Department of Human Services and Parry
[2010] FamCA 689
•9 August 2010
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF HUMAN SERVICES & PARRY | [2010] FamCA 689 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Central Authority – Whether wrongful removal of child — Whether father consented to child’ removal or retention – Rights of custody – Threshold requirements established – Acquiesence – Whether child objects to return order – Return order made – Conditions of return order to be considered separately |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A), 16(3) Family Law Act 1975 (Cth) s 111B Evidence Act (1995) (Cth) s 140 Children Act 1989 (UK) ss 1(5), 2, 3 Child Abduction Act 1984 (UK) |
| Povey v QANTAS Airways Ltd (2005) 223 CLR 189 Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 Cooper and Casey (1995) 18 Fam LR 433 at 435 Re B (Minors) (Abduction No. 2) (1993) 1 FLR 993 at 994 Re F (a minor) (Child Abduction) (1992) 1 FLR 548 DW and Director General, Department of Child Safety (2006) FLC 93-255 LK V Director-General, DCS (2009) 40 Fam LR 495 Punter [2007] 1 NZLR 40 B v H (Habitual residence: Wardship) [2002] 1 FLR 388 Friedrich v Friedrich 6th Circ (1996) Police Commissioner of South Australia v Temple (No 1) (1993) FLC 92-365 Re H (Abduction: Acquiescence ) (1998) AC 72 P v Director General, Department of Community Services [2002] FamCA 321 Re M (1999) 1 Fam LR 171 DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401 Gsponer v Director General, Department of Community Services, Victoria (1989) FLC 92-001 Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277 De L v Director-General, NSW Department of Community Services & Anor (1996) 187 CLR 640 Agee and Agee (2000) FLC 93-055 |
| APPLICANT: | DIRECTOR-GENERAL DEPARTMENT OF HUMAN SERVICES, COMMUNITY SERVICES |
| RESPONDENT: | MS PARRY |
| FILE NUMBER: | (P)SYC | 3466 | of | 2010 |
| DATE DELIVERED: | 9 August 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATE: | 2 August 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Harper |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services, Community Services |
| COUNSEL FOR THE RESPONDENT: | Ms Hanna |
| SOLICITOR FOR THE APPLICANT: | Galluzzo Lawyers |
Orders
The Court declares that the removal by the mother of the child J (female) born … August 1999 from England on 24 January 2010 and the retention of the child by her in Australia was wrongful within the meaning of Article 3 of the Abduction Convention.
IT IS NOTED that publication of this judgment under the pseudonym Department of Human Services & Parry is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: (P)SYC 3466 of 2010
| DIRECTOR-GENERAL DEPARTMENT OF HUMAN SERVICES, COMMUNITY SERVICES |
Applicant
And
| MS PARRY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). By these regulations, Australia ratified the Hague Convention on the Civil Aspects of International Child Abduction (the Abduction Convention). The Abduction Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting states. The Director General of the Department of Human Services, Community Services, as the relevant Central Authority (“the Central Authority”) in New South Wales, started these proceedings with an application filed in this Court on 2 June 2010. In essence, the Central Authority applied for a suite of orders for the return to England of the child J. J, who was born in England in August 1999, is a citizen of the United Kingdom and has permanent residence in Australia.
On 24 January 2010, Ms Parry (the mother) left England with the child and travelled to Australia. Three days earlier, the mother told the father she and the child would leave England on 4 February 2010 to live permanently in Australia. During 2009, the mother and father signed documents which would enable the child to migrate to Australia. This was on the basis that the mother’s brother, Mr D, would sponsor the child and her applications for permanent residence. This, the mother’s brother agreed to do. A pivotal issue was whether the father’s agreement to the child’s migration to Australia was conditional or unconditional and whether he knew the documents he signed had been used by the mother to obtain permanent residence for the child. According to the father, his agreement was conditional upon his being sentenced to a term of imprisonment in relation to fraud charges he was defending. According to the mother, the father’s consent was unconditional and she kept him informed of each step she took to obtain permanent residence in Australia. In any event, there was no dispute that on 21 January 2010 the father told the mother he did not agree she could take the child from England to Australia on 4 February 2010. Or that after this conversation the mother brought forward her departure date and, without further notice to the father, departed England with the child.
Between 22 January 2010 and the child’s removal from England, the father contacted the Australian High Commission in London and a variety of legal firms so as to stop the child’s departure, which he thought was scheduled for 4 February 2010. On Monday 25 January 2010, the mother’s mother told him the mother and child flew out of England on Sunday 24 January 2010 and would arrive in Australia at 7.00 am on 26 January 2010. This occurred and since then, the mother and child have resided with the mother’s brother in Sydney.
On 10 February 2010, the father completed an application under the Abduction Convention in which he sought that Australia return the child to England, where he alleged the child was habitually resident and from where she had been wrongfully removed. The Central Authority for England and Wales accepted his application which was transmitted to Australia.
Australia accepted the request from the Central Authority for England and Wales and commenced these proceedings.
It is the mother’s contention that the Abduction Convention does not apply and thus the Central Authority’s application must be dismissed. Summarised, it is her contention that, prior to the child’s removal, she had lost habitual residence in England and had become habitually resident in Australia. According to her, the father did not have rights of custody or, in the alternative, was not, at the point of removal, exercising rights of custody. In the event the Court was persuaded that the threshold requirements for the application of the Abduction Convention had been established, she raised a series of defences. Specifically, that the father had consented to the child’s removal from England which consent he could not subsequently withdraw, that the child objected to being returned and that there was a grave risk that return to England would subject the child to physical or psychological harm, or otherwise place her in an intolerable situation. If the mother established one of these defences, she contended that the Court should exercise its discretion not to return the child to England. In the mother’s affidavit, she said if the child was ordered to be returned to England she would not return with her. During her oral evidence she explained her heartfelt dilemma but ultimately said she would not allow the child to return to England alone. During closing addresses she reverted to her original position.
Although it is unusual, I encouraged the parties to test through cross-examination the evidence in relation to the child obtaining permanent residence and whether the father’s consent had been unconditional. They agreed and thus the father, mother and her brother were cross-examined.
The Central Authority carries the onus of establishing that the Abduction Convention applies to the child. As a threshold requirement reg 16(1A) provides that a removal or retention is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in the 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.
If the Central Authority established those elements required by reg 16(1A), unless the mother was able to establish one of the Abduction Convention defences, I am obliged to order the child’s return to England.
The issues
The principal issues which require consideration are:
· Was the child habitually resident in England immediately before her removal on 24 January 2010?
· Did the father consent to the child’s removal from England?
· In the alternative, did the father revoke his consent prior to the child’s removal?
· Does the child object to being returned to England?
· Is there a grave risk that ordering the child’s return to England would expose her to physical or psychological harm or otherwise place her in an intolerable situation?
· If the Court is satisfied there is a grave risk to the child or she would be placed in an intolerable situation, should the Court exercise its discretion against returning the child to England?
· If the Court is satisfied that there is a grave risk to the child or she would be placed in an intolerable situation, should there be an order for her return to England, notwithstanding upon conditions stipulated by the Court?
Background facts
Throughout these reasons, findings of fact will be determined upon the balance of probabilities. Section 140 Evidence Act (1995) (Cth).
The father was born in England in 1962. He is a citizen of the United Kingdom which is where his family reside.
The mother was born in 1975. She is a citizen of the United Kingdom and has permanent residence in Australia. The mother’s family reside in Australia.
In 1998, the mother migrated to England.
In an arranged marriage, the mother and father were married at a Registry Office in England in April 1998.
In August 1998, they participated in a Catholic marriage ceremony.
Throughout their marriage, the mother and father lived in England.
J was born in England in August 1999. She is the mother and father’s only child. From birth until she left England, this was where the child resided.
In August 2007, the mother and father separated. After their separation and by agreement, the child lived with the mother. Also, by agreement, the child had regular contact with the father and her extended paternal family. These included paternal grandparents, aunts, uncles and cousins. Although it did not happen every day, it was common practice for the father to walk the child to school and spend other periods with her. He was particularly involved in the child’s education and helped with her homework.
No parenting orders were made in relation to the child.
In late 2007, the father told the mother there was a possibility he would be charged with fraud and forgery charges.
On 21 September 2008, the father was charged with fraud and forgery (credit card) offences. It would appear he was taken into custody then granted bail about seven days later.
On the mother’s divorce application, Southend County Court certified, on 8 October 2008, that she was entitled to a divorce on the grounds the marriage had irretrievably broken down, “the facts found proved being the [father’s] unreasonable behaviour.” The evidence does not establish how it was that the father’s behaviour was unreasonable.
On 30 October 2008, the marriage between the mother and father was dissolved and a decree absolute ordered.
In March 2009, the father appeared in Southend Magistrates Court where he entered a plea of not guilty to the fraud and forgery charges. So that it is clear, although the mother suggested there had been more than one suite of charges, the evidence established there was one suite of four charges which were dealt with simultaneously.
Although nothing turns upon whether it was the mother or father’s idea that she migrate with the child to Australia, I am satisfied the idea was initially the father’s. In his oral testimony, he said he initially discussed the notion the family would together migrate to Australia. I accept the mother’s evidence that on 28 July 2009, the father visited her home and suggested she and the child migrate to Australia on a permanent basis. The father told her he believed the child would have a better future in Australia and he asked her not to tell his family of this plan. At that time, the mother was aware the father anticipated he would be sentenced to a term of imprisonment in relation to the fraud charges. Indeed, it was never contemplated by either of them there might be a better outcome.
The father agreed he was concerned about the mother and child’s circumstances if, because he would be in gaol, he was unable to support them, if not financially, then in all other respects. As I understood the evidence, there was no dispute the mother was fairly isolated in London and, other than from the father and his family, she and the child lacked other support. Essentially, the father was concerned that if he went to gaol, the mother would be unable to cope. Hence he devised a plan that she and the child go to her family in Australia. The process, which then unfolded, must be understood in the context the father’s trial was listed to commence on 14 September 2009. In other words, he felt under personal pressure to make necessary arrangements for the mother and child prior to that date.
Thus, on 28 July 2009, the father gave the mother a letter which said: “To whom it may concern. This letter is to confirm my decision to send my daughter [J] who currently resides at […] with her mother [Ms Parry] full permission to take her to Australia to live”.
In light of the possessive and unconditional nature of this authority, in cross-examination the father was asked when and how he communicated to the mother that he attached conditions to the child’s emigration. He gave a variety of responses, which lacked detail and were ultimately unpersuasive. At least at the stage when the father penned his 28 July 2009 authority, I am satisfied that while his motivation was to address the situation, which would arise if he went to gaol, neither she nor he contemplated he might retain his liberty. As far as the mother knew, his consent was unconditional. In accordance with the father’s request, the mother kept these plans secret from his family. At some stage, the mother informed the child there was a possibility they may migrate to Australia at some unspecified time. This notion was sufficiently theoretical that the child, who had a good relationship with the father, did not consider it of such importance to raise the issue with him or others to whom she was close.
The following day, the mother spoke with her brother in Australia. He agreed to sponsor her and the child to become permanent residents of Australia. The father also telephoned the mother’s brother and asked him to sponsor the mother and child to migrate to Australia. The father did not say this was conditional. About one week later, the mother’s brother telephoned the father to confirm his agreement. I accept the mother’s brother’s evidence that the father confirmed his request and consent to the proposed emigration to Australia. Accordingly, the mother’s brother completed the necessary Department of Immigration and Multicultural Affairs paperwork which he then forwarded to the mother.
On 17 August 2009, the mother lodged her and the child’s permanent residence applications with the Australian High Commission in London. According to the father, he knew nothing of this. The Australian High Commission asked the mother to provide a statutory declaration, completed by the father, in which he gave his permission for the child to live in Australia, as well as a certified copy of his passport. For that stated purpose, the mother asked the father for these documents.
Accordingly, on 26 August 2009, the father completed a statutory declaration in which he declared the letter dated 28 July 2009 referred to above was his. He also gave the mother a certified copy of his passport which she posted to the Australian High Commission. Although the father denied it, I am satisfied he knew the mother would provide these documents to the Australian High Commission in relation to her application that the child be granted permanent residence. This is consistent with them ensuring all the required arrangements were in place before he went to gaol.
The Australian High Commission then requested a typed version of the documents referred to above. The mother relayed this request to the father.
Thus, on 3 September 2009, the mother, father and child attended a solicitor’s office where the father completed another statutory declaration. The statutory declaration is set out below:
I [Mr Parry] of […], England do solemnly and sincerely declare that:
1.I am the father of [J].
2.I give permission for my daughter [J] who currently resides at […], England with her mother [Ms Parry] to migrate on a permanent basis to Australia with her said mother.
This is my name and handwriting and I declare that the contents of this my declaration is true and I make this solemn declaration conscientiously believing the same to be true and by virtue of the Statutory Declarations Act 1935.
Declared on 3rd day of September 2009 at […]: Jane Ledeto – solicitor.
Again, the unconditional nature of the authority is clear. Although the father said he withheld his stated conditions at the mother’s request, I do not accept his evidence. The mother is a far less powerful presence than the father. I do not accept he would abide her instruction where it conflicted with his approach.
The Australian High Commission, as part of its visa process, requested the mother and the child undergo medical examinations. The mother informed the father about the medical examinations. She accepted his offer to take her and the child to one of the nominated doctors. So that it is clear, the father took the mother and child to these appointments. In so doing, he could have been left in no doubt the mother had started the process for her and the child to migrate to Australia.
On 14 September 2009, the father’s trial was adjourned to 17 December 2009.
On 11 November 2009, the mother and father went to London where they renewed the child’s UK passport. The father said he did this so that she could participate in a school trip to France in 2010. I do not accept his evidence. I am satisfied he knew this was part of the migration process.
On 3 December 2009, Australia granted the mother and child permanent residence.
On 17 December 2009, the father was convicted on all counts.
On 18 December 2009, the father was sentenced to 250 hours of community service. This he completed within two months.
During the second week of December 2009, the Australian High Commission returned to the mother her and the child’s UK passports. It is at about this time she became aware the permanent residence applications had been approved. This timing coincided with the father’s trial, during which, as I understood from the mother’s evidence, she did not have contact with the father. She did not say where or when she told the father the permanent residence applications had been approved. According to the father, she did not tell him and, in relation to this matter, I prefer his evidence.
The mother learned about the father’s conviction and sentence from the local media. Unfortunately the press coverage caused her and the child considerable embarrassment. Indeed the child was subjected to taunting at school which caused her to stay away for a few days.
According to the father, on the weekend of 22-23 December 2009, he spoke with the mother and told her he had not been sentenced to a term of imprisonment and that he withdrew his agreement that the child could migrate to Australia. According to him, the mother said she was pleased for him and understood his position. He said the mother told him she did not want to move to Australia. This was because the child was doing well at school and the mother planned she would attend W Grammar School. The father said he asked the mother to tear up his agreement dated 28 July 2009. The mother agreed and using a shredding machine, which the father loaned her, she shredded what he thought were the originals of his documents dated 28 July 2009 and 3 September 2009. Although there was an issue about the father’s use of the words “torn” as compared to “shredded”, nothing turns upon the distinction. When considered in its entirety, the father was clear in his evidence the documents were destroyed by a shredder. Thus, at this point the mother, but not the father, was aware permanent residence had been granted. In addition, although he knew permanent residence had been applied for, he was comforted by the destruction of his documents. Had he thought about the matter more carefully, he would have realised it was probably only a matter of time before the applications were granted. In his oral evidence, the father said more than once he trusted the mother to do the right thing by him and the child. By this, I understood him to mean the mother would not act contrary to his instruction. Essentially, at this point, the father was confident that once the visas were granted the mother could be trusted not to take the child to Australia unless he agreed. Had the mother’s brother and father not intervened, the father’s trust was probably well placed.
In the meantime, the mother told her brother the visas had been granted.
The mother’s brother said he telephoned the father in December 2009 who thanked him for arranging “everything” and said he was looking forward to the migration. I do not accept this telephone call occurred. If it had, there would have been no need for the mother’s brother to keep secret, from the father, his subsequent purchase of one way tickets to Australia for the mother and child.
In Australia, the mother’s brother and her father decided to surprise her and the child and purchase one way tickets from England to Australia. So that it is clear, they could have told the father but still kept their plan a surprise from the mother. The mother’s brother and his wife then booked return flights to England with the intention of returning with her and the child to Australia. The mother’s brother told the mother they would be visiting England but did not tell her about the other aspects of the plan.
The mother told the father that her brother and sister-in-law would be visiting England.
The mother’s brother and his wife arrived in England on 21 January 2010. After one week in London, followed by two days in Paris, they were due to fly back to Australia on 4 February 2010. This is the flight on which the one way tickets for the mother and child were issued. They surprised the mother and child with the tickets, who, without discussing the issue with the father, the mother accepted the offer to depart. The child was unhappy about the proposed departure.
On 21 January 2010, the father was invited to dinner with the mother, child, the mother’s brother and his wife at the mother’s home. During the evening, the mother’s brother told him, she and the child would be migrating to Australia on 4 February 2010. Although the mother and her brother deny it, the father was shocked and bewildered. This was the first he knew there was any notion the child would leave England on a particular day, or indeed, that the Australian visas had come through. According to the father, he protested and said words to the effect that he did not consent to the child’s emigration. According to the mother and her brother, the father said either “you cannot leave so early” or “you cannot leave as yet”. Irrespective of the words used, it was clear to the mother that the father did not agree the child could leave England within the foreseeable future. Although I am satisfied that from 22-23 December 2009 the mother knew she lacked the father’s consent, even on her evidence no later than 21 January 2010, she knew she lacked the father’s consent to remove the child. In addition, as at that date there was no date identified after which he would agree to the child’s removal from England.
The following day, the father collected the child for school. At the mother’s home, the father spoke with her and her brother and repeated he did not agree the child could be taken to Australia.
Late on 22 January 2010, the mother’s brother and his wife decided to fly back to Australia on 24 January 2010. The mother decided she and the child would accompany them. They did not tell the father of their revised schedule. I do not accept their evidence that the motivation to leave early was because of bad weather. This was a ruse to mask their decision to remove the child before the father could take steps to stop them.
On the evening of 22 January 2010, the father contacted the Australian High Commission, the Visa Controller for Migration to Australia and the British High Commission in Australia. He advised these agencies that he did not agree the child could migrate to Australia and sought their assistance to revoke her visa and somehow stop her from leaving.
On Saturday 23 January 2010, the father attended the mother’s house at 11.00 am. He was told the child was unwell and he should return at about 8.00 pm.
During the day, in an attempt to secure an injunction to stop the child from leaving, the father telephoned a series of lawyers. He was only able to obtain an appointment for the following Monday. The same day, the father’s niece spoke with the mother who told her of her plans to depart the following day. Although it is not clear if this information was communicated to the father, it seems likely it was.
At 8.00 pm, the father returned to the mother’s house. He found the house was in darkness and it appeared to have been vacated. In the bins, the father saw personal possessions and shredded photographs, which caused him to believe the child might already have left England.
On 24 January 2010, in the hope he may still be able to stop the child from leaving, the father unsuccessfully sought police assistance.
The mother and child departed England the same day.
On 25 January 2010, the mother arranged for a letter she had written on 22 January 2010 to be delivered to the child’s school. This advised the child had migrated to Australia. She said “… it was sudden that I got my visa and I have to leave. [The child] would like to thank you.” This letter demonstrates the suddenness and unplanned nature of the child’s departure from England. Clearly, the child had been deprived of the opportunity to even farewell her school friends and teachers. Had the child been anticipating she might emigrate sometime soon, I would have anticipated she or the mother would have disclosed this to the school. The terms of the letter reinforce that the child’s departure and emigration was also news to the school. This reinforces my comfortable satisfaction that there had been no notion the child would emigrate some time soon.
On 26 January 2010, the mother and child entered Australia.
On 10 February 2010, the father lodged an application with the Central Authority for England and Wales, in which he sought England request Australia to return the child.
On 13 May 2010, the Attorney General’s Department (Cth) requested the Director General Department of Human Services, Community Services to commence these proceedings.
On 2 June 2010, the Director General Department of Human Services, Community Services lodged its application for orders, in essence, that Australia return the child to England.
The proceedings came before a Judicial Registrar, ex parte, on 9 June 2010. On that occasion, the Court made the following orders:
IT IS ORDERED
1.Orders are made in terms of paragraphs 1, 4, 5, 6, 7, 8 and 10 of the document titled “Minute of Order” marked Exhibit 1 as set out hereunder:
(1)That until further order the respondent Mother, [Ms PARRY] and / or any other person be restrained from removing the child [J] (female) born […] August 1999 from the Commonwealth of Australia until further order of this Court and that the Australian Federal Police give effect to this order.(2)
(4)That until further order, the respondent Mother, [Ms PARRY] born […] 1975 surrenders forthwith to the Registrar of the Family Court of Australia, all current passports and air tickets relating to herself and the said children [J] (female) born […] August 1999 .
(5)That until further order, the names of the respondent Mother, [Ms PARRY] born […] 1975 and the child [J] (female) born […] August 1999 be placed upon the P.A.S.S. alert system at all Australian international arrival and departure points as soon as possible.
(6)That unless the Court otherwise orders the names of the child and the respondent on the PASS Alert system shall lapse 12 months from the date the names were placed on the PASS Alert system.
(7)That the respondent Mother, [Ms PARRY] born […] 1975 be served with sealed copies of the application and the annexures and of these orders no later than 15 June 2010 and that the application be returnable before this court on 22 June 2010 at 9:30 am.
(8)That sealed copies of this Application and these orders be served upon the Commissioner, Australian Federal Police.
(10)That the parties are at liberty to apply herein on twenty-four hours notice.
The proceedings were again before the Court on 22 June 2010. On that occasion, both parties were represented and the mother was in attendance. The following orders were made:
IT IS ORDERED:
1.Leave to approach the Listing Manager for a date for hearing proceedings under the Family Law (Child Abduction Convention) Regulations, estimated hearing time 1 day.
2.By consent orders are made in terms of the document titled Minute of Order marked Exhibit 1 as set out hereunder:
“1.That the respondent mother files and serves her Form 2A and any material upon which she is seeking to rely on upon this matter by Monday, 12 July 2010.
2.That the Central Authority files and serves any material in reply by Monday, 26 July 2010.
3.A report be prepared by a counsellor as to:
·Whether the child objects to a return to England; and
·Whether the child has attained an age and degree of maturity at which it is appropriate to take into account the child’s wishes by Wednesday, 28 July 2010.
4.Leave be given to the applicant to release the report to the Australian Commonwealth Central Authority, the United Kingdom Central Authority, the father’s legal representative and the father.
5.That the matter be listed for a hearing before a Judge on Monday, 2 August 2010. Time estimate 1 day.”
3.By consent orders are made in terms of the document titled Orders marked Exhibit 2 as set out hereunder:
“1.The order dated 9 June 2010 paragraph 4 be varied to discharge the requirement that the respondent mother [Ms PARRY] born […] 1975 do surrender her passport.”
4.In the event that either party becomes aware of any matter which would prevent the hearing commencing on 2 August 2010 or proceeding to conclusion on that date, that party is to immediately restore the proceedings to the list of an available judicial officer on giving 24 hours’ notice to the Court and to the other party.
The matter was, on that day, listed before me for hearing on 2 August 2010.
The mother did not comply with the order that she files a Form 2A response.
On 15 July 2010, Ms F, who is a family consultant, interviewed the child. In her report, which was released on 28 July 2010, the family consultant reported the child was very clear that she does not want to return to England. The family consultant said there were two categories of reasons for her not wanting to return to England. These were: “Her expressed feelings about her father and her feelings about Australia and her life here compared with England and her life there.” In relation to the child’s maturity, the family consultant said: “[The child] is extraordinarily adept with words for a child of her age and this, linked with her obvious intelligence and adultified manner of expression can give the impression that she is also unusually mature. My assessment is that this is not so.”
Primarily because it was difficult to determine the basis upon which the mother opposed the application, I listed the proceedings on 28 July 2010.
On 28 July 2010, I made the following orders and directions:
IT IS ORDERED:
1.I extend the time for compliance with Order 2.1 dated 22 June 2010 to 4.00 pm today.
2.No later than 4.00 pm on 30 July 2010 each of the parties shall file with my Associate and serve upon each other a Case Outline document which comprises the following:
(a)Summary of Argument;
(b)List of Documents; and
(c)List of Authorities.
THE COURT NOTES:
3.It has asked that the requesting father make himself available for cross examination by either audio visual or telephone and in this regard the Australian Central Authority is requested to make arrangements with the Central Authority for England and Wales to make arrangements in England for that to occur.
4.It is anticipated each of the mother and the father will be required for cross examination for about one half hour.
The hearing proceeded as had been listed. Both parties were represented by counsel. From 4.00 pm, the father linked in by video from England. The brief cross-examination assisted me to determine contentious facts.
Was the child habitually resident in England immediately prior to her removal?
The term “habitual residence” is not defined in the Regulations, which determine the operation of the Abduction Convention in Australia, or the Abduction Convention. One must look to the case law, both local and of other contracting states, for guidance. This is permissible because international treaties should be interpreted uniformly by contracting states. Povey v QANTAS Airways Ltd (2005) 223 CLR 189.
In a seminal decision concerning the term “habitual residence” Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578-579, Lord Brandon of Oakbrook said:
It follows, I think, that the expression is not to be treated as an expression of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to not take up long term residence in country B instead. Such a person, cannot however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.
In Cooper and Casey (1995) 18 Fam LR 433 at 435 the Full Court cited with approval Waite J in Re B (Minors) (Abduction No. 2) (1993) 1 FLR 993 at 994 where it was held:
Logic would suggest that provided the purpose was settled, the period of habitation need not be long. Certainly in Re F above the Court of Appeal approved the judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country.
Reference to Re F is reference to a decision of the Court of Appeal in Re F (a minor) (Child Abduction) (1992) 1 FLR 548. There, Butler-Sloss LJ adopted Lord Brandon of Oakbrook’s above quoted opinion in support of her conclusion that: “A young child cannot acquire habitual residence in isolation from those who care for him. While (the subject child) lived with both parents, he shared their common habitual residence or lack of it”.
The Full Court considered the authorities on the question of habitual residence, citing with approval those referred to above in DW and Director General, Department of Child Safety (2006) FLC 93-255. There, at par 43, Finn and May JJ in the majority held:
Subsequently in Panayotides (1997) FLC 92-733 at 83,897 the Full Court majority (Fogarty and Baker JJ) quoted with apparent approval the following passage from the judgment of the trial Judge in that case, Jordan J (emphasis added):
The question of habitual residence has been the subject of much judicial deliberation, and I have been referred to numerous authorities in that regard. From those authorities, the following principles emerge:
(1)the expression “habitually resident” is not to be treated as a term of art with some special meaning, but rather it is to be understood according to the ordinary literal meaning of the two words used (see, In re J (a minor) (1990) 3 WLR 949);
(2)the question of whether a person is or is not habitually resident in a specified country is a question of fact to be determined by reference to all the circumstances of the case (see, In re J (a minor) (supra);
(3)the habitual residence of a child whose parents reside together is the habitual residence of those parents (see, Re B (minor) (1993) 1 FLR 993);
(4)it is not possible for one parent to unilaterally determine a child’s habitual residence by removing that child (see, State Central Authority v McCall (1995) FLC 92-552);
(5) habitual residence refers to the parents’ habitual abode in a country:
Which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration.’
(See, re B (minor) (supra) p.995).
I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Services v Casse (1995) FLC 92-629, wherein his Honour said:
All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.’
I do not accept an interpretation of the proposition advanced in In re J [supra], wherein it might be argued that the reference in that decision to “an appreciable time” was intended to be construed as meaning a long time. In my view, once an intention to adopt an habitual residence has been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, then it may be open to a Court to find that habitual residence has been changed from that point.
It is important, we think, to observe that this emphasized passage is virtually a direct quote of the second of the three principles which Waite J in Re B extracted from the English authorities and which was approved and adopted for Australia by Nicholson CJ (with whom the other members of the Full Court concurred) in Cooper v Casey.
Habitual residence and the role of intention in the establishment of habitual residence was recently considered by the High Court in LK V Director-General, DCS (2009) 40 Fam LR 495. It is clear that the authorities cited above remain good law. Their Honours referred with approval to Punter [2007] 1 NZLR 40 and in particular quoted Anderson P, Glazebrook, William Young and O’Reagan JJ who said :
[88] Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at [22], the underlying connection between the child and the particular state.
Reference to settled intention does not import the approach to intention used in the application of the law of domicile.
In LK v Director-General, DCS the High Court pointed out that a person’s intentions may be ambiguous and that “individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future may hold.” Their Honours said:
[34] Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
Turning then to the facts of this case.
Counsel for the mother submitted that once the mother’s brother gave her a ticket for the child to travel to Australia, which the mother accepted, from that point the child lost habitual residence in England and became habitually resident in Australia. I suggested to counsel, it was difficult to see how it was that a child, who with her parent’s agreement, had lived all of her life in England and had been habitually resident in that country, could become habitually resident in Australia before she moved there. Counsel submitted that at the point of acceptance of the airline tickets the mother had a settled intention the child would live in Australia. Thus, in the context of the father’s agreement, the child could migrate to Australia. The child’s parents agreed and shared a settled intention she would leave for Australia permanently. Thus, they had abandoned her habitual residence in England and from that date, she was habitually resident in Australia.
Counsel for the Central Authority correctly submitted whether or not a child is habitually resident in a country is a question of fact. Reliance was placed on the statement of principle made by the High Court in LK v Director-General, Department of Community Services referred to above. I agree that authority is apt. It was submitted that other than in a case where a mother unexpectedly gave birth in a foreign country (see B v H (Habitual residence: Wardship) [2002] 1 FLR 388), the ordinary meaning of the words “habitually resident” meant that a child could not be habitually resident in a country where the child had never lived. With this proposition, I am inclined to agree. However, it is unnecessary to determine whether this mandatory proposition is a correct statement of principle. This is because on the facts of this case, there was no doubt that prior to the child’s removal she had resided in England her entire life. Her life in England was settled and although her parents contemplated her habitual residence may change from England, this had not been acted upon in a decisive way. In my view, where the authorities refer to a parent or parents’ intentions to change a child’s habitual residence which has been acted upon, this is intended to convey not only arrangements which are made for the child’s place of habitual residence to change, but, in cases such as this, acted upon so that the child actually departs from country A and moves to country B. Only then is habitual residence in country A abandoned and the process of acquiring habitual residence in country B embarked on.
It follows that even if the father had not withdrawn his consent to the child’s emigration to Australia (which he had in any event done), until the child left England, her habitual residence in England had not been abandoned.
The child was thus, habitually resident in England immediately prior to her removal.
Rights of custody
The Abduction Convention requires that the right of custody issue be determined by application of the laws of the place where the child was habitually resident. In this case, by reference to English law. There is no dispute about the child’s parentage, or that the parents were married when she was born. The Court received an affidavit sworn by Melanie Hepworth and a supplementary statement. Ms Hepworth is a solicitor admitted to practice in England. Having reviewed the father’s evidence about the parents’ relationship and arrangements for the child, she expressed that, in accordance with English law, the father had rights of custody which he had been exercising at the time the child was removed from England. Although the mother sought to challenge that the father had rights of custody in England, she produced no evidence which would cast a shadow over the opinion expressed by Ms Hepworth. In any event the effect of the expert evidence is that in England, parenting matters, inter alia, are governed by the Children Act 1989 (UK). Section 2 of the Children Act 1989 (UK) provides:
1.Where a child’s father and mother were married to each other at the time of [the child’s] birth, they shall each have parental responsibility for the child.
….
(5)More than one person may have parental responsibility for the same child at the same time.
…
9.A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf.
The meaning of parental responsibility is found in section 3 of that Act.
(1)In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.
(2)It also includes the rights, powers and duties which a guardian of the child’s estate (appointed, before the commencement of section 5, to act generally) would have had in relation to the child and his property.
(3)The rights referred to in subsection (2) include, in particular, the right of the guardian to receive or recover in his own name, for the benefit of the child, property of whatever description and wherever situated which the child is entitled to receive or recover.
(4)The fact that a person has, or does not have, parental responsibility for a child shall not affect –
(a)any obligation which he may have in relation to the child (such as a statutory duty to maintain the child); or
(b)any rights which, in the event of the child’s death, he (or any other person) may have in relation to the child’s property.
(5)A person who –
(a)does not have parental responsibility for a particular child; but
(b)has care of the child,
may (subject to the provisions of this Act) do which is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.
I agree with Ms Hepworth’s opinion that under English law, because the father was married to the mother at the time of the child’s birth, he has “parental responsibility” for the child. Although the scope of “parental responsibility” is not defined by the Children Act 1989 (UK), Ms Hepworth’s unchallenged evidence was that courts in England have determined that it includes the right to arrange a child’s emigration and the temporary removal from the country. I accept this evidence.
Enshrined in the English legislation, there is a principle commonly described as the “no order principle”. The thrust of this principle is that the English courts do not intervene in parenting arrangements unless “it considers that doing so would be better for the child than making no order at all.” (s 1(5) Children Act (UK) 1989). Prior to the child’s removal, no orders had been made which altered the father’s parental responsibilities or rights in relation to the child. English case law establishes that where both parents have parental responsibility, a child’s habitual residence cannot be changed by one parent with the consent of the other parent (provided that parent has parental responsibility).
The Child Abduction Act 1984 (UK) makes it an offence for any person connected with a child, under the age of 16, to take or send the child out of the United Kingdom with the consent of any other person who has parental responsibility for the child. Thus, I am satisfied the father’s parental responsibility includes all of the rights, powers and duties of parenthood, including the rights to determine where the child would live and whether or not she may leave the United Kingdom.
The Central Authority has established all of the threshold requirements.
Regulation 16 defences
By reg 16(3):
A court may refuse to make an order under sub-reg 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.
(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.
The mother carries the onus of proof in establishing the defences. In the event a defence is established, this enlivens the Court’s discretion not to order the child’s return.
Was the father exercising rights of custody?
I have already found the father had rights of custody. In counsel for the mother’s submissions, an issue was raised about whether the father was exercising rights of custody immediately prior to the child’s removal. As I understood the submission, it was to the effect the father, upon signing a consent the child could migrate to Australia, had abrogated his rights of custody and thus, without court intervention, he had no more than rights of access. In other words, the effect of his consent, evidenced by the various documents signed by him, meant he no longer had rights of custody. I asked counsel for the mother to provide references to the salient provisions of the Children’s Act 1989 (UK) and/or authorities to support this proposition. None was provided because, I infer, the English legislation does not include such a provision. Such a proposition was in conflict with the expert evidence given by Ms Hepworth, which I have accepted. It follows, for the reasons discussed above, the father’s parental responsibility and thus his rights of custody, were not abrogated by his earlier agreement the child could emigrate.
It is noteworthy the father was not an absent father. He had regular contact with the child and was a significant, although, compared to the mother, not a primary carer.
Consistent with my earlier findings concerning rights of custody, I am satisfied that at the time of the child’s removal, the father was exercising rights of custody.
Consent and acquiescence
The difference between consent and acquiescence is temporal. Consent is related to the circumstances prior to removal or retention whereas acquiescence is related to circumstances which arise afterwards. In Friedrich v Friedrich 6th Circ (1996), 78 F3D 1060 the United States Court of Appeal said:
Acquiescence under the Convention requires either an act or statement with the requisite formalities such as testimony in a judicial proceeding, a convincing written renunciation of rights or a consistent attitude of acquiescence over a significant period of time.
In Police Commissioner of South Australia v Temple (No 1) (1993) FLC 92-365 Murray J adopted Lord Browne-Wilkinson’s comments in Re H(Abduction: Acquiescence ) (1998) AC 72 at 88:
Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.
I respectfully agree with Murray J’s conclusion that a parent cannot be said to have consented to or acquiesced in a child’s removal unless the parent was aware of it. See also P v Director General, Department of Community Services [2002] FamCA 321.
It was submitted, by counsel for the mother that after the mother accepted the airline tickets, the father could not revoke his consent. Reliance was placed upon Re M (1999) 1 Fam LR 171 where it was held:
Clearly if the father gave his prior consent to M’s permanent removal from Greece the mother’s article 13A defence is established, since removal and retention are mutually exclusive concepts, and M’s continuing presence in England will be a consequence of that consent, and cannot constitute a wrongful retention. The fact that the father may have changed his mind and sought her return subsequently does not mean that his initial consent is vitiated …
Consent once given and acted upon cannot be annulled by a change of mind. [My emphasis]
This case is not authority for the proposition relied upon by counsel for the mother. The point made, by the counsel for the mother, was that after removal, consent could not be annulled. In other words, after removal, the subsequent revocation of consent becomes an issue of acquiescence. That proposition is consistent with the approach adopted in this country. In my view, the words “acted upon” relate to not only steps preparatory to departure but also the actual removal. In other words, a parent may revoke consent prior to the child’s removal. If that situation were to arise, in order to avoid the application of the Abduction Convention, the parent who intended to remove the child would need to obtain permission from a court.
The mother and her brother were questioned about why they brought forward their planned departure from 4 February 2010 to 24 January 2010. The mother’s brother said the English weather was poor and thus, on the evening of 22 January 2010, he and his wife decided to return to Australia. That is, within 24 hours of arrival in England and having travelled across the world, they decided to remain in England for four days before making the return journey. The mother’s brother denied he and his sister were motivated by concern to remove the child from England before the father could take steps to stop her. According to the mother, once her brother decided to return to Australia, she thought she and the child might as well travel with them. While this was undoubtedly the situation, the speed and fairly secretive nature of the child’s departure is inconsistent with the mother having a belief the father had not withdrawn his consent or that she had his imprimatur for the child to leave.
The father’s niece, Ms T, swore an affidavit dated 21 July 2010. She was available for cross-examination but was not cross-examined. There is nothing inherently incredible about her evidence, which I accept. She said she learned about the child’s planned departure for 4 February 2010 on the evening of 21 January 2010. That night, she called the mother who confirmed the proposed arrangement. Ms T said the mother “was very upset and was crying on the phone and continued to tell me that she didn’t know that they would be going but that it was a surprise. I requested that she allow me to spend some time with [the child] and she agreed to this. The following day after school I went to their home and suggested that my parents be allowed to come over and spend some time with [the child] also.” The mother agreed and, during Ms T’s visit on 22 January 2010, she spoke with the mother’s brother who confirmed the 4 February 2010 departure date and agreed she could accompany them to the airport.
Ms T and the child went out and, upon their return, her parents and husband came to the mother’s flat. Ms T then took the child to their grandmother’s house. Whilst there, the child became upset and according to Ms T, “kept on saying she wanted more time, two weeks was not enough.” When they returned to the mother’s flat the mother, the child and Ms T spoke in the child’s bedroom. Ms T said:
[The child] would not let go of my hand the whole time and seemed remarkably calm. She asked her mum, ‘Why do we have to go in two weeks? Do you really want to leave this place? All our things are here, our life is here, our family is here.’ During this time [the mother] tried to speak to which [the child] said: ‘No mum let me finish, I don’t want to go yet.’ Then [the child] looked at [the mother] and said, ‘This is why I didn’t want to tell you, I’ve taken the happiness from your eyes’ to which [the mother] responded ‘Maybe its not my time to be happy, I’ll speak to [the mother’s brother]’. Then [the child] said, ‘Will you though. He’s spent all this money, he’ll be annoyed. I don’t want him to be annoyed with me.’ When [the mother] said: ‘I’ll go and get him to talk to’ [the child] said she was scared to tell him how she felt.’
The child then told the mother’s brother about how she was feeling, using the sentiments described above. During this conversation, the mother’s brother said they would depart on 24 January 2010. Ms T thought this was a conversational slip and at the end of the evening, the mother’s brother swore that they would not leave sooner than 4 February 2010. The following day, when the child failed to attend a drama class conducted by Ms T and which she had attended every Saturday for the preceding five years, Ms T telephoned the mother who told her they planned to depart on 24 January 2010.
The father had, in the meantime, as I have already found, been in contact with the Australian High Commission and attempted to secure legal advice and representation so as to obtain an injunction to restrain the child’s removal. Given the pace with which events were unfolding and that 23 and 24 January 2010 were a weekend, his attempts to restrain the child’s departure were unsuccessful.
Thus, while the father had previously agreed the child could migrate to Australia; there was no agreement about when this would occur. From late December 2009, the mother knew his consent had been withdrawn. Again, once the mother set a date the father repeated that he did not agree the child could be removed. While he may have been persuaded to agree to her removal at a later time, he was not given an opportunity to explore this possibility.
The mother has not established that the father consented to the child’s removal from England.
Nor am I satisfied the father subsequently acquiesced to the child’s retention in Australia. That the father sought to maintain telephone contact with the child after she arrived in Australia is consistent with his desire to preserve the previously close relationship he enjoyed with his daughter. The facts relied upon by the mother would not enable the Court to infer he acquiesced to the child’s retention. Indeed, the father’s prompt actions in commencing these proceedings would be inconsistent with such an inference.
Grave risk of harm or an intolerable situation
The next issue that requires consideration is the mother’s contention that the child’s return to England would expose the child to physical or psychological harm or otherwise place her in an intolerable situation. To establish this defence, the degree of risk must be grave.
The leading authority on these issues is DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401 in which the High Court considered reg 16(3)(b). There, Gaudron, Gummow and Hayne JJ [at pp 417-418] held:
[40] So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that ‘there is a grave risk that [his or her] return ... would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
‘Narrow construction’?
[41] In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a ‘strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed’ [37] . Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in ‘an intolerable situation’. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
[42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description ‘grave’. Leaving aside the reference to ‘intolerable situation’, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
[43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence [38] . The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
Counsel for the mother relied upon statements the child made to the family consultant in relation to reg 16(3)(b) defence. At par 7, the family consultant reported:
[The child] was at her most emotional when talking about when her parents were still together. She described ‘fighting’ and ‘screaming’, her father hitting her mother and calling her ‘rude names’ and throwing things. She said her father would also ‘scream’ at her. She described lying bed in the mornings and hearing ‘a minimum of five screams a day’ and ‘crying and crying and crying’ herself.
The child’s description of her parent’s relationship was not adopted by either of them. There was no evidence of apprehended violence type orders having been sought and the gist of the parents’ evidence was that although their marital relationship had failed, it was not because of abuse or violence by the father. Counsel for the mother submitted the child’s perception of her parent’s relationship was relevant to the risk of harm defence. Whilst in a theoretical sense, that may be so, there is no suggestion the mother and father contemplated the resumption of cohabitation. The child’s perception of her parent’s relationship relates to a period prior to August 2007. In circumstances where the mother and father will not resume cohabitation, the child’s perception of what life might be like were they to do so, is effectively irrelevant. In other words, the evidence does not establish that the child would be exposed to physical or psychological abuse, either to or in her presence if a return order is made. In reaching this view, I have not overlooked that during a recent telephone call the father shouted at the child and threatened the mother’s brother. As to the latter, his intemperate remarks appear to be out of character as was him shouting at the child.
When the family consultant spoke with the child, the child was tearful and said on a number of occasions she would kill herself if she were required to return to England. The child said if she saw her father: “I’ll kill myself if I see his face.” The family consultant, understandably, explored with the child her threats to kill herself. The family consultant reported the child said she would do it “by suicide”. In relation to the child’s threats to kill herself if a return order was made, the family consultant said: These “… seemed part of [the child’s] general hyperbolic use of language for dramatic effect rather than a desperate statement from a depressed or potentially suicidal child.” It was the family consultant’s opinion the child was confused and that, while her maturity “is such that her views ought to be given weight but not such that they should be the sole deciding factor in deliberations.” The child has made similar statements to the mother. The mother, unlike the family consultant, lacked the qualifications and independence to analyse the significance of the child’s remarks. Thus, while I accept the child does not want to return to England, I am not satisfied that there exists even a low level of risk she would, in those circumstances, attempt to harm herself. I am not satisfied the child would be exposed to a grave risk of psychological harm if a return order was made.
The issue, which next arises, is whether the child’s return would place her in an intolerable situation. In Gsponer v Director General, Department of Community Services, Victoria (1989) FLC 92-001 it was held that the three reg 16(3)(b) categories were to be read disjunctively.
As I understood from the mother’s evidence, she asserted if she and the child returned to England the child would be placed in an intolerable situation. Primarily this was because after 21 January 2010, the mother gave up her job, her flat and possessions. Thus, in simple terms, she said she and the child had nothing to which they could return. In other words, nowhere to live, lacked financial support and friends. However, the mother agreed that in England she would be entitled to social security, there existed a network of women’s shelters, and state funded accommodation. The mother denied she had friends upon whom she could rely for even short-term accommodation. When I attempted to explore with the mother whether the provision of financial support from the father, even for a period, might ameliorate this situation, she was unable to answer and appeared unwilling to contemplate any scenario, which would have her return to England. Thus, if the child returns to England, it would appear she would return with the father and to his family.
Presently, the child is estranged from her father and she would find it difficult to live with him. I have no doubt, for the reasons she discussed with the family consultant, the child would be very distressed at the prospect of being separated from the mother, even if it was only while courts in England determined where she should live. However, the child’s current position needs to be analysed in the context of the relationship, which she enjoyed with the father, immediately prior to her removal. Ms T’s unchallenged evidence was that the child:
..Has never said or shown fear of her father. In fact a large proportion of my time with [the child] since her parent’s break-up has been spent at our grandmother’s house, with her father present and never has she shown anything but love and affection towards him. Their relationship is one of ‘banter’ where [the child] has always been able to express and speak up for herself and honestly states if her dad is getting on her nerves or not, like any child who is comfortable in the presence of a parent.
I would also like to mention that at Christmas 2009 [the child] and [the mother] were invited to my parent’s home for Christmas Day and they came and we had a wonderful day. The [father] was not invited and at the age of 10 [the child’s] main concern on Christmas Day was for her father not to be lonely. She was willing to sacrifice a day with other children (cousins) and extended family in a lively and typically fun environment, to make sure her father was okay. [The child] went to see her father later in the day, but I felt her reaction was indicative of her selfless nature and unconditional love and concern for her father.
Also, attached to the father’s affidavits are a plethora of photographs of the child with her paternal relatives and her friend, E. These photographs were taken in the latter part of 2009 and depict a typically happy and vibrant child delightfully engaged with family and friends. Thus, while I accept the child would find it very difficult to leave the mother, there is no legal impediment, which would stop the mother returning to England with her. I accept the mother would, in such a situation, be in a difficult position but not so difficult it would amount to an intolerable one. If the mother decides she would not return with the child, while there would be transition period during which the child would be distressed, being with people to whom she has been closely attached, while any parenting proceedings are determined in England, does not amount to an intolerable situation.
Does the child object to being returned?
It is the mother’s contention that the child objects to being returned to England. In essence, to establish this defence, the mother must establish each of the following:
· the child objects to being returned;
· her objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes, and
· the child has attained an age and a degree of maturity, at which it is appropriate to take account of his or her views.
In Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277 the Full Court of the Family Court, per Bryant CJ, Kay and Boland JJ considered the reg 16(3)(c) defence. In particular, what it is to which the child objects? Their Honours said:
[54]… The relevant regulation talks about the child objecting to ‘being returned’. Several of the cases have endeavoured to read down that phrase to mean effectively being returned to the country of habitual residence for the purpose of enabling that country to determine where and with whom the child should reside. The view was expressed by the Full Court (Barblett DCJ, Ellis and Lindenmayer JJ) in Director-General of Department of Community Services & Crowe (1996) FLC 92-717 and reaffirmed in De L v Director-General New South Wales Department of Community Services (1997) 21 FamLR 413 at 426 that the objection was an objection to being returned to the country of the child’s habitual residence and not to living with a particular parent. The Court went on in De L to say:
However, as was pointed out by Balcombe LJ in Re R (Child Abduction: Acquiescence) (1995) 1 FLR 716, there may be cases ‘where the two factors are so inevitably and inextricably linked that they cannot be separated’.
….
We would not suggest that children must articulate that they object to being returned to the country of their habitual residence for the purpose of enabling the courts of that country to resolve the merits of any dispute as to where and with whom they should live in order to come within the provisions of reg. 16(3)(c). That is not the language of children and the court should expect them to formulate and articulate their objection, if they had objected in the relevant sense, in that manner. The court must have regard to the whole of the evidence and determine, no matter how the children articulate their views, whether the children object in the relevant sense.’
[55] In Agee and Agee (2000) FLC 93-055 a differently constituted Full Court (Finn, Holden and Guest JJ) questioned whether it was appropriate to place any gloss upon the words ‘objects to being returned’ to import the words ‘so that the courts of that country may resolve the merits of any dispute as to where and with whom the child should live’.
Ultimately, their Honours determined it was unnecessary to further comment upon the argument.
In Re F (Hague Convention: Child Objections) their Honours noted the language of the regulations is different to the language used in Article 3 of the Abduction Convention. In relation to reg 16(3)(c), this suggests particular care must be taken when courts in Australia are asked to have regard to cases decided in other Abduction Convention countries.
In my view, the better approach to the objection defence is that articulated in Agee and Agee (supra). Such an approach would be consistent with remarks made by the High Court in De L v Director-General, NSW Department of Community Services & Anor (1996) 187 CLR 640; per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where their Honours said:
Further, as was pointed out by Nicholson CJ in the present case, the policy of the Convention is not compromised by hearing what children have to say and by taking a literal view of the term “objection”. That is because it remains for the Court to make the critical further assessments as to the child's age, maturity and whether in the circumstances of the case the discretion to refuse return should be exercised.
Although the High Court De L v Director-General, NSW Department of Community Services & Anor was concerned with an earlier formulation of reg 16(3)(c), the words “the child objects” were there present. In my view, the subsequent recasting of reg 16(3)(c) does not compromise the force of their Honours’ approach to the interpretation of the word “objects”. Thus, it should be afforded its ordinary meaning. Namely, whether the child objects to being returned to the country from which he or she had been removed. When a Court comes to consider the third component of the “objects” defence, that is the child’s maturity, this is where consideration should be given to the child’s understanding of the situation. Such as, whether the child appreciated that a return order was not an end to the issue of where and with whom the child would live and that he or she would be returned to their place of habitual residence, so that those issues could be determined.
To the family consultant, the mother and father, the child has made it plain she does not want to return to England. In relation to the child’s interview with the family consultant, the family consultant reported:
[The child], who at the time of interview was three weeks off turning 11 years old, is an intelligent, articulate and very expressive child. She has a dramatic manner and turn of phrase and appears to take life seriously and feel things intensely. As she said herself, ‘I have sensitive feelings towards everyone’. Her theatricality could make one think that she is prone to exaggeration, and indeed she probably is, but her emotions nevertheless appeared authentic especially when they manifested themselves physically in her body. When describing certain events and periods of her life she became tearful and seemed to be re-experiencing ‘heart pumping’ and a ‘funny feeling in [her] stomach’. Both of which she said she had felt during those times. She unconsciously soothed her stomach with her hand when she remembered this.
[The child] does not want to return to England. She was very clear about this. She said on a number of occasions that she will ‘kill’ herself if she has to go back. She also said, ‘They can’t make me go back’. There were two different categories of reasons for [the child] not wanting to go back: her expressed feelings about her father and her feelings about Australia and her life here compared with England and her life there.
To the family consultant, the child gave an emotional and very negative description of her relationship with the father and his parenting capacity. In her view, the father abandoned her and her mother and after her parents separated “he spent more time with others than me, his own daughter.” To the family consultant the child said she thought her father had a “mental problem” and was … “evil and stupid.”
The family consultant reported:
[The child] was as extreme in relation to her mother and their relationship as she had been about her father but at the other end of the spectrum. She said: ‘She’s a true mum and needs to be commended as a mother. She gives me strength. I want to be a doctor and she built my confidence….she eats my special food with me so I don’t feel lonely….she was my only friend in England’.
The child exaggerated when she said she lacked friends in England.
In relation to England, as compared to family issues, the family consultant reported:
In relation to the second category of reasons why [the child] does not want to return to England, she said that the neighbourhood they had lived in was ‘pretty filthy’ and that all you can do in England is ‘watch TV’, primarily because the weather is so bad. When asked why she prefers Australia, [the child] looked amazed that such a question could be asked, gestured dramatically towards the window and blue sky outside and said ‘That’s why. Look at the light, the sky, and it’s clean and there are decent beaches and you can eat outside at school and we have the bestest house. You can go out. The high schools are beautiful’. She added with tears in her eyes and with great intensity, ‘It (where they lived in England) was an awful area. We can’t go back. I used to pray to God there ‘Take us from this world or at least from this country’.
A few weeks prior to this hearing, the child telephoned the father and asked him why he was pursuing this case. She explained to him she did not want to return to England and was happy with the mother in Australia. These sentiments are similar to those she has expressed to the mother and other maternal family members.
It was the family consultant’s assessment the child genuinely opposed being returned to England. With this assessment I agree. The first limb of the sub-regulation is thus established.
The next question is whether the child’s objection “shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes”. The language the child used with the family consultant was emotive and strong. She had clearly considered the issue and there was nothing ambiguous or half-hearted about her opposition. There was nothing “mere” or “ordinary” about her language. That the child feels deeply her opposition to return was evident in her emotional distress and her seemingly “heart pumping” and “funny feeling in [her] stomach” during the interview. The second limb of the sub-regulation is established.
Counsel for the Central Authority submitted the child had not attained an age and degree of maturity which would make it appropriate to take her views into account. The family consultant explored the child’s maturity at some length. There was no dispute she is an intelligent child who, in relation to day to day life, evidences age appropriate maturity. The family consultant assessed the child’s threats of self harm as reflective of her “hyperbolic use of language for dramatic effect” which were not evidence of “a desperate statement from a depressed and potentially suicidal child”. She considered the child was both sad and angry with the father. The family consultant was unable to “get beneath the surface of her expressed feelings [about the father] in a brief single interview”.
I have earlier made findings about the nature of the child’s relationship with the father and her obvious affection for him described by Ms T. It is almost impossible to reconcile the cogent evidence that the child and father previously enjoyed a good relationship with the description the child gave of him to the family consultant. The father has had little contact with the child in recent months and thus, her stated position about him would appear to result from her unhappiness with him for commencing these proceedings, negative influences in her current environment and their recent heated telephone conversation. In recasting her relationship with the father in such a negative light, the child has shown she lacks the maturity and life experiences to evaluate in a reasonable manner the various elements which have come together to create the awful situation she is in. She showed no understanding a return order would mean England, rather than Australia, would determine where and with whom she would live. In other words, her passionate description and emotion tended to suggest she believed if she returned to England, she would suffer educationally, be permanently deprived of a lifestyle which she enjoys, perhaps forced to live with the father from whom she is presently estranged and probably be permanently separated from the mother whom she loves dearly and who has always been her primary carer. These notions were a serious overstatement of her situation and the effect of a return order.
It was the family consultant’s opinion the child: “...is not yet of an age and maturity that she can take a nuanced perspective on behaviour or look ahead to a time when she might see and feel differently about things from the way she does now.” On this and other matters, I accept her evidence. The contrast between the child’s opposition to leaving England and passionate opposition to being returned is telling and supports the family consultant’s opinion about the child’s lack of maturity in relation to this matter. As does the contrast between her pre-removal relationship with the father, compared to how she now sees the situation. While the child’s emotion and inaccurate understanding of the situation are easily understood, it is necessary to observe however, that her position and rationale are understandably immature. These are important matters. On balance, I am not satisfied the child is at an age or has the degree of maturity which would make it appropriate to take her views into account.
Before I leave this topic, I observe the family consultant recommended that rather than have the Court determine the matter, at least as a preliminary step that the parents participate in mediation during which the father and child would have been given the chance to talk. I also made this suggestion, however, there appeared little enthusiasm from the parents with the father’s reported position being strongly against it.
The mother has thus failed to establish a defence to the application by the Central Authority. The Court is thus mandated to order the child’s return to England.
Even if the mother has established one of the defences, the Court maintained a discretion about whether to make a return order. In the exercise of my discretion, I would nonetheless have made a return order. In the context of the Abduction Convention, the primary reasons which would have influenced my discretion in favour of return are; the mother knew she did not have the father’s consent to remove the child, the mother failed to seek approval from a court in England to remove the child, the father and Central Authority acted quickly to seek the child’s return, prior to removal the child enjoyed a good relationship with the father and did not then want to leave England and while the child does not want to return to England her views are influenced in the manner discussed above.
Conditions
Reg 15(1)(c) of the Abduction Convention provides, inter alia, that in making an order for return of children the Court may attach conditions which it considers to be appropriate to give effect to the Convention. The objectives of the Abduction Convention as earlier stated, are in summary, to secure the prompt return of children wrongfully removed to or retained in the contracting state and to ensure that between contracting states rights of custody and access are respected.
In De L v Director- General, NSW Department of Community Services & Anor (supra) it was held that in the exercise of its discretion regard must be had to the subject matter and purpose of the regulations. Depending upon the evidence in a particular case, it is likely that a court would seek to ensure that there would be suitable interim arrangements for a child upon his or her return and, judicial proceedings able to be activated promptly. DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) FLC 93-881.
The father offered to pay the child and mother’s airfares back to England. In the event the mother was unwilling to travel with the child, he said he would come to Australia and accompany her back to England. I attempted, at some length, to explore with counsel for the mother appropriate conditions, if a return order was made. Notwithstanding her valiant attempts, counsel for the mother was unable to obtain instructions from the mother in relation to this matter. Accordingly, this aspect of the hearing was adjourned until the Court determined whether a return order should be made.
As a return order will be made, I will take further submissions in relation to the conditions, if any, which should be attached to give effect to that order.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 9 August 2010
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