Director General, Department of Child Safety and Christodoulos (aka Petrou)

[2008] FamCA 56

FAMILY COURT OF AUSTRALIA

DIRECTOR GENERAL, DEPARTMENT OF CHILD SAFETY & CHRISTODOULOS (AKA PETROU) [2008] FamCA 56

APPLICANT: Director-General, Department of Child Safety

RESPONDENT: Ms Christodoulos (aka Ms Petrou)

FILE NUMBER: BRC 11818 of 2007

DATE DELIVERED: 11^th February 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carmody J

HEARING DATE: 1^st February  2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Page SC

SOLICITOR FOR THE RESPONDENT: Nicol Robinson Halletts

Orders

1. That the child, … born … June 2001, be returned to the country of Greece and for the purposes of giving effect to this order:-

(a)That the said child leave the Commonwealth of Australia on or before 25 February 2008;

(b)That  pending the said child returning to Greece, the Respondent mother, …, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from the Commonwealth of Australia;

(c)That pending the return of the said child to Greece, the Respondent mother continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child from the premises where the mother and the said child are currently residing;

(d)That subject to sub-paragraph  (e) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent mother and the said child on the PACE Alert System at all international departure points in Australia;

(e)That the said child and the Respondent mother be removed from the PACE Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Child Safety advising of the travel arrangements made for the said child to return to Greece, from 12.00am on the date nominated for the said travel in the letter;

(f)That the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders;

(g)That  liberty to apply be granted to the Applicant to seek any further orders necessary to allow the making of  such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order;

1. That the orders made in the Family court of Australia at Brisbane on 30^th October 2007 be discharged;

2. That all outstanding applications be dismissed;

3. That all applications be removed from the list of cases awaiting finalisation.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Carmody delivered this day will for all publication and reporting purposes be referred to as Director General, Department of Child Safety & Christodoulos (aka Petrou).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC11818/2007

Director-General, Department of Child Safety

Applicant

And

Ms Christodoulos (aka Ms Petrou)

Respondent

REASONS FOR JUDGMENT

1. The Department of Child Safety is applying, as the Central Authority, for the return of a little girl to a foreign jurisdiction under the Hague Convention on behalf of the father.

2. The central issue is whether the child, L, should be returned from Australia by her mother to Greece where she habitually resided until November 2007.

3. The governing principles and proper approach to Convention applications are not in doubt. Nor is the object or purpose to be achieved.

4. The Court is ordinarily required to make a summary return order where in unexceptional cases it is satisfied that the conditions of Reg 16 have been met. Broadly speaking that is if the application is made within a year of the child’s wrongful removal or retention.

5. The respondent mother defends the application on a range of grounds. First that the application is governed by sub regulation 16(2) rather than sub regulation 16(1) because it was issued out of time. If this is so, and a new settled environment is Australia is established, the Court has a discretion whether or not to make the order.

6. Alternatively, it is argued that the alleged retention is not wrongful in the relevant sense because (a) although the child habitually resided in Greece, a Convention country, immediately before her removal to Australia the application must fail because it is based on wrongful retention and she had settled into her new environment here before the date of the alleged retention: (b) while her father had legal rights of custody the child’s retention in Australia is not in breach of those rights and they were not actually being exercised, nor would have been, had the child not been retained. Finally, it is asserted by the mother that the balance of relevant considerations favour the residual discretion in sub regulation (3) being exercised against the making of a return order.

7. Whether or not the application was made within the time specified in regulation 16(1)(b) is a pivotal question because it determines the applicable criteria.

The time issue

1. The applicant’s case is that the child was retained in Australia from November 2006.  Thus, the application falls to be decided under sub regulation 16(1) (a).   No issues of settlement apply and the law requires the Court to order the return of the child to Greece unless the exemptions in regulation 16(2) or (3) are established.

2. It is common ground that the mother travelled with the child to Australia in May 2006 with the father’s consent. However he claims that the agreed purpose of the trip was to see the maternal grandmother initially for a couple of months but that was later extended by agreement until November 2006 at which time she was to have been returned. The mother concedes the non-return but denies that it amounts to a wrongful retention for the purposes of regulation 16(1)(a) and that settlement issues are in fact relevant because the father gave his unconditional consent to the move knowing that it was intended to be permanent.

3. The resolution of this conflict has to be made in the light of the summary nature of the proceedings and the limited ability of the Court to conduct a full forensic enquiry. Both parties rely on inferences drawn from uncontested primary facts to support their contentions. The mother points to the following circumstances:

   ·    The father’s consent was not expressed to be conditional upon return to Greece;

   ·    The only evidence of an alleged promise to return is inconsistent with other objective facts and, in any event, emanates from a dubious source tainted by self-interest.

   ·    The parties made a joint application to permanently relocate to Australia after reconciling in 2004.  The father had changed his mind at final separation in March 2006 informing the mother that he did not wish to relocate to Australia with the child and herself.

   ·    The wife sold her business to fund the journey to Australia and settled matrimonial property with the father as well as shipping all their clothing and personal belongings in advance of their own departure.

   ·    The initiating proceedings were filed on 10 October 2007 i.e. seventeen months after the relocation and less than a month of the alleged date of retention from Greece suggesting that the husband selected a November date to bring himself within the limitation period and improve his chances of success and to make it harder for her to oppose.

   ·    The allegations in the mother’s affidavit at par 23 and 43 which are inconsistent with a conditional consent are not denied by the father even though he had ample opportunity during the adjourned period.

4. The Central Authority however submits that although equivocal the consent form is equally open to the construction that it was for temporary purposes only. If it was intended by the parties to have been open-ended and unconditional it would have clearly said so especially in light of the fact that the mother’s lawyer prepared the document. There is no mention of November 2006 as a return date because the child was initially to be back in Greece in August.

5. The mother’s passport shows that between 6-8 August she travelled from Australia to New Zealand. This is about the time that her visa was renewed. This suggests that her original permit was for a limited period, consistently with the father’s case, and had to be extended by leaving and then returning to Australia. Hence the brief trip to New Zealand.

6. The mother explains the visa discrepancy at par 44 but not the reason for the trip to New Zealand. Her explanation, however, cuts both ways and, on one view, is at odds with a plan to emigrate.

7. Although the father’s application is towards the end of the limitation period he acted consistently with his version of events by obtaining an order for the child’s return from the local court in Greece in May 2007 and the delay in making of this application in October 2007 is clearly explicable by the complicated Convention process, the distance between Greece and Australia and the need for translation of court documents.

8. The Court’s duty to give effect to the terms of the Convention can, on occasion, be painful and disruptive but that is not a reason to avoid it. The Convention application is a summary procedure with little scope to resolve factual conflicts via the judicial method. The husband deposes to facts which, if accepted, would bring him within the twelve month period. What he says is not inherently improbable and, as Mr Selfridge for the Central Authority points out, is consistent with many objective facts although, it must be said, at odds with others.

9. Overall, I am satisfied that the father’s consent was probably given in the belief and on the condition that the child would be returned to Greece. It is inherently unlikely, in my view, that a father who was having weekly contact with his daughter would agree for her to travel across the other side of the world for a permanent or indefinite period with his estranged wife without making some formal or informal arrangements about holiday or telephone contact.

10. The temporary visa used by the mother to enter Australia is more consistent with the father’s account than her own.

11. In light of this finding the Court must, subject to sub regulation (3), order the girl’s return pursuant to regulation 16(1) if her continuing retention in Australia is wrongful.

Wrongfulness of the retention

1. In view of the child’s age and her habitual residence prior to November 2006 the child’s retention in Australia is wrongful if the father had custody rights before retention and the failure to return breached those rights and the father was exercising or would have exercised his custody rights if the child had not be retained.

2. The mother’s own evidence is that prior to the child’s removal to Australia the father was telephoning and visiting the child approximately once a week. However, she says that after relocation the father did not demand the return of the child at any time and ceased all contact with her in July 2006. This and the facts deposed to in her most recent affidavit filed 31 January 2008 are relied on by the mother as evidencing her action in retaining the child in Australia as not being in breach of the father’s rights or custody, not only because he agreed to the permanent removal, but since then has voluntarily ceased to exercise any rights of custody since July 2006 and in doing so has implicitly acquiesced in the retention. This is also confirmed, says the mother, by statements attributed to the father at pars 22-26 of the mother’s main affidavit.

3. The father’s case is that he exercised his custody rights prior to the move by regular contact and consented to her departure from Greece and when the mother was contactable in Australia. He says he would have continued to exercise his rights of custody including face-to-face and telephone contact but for the retention. He explains in paragraphs 4-5 of his supplementary affidavit of his phone contact until November 2006 when he lost contact and was unable to trace the mother and child through police.

4. As difficult as it is to resolve these controversies on the papers doing the best I can with the information I have I am reasonably satisfied that the child’s retention in Australia is in breach of the father’s rights of custody. His recovery attempts are inconsistent with an intention to surrender these rights or acquiesce in the child remaining in Australia.

5. Having found that the child’s retention was wrongful under regulation16(1)(a) and that the application for return was made within the one year and despite the mother having satisfied me that the child is now settled in Australia I am required by the Regulations to give effect to the terms of the Convention to make a return order unless it is established by the mother that the father had consented to the child being removed to and subsequently acquiesced to her being retained in Australia and there is a grave risk that returning the child under the Convention would expose her to physical or psychological harm or otherwise place her in an intolerable situation.

6. The untested and conflicting evidence I have been provided with is insufficient to justify a positive factual finding in the mother’s favour. Although there is some objective evidence supporting an inference of consent and acquiescence there is other evidence pointing in the opposite direction. The case presented by the mother is not cogent or compelling enough to support a consent to permanent relocation and overall his actions are inconsistent with acquiescence.

7. Likewise, the evidence in support of the allegations of physical and psychological risk of harm fails to establish the likelihood or gravity to the requisite standard. In those circumstances I propose to make the orders sought by the central authority.

8. The sole fact that the child is settled in a new environment although relevant to the exercise of the residual discretion is not sufficient here having regard to the subject matter scope and purpose of the Regulations. Central to those purposes is to ensure that abducted children are returned to the jurisdiction of habitual residence as soon as possible so that parenting disputes can be determined where they should be. The return procedures cannot be allowed to be turned into a custody or contact hearing. If that is allowed to happen the fundamental objective of the Convention will be defeated and simply through the process of social and cultural integration over time will have the effect of rewarding her for abducting the child and denying the father a right to be heard.[1]

   [1] De L v Director-General New South Wales Department of Community Services (1996) 187 CLR 640

9. In the circumstances of this case at least, giving due weight to the policy of the Convention and the underlying object of the legislation and history of the matter and other relevant factors convince me overwhelmingly that the proceedings should be conducted in Greece and that no other factor overwhelms the significant weight that should be attached to the Convention. The mother has not discharged her onus of coming up with reasons beyond a prima facie case why the child should not be returned despite her resettlement to Greece.

10. Despite the able arguments advanced by Mr Page SC on behalf of the mother, the evidence of informed consent and acquiescence is simply not unambiguous or unequivocal enough to legally justify a discretionary exercise permitting the child to remain in this country.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carmody

Associate: 

Date:  11^th February 2008