Department of Family and Community Services Secretary & Smollett (No. 2)

[2018] FamCA 372

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES SECRETARY & SMOLLETT (NO. 2) [2018] FamCA 372

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the Court has previously ordered the return of a child to New Zealand – Where the mother makes an application to set aside that order pursuant to 19A – Where the child has subsequently been diagnosed as being on the autism spectrum –Where there is no evidence of circumstances that make it impracticable for the order to be carried out – Where concern that returning the child to New Zealand may not be in the child’s best interests but does not present an unacceptable risk to the child – Where no exceptional circumstances exist – Application is dismissed.

Family Law Act 1975 (Cth) s. 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) rr. 19A
Hague Convention on Civil Aspects of International Child Abduction 1980

Baker v the Queen (2004) 223 CLR 513.
Ho v Professional Services Review Committee No 295 [2007] FCA 388
De L v Director-General Department of Community Services (NSW)[1996] HCA 5
DP v Commonwealth Central Authority [2001] HCA 39
R v Kelly (Edward) [2000] QB 198

Re M [2008] 1 AC 1288.
Re C (A Minor) (Abduction) [1989] 1 FLR 403

APPLICANT: Department of Family And Community Services

RESPONDENT: Ms Smollett

FILE NUMBER: SYC 6905 of 2017

DATE DELIVERED: 18 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 18 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Dr Barnett

SOLICITOR FOR THE RESPONDENT: Legal Services Unit, Department of Family And Community Services

Orders:

1. The mother’s application to discharge the orders made on 21 December 2017 pursuant to regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 is dismissed.

1. Order 1 of the orders made 24 April 2018 is varied to read

“That the order 2 of these orders shall take effect on 24 June 2018.”

1. Order 3 of the orders dated 24 April 2018 is varied to read;

“Notwithstanding order 1, order 2 of these orders does not come into effect if either;

a)   the mother complies with the orders made 21 December 2017 on or before 23 June 2018 or,

b)     parenting orders are made by a Court of appropriate jurisdiction in NZ, permitting the child to live in Australia on an interim or permanent basis”.

1. Order 7b of the orders made on 21 December 2017 is varied to now read;

“the mother and child and maternal grandmother being the only residents occupying the accommodation”.

1. Order 7a of the orders made on 21 December 2017 is amended to read;

“the mother confirming, to the father, by 17 June 2018 that she requires accommodation for herself and the child”

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services Secretary & Smollett (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6905 of 2017

Department of Family and Community Services

Applicant

And

Ms Smollett

Respondent

EX TEMORE

REASONS FOR JUDGMENT

1. This matter concerns an application to discharge a return order made on 21 December 2017 requiring the mother, Ms Smollett, born in 1993 to make such arrangements as are necessary to ensure the return of the child, B (the child), born in 2015 to the country of her habitual residence, that being New Zealand. The mother has not made such arrangements in accordance with the orders. The mother is now five months pregnant with her second child and is due to give birth later this year. In the period since the return order was made, the child has been diagnosed with Autism Spectrum Disorder.

2. In the period since the return order was made, the matter has been listed for hearing or mention before the Court on four occasions including today. In brief ex tempore reasons for judgment on 24 April 2018, I summarised the history of the proceedings up until that point. I note the reasons for the delay and adjournments included, at least in one instance, the mother's inability to attend Court as a result of being hospitalised in respect to a matter relating to her pregnancy.

3. On 24 April 2018, I made orders (attached to these reasons and marked as “ATTACHMENT B”) of a machinery nature providing that, in the event of the mother not complying with the orders that I made on 21 December 2017 (attached to these reasons and marked as “ATTACHMENT A”) by the date of 24 May 2018, that responsibility for securing the return of the child to New Zealand would shift to the Central Authority and the child's father, Mr D. The orders require the mother to cooperate, including by making the child available to the father at a time and place within the Sydney metropolitan region as nominated by the Central Authority. The orders also provide that a recovery order is to be issued in the event of default by the mother.

4. The reason for deferring the effective date of the orders made on 24 April such that they did not take effect until 24 May 2018 was to provide the mother with an opportunity to make an application to discharge the return order, or such other application as she saw fit.  The mother has since made such an application to discharge the return order.

5. Regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘the Regulations’) relevantly provides that if a court makes a return order, pursuant to the Regulations, the court may make an order discharging the return order, or part of the return order.

6. Regulation 19A(2) relevantly provides;

   (2)   The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:

   (a)    all the parties consent to the return order being discharged; or

   (b)    since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or

   (c)    exceptional circumstances exist that justify the return order being discharged; or

   (d)    the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.

7. I respectfully agree with, and adopt the submission of Dr Barnett, counsel for the Central Authority, that, in applying Regulation 19A, it is necessary for the court to have regard to the statutory context. That is, the Regulations are made pursuant to section 111B of the Family Law Act 1975 (Cth) which relevantly provides that the purpose of the Regulations is to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention).

8. In DP v Commonwealth Central Authority[1] (“DP”)Gleeson CJ said;

   “…the concern of the Convention is to reserve to the jurisdiction of the contracting state which is the place of habitual residence of the child the determination of rights of custody and of access.  This was said to entail a degree of self-denial, the natural inclination of any court before which such a question comes being to make its own assessment of the interests of the child.  The objective is to secure the prompt return of children who have been removed wrongfully, or are being retained wrongfully, so that issues of custody and access may be dealt with according to the laws of their place of habitual residence. 

   [1] [2001] HCA 39 at [3]

9. In respect to the task before the Court, in Re DP, Kirby J noted that applying the principles of the Convention;

   “…requires decision‑makers to face up to what will necessarily, on many occasions, be an unpleasant obligation where there may be a suspicion that the child's best interests, viewed purely as a custody determination, might suggest the child's retention within the jurisdiction, although the proper operation of the Regulations, implementing the Convention, requires an order of removal.”[2] 

   [2] Ibid at [131] citing De L v Director-General Department of Community Services (NSW)

10. That situation exists in this case.  While it is not my function to determine the issue, I do have real concerns as to whether, on the particular facts of this case, the return of the child to New Zealand is in the best interests of the child.

11. However, despite that concern I note the further caution of Kirby J in Re DP, Kirby J that:

    It is easy enough to slip back into a factual inquiry into the child's best interests, that having for centuries been the duty of common law courts in disposing of analogous cases. But such a tendency must be resisted for otherwise the attainment of the main point of the Regulations and the Convention will be frustrated.

12. At the same time I recognise the further caution of the House of Lords in Re Mthat "children should not be made to suffer for the sake of general deterrence of the evil of child abduction worldwide”. [3]

    [3] [2007] 3 WLR 975 at 992 Referred to in MW v Director-General, Department of Community Services [2008] HCA 12 at [62]; 82 ALJR 629; 244 ALR 205.

13. Having regard to that caution, I place on record that, in an exchange with counsel for the Central Authority, I raised the issue as to whether the time has come for Australian and New Zealand officials involved in this area of administration to look at more appropriate reciprocal arrangements where the best interests of the child can be considered in either Australia or New Zealand when matters of this nature arise.

14. Nonetheless, it is my responsibility to apply the Regulations in the context of the Convention. In terms of regulation 19A(2)(b), to which I have earlier referred, I have no evidence before me that satisfies me that, since the return order was made, circumstances have arisen that make it impractical for the order to be carried out. The Central Authority has provided considerable latitude to the mother in circumstances where there was evidence that the child was in ill health and unable to travel by aircraft to New Zealand in the period shortly after the return order was made. There was also evidence that the mother suffered from severe morning sickness, arising from her pregnancy, including requiring a period of hospitalisation. Clearly this would have presented difficulty for the mother to travel to New Zealand.

15. However I do not have before me evidence, in an admissible form, that satisfies me that there are currently circumstances that make it impracticable for the order to be carried out.

16. The more complex issue is in respect to the application of regulation 19A(2)(c). That is, whether there are exceptional circumstances that justify the return order being discharged.

17. In applying that criteria I am assisted by the reasoning of Rares J in Ho & Professional Services Review Committee[4] where his honour applied the High Court decision of Baker v the Queen[5] in stating:

    We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

    [4] Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [25]

    [5] (2004) 223 CLR 513 per Callinan J at [573 [173]

18. In this matter, a potential exceptional circumstance that has arisen since the orders were made is the fact that the child has been diagnosed as suffering from autism.  In that respect, in a statutory declaration dated 16 April 2018, Dr J, a consultant paediatrician at the K Hospital, said that he had diagnosed the child with several medical conditions relating to impaired development, including most relevantly Autism Spectrum Disorder DSM-5, level 2 severity. 

19. Dr J stated that the child's condition of Autism Spectrum Disorder is a serious lifelong disability which will affect her ability to communicate, interact with her peer group and require long term intensive interventions.  Therapy will involve occupational therapy, speech therapy, social skills training and early childhood intervention.

20. In addition, Dr J stated that the child has global development delay which means that she is functioning as a considerably younger child developmentally and this is anticipated to be a lifelong disability. She will require additional educational support, formal assessment by an educational psychologist, and special considerations and long term additional educational intervention and support through her schooling.

21. The mother has given evidence that the child becomes anxious if separated from her mother without there being considerable effort to introduce her to the unfamiliar circumstances. The mother indicated that, in those circumstances, the child becomes highly stressed, can scream and cry, kick and even engage in self-harming activities such as hitting her head. The mother has indicated that, in the five month period that she's been in Australia, the child has, however, developed a close relationship with her maternal grandmother. The mother stated that the child is quite secure with the mother and the maternal grandmother.

22. In considering whether exceptional circumstances exist, in the context of the Regulations it is appropriate to have regard to whether, in the event of the return order remaining in force, the child would be at grave risk as contemplated by regulation 16(3)(b). That sub-regulation provides that a court may refuse to make an order for the return of the child 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.

23. In Re DP Gleeson J again in Re DP said:

    The regulations provide that grave risk for the purpose of regulation 16 must be grave.  The nature and degree of physical or psychological harm is unspecified, but guidance as to what is in contemplation is given by the words "or otherwise place the child in an intolerable situation".

24. The Plurality in Re DP explained that determining whether there is such a grave risk necessarily involves some prediction about possible future events.  In that context, in their joint judgement Gordon J, Gummo J and Hayne J said;[6]

    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.

    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.

    [6]Re DP at [41] – [42]

25. In this matter the Court would have been assisted by more detailed evidence from Dr J and in particular Dr J’s opinion as to the potential consequence of the child being separated from the mother. Nevertheless, even on the basis of Dr J’s statutory declaration and the evidence of the mother to which I have referred, I am satisfied that the child being returned to New Zealand other than in the presence of the mother would place the child in a situation where the child would face a grave risk of harm as contemplated by regulation 16(3)(b). This is because the child, who has autism, would be highly distressed at being removed from the mothers care, placed on an aeroplane and being placed in a situation where the child would not be in a position where she could readily obtain comfort from her primary carer.

26. However, I have noted, by reference to the wording of regulation 16(3) the mother carries the onus of establishing the existence of a grave risk. The mother has not presented evidence that she would allow a situation to occur where the child would be separated from her as a result of her failing to accompany the child on the child’s return to New Zealand.

27. In that context I note that, in Re C (A Minor) (Abduction),[7] Butler-Sloss LJ said:

    … I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parents who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and horse through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent. …

    [7] [1989] 1 FLR 403 at 410

28. As noted, there is no evidence before the Court that the mother would act in such a manner.

29. In this matter I have noted, with appreciation, the efforts that have been made by the Central Authority to assist in addressing the challenging circumstances confronting the mother. This includes by ascertaining, as best as is possible, the period of time that it would reasonably take for this matter to come on, at least at an interim stage, before the appropriate court in New Zealand.

30. To accommodate the possibility of the mother commencing proceedings in New Zealand and obtaining appropriate interim relief I will amend the orders that I made on 24 April 2018, enforcing the return of the child to New Zealand, such that the orders will not take effect in the event of the mother obtaining an interim order by a New Zealand Court permitting the child to continue living in Australia pending the best interests of the child being considered in a substantive hearing before the appropriate Court in New Zealand.

31. In facilitating that possibility I recognise that the child suffers from autism and other developmental issues. Without purporting to determine the issue, there is clearly a strong argument that continuity of treatment with a provider that she is familiar with would be in the child’s best interests.

32. However, the fact that may not be possible does not elevate the risk to the child to a grave risk as contemplated by the Regulations. In that respect I note that, by way of a file note made on 16 February 2018, Dr J has previously provided advice that specialist services in respect to developmental issues faced by children exist in New Zealand. Dr J indicated that he would take appropriate steps to assist the mother in locating such specialist services.

1. I further note that the father has made inquiries of Autism New Zealand as to the existence of potential services that are available in New Zealand to assist parents, and to provide therapy for a child suffering from autism.

2. I recognise that the February file note, made by Dr J, is in respect to a period prior to the diagnosis of the child suffering from autism, however nonetheless having regard to the content of the reference to development services and the subsequent note from Autism New Zealand, I am satisfied that there are appropriate services available to assist the child, in New Zealand, should it be the case that the matter is unable to be resolved at an interim level before the orders that I make take effect with the result that the mother is required to return to New Zealand.

3. Accordingly, in all the circumstances, while recognising the very trying circumstances faced by the mother and the special needs of the child I am not satisfied that the conditions set out in regulation 19A(2)(c) exist. I therefore dismiss the mother’s application.

4. The Central Authority had no objection to the conditions to the orders that I made on 21 December 2017 being varied to confirm that the child’s maternal grandmother can live with the mother and the child in new Zealand should that become necessary. The order made on 21 December will be so varied.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 18 May 2018.

Associate: 

Date:  25 May 2018.

ATTACHMENT A

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY   File No. (P)SYC6905/2017

BETWEEN

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES SECRETARY (Applicant)

AND

MS SMOLLETT  (Respondent)

21 December 2017 
Before The Honourable Justice MCCLELLAND

UPON APPLICATION made to the Court AND UPON HEARING «FCA_LD221»with appearances excused

THE COURT ORDERS THAT:

1. That the Applicant and the Respondent, Ms Smollett born … 1993, (the mother) make such arrangements as are necessary to ensure the return of the said child, B born … 2015, to New Zealand by 20 January 2018, in the company of the mother, and upon the conditions following these orders, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.

2. For the purpose of facilitating the Respondent travelling with the said child to New Zealand in accordance with paragraph 1 of these orders, paragraphs 1, 2, 3 and 4 of the orders made on 26 October 2017 are discharged.

3. The mother’s previous solicitors, C Lawyers, are authorised to release to the Respondent her passport and that of the child.

Conditions

1. The father, Mr D, is to meet the cost of the mother and child's economy airfare to return to City E.

2. Subject to the mother applying for the relevant New Zealand Social Security Benefit or any other Benefit she is entitled to within 2 weeks of her return to New Zealand, the father is to pay to the mother the sum of $300 per week for 3 months from the date of her return or until she receives a benefit (whichever is the sooner).

3. Subject to the following paragraph, the father will find and meet the cost for accommodation for the mother and the child for a period of up to 3 months.

4. Condition 6 is subject to:

   (a)        the mother confirming, to the father, by 4 January 2018 that she requires accommodation for herself and the child, and

   (b)       the mother and child being the only residents occupying the accommodation.

5. The father shall meet half the child's pre-school fees until the child is eligible for Government subsidy at the age of 3 years.

ATTACHMENT B

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY   File No. (P)SYC6905/2017

BETWEEN

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES SECRETARY (Applicant)

AND

MS SMOLLETT  (Respondent)

24 April 2018 
Before The Honourable Justice MCCLELLAND

UPON APPLICATION made to the Court AND UPON HEARING «FCA_LD221»Mr Harper of Counsel for the applicant, and the respondent in person.

THE COURT ORDERS PENDING FURTHER ORDER:

1. That the order 2 of these orders shall take effect on 24 May 2018;

2. That the orders made on 21 December 2017 are varied as follows:

   a.   By deleting orders 1 and 3 to 8 inclusive and;

   b.   By substituting the following:

   1.That the Applicant and the father, Mr D make such arrangements as are necessary to ensure the return of the subject child, the child B (female) born … 2016 to New Zealand in the company of the father as soon as practicable.

   3.The Respondent mother, Ms Smollett shall cooperate with the Applicant and the father to facilitate the return of the subject child to New Zealand including but not limited to making the child available to the father at a time and place (within Sydney metropolitan region) nominated by the Applicant.

   4.The respondent mother shall forthwith release the subject child’s passport to the Applicant who shall then release it to the father.

   5.That the father shall meet the cost of the subject child’s airfare to New Zealand.

   6.That the applicant have leave to approach on short notice for the issue of a recovery order in the event the mother does not comply with any of the preceding orders. (changed in chambers)

1. In the event that the mother complies with the orders made on 21 December 2017, on or before 23 May 2018, than these orders do not take effect.

THE COURT NOTES THAT:

1. In the event that on or before close of business Friday 4 May 2018, the mother files an application pursuant to regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), and or such other application that the mother deems appropriate, together with any supporting evidentiary material, than that application will be heard on 18 May 2018 at 10:00am.

[1996] HCA 5 (29 February 1996) (1996) 187 CLR 640 at 648‑649 quoting Eekelaar, "International Child Abduction by Parents", (1982) 32 University of Toronto Law Journal 281 at 305.