Director-General, Department of Communities, Child Safety and Disability Services and Carlyle (No 2)
[2015] FamCA 1012
•12 November 2015
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & CARLYLE (NO 2) | [2015] FamCA 1012 |
| FAMILY LAW – CHILDREN – Hague Convention – Whether the children should be returned to New Zealand – Whether returning the children to New Zealand would expose them to a grave risk of physical or psychological harm – order made returning the children. |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 Harries & Harries (2011) 45 Fam LR 598; [2011] FamCAFC 113 HZ & State Central Authority [2006] FLC 93-264; (2006) 35 Fam LR 489; [2006] FamCA 466 State Central Authority & DB [2002] FamCA 804 |
| APPLICANT: | Director-General, Department of Communities, Child Safety and Disability Services |
| RESPONDENT: | Ms Carlyle |
| FILE NUMBER: | BRC | 8230 | of | 2015 |
| DATE DELIVERED: | 12 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 12 November 2015 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Parrott |
| THE RESPONDENT: | In Person |
Orders
IT IS ORDERED THAT
The children B born … 2012 and C born … 2013 be returned to New Zealand; and for the purposes of giving effect to this Order:
(a)the said children leave the Commonwealth of Australia on or before 19 December 2015;
(b)the said children arrive in New Zealand on or before 20 December 2015;
(c)pending the said children, returning to New Zealand, the Respondent Mother continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children from the Commonwealth of Australia;
(d)pending the said children returning to New Zealand, the Respondent Mother continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children from the premises where she and the children are currently residing, namely D Street, E Town in the State of Queensland;
(e)subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent Mother, Ms Carlyle born … 1979, and the children, B born … 2012 and C born … 2013 on the Family Law Watchlist at all international departure points in Australia;
(f)the children B born … 2012 and C born … 2013, and the Respondent Mother Ms Carlyle born … 1979 be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Communities, Child Safety and Disability Services advising of the travel arrangements made for the said children to return to New Zealand from 12.00 am on the date nominated for the said travel in the letter;
(g)the Marshall 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;
(h)to facilitate the return of the said children to New Zealand, Ms G, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release, all current passports relating to the children for the purposes of the said children’s return to New Zealand; and release the Respondent Mother's passport to her or her nominee upon request.
The Applicant has liberty to apply to seek any further orders necessary to allow him or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the children in accordance with this Order and pursuant to the Central Authority’s obligation under Regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986.
All other applications be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disability Services & Carlyle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8230 of 2015
| Director-General, Department of Communities, Child Safety and Disability Services |
Applicant
And
| Ms Carlyle |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 28 August 2015, the Director-General, Department of Communities, Child Safety and Disability Services, in his capacity as the State Central Authority pursuant to the Family Law Child Abduction Convention Regulations 1986 filed an application seeking orders for the return of the children B (born in 2012) currently three years and 10 months of age and C (born in 2013) currently two years and nine months of age, to New Zealand.
The requesting Applicant under the convention is the children’s father, Mr Killen, a New Zealand national. The Respondent to the application is Ms Carlyle, the children’s mother and also a New Zealand national. The children’s parents were in a relationship from about 2009 until about mid 2012.
After their separation, litigation was commenced in New Zealand in relation to the children’s parenting arrangements. It appears from the material before the Court that interim Orders made on 21 May 2014 provided for the mother to have day-to-day care of the children and for the father to see or spend time with them on a supervised basis. This Order appears to have been varied on 24 June 2014 to provide that the supervisor of such time would be the children’s maternal grandfather.
The evidence supports a conclusion that, despite the terms of the existing Order, the parties reached an agreement for the children to spend regular unsupervised time with their father: this occurred for a period of time until early October 2014.
Following events which occurred on 1 and 2 October 2014, the father was charged with a number of offences against the mother. These included an offence of man assaults woman, two counts of breaches or contraventions of a domestic violence order in relation to the events on 1 and 2 October 2014, and, it would appear, a charge of threatening behaviour - although it is a little unclear to me as to whether this related to the mother and/or to another person or whether there were, in fact, two charges: one involving threatening behaviour to the mother and another involving threatening behaviour to some other person.
It is unnecessary for the purpose of this application that this confusion is resolved. It appears the father was remanded in custody for a period after being charged and was then released on bail.
Toward the end of 2014, the mother made arrangements for the children to travel with her to Australia, ostensibly for a holiday. When the father learned of the mother’s plans, he applied (unsuccessfully) to the New Zealand Family Court seeking an order that the mother be restrained from removing the children from New Zealand.
He did so, it appears, on the basis of his contention that she would not return with them to New Zealand. The application was heard by the Court in New Zealand and part of the mother’s evidence, at that time, as proffered to that Court was that she intended that the children travel with her, for the purpose of a holiday and that return tickets had been purchased for them to return to New Zealand on 19 December 2014. Judge Bashir accepted the evidence and determined that restraining the mother from removing the children from New Zealand was unnecessary.
His Honour recorded, however, that the children’s usual place of residence was New Zealand. Such conclusion is completely unsurprising, given that they were born in New Zealand and, until that time, had lived there.
The mother and children left New Zealand for Australia on 5 December 2014. The return tickets on which they travelled to this country would have seen them return to that country on 19 December 2014.
That did not occur.
The children remain in Australia. They have not spent time or seen their father since they left New Zealand on 5 December 2014.
The relevant chronology in relation to the commencement of the proceedings I am asked to determine today can be found in the helpful chronology contained within the outline of submissions provided by Counsel for the State Central Authority.
The application proceeds on the basis of the contention that the mother caused the children to be wrongfully retained in Australia on 19 December 2014.
I accept on the evidence before me that it could not be concluded that the father had consented to the children remaining in Australia after that date.
In fact, as I have already outlined, he did not consent to them travelling to this country, even for the purpose of a holiday - that matter having come before the Court in New Zealand in December of last year.
The Regulations under which this application must be determined are made pursuant to s 111B of the Family Law Act which provides that the Regulations may make provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction.
The Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting states. Australia and New Zealand are contracting states to the Convention. The purpose of the Regulations is to give effect to the obligations imposed by s 111B of the Act. The Regulations are to be construed having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention and as recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a children’s care, welfare and development is ordinarily their country of habitual residence, and as recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of Convention countries.
The Court may, pursuant to Regulations 14 and 15 of the Regulations, make return orders or any other orders it considers appropriate to give effect to the obligations imposed on the Australian Government by the Convention.
As the application was filed within one year after the children’s retention in Australia, if I am satisfied by the Applicant (who bears the onus) that their retention here is, under subregulation 16(1A), wrongful, then, subject to subregulation (3), I must make an order for the return of the children to New Zealand.
I am satisfied that the State Central Authority has established the matters prescribed by subregulation 16(1A) that:
a)the children are younger than 16 years; and
b)the children habitually resided in New Zealand immediately prior to their retention in Australia on 19 December 2014; and
c)the father has rights of guardianship in relation to the children and had those immediately prior to their retention in Australia; and
d)the children’s retention in Australia is in breach of the father’s rights of custody and guardianship; and
e)at the time of the children’s retention in Australia, the father was actually exercising his rights of custody, or would have, had the children not been retained in this country.
Thus, I conclude that the State Central Authority has satisfied the Court that the children’s retention in Australia after 19 December 2014 was wrongful.
The Respondent opposes the making of orders which would see the children return to New Zealand on the basis that there is a grave risk that their return to that country would expose them to physical or psychological harm or otherwise place them in an intolerable situation. This exception is contained within Regulation 16(3)(b): it provides that a Court may refuse to make an order for return if, relevantly, such matters are established by the person seeking to rely upon that exception.
The authorities establish the following principles[1]:
a)the burden of proof falls on the party opposing the return – here, it falls upon Ms Carlyle; and
b)the exception must be given the meaning its words require so that the risks in question are those faced by the children and not by a parent; and
c)the exception requires Courts to make inquiry and predictions that will inevitably involve some consideration of the interests of the children; and
d)that, in determining whether the exception is made out, the Court is required to undertake some prediction about what may happen if the children are returned to New Zealand on the evidence before it.
[1]DP & Commonwealth Central Authority (2001) 206 CLR 401; Kilah & Director-General, Department of Community Services [2008] FLC 93-373; [2008] FamCAFC 81.
The Court must determine whether the return of the children to New Zealand would expose them to a risk which warrants the qualitative word “grave”. The Regulation refers to more than the risk of the inevitable disruption, uncertainty and anxiety accompanying an ordered return to the country of habitual residence when it speaks of a grave risk to children of exposure to physical or psychological harm on return.
The mother contends that the Court would be persuaded of the existence of the necessary matters on the basis that Mr Killen has been domestically violent toward her and, for that reason, to return the children to New Zealand would be to expose them to the risk of harm of exposure to physical or psychological harm consequent upon the potential exposure to such behaviours into the future.
It appears from the material before the Court that, in about July 2012, a New Zealand Court granted a protection order in the mother’s favour. It appears also that the parties’ relationship in some way continued, perhaps, after that to some extent, although that is a little unclear.
The father’s material is that he had indicated that the charge of male assaults female was withdrawn by police but I have heard submissions from Ms Carlyle that at least two potential charges arising out of the October 2014 event may be enlivened, as it were, upon her return to New Zealand.
The reality confronting this Court it appears to me is that, despite the matters contained in Ms Carlyle’s material in relation to the father’s behaviours, some unsupervised time between him and the children took place before the October 2014 event.
The matter is due to be mentioned, it would seem, in the New Zealand Courts in December 2014. It appears from the submissions made by Ms Carlyle that she has engaged legal representatives in New Zealand - I am, therefore, confident in concluding that she will have an opportunity to move the Court in New Zealand about the form and manner and content of orders she advances will be in the children’s best interests if they return to New Zealand.
It is also clear from Ms Carlyle’s submissions that she has engaged with a women’s refuge counsellor who is in the process of creating, for want of a better word, a safety plan which can be implemented should an order for return be made - appropriate arrangements, it would seem, will be able to be put into place with the assistance of that counsellor.
It would also appear to me, albeit that it may be something of a speculation, that it might be possible for Ms Carlyle to appear (if required) before to any departure from Australia by video link or telephone at any proceedings in New Zealand, although, given her engagement of legal representatives in that country this may be unnecessary.
I am not persuaded on the evidence before me that Ms Carlyle has discharged the onus of establishing that there is a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm in the relevant sense, or otherwise place them in an intolerable situation.
I have taken into account in arriving at that determination the helpful submissions prepared by, and provided on behalf of, the Applicant.
If I am wrong in my determination that Ms Carlyle has failed to discharge the onus of establishing relevant matters particularised in Regulation 16(3), I am not persuaded in the exercise of the discretion[2] to refuse to order the return of the children to New Zealand.
[2]De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640 at 661; FLC 92-706 at 83,456; State Central Authority & DB [2002] FamCA 804, per Kay J; HZ & State Central Authority [2006] FLC 93-264; (2006) 35 Fam LR 489; [2006] FamCA 466; Harries & Harries (2011) 45 Fam LR 598; [2011] FamCAFC 113.
I reach this conclusion because I consider that:
a)New Zealand provides the more suitable forum for the determination of the children’s future care arrangements, given that until they travelled to Australia in the manner I have already summarised, they had lived all of their lives in New Zealand; and
b)given the similarities in the law as between New Zealand and Australia, whatever determination is arrived at for the children’s future parenting arrangements is that which will be in the children’s best interests; and
c)in one sense, the return of the children to New Zealand will return them to a parenting arrangement that had been implemented before the mother determined not to return them to New Zealand in mid-December 2014: that is, subject to order made by the Family Court of New Zealand, they will have the opportunity to spend supervised time with their father until that Court is next moved to further consider those parenting orders which are in the children’s best interests; and
d)the purpose and underlying philosophy of the Convention would, I consider, be significantly at risk of frustration if a return order were not made in circumstances such as these.
I have heard submissions in relation to the appropriate date by which it should be ordered that the children return to New Zealand. A perusal of the transcript of the exchange during the course of the hearing will illuminate the concerns I have expressed about a date that would have seen the children return in early January 2015. I am persuaded that it is appropriate and that the proper order for return is one which would see the children leave the Commonwealth of Australia on or before 19 December 2015 and arrive in New Zealand on or before 20 December 2015.
In arriving at this determination, I take into account the fact that the approximately five-week period between now and that date will enable Ms Carlyle to continue to provide instructions to the lawyers engaged in New Zealand and participate in the proceedings in that Court and also will enable the women’s refuge counsellor (with whom she has engaged) to make appropriate arrangements and bring together the safety plan she has spoken of as being prepared in anticipation of a return.
It will enable also any further appropriate arrangements to be made in relation to the children’s return to New Zealand, including the practical reality of enabling Ms Carlyle to finalise the living arrangements here and to make appropriate arrangements for the return of possessions and such things, given that she and the children have lived in this country since mid-December 2014.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 12 November 2015.
Associate:
Date: 12 November 2015
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