Director General, Department of Communities, Child Safety and Disability Services and Martinez
[2017] FamCA 1
•6 January 2017
FAMILY COURT OF AUSTRALIA
| DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & MARTINEZ | [2017] FamCA 1 |
| FAMILY LAW – CHILDREN – Form 2 Application – Where the application seeks the return of the child to El Salvador where the father resides – Where the child was habitually resident in El Salvador before his removal - Where the father has rights of custody and was exercising such rights prior to the child being retained in Australia – Where there is no grave risk to the child in returning to El Salvador – Where there is no exercise of discretion - Where orders are made for the child’s return. |
| Convention on the Civil Aspects of International Child Abduction Family Law (Child Abduction Convention) Regulations 1986 |
| C v C (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All ER 465 Director-General, Department of Families, Youth and Community Care v Hobbs (2000) FLC 93-007 DP v Commonwealth Central Authority; JLM v Director-General Department of Community Services (2001) 206 CLR 401 Gerish-Grant v Department of Community Services (2002) 169 FLR 127 Gsponer v Director-General, Department of Community Services, Vic (1989) FLC 92-001 De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 In re M (FC) and another (FC)(Children)(FC) [2007] UKHL 55 J v Director-General, Department of Community Services (2003) 211 FLR 235 Murray v Director, Family Services (ACT) (1993) FLC 92-416 MW v Director-General of the Department of Community Services (2008) 82 ALJR 629 Re HB (Abduction: Children’s Objections) (1997) 1 FLR 392 In the Marriage of Resina [1991] FamCA 33 Soysa v Commissioner of Police [2011] FamCAFC 39 |
| APPLICANT: | Director General, Department of Communities, Child Safety and Disability Services |
| RESPONDENT: | Ms Martinez |
| FILE NUMBER: | BRC | 10473 | of | 2016 |
| DATE DELIVERED: | 6 January 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 12 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Green |
| SOLICITOR FOR THE APPLICANT: | McInnes Wilson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Bertone (appearing pro bono) |
| SOLICITOR FOR THE RESPONDENT: | Women's Legal Service |
Orders
That the child, X (“the child”), born … 2011 be returned to the country of El Salvador and for the purpose of giving effect to this Order:
(a) The child leave the Commonwealth of Australia on or before 27 January 2017.
(b) The said child arrive in El Salvador on or before 30 January 2017.
(c) Pending the child returning to El Salvador, the respondent mother Ms Martinez (“the mother”) born … 1984 continue to be restrained and an injunction hereby issue restraining her from removing or attempting to remove the child from the Commonwealth of Australia.
(d) Pending the child’s return the mother be restrained and an injunction hereby issue restraining her from changing the child’s usual day to day residence from the premises where she and the child are currently residing namely A Street, Suburb B in the State of Queensland.
(e) That subject to (f) below the Commissioner of the Australia Federal Police and all Federal Agents of the Australian Federal Police retain the names of the mother Ms Martinez born … 1984 and the male child X born … 2011 on the Family Law Watchlist at all international departure points in Australia.
(f) That the male child X born … 2011 and the mother Ms Martinez born … 1984 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 child to return to El Salvador from 12:00 am on the date nominated for the said travel in the letter.
(g) If called upon by the applicant or an officer of the Department of Communities, Child Safety and Disability Services, including Ms T, the mother do all acts and things necessary including signing all documents required to consent to the removal of the child’s name from the Family Law Watchlist that was placed on the Family Law Watchlist pursuant to Order 12 of the Temporary Protection Order made at the Magistrates Court of Queensland at … on 13 April 2016 in proceedings between the mother and Mr Z (file number MAG – 00086201/16(0)).
(h) That the applicant be at liberty to provide a copy of these Orders to the Registrar and other personnel at the Registry of the Magistrates Court of Queensland at … for the purposes of giving effect to the removal of the child from Australia and return to El Salvador in accordance with these Orders.
(i) That the Marshal of the Family Court of Australia and the Commissioner of all Federal Agents of the Australia Federal Police and Officers of the Police Forces and Services of the various States and Territories and empowered to take all necessary steps to give effect to these Orders.
(j) That to facilitate the return of the child to El Salvador, Ms T, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release all current passports relating to the child to the mother for the purposes of the child’s return to El Salvador and release the mother’s passport to her or her nominee upon request.
(k) That liberty to apply be granted to the applicant and the mother to seek any further orders necessary to allow the officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to give effect to the return of the child in accordance with these Orders and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986.
In the event the mother refuses or neglects to do all acts and things necessary, including signing any documents necessary to consent as required by (1)(g) above pursuant to s 106A of the Family Law Act 1975 (Cth) a Registrar or Deputy Registrar of the Family Court of Australia is appointed to sign any such document or documents in the name of the mother and do all acts and things necessary to give validity and operation to the consent documents.
All other extant applications are dismissed.
That either party have liberty to apply in relation to the implementation of these Orders order upon the giving of two days written notice to the other party.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Martinez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10473 of 2016
| Director General, Department of Communities, Child Safety and Disability Services |
Applicant
And
| Ms Martinez |
Respondent
REASONS FOR JUDGMENT
introduction
This is an application for a return order[1] pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Regulations provide the legislative framework pursuant to which Australia meets its obligations as a contracting party to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).[2]
[1] As defined in regulation 2 of the Family Law (Child Abduction Convention) Regulations 1986
[2] [1987] ATS 2
The Department of Communities, Child Safety and Disability Services is a responsible Central Authority (“the applicant”) and entitled to bring the application on behalf of the requesting parent, Mr Z (“the father”). The respondent to the application is Ms Martinez (“the mother”).
The proceedings concern a male child, X (“the child”), born in 2011(“the child”).
It is alleged by the applicant that the child was wrongfully retained in Australia by the mother after 16 April 2016 and should be returned to his habitual place of residence, El Salvador.
The mother resists the making of a return order on the basis that the father did not have rights of custody at the time of removal or retention or, alternatively, if he did have rights of custody, the Court should exercise its discretion to refuse a return order because ‘there is a grave risk that the return of the child to El Salvador will expose him to physical or psychological harm or otherwise place him in an intolerable situation’.[3]
[3] Regulation 16(3)(b)
The parties to the application confirmed at the outset that the matter would proceed ‘on the papers’ and neither party sought leave to cross-examine. I observe that this is the usual course although not the only course such proceedings may take.
Hague Convention
The purpose of the Hague Convention is to ensure the prompt return of a child who has been wrongfully retained in a convention country and to enable any dispute relating to the parenting of that child to be determined by the child’s country of habitual residence prior to the wrongful removal or retention.[4]
[4] Hague Convention; De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 at 648-649
The best interests of the child are not the paramount consideration as the parenting dispute is not being determined.[5]
[5] De L v Director-General, Department of Community Services (NSW) (ibid) at 658
This is not a hearing on the merits of the parenting case but a hearing to determine the appropriate response to Australia’s obligations under the Hague Convention.
If an application for a return order is made within one year[6] after the removal or retention of a child and the applicant satisfies the Court of certain jurisdictional facts, the Court must, subject to certain exceptions, return the child.[7]
[6] If filed after one year and the child has not settled in the new environment the Hague Convention will still apply. See regulation 16(2)
[7] See regulation 16 (1)
The jurisdictional facts in this case which would make the removal or retention wrongful are that:
a)The child is under sixteen years of age;
b)The child was habitually resident in El Salvador immediately before his removal to or retention in Australia;
c)The father had rights of custody in relation to the child under the law of El Salvador immediately before his removal to or retention in Australia;
d)The child’s retention in Australia is in breach of those rights of custody; and
e)At the time of the child’s removal or retention the father was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights had the child not been removed or retained.
The applicant bears the onus of proving the jurisdictional facts.[8]
[8] See regulation 16 (1)(c)
If the jurisdictional facts are proven the mother bears the onus of establishing one of the exceptions set out in regulation 16 of the Regulations.[9]
[9] Regulation 16 (3) and Gsponer v Director-General, Department of Community Services, Vic (1989) FLC 92-001; DP v Commonwealth Central Authority; JLM v Director-General Department of Community Services 206 CLR 401
uncontentious facts
The following facts are uncontentious:
a)The application was filed within one year of the removal or retention;
b)The child is under sixteen;
c)The child habitually resided in El Salvador immediately prior to his removal to or retention in Australia;
d)If a return order is made the mother will return with the child;
e)There are pending parenting proceedings in El Salvador; and
f)The father has been unsuccessful to date in obtaining a visa to enter Australia.
Relevant background
The father was born in 1966 in El Salvador and is currently 50 years of age. He is self-employed and operates a business.
The mother was born in 1984 in El Salvador and is currently 32 years of age. She is a student and “a former refugee of El Salvador” who has been an Australian Citizen since 1992. Her parents have lived in Australia since 2010 and two adult siblings also live in Australia.
The mother lived in El Salvador from 1994 until March 2016 save for a short period in 2008 when she lived in Australia.
The parties met in 2006, were married in San Salvador in 2010 and separated initially on or about 6 May 2014. The mother applied for and was granted a temporary protection order[10] on that same day.
[10] Referred to as ‘protection measures’ in El Salvador
The parties entered into a written agreement on 8 May 2014 (“the 2014 agreement”) that relevantly provided:
a)That they have mutually agreed to live separately for one year and through this document they establish all that is related to matrimonial separation, personal care, relationship as well as their son’s maintenance payments. In regards to the personal care they agreed:
i)That the child will remain under the mother’s personal care and she will be the one who represents him legally;
ii)The father will pick up the child from school on Tuesdays and Thursdays at 12pm and return him at 6pm the same day and additionally he will pick up the child on alternate Fridays after school and return him to the mother on Sundays at 5pm. On the weekend the child is not with the father he is to pick him up from school on the Friday and return him to the mother at 6pm. The father is to spend holiday periods with the child as well;
iii)The father will pay child maintenance;
iv)The parties must submit to psychological or psychiatric treatment in order to re-establish harmony and family integration so as to guarantee an integral development for the child;
v)The protection measures put in place by the Fifth Court of Peace of San Salvador for the mother and child against the father will continue as valid.
The parties reconciled for a brief period in September 2014 and travelled overseas together with the child.
In November 2014 the mother applied to the appropriate court in El Salvador for permission to travel to Australia for a holiday with the child. The father opposed the travel. The mother was granted permission and spent time in Australia with the child between 5 December and 30 December 2014 and thereafter returned to El Salvador with the child.
On 27 June 2015 the mother made a complaint to child welfare authorities in El Salvador seeking ‘protective measures’ for the child. The mother alleged the father was endangering the child by:
a)Riding on a motorcycle with the child without headlights or a license plate;
b)Involving the child in extreme activities;
c)Failing to provide appropriate food for the child when he is in the father’s care.
The Board for Childhood and Youth Protection dismissed the mother’s complaint after hearing from a number of witnesses stating, inter alia –
… it has been able to establish irrefutably that the child has had a healthy and adequate lifestyle, given by both parents.
The mother again sought authorisation to take the child on a holiday to Australia between 12 March and 16 April 2016. The father opposed the travel because inter alia he did not believe the mother would return.
The mother initiated a judicial process for temporary authorisation to leave the country before the Specialized Court of Childhood and Youth. On 26 January 2016 the court heard the mother’s application. The father also sought to travel with the child on a holiday to Florida, United States of America between 28 April and 4 May 2016.
On 27 January 2016 the Specialized Court of Childhood and Youth authorised the travel proposed by each parent with the child. The court accepted the mother’s submissions that the trip was for the purpose of the child spending time with his maternal grandparents, that she had booked a return journey and that it was not her wish to stay in Australia with the child. The court required the mother to permit regular communication between the father and child.
The father appealed the decision permitting the mother to go to Australia with the child but the initial decision was confirmed on 1 March 2016.
On 11 February 2016 the father filed a Divorce Petition in the Family Court of Santa Tecla, El Salvador in which all legal aspects regarding the child are to be determined before a judicial authority i.e. personal care, visit arrangements and child support. The proceedings were commenced on behalf of the father by his lawyer, Mr Mario Orlando Ticas Rivera.
Those proceedings are ongoing. The mother is represented by Mr Francisco Zacarias Alvarez Belloso.
Prior to the mother’s departure from El Salvador on 12 March 2016 the father was spending time with the child on a weekly basis largely in accord with the 2014 agreement, although it seems the Thursday time was extended by agreement at some point to include overnight.
On 16 March 2016 the child entered Australia and the child’s passenger entry card states he is “migrating to Australia permanently”, contrary to the evidence of the mother provided to the San Salvadorian court. The mother contends that she made the decision to stay in Australia while in transit.
During the period 12 March and 16 April 2016 the father was only permitted to speak to the child on two occasions. The father was unable to contact the mother from 16 April until 1 July 2016 when the mother emailed him and invited him to communicate with the child on condition inter alia that he did not ask the child to return to El Salvador. The father has communicated with the child on numerous occasions since 2 July 2016 although the mother has significantly reduced the time and frequency of that communication in recent months.
The mother applied for and was granted a Temporary Protection Order under the Domestic and Family Violence Protection Act 2012 (Qld) on 13 April 2016 which also placed the child on the airport watch list.
On 19 May 2016 the father made application for return of the child under the Hague Convention.
The application by the applicant was filed on 19 October 2016 and interim orders and directions for trial were made on 28 October 2016.
did the father have rights of custody at the time of removal or retention
Regulation 4 provides:
Meaning of rights of custody
(1)For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3) For the purposes of this regulation, rights of custody may arise:
(a) by operation of law; or
(b) by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.
The determination of rights of custody must follow a three step process:[11]
a)What rights, if any, did the father have under the law of El Salvador at the time of removal to or retention in Australia;
b)Do those rights amount to rights of custody within the meaning of the Regulations;
c)Was the removal or retention in breach of those rights.
What rights, if any, did the father have under the law of El Salvador at the time of removal or retention
[11] J v Director-General, Department of Community Services (2003) 211 FLR 235
The first question is to be determined on the basis of the expert evidence before the Court.[12]
[12] J v Director-General, Department of Community Services (2003) 211 FLR 235
The applicant relies upon the evidence of Ms E who is a notary and lawyer in El Salvador.
I note that the mother seeks to raise some doubt about the impartiality of Ms E because she witnessed the father’s affidavit. I note that the father is represented in the family law proceedings in San Salvador by Mr Rivera. I do not regard the asserted basis of challenging Ms E’s evidence as valid.
Ms E informs the Court that article 206 of the Family Code of El Salvador defines parental authority as the:
… set of faculties and duties that the law grants and imposes upon the father and mother over their children who are minors … to be protected, educated, assisted and prepared for life and to be represented and to manage their assets.
Further, parental authority possesses three elements:
a)Personal care or what is known in other countries as legal custody (article 211);
b)Legal representation (article 223); and
c)Administration of assets (article 226).
By article 209:
Any disagreement between the parents regarding parental authority must be resolved by a competent judge, this one being a Family judge.
In Ms E’s opinion the applicable law of El Salvador precludes either parent making a unanimous decision regarding the change in residence and address of the child outside the country and where agreement cannot be reached the decision “must be taken and supported by a competent Family Court”.
For a child to travel out of El Salvador special permission or authenticated agreement is required. Relevantly, article 44 of the Specialized Law for Children and Youth provides:
Children … may travel out of the country, accompanied by the father and the mother or one of them, but in this last case, they require authorisation from the other issued in a notary act or by a document authorised by the Attorney General …Both the Notary Act and the document issued by the Attorney General … will have a validity period of no more than one year from the date it was issued. … When the mother or father refuses in an unjustified way to grant the corresponding authorisation, this authorization will be granted by the previously qualified competent judicial authority by means of an abbreviated process. … In any case, authorization must contain the following requirements: a) A document that relates (sic) the certification of the birth certificate and the minor’s passport; b) A description of the name, last name, age, profession or work, address and identity document of the person who will travel with the minor; and c) the indication of the destiny (sic) where they are travelling and the duration of their stay, be it temporary or definitive (sic).
The issue in contention is what, if any, legal effect the 2014 agreement had on the father’s rights of custody and in particular, his right to determine the residence of the child.
In Ms E’s opinion, although the father conferred personal care of the child to the mother in the 2014 agreement :
… this document is not judicial, as it was temporary and in order to produce effects in accordance to the laws of El Salvador it should have been presented in a Family Court for judicial approval, in accordance to articles 84 and 85 from the Family Process Law.
In any event, Ms E opines that the agreement does not authorize the mother to change the residence of the child outside the country of El Salvador because such a decision has to be made by agreement or order of the court (Article 43 Law of Integral Protection for Children and Youth).
In summary then, according to Ms E, the father had rights of custody within the meaning of the law of El Salvador that he was exercising at the time of removal. His rights of custody were not forfeited by the entering into the 2014 agreement because firstly the agreement was temporary, secondly it required judicial approval to have legal effect, thirdly it did not authorise the mother to change the child’s country of residence which required special authenticated consent or authorisation and such consent or authorisation is only valid for one year.
The mother relies upon the evidence of Mr Belloso, her lawyer in the pending proceedings in the court in El Salvador. Mr Belloso disagrees with the opinion of Ms E in relation to the legal effect of the 2014 agreement and recommends that a ruling be sought from the Supreme Court of Justice in El Salvador as to legal effect of the agreement. I am disinclined to do so given the purpose of the Hague Convention, the fact that I have before me the evidence from Ms E, and I accept that evidence, as to the legal effect of the 2014 agreement and perhaps more importantly, even if the agreement has legal effect it did not confer on the mother the sole right to determine the residence of the child, which remained with the parents jointly until a court ruled otherwise.
Do those rights amount to rights of custody within the meaning of the Regulations
The second question then arises as to whether the rights possessed by the father were rights of custody within the meaning of the Regulations.
The right to determine the child’s place of residence has been held to be a necessary pre-requisite to having rights of custody within the meaning of the Regulations.[13] A mere right to be consulted is not sufficient but a right to veto is sufficient.[14] The father’s rights to determine the place of residence of the child is more than a mere right to be consulted. Without his consent the mother cannot change the residence of the child absent an order of a court.
[13] J v Director-General, Department of Community Services (2003) 211 FLR 235 at [63]
[14] C v C (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All ER 465; In the Marriage ofResina [1991] FamCA 33; Director-General, Department of Families, Youth and Community Care v Hobbs (2000) FLC 93-007; MW v Director-General of the Department of Community Services (2008) 82 ALJR 629
Even if the 2014 agreement between the parties displaced the father’s rights to provide for the care of the person of the child it did not displace his rights to determine the place of residence of the child which was the subject of separate statutory entitlement i.e. by operation of law. The facts in the case of MW v Director-General, Department of Community Services[15] are distinguishable as the father in that case had no such statutory protection, merely a right to seek an order to prevent the mother in that case from leaving the country.
[15] (2008) 82 ALJR 629
Accordingly, while I accept Ms E’s evidence that the agreement was of no legal effect, even if I am wrong on that I find that the father retained rights to determine the place of residence of the child and accordingly he possessed rights of custody within the meaning of the Regulations.
Was the removal or retention in breach of those rights
The third question is whether the removal or retention was in breach of those rights.
As the mother obtained an order from the appropriate court in El Salvador authorising the temporary removal of the child I do not find that the removal was in breach of the father’s rights of custody but upon her failure to return the child the retention was in breach of those rights.
Accordingly, I am satisfied that the father had rights of custody at the relevant time. Those rights were at the very least the right to determine, with the mother, the place of residence of the child. Such a right is a right of custody within the meaning of the Regulations. The retention of the child in Australia after 16 April 2016 was in breach of those rights.
was the father exercising rights of custody
Prior to the removal of the child from El Salvador the father was caring for the child on a regular basis and objected to the mother’s proposal to remove the child from El Salvador on what was then proposed to be a holiday.
The court in El Salvador decided the father’s objection was unreasonable and permitted the mother to temporarily remove the child on a holiday to Australia to return on 16 April 2016. The mother is in breach of that order by retaining the child in Australia. When the child did not return pursuant to the order the father made his objection clear.
Upon the child’s arrival in Australia the father attempted to maintain contact with the child and that has been facilitated to varying degrees by the mother since 1 July 2016.
As said by the Full Court of the Family Court of Australia in Soysa v Commissioner of Police[16] “a person with rights of custody can only be said not to be exercising them where there is a complete abandonment of all responsibility and contact with the child”. That is not the case here.
[16] [2011] FamCAFC 39 at [49]
I am satisfied that prior to his removal or retention the father was exercising rights of custody to the child.
Jurisdictional facts established
I am satisfied that the retention of the child in Australia after 16 April 2016 was wrongful.
is there an exception justifying a refusal to grant the return order
A return order must be made unless the mother establishes one of the exceptions to making a return order and the Court exercises its discretion to refuse to make a return order.
The mother argues that one exception applies, namely, that pursuant to Regulation 16(3)(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”.
The mother relies upon the following matters in support of her contention that the exception is established:
a)She and the child may be killed by the father or by someone at his behest as he has association with ‘gang members’;
b)The father is addicted to illicit drugs;
c)The mother may not receive assistance from police or law enforcement bodies should she require it;
d)The child may be killed from gunfire emanating from ‘gang members’ or in the crossfire in exchanges with police and ‘gang members’;
e)The father will pressure the mother to return to having a relationship with him;
f)The child may become involved with ‘gangs’ at school; and
g)The mother’s living standards will be inferior if she has to return.
In DP v Commonwealth Central Authority; JLM v Director-General Department of Community Services[17] it was held:
39. … Often enough the answer to a claim of grave risk will be that the feared harm will form a central issue in subsequent judicial proceedings in the country of return. But it is important to notice that this answer has two parts: first, that there will be judicial proceedings in the country of return and, second, that the feared harm which is alleged can be a matter relevant to those proceedings. Both parts of that answer are important if it is to meet a contention that return will expose the child to a grave risk of harm.
40. … Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry.
41. … The burden of proof is plainly imposed on the person who opposes the return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires the courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the child.
66. … But the bare fact that there will be such a judicial determination in the country of return does not mean that reg 16(3)(b) can have no operation. … The fact that there will be proceedings between the parties in the country of habitual residence does not relieve the Australian court of its obligation to give effect to the whole of the Regulations including, where applicable, the provisions of reg 16(3)(b).
[17] (2001) 206 CLR 401
Whether or not there is a grave risk or intolerable situation is a question of fact to be determined on the evidence before the Court.
That the mother has been a victim of domestic violence from the father does not appear to be contentious. What is contentious is the degree and extent of that domestic violence and whether there is a grave risk of the child being exposed to physical or psychological harm or otherwise placed in an intolerable situation by reason of domestic violence or exposure to it.
As is recognised in both Australia and El Salvador (from the evidence before me), domestic violence can take many forms and not all domestic violence will result in restrictions being placed on a parent in relation to the time spent with a child, let alone place the child at grave risk.
As properly conceded by counsel for the mother, the mere fact of there being a history of domestic violence does not equate with there being a grave risk of exposure to physical or psychological harm or an intolerable situation.
As to the nature and degree of domestic violence the mother relies on admissions made by the father in the domestic violence proceedings in 2014 where the judge records – “[the father] has accepted the facts reported by [the mother]”. The father says in his affidavit in the current proceedings that his lawyer informed him that he would not be able to see the child during the time the “violence demand lasted” so he accepted “all the charges against him”. I note that the actual record of the 2014 hearing records the father as “partially accepting the details of the allegations expressed by his wife”.
In support of her 2014 application the mother made the following allegations against the father:
…[he] had been aggressive he has always treated (sic) her as dressing like a whore, fat, bitter and ugly, economic abuse every time he is angry, as he is the provider for the child, for kindy, for medicine. She is the one who pays with her credit card and he reimburses her for the money spent but only when he calms down. … He threatens her by saying he will take the child as he is with the child all the time and has more money to support him. He tells her she is a bad mother because she works, because she doesn’t spend time with him during the day. … there are days when he is angry with everyone and other days when he is very nice to her and treats her really well when he is calm and then, suddenly, he changes and becomes very moody and yells … The latest acts of violence occurred on Friday 02-05-14 … when they were watching a program on TV about a man who raped and hit a woman because of infidelity. After this [the father] said to [the mother] that she had better tell him if she had someone else because the same thing … could happen to her. On Saturday 03-05-14 … [the father] started to check her mobile phone. They fought for the phone and he yelled at her in front of the child saying that she should tell him the truth as to whether she was unfaithful and that she should tell him in front of the child. The child started crying. … and she was afraid of the [father], seeing his violent behaviour. He was yelling at her and dared her to tell him if she was unfaithful, to swear on her son’s life to tell the truth, what she was hiding, he went crazy-like. And this is the reason she requests protection measures for her and her son, for him to not harass her. …
A temporary protection order issued on 6 May 2014, the same day the application was made. The ‘Protection Measures’ document states inter alia:
[the mother] shall be provided with the necessary Aid whenever she may require it and so I herewith attach photocopies of the said measures. I also ask that she be given assistance to exclude [the father] from the home.
The protective measures listed restrain the father inter alia from “harassing, persecuting, intimidating, threatening or carrying out any other form of physical or psychological mistreatment” against the mother or the child.
Subsequent to the making of the order the father returned to the home with the child. The mother and child left and went to her cousin’s home. The father had not at that time been served with the temporary protection order. The father then allegedly attended at the mother’s cousin’s home and made threats that he would “kill the child, the mother and himself with his gun”. The mother complains about the time it took police to respond to her request for assistance but they did attend, read the content of the temporary protection order to the father and he left the premises. The mother refers to this incident as a ‘breach’ of the order.
There is no evidence that the mother told police of any threat to kill her with a gun.
A Form 2A Answer sworn by the mother but not relied upon by her in these proceedings was served on the applicant on 7 November 2016.[18] The annexures to that document state the swearing date was 4 November 2016. The incident described by the mother as occurring on 6 May 2014 involved an allegation that the father “was shouting that he would kill himself if we didn’t come out”. There is no allegation that the father threatened to kill the mother or child and no allegation of any mention of a gun.
[18] The document was relied upon by the applicant because the father had responded to that document
Subsequent to the alleged threat to kill, the mother entered into an agreement on 8 May 2014 for the father to spend significant unsupervised time with the child. The mother was legally represented.
The matter returned to court in El Salvador on 9 May 2014. There is no mention in the hearing record of the alleged threat to kill made on 6 May 2014 or at all.
By agreement the protection order remained in force for one year.
Although not included as a particular of domestic violence in the 2014 proceedings the mother states in her supporting affidavit in the current proceedings that the father had made a threat to kill himself and the mother and the child in February 2014 which caused her to initially remain in the relationship. Indeed, the mother also alleges hearing “his repetitive threats that he was going to kill me and [the child] and then himself” during the marriage. The omission of such serious allegations is troubling.
Another inconsistency is the account now given of the incident that occurred on 3 May 2014 which the mother says included her being pushed to the ground with “his full force” and him throwing her mobile phone at her. Neither particular was included in the 2014 account.
In August 2015 the mother again applied for a protection order. This time in relation to the father’s alleged treatment of the child. Her application was dismissed after the court heard evidence and made a determination that there was no basis for the order. In the course of that hearing her counsel made the following submission:
… we consider that he is not a bad father, we know he loves his child, that is unquestionable nonetheless there are activities that are not adequate for the child. …
The mother alleges that in November 2015 after she asked the father to respect the agreement and return the child on time:
… [the father] pointed at his gun to his side and looked bizarrely at me.
Further, the mother alleges that in January 2016:
… the Father repeated his actions and on changeover showed me his gun to his side again and pointed his finger at me.
In the days leading up to her departure in March 2016 the mother alleges that when she approached the father’s vehicle to make it clear that his behaviour in failing to return the child on time was unacceptable:
… he showed me a gun and said that this was for me and [the child] and that he will kill both of us and then kill himself after if I did not return to him.
On 25 July 2016 the mother’s response to the father’s divorce and other orders application (commenced by him on 11 February 2016) was prepared and filed on the mother’s behalf by her lawyer, Mr Belloso. The mother raises allegations of domestic violence but curiously the allegations involving the gun are not made. Again, such an omission is troubling.
Importantly, for present purposes, the mother states in her response to the pending El Salvadorian proceedings dated 25 July 2016, inter alia:
… [the father] has always been able to enjoy his visitation days, and when has requested it, the mother has always facilitated that father and son time together, since it is beneficial for both of them, if it were not so then the bond that [the father] mentions so much in his demand would not exist.
…
Parental visitation rights have been offered to the father so that he may visit his son in in Australia once a year during the vacation in December for a period of 15 days. … [supervised by the mother]
It is noteworthy that although the mother now alleges the father has on numerous occasions both before and after separation threatened to kill her and the child and that he did so most recently shortly before her departure from El Salvador, she agreed to his spending extensive unsupervised time with the child between 8 May 2014 and 12 March 2016 and proposes to be the supervisor of the fifteen day period he spends with the child in Australia if she is permitted to remain in Australia.
The mother had experience of applying for a protection order and of it being granted on the same day on 6 May 2014. She also had experience of the police attending on the same day when the father attended her cousin’s home after the protection order was made and his leaving the property thereafter. Despite this experience there is no evidence that the mother applied at any other time for a protection order (other than the August 2015 occasion in relation to the child) even when far more serious allegations are made against the father than those complained of in May 2014.
The mother makes general assertions about being unable to contact police on occasions which are not particularised and relies upon assertions by others suggesting that the judicial system is “corrupt” and that the authorities have no interest and/or ability to protect the mother and the child.
The judgments of the various court determinations in El Salvador are before this Court. It is apparent on their face that issues raised were dealt with comprehensively and in a timely manner. It is also apparent that the mother was afforded assistance from police in 2014.
The Full Court in Murray v Director, Family Services (ACT)[19] held:
It would be presumptuous and offensive in the extreme, for a Court in this country to conclude that the wife and children are not capable of being protected by the [country of return] courts or that the relevant [country of return] authorities would not enforce protection orders which are made by courts.
In our view … the circumstances in which Regulation 16(3) comes into operation should largely be confined to situations where such protections are not available. …
For us to do otherwise, would be to act on untested evidence to thwart the principle purposes of the Hague Convention, which are to discourage child abduction and, where such abduction has occurred, to return such children to their country of habitual residence so that the courts of that country can determine where and with whom their best interests lie.
[19] (1993) FLC 92-416
Ms E provides some evidence on the protections available in El Salvador:
The procedure of domestic violence is preventative and through expeditions and fast procedures seeks to guarantee the life, integrity and dignity of women who are victims of violence, a criterion absolutely recognised by the different Family Chambers on a national level.
The mother’s experience in 2014 bears this out. I note the explanation given by the judge at the 2014 hearing to the parties as to the types of domestic violence recognised at law known as the ‘Special and Comprehensive Law for a Life Free from Violence Against Women’.
As part of the formal court processes engaged in by the parties in May 2014 the parties attended counselling together and individually and the evidence indicates that the object of the therapy was to “improve the communication they had as a couple and to learn how to handle their differences” and “in none of the sessions did either party express physical violence toward each other”.
The mother also refers to her fear that the father will kill her if she returns to El Salvador and refuses to return to the relationship. The father is the one who has applied for divorce which seems somewhat inconsistent with the mother’s stated fear and an indication that he accepts the relationship is over.
I note the father’s communications with the mother after her retention of the child in Australia contain no threats, insults or abuse. The father has at all times engaged in or instigated appropriate court proceedings.
The father alleges that until August 2015 the mother came to his house once or twice a week to be intimate.
In any event the allegations made by the mother can all be tested and determined in the El Salvador proceedings upon hearing the evidence of various witnesses relied upon by both parties in El Salvador.
The mother asserts that the father has connections with ‘gangs’. No such allegation was made at either hearing for a protection order in El Salvador. The father denies the allegation. He has no criminal record and annexes to his affidavit numerous character witnesses.
The mother describes various concerns about the alleged activities of gang members in El Salvador. I note that her workplace has security which was reinforced after an extortion demand was made.
The mother refers to having “personally experienced gun shots from the gangs whilst travelling in my cousin’s car from the beach to her place”. Whether this involved being shot at or simply hearing gun shots is not apparent nor when this experience occurred. While ‘experiencing gunshots’ would no doubt be unsettling, apart from this rather vague reference to ‘experiencing gunshots’, the mother does not say that she or indeed any of her family, including the child or father, have ever been a victim of violent crime.
The father deposes:
It is true that there is violence in very remote and localised areas in El Salvador, apart from where we live, the proof is that we have lived here for most of our lives in this country without problems. Part of my job is to take care of tourists from all over the world, I have done this for 16 years, taking them to different places in our country, such as lakes, mountains, volcanoes, rivers, villages, and I have never had any problems, on the contrary, tourism has grown in our country. We live in one of the best areas in El Salvador in regards to safety and education.
As to the mother’s concern that the child may at some future time be recruited into a gang, I am not prepared to place any particular weight on what amounts to mere speculation.
The mother makes allegations about the father’s illicit drug use and abuse of prescription drugs which does not appear to have been raised in the August 2015 proceedings. The father produced a negative drug test for the presence of cocaine dated 16 November 2016. The mother relies on imprecise opinions and speculation to support her allegations. I note that the father was spending extensive time with the child with the mother’s consent up to the time of their departure. In the statement of events relating to the mother’s application for a protection order in May 2014 I note that it states:
The [mother] adds that the subject has some form of drug addiction, apparently cocaine as she knew he was using it approximately 3 months ago but does not know if he currently using and she fears that he will take the child.
This did not prevent the mother agreeing to the father having extensive unsupervised time with the child up to March 2016.
It is helpful to note the findings of the Board of Protection to Children and Youth in August 2015 which dismissed the mother’s application against the father:
As far as a worthy and adequate level of life, it has been able to establish irrefutably that the child has a healthy and adequate lifestyle, given by both parents, since they both intend for the child to be taken care of at all times and in the best way, we observe that the child is a healthy boy, with adequate intelligence for his age, so this right [referring to a possible violation of the right to health] has not been threatened or violated.
The mother alleges that she suffers from sleepless nights and anxiety at the thought of returning to an environment where she has constant fear of the father. Even if this is the case there is no evidence that the mother’s parenting ability is in any way impaired.
The mother suggests that as there is no welfare in El Salvador she would not be able to support herself. I note that the absence of welfare is an assertion only but more importantly the mother does not say why she could not return to her previous employment in the family business where she had been working for a number of years prior to March 2016. She also has family and friends in El Salvador and refers to her parents’ ability to assist her with accommodation costs. I note that her father works as a medical professional on the Gold Coast, Australia.
The mother could resume living at the home she left in March 2016 should she so wish. The father continues to pay the rent on this property and I do not consider his alleged attempts to locate the mother by paying the security guards for information or his alleged change to the locks (an allegation to which the father has not had the opportunity to respond) as necessarily sinister. It is understandable that the father would try to locate the mother when she failed to return. It may have been for security reasons he changed the locks. In the event the father frustrated the mother’s attempts to return to this home the mother can pursue the matter in the appropriate court and in the meantime she has family and friends in El Salvador and I could not imagine they would see her homeless.
I note that as part of the pending proceedings in El Salvador the mother is seeking an order to be permitted to remain in Australia. She will not be precluded from pressing that application by returning to El Salvador.
The Australian Government’s Travel Advice is to “exercise a high degree of caution” in El Salvador. Many Convention countries have similar warnings as identified by the applicant. No doubt having lived in El Salvador since 1994 (save for a short period in 2008) the mother would be well aware of the need to exercise a high degree of caution. Her choice to live in El Salvador is interesting given she has held Australian citizenship since 1992.
I accept the submission of the applicant that the circumstances in this case are not akin to a ‘war zone’ and knowledgeable locals are not even so nearly at risk as tourists to whom the Australian Government’s warning is primarily directed.[20]
[20]Gerish-Grant v Department of Community Services (2002) 169 FLR 127
Conclusion as to grave risk or intolerable situation
As identified above the mother’s evidence is at times vague, speculative and internally inconsistent. The evidence of her witnesses is generally unhelpful containing assertions, anecdotal comment, conclusions, historical research of little, if any, relevance and opinion without proof of the factual basis upon which the opinion is based. Overall, the evidence relied upon by the mother is neither clear nor compelling.[21]
[21] DP v Commonwealth Central Authority; JLM v Director-General Department of Community Services (2001) 206 CLR 401
In my view the mother has failed to establish that ‘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’.
residual discretion
In the event that I am wrong in my assessment of the ‘grave risk and intolerable situation’ question I would nevertheless decline to exercise my discretion in refusing a return order.
In Re HB(Abduction: Children’s Objections)[22]her Honour Justice Hale (as her ladyship then was) held, when discussing the exercise of the residual discretion of the Court:
The policy of the Convention is, in my view, particularly important in cases where children come to another country for visits. It is obviously in the best interests of children whose parents live in separate countries that the parent with whom they live should feel able to send them on visits secure in the knowledge that the children will be returned at the end without difficulty. …
[22] (1997) 1 FLR 392
In my view those comments are particularly relevant in this case as the court in El Salvador made an order, against the father’s objections, and upon the mother’s assurances that she would return, to permit the mother to temporarily remove the child. Whether or not the mother changed her mind on the flight or misled the court is not to the point. The permission to leave was predicated on assurances which were accepted by the court and formed the basis for the order. To ignore that fact would be to make a mockery of the court process in El Salvador. Further, the mother was aware at least on 25 March 2016 that whatever may have been the legal effect of the 2014 agreement, the father had commenced proceedings on 11 February 2016 seeking an order that the child live primarily with him.
A further judgment of Baroness Hale of Richmond in In re M (FC) and another (FC)(Children)(FC)[23] is apposite:
In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the Contracting States and respect for one another’s judicial processes. Furthermore, the Convention is there not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the Contracting States.
[23] [2007] UKHL 55 at [42]
The mother’s actions in thwarting the father’s rights of custody are compounded by breaching not only the El Salvadorian court’s clear requirement of her to return the child by 16 April 2016 but by then also breaching the order obligating her to ensure frequent communication between the child and the father.
Summary
I am satisfied that the child was wrongfully retained in Australia after 16 April 2016 and that a return order should be made, the mother having failed to establish that an exception under the Regulations exists.
Miscellaneous
For completeness I note that in the mother’s Answer and Cross-Application filed 2 December 2016 she sought a ‘declaration’ pursuant to regulation 16(3)(d) but no submissions were addressed to that exception and it was not pressed.
I certify that the preceding one-hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 6 January 2017.
Associate:
Date: 6 January 2017
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