficult for the mother to put before the Court reliable evidence as to the costs of living in the USA specific to the area where she had lived with the father. I accept that the evidence supplied by the mother, through the affidavit of her solicitor Ms Maitland, represents the best evidence available at this time.
Determination
Having considered the matters put before the Court I consider the following conditions should be imposed. In so doing I am aware of the statements made by or on behalf of the father which imply he will not act upon any set pre-condition which is not effectively sanctioned, mandated or ordered by the USA court. Nonetheless, the requirement of the court to uphold the Convention, as stated in Regulation 1A, means that the father should, notwithstanding, be given an opportunity to change his view and meet the preconditions specified by this court.
The cost of return air travel for the mother and the children
The father has said that the contract entered into which provided for the air travel to Australia and return for the mother and the children is still valid until December 2015. No corroboration of that statement was provided by the father or his attorney however, if that be the case, then the cost of the return air fare will be nil. If it is not the case then the father will be required to pay for that journey as a pre-condition, there being no evidence that the mother has the capacity to meet same.
In relation to the cost of the airfares I note the father has said he will travel to Australia and collect the children and then return them to the USA. That being the case he clearly has the capacity to cover that expense and therefore, should it be necessary, has the capacity to fund the airfare for the mother and children to make the trip from Sydney to Michigan State.
The mother has no apparent ability to fund the cost of return to the USA by air should it be necessary to pay further funds for that travel. The Australian Government does not fund the travel. I propose therefore that it be a precondition of the return order that the father pay for the cost of travel should that be necessary.
The proceeding and Orders made in the State of Michigan, Circuit Court of the County of Z, Family Law Division
The mother seeks action be taken by the father to set aside the Orders made in the Michigan Court, such Orders being made on 2 July 2015. She further seeks the father cause a series of orders to be made. That step, if taken, would be a necessary step in order to prevent the removal of the children from the mother’s care immediately upon her return and without the intervention of a hearing conducted in that Court where the mother is present and able to be heard. It also serves to ensure the mother is not harassed or intimidated pending a court determination.
Given the children’s ages and the matters raised in the proceeding before me as to the method of chastising the children used by the father, unless the Michigan Court has an opportunity to be satisfied the children will not be abused in the father’s care before they commence to spend time with him, it would, in my view, expose the children to a grave risk of physical and psychological harm. I will therefore impose the condition sought by the mother.
The mother seeks as a condition that the father funds her return air travel to Australia and that of the children, in the event that the result of the proceeding in the Michigan Court permits that course.
The making of such a provision is, in my view, outside the scope of conditions which I consider should be made in this case. Such orders ought properly to be the province of the Michigan Court. There are many aspects of the father’s financial circumstances which are not known to this Court. Further it may be that property orders are made in favour of the mother in that Court as part of the divorce proceeding commenced by the father and she may well be able to fund her own travel to Australia should that be permitted. I will not make the condition as sought.
The mother seeks a condition be imposed which will provide for her living expenses to be met by the father for a discrete period which will allow for the mother to approach the Michigan Court for an ongoing support order for the children and herself. Such a condition, in the circumstances of this case, is necessary. The mother has no apparent capacity to fund her living expenses and those of the children without such support. To send the mother and children back to the USA without such an arrangement in place would, in my view, expose the children to unacceptable risk. The mother would be forced to seek assistance from government and charitable institutions to meet her needs and those of the children. There is no evidence that such assistance would be available to the mother and the children in this case.
It is necessary to consider what period of time might be necessary to be covered by such a condition. No evidence is available to inform the Court as to the time which the parties may have to wait until an urgent interim parenting arrangement could be heard by the Michigan Court. The parties do have the advantage of having a proceeding currently before the Michigan Court.
Having regard to those matters I consider it reasonable for the father to fund a period of two months of support for the mother and the children. Should the proceeding in the Michigan Court be able to be heard before the expiration of that time, then no doubt that Court will have the ability to credit the father with the support he has already funded to the mother and the children as a condition of these Orders, should that be appropriate.
The amount of monthly support sought by the mother as an up-front payment is US$2,193. That figure is calculated by reference to the evidence provided by the mother’s solicitor, Ms Maitland, in her affidavit sworn 30 June 2015. I have read that affidavit and I am satisfied the figure provided is reasonable in the circumstances of this case.
A figure which has not been included in the monthly support figure is a cost of furnishing and accommodation for the mother and the children. There will also be the cost of temporary accommodation in the nature of hotel type accommodation as the mother searches for and completes the legal aspects of contracting to rent accommodation. Thus there needs to be a loading for the first month to cover such expenses. Using the figures supplied by the mother through her solicitor’s affidavit I consider that initial loading should be $2,000. As a consequence, the condition will require the father to pay to a trust bank account, held on behalf of the mother by lawyers engaged by her in the USA for the purpose of holding and disbursing such funds as required by these Orders and conditions, the sum of US$6,386.
In this case, the mother has nominated that the fund be paid to her US engaged lawyers for payment out to her on a monthly basis. I consider such an arrangement adds further fairness to the condition in that the fund will not be available to the mother to spend in a manner other than that envisaged by the condition, namely her ordinary day to day support and that of the children. I will make that condition. I will also require the mother to name those lawyers within seven days from the date of these Orders.
Some of the conditions sought by the mother I consider unnecessary and potentially intrusive to the jurisdiction of the Michigan Court. I am not therefore prepared to include same in the pre-conditions I propose to make.
The pre-conditions should not be so extensive or wide-ranging as to make compliance by the father not reasonably attainable. If such be the case then the court should refuse to make the return order. Further, the conditions must be clearly defined and capable of being effectively measured to determine if they have been complied with. Again, if that cannot be achieved the return order should be refused. (McDonald and Director-General, Department of Community Services NSW (2006) FLC 93-297.)
One of the conditions sought by the mother is that the father not pursue any criminal proceeding against the mother based upon the wrongful retention of the children in Australia. Such a condition in that form is appropriate, however, this Court must recognise that the law enforcement agencies in the USA may take proceedings against the mother of their own motion and this Court could not and should not seek to interfere with such a matter.
I consider that the pre-conditions I propose to make are not so onerous upon the father as to make them realistically unachievable.
Given that it may take the father time to comply with the pre-conditions to the return order being implemented, I consider it reasonable to allow him up to six calendar months from the date of the Orders made herein to comply. If he has failed to do so by that time then the return order should lapse.
I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 20 November 2015.
Associate:
Date: 20 November 2015
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