Director-General, Department of Communities, Child Safety and Disability Services and Matos Viera

[2013] FamCA 261

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & MATOS VIERA [2013] FamCA 261

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the child was habitually resident in Brazil – Where the child has been wrongfully retained in Australia by the Mother – Where there are no exceptions to a return order established

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

Department of Community Services & Crowe (1996) FLC 92-717
Department of Health and Community Services and State Central Authority & Casse (1995) FLC 92-629

APPLICANT: Director-General, Department of Communities, Child Safety and Disability Services

RESPONDENT: Ms Matos Viera

FILE NUMBER: BRC 1163 of 2013

DATE DELIVERED: 22 April 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 22 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamwood

SOLICITOR FOR THE APPLICANT: Crown Law

FOR THE RESPONDENT: In person

Orders

It is Ordered

1. That the child, S born … April 2005, be returned to the country of Brazil and for the purposes of giving effect to this order:

   (a)That the said child leave the Commonwealth of Australia on or before 7 May 2013;

   (b)That pending the said child, S born … April 2005, returning to Brazil, the respondent mother, Ms Matos Viera, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from the Commonwealth of Australia;

   (c)That pending the return of the said child, S born … April 2005 to Brazil, the respondent mother, Ms Matos Viera born … 1973, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child, S born … April 2005, from the premises where Ms Matos and the said child are currently residing namely, H Street, Suburb L;

   (d)That subject to sub-paragraph (e) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent mother, Ms Matos Viera born … 1973 and the said child S born … April 2005, on the All Ports Watch Alert System at all international departure points in Australia;

   (e)That the said child S born … April 2005, and the respondent mother, Ms Matos Viera be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services Unit, Department of Communities, Child Safety and Disability Services advising of the travel arrangements made for the said child to return to Brazil from 12.00 am on the date nominated for the said travel in the letter;

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

   (g)That to facilitate the return of the said child S born … April 2005 to Brazil an officer from the Court Services Unit, Department of Communities, Child Safety and Disability shall be at liberty to release all current passports relating to the child for the purposes of the said child's return to Brazil; and release the respondent mother’s passport to her or her nominee upon request.

   (h)That the respondent mother, Ms Matos Viera, pay all the necessary expenses associated with returning the child to Brazil, including the cost of airfares and departure taxes (if any) for the child to travel from Brisbane Airport to Brazil, and in the event the Respondent mother fails or refuses to pay these expenses; the respondent mother pay to the applicant the necessary expenses incurred by or on behalf of the applicant and Mr de Chito, in returning the child to Brazil, within two business days of the applicant making a written demand for reimbursement of the said expenses.

   (i)That liberty to apply be granted to the applicant to seek any further orders necessary to allow her 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 child in accordance with this order.

   (j)That paragraphs 1, 2, 3, 6 and 7 f the orders of the Honourable Justice Kent made 1 March 2013 be discharged forthwith.

2. That all other Applications be dismissed.

3. That there be liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Matos Viera 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 1163 of 2013

Director-General, Department of Communities, Child Safety and Disability Services

Applicant

And

Ms Matos Viera

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application filed on 19 February 2013 the Director-General, Department of Communities, Child Safety and Disability Services in the capacity of State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) applied for final orders for the child S, (“the child”) born in April 2005, who has just turned eight years of age, to be returned to the country of Brazil.

2. The Regulations which are made under sections 111B and 111D of the Family Law Act 1975 (Cth) (“the Act”) give effect to the Convention on the Civil Aspects of International Child Abduction, referred to as the Hague Convention, which is set out in schedule 1 to the Regulations.

3. The person who made the “request” within the meaning of regulation 2 of the Regulations is the child’s father, Mr de Chito who normally resides in Brazil, and the Respondent to this application is the child’s mother, Ms Matos Viera (“the Respondent”).

4. On 1 March 2013 I made a number of Orders by consent, including what may be conveniently described as the usual orders at the interim stage of an application such as this having regard to the content of the Form 2 application and the material in support of it, which established a prima facie case for a return order to be made.  Otherwise the matter was set down for trial to be heard today.

5. The Respondent appeared today representing herself and assisted by her present husband, Mr D.  By her answer and cross-application in Form 2A filed on 3 April 2013, the Respondent sought the dismissal of the application on the following grounds paraphrased and in summary:

   (1)That the child was not wrongfully retained in Australia;

   (2)That the father did not hold rights of custody in relation to the child under the law of Brazil “in which the child habitually resided immediately before the child’s removal to or retention in Australia”;

   (3)That the father consented to the child living in Australia until June 2013;

   (4)That return of the child to Brazil posed a grave risk to the child of physical or psychological harm or would otherwise place the child in an intolerable situation; 

   (5)That the child objects to being returned to Brazil with the objection showing a strength of feeling beyond the mere expression of a preference or of ordinary wishes and that the child has attained an age and degree of maturity at which it would be appropriate to take account of his views.

6. In support of her Form 2A answer and cross-application, the Respondent filed her own affidavits on 3 April 2013 and 18 April 2013 and her new husband, Mr D, also filed an affidavit on 3 April 2013. In the Respondent’s affidavit filed 3 April 2013, the Respondent details her reasons for moving to Australia from Brazil and the development of the relationship with her now husband, Mr D; gives details as to the child’s time in Australia prior to this application being filed; and asserts the child’s demonstrated desire to remain in Australia.  On her case, the child having arrived in Australia in September 2012, and despite speaking little English, settled in well and became distressed, she says, when the topic of returning to Brazil was brought up. Mr D likewise deposes to the child, he says, showing signs of anxiety whenever there was a reference to returning to Brazil. 

7. In the result, the Respondent no longer pursued some of the grounds of objection outlined in her form 2A, that is, she no longer pursued the ground described as the grave risk exception nor did she pursue a finding that the child objected to return to the country of Brazil. 

8. The chronology of this matter, briefly stated, is that the parents married in Rio de Janeiro, Brazil in December 1999.  As already noted the subject child was born in April 2005 and has just turned eight years of age.  The parents finally separated on 11 July 2007.  The evidence before me includes what is described as a separation judicial agreement the parents entered into in Brazil in July 2007. By reference to the translated version of that separation agreement, at that stage the agreement provided for the mother to have possession and custody of the son but that parental power was to be exercised on equal terms by the parents.  Notably, that agreement also provided that international travel for the child could only take place with the written consent of both parents. 

9. The parties divorced in December 2010 and the Respondent mother confirms in her affidavit material that the divorce in and of itself had no effect upon the separation agreement earlier referred to.  At paragraph 13 of the Respondent’s affidavit filed 3 April 2013 for the purpose of these proceedings the Respondent acknowledged that parental rights were to be shared under the separation agreement reached and she there confirms in her deposition that there was no change to that agreement when the divorce was ratified by the Brazilian Court in 2010.

10. In that affidavit, commencing at paragraph 14, the Respondent mother deposes to the investigation she commenced to make about studying in Australia.  At paragraph 15 she deposes that in May 2011 she commenced a process within the court’s system in Brazil which would permit her to, she says, continue to exercise full custody of her son and for the mother and son to live in Australia for the duration of her study.  She specifically acknowledges there that her reason for applying to the court in Brazil for full parental rights was to “remove any doubts” that the child could stay with her while she stayed in Australia.  It seems to me clear from the deposition in paragraph 15 that the mother was well aware that she required either the father’s agreement or the permission of a court in Brazil to achieve the position where her son could live with her in Australia during the currency of her study.

11. At paragraph 16 of the same affidavit, the mother deposes to her application being postponed and no definitive answers being given to it.  That seems to me to be curious on the materials filed in support of the application, which includes a translation of the Brazilian Court’s decision in June 2011 refusing the mother’s request to travel to Australia with the child.  That translation of the decision records the relevant provisions in relation to articles of the Brazilian Constitution and Civil Code and it is clear that the mother sought interlocutory relief that would permit her and her son to travel to Australia, but it is equally clear that she did not make out the requirement for conclusive proof provided for in article 273 of the Code of Civil Procedure in Brazil as is recorded in the decision of the Judge. The translation of the decision relevantly appears at page 54 of volume 1 of the attachments to the affidavit of Mr J filed 16 April 2013.

12. The mother records in her affidavit filed 3 April 2013, in paragraph 18, that she travelled to Australia in July 2011 to commence her studies, arranging for the subject child to stay in the care of her mother and a nanny in Brazil. She records that in August 2011 the father took their son into his care. While she there asserts that that was in violation of the relevant custody order it seems to me that translated materials in support of the application confirm that, under the law of Brazil, given the mother’s international absence the father was entitled to exercise parental rights for the child and was therefore entitled to have the child in his care.  I note in this respect the affidavit of the expert on Brazilian law, likewise attached to the affidavit of Mr J at item 5 which seems to be signed by one Dirce Ribeiro de Abreu described as Attorney-General in Brazil, records relevant matters in relation to the law of Brazil under its Civil Code and includes a provision as appearing at page 114 of the affidavit that under Brazilian law, in the case of physical absence of one parent that has legal custody, as was the case here, this custody is not transferrable to its own parents – I assume that to be a reference here to the mother’s parents – and then provides the other “present” parent (here the father) should automatically have the physical custody seeing that the present parent does not lose parental power. 

13. Whether or not I am right about those things, in the event, the child commenced living with the father in Brazil in August 2011 and that remained the position until the agreement that was the focus of these proceedings.  The mother, in her affidavit filed 3 April 2013, commencing at paragraph 13, sets out what she has to say about the relevant agreement.  It would seem within that that there are disputed issues of fact but what is not in dispute is as contained in paragraphs 36 and 37 of the mother’s affidavit that ultimately the agreement, in its final form, provided specific details in relation to proposed travel for the child from Brazil to Australia to be with the mother for the specific dates between 5 September 2012 and return to Brazil on 6 October 2012 (“the agreement”). 

14. The translation of the agreement appears as document 9A to the affidavit of Mr J earlier referred to.  It records the parties’ agreement for the child to travel for one month to Australia between the dates referred to and it includes the consent of the mother for the child to continue residing exclusively with the father while the mother is outside the country save for the child’s permission to travel as a tourist in the company of the mother from September 5 to October 6.  It further contains a specific provision in clause 5 that, should the mother fail to return the child on the due date by the expiration of 6 October 2012, the father would be entitled to take steps under the Hague Convention to enforce the child’s return to Brazil. 

15. Whilst in her affidavit referred to, and in her submissions before me, the mother contended that the relevant clause 5 was included against her wishes, the fact is she ultimately agrees that she signed the document in that form at a time when the mother was represented by a lawyer in Brazil.  Notably, that document was ultimately approved by a court in Brazil on or about 16 October 2012. 

16. In her affidavit at paragraph 43, the Respondent asserts that in a Skype conversation on 17 October 2012 with the father, the father expressed his agreement for the child to stay in Australia with the mother “until June 2013”.

17. On the father’s evidence, he first learned that the child would not be returning as planned on the return tickets purchased on the very day that the travel was to take place.  The mother says in her material that on that day she sought medical advice from a doctor in terms of the child being unwell and not able to travel. 

18. But there is other evidence in the proceedings before me including the evidence filed in support of the application to suggest that the mother may have had no real intention, at that stage, to return the child.  In the event, the mother suggests that, notwithstanding that the father activated the agreement referred to by taking steps in Brazil, that in a conversation on 17 October, the father expressed agreement for the child to stay in Australia until June 2013.  The father is adamant in his denial of such an assertion.  The mother suggests that the alleged agreement with the father replaced the earlier written agreement.  I do not accept the mother’s evidence on this topic. 

19. It seems to me that, putting it at highest, even on the mother’s submissions to me as to her account of the agreement she alleges, at best the father may have expressed something the mother took to be potential consideration of her request but it is patently obvious that there is no document in existence consistent with a concluded agreement being reached on 17 October that the father was consenting to the child remaining in Australia.  It seems to me, given all that had occurred beforehand in terms of the documents and court involvement that has been referred to, that if the mother achieved the agreement with the father she suggests, she would have been at some pains to take steps to immediately record it, even by way of an email communication. 

20. The mother’s material in support of her response to this application gives numerous examples she asserts of the father agreeing to something and then changing his mind.  It would seem to me that that makes it all the more obvious that she would have been at some pains to attempt to document any variation of the agreement if such an agreement had been made.  I am not satisfied that there was any such agreement made. That is, I do not accept the agreement was varied.

21. There is also the evidence before me of what occurred in the court in Rio de Janeiro on 22 October 2012 where the mother, by her then Brazilian attorney, opposed the father’s application to enforce the search and seizure provision of the agreement.  In submissions, the mother asserted that she had instructed her Brazilian lawyer to do nothing on the occasion of that Brazilian court event.  Aside from the fact that what is recorded in the relevant document, which is document 11 dated 22 October 2012 attached to the further affidavit of Mr J, not only did the attorney take active steps in opposition to the father’s application, there was no mention of any asserted agreement for the child to remain in Australia.  That is, it is inconsistent with an agreement having been reached on 17 October for the child to remain in Australia for the mother not to relay that to her Brazilian attorney for the purpose of the hearing on 22 October in Brazil.

22. If more were needed, one only needs to refer to the email communication between the parents surrounding 17 October as well as the transcriptions of communication that have been provided in support of the Applicant’s case, all of which are inconsistent with there having been any consent by the father as at 17 October for the child to remain in Australia.

23. The question of acquiescence was addressed, at least in passing, given the submissions by the mother about delay in bringing the current application.  But it seems to me that there is no basis for such a contention or that the father indicated in a 17 October conversation any acquiescence so far as the return of the child is concerned.  The law is clear that there needs to be clear and unequivocal words and conduct which could properly be interpreted as acquiescence to amount to true acquiescence within the meaning of the Convention and I refer to Department of Community Services & Crowe (1996) FLC 92-717 and Department of Health and Community Services and State Central Authority & Casse (1995) FLC 92-629.

24. In summary, I find that the Applicant has made out each of the requirements upon which the Applicant bears the onus of proof on this application. Specifically, I find that the subject child is eight years of age, the application was filed within the relevant time period and, at all material times, the child was habitually resident in Brazil. I am satisfied that within the meaning of the Regulations, the father had rights of custody under the law of Brazil, as already referred to, as at the time of the child’s retention in Australia on and from the due date of return and specifically that the father had rights of custody and, but for the wrongful retention, would have exercised those rights on and from 6 October 2012.

1. I am satisfied and find that the mother’s retention of the child in Australia beyond 5 October, or the return date of 6 October, was in breach of the father’s rights of custody.  I find that the mother has not made out any ground of defence to the making of a return order.  Specifically, I reject her contention that her retention of the child in Australia was not wrongful and, for reasons already noted, I reject her contention that the father did not hold rights of custody under Brazilian law at the relevant time.  I reject the mother’s contention, for the reasons referred to, that the father consented to the child living in Australia until June 2013. In circumstances where the mother resiled from the other grounds that she had originally advanced, namely, the grave risk exception and that the child objects, it is unnecessary for me to detail my reasons any further in relation to the application.

2. For these reasons, I therefore make Orders in terms of the draft orders submitted on behalf of the Applicant with the modification for the date of return being as discussed in the course of submissions, on or before 7 May, and with the deletion of subparagraph 1(d).

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 22 April 2013.

Associate: 

Date:  24 April 2013