DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & EVELYN

[2014] FamCA 1107

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & EVELYN [2014] FamCA 1107

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Wrongful retention – Child objects – Grave risk – Discretion to order return – Where the father alleged the mother wrongfully retained the children in Australia –Where the mother had been permitted by the Canadian court to take the children to Australia for six weeks – Where the mother claimed that the children refused to board the plane back to Canada – Where the mother raised as defences that the children objected and that there was a grave risk that the return of the children would expose them to physical and psychological harm or would otherwise place the children in an intolerable situation – Where the judge in the Canadian court proceedings had formed an adverse view of the mother – Where the Canadian court had determined the father was an appropriate carer for the children – Orders made for the return of the children to Canada.

Hague Convention on Civil Aspects of International Child Abduction 1980

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16

L.C.E. v E.S.B. 2014 BCSC 1111

APPLICANT: Department of Family and Community  Services

RESPONDENT: Ms Evelyn

FILE NUMBER: SYC 6420 of 2014

DATE DELIVERED: 21 November 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 7 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hill

SOLICITOR FOR THE APPLICANT: Department of Family and Community  Services

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

Orders

1. The applicant and the respondent make such arrangements as are necessary to ensure the return of the children S (a female) born … 2005 and N (a female) born … 2002 to Vancouver, Canada forthwith in the company of the father and upon the following conditions.

2. It is a condition of the return order made herein that the children’s father, Mr B, travel to Australia and collect the children to accompany him to Canada. The court notes the father has said he will do this.

3. Each of the parties, and the children’s father, has liberty to apply to the court on 48 hours’ notice to seek any further orders necessary to implement the return order, or to seek the imposition of any condition for the return of the children to Canada, provided such conditions are sought by the close of business on 12 December 2014 unless the court grants leave to a party to so apply at a later time.

4. In the event of the children or either of them not having been returned to Canada pursuant to this order within 6 months from the date hereof then either party may apply to discharge the return order made herein.

5. Each party otherwise has liberty to apply on 48 hours’ notice to the court and the other party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Department of Family and Community  Services  & Evelyn 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 6420 of 2014

Department of Family and Community  Services

Applicant

And

Ms Evelyn

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application brought by the Central Authority (“the applicant”) pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking an order for the return of two female children, N born in 2002 and S born in 2005, to Canada (“the children”).

2. The respondent to the application is the mother of the children, Ms Evelyn (“the mother”). She lives in Australia with her partner and appears to be resigned to living in Australia without the children if that be necessary.

3. The evidence discloses that the mother and the father, Mr B (“the father”), have been contesting parenting issues in relation to the children in the Supreme Court of British Columbia, Canada since 2009. Relevant orders in this matter were made by that court on 12 November 2009, 21 March 2014, 4 April 2014, 23 April 2014, 18 June 2014, 4 September 2014, 24 September 2014 and 8 October 2014. The mother was a party to all of the proceedings which gave rise to those orders.

4. The orders of 12 November 2009 provided (relevantly) that the parents have joint custody and guardianship of the children and that the children are to live five days a week with the mother. Provision was made for school holiday time with each parent. In that proceeding, the mother was seeking orders which would permit her to take the children to Australia.

5. On 21 March 2014 an interim order was made by Justice Leask as follows:

   1. The children of the marriage….Shall remain in British Columbia with the Respondent father until the completion of the school year, June 2014.

   2. When the school year is completed, the children shall fly to Australia. The Claimant mother shall pay for the children’s one way ticket to Australia.

   …

   6. The parties shall make further submissions on April 4, 2014 and final orders shall be pronounced thereafter.

   The “Claimant mother” is the mother in these proceedings and the “Respondent father” is the father. It is to be noted that the children were in Australia on the day this order was made.

6. On 4 April 2014 orders were made dismissing an application of the mother. The children were to be placed in the care of the father. There was to be an assessment of the children and a “Hear the Child Report” prepared.

7. On 23 April 2014 orders were made requiring the mother to return the children to the father within two hours. Further it was ordered that the children remain in British Columbia until the end of the school term.

8. On 18 June 2014 a judgment was given by Justice Leask which concluded four days of hearing. That judgment provided a history of the proceedings. It states that the hearing in 2009 was dominated by the fact that the mother wanted to take the children to Australia (to live). The court noted that on 6 August 2010 the mother was again seeking permission to relocate the children to Australia. Both the 2009 and 2010 applications by the mother failed to result in the order she sought being made.

9. The judgment recites that the mother had accepted a job in Australia and commenced to work there in April 2014. The trial judge noted the children were in Australia on summer holiday with the mother at the time of the judgment. The judgment recites that the mother applied on 23 April 2014 to permit the children to accompany her to Australia at that time or alternatively to allow them to live with their “step father” rather than the father. That application was dismissed.

10. The trial judge referred to the evidence in the “Hear the Child Report”. He said the younger child, S, seems content whatever happens. He said the older child, N, has expressed a strong desire to go to Australia.

11. The trial judge delivered a scathing rebuke of the mother with words such as

    I find as a fact that the mother’s motives in seeking to take the children with her to Australia is for her own benefit rather than the children’s…

    I am satisfied the mother is seeking to minimise the father’s participation in the children’s lives and substitute her partner, J.R., in the children’s affections.

12. Although the judgment was delivered on 18 June 2014 the orders were not entered until 21 August 2014. These orders required that the children remain predominantly in Canada and if the mother is living in Australia then they are to live with the father. The order which is most relevant to this case is order 2 which says:

    2. The children shall spend six weeks in Australia with the Claimant in the summer of 2014 following which they shall return to the care of the Respondent in Vancouver.

    The “Claimant” is the mother and the “Respondent in Vancouver” is the father.

13. In the submissions delivered by the mother there was a suggestion that the mother did not know the outcome of the judgment delivered on 18 June 2014 until the order was entered on 21 August 2014. If that suggestion was intended I do not accept same.

14. The orders of 21 August 2014 were not the end of the proceeding in the Supreme Court of British Columbia between the parents. On 4 September 2014 the case was back before Justice Leask where both were represented. On that day the court ordered the mother to return the children to the father in Vancouver by 5.00 p.m. on Thursday 11 September 2014. It further ordered that she pay the full cost of transporting the children. Other orders were made.

15. The children were not returned and on 24 September 2014 Justice Leask ordered that the previous orders of 12 November 2009 be varied so that the father have sole custody of the children and that parenting responsibilities be reallocated to him. Order 2 provided that the orders of 18 June 2014 be varied so that:

    …the children shall not be permitted to return to Australia for any reason until further order of the court and the Respondent shall retain the children’s Australian and Canadian passports, until further order of the court…

    Other orders were also made on that day, including that the mother pay the father for his expenses relating to the air tickets he had purchased for her and the children for the flight to Canada on 25 August 2014.

16. On 8 October 2014, upon the application of the father, Justice Leask ordered that a warrant be issued for the mother to be brought before the court. The court also ordered that costs of $23,000 be awarded to the father.

Issues

1. The applicant makes the following claims:

   ·The habitual residence of the children immediately prior to retention was Canada.

   ·The children were wrongfully removed or retained from Canada in Australia on or around 25 August 2014.

   By orders made in Canada on 18 June 2014, the children were permitted to spend six weeks in Australia with the mother in the 2014 summer break (commencing June 2014).

   ·The father consented to an extension of the children’s time in Australia until 25 August 2014.

   ·On 24 August 2014 the respondent mother informed the father that the children refused to board the plane to return to Canada.

2. The mother has filed a Form 2A Response in which she pleads:

   ·There was no wrongful removal on or about 25 August 2014.

   ·In the alternative the children object to being returned.

   ·In the alternative and or in addition to the children objecting to having to return the respondent says a return order would place the children at grave risk or expose them to an intolerable situation.

   ·The respondent disclosed that she had commenced parenting proceedings in the Family Court of Australia by filing an application on 2 September 2014.

3. There is no issue about the orders made in the Canadian court. The case conducted by the mother is that she has endeavoured to comply with the orders of the Canadian court, however, the children refused to return to Canada when she presented them at Sydney International Airport check in counter and the airline (Air Canada) refused to take the children on board if it was likely they would be in a distressed state. The children were to travel unaccompanied by an adult.

The Mother’s affidavit

1. The mother has sworn an affidavit on 4 November 2014 which was read in these proceedings. The most important evidence contained therein is as follows.

2. The mother was born in Town T in the state of NSW and is 45 years of age. In 1996, she commenced a de facto relationship with the father in Vancouver, British Columbia, Canada. They were married in Europe in October 1997 and thereafter their two children were born in Canada. It is the mother’s case that throughout the relationship the father has known that she wanted to live in Australia.

3. In June 2008, the children and the mother travelled to Australia and stayed in this country for three months. In June 2009 the mother and the children travelled to Australia again and lived here for six months.

4. The mother and children were in Canada in August 2009 when she commenced proceedings in the Supreme Court of British Columbia. The mother then recites the history of litigation in that court.

5. On 1 May 2014 the mother relocated to Australia. The children remained in Canada with their father. Justice Leask delivered judgment on 18 June 2014. The children were permitted to spend six weeks with the mother in Australia, and pursuant to that order, the mother travelled to Vancouver and collected them. The children and the mother arrived in Australia again on 28 June 2014.

6. On 15 July 2014, the mother filed a notice of appeal against the decision made 18 June 2014. That appeal is still pending.

7. As a result of communication between the parents, the children were due to return to Vancouver on 25 August 2014. The father arranged airline frequent flyer points with Air Canada for the children’s travel on an unaccompanied basis.

8. The mother says the children became distressed about flying unaccompanied to Canada. As a result she had her solicitors in Australia send a letter to the father’s solicitors in Canada recommending that he come to Australia to collect the children. The mother knew that the father had been in communication directly with the children and she understood he was experiencing their distress first hand. No response was received from the father.

9. On 24 August 2014 the mother travelled to Sydney with the children and stayed in a Sydney suburb in readiness for the early morning flight they were to catch to Canada.

10. On the morning of 25 August 2014 she took the children to Sydney International Airport. The children refused to check-in and board the Air Canada flight. The mother had a conversation with the check-in staff at Air Canada, as well as the customer service staff. She was told that the airline would not accept passengers including children who were visibly distressed. Accordingly the children did not board the flight.

11. On 10 September 2014, the mother asked her solicitors to write to the International Social Services (ISS) Australia, requesting their assistance in getting the children to travel with her. This child inclusive mediation, which she had hoped might be available, could not be implemented before 10 September 2014, the day she booked air travel for herself and the children to Vancouver, which air travel was to take place on a United Airlines flight  departing Sydney 11 September 2014 at 1.50 p.m. The passengers were to include the mother and the two children.

12. The mother attempted to have the children join her on the flight to Canada. She says that on 11 September 2014 she could not make the children enter her car in order to travel to the airport.

13. It is clear from the mother’s evidence that her case is that she has done what she can to comply with the orders made by the Canadian court.

14. On behalf of the children, the mother raises the ground of “the child objects to return” defence, which is provided for in reg 16(3) of the Regulations.

15. In support of that ground, the mother says that the children, and in particular the eldest child, N, have spoken in distress of the thought of returning to Canada during their stay in Australia. The mother said that N “continuously queried” why her wishes had not been considered in the Canadian proceedings. Further, the mother says that she was aware that N had been texting messages to the father about her desire to stay in Australia. She gave copies of the words that she said to her father to the mother and said “I want to show the court how strong my wishes are”. The mother has annexed copies of correspondence between N and the father to her affidavit. The mother says that S has also been upset about having to return to Canada.

16. On 10 September 2014, at a time when the mother was preparing the children to return to Canada, N became very angry and said to her “I will kill myself if I am forced to return to Canada.” The next day, the mother arranged for N to attend the T Medical Centre as she was very concerned about her. The mother annexed a copy of the letter from the T Medical Centre to C Psychology. That letter is annexed to the mother’s affidavit and is signed by Dr G. The letter includes the following statement:

    Refusing to board the aeroplane to go back to canada. She threatened to commit suicide if she was force to go back.

    She is afraid not seeing mom again.

    Attending school … college at [Town K]. Year 7.

    Denies suicidal thought and no plan at this stage.

    A GP mental health treatment plan document was annexed to the letter. That states under the heading problem/diagnosis “Anxiety with/out depression, mood swing with frustration, family disharmony.”

17. Part of the document annexed to the letter above quoted is a form titled “K10”. This is a form which has ten questions against which a score is recorded. The document states that a maximum score is 50, indicating severe distress, and a minimum score is ten indicating no distress. The score recorded by the doctor on this form in relation to the child N was 26.

18. The mother says that N has an appointment with Miss H on 8 November 2014. Ms H is a psychologist. 8 November 2014 was the first appointment the mother could obtain.

19. Given that the mother had notified that part of the grounds to be relied upon in the hearing was “the child objects”, a Hague Report was ordered. This report was ordered by the Court to address the following questions:

    a)Do either of the children object to being returned to Canada?

    b)Whether their objections show a strength of feeling beyond the mere expression of a preference or ordinary wishes?

    c)Whether the children have attained an age and degree of maturity at which it is appropriate to take into account their wishes?

20. The report prepared by Ms F is dated 3 November 2014. She interviewed both children in the preparation of the report. In the portion of the report dealing with N, Ms F reported her age as being 11 years and eight months. She then said that N “is a tall girl who looks older than her years.” As it transpired, N was a year older, at almost 13 years of age. In relation to N, Ms F reported that she was adamant that she did not want to return to Canada. Ms F set out words which N had uttered, including the following:

    I’m not going back. No-one can make me. I will demolish my passport and documents… I’ll be the most upset person on the planet... I’m going to live here... I don’t want to be away from my mum. I’d probably commit suicide.

21. In summary, Ms F reports that both children do object to returning to Canada. She says S’s objections do not show a strength of feeling beyond mere expression of a preference or ordinary wish. She said N’s objections do fulfil that criteria.

22. Ms F opined that S is not mature enough to warrant her wishes being taken into account. She said N’s maturity is more difficult to assess as “she looks deceptively older than her 11 years, is already pubescent, and is articulate and passionate in expressing her views.” She said “[N] does have a genuine and heartfelt wish to remain in Australia.” Ms F then said “However, her maturity is not such that significant weight should be placed upon her expressed wishes.”

23. Ms F gave oral evidence during which it was brought to her attention that N was almost 13 years of age. She also had other information brought to her attention which was not before her when she met with the children. The information provided to Ms F disclosed a long and bitter battle between the parents in which the children have been significantly involved. They have been brought into the litigation between the parents through undergoing interviews in order to ascertain their wishes.

24. Ms F said that N has been dangerously empowered by the dispute between the parents. She explained what the dangers were in relation to the emotional and psychological development of N. She said:

    In a contradictory way, a child feeling enormous decisions rest on her shoulders is so much pressure for a child to bear, it does not allow them to think things through in the same way they could if there was not that pressure. This is so even in an intact family. But given the degree to which [N] has been empowered means that you have to question the weight which could be put on her views.

1. Having heard the evidence from Ms F, it is my conclusion that N has attained an age and a degree of maturity at which it is appropriate to take into account her wishes. I am satisfied that the respondent has made out the defence set out in reg 16(3)(c)(i) namely “the child objects to being returned”.

2. Where the Court determines that one of two siblings does object to being returned and the views of that child are appropriate to take into account, a further difficulty is raised in making an order pursuant to the Regulation.

3. The mother also raises as a defence to the application that set out in reg 16(3)(b), namely, “there is a grave risk that the return of the child under the convention would expose the child to physical and psychological harm or otherwise place the child in an intolerable situation”.

4. In paragraph 39 and following, the mother sets out her evidence under the heading “children places at grave risk if returned to Canada.”

5. The principal risk raised by the mother is that she will be living in Australia and the children will be living in Canada where they do not wish to be. The father will have to engage others in their day-to-day care because of his work commitments. The children would be significantly adversely affected if they were separated. The children have experienced living with their father while their mother is in Australia and the care that he has given via his girlfriend Ms X. The child N is said to have told her mother “I hate [Ms X]”. The mother does not know Ms X.

6. The mother criticises the father’s care of the children and predicts that will continue should the children return to his care.

7. The mother says that the children have settled well into their new schools. They have made friends. They enjoy spending time with their extended family and their animals.

8. Having heard the parties’ submissions in relation to this last ground, I conclude that the ground has been made out in relation to the child N. N is clearly a very determined child. Ms F says that she has been dangerously empowered in the parental battle. I have reservations as to the lengths she is prepared to go to in order to achieve what she desires, namely, to stay in Australia with her mother.

9. The evidence discloses to my satisfaction that N still has a good relationship with her father. I am satisfied that she still loves her father. I am satisfied that she still wishes to spend time with him in the future.

10. Notwithstanding that I have found the mother has established the defences as above outlined, there is still a discretion to order a return of the children to Canada. I propose to exercise that discretion by making that order, however, it will be conditional on the father attending Australia to collect the children and being able to obtain their agreement to return to Canada with him. The reasons for so exercising that discretion are as follows.

11. This case illustrates the most serious example of the requirement of countries to respect and enforce the judicial determinations of the other in parenting cases. In this case, the mother has been endeavouring to convince the Supreme Court of British Columbia to allow her to remove the subject children to Australia for the purpose of permanently residing here. She has been unsuccessful in two full hearings of her applications. A reading of the decisions given at the conclusion of those hearings provides a clear and logical pathway to the determination made. Having read the judgments, I conclude it is highly probable that exactly the same result would have occurred had the case been heard in Australia.

12. Justice Leask in his decision formed a very adverse view of the mother in these proceedings. The evidence in this case raises a concern for me that although the mother, on the face of her evidence, has taken all reasonable steps to comply with the orders made in the Canadian court and return the children to Canada, there is an underlying concern I have that the emotional message provided by her to the children does not support their leaving Australia.

13. Any order made by this Court for the return of the children to a Convention country must be practically capable of being implemented. It is the well known policy of airlines flying internationally from Australia that they will not accept passengers who are distressed and who are likely to distress other passengers on the plane. The practical reality in this case is that N is old enough and intelligent enough to be able to ensure she is not accepted onto an aeroplane. The only way she will be returned to Canada is if her father can convince her that is what she should do.

14. The mother’s counsel addressed a concern that S may be returned to Canada, thereby splitting the children. Such a concern, although clearly validly held, is not a matter which this Court can determine as a defence unless it fits within the provisions of reg 16(3). The only possible defence which might include a consideration of the siblings being split is “there is a grave risk that the return of the child under the convention would expose the child to physical and psychological harm or otherwise place the child in an intolerable situation”.

15. In this case, the Canadian court has determined that the father is an appropriate carer for the children, even where the mother was no longer living in Canada. So much can be determined by the orders made by that court. That court did not have to consider the impact on the welfare of each of the children should N be residing in Australia with the mother and S be residing in Canada with the father.

16. The Hague Convention on Civil Aspects of International Child Abduction 1980 is a Convention principally about forum. I conclude that it is for the Canadian court to determine whether S should live with the father in Canada or the mother in Australia should the circumstance arise that N does not return to Canada with her father but S does.

17. I propose to order a return of the children to Canada as sought by the application, upon the condition that the father travels to Australia and collects the children and accompanies them on the return trip to Canada. The applicant may apply for any orders necessary to assist the father in that pursuit, including orders for the children to spend time with him before any planned return trip.

18. In the event of the children or either of them not having been returned within 6 months from the date of these orders then either party is to have liberty to apply to discharge the order. I propose to make such an order with the welfare of the children in mind. If the children are not returned then the existence of the order may well interfere in the ability of the father to spend time with the children and/or continue his relationship with them at a proper level.

19. Each party is granted liberty to apply to seek further conditions relative to the return order.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 21 November 2014

Associate:

Date: 21 November 2014