Department of Human Services, Community Services and Parry; (No 2)

[2010] FamCA 1035

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF HUMAN SERVICES, COMMUNITY SERVICES & PARRY
(NO. 2) [2010] FamCA 1035

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Central Authority

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

APPLICANT: Director General, Department of Human Services, Community Services

RESPONDENT: Ms Parry

FILE NUMBER: (P)SYC 3466 of 2010

DATE DELIVERED: 19 August 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 19 August 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Department of Human Services, Community Services
Ms Perierra

SOLICITOR FOR THE APPLICANT: Galluzzo Lawyers
Mr Galluzzo

The Court Notes:

A.That on 13 August 2010 the Court invited the parties to consent to contact being made by Bennett J as the Australian Hague Liaison Judge with Lord Justice Thorpe in the United Kingdom as England’s Hague Liaison Judge in terms of Exhibit “A”.

B.The Central Authority agreed to contact between the Hague Liason Judges in terms of exhibit “A”.

C.The Respondent Mother does not consent to Hague Liaison Judge communication.

D.The Respondent Mother has advised the Court she will neither return to England with the child nor apply in England for parenting orders in relation to the child. 

Orders

1. The Application to Discharge the Return Order filed by the Respondent Ms Parry today is withdrawn.

2. I give the Respondent Mother leave to make an oral application to re-open her defence to the Abduction Convention application.

3. The Respondent Mother’s oral application is granted and is to be heard forthwith.

4. That the Respondent Mother’s oral application is dismissed.

5. That the Applicant make such arrangements as are necessary to ensure the return of the child J (female) born … August 1999 to England in the company of her father (Mr Parry) pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.

6. That the Respondent Mother delivers the child J (female) born … August 1999 to the offices of the Regional Co-ordinator Child Dispute Services, Family Law Courts at 97-99 Goulburn St Sydney, NSW on  dates and times as directed by the Regional Co-ordinator Child Dispute Services.

1. That the passport of the child J (female) born … August 1999 be released forthwith to the legal representative for the Central Authority.

2. Paragraph 1(1) of the order dated 9 June 2010 be varied to allow the child J (female) born … August 1999 to leave the Commonwealth of Australia for the purposes of giving effect to paragraph 1 of the order above and the Australian Police do give effect to the said variation.

3. Following the departure of the child J (female) born … August 1999 from the Commonwealth of Australia for England in accordance paragraph 5 of this order, the Australian Federal Police remove the names of the following persons from the PASS Alert system in operation at all Australian international arrival and departure points as soon as practicable:

   ·          MS PARRY born … 1975

   ·          J PARRY (female) born … August 1999

4. Following the departure of the subject child from the jurisdiction of the Commonwealth of Australia in accordance with paragraph 1 of this order all other orders made by the Court in accordance with paragraph 1 of the order dated 9 June 2010 and all other orders made by the court in relation to this matter be discharged and the Registrar return the Mother’s passport.

5. That the Central Authority serve a sealed copy of these orders upon the Commissioner, Australian Federal Police as soon as possible.

6. That there be liberty to restore within 24 hours notice to the Court as to the implementation of the return order.

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)SYC3466 of 2010

DIRECTOR-GENERAL DEPARTMENT OF HUMAN SERVICES, COMMUNITY SERVICES

Applicant

And

MS PARRY

Respondent

REASONS FOR JUDGMENT

1. On 9 August 2010 I delivered a judgment in relation to an application pursuant to the Abduction Convention for the return to England of the child J.  These reasons are delivered in the context of that decision.

2. I declared wrongful, within the meaning of the Abduction Convention, the removal by the mother of the child from England on 24 January 2010.  Before I made the consequential return order, the proceedings were adjourned until 19 August 2010.  It was anticipated that during the adjournment the mother would commence parenting proceedings in England for orders, in effect, which would permit the child to reside with her in Australia.  In addition, in circumstances where the mother said she would not accompany the child to England, the Court anticipated on the return date receiving information about when the father would arrive in Australia to collect her.  If, during the period of the adjournment, the mother reconsidered her stance that she would not return to England with the child, on the adjourned date the Court would consider the imposition of conditions upon the return order.

3. On 13 August 2010 the Court invited the parties to consent to contact being made through the International Hague Network of Judges to ascertain what priority could be given in England to any parenting proceedings commenced by the mother.  The Central Authority gave its consent to contact being made, however the mother did not.  Absent the mother’s consent the Court could not initiate Hague Network Judge contact.  As it transpired, irrespective of the willingness of courts in England to afford priority to any parenting application commenced by the mother, she said she would not bring one.  The mother advised the Court she had been informed by legal aid in England she was ineligible for legal aid in England unless she returned to England.  The point being, however, this situation arose because she is resolutely opposed to returning to England and thus she is unable to secure legal aid assistance which would otherwise be available to her.  The situation is one of her making.

4. On 19 August 2010 the mother filed an application to discharge the return order and an affidavit.  It will be immediately apparent that the application to discharge the return order was made prior to a return order being made.  After discussion with the mother’s solicitor she withdrew her application and sought leave to re-open her defence to the Abduction Convention application.  These steps were not opposed by the Central Authority and orders which would enable the mother to pursue an oral application were made.

5. The mother’s affidavit revealed that following the hearing on 2 August 2010, she informed the child there was a chance the Court may order her return to England.  This news distressed the child and she repeated her opposition to returning to England and said she would kill herself.  After a restless night the child continued to be distressed the following day and said:  “I cannot go back. I do not want to leave here.”  Later that day the mother took the child to a Sydney Hospital where she was seen by a psychiatrist.  The psychiatrist referred the child for counselling and in the following days she saw a counsellor at the Hospital three times.  The child saw a psychiatrist again on 10 August 2010.  The mother did not provide reports from these consultations.

6. On the evening of 9 August 2010 the mother erroneously advised the child the Court had made a return order.  It would appear this was the result of a misunderstanding by the mother and those appearing for her about the orders and declarations made that day.  In any event the child repeated her opposition to being returned and said:  “Nobody can force me to go.  I will fight if someone forces me”.  She was correctly informed she would see the family consultant again and whilst there, her father. 

7. For about one week during the period of the adjournment the child refused to attend school. 

8. It is contended by the mother that this evidence reinforces the strength of her reg 16 defences in particular, that the child’s return would expose the child to an intolerable situation and that the child objects to being returned.

9. The evidence contained in the mother’s affidavit is very troubling.  It is strongly suggestive of serious manipulation by the mother of the child.  I infer the child is unaware it is the mother’s position that the mother would not return to England with her.  Logic suggests that absent disclosure of the mother’s position, the child may erroneously believe it is the Court’s or her father’s decision that the child should return and somehow are preventing the mother from returning with her.  Nor is the child aware that the mother has available to her an option of bringing proceedings promptly in England for orders which would enable the child, potentially, to return to Australia with the mother.  Were the child aware of these matters, not only would they be likely to cause her heartfelt distress, but also to appreciate she is being manipulated by half truths in circumstances where the mother knows the effect her actions have had and continue to have on the child.

10. It will be recalled the mother could return to England at the father’s expense, would in England be eligible for legal aid and welfare support, along with any conditions for financial support the Court imposed upon the father.  Although the Court appreciates the mother would be in a difficult position, the situation for her and the child in England would be nonetheless reasonable.  The mother’s refusal to return to England is made in full knowledge of the distress and consequences thereof caused to the child. 

11. I infer the mother would not resolutely refuse to accompany the child back to England if she believed the child’s distress was even remotely likely to result in the child harming herself.  The point being the mother too assesses the child’s threats of self harm as reflective of her “hyperbolic use of language for dramatic effect” and are not evidence of “a desperate statement from a depressed or potentially suicidal child”. 

12. The father and the child’s cousin arrive in Australia in three days time.  I have earlier made findings about the nature of the child’s relationship with the father and accept she has previously enjoyed a particularly fond relationship with her cousin.  All the evidence available to the Court suggests that in the father’s care the child would be affectionately and appropriately cared for. 

13. It was submitted by the Central Authority the mother’s further evidence was insufficient to enliven the defences relied upon.  I agree.  So that it is clear I am strongly satisfied the mother who has been primarily responsible for the child’s care, does not contemplate the child may believe she would be in an intolerable situation should she return to England without her.  In other words, this is a transitory phase which would be resolved upon the child’s return to England.  It is clear to the Court the child is being manipulated and through her mother, given at best, half truths about the situation.  The chasm which now exists between the child’s understanding of her situation and how she came to be in it is such that I am even more strongly of the view she lacks the degree of maturity which would make it appropriate to take her views into account.

14. The family consultant will meet with the child and other family members so as to smooth the child’s transition into her father’s care.  Otherwise, there are a series of machinery orders which are designed to give effect to the return order. 

15. For these reasons I make the orders and notations dated 19 August 2010.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 19 August 2010.

Associate: 

Date:  20 August 2010