Department of Health and Human Services and Singhe (No 2)
[2017] FamCA 496
•14 July 2017
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF HEALTH AND HUMAN SERVICES AND SINGHE (NO 2) | [2017] FamCA 496 |
| FAMILY LAW – Hague Convention application-where mother comes to Australia without permission of Sri Lankan courts-where State Central Authority seeks return of the two children- where mother raises two exceptions to return: grave risk or intolerable situation for the children and the views expressed by the children-where grave risk is found but that can be ameliorated by conditions- where the views of the children are not persuasive because of their age , maturity and the fact that they have been influenced by the mother-where return with conditions ordered. |
Family Law (Child Abduction Convention) Regulations 1986
| Director-General, Department of Families Youth and Community Care & Hobbs (2000) FLC 93-007 |
| APPLICANT: | State Central Authority Secretary to the Department of Health and Human Services |
| RESPONDENT: | Ms Singhe |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 2158 | of | 2017 |
| DATE DELIVERED: | 14 July 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 22, 23, 26, 27 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wilson |
| SOLICITOR FOR THE APPLICANT: | Department of Health and Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Mr Stanley |
| SOLICITOR FOR THE RESPONDENT: | Neil Ogge Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carter |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
That the children, B born … 2005 and C born … 2007 be returned to Sri Lanka subject to the conditions set out in the following orders.
The mother shall have 48 hours from the making of these orders to elect whether or not she will return to Sri Lanka.
If the mother elects to return to Sri Lanka, the following conditions shall apply before the departure of the children from Australia:
(i)written confirmation that these orders are registered in a court of appropriate jurisdiction in Sri Lanka such that they can be enforced in that jurisdiction;
(ii)The order made 16 December 2016 providing the father to have sole custody of the children is discharged;
(iii)Confirmation that an interim protection order has been made in favour of the mother until further order, restraining the father, by himself and his agents, from assaulting, abusing, harassing or intimidating the mother;
(iv)Written confirmation that the judicial order and its consequential warrant for the arrest of the mother has been discharged and case B 66969/01/17 has been discontinued; and
(v)Written confirmation that upon return of the mother to Sri Lanka, she will not be prosecuted by the relevant authorities for leaving Sri Lanka inappropriately in November 2016.
By injunction, the requesting father is restrained from causing (directly or indirectly) any criminal prosecution or civil action to be taken against the mother arising out of her obtaining passports for the children or arising from the circumstances surrounding her removal of the children from Sri Lanka in November 2016.
If the mother elects to return to Sri Lanka, the children shall return with her by arrangement with the State Central Authority as soon as practicable.
If the mother does not elect in writing to return to Sri Lanka, the mother, the requesting father and the children shall immediately engage psychologist Mr E or such other psychologist nominated by the Independent Children’s Lawyer, for the purposes of engaging in intensive therapeutic counselling directed at the relationship of the children and their father.
For the purposes of paragraph 6, the following shall apply:
(a)The mother shall comply with all reasonable directions of the said psychologist both as to attendance and treatment;
(b)The family therapist shall be provided by the State Central Authority with:
(i)a copy of the report of family consultant Ms F dated 18 April 2017;
(ii) a copy of the orders made this day; and
(iii) a copy of the reasons for judgment published this day.
(c)The appointments shall be at the equal expense of the mother and the father.
If paragraph 6 applies, the children shall leave the Commonwealth of Australia as soon as the therapy is completed as determined by the therapist and for that purpose, they shall be handed by the agent of the said Authority to the father of the children Mr D to give effect to paragraph 1.
If any of the conditions are not, or cannot be, met, all parties have liberty to apply to seek to vary them and liberty to apply is granted to the applicant to seek any further orders necessary to make the necessary arrangements to ensure the return of the children according to this order.
That the children, and the mother be removed from the Airport Watch List system by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the State Central Authority through the Department of Health and Human Services of Victoria advising of the travel arrangements made for the children to return to Sri Lanka from 12.00 am on the date nominated for the said travel in the letter.
That the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders.
That to facilitate the return of the said children to Sri Lanka, an officer of the Department of Health and Human Services are at liberty to release to the mother all current passports relating to the child for the purpose of their return.
That all other applications be otherwise dismissed.
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 Health and Human Services & Ms Singhe (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 MELBOURNE |
FILE NUMBER: MLC 2158 of 2017
| State Central Authority Secretary to the Department of Health and Human Services |
Applicant
And
| Ms Singhe |
Respondent
REASONS FOR JUDGMENT
Two boys, B aged almost 12 years and C aged 10 years were brought to Australia in November 2016 by their mother Ms Singhe (now using her married name of G) without the knowledge of their father, Mr D. The State Central Authority seeks a return of the children to Sri Lanka.
The children were born in Sri Lanka, held passports in that country and went to a privileged private school there but since late 2016, have settled into life in Australia with their mother and her new husband.
In relation to the relationship between the father and the children, contact orders had been made in the Courts of Sri Lanka.
The mother’s objection to return
The mother resists the return on two bases. She asserts, first, there is a grave risk that the return would expose the children to physical and/or psychological harm as well as place them in an intolerable situation. That depends largely upon findings in her favour that:
(a) If she returns, she will be arrested and imprisoned; and/or
(b)her fear that she will be killed by the father before any claim could be heard by a court should be seen as well-founded.
The thrust of the mother’s argument is that in either of those situations, the children would be separated from her. She asserts, and it is borne out by the evidence, such a separation would be psychologically bad for the children and also make the situation for the children intolerable.
The mother’s second claim is that the objections of the children to the return show their strength of feeling beyond mere preference or what might be expected as the ordinary wishes of children. She maintains that weight should be given to their objections because they are of an age, and have a degree of maturity, such that it is appropriate to take account of their views.
A number of factual disputes underpin [4] and [5]. They turn on whether or not the mother was the subject of family violence denied by the father. There is also the question whether the children were exposed to family violence and whether that explains their expressed fear of their father. If the mother has been the victim of that violence, she argues that she is at risk if she returns to Sri Lanka.
The mother’s fear of being separated from the children arises predominantly (although not entirely) because it is acknowledged that there is an extant warrant for her arrest in Sri Lanka. There is no dispute she used a court document to obtain the children’s exiting passports which the father, and the Sri Lankan authorities, assert was invalid.
General finding on the evidence
Of the mother and the father, both of whom gave evidence, I was far more satisfied with the truthfulness of the mother than the father. I am satisfied that the mother’s version of events is the more plausible.
General background
The parents married in Sri Lanka in 2004. In or around the middle of 2008, they separated. The mother alleged the separation was as a result of a violent incident. There had been incidents before that time and there have been a number since.
The parties went to a court in Sri Lanka in 2009 and ultimately, an overall settlement was achieved including the making of an order for divorce. Under the court orders, the father had an entitlement to spend time with the children. When the mother left Sri Lanka in 2016, he was generally exercising his rights of custody.
Father’s reaction to the mother leaving Sri Lanka
Upon the mother disappearing, police viewed the order she used to obtain passports and decided that she had breached Sri Lankan law (The Immigrants & Emigrants Act No: 20 of 1948). That resulted in a warrant for her arrest being issued.
The mother’s evidence was that she believed the order she was using was valid. That is for another court to decide.
After the mother left Sri Lanka, the father obtained an order which either discharged or suspended the 2009 parenting orders and granted him custody of the children. I remain uncertain about the finality of that order because the father claims it is of an interim nature only. There have been earlier hearings including one on 6 July so the mother had an opportunity to participate; she did not do so.
The applicant and the Convention
The applicant in the proceedings in this Court is the Secretary to the Department of Health and Human Services in the capacity as the Central Authority. The Secretary seeks the return order under the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The Court-appointed Independent Children’s Lawyer supports the return order.
The operation of the Convention on the Civil Aspects of International Child Abduction (known as the Hague Convention) is governed in Australia by section 111B of the Family Law Act and the regulations made pursuant to that section. The convention is in force between Australia and Sri Lanka.
Use of the 1996 Convention on “Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children” which is part of the Australian Law (Part XIIIAA of the Act) was not sought by any party.
The Hague Convention requires that the summary return of a child be promptly heard. The regulations provide that if an application is not determined within a period of 42 days, the responsible Central Authority may ask the Registrar of the court to give reasons. That has not happened here but I consider an explanation is important because of the time that the children have been settled in Australia.
Delay occurred because the parties requested time to pursue voluminous evidence. There were also negotiations between parties and I am told, mediation.
There was also uncertainty about the effect of the law relating to the mother’s potential arrest and imprisonment. It was suggested (rather than submitted) that there might be some form of inter-country judicial dialogue to resolve the impasse. I declined on the basis that had I done so, I would be determining that particular issue potentially on matters external to the evidence. The parties had expert lawyers advising them in both countries. The father, although not a party, had lawyers acting for him in Sri Lanka.
The regulations
It is not contentious that that Regulation 16(1) of the Regulations applies. The application was made and filed within one year after the children’s retention.
The Court must make an order for the return of the children if the Central Authority satisfies it that the children’s retention was wrongful pursuant to sub-regulation (1A) and sub-regulation (3) does not apply.
Sub-regulation (1A) makes clear that the children’s removal to (and retention in) Australia is wrongful if:
(a) They were under 16;
(b) They habitually resided in a Convention country before removal;
(c) The father had rights of custody before the removal;
(d) The removal was in breach of those rights of custody; and
(e)The father was exercising the rights of custody or would have been but for the removal.
All of (a) to (e) above were not contentious.
The Court may refuse the application if the mother establishes that:
(a)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; or
(b) that all three of the following apply:
(i) the children (or each of them) objects to being returned;
(ii)the objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and
(iii)the children have attained an age, and a degree of maturity, at which it is appropriate to take account of their respective views.
(sub-regulation (3))
In assessing the exceptions to compulsory return, a court must take into account any information relating to the social background of the children immediately before their removal. These children attended a prestigious school; there is no suggestion of impecuniosity or deprivation.
The children have maternal and paternal relatives in Sri Lanka.
At their school, they were involved in sport. The school is seen by their father as an important part of their future in the world because it boasts as its alumni, past Presidents of Sri Lanka and present day parliamentarians. Curiously, despite that apparent affluence, child support or maintenance was reduced after the 2009 orders and the exact reason remains unclear.
There was also complaint by the children about their tutelage particularly relating to discipline but that could not be seen to be a critical issue and it must be thought to be one within parental control.
Even if the mother establishes both or any of the matters in sub-regulation (3), sub-regulation (5) provides the court may still exercise its discretion to order the return of the children.
Onus of proof
For the purposes of regulation 16, the onus fell to the mother to satisfy the Court that her exceptions applied and that the court should exercise its discretion in her favour.
It is self-evident that the mother cannot be permitted to raise an exception of her own orchestration. In Director-General, Department of Families Youth and Community Care & Hobbs (2000) FLC 93-007 Lindenmayer J said:
It is also important to observe that a person cannot, by their own actions, create a situation only to rely upon that self-created situation so as to constitute the alleged grave risk.
The mother exuded concern for her safety arising from the incidents to which I turn in a moment but also what she considers is the influence that the father has in circles of power in Sri Lanka. I need to deal with those allegations below.
The evidence of family consultant Ms F
The Court appointed an expert psychologist known as a family consultant to provide advice. The Family Consultant knew of the Court’s obligations under the Convention. The father participated in that family assessment.
The children articulated to the Family Consultant their fear of their father. They were witnessed as being standoffish with him rather than fearful which the expert indicated showed they were unsure of the nature of their relationship with him. One of them held up a chair but not in the sense of an attacking move. Contrary to that standoffishness, the Family Consultant was not aware that there had been recent Facetime communication for periods of a considerable duration. The evidence of the father was that these were successful and the mother said nothing to the contrary. The expert opined that indicated the existence of a relationship but with all that had been going on, and the children settling into a routine in Australia where their mother had convinced them that their father was a “monster”, intense counselling was the solution.
The Family Consultant was required for cross-examination on her report. She opined that separation of the children from their mother would be “frightful”. That was a reference to the anticipated consequences of arrest and/or imprisonment. The Family Consultant also opined that if the mother refused to go back with the children, it would confirm in their minds that their father was a terrible person. She said that if they remained in Australia, and had no relationship with their father in the future, that too would be terrible.
These quandaries throw up a number of problems.
The children do not want to be separated from their mother and they see themselves responsible for her protection from imprisonment. The Family Consultant was concerned that the children have become advocates for the mother and manipulated by word and conduct. Thus, if they return to Sri Lanka with her, and she is arrested, they will see themselves as having failed her. Equally so, if they return without their mother, it will confirm in their minds that their father is a “monster” because of their mother’s views.
The Family Consultant’s evidence was very persuasive and although it was suggested to her that she had taken on the assessment task with a pre-conceived view about the mother having manipulated all of this, I accept she drew available and proper conclusions from her observations. She had no hesitation in accepting that the children were genuinely fearful of their father. They were overwhelmed by a sense of fear arising from the prospect of the potential imprisonment of their mother. How much they could possibly understand about the nature of imprisonment, prison, bail and court hearings, I am unable to say but there is no doubt and I so find, they are aware of the potential arrest and significantly, the separation from their mother such action would cause.
All of the mother’s fear arises from her experiences over a long period of time. The father dismissed her fears and denied any violent impropriety. However, I find the father is an angry man when he does not get his way and because of the evidence he gave, I find he is not above being evasive and untruthful when it suits his cause.
The Family Consultant had not been provided all of the evidence that the Court had and understandably, her perception about the mother’s family violence allegations was seen in a vacuum. This observation of the Family Consultant explains the point [90]:
...It is claimed issues of family violence have impelled (the mother) into leaving the country with the children. (The mother) however allegedly obtained passports for the children in 2015, yet, her initial report to child protection, in Sri Lanka occurred only prior to her departure from Sri Lanka …in November 2016.
That observation indicated a view that the mother’s departure implied a planned course rather than haste impelled by fear. The Family Consultant’s concern was that if the allegations were without foundation or merit, or were exaggerated, it revealed the children were being exposed to harm from their mother. I find that the mother’s fear is understandable and I accept reasonable having regard to what she has endured.
The Family Consultant observed the children expressing a fear of their father and mimicking the allegations of their mother but against that, there were recent FaceTime communications with the father; it is common ground that they lasted around 45 minutes. No complaint was made by anyone about those communications. The Family Consultant thought that indicated there was a relationship between the father and the children. There is no evidence that the communications were psychologically difficult for the children.
The evidence of the children’s counsellor
Ms M is a psychologist to whom the children were taken by the mother but not for the purposes of dealing with these fear issues. She had a number of therapeutic sessions with the children and obtained a history from the mother.
Ms M thought the children appeared to have been traumatised but an analysis of their statements to the psychologist indicates that lay, in part, in their reporting of violence towards themselves. This expert observed that the fear in the children related to their father taking them away from their mother. That is consistent with the evidence of the Family Consultant. Ms M’s evidence is concerning because although it was counselling in the therapeutic sense unlike the forensic sessions with the Family Consultant, there was neither reality testing nor inquiry of the father about his version of events. The psychologist did not get an opportunity to see whether the relationship could be repaired if it was as fractured as the children claimed.
The evidence does not support any conclusion that apart from being exposed to it, these children were badly physically treated by their father as they described but I have no doubt they watched their mother being abused and threatened. That becomes evident when below, I consider the nature of an abusive telephone call to the mother’s car.
Is there a plausible foundation for the mother’s fear or returning?
Arrest
There is an outstanding warrant for the mother’s arrest.
The mother relied upon a lawyer of 20 years’ experience (Mr J) who set out his views about what would happen to the mother if she returned. When cross-examined, he was quick to say that his views were based on the reports that were provided and as such, were preliminary. He said that police could provide more reports. He based his opinion on a statute which I find was inaccurately described. When he was asked about another provision, he conceded it applied. He also said that “it was a bit early” to say what charges would be laid and he was not able to say whether a “suspended” form of sentence could be applied. There was little about his evidence that gave me confidence of knowing what would happen.
The father said he too was concerned about the impact on the children of a separation from their mother and it prompted him to ask Sri Lankan authorities that no action can be taken.
I have no understanding from the mother’s expert as to whether the father could control the process in that way and it would seem unusual if he could. In the middle of the hearing, after the father heard the family consultant psychologist express concern about separation of the children from the mother, said he gave instructions to his lawyers in Sri Lanka to request the police not to take action. The very next day, a Saturday morning, a Superintendent of Police in Sri Lanka wrote a letter that stated that provided the father attended a police station to withdraw his complaint, police would “withdraw” the case.
Will the police ignore the father’s requests if they consider it is inappropriate to ignore breaches of state law? Will they renew the prosecution in any event if the father so requests? These questions remain unanswered but to the extent that I can bind the father, he agreed that a condition could be placed on him pursuing a release of the mother from that burden.
Whilst it might have given me some comfort that the mother would not be arrested on the strength of that letter, the question then arose of how such quick access to senior police was possible and even more so, how the response was so swift. The mother argues that the father has “influence”; something he denies.
If the withdrawal permanently eventuates, it resolves the mother’s anxiety and also that of the Court in relation to the trauma of the children arising from any separation. If the Sri Lankan courts later alter the custody arrangements, it would be after considering the evidence relating to the welfare of the children.
The father is said to have influence
Whilst the exit from Sri Lanka may have been precipitated by an incident in November 2016 mentioned below, the mother did not seek that the courts intervene because she said, she had “lost faith in the system” and that “it was all about power”. This latter statement was a reference to the husband’s family having connections with members of the judiciary.
The mother was unable to explain to me how it would be that she would not receive a just and impartial hearing before the courts. No details were given. I gave the mother a number of opportunities to tell me specifically what caused her concern or examples of where she could not get a fair hearing but she was unresponsive. Over the years after separation and during periods of aggression which she endured from the father, she had been content to make complaints to police for “future reference”. That is inconsistent with a fear of lack of justice or indeed of reprisal. That said, I accept she was from time to time frustrated by inaction by police.
Another claim said to support the power and influence assertion was that over very recent days, the Deputy Director of the National Child Protection Authority in Sri Lanka who was a witness for the mother and had provided an affidavit supporting her, doubted the capacity and effectiveness of his organisation. That very weekend that the father was obtaining a withdrawal of the arrest warrant, a weekend newspaper ran a significant article that the deputy had been sacked by the President for undermining Sri Lanka. It was also alleged that the lawyer who attested the Deputy’s signature is facing some form of suspension.
The father said this arose because he approached the Director (as distinct from the Deputy) to ask whether the Deputy’s views were correct. That led to the political action. Again, that action may well be justified if the accusations were without foundation but it adds to the mother’s argument that there is influence at play.
In my view, I should not draw any adverse inference here because to do so would directly criticise a foreign sovereign nation without giving the relevant authorities an opportunity to respond.
Whilst there is no evidence that would justify a finding of concern about either the police or courts, I accept there are some very unusual and possibly concerning facts here that, at first blush, appear to be a justifiable cause for the mother’s concern. Despite the curious nature of the actions involving the father, there is no credible evidence of undue or improper influence.
Did the other orchestrate the urgent flight from Sri Lanka?
In the context of the mother’s credibility as to her claim that the November incident precipitated her flight becomes important in the context of her history of movement in and out of Australia before November 2016.
Australian immigration records show the mother’s entry here in 2014 and 2015. In August 2016, the mother entered Australia but only to activate the visa entitlement that had been granted on 3 March 2016. She entered again later in August 2016 and left in early September. Her entry card showed “permanent” entry. Her explanation was that it was one of three options and she was keeping her options open. Even if she was contemplating those options, she neither told the husband nor sought Sri Lankan court permission. There is significance in that because paragraph 13 of the 2009 orders provide that should a need arise to take the children abroad, “consent” from the other party “must be obtained”.
What is also unusual about a visit in 2015 is that the children remained with the father. That is inconsistent with the fear expressed by the children. There is no evidence that normal activities did not occur. There is no suggestion that the children were not properly cared for or placed in intolerable conditions at that time.
The father produced photographs of the children in social and family environments including dressed in sports clothing with well-known sportsman. Whilst photographs can be manipulated to show something inconsistent with what was really happening at that time, these all appeared to be normal happy and healthy family activities.
I find that even with the family violence issues to which I turn below, the mother had begun to create in the minds of the children the idea that they were leaving Sri Lanka for good because that is where she wanted to be. Her evidence was that she was keeping her “options” open. I reject that. She had remarried and set herself on having a life in Australia including seeking appropriate entitlements to remain here.
Family Violence
There were six main disputed incidents of physical violence led in evidence. The father denied any violent behaviour. He had ample opportunity to consider his position and he had lawyers in Sri Lanka draw the affidavit material in reply to that of the mother.
In my view, these incidents, and those relating to threats that follow after the physical altercations, should be examined with some degree of care because they underpin the mother’s position about fear and a desire to protect the children by leaving Sri Lanka.
Because credibility in this case has a significant role to play, I have balanced the respective versions of each parent. I make findings against the father and as will be seen, when his explanation was seen as implausible, he was dismissive of the seriousness of the event anyway.
The first relates to a period between the births of the two children. The mother said that the father dragged her from her bed where she was breastfeeding and repeatedly kicked her until she bled. The father simply denied the incident.
But for the incidents that followed over the years, the one just mentioned could be said to be too vague and unparticularised. It was not corroborated in any way. Unlike the criminal law jurisdiction, it is unnecessary for me to deal with each incident in minute detail because the conduct of the parties in relation to violence can be dealt with holistically. I am endeavouring to ascertain whether there is credible evidence of family violence such as to explain the mother’s fear. The successive events after that just mentioned convince me that this has been a course of conduct not just of physical violence but also threats.
In October 2007 (before final separation and when the parties’ second child was 7 months old), the father threw a television “remote” at the mother, hitting her near an eye. She went to hospital and a record was produced of what appeared to be a follow up consultation. That conclusion may be drawn because the doctor recorded there was a scar. The record is significant because it corroborates the evidence of the mother. The doctor noted her complaint about family violence and named the father as the perpetrator. One might question why she would make that complaint in circumstances where the parties were still living together and their relationship had not ended. It remains unclear why the mother was admitted to hospital for 2 days and her evidence was that it was for nausea. The evidence does not indicate other blows or illnesses but she had kept, and produced, a photograph which indicated the facial wound.
The father denied the assault. He said he was questioned by police. He volunteered that he later spoke to a maid who told him that the mother hit her head on a cupboard. Remembering that this affidavit was prepared by his lawyers, one might have expected some greater identification of the maid and detail about her stay in hospital.
While this incident was a long time ago, I would have expected the father to have remembered his wife being admitted to hospital for two days because he had the responsibility for two very young children, one of whom was only some months old.
In 2008, the mother asserted that she was assaulted by the father. She had injuries and reported the incident to police. She then obtained a protection order. The dates of the report and the court-ordered protection are close.
The father simply denied the incident occurred. That is curious when there was, at least to his knowledge, a protection order. I consider that it would not have been made without some basis.
In a curious twist, the mother sought the release of medical reports from the Sri Lankan courts for the purposes of this hearing. It would seem that these records somehow belong to the government and therefore, permission to obtain them was necessary. There is evidence that this course was opposed by the father. The best that the father could offer was that he did not recall giving those instructions.
The father’s evidence in particular in relation to the release of the reports must be seen as obfuscation. The mother’s evidence is therefore more plausible and I accept it.
In 2009 and therefore only months after separation, the mother alleges that the father came with 4 men and blocked her house entry. She described him “smashing” her windscreen with his hand. Her mother and maid witnessed the incident and, in respect of the maternal grandmother’s evidence, the incident is corroborative of the mother’s version.
The father did not seem to specifically address this incident but I have taken that he generally denies any such violence. In cross-examination, when generally asked about these sorts of incidents, he volunteered that to the best of his knowledge, he had not done these things.
When cross-examined about the car incident, the father’s response was that the police found no damage to it. I found that explanation dismissive of the seriousness of family violence.
On the balance of probabilities, his general denial does not sit comfortably with the specific evidence of the mother and her witnesses.
In February 2013, the parties had another altercation. This occurred at a child handover. This incident seemed to arise out of what the mother thought was the father doing what he liked including taking the children out of school. One child was hanging on to the mother so the father “dragged” the child away.
The mother then got into the father’s car and she began recording the details on her mobile telephone. In what followed, there was some form of scuffle over that device in the course of which, her finger was broken.
The father denied the incident and acknowledged that he was interviewed but confirmed that no criminal charges were laid. I do not know what attitude the police took but they may have been hampered by the fact that they had to prove their case to the criminal standard of proof. There was a protection order in place at that time so it is difficult to know why some action was not taken.
In my view, on the balance of probabilities, the incident occurred as described by the mother.
In November 2016, the final incident occurred. This was the one that the mother said gave rise to her fleeing Sri Lanka. It was a contact handover day. The parties disagree which parent took action relating to the children that was inconsistent with the court orders. In my view, it does not matter. The mother said that she was “intercepted” by the father when she had the children in the car. She wound down the window and asked him what he wanted. She said he was yelling at her and as she had locked the doors of the car, he put his hands through the open window and tried to strangle her. It is not abundantly clear how the incident came to an end but unfortunately, the children and a maid were in the car and witnessed it. Like previous matters, their versions differ but the common theme is that the father was aggressive. The father’s version was that the mother told him that as it was exam day, he should not “mess around” with the children. He then described the following:
I put my hand in to remove the key from the ignition. The mother accelerated and drove over my foot, although I do not believe this was deliberate.
Why did the husband reached into the car at all? Why endeavour to take the keys? Whilst he criticised the mother’s version about strangling and the accuracy of what others saw, there was an incident and he was inappropriately aggressive. No plausible explanation was given about why the father was angry with the mother. If he was alleging that she was denying him the children, why not return to court? Each party, a maid and one of the children were involved in complaints to police.
On the evidence, I find the father is the aggressor in confrontations and that the mother’s apprehension about being near him is understandable. The events just described were not the only disputed issues about family violence.
Threats
The father’s written and oral evidence claimed that he had never threatened the mother. A taped conversation was played to him in which he was heard not just swearing but also screaming. The tone was threatening. His explanation for the inconsistency in his evidence was that he had never carried out the threats.
The mother relied on a series of text messages which she said had been obtained by some computer technician from her mobile telephone. The father’s position was initially to deny they were from him. For reasons that follow, I reject that.
The language of the father was not just appalling in relation to the mother of his children, but also threatening. Significantly these were in writing which indicates a brazen approach to his denials about his conduct.
His first response, again drawn by his Sri Lankan lawyers, was that they were fabricated but that changed in the hearing to he did not remember them. One by one, the messages which contained profanities and threats were put to him and he variously either could not remember them or acknowledged some but not other parts of the statement. Nothing I saw indicated the mother provoked these threats. These showed a lack of respect for the mother but also that the father was prepared to demand what he wanted. His abuse permeated the texts.
One significant feature of the written texts is his use of profanities. In the context of his denials about making threats combined with the recording played in the court room, his denial that any such behaviour not having occurred in front of the children or within their hearing has a hollow ring about it.
Police reports or complaints
The mother exhibited copies of complaints to police which included not just violence but also non-compliance with court orders including non-payment of maintenance. It would seem that is the preferred method of the parties recording complaints. In the case of the mother, she said she did so “for future reference”.
The mother complained she sat in police stations and they took no notice of her or told her to come back at another time. That gave rise to her assertion that she could not get assistance from authority. If the Court was expected to draw an inference that the father had something to do with that, I would not draw such an inference. There may be reasons why her complaints were not given attention. I am not in any position to make a finding of the nature urged by the mother that her pleas for help were not taken seriously.
The mother alleged that if the police did require the father to attend for an interview, he did not attend. There is evidence from the father to the contrary.
The father produced a list of complaints from official records of the Criminal Investigation Branch of the police force that showed fewer complaints than those claimed by the mother. This was presumably to show that there was little of substance in her longer list of reported complaints. Again, there may be other explanations including that the Criminal Investigation Department did not have access to other police station records. If his intention was to have the Court infer that the mother fabricated these, I would not draw that conclusion either.
The credibility of the parents
Whilst these are meant to be summary proceedings, there was voluminous evidence. Much of it came from Sri Lanka and some of it was irrelevant or simply inexpert opinion that could hardly help. Whilst I gave all parties time to cross-examine witnesses, there is much still that cannot adequately be comprehensively tested because of the tyranny of distance, different languages and cultures.
As for the two parents, I agree with the submission of counsel for the Authority that the mother exaggerated the seriousness of some of the events. I find that she was not particularly clear about others.
On the other hand, the father swore to an affidavit drawn by lawyers in Sri Lanka in which he vehemently denied abusive behaviour let alone physical violence.
Unlike the mother who exaggerated, the father was not truthful. At the commencement of his evidence, he confirmed he had recently read his affidavits and stood by them as true. He did not wish to make any alterations. He was caught out on the recording and was unable to give any plausible explanation for his lack of candour.
When confronted with a recording of language that could only be described as swearing and abuse, he conceded it was his voice but he resorted to a mantra of saying that he did not remember having done these things. When pressed about the abuse, his response was that he did not carry out or inflict the physical effect of what he had obviously said to the mother.
When effectively cornered by cross-examination, his response was that he could not “vouch” for every word in his affidavit. Ultimately, he described the inconsistency as an error. I found his explanations implausible. He had lawyers draft his documents and they were responding to the mother’s sworn complaints. It is therefore worrying that he said he could not “vouch’ for every word of his affidavit.
Any concession of “error” has a hollow ring about it where he was twice prepared to affirm the truth of his written evidence. This was a deliberate attempt to mislead the court knowing that the mother’s defence to the return application was her fear of his conduct. There is no other possible explanation than that he desired the court to think that the mother was untruthful.
Thus, where there is a conflict between the two parents, I prefer the evidence of the mother.
The children’s relationship with the mother
The children’s relationship with the mother can be readily seen in not just the evidence of the Family Consultant but also Ms M who saw them for the first half of 2017.
The Family Consultant saw a serious dilemma for these children being separated permanently from either parent but in her opinion, their overwhelming attachment was to their mother.
The mother’s reticence to commit to a return to Sri Lanka brings in the important question of the welfare of these children. For the reasons that follow, I consider that if the mother decides not to return to Sri Lanka, these children need intensive therapy to repair a lot of psychological damage but they should still return and their parents need to address their future according to Sri Lankan law.
The mother’s arguments
The mother submitted that the grave risk exception had been enlivened because separation of the children from the mother would be terrible. That obviously depends upon the resolution of whether she returns and if she does, would she be incarcerated?
It was submitted that regardless of her self-help concepts in leaving Sri Lanka and creating the fear in the children, there can be no doubt they were in a terrible position and for that, she relied upon the Family Consultant. The father seemed to accept that as well after he heard the expert’s views.
As evidence of the grave risk of the likelihood of her arrest and therefore her separation from the children, the mother pointed to:
·The speed with which the father obtained the assistance of the Police Superintendent;
·The sacking of the Child Protection Deputy Director;
·The paucity of important detail in the police summary about complaints against the father; and
·the father being able to obtain an “opinion” from the former Attorney- General of Sri Lanka about what would happen to the mother if she returned.
This last point goes to the mother’s concern about power and influence. The former Attorney-General now appears to be a practising lawyer. He has various law degrees including a Masters’ Degree. He opined that after reading the “record” of the Magistrates’ Court, his “client” (presumably the father) had been successful in moving police to file information in the court to secure the mother’s presence “to enforce the final divorce order”. According to the focus of the father, the arrest warrant arises out of a potential breach of the immigration laws. Reference was made to a different court file number to that mentioned by the police superintendent who is now said to be contemplating the father’s request to withdraw the “case”.
The witness opined that it was “highly improbable” that the courts would impose a “heavy custodial sentence” because the mother had two young children. That evidence was of little weight when I consider the different law being addressed and more importantly, whether the authorities consider the father has the right to control the prosecution.
The evidence of the former Attorney-General was of little help.
Although the precise detail is unclear, it seemed common ground that a conviction for the sort of offence against Sri Lankan law that the mother currently faces, carries a minimum sentence of one year in prison. But that does not address the bail or remand issue pending trial. Those matters must be clarified by the conditions I propose because otherwise, the grave risk and intolerable position of the children will not be ameliorated.
The views of the Independent Children’s Lawyer
The Independent Children’s Lawyer submitted that the objection to return based on the wishes of the children should be given little weight because they were not the true views of the children as a result of the influence of the mother. I accept that submission based on the evidence of the Family Consultant.
It was submitted that there was plausible evidence that the mother’s complaints were not treated seriously by police but against that, she had not availed herself of the courts. Despite being given a number of opportunities to indicate why the courts would not hear her claims, she had not pointed to anything. I accept that submission too.
The Independent Children’s Lawyer was critical of the approach to violence adopted by the father. I agree with her views.
However, subject conditions, it was submitted there was no basis to deny the return order.
The views of the State Central Authority
The State Central Authority’s position was that the mother had elevated the situation to grave risk by her own conduct and that therefore, she could not make out any of the exceptions. For the reasons set out, I do not accept that the case is that simple.
Principles
It is important to reiterate that the relevant risk to be considered is that faced by the children, not the parent (TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515 at [44] cited in Harris & Harris [2010] FamCAFC 221 at [142]). Similarly, the word “grave” is a reference to the children not the parent.
The mother relied upon the views of the Deputy Director of the National Child Protection Authority. This is the person who was then sacked by the President of Sri Lanka. His evidence was directed to whether the mother could obtain protection through the police and court system. The Deputy Director is a lawyer and has a Masters’ Degree in Law. He said there were “shortcomings” in the delivery of “effective protective services” for children and their caregivers because although the laws were there, police were more concerned about the criminal prosecution than victim support. He opined that the new laws “under-estimated the cultural and attitudinal blocks” to helping implement the law. He thought the application of protective norms “by police” could not be ensured. He went further to say that the difficulty stemmed from “the traditional mindset and orientation of the justice sector”.
That may be his view but it is also rhetorical. It suggests in a broad sweeping way that the system is not working but no examples were given. If it is seen as a criticism of the police for not implementing family violence policies, the evidence here is that there were investigations albeit none resulted in the father’s prosecution. That may also have been because of the focus on prosecution rather than victim support but there is no evidence that there is some priority.
The expert’s opinion about the “justice sector” must relate to more than the courts. The mother could have accessed the courts but did not do so and apart from asserting the father’s power and influence, could not indicate what it was that would mean she would be unprotected and prejudiced by going before those courts.
I could not find on the evidence of the mother and her experts that there is any systemic failure of a “system” of justice even if she was critical of what the police were doing. There is insufficient evidence to conclude as the mother would have this court say that she does not have an avenue for to seek orders addressing the interests of the children. She did that in 2009.
It is not the role of this Court to critique another sovereign nation’s judicial system but rather to contemplate within the context of both the exceptions to return and the exercise of discretion whether she has access to a system that would provide protection but also an opportunity to seek relief by way of international relocation orders as Australia knows them. I refer in that context to DP v Commonwealth Central Authority; JLN v Director-General Department of Community Services (2001) 206 CLR 401.
As Hale LJ said in TB v JB (Abduction: grave risk of harm), it is reasonable to expect that the country to which children should be returned will be able to provide them protection. There is a regime of protection available including the possibility, albeit unusual, of the mother making application outside Sri Lanka and for the courts to have power to grant those orders.
Is there a grave risk and how should that be assessed?
Do the findings justify a conclusion that there is a “grave risk that the return of the child … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”?
The application is one of a summary nature and there is no reason to take a narrow view of the definition of grave risk (see DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401).
The Court needs to consider the exposure to physical or psychological harm and the placing of these children in an intolerable situation by a return. The finding of the children being separated from the mother being detrimental to their psychological health justifies a finding of grave risk.
If the mother did return and was arrested (or, as she would have the Court accept, killed), the children would also face an intolerable situation.
Intolerable as a concept means a situation which a child should not be expected to tolerate (Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758). That conclusion is justified on the findings about the risk to the mother in being arrested and separated from the children. A simple order for return of the children absent the mother would mean they would go into their father’s care and thus, would still be separated from her. I find that would be intolerable because I have no understanding of how long that separation might be.
By his response to the Family Consultant’s evidence, I find the father agrees it would be intolerable for the children to be separated from their mother. His action consequent upon that response raises the question of how much control he has.
The Court must predict what might happen to the children. The Court is entitled to inquire into the consequences of an order which means there is an element of prediction about the best interests of the children (DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services at [41]).If the mother does not return, the children could still go back to their father but only occur after intensive therapy as recommended by the Family Consultant.
It is important to note that the question is not whether these problems will definitively occur but rather, may occur. Using the Re E test, children should not be expected to tolerate separation from the person to whom they are attached.
I find the return fits within the definition of grave risk.
Ultimately, having found grave risk, the Court still has the discretion whether to order the return and that gives rise to consideration of conditions for return.
In Wolford & Attorney-General’s Department (2014) FamCAFC 197, cited the observations of Butler-Sloss LJ in Re M(Abduction: Undertakings) [1995] 1 FLR 1021, at 1025, where her Ladyship examined conditions and said:
It is perhaps helpful to remind those engaged in Hague Convention applications about the position of undertakings or conditions attached to an Article 12 order to return. Such requirements are to make the return of the children easier and to provide for their necessities, such as a roof over the head, adequate maintenance, etcetera, until, and only until, the court of habitual residence can become seized of the proceedings brought in that jurisdiction.
Although all practitioners submitted that conditions were part of the Court’s armoury, care has to be taken to ensure any order gives “effect to the Convention” (Regulation 15). The addition of those words must mean that the discretion is not unfettered. In De L v Director-General Department of Community Services (NSW) (1996) 187 CLR 640, the High Court observed that it was impossible to identify a power to impose conditions but that the discretion clearly given to the Court had to be exercised judicially “having regard to the subject matter, scope and purpose of the Regulations” which must then include considerations of best interests.
Conditions can be imposed as part of the exercise of discretion under the regulations but they must be such as not to thwart the effect of the convention. Conditions contemplated here would not be inconsistent with the effects of the Convention because they would not be onerous for the father or thwart the mother’s attendance with the children on their return. Indeed, on the findings of this Court, there is every justification for protection orders in her favour such that she could feel safe returning with the children from whom she should not be separated.
Much depends upon what the mother does. The anxiety of a return for these children can be ameliorated by the counselling which should involve the father who has indicated a willingness to participate. The intensive therapy is not to be about working out a way to avoid the return but rather to reintroduce the father on the basis of the evidence of the Family Consultant that there is something to build upon.
I do not ignore that the mother’s apprehension is not just about imprisonment. On a number of occasions she said that if she returned, there would be no parenting hearing because the father would kill her. The determination of that matter has to be on the basis of prediction and the balance of probabilities. There has been no incident of that magnitude over the years and nothing in the evidence indicates the father has such a propensity despite my severe criticisms of his behaviour.
The father’s relationship and role with the children is also important. With a protection order for the mother in place, I find that the return of the children to the 2009 orders would not place them in an intolerable situation because the mother could go back with them.
I find that if the mother chose not to return and the intensive therapy occurred, that too would ameliorate the separation concern because the father would then be able to replace the mother’s absent relationship.
The second exception relied upon by the mother concerned the views and wishes of the children. The expert evidence supports a conclusion that these children have been placed by their mother in a position where they have become her advocates. I accept that each objects to being returned and that their objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes but that must be seen in the light of their ages and level of maturity.
I accept the evidence of the Family Consultant that these children are not in a position to understand what has happened. They have been to a psychologist who did not reality test a lot of things they were asserting and she did not see as her role, the need to find out what sort of relationship the children had with their father by offering him the opportunity to participate. The Family Consultant did just that and watched and listened. Her evidence is powerful:
[105]It has been suggested here, based on information provided by the children that (the mother) has consistently framed the children’s perceptions of events and has sought they share their views with other professionals. The children, as compliant children, isolated from family and friends in their current life in Australia, cannot be considered as having any substantive maturity but rather acting according to their mother’s direction. The children have revealed this as the rationale for their behaviour and although their narrative has been skewed, they are not intentionally dissemblers and freely admitted their role and responsibility in events.
[106]Counselling has been used inappropriately for the children and any future use of these services requires that the boundaries of engagement be clearly specified and clarity that such services are focused on the needs of the children.
In respect of the evidence of the Family Consultant in [106], those are strong and stern words. After hearing the evidence of Ms M, I agree that the absence of reality testing has simply confirmed the mother’s views in the children. That was unfortunate.
I find the two children have not attained a degree of maturity to the point that I could give their views weight.
For the reasons earlier given,
(a) The retention of the children in Australia was wrongful;
(b) There is no basis to refuse to make an order
As a result, the Court must make a return order.
Terms of the Return Order
In relation to conditions, there are three matters that give rise to concern. They are:
(a)The mother’s need and entitlement to protection from physical and psychological harm from the father;
(b)The need to ensure there is no separation of the mother from the children by her arrest or prosecution as a result of her leaving Sri Lanka; and
(c)The parties’ need to have any assurances to this Court made enforceable by reciprocal orders.
It was submitted by the Independent Children’s Lawyer that the Court should allow the mother 48 hours to elect whether or not she will return. I consider that her decision should be made immediately on the basis that the concerns will be addressed. If she immediately indicates that she is not returning to Sri Lanka, the Independent Children’s Lawyer in consultation with the State Central Authority should commence a period of intensive therapy over the ensuing days to prepare the children for a return effectively to their father.
If the mother declines to return, the father should be immediately advised that his presence is required for the purposes of any such therapy but also to escort the children to Sri Lanka. To do otherwise would be contrary to the findings of the Court that the children would thereafter be safe in their father’s care absent the mother and even though, “terrible” or “frightful” and any other similar expression, the court considers those matters can be dealt with by conditions which she would have rejected.
However, it must also be acknowledged that these children are caught in a parental conflict. Upon their return, they will need therapy or counselling and the Independent Children’s Lawyer proposed a Dr L in Sri Lanka who is said to be able to provide the necessary support.
Interim arrangements in Sri Lanka
There is the disputed issue of how the children should be shared on the return to Sri Lanka. Again, this in part has to be on the assumption that the mother returns with them. The position of the Independent Children’s Lawyer was that there should be a form of order that departs from the 2009 orders. For me to so order would be altering orders which were well thought out and were enforceable. Based on the principle of best interests for the children, there does not seem to me to be any reason why the orders should not be resumed if the intensive counselling is implemented in Australia and the counselling proposed in Sri Lanka occurs. I consider that upon return, the mother may wish to pursue the variation of the 2009 orders.
In my view, it is not appropriate for me to say anything further about what longer term orders should be contemplated because I have little doubt, the Sri Lankan judiciary will be cognisant of the problem if the mother raises it.
Thus, I propose to make it a condition that if the mother returns, at the first hearing of the relevant court having jurisdiction in Sri Lanka, both the mother be at liberty to seek, and the father not oppose, orders that provide:
(a)That the relevant orders made by this Court be registered in the court of appropriate jurisdiction such that they can be enforced in that jurisdiction; and
(b) An interim protection order made in favour of the mother.
The Independent Children’s Lawyer also sought orders of an injunctive nature against the father that he not directly or indirectly cause the wife to be prosecuted for either obtaining the passports for the children or their departure from Sri Lanka in November 2016. All agree those orders should be made and to the extent that they can be registered and enforced in Sri Lanka, they should be.
It is important for all readers of these reasons to understand that it is not the intention of this Court to interfere with another nation’s judicial system but it is important that those countries know that the father gave unequivocal evidence to this Court under oath that he did not want the mother prosecuted and to that end, had given the instructions to police (to the extent he could) to not prosecute her.
I have to decline any order that would preclude him co-operating with police. In my view, although his unequivocal statement indicates he does not want any such prosecution, there is the possibility that he might be prosecuted for hampering the law. I do not intend that. One proposal was that he agree to an order that he not co-operate; that could lead to consequences for the mother that are not intended.
Finally it is the intention of this Court that the children not be returned until the State Central Authority along with the solicitors for the mother and the Independent Children’s Lawyer have seen an authenticated document from the relevant police authority in Sri Lanka that:
(a)The judicial order and its consequential warrant for the arrest of the mother has been discharged; and
(b)Upon return of the mother to Sri Lanka, she will not be prosecuted for leaving Sri Lanka inappropriately in November 2016 or obtaining passports for the children inappropriately.
The return should occur expeditiously one way or the other.
I certify that the preceding One Hundred and Sixty One (161) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 July 2017.
Associate:
Date: 14 July 2017
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