DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & TAMLIN

[2019] FamCA 157

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & TAMLIN [2019] FamCA 157

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where there is one child aged eight years – Where the mother removed the child from Thailand and travelled to Australia – Where it is agreed that the circumstances bring the child within the terms of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) so as to require his return to Thailand – Where the only defence raised by the mother is that the child objects to returning to Thailand – Where a family report was prepared – Where the expert does not believe that the child has a strong objection to returning to Thailand and in any case does not believe that the child has the requisite maturity to understand the implications of making such a decision – Where the defence has not been made out – Where on the facts of this case the Court is satisfied that even if the defence had been made out the Court would have refused to exercise the resultant discretion to refuse to return the child to Thailand – Where an order is made for the return of the child to Thailand.

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 16, 29
Hague Convention on the Civil Aspects of International Child Abduction 1980

H v H (Abduction: Acquiescence) [1996] 2 FLR 570
Re C (A Minor)(Abduction) [1989] 1 FLR 403
Re M (Republic of Ireland)(Child’s Objections) (Joinder of Children as parties to appeal) [2015] EWCA Civ 26

APPLICANT: Secretary, Department of Family and Community Services

RESPONDENT: Ms Tamlin

FILE NUMBER: SYC 262 of 2019

DATE DELIVERED: 20 March 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 4 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hartstein

SOLICITOR FOR THE APPLICANT: FACS Legal,
Department of Family and Community Services

COUNSEL FOR THE RESPONDENT: Mr Weinberger

SOLICITOR FOR THE RESPONDENT: Super & Super Lawyers

Orders

1. The parties shall make such arrangements as are necessary to ensure the return of the child, X (male) born in 2010, forthwith to Thailand, in the company of such person and upon such conditions as the parties may agree or as the court subsequently orders. 

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Tamlin 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:  SYC262 of 2019

Department of Family and Community Services

Applicant

And

Ms Tamlin

Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an application filed 17 January 2019, the Secretary of the Department of Family and Community Services (“DFACS”) seeks the return of X (“the child”), born in 2010, to Thailand.

2. The respondent is X’s mother, Ms Tamlin (“the mother”). X’s father is Mr Tamlin (“the father”).

3. The proceedings are brought under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Abduction Regulations”) which are the expression in Australian law of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention”). Among other countries, Australia and Thailand are signatories to the Convention and DFACS has been appointed under the Abduction Regulations as the Central Authority in NSW.

4. It is an agreed fact that the circumstances fall within the provisions of the Abduction Regulations that require an order for return. The mother was not able to establish the defence she relied on under reg 16(3)(c) of the Abduction Regulations. The Court is satisfied that the Abduction Regulations require the return of X to Thailand. These are the reasons for those decisions.

Documents

1. The applicant relied on the following:

   ·the Application (Form 2) filed by DFACS on 17 January 2019 annexing various documents including the affidavit of Ms B sworn on 16 January 2019 and the father’s affidavit sworn on 5 November 2018; and

   ·the affidavit of Ms B filed on 28 February 2019 annexing the father’s affidavit sworn on 28 February 2019.

2. The mother relied on the following:

   ·the Answer (Form 2A) filed on 18 February 2019 annexing the mother’s affidavit sworn on 18 February 2019.

The proceedings

1. The father applied to the Central Authority of Thailand on 6 November 2018 and on 17 January 2019 DFACS filed the application that commenced these proceedings.

2. The proceedings first came before this Court on 25 January 2019 when orders were made ex parte to retain the mother and the child X in Australia and fixing a hearing date of 4 March 2019.

3. After the service on the mother of the application and the orders of 25 January 2019, on 7 February 2019 trial directions were made and an order was made for a Family Report to be prepared in relation to whether the child objects to being returned to Thailand.

The hearing

1. On 4 March 2019 the parties were each represented by counsel.

2. As is generally the practice in proceedings under the Abduction Regulations, there was no oral evidence from either parent. The only oral evidence was that of the expert, Ms G, in cross-examination.

3. On 4 March 2019 orders were made by agreement to facilitate overseas travel for the mother for the purposes of her employment and otherwise, judgment was reserved.

The Evidence

1. For proceedings under the Abduction Regulations special provision is made for the rules of evidence that apply to certain proceedings. For example, and relevantly, reg 29(2) provides:

   (2) The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.

2. That provision seeks to ameliorate the same mischief at which the Convention and, in turn, the Abduction Regulations, are partly aimed – the difficulty and unfairness of being required to litigate in a foreign jurisdiction. However, by that provision, one of the evidentiary safeguards of the common law, the scope for excluding unreliable evidence on objection, is not available in relation to the evidence filed in support of an application under the Abduction Regulations. The same latitude is not allowed for the evidence relied on by a respondent. However, there is an allowance in reg 29(3) in relation to the absence of overseas deponents. The Court nevertheless retains the capacity and obligation to weigh the evidence notwithstanding its source.

3. Although there was mention in the respective case outline documents of objections to one aspect of the mother’s evidence and to the expert report of Ms G, those objections were not pressed.

4. On 7 February 2019 an order was made for a report to be prepared by a Family Consultant nominated by the Manager of Child Dispute Services in relation to X’s objection to being returned to Thailand.

5. A report dated 21 February 2019 was prepared by Ms G. Ms G is a Senior Family Consultant for the Family Court of Australia. She holds a Masters Degree in social work and, over 30 years, has worked in child protection, at a Children’s Hospital and, since 1992, with this Court and, later, also with the Federal Circuit Court of Australia.

Chronology

1. The father was born in 1974 in Town C, Australia.

2. The mother was born in 1981 in City D, Country W.

3. In December 2004 the parents met in Middle East.

4. In November 2005 the parents commenced living together in Melbourne.

5. In about June 2006 the father commenced working for an international company.

6. In 2006 the parents were married.

7. In January 2008 the father was offered a position with the international company in Sydney. As a result the parents relocated to Sydney.

8. In 2010 X was born in Sydney.

9. In January 2012 the mother was granted Australian citizenship.

10. In about November 2015 the father was offered a three year contract by the international company in Thailand.

11. In December 2015 and January 2016 the family sold their cars and many of their household appliances. They retained some items of special value to them which were stored at the home of the father’s uncle in Queensland.

12. In January 2016 the family relocated to Thailand. It is the mother’s evidence that this relocation was only intended to be for a three year period. It is the father’s evidence that he and the mother did not know how long they would be overseas and that there was no agreement between them that he would only work in City F for the three year period and then return to Australia thereafter. It is the father’s evidence[1] that he and the mother made statements to the following effect:

    [1] Paragraph 16 of the father’s affidavit sworn 5 November 2018 and attached to the Form 2 Application.

    [Father]:I have again been approached to take the role of Senior Manager in [City F]. Given the prospects with [the international company in Australia], I think we should accept the offer. The contract is for 3 years, but as there is no position at this level in Australia, it is likely that the contract may be extended and that we could be offered more roles internationally. Opportunities within [the section] will be greater within international experience.

    The role in [City F] will be good for [X] as well and broaden his experiences as he starts school. The salary and expat benefits I will get if I accept the offer are higher than I will get here in in [sic] Australia. The expat the [sic] benefits are very good.

    [Mother]:[Ms Tamlin] agreed with the possibilities the role offered and that it would be a positive situation for all of us.

    I think you should accept the offer.

13. When the family moved to Thailand the mother was granted a non-immigration dependent visa in Thailand. This visa class did not allow the mother to work in Thailand. The mother’s ability to obtain a visa which allowed her to work in Thailand is a matter of contention between the parents.

14. The parents separated shortly after they moved to Thailand. On the father’s evidence they separated on 22 January 2016 and on the mother’s evidence they separated on 1 March 2016. It is the mother’s evidence that following their separation she agreed to initially stay in Thailand so that X could be close to both parents and that the mother and X would return to Australia potentially after a year had passed. The father continued to support the mother financially following separation and they shared care of their son.

15. In March 2016 X commenced at the E School in City F, Thailand.

16. In 2017 or 2018 the father spoke to the mother about the family potentially relocating to Country Z and continuing the same arrangement the parents had in City F. The mother’s evidence is that she refused and that she reiterated to the father that she intended to return to Australia. The father disputes this account and says that the mother said she would think about it.

17. It is the mother’s evidence that on 14 March 2018 she had a conversation with the father and she told him that she was still intending to return with the child to Australia so that she could go back to work. It is her evidence that the father responded with words to the effect that he would need to have a discussion with his employer. She gives evidence that the father did not express any disagreement with her intention to return with the child to Australia. It is the father’s evidence that while the parties did meet on 14 March 2018 this conversation did not occur and that the mother had said to him on only two occasions prior to 24 August 2018 that she wanted to return to Australia, the first in August 2016 and the second in January 2017. He says that on those occasions he said to the mother that he did not want to go back to Australia then and he did not think it was in X’s interest when he was settled in City F.

18. On 24 August 2018 the parties had a conversation where the mother relayed her intention to return with the child to Australia. She says that during this conversation the father did not express any disagreement about her returning to Australia with X and that he said words to the effect that he needed to check with his employer about his contract. The father disagrees with this account. He says that he expressed concern that if they returned to Australia they would be unemployed and that to have a set-up in Australia similar to what they had in City F would be expensive. He said he told her he would think about it.

19. In September or October 2018 the father reduced the financial payments he was providing to the mother. Prior to 3 September he had been providing the mother with 76,500 baht ($3,295) and subsequently he provided 1,000 baht ($42.64). It is not apparent from the evidence what was the frequency of those payments.

20. On 4 September 2018 the father sent the mother an email communicating his intention to continue his career in City F and suggested that City F was a better location for the family.

21. On 4 September 2018 the mother withdrew $61,726.60 from the joint Westpac Reward Saver account #...46.

22. On 14 September 2018 the father communicated to the mother that he was not going to continue to provide money to the mother or pay any bills for the mother until matters were resolved.

23. From October 2018 the father restricted the mother’s contact with X. It is the father’s evidence that he did so as the mother was refusing to provide X’s passport and he was concerned that she would abduct him.

24. On 18 October 2018 the parents attended mediation.

25. On 22 October 2018 the mother filed an application in the Federal Circuit Court of Australia seeking final parenting and property orders.

26. On 5 November 2018 the mother collected X from school during the day and boarded a flight with the child to Sydney.

27. At 2.55 pm on 5 November 2018 the father attended X’s school to collect him and was advised that the mother had collected him earlier that day. The father attended City F Police Station and was advised by a police officer that in Thailand a mother is entitled to access her child. At 5.03 pm on 5 November 2018 the father received a text message from the mother to the effect: “X is with me and is fine”. The father replied: “Where is he?”

28. At 5.09 pm on 5 November 2019 the father attended the mother’s apartment. At 5.35 pm the father telephoned airlines to ascertain if X had left or was about to leave on a flight out of Thailand. At 7.41 pm the father was advised by an airline that the mother had taken a flight to Country Z at 1.35 pm. At 8.50 pm the father was advised by the airline of a connecting flight from Country Z to Sydney landing at 6.15 am.

29. At 12.24 am on 6 November 2018 the father telephoned NSW Police and was advised that no action could be taken without a court order. At 12.34 am the father telephoned the Australian Federal Police and received the same advice.

30. On 6 November 2018 the mother arrived with X in Sydney. On landing in Australia the father’s cousin met them at the airport.

31. On 17 December 2018 the mother commenced a full time permanent employment position in Sydney.

32. On 31 January 2019 X commenced school in Australia. He is currently in Year 3 at Suburb H Public School. Since returning to Australia X has had regular play dates with friends. It is the mother’s evidence that he has well-adjusted to school and community in Australia and that he attends sports training.

Approach

1. Generally speaking the Abduction Regulations require the return of children who were wrongfully removed or wrongfully retained from one convention country to or in another. The return is to the country from which the children were removed or retained, to allow any proceedings about the parenting arrangements for those children to take place in that country. In other words these proceedings are in the nature of forum proceedings, rather than proceedings about the merits of competing parenting proposals. These proceedings are conducted under the Abduction Regulations and, for example, unlike parenting proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”), the best interests of the child is not the paramount consideration in the Court’s determination.

2. Regulation 16 of the Abduction Regulations relevantly provides:

   16Obligation to make a return order

   (1)If:

   (a)an application for a return order for a child is made; and

   (b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and

   (c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);

   the court must, subject to subregulation (3), make the order.

   (1A)For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:

   (a)the child was under 16; and

   (b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and

   (c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and

   (d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and

   (e)at the time of the child’s removal or retention, the person, institution or other body:

   (i)was actually exercising the rights of custody (either jointly or alone); or

   (ii)would have exercised those rights if the child had not been removed or retained.

   (2)If:

   (a)an application for a return order for a child is made; and

   (b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and

   (c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;

   the court must, subject to subregulation (3), make the order.

   (3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

   (a)the person, institution or other body seeking the child’s return:

   (i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

   (ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

   (b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

   (c)each of the following applies:

   (i)the child objects to being returned;

   (ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

   (iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

   (d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

   (4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

   (5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.

1. The effect of reg 16 of the Abduction Regulations, as it applies to the case argued by the parties in these proceedings, is that:

   (a)the Court must order the return of X to Thailand if the applicant satisfies the Court that he was wrongfully removed from Thailand. He was wrongfully removed if:

   (i)he was habitually resident in Thailand immediately before the removal;

   (ii)his father had rights of custody and was exercising those rights or would have been exercising them but for the removal; and

   (iii)the removal of X from Thailand was in breach of the father’s rights of custody.

   (b)if the applicant can bring the circumstances within those requirements the Court must return the child to Thailand save that it may consider not doing so, if the mother can establish one of a number of defences.

Wrongful Removal

1. There is no issue about the following matters:

   ·for the purposes of reg 16(1)(a) and reg 16(1)(b) of the Abduction Regulations an application for return was made under the Abduction Regulations within 12 months of the time of the alleged removal;

   ·X is under 16 years of age, which satisfies reg 16(1A)(a);

   ·X was habitually resident in Thailand immediately before he was removed from Thailand on 5 November 2018, which satisfies reg 16(1A)(b)[2];

   ·the father had rights of custody in relation to X under Thai law and was exercising those rights immediately prior to the child’s removal from Thailand on 5 November 2018.[3] That satisfies reg 16(1A)(c), (d) and (e); and

   ·the removal of X from Thailand on 5 November 2018 was in breach of the father’s rights of custody.

   [2] Paragraph 4(c) of the mother’s Case Outline.

   [3] Paragraph 4(d) of the mother’s Case Outline.

2. On the common ground facts, those concessions are appropriate.

3. Therefore the circumstances fall within the provisions of the Abduction Regulations that require an order for return.

4. If, and only if, the respondent establishes a defence, would the Court have discretion to consider not ordering the return of the child.

The Defences

1. The defences are set out in reg 16(3). The only defence that the mother seeks to establish is that X objects to being returned to Thailand.

2. Again, reg 16 of the Abduction Regulations relevantly provides:

   (3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

   …

   (c)       each of the following applies:

   (i)       the child objects to being returned;

   (ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

   (iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

Discussion

1. It is the father’s evidence that when he spoke to X in December 2018 and January 2019 the child said to him words to the effect of:

   (a)“I told mum I didn’t want to go [to] the airport and I didn’t want to fly anywhere”;

   (b)“I don’t understand why I had to come to Australia”; and

   (c)“why didn’t I get to say goodbye to you and my friends”.

2. The father further deposes that in January 2019 he had a conversation with X to the following effect:

   [X]:Dad I think you should come to Australia and we all live here.

   [Father]:Thailand is where my job is and that is why we all moved there in the first place, and if I came to Australia I would not have my job anymore, and Thailand is our home.

3. It is the mother’s evidence that on 25 January 2019 while in a car with X she was upset and crying and the following conversation occurred between them:

   [X]:What’s wrong, mum?

   [Mother]:Just having a bad day and tired

   [X]:Mum tell me

   [Mother]:I’m upset because there is a possibility that you will have to go back to Thailand because that’s what dad wants to do but unfortunately there are laws that can force you to go back to Thailand no matter how much I don’t want that to happen.

   [X]:Mum, no it’s not going to happen.

4. It is the mother’s evidence that on 12 February 2019 the following conversation occurred between her and X:

   [X]:It’s not fair that dad wants me to go back to City F. Why don’t you say it to dad, mum?

   [Mother]:I have tried to explain it to dad, X

   [X]:And what did he say?

   [Mother]:It looks like he still wants you to return to Thailand. I hope he will listen to you.

   [X]:Yes, I will tell dad.

5. Ms G stated that her report would address whether the child objects to being returned to Thailand and whether he has attained an age and degree of maturity at which it is appropriate to take his views into account. She interviewed X and concluded that he has a preference to remain living in Sydney, rather than a strongly held objection to returning to Thailand. Ms G was cross-examined about her report. It was put to her that the matters that she explored with X revealed a number of considerations that were neutral in terms of X favouring remaining in Australia or returning to Thailand but that there were a number of considerations that meant that he strongly favoured remaining here. Ms G did not accept that characterisation. Ms G was asked about X’s reference to school in Australia and responded to the effect that he liked both schools. It was put to Ms G that X strongly objects to returning in large part because a return will regularly place him in the care of a nanny. Ms G said:

   Yes, I think that if he believes that he would be cared for by a babysitter or nanny in Thailand he doesn’t want that and he is objecting to that scenario.

6. There was then the following passage of cross-examination:

   [Mother’s counsel]:    If you were to assume that to be correct – say the father was going to be absent from City F literally for about 25 per cent of the time you would imagine, and if that was put to X, you would imagine that X would strongly object to being returned to Thailand, wouldn’t you?

   [Ms G]:I think if it meant that he would be cared for by a nanny for one week out of four, if that is correct, he would object to that.

   [Mother’s counsel]:    Strongly object?

   [Ms G]:I think he’d be very upset about that idea.

7. The question of objections that the child might or could have, is not a relevant one for the purposes of these proceedings.

8. The child was eight years and seven months of age when interviewed. Ms G reported that the child presented as well-mannered, thoughtful and articulate. He spoke to Ms G with affection about his life in Thailand and appeared to have enjoyed his time at school there. He told Ms G that the air quality is poor in Thailand and the weather is very hot but in her assessment, he did not seem to hold a strong objection to returning there. The impression gleaned by Ms G was that he enjoyed his time living in Thailand as much as he enjoys his time living in Australia. Ms G considers that his main concern about returning to Thailand is that, to his mind, he would likely do so without his mother and he would miss her if he did not see her for long periods.

9. As to that last point, as is recorded above, the mother deposes that on 25 January 2019 she said words to the child including:

   I’m upset because there is a possibility that you will have to go back to Thailand because that’s what dad wants to do but unfortunately there are laws that can force you to go back to Thailand no matter how much I don’t want that to happen.

10. It appears that the mother told X or made him aware that she would not return with him, if he is required to return to Thailand. That is both concerning and revealing. In any event, it is possible that it entirely or substantially explains X’s preference. In those circumstances, even if X was found to hold an objection showing a strength of feeling beyond the mere expression of a preference or of ordinary wishes and that he had attained an age, and a degree of maturity, at which it is appropriate to take account of his views, it is unlikely that the Court would exercise the enlivened discretion to refuse to order his return. It seems to me that the situation is not dissimilar to that raised by the Court of Appeal of England and Wales in connection with the grave risk defence[4] in Re C (A Minor)(Abduction) [1989] 1 FLR 403 at 410 where Butler-Sloss LJ stated:

    The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him. The Convention does not require the court in this country to consider the welfare of the child as paramount, but only to be satisfied as to the grave risk of harm. 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 four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent.

    [4] Which in the Australian context is found in reg 16(3)(b).

11. The mother has placed her son in a terrible position.

12. The submission of behalf of the mother was that Ms G has opined that X has a preference to remain in Sydney and she concludes at paragraph 16 of her report that he objects but does not strongly object to returning. It is submitted by learned counsel for the mother that Ms G’s opinion that X’s views should be given minimal weight means that his views and his opinion should be given some weight. It was argued that minimal weight meets the criteria in the regulation. The argument would be that it just has to be appropriate to take account of the child’s views and according to Ms G that is appropriate to a minimal extent and therefore reg 16(3)(c) is satisfied. It was then submitted that the question becomes whether the discretion to refuse to order a return should be exercised. It was submitted that the fact of the mother’s conduct (in removing the child) should not be determinative. It was submitted that, ultimately, as a matter of discretion, the child should remain with the mother, be taken to school by his mother, and should not be looked after by a nanny for 25 per cent of the time.

13. Even if X had the required objection to returning to Thailand, in Ms G’s opinion, X is not developmentally mature enough to weigh the relevant considerations in respect of this issue. In her opinion, his level of maturity is such that minimal weight can be placed on his views. There was no challenge to Ms G’s opinion on that point. I accept the opinions of Ms G as to the lack of strength of X’s objection. As to placing minimal weight on X’s views, I am not satisfied that should have any weight. He is eight years of age. He has been told that his mother would not return to Thailand if he is required to return. There is no indication from the mother that she told X that if he is to return to Thailand alone, the paternal grandmother will live with them in Thailand and help the father with the child.[5]

    [5] Paragraph 85 of the father’s affidavit sworn 28 February 2019 that is annexed to the affidavit of MS B filed 28 February 2019.

14. I am satisfied that the reg 16(3)(c) defence has not been made out. The child objects to returning to Thailand but his objection has no more strength of feeling than a mere expression of a preference or of ordinary wishes. I am also not satisfied that he has attained an age, and a degree of maturity, at which it is appropriate to take account of his views.

15. The written submissions made on behalf of the mother made reference to guidance provided by Waite LJ in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 as to factors that might be taken into account. The considerations cited in the submissions that would apply from that guidance to the circumstances of this case are:

    (a)the comparative suitability of the forum in the competing jurisdictions to determine the child's future in the substantive proceedings;

    (b)the likely outcome (in whichever forum they be heard) of the substantive proceedings;

    (c)…

    (d)the situation which would await the absconding parent and the child if compelled to return to the requesting jurisdiction;

    (e)the anticipated emotional effect upon the child of an immediate return order (a factor which is to be treated as significant but not as paramount);

    (f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.

16. Of those matters only (d) and (e) were addressed on behalf of the mother. As I have referred to in these reasons I raised with the parties the question of the frustration of the convention. It was nevertheless submitted on behalf of the mother that the discretion should be exercised in favour of the mother being permitted to retain the child in Australia.

17. If I am wrong about the lack of strength of the child’s objection and/or that he has not attained the required age and a degree of maturity, I would not exercise the enlivened discretion to refuse to order X’s return to Thailand. The discretion is at large and there are no fixed criteria for the exercise of that discretion. The matters taken into account can include the best interests of the child, albeit that is not the primary consideration. The Court would take into account the child’s views. The Court must give weight to Convention considerations and bear in mind the importance of children who have been wrongfully removed or retained being returned and returned promptly.[6] Even in concert, those considerations do not justify the refusal of an order for return.

[6] See the judgment of Black LJ in Re M (Republic of Ireland)(Child’s Objections) (Joinder of Children as parties to appeal) [2015] EWCA Civ 26.

Conclusion

1. It is agreed that the circumstances bring X within the terms of the Abduction Regulations so as to require his return to Thailand. The only defence raised by the mother is that X objects to returning to Thailand. That defence has not been made out. On the facts of this case even if the defence had been made out I would not have exercised the resultant discretion to refuse to return the child to Thailand. For those reasons the order for return was made.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 20 March 2019.

Associate:  

Date:  20 March 2019