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

[2012] FamCA 344

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & SAKOPO [2012] FamCA 344

FAMILY LAW – CHILD ABDUCTION - HAGUE CONVENTION - Whether a return Order should be made - Where the Respondent Father does not submit that the Applicant has not established their case - Where the Respondent Father submits that the defence of objection beyond a mere wish or preference applies in respect of the subject child

Care of Children Act 2004 (NZ)
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Director-General of Family and Community Services (NSW) v Davis (1990) FLC 92-182
Gsponer v Director-General, Department of Community Services, VIC (1989) FLC 92-001
Murray v Director, Family Services ACT (1993) FLC 92-416
Re F (Hague Convention: Child’s Objections) (2006) 26 Fam LR 183
Re S(A Minor)(Abduction; Custody Rights) [1993] Fam 242
Richards v Director-General, Department of Child Safety [2007] FamCA 65

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

RESPONDENT: Mr Sakopo

FILE NUMBER: BRC 2201 of 2012

DATE DELIVERED: 15 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 11 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Crown Law

Orders

1. Paragraphs 1 to 7 (inclusive) of the Orders of 23 March 2012 be discharged.

2. The Applicant forthwith return to the Respondent all current passports held by the Applicant (if any) relating to the Father and T, born … April 1997.

3. The Applicant forthwith notify the Australian Federal Police of these Orders and the Applicant be at liberty to serve these Orders upon the Australian Federal Police.

4. The Application of the Director-General, Department of Communities, Child Safety and Disability Services filed on 12 March 2012 be dismissed.

5. The proceedings be removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Sakopo 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 2201 of 2012

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

Applicant

And

Mr Sakopo

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant seeks the return of T, (“the child”), born … April 1997, who is thus now 15 years of age, by Order for return made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

2. The Applicant applies in her capacity as the State Central Authority under the Regulations, and the person who made the “request” within the meaning of reg 2 of the Regulations is the child’s mother, Ms Sakopo (“the Mother”), a resident of New Zealand, and the Respondent to this application is the child’s father, Mr Sakopo (“the Respondent”), who has resided in Australia since about 1996.

3. Apart from the child, the Mother and the Respondent are parents to three younger children, S, N and E, aged approximately, 13, 10 and 8 respectively, who remain living with the Mother in Auckland, New Zealand.

Relevant Background

1. Each of the parents was born in Tonga; the Mother in 1969 and the Respondent in 1970. They both came separately to New Zealand as young children.

2. The parents met and married in New Zealand in 1993. They moved to Cairns, Australia, in 1996. The child was born in Cairns, as already noted, in April 1997, and the family moved in 1999 to Sydney, where the three younger children were born.

3. In August 2006, the parents separated whilst living in Sydney. In October 2006, the Mother returned to New Zealand briefly with the children absent the Respondent’s agreement. The Mother returned to Australia in January 2007.

4. In 2009, the Mother initiated proceedings in the Family Court of Australia, resulting in consent Orders made on 16 March 2010. By then, the Respondent had moved to live on the Gold Coast in Queensland. The consent Orders permitted the Mother to relocate with the children to Auckland, New Zealand, “…in February 2010.”

5. It appears that the issue of the child moving to Australia to live with the Respondent arose in about August 2011.

6. For Christmas 2011, the children spent time with their father on a cruise that departed from Auckland on 19 December 2011 and returned on 29 December 2011. On 29 December 2011, the child left New Zealand with the Respondent at the conclusion of the cruise and has remained living with the Respondent since then, leading to these proceedings.

The Regulations

1. Regulation 14 provides for applications to a Court in relation to a child who is removed from a Convention country to, or retained in, Australia.

2. Regulations 15 and 16 control the making of Orders for return. Regulation 15(1) expresses the power of the Court to make certain Orders, “…if a court is satisfied that it is desirable to do so.” Regulation 16(1) governs the power expressed in reg 15. By reg 16(1), if an application for a return Order for a child is filed within one year after the child’s removal or retention, and the Applicant satisfies the Court that the child’s removal or retention was wrongful under reg 16(1A), the Court must, subject to reg 16(3), make the Order.

3. The Applicant carries the onus of establishing each of the five matters set out in reg 16(1A) to demonstrate that the child’s removal to, or retention in, Australia is wrongful. If any of those matters are not established, the Court must refuse to make a return Order.

4. Regulation 16(3) identifies five circumstances, any one of which being established by a person opposing return, gives rise to the discretion for a Court to refuse to make an Order for return. Regulation 16(5) provides that a Court is not precluded from making a return Order for a child, “…only because a matter mentioned in subregulation (3) is established by a person opposing return.”

Issues in Contention

1. The Respondent is a works in the construction industry and he prepared his own material and appeared for himself throughout these proceedings. There is no suggestion that the Respondent has any relevant legal skills or training or that he had any legal assistance in either the preparation of his material or in respect of his representation of himself in Court.

2. Both on the first return date of the application on 23 March 2012 and at the final hearing on 11 May 2012, I sought to clarify with the Respondent, by reference to the Regulations, some of the potential ambiguities in his approach and material.

3. At the trial on 11 May 2012, the Respondent was cross-examined by Counsel for the Applicant and I also sought in that process, as well as in the course of final submissions, clarification from the Respondent of the grounds upon which he opposed the application and the making of a return Order.

4. The Respondent relied upon his Answer and Cross-Application filed on 18 April 2012 and his affidavits filed respectively on 24 April 2012 and 9 May 2012. The Respondent also relied upon the reg 26 report which was prepared by Mr P, Family Consultant, pursuant to an Order made on 23 March 2012, being the first return date of the application, for that to occur.

5. In the end, it appeared that the Respondent sought to defend the application on the basis that the child objected to being returned to New Zealand within the meaning of reg 16(3)(c) and, possibly, on the “grave risk” ground expressed in reg 16(3)(b). In case I have misinterpreted the Father’s position, I will record relevant findings otherwise relevant to the Regulations.

6. I find that New Zealand is a Convention country for the purpose of the Regulations. The application for a return Order was filed within one year after the child’s removal from New Zealand on 29 December 2011. For the purposes of reg 16(1A), the child is, at the age of 15 years, under the age of 16. It is clear on the evidence, and I find, that the child was habitually resident in New Zealand immediately before his removal to Australia on 29 December 2011.

7. I am satisfied that the particulars concerning the Mother’s rights of custody set out in the application are established, supported as they are by not only the Mother’s unchallenged evidence in this respect, but also by the affidavit of Alexander Ashmore, a barrister of the High Court of New Zealand.

8. Specifically, I find that the parental responsibility vested in both parents consequent upon the child’s birth in Australia on 26 April 1997 is recognised in New Zealand. I am satisfied that under the Care of Children Act 2004 (NZ), the Mother is a guardian of the child and her duties, powers, rights and responsibilities under that Act include determining questions about any change to the child’s country of residence and that these are rights of custody within the meaning of the Regulations.

9. I find that pursuant to the terms of the 16 March 2010 consent Orders made by the Family Court of Australia, it was ordered, inter alia, that the parents have joint parental responsibility for the child, and therefore the Mother has parental responsibility pursuant to the provisions of the Family Law Act 1975 (Cth) (“the Act”). That is confirmed by s 111B of the Act and “parental responsibility” under the Act comes within the definition of “rights of custody” as that term is defined in reg 4(2) of the Regulations.

10. The Mother deposes in her affidavit material that she did not consent to the child’s removal to Australia, and in circumstances where the Father did not seek to cross-examine the Mother or challenge her in this respect, I accept that the Mother did not consent or subsequently acquiesce in the child being removed to Australia. I am also satisfied that the child’s removal to Australia is in breach of the Mother’s rights of custody and that at the time of his removal, the Mother was actually exercising her rights of custody and would have exercised those rights if the child had not been removed.

11. In summary, I am satisfied that the Applicant has established each of the five elements set out in reg 16(1A) of the Regulations and that the child’s removal to Australia was wrongful within the meaning of the Regulations.

Grave Risk – reg 16(3)(b)

1. The Respondent carries the onus of establishing this ground. I have already referred to the feature that the Father did not seek to cross-examine the Mother at the trial.

2. The meaning of reg 16(3)(b) was considered by the Full Court of this Court in Gsponer v Director-General, Department of Community Services, VIC (1989) FLC 92-001 (“Gsponer”). The Full Court held that the three categories referred to in paragraph (b) should be read distributively so that it sufficed if the Respondent established a grave risk either of physical harm or of psychological harm or of the child being placed in an intolerable situation. Their Honours agreed with the comment of Nourse LJ in Re A (a minor) [1988] 1 FLR 365, that:

   Not only must the risk be a weighty one, but it must be one of substantial, and not trivial, psychological harm.

3. Gsponer was followed by the Full Court of this Court in Director-General of Family and Community Services (NSW) v Davis (1990) FLC 92-182, where the Court held that any psychological harm must be, “…substantial, and indeed to a level comparable to an intolerable state.”

4. The evidence advanced by the Respondent, which is to the effect that the housing conditions provided by the Mother are deficient, and that there are also deficiencies in the Mother’s availability and application of care to the children, were disputed by the Mother on her affidavit evidence. I have already noted that the Father did not cross-examine the Mother on this issue, one in respect of which he has the onus of proof.

5. In any event, I am not satisfied that the Father establishes proof of this ground. Moreover, I accept the submission of Mr Linklater-Steele, Counsel for the Applicant, that this Court should not lightly presume that the legal system of New Zealand is so deficient as to afford no protection to the welfare of the children, by reference to the relevant statement of the Full Court in Murray v Director, Family Services ACT (1993) FLC 92-416. I find that the Respondent does not establish this ground.

Objection – reg 16(3)(c)

1. Exhibit 1, admitted into evidence at the trial, is the reg 26 report of Mr P, Family Consultant, who undertook preparation of that report in accordance with the Order of this Court made on 23 March 2012.

2. Counsel for the Applicant cross-examined Mr P at the trial and he elaborated on the views and opinions expressed in his report in the course of his oral evidence.

3. Paragraphs 8 to 13 of Mr P’s report clearly confirm that Mr P directed his attention to the relevant considerations as expressed in the relevant subregulation.

4. At paragraph 4 of his report, Mr P described the child’s presentation as a, “…mature, sensible-minded person and his responses to questions were coherent and logical.” Mr P expanded on the child’s presentation in his oral evidence. He there described the child as, “…contained and measured…”; “…compliant…”; and “…with an even and easy temperament.”

5. I accept Mr P’s oral evidence to the effect that some children may be demonstrative, by words or actions, in demonstrating their strength of feeling, whilst other children, by reason of temperament or other characteristics, may not be so demonstrative, but nevertheless have or hold a strength of feeling the same as the first kind of child described. I accept Mr P’s evidence that the child falls into the non-demonstrative category, but nevertheless the views he expressed to Mr P showed a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

6. In this context, at paragraph 8 of his report, Mr P recorded that the child objected to returning to New Zealand. When Mr P asked the child, he said, “I won’t go back.” Mr P records that the child’s “position” did not alter during the interview.

7. Mr P assessed the child to be a boy who does not like conflict and who would be someone likely to seek to resolve conflict verbally rather than physically. In that context, Mr P assessed the child’s clear expression of his objection as significant to the assessment of the strength of feeling, and I accept that assessment. To this may be added that Mr P assessed the child to be unwilling to upset the Mother and is, “…good-hearted…” and, “…sensitive…” and would seek not to upset people in general, but particularly his parents. Again, in that context, Mr P highlighted the significance of the child’s statement of objection and maintenance of that “position”. Taking into account that the child is still an adolescent with the propensity for impulsivity that adolescents possess, Mr P was satisfied that the child grasped the difference between something, “…looking good at the moment…” as opposed to a considered conclusion held over a long time.

8. Mr P expressed views in his oral evidence to the effect that the child could support his preference by the identification of clear reasons, and could do so well in comparison to a less mature child. Mr P accepted that the child could do so with little prompting from Mr P.

9. Mr P was satisfied that the child well understood the difference between a permanent as opposed to a temporary move in the context of the views the child expressed to Mr P.

10. Annexure I to the affidavit of the Respondent filed 24 April 2012 is a typewritten document prepared by the child. The first part of that document is headed, “Reasons why I want to stay” and the second part of that document is headed, “Reasons why I don’t want to go home”.

11. I accept Mr P’s assessment, based upon his exploration as to the source of those documents with the child during the interview, that these constitute, “…the child’s words…” as opposed to being the product of input from the Respondent.

12. In this respect, I note that the Respondent was cross-examined at some length about his input into the contents of Annexure I referred to. I found the Respondent to be an entirely credible witness in giving his evidence and I accept his evidence that the Respondent was, like Mr P, keen to ensure that the child’s desire to live with the Respondent in Australia was not some momentary or temporary decision and that the Respondent simply sought for the child to express this himself in writing, with Annexure I being the consequent product of the child’s own input.

13. At paragraph 4 of his report, Mr P records what the child told him about his schooling environment in New Zealand, which includes reference to the child being caught up in some violence which the child described as, “…gang-related…” and Mr P noted the child’s strong desire not to return to his former school.

14. Counsel for the Applicant addressed this aspect both with the Respondent in his cross-examination and with Mr P. In particular, Counsel referred both witnesses to the feature that no reference to this aspect was made in Annexure I.

15. I accept the Respondent’s evidence to the effect that he simply told the child in preparing what is now Annexure I, “…to be honest with everything and everything will be alright.” I also accept the Respondent’s evidence that whilst he knew the child was subject to some bullying at school and would tend to, “…hang out…” at school with younger children; and that the child had also been bullied to some extent by his older cousins, that the Father was not told by the child prior to Mr P’s interview, and did not discuss with the child prior to the interview, any, “…gang-related…” type violence.

16. To some extent, Counsel for the Applicant referred to the feature that the child’s school attendance or records as to school attendance did not seem to reflect any significant absences from school as might be consistent with the child being bullied at school. In this respect, Mr P referred to his experience in child and youth mental health. He assessed the child to be a robust individual in terms of being developmentally robust as opposed to being developmentally vulnerable. He described the child as therefore having, “…good onboard resources…” for coping at school and that in an individual such as this, any bullying of the child may or may not be reflected in his school performance or school attendance.

17. I accept the facts stated in Mr P’s report upon which Mr P relied are established on the evidence. I accept that the child made the statements to Mr P that are attributed to him. I accept that the opinions expressed by Mr P and I accept that Mr P has relevant qualifications and lengthy experience as set out in the curriculum vitae as set out in Appendix A to his report which qualifies him to provide those opinions.

18. I note that at paragraph 8 of his report, Mr P was mindful of establishing with the child whether the child’s objections to returning to New Zealand were in fact linked to an objection to living with the child’s mother rather than an outright objection to living in New Zealand. I accept the summary and evaluation set out by Mr P in paragraphs 14 to 20 of his report as his expert evidence and opinion.

19. The date for determining whether the child objects is the date of the hearing.[1] The objection must be to a return to the country of habitual residence, and not simply to living with a particular parent, although the child will not be expected to articulate that distinction precisely.[2]

    [1] In the Marriage of Agee (2000) 27 Fam LR 140.

    [2] De L & Director-General, NSW Dept of Community Services (1997) 21 Fam LR 413; In the Marriage of Agee (2000) 27 Fam LR 140.

20. The Regulations do not prescribe a particular age, and in Re S(A Minor)(Abduction; Custody Rights) [1993] Fam 242, the child, whose wish to remain in England was upheld, was nine years old. In Re F (Hague Convention: Child’s Objections) (2006) 26 Fam LR 183, the Court upheld the objection of a 12 year old child.

1. I find that the child objects to being returned to New Zealand and that his objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes. I find that the child has attained an age and degree of maturity at which it is appropriate to take account of his views.

2. I find that the Respondent has thus established this ground pursuant to reg 16(3)(c) of the Regulations.

3. It is implicit in the findings, so expressed, but in order to remove any doubt, I have taken into account the possibility of the child’s views having been influenced by the Respondent, but I dismiss that possibility. I accept the Respondent’s evidence that he has not influenced the content of the child’s views and I accept Mr P’s evidence to the effect that the child’s expressions are his own views.

Residual Discretion

1. There is authority, including in the High Court, that confirms that reg 16(3) confers a discretion on the Court to Order the return of the child notwithstanding that an exception under that subregulation has been established.[3]

   [3] De L & Director-General, NSW Dept of Community Services (1997) 21 Fam LR 413, 640 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); DP v Commonwealth Central Authority (2001) 206 CLR 401 (Gaudron, Gummow and Hayne JJ); In the Marriage of Agee (2000) 27 Fam LR 140 (Finn, Holden and Guest JJ).

2. In Richards v Director-General, Department of Child Safety [2007] FamCA 65 (Kay, Coleman and Boland JJ), the Full Court of this Court found that once the discretion is enlivened, it is at large and there is no requirement for, “…clear and compelling…” reasons in addition to the ground for not making a return Order. Further, that the subject matter of the Regulations is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.

3. The child is now, as noted, 15 years of age. He has lived the whole of his life in Australia until February 2010. The evidence, including that of the Mother, confirms that questions of the child returning to Australia to reside with the Respondent, who has lived here for many years, arose now a considerable time ago, commencing in about August of last year.

4. Having regard to the child’s level of maturity as assessed by Mr P, and his presentation generally as assessed, and the strength of feeling as I have found of the child’s objection to returning to New Zealand, and the reasons that he has articulated for that strength of feeling, it could not be suggested that consideration of the child’s welfare dictates in favour of exercising the discretion to make a return Order despite the child’s objection.

5. I note that no specific submission in Mr Linklater-Steele’s very helpful written submissions specifically addressed exercise of the residual discretion if the Court finds the objection ground made out, as has been found. That is, no compelling reasons were identified on behalf of the Applicant as to why the discretion ought be exercised to make a return Order despite the objection ground being made out.

6. As has already been discussed, the purpose of the Convention is to resolve forum issues and to secure the prompt return of children to their country of habitual residence so that the Courts of that country may resolve custody or parenting issues.

7. However, the practical reality in this case is that the child is a mature and intelligent 15 year old. It would be unrealistic to think that the child’s views, as strongly held as they are, would not loom very large, if not decisively large, in the determination of Orders in his best interests by any Court, absent some child welfare issue not apparent on the evidence before me.

8. In those circumstances it cannot be assumed that if a return Order were made that custody or parenting proceedings would ensue in New Zealand, given that the child will soon be of an age where he will determine for himself, irrespective of Court proceedings, his living arrangements.

9. In all the circumstances, I decline to exercise the discretion to make a return Order given the ground that has been made out in the circumstances of this case.

10. I therefore make Orders as set out at the commencement of these reasons.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 May 2012.

Associate: 

Date:  15 May 2012