Director-General, Department of Communities, Child Safety and Disability Services and Delany (No 2)
[2015] FamCA 683
•19 August 2015
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & DELANY (NO 2) | [2015] FamCA 683 |
FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Final orders – Where the mother asserts that she will not return to the USA if a return order for the child is made – The mother’s grounds for refusal include lack of financial and emotional support in the USA and the need to support her two teenage daughters of previous relationships who will remain in Australia – Where the mother’s daughter from a previous relationship has made allegations of sexual abuse by the father subsequent to removal of the child from the USA and during the course of these proceedings – Whether separation from the mother and half-sisters would subject the child to psychological harm or otherwise place the child in an intolerable situation pursuant to reg 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Found that the mother lacks credibility and has means of support in the USA should she return – Finding that the mother has not demonstrated that her stated intention not to return to the USA is otherwise than the disingenuous adoption of a stance or strategy to achieve her purpose in resisting the order for the child’s return – Mother does not discharge her onus of proving that she will not return to the USA if a return order is made – Ordered that the child return to the USA.
| Evidence Act 1995 (Cth) Mental Health Act 2000 (Qld) |
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
C v C (minor: abduction: rights of custody abroad) [1989] 2 All ER 465
Civil Appeal 4391/96 Ro v. Ro 50 (5) PD 338 (Isr) [INCADAT cite: HC/E/IL 832];
| D v D [2001] Scot CS 103 Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011 Director-General, Department of Families & RSP (2003) FLC 93-152 Director-General, Department of Families & P [2003] FamCA 691 Director-General, Department of Families & Saffari [2002] FamCA 959 DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 Garning & Department of Communities, Child Safety and Disability Services (Discharge Application) [2012] FamCA 839 M.G. v R.F., 2002 R.J.Q. 2132 [INCADAT cite: HC/E/CA 762] (Quebec) Panazatou v Pantazatos 1997 WL 614519 (Conn.Super. ct. Sept. 24, 1997) Re C (Abduction) [1999] 2 Fam Law R 478 Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 Fam Law R 1145 Re L (Abduction: Pending Criminal Proceedings) [1999] 1 Fam Law R 433 Soysa v Commissioner, Western Australia. Police (2012) 46 Fam LR 648 Starr v Starr 1999 SLT 335 [INCADAT cite: HC/E/UKs 195] State Central Authority & Ustinov (No. 4) [2008] FamCA 987 State Central Authority & Ardito (unreported, FamCA, Joskie J, ML 1481/87, 29 October 1997) Townsend v Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842 |
| APPLICANT: | Director-General, Department of Communities, Child Safety and Disability Services |
| RESPONDENT: | Ms Delany |
| FILE NUMBER: | BRC | 3088 | of | 2015 |
| DATE DELIVERED: | 19 August 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 2 July 2015 and 3 August 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Green |
| SOLICITOR FOR THE APPLICANT: | Crown Law |
| COUNSEL FOR THE RESPONDENT: | Mr McGregor |
| SOLICITOR FOR THE RESPONDENT: | Damien Greer Lawyers |
Orders
IT IS ORDERED THAT:
The child, B (the child) born … 2010, be returned to the United States of America; and for the purposes of giving effect to this order:
(a) The said child leave the Commonwealth of Australia on or before Friday 11 September 2015;
(b) The said child arrive in the United States of America on or before Friday 11 September 2015;
(c)Pending the said child returning to America, the Respondent Mother, Ms Delany born … 1974, 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;
(d)Pending the said child returning to America, the Respondent Mother, Ms Delany born … 1974, continue to be restrained and an injunction is hereby issued, restraining her from changing the said child’s usual day to day residence from the premises where she and the said child are currently residing;
(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 Delany born … 1974, and the child, B born … 2010, on the Family Law Watchlist at all international departure points in Australia;
(f) The said child and the Respondent Mother 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 child to return to the United States of America from 12.00 am on the date nominated for the said travel in the letter;
(g) 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;
(h)To facilitate the return of the said child to the United States of America, Ms C, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release all current passports relating to the said child for the purposes of the said child’s return to the United States of America; and release the Respondent Mother’s passport to her or her nominee upon request.
The Respondent Mother, Ms Delany born … 1974, pay all necessary expenses associated with returning the said child to the United States of America, including the cost of airfares and departure taxes (if any) for the said child, B born … 2010, to travel from Brisbane International Airport to the United States of America.
The Applicant forthwith make an International Child Protection Notification by verbally reporting and sending to the Texas Child Protective Services, Department of Family and Protective Services:
(a) Details of the child’s return to the United States of America;
(b) The affidavit of Mr E;
(c) The report of Mr F;
(d) Contact details of the relevant family members; and
(e) The Reasons for Judgment and Court Order.
Liberty to apply be granted to the Applicant 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 said child, B born … 2010, to the United States of America 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 (Cth).
All other applications be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Delany 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 3088 of 2015
| Director-General, Department of Communities, Child Safety and Disability Services |
Applicant
And
| Ms Delany |
Respondent
REASONS FOR JUDGMENT
By Application in Form 2 filed on 13 April 2015 the Director-General, Department of Communities, Child Safety and Disability Services in his capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) applies for, inter alia, an order that the child B, born in 2010 and now aged five years (“the child”), be returned to the United States of America (“USA”).
The requesting applicant under the Regulations is the child’s father, Mr Delany, a USA national.
The child’s mother Ms Delany is the respondent to the application. The mother is an Australian national of Aboriginal ethnicity on her maternal side. Importantly, whilst the mother is an Australian she has rights of residency in the USA.
The mother has two other children from two previous relationships, namely G born in 1998 (now aged 17 years) and H born in 2002 (now aged 13 years). Both of those children remain in the mother’s primary care but neither are the subject of this application. Both of the biological fathers of those daughters are Australian and live here. H’s father Mr I provided an affidavit filed in the mother’s case.
On 22 October 2014 the child (with the mother’s daughters G and H) was removed by the mother from their then family home with the father in J Town, Texas in the USA to travel to K Town, Queensland where they have since resided. That occurred without the father’s knowledge or consent.
Sole ground of defence
At the commencement of the final hearing of this application on 2 July 2015 counsel for the mother confirmed that the sole ground relied upon or pursued by the mother to resist the making of a return order was the mother’s reliance upon reg 16(3)(b).[1]
[1] Transcript of Proceedings 2 July 2015 at page 5 line 20 to line 45.
That is, despite the mother’s filed affidavit material advancing other bases for resisting the making of a return order, counsel for the mother confirmed at the outset of the hearing that the mother was not pursuing any other defence and sought only to establish the ground in reg 16(3)(b); the mother did not otherwise contest the applicant’s evidence establishing the requirements for the making of a return order.
Regulation 16(3)(b) relevantly provides:
(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
…
(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; or
…
The mother maintained in her affidavit and oral evidence that she will not return to the USA even if an order is made for the child’s return.
The essence of the mother’s case is that in circumstances where the mother has always been the child’s primary carer; and the mother will not return to the USA if a return order is made; the child would be exposed to psychological harm and be placed in an intolerable situation if he was separated from the mother by his return to the USA. The mother also points to her daughters not returning to the USA and the consequent disruption of the child’s attachment to his half-siblings as part of this dynamic.
As subregulation 16(5) provides, if the mother discharges her onus of establishing the ground identified in reg 16(3)(b) a discretion is conferred upon the Court as to the making of a return order, the making of which would otherwise be mandatory.
Importantly, in contrast with the mother’s affidavit evidence, counsel for the mother also confirmed at the hearing that it was not contended by the mother that return of the child posed any physical risk to the child nor was the mother advancing any proposition to the effect that because of allegations of sexual abuse made by G, as will be discussed, that return posed a relevant risk to the child in light of the allegations of sexual abuse.[2]
[2] Transcript of Proceedings 2 July 2015 at pages 12 and 13; see also paragraph 3 of written submissions of respondent dated 10 July 2015.
The State Central Authority has established on evidence not ultimately contested by the mother each of the requisite matters for the making of a return order. Specifically:
a)The application for a return order was filed on 13 April 2015 and hence within one year of the child’s removal from the USA on 22 October 2014 (reg 16(1)(a) and (b)); and
b)The State Central Authority satisfies the Court that the child’s removal was wrongful under subregulation (1A) of reg 16 in that:
·The child was (and is) under the age of 16 years;
·The child habitually resided in the USA, a convention country, immediately before his removal on 22 October 2014;
·The father had rights of custody in relation to the child under the law of the USA immediately before the child’s removal;
·The child’s removal to Australia is in breach of the father’s rights of custody;
·At the time of the child’s removal the father was actually exercising his rights of custody.
Thus the issue for determination on this application is whether the mother discharges her onus of establishing the ground in reg 16(3)(b) and, if she does, how the discretion thus enlivened ought be exercised.
The State Central Authority contends that, whilst accepting that the mother’s affidavit and oral evidence is that she will not return to the USA:
·The Court would not be satisfied on the balance of probabilities that the mother will not return to the USA should a return order for the child be made; the mother’s credibility being highlighted as an issue; and
·The evidence does not establish that there is a grave risk that the return of the child to the USA, with or without his mother, will expose him to psychological harm; alternatively, that the mother does not establish that any psychological harm reaches the level of seriousness to engage reg 16(3)(b); and the mother does not demonstrate that the return of the child, with or without his mother, would place him in an intolerable situation.
Relevant chronology
The parents “met” over an internet dating site in August 2008 when the mother was living in Australia and the father was living in the USA.
In November 2008 the father travelled to Australia and the parents then physically met for the first time. Some days later they married at L Town in Queensland. Some eight days later the father returned to the USA and the mother remained in Australia. From January 2009 to the end of July 2009 the father served with USA military forces overseas.
The mother travelled to the USA to stay with the father between August and October 2009 and then returned to Australia.
In February 2010 the mother, with her daughters, relocated from Australia to City M, State N, USA to live with the father. As already noted, the child was born in 2010.
Between about September 2010 and until the father ended his military service in May 2011 the mother, her daughters and the child lived with the father’s mother Ms O and her partner Ms P, in a town outside City Q, Texas, USA.
Between July 2011 and September 2011, with the father’s agreement, the mother and her daughters and the child holidayed in Australia.
In about August 2012 the father commenced his current employment as a USA government employee as a technician at the Veterans Affairs Hospital in City Q, Texas.
In about May 2013 the father purchased land in J Town, outside City Q, Texas and from about June 2013 the family (constituted by the father, the mother, G, H and the child) lived in a shed on that property.
Between May 2014 and 9 October 2014 the mother, with the father’s agreement, holidayed in Australia with her daughters and the child.
Having returned to the USA on 9 October 2014 with her daughters and the child, the mother on 22 October 2014, without the father’s knowledge or consent removed the child by leaving the USA to come to Australia with her daughters.
There is evidence, which will be further discussed in the context of assessing the mother’s expressed fears about the father, that following 22 October 2014 there was some consideration, by both parents, of the prospect of the father relocating from the USA to Australia to live with the mother, her daughters and the child in Australia. There is evidence that the mother was promoting this.
That contemplation and promotion apparently ended (if not earlier) by 3 December 2014 when the mother forwarded an email of that date to the father in terms including:
[Mr Delany], due to your infidelity in our marriage on 30 November 2014, I will now withdraw from applying as a spouse for your permanent residency into Australia...
A significant dynamic in this case is that subsequent to:
·The filing of the Form 2 Application on 13 April 2015;
·The first return date of the application on 24 April 2015 when interim orders were made (including for the filing of material and the listing of the application for final hearing);
·The mother filing, on 14 May 2015, her initial Form 2A Answer and Cross Application;
the mother learned for the first time from her daughter G, on 15 May 2015, that G was alleging that the father “… had been molesting her since late November 2013 or early December 2013 while we were living in the shed, from when she was 15 years old.”[3]
[3] Paragraph 20 of mother’s affidavit filed on 27 May 2015.
This revelation led to further interim orders being sought and made on
28 May 2015 including orders, inter alia, extending times previously ordered for the mother to file material; and the appointment of a single expert psychologist Mr F to provide evidence to the Court on matters identified in the order; and relisting the final hearing date.
Central aspects or evidence associated with this revelation, amongst others, included:
a)Evidence that G (now 17 years of age) will not return to the USA irrespective of the making of a return order for the child the child;
b)Evidence of Mr I, the biological father of H, that he will not permit H to return to the USA;
c)An expansion of the mother’s reasons for her stated intention to not return to the USA (even if a return order for the child is made) to include the asserted need to provide support to G, given her alleged sexual abuse;
d)Evidence of the single expert psychologist Mr F addressing, inter alia, the child’s attachments to each of the mother and to each of his siblings.
Cross-examination at the hearing
Given in particular the ground of defence raised by the mother and the nature of evidence relevant to that ground; and the involvement of a single expert psychologist, Mr F, to undertake an assessment and report relevant to that ground; the hearing of this application was not confined to a hearing “on the papers” and each party was permitted to cross-examine deponents in the other party’s case.
In relation to the cross-examination of the father by counsel for the mother about the allegations of sexual abuse made by G; conscious that the State Central Authority was not acting as the father’s legal advisor or legal representative (and the father was not legally represented in the proceedings), the father was granted a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) with respect to his evidence in cross-examination on that topic.
It ought be noted that the father’s cross-examination was undertaken via a telephone link (the father was not present for the hearing) and there were from time to time, as the transcript reflects, some difficulties in communication as between the father and the Court during the course of the father’s evidence under cross-examination.
G’s allegations
I reiterate that counsel for the mother confirmed on her behalf that the mother was not advancing the case, with reference to G’s allegations, that the father posed a risk of sexual abuse of the child relevant to reg 16(3)(b). This was so even though this topic was raised in the single expert’s (Mr F) report,[4] and seemingly by the mother in her affidavit.[5]
[4] Transcript of Proceedings 2 July 2015 at page 13; paragraph 8.21 of Mr F’s report.
[5] Paragraph 235 of mother’s affidavit filed 5 June 2015.
The relevance of G’s allegations in the circumstances of this case thus goes to the necessary prediction to be made if a return order is made[6] and whether or not the mother is likely to return to the USA if a return order is made.
[6] DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 (“DP” and “JLM”).
The mother’s case is that G will not return to the USA and the mother’s need to support G in the context of her having recently made the disclosures is one of the reasons the mother provides for her inability or unwillingness to return herself to the USA.
Associated with this is the mother’s contention that relevant to assessing the child’s position is that the child has an attachment not only to the mother but also to G, and that G’s non-return in association with the mother’s non-return to the USA, impacts upon the risk to the child of psychological harm.
Moreover, Mr I, the father of H, provided an affidavit filed in the mother’s case and he was cross-examined by counsel for the State Central Authority. I accept Mr I’s evidence that he will not permit H’s return to the USA.
It is in this context that G’s allegations fall for consideration.
Mr E, a qualified and practicing Mental Health Nurse provided an affidavit in the mother’s case to which affidavit is annexed Mr E’s curriculum vitae. Amongst other things it discloses that Mr E is an authorised mental health practitioner within Queensland Health appointed under the Mental Health Act 2000 (Qld).[7] Mr E was not required by the State Central Authority for cross-examination.
[7] See s 499 of the Mental Health Act 2000 (Qld).
To the extent that Mr E expresses opinions in his affidavit and attached report, I am satisfied that Mr E has specialised knowledge based on his training, study or experience and that his opinions are wholly or substantially based on that knowledge within the meaning of s 79 of the Evidence Act 1995 (Cth).
Subsequent to coming to Australia on 22 October 2014, G was placed on a mental health care plan by her treating general medical practitioner, Dr R, on 6 January 2015 and was on that same date referred to Mr E to address “… concerns related to anxiety and trauma related stress”. Mr E undertook individual therapy thereafter “based on interpersonal psychotherapy”.[8]
[8] Affidavit and report of Mr E.
In the sixth of his therapy sessions, which took place on 10 March 2015, Mr E received disclosures from G deposed to by him at paragraph 25 of his affidavit as follows:
25. During this session (our sixth session), [G] told me that [Mr Delany] had sexually abused her. [G] told me that:
a. The sexual abuse occurred in the family home (the remote Texas property).
b. The sexual abuse stated [sic] when she was 15 years old and took place between the end of December 2013 to May 2014.
c.The abuse started with [Mr Delany] touching her while she was pretending to be asleep.
d. The abuse escalated to sexual acts. [G] spoke about sexual acts including oral and penetration sex acts.
e. The abuse took place when her mother was out of the home.
f.[Mr Delany] would ask her to send him naked pictures of herself when she was staying at her friends’ houses and he would ask her to delete them from her phone afterwards.
g.[Mr Delany] was close friends with the family she would stay with when [Mr Delany] asked for pictures so she felt she could not tell them. She also said she felt she could not tell her mother.
Moreover at paragraph 27 Mr E deposes:
27. [G] told me that she feels guilty and unsafe speaking about [Mr Delany’s] abuse of her. [G] told me that she has been unable to tell her mother until very recently; when she told me she felt that this matter needed to be included in my report, which she understood would be disclosed to her mother and others.
Mr E expresses the opinion, from his perspective, that G suffers post-traumatic stress disorder “… from childhood trauma and sexual abuse, anxiety and moderate depression”.[9]
[9] Paragraph 11 of Mr E’s affidavit.
Exhibit 2 in the proceedings are records produced on subpoena from the K Town Base Hospital referable to G’s attendance/admission to that hospital overnight on 27 June 2015. At that time the mother and the child were attending Brisbane for the purpose of the mother’s preparation in these proceedings and G was in the care of the mother’s sister Tracey and her maternal grandmother Ms T. The relevant record or summary of that attendance/admission is as follows:
16 year old unemployed Indigenous female presents with suicidal intent, but no plans or knowledge of how she would do this. Punching walls with frustration today – Aunty who was in the house advised her to come in. No drugs/ ETOH surrounding the event. Recent self harm to left wrist last night.
Pt reports a complex family dynamic. She was born in Australia, went to live with her step father in Texas aged 12 to 16. During this period her stepfather sexually assaulted her. She has been depressed since this episode. She attempted to hang herself shortly after this – rope. Not successful. Didn’t attend hospital for it as it didn’t work.
Pt reports that she was at her Aunty’s, thoughts of suicide – unsure how she would do this, so was punching walls, couldn’t stop. She sees [Mr E] at [S Org] in [K Town]. This is her only contact ever with mental health services. Started seeing him in January – sees him every 2 weeks, most recent appointment was today. Reports she told him everything.
Reports low mood, frustration, angry, sleep disrupted – flashbacks for a few months ‘I think of him killing me, me killing him, him killing my family’ reports low self esteem, feelings of guilt, anhedonia present when she thinks about the sexual assault, but apart from this, reports things are otherwise well when she doesn’t think about it.
Within the relevant hospital notes are records that the lacerations to G’s left wrist were described as “superficial”. G reported to hospital staff that her grandmother (the maternal grandmother) is a “good support” and the records reflect that hospital staff were satisfied that the maternal grandmother (Ms T) and the maternal aunty were assessed as providing good support for G.
G was assessed, according to the hospital records, with depression and complex post-traumatic stress disorder, obviously based on the history she provided.
Exhibit 2 also reflects that a home visit conducted by clinicians the following day on 28 June 2015 resulted in the assessment that G was engaged with and sought the company of her grandmother (the maternal grandmother) and the assessment was made of strong bonds and affection between them.
On Mr E’s evidence, as referred to, it was only on the sixth of his therapy sessions that G made the disclosures to him. On the mother’s evidence, which I accept on this point, it was only when G realised that the mother was intent upon obtaining, for these proceedings, the records of Mr E via subpoena concerning G’s therapy (which G initially sought to oppose because she did not want the mother to know about the allegations) that G made disclosures directly to the mother.
It thus would seem improbable that G only made the disclosures that she made to Mr E motivated by these proceedings. That is, as is the effect of Mr F’s assessment, it would seem unlikely that G was “coached” by the mother to make false allegations.[10] Moreover, G’s reluctance to have her therapist’s notes revealed to the mother does not appear consistent with G’s allegations being motivated only by G’s intense desire not to return to the USA or not to see the child returned to the USA.
[10] Paragraph 8.40 of Mr F’s report.
In cross-examination the father was adamant in his denials of any untoward conduct towards G. He denied the specifics of her allegations put to him in cross-examination, save that he made admissions concerning he and G having, at times and from time to time, slept in the same bed within the shed on the J Town property from when G was about 15 years of age. To similar effect were the father’s admissions to Mr F in his interview as to he and G sleeping in the same bed.
It is beyond the scope of this proceeding and the limited available evidence (including only hearsay evidence, sourced not tested to G) for this Court to make any firm findings as to whether or not G has been the victim of sexual abuse perpetrated by the father.
The findings that are made relevant to this application are:
a)G’s allegations cannot be dismissed as inherently implausible or obviously fabricated; rather, the allegations appear to be in all the circumstances, including the medical assessments of G, at the least plausible; and
b)On the available evidence I accept Mr F’s assessment that it is unlikely that the mother “coached” G to make false allegations. Moreover, it appears more probable than not that the mother reasonably believes G’s allegations to be true, that is, the mother’s belief cannot legitimately be characterised as irrational or baseless;
c)On the available evidence it appears unlikely that G advanced the allegations only motivated by these proceedings and as an illegitimate method of hindering an outcome that a return order is made, having regard in particular to the sequence of events of the disclosures coming to light; and
d)
On the available evidence if the allegations and G’s history are true, it is more likely than not that G genuinely suffers from
post-traumatic stress disorder and depression requiring ongoing medical/therapeutic assistance. The extent to which these conditions are the consequence of G being in fact the victim of sexual abuse perpetrated by the father cannot be determined on this evidence.
The mother refers in her affidavit evidence to involvement of the Queensland Police Service as a result of G’s allegations being made. However, as Exhibit 2 reflects, it does not appear that as at the time of the hearing G had formally participated in a detailed interview by, or statement to, police. Rather, it appeared that this was under consideration. Moreover, the evidence did not establish that any formal notification or complaint had yet been made to police or other authorities in the USA as at the time of the hearing.
The draft orders submitted by the State Central Authority[11] included an order in the following terms:
The Applicant forthwith make an International Child Protection Notification by verbally reporting and sending to the Texas Child Protective Services, Department of Family and Protective Services:
a) Details of the child’s return to the United States of America,
b) the Affidavit of Mr E,
c) the Report of Mr F,
d) contact details of the relevant family members, and
e) the Reasons for Judgement [sic] and Court Order.
[11] Commencing at page 50 of the applicant’s case summary document filed 1 July 2015.
Obviously, the making of such an order would likely assist in having the authorities in the USA engage in any necessary investigation or steps to be taken in the light of G’s allegations.
Mother’s stated position and assessment of her evidence and credibility
As already noted, the mother bears the onus of proof on the sole issue in dispute on this application. Given that it is her case that the exception is established because of her own refusal to return to the USA, the Court must legitimately be concerned about whether the mother is disingenuous in adopting this stance. Her evidence and her credibility thus falls for particular scrutiny.[12]
[12] See, for example, Warnick J in Director-General, Department of Families v P [2003] FamCA 691; a decision upheld in Director-General, Department of Families and RSP (2003) FLC 93-152.
Acknowledging, correctly with respect, that any ordered return of the child would be a return to the country of the USA, and not a return to the father’s home, counsel for the mother confirmed at the hearing that the father’s accommodation did not inform the question of the child being placed in an intolerable situation by a return order.[13] Much of the mother’s evidence directed to criticisms of the father’s accommodation in J Town, USA, to the effect that this accommodation is sub-standard was thus rendered somewhat otiose.
[13] Transcript of Proceedings 2 July 2015 at page 12 lines 20 to 35.
Likewise that is so with respect to much of the mother’s evidence directed to the difficulties and conflict in the parental relationship; her criticisms of the father’s lifestyle (as she portrays it) and, for example, her criticisms of what may conveniently be described as the father’s parenting of her daughters.
In this case the mother advances reasons for her stated intention not to return to the USA if a return order is made, when it is the mother’s non-return that is the sole causative link to her contention that return of the child would thus expose him to psychological harm and place him in an intolerable situation.
Each of those reasons will be discussed together with other issues relevant to assessing the mother’s credibility.
Mother’s assertion that she could not cope with return
The mother advanced in her affidavit evidence the assertion that “… I will not cope emotionally, psychologically or physically if I had to return to live in the USA with the child.”[14]
[14] Paragraph 103 of mother’s affidavit filed 27 May 2015 and paragraph 230 of mother’s affidavit filed 5 June 2015.
No cogent expert medical opinion to corroborate the assertion that she would not cope emotionally or psychologically was adduced in evidence in the mother’s case. Beyond annexing a copy of her psychologist’s file containing notes of issues raised by the mother and her treatment,[15] no medical evidence was adduced in the mother’s case. Whilst those records reflect the mother having anxiety and depression, there is no expert medical opinion directed specifically to the central question of the mother’s return to the USA suggesting that the mother is medically unfit to return to the USA; or to otherwise corroborate the mother’s assertion that she would “not cope” with return.
[15] Annexure “KND-1” to mother’s affidavit filed 27 May 2015.
Notably, the mother is recorded in the psychologist’s note of the first session on 23 December 2014 as reporting a threat made by the father two weeks previously that “he’s going to bring guns to Australia and kill the child.” The mother does not swear to that threat in either of her affidavits and, as already noted, her counsel confirmed at the hearing that it was not part of the mother’s case being pursued that the child would be exposed to any risk of physical harm if a return order was made.
The mother’s concession, by her counsel, at the hearing that the mother was not advancing a case of risk of physical harm to the child, but confining the risk to psychological harm to the child if separated from the mother; stands in contrast to many of the mother’s assertions in her affidavit evidence. For example, at paragraph 233 of her affidavit filed 5 June 2015 the mother, comparing her position to that of the father’s former wife Ms U, swears this:
233.…and the way I saw [Mr Delany] go relentlessly after [Ms U] for years, I am afraid that [Mr Delany] will kill me if I come back to the USA as he will perceive that what I did was worse, or kill [the child] to make me suffer…
(emphasis added)
Such bare assertions of such a grave kind of harm to the child did not appear to be burdened by much or any particularity as to their foundation. That may explain why they were not ultimately advanced or pursued on the hearing of the application, but it is nevertheless significant that such serious allegations were advanced, but not ultimately pursued. In my judgment there is no sufficient evidentiary support within the mother’s case to characterise such assertions as any more than bare assertions unsupported by any cogent evidentiary foundation.
Similarly, that is so with respect to the mother’s assertion that on the morning of 22 October 2014 (the day the mother removed the child from the USA) that “… I was convinced that [Mr Delany] was going to kill me, with the children there.”[16]
[16] Paragraph 177 of mother’s affidavit filed 5 June 2015.
When cross-examined about 22 October 2014 the mother initially blankly denied having any “feel” that the father “… might want to kill you [the mother].”[17]
[17] Transcript of Proceedings 2 July 2015 at page 48 lines 35 to 45 and at page 49 line 20.
Taken then to that to which she had sworn in paragraph 177 and following of her affidavit, the mother changed her answer and said she did have that fear. However, it seemed that what had been expressed as a firmly held conviction seemed to become transitory, “the thought ran through my head.” The mother’s oral evidence in cross-examination on this topic was utterly unconvincing.
Moreover the mother’s assertions about her fears of the father generally do not rest conformably with the evidence concerning the communications between them subsequent to 22 October 2014. At paragraphs 219 to 228 of her affidavit filed 5 June 2015 under the heading “Consent and/or Acquiescence by [Mr Delany]” (it seems those issues were proposed to be raised when that affidavit was prepared) the mother sets out what she advances as plans for the father to come to Australia. Likewise there are some communications in that period included within the applicant’s material. By the mother’s account (paragraphs 226 to 228) that plan was supported by the mother and ended only because the mother came to believe, in late November/early December, that the father had been “unfaithful” to her and “due to his infidelity”.
In undertaking his assessment Mr F sought to explore with the mother her stated belief about the father killing her. However, his report records (at paragraph 3.96):
3.96 On questioning, the issue of how long she has held a firm belief that [Mr Delany] might kill her, appeared somewhat obscure.
In my judgment, it is not only the length of time the asserted belief has been held, but the bases for holding such an expressed belief which is, at best for the mother, obscure to say the least.
In my judgment, the obvious disconnect between these two aspects (expressed fears yet promoting the father’s relocation to Australia) found significant doubt about the reliability of the mother’s evidence more generally.
In this context it is important to note that in neither of her affidavits does the mother depose to any event involving the father’s mother Ms O as informing her expressed fear of the father, particularly as regards weapons.
At paragraphs 49 to 53 of her affidavit filed in the mother’s case, Ms O deposes to events which occurred on 22 October 2014, the day of the mother’s departure from the USA. At paragraph 53 Ms O records the mother expressing to her on that day the fear that the father was going to kill her. Ms O deposes:
53.When I saw [Ms Delany] I observed that both she and the children appeared upset and exhausted. [Ms Delany] told me that she felt that [Mr Delany] was going to kill her. [Ms Delany] said that [Mr Delany] would never let her get away with leaving with [the child]. When explaining to me why she felt [Mr Delany] was capable of this, [Ms Delany] referred to an occasion when she saw [Mr Delany] draw his weapon (pistol) on me in early June of 2011. I recall this occasion.
(emphasis added)
Thereafter, at paragraphs 54 to 57 Ms O deposes to her version of the 2011 event she says the mother was referring to in the discussion on 22 October 2014, culminating with the deposition in paragraph 57:
57.I remember that I, the girls and [Ms Delany] were all terrified by this incident.
The father was cross-examined on this topic and provided what I consider to be a credible explanation for drawing a weapon in circumstances where he thought an intruder (not someone he had yet identified as his own mother) was attempting to enter the premises in darkness. The father referred to both he and the mother sharing that fear or belief at the time until it was realised that the person concerned was in fact Ms O. Whilst Ms O was not required for cross-examination by the State Central Authority, the father’s evidence on this topic under cross-examination provides a credibly different perspective.
That aside, the important point is that nowhere in her 31 page affidavit comprising 282 paragraphs filed on 5 June 2015 does the mother say that any fears she held on 22 October 2014, or any fear that the father might or would kill her if she returned to the USA, is informed by this event. That is so despite numerous references in the mother’s affidavit to the father’s weapons (for example, paragraphs 70, 81(f), 126, 177, and 224(d)) but more particularly is absent from her specifically detailing her reasons for not returning to the USA and specifically addressing her asserted fear of the father.
It bears emphasis that if the mother is to be believed she genuinely feared the father would kill her on 22 October 2014; she fled the USA with the child and her daughters on that date without the father’s knowledge or consent (an act she knew would upset the father as she acknowledged in cross-examination); yet thereafter the mother pursued and supported the continuation of the marriage and the father’s relocation to Australia. Her case is internally inconsistent in a fundamental way.
This is against the important contextual background that the mother acknowledges in her evidence that the father has never been physically violent to her at any time throughout their relationship.
I do not accept the veracity of the mother’s assertions concerning her fears of the father as to her personal safety if she were to return to the USA. Remembering that it is not envisaged that return would be to the father’s residence or even necessarily to J Town, the mother’s assertions imply a belief by her that police and other protective mechanisms or agencies available in the USA would be incapable of providing her with adequate protection. I do not accept that the mother genuinely holds to the fears she expresses.
Lack of resources
The mother asserted in paragraph 238 of her affidavit:[18]
238. I know very few people in the USA and I have no work history because [Mr Delany] isolated me from the world. I would have no resources to care for myself, let alone [the child].
[18] Mother’s affidavit filed 5 June 2015.
The contention that the father “isolated me from the world” is seemingly at odds with the mother’s acknowledgement that with the father’s agreement she and the children holidayed in Australia for some three months in 2011 and again for some five months (between May and 9 October 2014) immediately preceding the removal on 22 October 2014. The unchallenged evidence of Ms V is contrary to the mother being socially isolated in the USA.[19]
[19] Affidavit filed 1 July 2015 – particularly paragraphs 7 and 8.
The circumstances in which the child’s removal occurred on 22 October 2014 also appear inconsistent with the mother’s case about the level of control she asserts the father exerted and her case concerning her social isolation imposed, as she would have it, by the father.
On the father’s evidence, unchallenged in this respect, there were two vehicles available at the J Town property and the father was absent on week days attending to his employment at the Veterans Affairs Hospital in City Q on a
full-time basis. His evidence and that of each of Ms V and Ms W Delany in his case is that the mother would socialise, including by attending casinos with her friends.
In this context, in outlining the living conditions in the shed at considerable length (including by the annexure of photographs) the mother failed to mention the electronic devices available in the shed (a DVD player, television and computer with internet access) and in particular, omitted reference that there was an internet connection available.
It is also to be noted that the mother admitted in cross-examination that the shed was always understood to be only a temporary measure whilst a home was being constructed on the J Town land.[20] I also note in passing that the father explained in his evidence what is meant by the term to “live off the grid”. That is, not being connected to state supplied electricity. The mother’s dramatic representations of the father divorcing himself from normal civilisation did not seem to take into account that the father was at all material times working in a full-time government job attending at the hospital five days a week in City Q. The mother’s evidence in these various respects was unbelievable.
[20] Transcript of Proceedings at page 68 lines 1 to 15.
On the father’s unchallenged evidence, after an argument or disagreement on the morning of Wednesday 22 October 2014, the mother announced to him that she was taking the children to the home of the child’s paternal grandmother, Ms O, so that the mother “could get her head together.” The father then agreed, saying that was a good idea. The mother told the father she would return late the following day. I understand the respective homes are separated by a travel time by car of about an hour or more.
In a telephone call on the Wednesday afternoon (22 October 2014) the father was told by the mother that she and the children were out shopping and they would be out late that evening attending a barbecue at a place without cell telephone reception. In fact, the mother and children departed the USA but the point here in context is that all of this evidence is at odds with the mother’s description of the social isolation and exertion of control she suggests was imposed by the father.
The mother’s contention that she would have no resources to care for herself or the child in the USA did not withstand scrutiny under cross-examination. Leaving aside the mother’s admission that she holds a Green Card permitting her to work in the USA, the mother admitted under cross-examination that:[21]
a)The child’s paternal grandmother Ms O and her partner Ms P had fully funded the mother’s and the children’s return from the USA to Australia on 22 October 2014;
b)Ms O and Ms P had funded the mother’s legal fees in these proceedings (including their engagement of a USA attorney Ms X to provide evidence in the mother’s case);
c)The mother believed their financial support of her had exceeded $50,000.00 in amount and was perhaps more than $100,000.00;
d)The mother was “confident” that if she and the child returned to the USA they would be accommodated in the home of Ms O and Ms P; and that the mother would be financially supported by Ms O and Ms P until she was able to find employment.
[21] Transcript of Proceedings 2 July 2015 at pages 59 to 61.
In the course of the mother’s cross-examination by counsel for the State Central Authority there were these relevant exchanges:[22]
[22] All quoted Transcripts of Proceedings from Auscript contain errors as in original.
MR GREEN: Now, [Ms P] and [Ms O] paid for the airline tickets for you and the children to travel from [City Q] to Australia on 22 October 2014?---
[MS DELANY]: Yes. They did.
…
MR GREEN:Okay. So, effectively, your entire trip to Australia was funded by [Ms P] and [Ms O]. Would that be fair to say? On 22 October 2014?---
[MS DELANY]: Yes.
MR GREEN: Okay. And they’ve provided financial assistance to you since then?---
[MS DELANY]: Yes. They have.
MR GREEN:Are they paying for your legal bills in these proceedings?---
[MS DELANY]: Yes. They are.
MR GREEN:Okay. I’m not asking for a specific figure, but that would run into tens of thousands of dollars, wouldn’t it?---
[MS DELANY]: Yes. I would say so.
MR GREEN: They’ve been emotionally supportive for you?---
[MS DELANY]: Yes.
MR GREEN:They’ve always been there for you in terms of this whole dispute with [Mr Delany]?---
[MS DELANY]: Yes.
MR GREEN:So it would be fair to say if you – and I know your earlier testimony, but if you decided to return to the United States with [the child], you would be confident that [Ms P] and [Ms O] would take you in, and [the child]?---
[MS DELANY]: Yes.
MR GREEN: Very confident?---
[MS DELANY]: Yes.
MR GREEN: And they would support you - - -?---
[MS DELANY]: Yes. They would.
MR GREEN: - - - financially until you got a job?---
[MS DELANY]: Yes.
MR GREEN: Because you can work over there, can’t you?---
[MS DELANY]: Yes. I can.
MR GREEN: You have a green card?---
[MS DELANY]: Yes. I do.
MR GREEN:Didn’t mention that in your affidavit either, did you? Either affidavit?---
[MS DELANY]: No. I didn’t.
MR GREEN: You didn’t mention it, no?---
[MS DELANY]: No.
As to emotional support the mother’s medical records in combination with her cross-examination[23] reveal that as at 30 December 2014 the mother was “really looking forward to” Ms P visiting her in Australia commencing on 31 December 2014. Ms P visited for a period of about four weeks and it is plain on the mother’s evidence that she derives significant emotional support from Ms P. In other words, not only are Ms O and Ms P a significant financial source of support to the mother but also, as regards Ms P whom the mother described as her “rock”, a significant source of emotional support.
[23] Transcript of Proceedings 2 July 2015 at pages 55 to 58.
In light of this evidence the mother’s portrayal of her financial circumstances in paragraphs 275 to 279 of her affidavit filed 5 June 2015, which makes no mention of the ongoing support of the paternal grandmother and Ms P, is not only disingenuous but is misleading.
As earlier noted, the mother, her daughters and the child lived with Ms O and Ms P in the USA between September 2010 and May 2011 whilst the father was undertaking his military service in Iraq.
In this context it is to be noted that the mother deposes that in the event that a return order is made for the child to return to the USA, she would propose “in the alternative as a very last resort” that the Court makes orders placing him in the care of Ms O and Ms P “until I can successfully seek Orders in the USA to relocate permanently to Australia.”[24] That proposal illustrates the kind of level of ongoing support the mother expects to receive and I infer that such an expectation reveals the extent to which the mother knows from Ms O and Ms P she can continue to rely upon them.
[24] Paragraph 240 of mother’s affidavit filed 5 June 2015.
To similar effect is paragraphs (b) and (e) at pages 7 and 8 of the mother’s Form 2A Amended Answer and Cross Application as follows:
IN THE EVENT THE ORDER FOR RETURN IS MADE
…
(b)That the State Central Authority and the Mother make such arrangements as are necessary for the child to be returned to the United States of America in the company of the paternal grandmother.
…
(e)That upon [the child’s] entry into the United States of America, [the child] remain in the sole care, custody and control of the paternal grandmother, pending a Court of competent jurisdiction in the United States of America ordering otherwise.
Put simply, the mother’s deposition that she would not have the resources to provide for herself and the child in the USA cannot be accepted. The mother relied upon the affidavits of Ms O and Ms P filed in her case. Neither of those witnesses advanced any positive evidence contrary to the mother’s statements of belief or confidence as referred to in circumstances where they have obviously been providing the mother with significant financial support.
Plainly the obvious inference is that the mother would have ample support from Ms O and Ms P were she to return to the USA. Her affidavit evidence to contrary effect damages her credit in light of her cross-examination and admissions in cross-examination as referred to.
I reject the written submissions on behalf of the mother that there is “no evidence” that if the mother returned to the USA she could live with Ms O. The mother herself gave that evidence, as outlined above. Neither Ms O nor Ms P (who were not cross-examined) advanced in their affidavits filed in the mother’s case any detail of the substantial financial assistance they have provided to the mother (beyond Ms P confirming that they funded the mother’s and children’s return to Australia) and, more particularly, did not advance evidence that they would not, or could not, provide the support the mother referred to.
It is the mother who bears the onus of proof that she lacks financial capacity and she did not meet that onus as regards this as a reason for her non-return to the USA.
Credit issue – the mother’s earlier case re: consent/acquiescence
I have earlier noted that at the outset of the hearing of this application the mother abandoned her foreshadowed (in her material) case of consent or acquiescence. However, paragraphs 3 and 7 of the mother’s Form 2A Amended Answer and Cross Application filed on 5 June 2015 (the truth of which is sworn to by the mother in her attached affidavit) advanced the proposition that when the mother and children came to Australia on 15 May 2014 that was for the purpose of settling permanently in Australia, with the father’s permission. Paragraphs 157 and 158 of the mother’s affidavit filed 5 June 2015 are to similar effect.
Cross-examined about the 9 December 2014 note in the K Town Family Medical Centre records where the mother is recorded as telling her doctor she came to Australia in May 2014 “for a holiday” the mother admitted that:
a)The “impression” conveyed by her affidavit was that when she came to Australia in May 2014 it was with the father’s approval to move back to Australia (that is, not simply for a holiday); and
b)Such an “impression” was not truthful.[25]
[25] Transcript of Proceedings 2 July 2015 at page 51 line 20 to page 52 line 20.
The mother knew and understood, as she had agreed with the father in advance, that her May 2014 return to Australia was for the purpose of a holiday or visit, not any permanent relocation of herself and the child and certainly not a permanent relocation with the father’s approval or agreement. It fundamentally damages the mother’s credit that she would have attempted to characterise this otherwise, in sworn evidence, in these proceedings irrespective of her not ultimately pursuing that case or the hearing.
Potential criminal prosecution
In neither of her affidavits (filed 27 May and 5 June 2015 respectively) does the mother advance as a reason for her non-return to the USA the potential for her prosecution under USA Federal law for international parental kidnapping. Nor is that issue identified in her Form 2A Amended Answer and Cross Application filed on 5 June 2015 amongst her reasons for advancing the proposition that reg 16(3)(b) is engaged. However, as the issue was raised in the hearing and in submissions and is relevant to the prediction to be made if a return order is made, it will be addressed.
Despite the engagement by the mother of a US attorney (Ms X) the mother did not adduce in her case any expert evidence sourced to the USA as to the operation of the relevant US Federal law. The evidence of Ms X is limited to the discussion of the application of family law in Texas.
It seemed not to be in issue that the relevant USA law (18 U.S. Code 1204) was as set out in an email of the father attached to the Form 2 Application as follows:
(a)Whoever … removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both.
(b) As used in this section—
(1)the term “child” means a person who has not attained the age of 16 years; and
(2)the term “parental rights”, with respect to a child, means the right to physical custody of the child—
(A)whether joint or sole (and includes visiting rights); and
(B)whether arising by operation of law, court order, or legally binding agreement of the parties.
(c) It shall be an affirmative defense under this section that—
(1)the defendant acted within the provisions of a valid court order granting the defendant legal custody or visitation rights and that order was obtained pursuant to the Uniform Child Custody Jurisdiction Act or the Uniform Child Custody Jurisdiction and Enforcement Act and was in effect at the time of the offense;
(2)the defendant was fleeing an incidence or pattern of domestic violence; or
(3)the defendant had physical custody of the child pursuant to a court order granting legal custody or visitation rights and failed to return the child as a result of circumstances beyond the defendant’s control, and the defendant notified or made reasonable attempts to notify the other parent or lawful custodian of the child of such circumstances within 24 hours after the visitation period had expired and returned the child as soon as possible.
(d)This section does not detract from The Hague Convention on the Civil Aspects of International Parental Child Abduction, done at The Hague on October 25, 1980.
As at the hearing of this application there was no evidence to indicate that any prosecution of the mother had commenced or was in train. There is thus no evidence, for example, that the mother would face arrest upon her return to the USA.
Most importantly, the absence of any expert evidence on the relevant USA law means that it is impossible for this Court to assess matters such as:
a)The prospects of any prosecution against the mother being successful;
b)The time frame in which any prosecution would occur;
c)Any prospects of the mother successfully defending any prosecution, if one is commenced;
d)Any relevant or likely penalty that would be imposed upon the mother if she were convicted, given that on the face of the provision a fine is one penalty option identified.
On the evidence, or more particularly the absence of relevant evidence on this issue, whether or not the father would maintain his stated stance when giving his oral evidence to the effect that he would not now seek prosecution (however qualified that may have been); or whether the father would, as he had earlier threatened, seek to have the mother prosecuted, becomes academic in terms of the mother discharging the onus she bears.
In short, the mother bearing the onus, does not advance evidence to show that any criminal prosecution of her in the USA is likely to result in her being incarcerated, even temporarily. Moreover, the mother does not advance expert medical evidence to demonstrate that the effect upon her of the practical and real effects (whatever they may be) of any such prosecution would so heighten her levels of anxiety as to compromise her parenting of the child if she were to accompany him upon his return. As already noted, there is no mention of this issue by the mother in her affidavits when dealing with her reasons for
non-return.
The applicant’s final submissions contain references to several authorities both from overseas jurisdictions and in this jurisdiction which serve, in my judgment, to demonstrate that this issue, in the circumstances of this case, does not support the mother establishing the relevant ground.[26]
[26] See Re L (Abduction: Pending Criminal Proceedings) [1999] 1 Fam Law R 433 per Justice Wilson at page 439; Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 Fam Law R 1145 per Norse, Auld and Ward LJJ at page 1156; Townsend v Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842; Director-General, Department of Families v Saffari [2002] FamCA 959.
Non-return of G and H
The mother emphasises in her case the likely non-return of both G and H to the USA as informing the reg 16(3)(b) ground of exception in two respects.
First, is the aspect of the mother’s professed need to remain in Australia to support each of her daughters in their difficult circumstances so far as their psychological or emotional health is concerned.
The second aspect is the effect upon the child himself if his half-siblings do not return to the USA.
The mother’s attempts to have G’s biological father to provide evidence in the case were unsuccessful.
Irrespective of that, it would seem that at age 17 years G will probably decide for herself whether or not she will herself return to the USA.
G has clearly expressed an intention not to return to the USA as recorded in, for example, the records of her therapist and the evidence of the mother and to Mr F. In my judgment it is likely that G will not return to the USA even if the mother returns.
It is clear that there are issues as to G’s emotional and psychological wellbeing needing attention, including via the continuing access she has had to mental health professionals.
Whilst it may be surmised that G’s wellbeing would be negatively impacted upon if a return order for the child is made it is not, in my judgment, established by cogent medical evidence that it is essential to G that she have the ongoing care and support of the mother.
There are numerous references within Exhibit 2 to the fact that G has a close and supportive relationship with the maternal grandmother and with the maternal aunt. Likewise Exhibit 2 establishes the capacity of the maternal grandmother to provide capable assistance to G including at what seems to be a time of heightened need for G.
If the mother returned to the USA there is no reason to suppose that G could not rely upon the maternal grandmother, who clearly has provided the mother with significant support since October 2014, for her continuing needs, if G chooses to remain in Australia.
The evidence of Mr F establishes that there is a close attachment or bond as between G and the child. Undoubtedly the child will be adversely affected by disturbance of that attachment if a return order is made and G remains in Australia. However, I am not satisfied that even putting Mr F’s evidence at its highest it can be said that disruption of that attachment of itself produces a grave risk of psychological harm to the child or places him in an intolerable situation.
It is clear on the evidence of Mr I that he will not permit H to return to the USA. It is equally clear that H also has issues of emotional and psychological health to be addressed. However, there is nothing to suggest that Mr I is not capable of providing care and support of H and accessing the help that she needs nor anything to suggest that he is not motivated to so do. To the contrary, the presentation of Mr I is one of concern to address H’s needs and requirements.
It is clear on the evidence that H has an established and good relationship with her biological father. Upon her return with the mother in October 2014 she spent significant time in her father’s care from then until about February 2015 continuously. She has continued to spend significant time in his care, from time to time, since February 2015. She too has the benefit, in Australia, of the care and support of the maternal grandmother and her aunty as evidenced by what has occurred since October 2014.
Whilst Mr F assesses that there is an attachment as between H and the child this appears, on his assessment, to be not as significant as that between the child and G. That assessment would seem to be consistent with the mother’s own evidence and that of the father which can be accepted on this point.
Even if it be accepted that the experience of G and H in the USA and their exposure to the father and their living circumstances in the USA contributes to the emotional or psychological issues they now confront; the point here is that there is no cogent medical evidence to demonstrate an imperative of the mother remaining in Australia to provide them with that care.
In other words, it cannot be accepted on the evidence that the mother’s prioritisation of the needs of G and H as a reason for her to remain in Australia is informed by cogent medical evidence to support that proposition.
At paragraph 8.33 of his report Mr F addresses the effect on the child of being separated from his half-siblings, G and H in the following terms:
8.33It may be appropriate to differentiate the effects if [B] [the child] was still accompanied by his mother but separated from his half-siblings. In that circumstance, any negative impact of being separated from his half-siblings would be mitigated to some extent by continuing to maintain a relationship with his mother who would presumably continue to fill a caring role for [B] [the child].
It is thus clear on Mr F’s assessment that the child’s separation from his half-siblings would not, in and of itself, cause him psychological harm or place him in an intolerable situation.
Resolution
Mr F provides, at paragraphs 8.26 to 8.32 of his report, his assessment of the likely impact upon the child of his return to the USA if that results in his separation from the mother because of her non-return.
It needs to be borne in mind that Mr F did not have the opportunity to observe any interaction between the father and the child, given that the father is in the USA. Nor did Mr F observe any interaction between them via any electronic means for the purpose of his assessment. There was thus no means for Mr F to test any statements by the child to him or, more particularly, for Mr F to have an independent means of assessment of the interaction between the child and his father.
This seems to me to be a potentially important limitation. As but one example, the child’s recorded statement “I don’t got a dad” (paragraph 5.6) seems to have been adopted by Mr F as forming an important part of the foundation for Mr F’s opinions as to the current lack of attachment between the child and his father; and the conclusions of Mr F to the effect that currently the child would not have “trust” in his relationship with the father, or in the father himself. Those opinions may well be correct, but it is notable that in giving her evidence the mother revealed quite a different possible reason for the child saying “I don’t got a dad”. In that passage of evidence the mother referred to the possibility of the child comparing his circumstances when compared with other children at his school having their fathers attending at the school in the child’s observation.
On the father’s oral evidence the historical depiction he gave of the father-child relationship appeared plausible yet it was one significantly at odds with that advanced by the mother and as described by G and H to Mr F. To my mind that difference was not readily resolvable without an opportunity for Mr F to make at least some observation of the interactions between the father and the child to test the reality.
Undoubtedly it is the case that the mother has been the child’s primary carer and that since May 2014, other than the short period between the mother’s and the child’s return to the USA on 9 October 2014 and their departure on 22 October 2014, the child’s communication with the father has been limited to telephone calls. On Mr F’s assessment (paragraph 8.27) disruption of the child’s relationship by the mother’s non-return if the child returns to the USA carries risks although the risks there assessed seem to be predicated upon the child being placed in the care of a person whom he does not “trust” ie the father.
I have significant reservations in accepting without hesitation Mr F’s assessment as expressed in paragraph 8.27, at least as regards the conclusion that the father is an adult in whom the child has no trust.
However, my determination as to the prediction to be made, based on the evidence, of what may happen if the child is returned, does not embrace as likely the mother’s stated intentions to not return to the USA if a return order is made.
For the reasons already outlined I did not find the mother to be a credible or convincing witness as to her asserted reasons for her non-return.
This is not a case where the return of an abducting parent is impeded or prohibited by the laws of the country of origin. Here, the mother has rights of residency in the USA and holds a Green Card.[27]
[27] Cf State Central Authority v Ardito (unreported, FamCA, Joskie J, ML 1481/87, 29 October 1997).
The mother advances no cogent expert medical evidence to corroborate in any way any proposition to the effect that the mother could not cope with return to the USA.[28]
[28] Cf Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011 (“Bennett’s Case”).
I have rejected the mother’s proposition that she would have no resources for support of herself and the child in the USA.
These proceedings envisage a return of the child to the USA, not a return of the child to the father or a return of the mother to the father’s household. On the evidence I have determined that the mother will have ample support in the USA from Ms O and Ms P and her Green Card makes her eligible to be employed.
For the reasons discussed I have not accepted as credible the mother’s assertions that she fears for her safety if she returns to the USA. The implicit contention of the mother that USA authorities and courts are unable or incapable of providing any necessary protection against any untoward conduct of the father cannot be accepted as reasonable.
On the evidence the father has instituted divorce proceedings in the USA.[29] On the mother’s alternative claim (if a return order is made) the mother proposes to engage in proceedings in the USA to seek an order for the child to live with her in Australia. There is no suggestion in this case that the assumption that there will be proceedings in the USA is misplaced. Nor, on the evidence, can it be said that the mother would be limited or impeded in engaging in legal proceedings if she returns to the USA (nor indeed if she remains in Australia). The evidence of the US attorney Ms X does not exclude all prospects of a person engaging in legal proceedings in the USA or in Texas without actually being present, but in any event, there is nothing to impede or limit the mother in engaging in proceedings if she returns to the USA. Her evidence clearly points to plans to engage in such proceedings if a return order is made.
[29] See page 10 of the Form 2 Application.
Given the extent of reasons to doubt the reliability of the evidence of the mother and her credibility, her asserted need to remain in Australia to care for her daughters in priority to attending to the needs of her five year old son is not accepted as likely. The evidence discloses that G’s and H’s needs will likely be met if they remain in Australia without the mother. The mother undoubtedly loves her youngest child. In the circumstances it would appear inherently improbable that the mother would prioritise any perceived need for her to remain in Australia with her daughters over and above the needs of her young son, pending the outcome of USA proceedings.
In my judgment the personal circumstances of the mother, properly assessed, do not legitimately support any conclusion to the effect that the mother’s personal circumstances genuinely or compellingly preclude her from returning to the USA.[30]
[30] Bennett’s Case.
If the mother returned to the USA with the child the evidence supports the likelihood that the mother and child would either live with or be supported by Ms O and Ms P pending the mother becoming financially independent. The father has, as already noted, commenced divorce proceedings and in accordance with the evidence of Ms X the mother can pursue parenting proceedings. The Texas child welfare authorities will be made aware of the allegations G has made by reason of the order proposed by the applicant. The child will not be removed from the mother’s care without a court, charged with determining the child’s best interests, making such a determination.
Put consistently with the mother’s onus of proof, the mother has not satisfied me that she will not return to the USA if a return order is made.
In my judgment, in terms of prediction, a return order for the child will likely result in the mother also returning to the USA to pursue parenting proceedings in that country.
In any event, in my judgment the circumstances of this case dictate the conclusion that the mother ought not be permitted to rely upon her own conduct for creating the risk to the child she advances as constituting the reg 16(3)(b) exception.
In C v C (minor: abduction: rights of custody abroad) (“C v C”)[31] Butler-Sloss LJ held:
Is a parent to create the psychological situation, and then rely on it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the convention…
[31] [1989] 2 All ER 465 at 471.
Review of authority confirms that these often cited words, or the principle underlying them, form the basis for almost invariable rejection by most courts in most jurisdictions of the strategy of a primary carer abductor, in stating that she is not prepared to return with the child and that the consequent separation from her will cause the child psychological harm, to decline the making of a return order.[32] That is, that compelling evidence to support the asserted
non-return is required.
[32] Re C (Abduction) [1999] 2 Fam Law R 478; Civil Appeal 4391/96 Ro v. Ro 50 (5) PD 338 (Isr) [INCADAT cite: HC/E/IL 832]; Panazatou v Pantazatos 1997 WL 614519 (Conn.Super. ct. Sept. 24, 1997); M.G. v R.F., 2002 R.J.Q. 2132 [INCADAT Reference: HC/E/CA 762] (Quebec); D v D [2001] Scot CS 103; Starr v Starr 1999 SLT 335 [INCADAT cite: HC/E/UKs 195]; Garning & Department of Communities, Child Safety and Disability Services (Discharge Application) [2012] FamCA 839; Soysa v Commissioner, Western Australia. Police (2012) 46 Fam LR 648; State Central Authority & Ustinov (No. 4) [2008] FamCA 987.
In JLM (supra) the plurality referred to the findings the trial judge had made on expert evidence as to the “very serious risk” or “high risk” of suicide by the mother in the event of a return order being made. There was unchallenged expert evidence in that case that the mother was suffering from a major depressive disorder.
The unchallenged evidence included that the mother’s suicide would cause great psychological harm to the child. At [76] the plurality observed:
76.In addition to the evidence from the psychiatrist, which the primary judge described as “unchallenged”, “detailed”, “compelling” and “persuasive”, the primary judge had evidence, which he accepted, from a friend of the mother who had had several years experience in the mental health field and who expressed the opinion that “suicide is a real risk if [the child] is returned to Mexico.”
Thus it was that in JLM the plurality in the High Court rejected (at [80]) the proposition that the mother “is the originator of the source of the risk of harm” because the mother was not in command of her situation by reason of her illness.
For reasons already identified, that is not the position in this case. Here the mother advanced no relevant medical evidence to support the proposition or her assertion that she would not “cope” with return to the USA.
That is, in contrast with JLM, using the language of the plurality of the High Court the mother here is in command of her situation so far as a decision to return to the USA is concerned.
In DP (supra) the plurality addressed whether essential medical services to treat the child’s autism were available in the place in Greece in which the child habitually lived prior to abduction.
In their judgments the plurality in the High Court emphasised that it could not be assumed in every case that there would be proceedings in the country of origin following the making of the return order. In this case, for the reasons already stated, that assumption has not been made without an evidentiary foundation. The evidence already referred to establishes the likelihood of such proceedings in this case.
It does not seem to me that anything said by any of the judges of the High Court in DP and JLM detracts from the observations made by Butler-Sloss LJ in C v C as referred to or in the cases that have applied that often cited approach.
Indeed in his dissenting judgment in DP and JLM Gleeson CJ cited C v C with approval. Nothing contained in the plurality judgments detracts from that approach.
In Bennett’s Case the Full Court of this Court observed (at [47]):
47.…where a very young baby was wrongfully removed or retained in circumstances that would otherwise lead to its return being ordered, if it was being breast-fed by its “abducting” mother and her personal circumstances genuinely precluded her return with the child (eg. her medical condition perhaps even her incarceration), then the reg 16(3)(b) exception might be made out. In Re G (Abduction: Psychological Harm) [1995] 1 FLR 64 Ewbank J declined to order the return of a child to the USA when the evidence demonstrated that a forced return of the mother (who would not part from the three very young children) carried with it a likelihood that she might become psychotic, and that such a serious deterioration in her health would adversely affect the children.
I reiterate that in this case the medical evidence does not establish that the mother will decompensate if she were to return to the USA.
In Director-General, Department of Families and RSP (2003) FLC 93-152 the Full Court of this Court upheld a decision of Warnick J in dismissing an application for a return order in respect of a young child who had been wrongfully removed by the mother to Australia, be returned to the USA. The trial judge had accepted that there was evidence of the mother’s potential suicide and that the mother’s suicide would be psychologically harmful to the child. Warnick J was satisfied on the evidence that the mother had a history of mental illness and a pre-existing neurological condition. Even then, Warnick J observed (at [80] to [83]):
80.I do not reach these findings without disquiet. Courts will understandably have a real concern about the disingenuous adoption of stances designed to achieve the purposes of abductors in resisting orders for the return of children. But the response to this concern cannot be to disregard evidence, but rather to scrutinise it with great care.
81.In this case there is a history of depression and mood changes in the mother. She demonstrated an intense need for the comfort and support of her family. She has suffered dramatic and no doubt traumatic health difficulties. She threatened suicide when cohabitating with the father.
82.Her consultations with Dr Klug are apparently for the purpose of treatment, not evidence gathering. His medical opinion of the risk is clear and unchallenged.
83.The risk in my view is little alleviated by the arrangement that the mother will enter hospital under Dr Klug’s supervision if [the child] is sent back to the USA. Though this is clearly an arrangement to mitigate the prospects of the mother taking her own life, there is nothing from which I can gauge any reduction in risk thereby achieved. The same applies to the prospect of detention of the mother under Mental Health legislation.
It is notable that in this case the mother refers to the paternal grandmother’s partner Ms P as her “rock” in the medical notes earlier referred to. That is, the mother views Ms P as a source of emotional support to her which the mother will be able to rely upon if she returns to the USA.
As was submitted by the applicant, since the decision of the High Court in DP and JLM, reg 1A(2) has been proclaimed. It provides:
(2) These Regulations are intended to be construed:
(a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b)recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and
(c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between juridical or administrative authorities (as the case may be) of convention countries.
In my judgment it would undermine the principles and objects of the Convention and its effective implementation if the general approach endorsed in C v C were not taken.
In my judgment in this case the mother has not demonstrated that her stated intention not to return to the USA is otherwise than the disingenuous adoption of a stance or strategy to achieve her purpose in resisting the order for the child’s return. Specifically, and putting it in the converse, the mother has not demonstrated that her non-return to the USA is dictated by:
a)An inability to return to the USA by reason of the laws of that country; and/or
b)An inability to return for sufficient and genuine circumstances personal to her; and/or
c)An inability to return that is brought about beyond her control, by reason of a medical condition or otherwise; and/or
d)An inability to participate in proceedings in the USA to determine future parenting arrangements for the child.
In my judgment the mother does not discharge the onus of proof which she bears in establishing that reg 16(3)(b) is engaged.
For these reasons I make the orders set out at the commencement of these reasons. I have provided a date for return which accommodates the mother having sufficient time to make arrangements for the child’s return and for her to have some time to commence steps to engage in or commence any necessary proceedings in the USA.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 August 2015.
Associate:
Date: 19 August 2015
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