Director-General, Department of Communities (Child Safety Services) and Terry
[2011] FamCA 921
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & TERRY | [2011] FamCA 921 |
| FAMILY LAW – CHILDREN – Application under the Hague Convention on the Civil Aspects of International Child Abduction – Rights of custody under Country C law – Rights of custody including right to determine child’s place of residence – Whether rights of custody actually exercised or would be exercised – Whether exception to return Order made out because child objects to return |
| Care of Children Act 2004 (Country C) |
| De L v Director-General, NSW Department of Community Services & Anor (1996) FLC 92-706 Director General, Department of Community Services v Crowe (1996) FLC 92-717 DP v Commonwealth Central Authority; JLM v Director-General, Department of Community Services [2001] HCA 39 Friedrich v Friedrich 78 F. 3d 1060 (6th Cir. 1996) Re H (Abduction: Custody Rights) andRe S (Abduction: Custody Rights) [1991] 2 AC 476 Re W (Abduction: Procedure) [1995] 1 FLR 878 |
| APPLICANT: | Director-General, Department of Communities (Child Safety Services) |
| RESPONDENT: | Ms Terry |
| FILE NUMBER: | BRC | 7218 | of | 2011 |
| DATE DELIVERED: | 8 December 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 16 November 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Selfridge |
| SOLICITOR FOR THE APPLICANT: | Crown Law |
Orders
The child, B, born … 1997, be returned to the country of Country C; and for the purposes of giving effect to this Order;
(a) That the said child leave the Commonwealth of Australia on or before 15 December 2011;
(b) That the said child arrive in Country C on or before 16 December 2011;
(c) That pending the said child returning to Country C, the respondent mother, Ms Terry, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from the Commonwealth of Australia;
(d) That pending the return of the said child to Country C, the respondent mother continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child from the premises where the child and Ms Terry are currently residing, namely D Street, E Town, in the State of Queensland, Australia;
(e) That subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent mother and the said child on the All Ports Watch Alert System at all international departure points to Australia;
(f) That the said child and the respondent mother 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 of the Department of Communities advising of the travel arrangements made for the said child to return to Country C from 12.00 am on the date nominated for the said travel in the letter;
(g) 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;
(h) That to facilitate the return of the said child, B, born … 1997, to Country C, an officer of the Department of Communities be at liberty to release to the respondent mother all current passports relating to the child for the purpose of the said child’s return and release the passport of the respondent mother to her or her nominee upon her request;
(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 to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order and pursuant to the Central Authority’s obligation under reg 20 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
The respondent mother, Ms Terry, born…1978, pay all the necessary expenses associated with returning the child to Country C, including the cost of airfares and departure taxes (if any) for the child to travel from Brisbane International Airport to Country C, 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 F in returning the child to Country C, within two business days of the applicant making a written demand for reimbursement of the said expenses.
That all other applications be dismissed.
That there be liberty to apply.
IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Communities (Child Safety Services) & Terry is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 7218 of 2011
| Director-General, Department of Communities (Child Safety Services) |
Applicant
And
| Ms Terry |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application filed 16 August 2011, the Director-General, Department of Communities (Child Safety Services), in her capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), applied for final Orders that B (“the child”), born in 1997, be returned to Country C.
The requesting person is the child’s father, Mr F (“the Father”), who is resident in Country C, and the Respondent to this Application is the child’s mother, Ms Terry (“the Mother”), presently resident in E Town in Queensland.
The Regulations made under ss 11B and 111D of the Family Law Act 1975 (Cth) (“the Act”) give effect to the Convention on the Civil Aspects of International Child Abduction (“the Convention”), which is set out in Schedule 1 to the Regulations.
On 26 August 2011, I made various ex parte Orders (the Respondent did not then appear) and adjourned the matter for further hearing to 9 September 2011. On that date, I made a variety of Orders as to the filing of material and the further hearing of the matter. I also made an Order, particularly having regard to the child’s age, for a report to be prepared by a Family Consultant pursuant to reg 26 of the Regulations.
Relevant Background
The Father was born in 1973, and the Mother was born in 1978.
The Mother and the Father commenced a de facto relationship in about 1996. As noted, the child was born in 1997. The parties finally separated in early 1998.
Both parents were born in Country C and are of Country C origin. Both parents were living in Country C, as was the child, until the events giving rise to this Application.
The affidavit evidence in support of the Application, which is unchallenged in this respect, establishes that pursuant to the relevant legislation in Country C (Care of Children Act 2004 (Country C) (“the Act”), each of the Mother and the Father have at all material times been, respectively, a guardian of the child.
The Act defines parents’ rights and responsibilities in relation to their children. Section 15 defines guardianship as including, “all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child.”
Sections 16-18 of the Act provide, inter alia, that, “the duties, powers, rights and responsibilities of a guardian of the child” include “having the role of providing day-to-day care for the child” and to “determine questions about important matters affecting the child”. Important matters affecting the child are defined in s 16(ii) as including “changes to child’s place of residence”.
Section 97 of the Act defines rights of custody of a child as including the right to determine the child’s place of residence.
Family law proceedings between the parents in Country C culminated in a parenting Order made on 13 February 2008 by consent. Essentially, that Order provides for the child to be in the day-to-day care of the Mother and to have contact with the Father at various defined times. That Order did not disturb the Father’s position as a guardian of the child.
On 12 February 2011, the Mother removed the child from Country C and travelled from City G to H Town In Queensland in Australia. The Mother and the child have resided in Australia since and are currently resident at E Town. The child’s removal from Country C occurred without the knowledge or consent of the Father.
Application of the Regulations
As was explained to the Mother in the course of the hearing, the Regulations are not directed at the question of what the welfare of the child requires, but are directed to ensuring that questions concerning the child’s welfare are determined by the jurisdiction in which the child was habitually resident at the time of the child’s removal or retention from that jurisdiction. The Regulations are concerned with the determination of forum. The policy with respect to the best interest of the child under the Regulations focuses upon the appropriate forum.[1]
[1] MW v Director-General of the Department of Community Services (2008) 244 ALR 205 at [58].
Where, as here, proceedings have been filed within a year of the child’s removal to Australia, the circumstances in which the Court must make a return Order may be summarised as follows:
a)The Applicant must be the responsible Central Authority, or a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention (reg 14(2));
b)The Application must be filed within one year after the child’s removal or retention (reg 16(1)(b));
c)The removal or retention must be “wrongful” under sub-reg (1A) (reg 16(1)(c))
The concept of “wrongful” includes five separate ingredients. Regulation 16(1A) provides that the removal or retention is wrongful if all the following conditions are met:
i)The child was under 16 years of age;
ii)The child habitually resided in a Convention country immediately before the child’s removal to, or retention in, Australia;
iii)The person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia;
iv)The child’s removal to, or retention in, Australia, was in breach of those rights of custody;
v)At the time of the child’s removal or retention, the person, institution or other body:
a)was actually exercising rights of custody (either jointly or alone); or
b)would have exercised those rights if the child had not been removed or retained.
B is fourteen years of age.
It was not in issue in the proceedings before me that the child was habitually resident in Country C, a Convention country, immediately before his removal to Australia on 12 February 2011 and I so find.
As outlined above, by operation of the Act and the parenting Order made in the Family Court at I Town on 13 Feburary 2008, the Father had “rights of custody” in relation to the child under the law of Country C immediately before the child’s removal to Australia.
The child’s removal to Australia is in breach of the Father’s rights of custody because, inter alia, those rights included the right to determine where the child lives.
Thus, four of the ingredients of reg 16(1A) are essentially not challenged by the Mother and the Applicant has discharged the onus of proof it bears with respect to those ingredients.
Exercise of Rights of Custody
Regulation 29 outlines the evidentiary provisions in the Regulations facilitating the receipt of certain evidence in this proceeding. Regulation 29(2) renders admissible as evidence of the facts stated therein, the Application and supporting documents. Regulation 29(3) renders admissible in evidence affidavits of witnesses who reside outside Australia, even if the witness does not attend the proceeding for cross-examination. Regulation 29(4) renders admissible statements setting out or summarising evidence given in the proceeding in a court in a Convention country, and evidence in relation to custody of a child. Regulation 29(5) enables this Court to take judicial notice of a law enforced in Country C and of Country C decisions of a judicial or administrative character. Regulation 29(6) facilitates the admission into evidence of Orders or decisions made in Country C.
The Applicant relied upon the expert evidence of the law of Country C provided by Ms Dianne Marie Partridge, barrister of the High Court of Country C. That evidence was unchallenged. I accept that Ms Partridge has relevant specialised knowledge within the meaning of s 79 of the Evidence Act 1995 (Cth) and that her opinions are based on that knowledge. I accept her opinions that:
d)Under Country C law, the Father has rights of custody by virtue of the fact that he is a guardian of the child pursuant to s 17 of the Act and that the Father and the Mother are joint guardians of the child;
e)Pursuant to the Act, as joint guardians, both the Father and the Mother had the right to determine the child’s place of residence;
f)The Parenting Order made in Country C on 13 February 2008 provided for the child to be in the day-to-day care of the Mother and to have contact with the Father.
By necessary inference, the evidence of the expert is that the Parenting Order made in Country C as referred to, did not modify the position of the parents as joint guardians of the child, and did not disturb the Father’s rights of custody pursuant to Country C law, including his right to determine where the child lives.
In J v Director-General, Department of Community Services [2003] FamCA 929, the Full Court, by reference to authority, approved of a three step process in determining whether a requesting person has rights of custody, and applying that process to the present case, that requires:
a)Establishing, on the evidence before the Court, what rights, if any, the Father had under Country C law in relation to the child at the time of the child’s removal;
b)To resolve, as a matter of Australian law, whether those rights amount to “rights of custody” within the meaning of reg 4 of the Regulations;
c)Finally, the question is whether or not the removal of the child was in breach of those rights.
Given the foregoing, I am satisfied that the Father had the right to determine where the child lives under Country C law, and that amounts to “rights of custody” under Australian law within the meaning of the Regulations. the child’s removal was in breach of those rights.
The Mother does challenge the last of those ingredients. Specifically, the Mother asserts that the Father was not actually exercising his rights of custody, nor would the Father have exercised those rights if the child had not been removed from Country C.
In support of the Mother’s contention that the Father was not actually exercising his rights of custody, nor would the Father have exercised those rights if the child had not been removed from Country C, much of the Mother’s affidavit evidence was directed towards demonstrating that the Father has failed to avail himself of opportunities to spend time with the child. This culminates in her deposition to the effect that the Father has only seen or spent time with the child on about two occasions over the period of about two years prior to the Mother’s departure from Country C.
For his part, the Father deposes to the Mother having frustrated, in effect, his ability to spend time with the child as often as the Father would have chosen to so do.
For the reasons which follow, it would appear that it is unnecessary for any forensic purpose for the Court to conclusively determine each aspect of the competing versions of the parties in this respect.
Regulation 4 defines “rights of custody” as including, “…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.”
Based upon the expert evidence of Dianne Marie Partridge, barrister of the High Court of Country C, relied upon by the Applicant, which is unchallenged by the Respondent, there can be no doubt that by operation of the Act, as earlier referred to, the Father had “rights of custody” within the meaning of the Regulations.
I find that the Father’s rights of custody have been breached within the meaning of the Regulations by the child’s removal from Country C without the Father’s consent.[2]
[2] See Director General, Department of Community Services v Crowe (1996) FLC 92-717.
I have already noted that a parenting Order was made by consent in the I Town Family Court on 13 February 2008.
That Order provided for the Father to have contact with the child, in summary, for two weekends each school term; school term holidays; four weeks in the Christmas holidays each year; and at other times as agreed.
Nothing in that Order alters the Father’s rights under the statute law of Country C to determine the child’s place of residence.
The case law demonstrates that courts have been most reluctant to find that a parent in the country of origin was not in fact exercising his or her rights of custody at the time of removal or would have so done but for the removal.
For example, in Re W (Abduction: Procedure) [1995] 1 FLR 878 at 887, the Father argued, inter alia, that by signing a statement allowing him to take temporary care of the child, the Mother was not actually exercising her sole rights of custody. This was rejected by Wall J, who held that the very signing of the agreement indicated that the Mother was exercising her rights.
In Director-General, Department of Community Services Central Authority v Crowe,[3] the Full Court of this Court emphasised that the delegation of care and control may, in itself, be an exercise of rights of custody. In that case, the Mother asked the paternal grandparents to assume responsibility for her infant daughter. This informal arrangement persisted for over six years, with the mother having contact spasmodically. The paternal family then travelled to Australia and retained the child in Australia. The Full Court held that the Mother’s actions did not represent, “…surrendering, abandoning, waiving or giving away her rights to custody,” rather, that she had discharged, through the grandparents, her duty to the child and therefore, at the time of the retention, was actually exercising rights of custody. Further, the Full Court also held that the Mother had retained the right to determine the child’s place of residence and would have exercised that right but for the retention.
[3] (1996) FLC 92-717.
In Friedrich v Friedrich,[4] the United States Appeals Court undertook a detailed analysis of the concept of “actual exercise” of rights of custody. That Court rejected the idea of creating a definition based on which activities might constitute sufficient exercise of de jure rights. Boggs CJ held that in the absence of a ruling from a Court in the state of habitual residence, the only acceptable solution was to, “…liberally find ‘exercise’ whenever a parent with ‘de jure’ custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Whilst Boggs CJ did not exclude the possibility of non-exercise arising, His Honour indicated that such a situation would only occur in extreme circumstances, and provides the example where there is evidence of, “clear and unequivocal abandonment” or “unexplainable neglect” of a child.
[4] 78 F. 3d 1060 (6th Cir. 1996)
To similar effect is the judgment of Lord Brandon in Re H (Abduction: Custody Rights) andRe S (Abduction: Custody Rights) [1991] 2 AC 476 at 500. With reference to the relevant article, Lord Brandon said that it:
…must be construed widely as meaning that the custodial parent must be maintaining the stance and attitude of such a parent, rather than narrowly as meaning that he or she must be continuing to exercise day-to-day care and control. If the narrow meaning was adopted, it could be said that a custodial parent was not actually exercising his or her custodial rights during a period of lawful staying access with the non-custodial parent. That, as it seems to me, cannot be right.
In Soysan v Commissioner of Police [2011] FamCAFC 39, the Full Court of this Court considered the issue and reviewed the relevant case law and stated at paragraphs 47 to 49:
47. Counsel for the mother indicated that he was unaware of any Australian authority directed to the issue of what is meant by “actually exercising rights of custody”. We informed him that our own researches indicated that the matter had been considered by Warnick J in Director-General Department of Child Safety v Dally-Watkins [2005] FamCA 1409 (“Dally-Watkins”). Warnick J’s orders were the subject of an appeal to this Court, but on a different issue than his Honour’s findings about what constitutes exercising rights of custody. In dealing with that issue, Warnick J said:
42. the mother’s argument in effect is that the father was not caring for the child. In my view, where the parnts are cohabiting with the child as a member of the household, the question of whether or not the father is exercising rights of custody does not fall to be determined upon the degree to which he was involved in the day to day tasks of child raising. At the very least the father was, whether alone or jointly, providing a residence and parental presence for the child. As was said by Boggs CJ in Friedrich and Friedrich 78F.3d 1060 (Sixth cir.1996) a decision of the Unites States Court of Appeals, sixth circuit, at page 1064:
“The only acceptable solution, in the absence of a ruling from a court in a country of habitual residence, is to liberally find ‘exercise’ whenever a parent with ‘de jure’ custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.”
43. His reasoning is also consistent with the conclusion reached by the Full Court of this Court in Director-General, Department of Community Services v Crowe (1996) FLC 92-717, a case in which a mother was found to be exercising rights of custody even though the child had not been living with her for some time.
48. In the case of Friedrich v Friedrich 78 F.3d 1060 (6th Cir 1996) (“Friedrich”), to which Warnick J referred, the father had only had one access visit (albeit he had more planned) and yet was found to be exercising his “rights of custody. We drew that fact to the attention of counsel for the mother, who responded by submitting that the approach apparently adopted in Friedrich was contrary to the reasoning in Wenceslas, because in that latter case there had been no suggestion that the father was not trying to keep in touch with his child (and yet he had been unable to obtain an order for the child’s return). With respect to counsel for the mother, this response was not really to the point, since the fundamental issue in Wenceslas/MW was not whether the father was exercising rights of custody but whether he had such rights in the first place.
49. In any event, counsel for the mother accepted as correct our further proposition that the father in the present matter was doing much more than trying to keep in touch with the child, and was in fact pursuing a formal order for custody. Counsel pointed out, however, that the making of an application does not of itself confer rights of custody on the father. Whilst this is true, we suggested to counsel that Friedrich (and other authorities to like effect) may be seen as standing for the proposition that 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.
In his affidavit in support of the Application, the Father details the history of care arrangements for the child. This includes evidence of the Father having significant care of the child, particularly in the child’s early years, which is essentially not challenged by the Mother in her evidence.
Notably, the Father deposes to the fact that when the child was about eight years of age and the parties and the child were living in City G, the Mother relocated from City G to I Town in Country C without reference to him. The Mother disputes this and says the move was with the Father’s consent. However, as noted, formal proceedings were instituted by the Father in the Court in I Town, leading to the Orders made in 2008.
Even putting the Mother’s evidence at its highest in both of her affidavits, I cannot conclude that the Father was not exercising rights of custody prior to the child’s removal. In her affidavit filed 11 November 2011, the Mother deposes:
[Mr F] has tried to have contact with the child, but not enough and on a regular basis, often when it suits him, not what is in the best interests for the child…
It cannot be said that the Father has abandoned his rights, and I note that the evidence demonstrates that the Father acted promptly in seeking the child’s return via the Central Authority when he became aware that the Mother and the child had relocated to Australia. The inference is that, if given advance notice of the Mother’s proposal to relocate the child to Australia, the Father would have sought to exercise his right to determine where the child resides.
The evidence before me, including paragraph 10 of the reg 26 report of the Family Consultant, Ms J, confirms that the child spent time with his Father for a weekend in September/October 2010 and a week in the January 2011 school holidays, the month before the child’s removal. The Mother confirmed to Ms J that there was no discussion about her planned relocation to Australia, and as Ms J records, it seems that the Father, after speaking with the child on the telephone on 5 February 2011, only subsequently discovered in June 2011 that, on 12 February 2011, the Mother had relocated from Country C to the H Town in Australia.
Conclusion on Wrongful Removal
I therefore conclude that the child’s removal from Country C to Australia was “wrongful” within the meaning of the Regulations.
The question then is whether any exception to a return Order is made out by the Mother, she bearing the onus of proof in that respect.[5]
[5] DP v Commonwealth Central Authority; JLM v Director-General, Department of Community Services [2001] HCA 39.
Whilst the Mother’s affidavits filed in these proceedings seemed to indicate that if a return Order was made for the child, the Mother would also return to Country C, that position was not made entirely clear until the Mother made it clear that this was so in her oral submissions before me.
That is, the Mother has made it clear that if a return Order is made for the child to return to Country C, the Mother will also return with the child.
This is an important context for considering the evidence of Ms J, the Family Consultant who provided a reg 26 report and who gave oral evidence in the hearing before me.
Ms J’s report is annexed to her affidavit filed 14 November 2011. Ms J’s report records that she interviewed the Mother and the child on 17 October 2011 and that she has read the affidavits of the Father and the Mother filed in these proceedings.
Ms J records at paragraph 2 of her report that the purpose of her report is to address:
(1) Whether the child objects to being returned to Country C;
(2) Whether the child’s objection shows a strength of feeling beyond a mere expression of a preference or of ordinary wishes;
(3) Whether the child has attained an age and degree of maturity at which it is appropriate to take account of his views.
Under the heading “Evaluation” in her report, Ms J expresses conclusions to the effect (paraphrasing them) that the child does object to being returned to Country C; that the child’s objection shows a strength of feeling beyond a mere expression of a preference or of ordinary wishes; and that the child is sufficiently mature for it to be appropriate to take his views into account.
The conclusion by Ms J in her report that the child objects to returning to Country C was substantially modified by Ms J in the course of her oral evidence before me. In De L v Director-General, NSW Department of Community Services & Anor (1996) FLC 92-706, the High Court discussed the nature of the objection to which reg 16(3)(c) refers, and in their joint judgment the plurality stated at 83,453:
The return to which the child objects is that which would otherwise be ordered under Article 12 vis-à-vis an immediate return to the country from which he was wrongfully removed, so that the courts of that country may resolve the merits of any dispute as to where and with whom it should live… There is nothing in the provisions of Article 13 to make it appropriate to consider whether the child objects to returning in any circumstances.
In Crowe’s case (supra), the Full Court of this Court applied this test and said:
The relevant objection is an objection to being returned to the country of habitual residence for the purposes of the Regulations, not to live with a particular parent. There may be cases where those two matters are so linked that they cannot be separated, but this is not such a case.
In cross-examining Ms J, Counsel for the Applicant directed Ms J’s attention to the following paragraph in the Mother’s affidavit filed 11 November 2011:
[B] is 14 years old and mature for his age in which (sic) I had to tell the child that he had to appear to see counselor (sic) at the Family Court in Brisbane explaining that his father had put application for abduction in which we might have to return to [Country C]. the child is horrified that he would have to live with his father. …
(emphasis added)
Whilst in her oral evidence, Ms J suggested that she had attempted to explain to the child in her interview with him the operation of the Hague Convention, Ms J was ultimately unable to conclude that, when expressing his views to her, the child was not under the impression that an Order for his return to Country C mean that he would be living with his father.
Ms J was directed to a variety of the statements made by the child as recorded in her report as the product of her interaction with the child during the interview.
In the end, Ms J confirmed in her cross-examination that the child’s objection, properly understood, is an objection to living with his father. Paraphrasing her evidence, Ms J accepted that the highest it could be put is that the child has a preference for living in Australia rather than Country C, but in terms of objection, his objection is to living with his father, not an objection to returning to Country C for parenting arrangements to be determined by the courts of Country C.
Taking Ms J’s report as a whole, it is clear that the child was not entirely negative so far as the Father is concerned. The child expressed some positives about the Father and wishes to visit the Father and undoubtedly expressed overall reasons for his preference to live in Australia rather than Country C.
However, taking into account the oral evidence of Ms J, I cannot be satisfied that the child objects, in the relevant sense, to a return Order being made.
I find that the Mother has not established that the child objects to returning to Country C in the nature of the objection referred to in the Regulations.
Conclusion
Aside from the issue of the exercise of rights of custody (dealt with above) and the question of the child’s objection (also dealt with above), the Mother did not advance in argument before me during the hearing any other basis upon which a return Order would not be made.
Whilst there is certainly evidence in the Mother’s evidence case of assertions by her as to why it is preferable for her to live in Australia rather than Country C, these are not advanced by the Mother as making out a case that the child’s return to Country C would expose the child to grave risk of physical or psychological harm or otherwise place him in an intolerable situation, and even if the Mother had argued such a proposition, her evidence overall would not satisfy me that that is so.
The Mother will be returning with the child to Country C if a return Order is made. The Mother’s history includes working and supporting the child in Country C, and indeed this is a feature emphasised in her affidavit material; that is, her support of the child without much in the way of assistance from the Father.
It must be emphasised that upon return it is for the courts of Country C to determine parenting and other arrangements. That may well mean that the Mother ultimately is permitted to return to Australia with the child. The courts of Country C are capable of determining financial arrangements between the parties. These are matters for the Country C court, and the fact that the courts there can determine such matters eliminates, on the evidence in this case, any of the matters agitated by the Mother in her affidavit material as capable of amounting to evidence of grave risk in the event that a return Order is made.
I make the following findings and conclusions:
a)The child, B, is under 16 years of age;
b)Country C is a Convention country;
c)B was habitually resident in Country C immediately before his removal to Australia on 12 February 2011;
d)The Requesting Applicant Father possesses rights of custody in respect of the child;
e)The child’s removal from Country C breached the Father’s rights of custody;
f)At the time of the child’s removal from Country C, the Father was actually exercising rights of custody or would have exercised those rights if the child had not been removed from Country C;
g)The present application has been filed within one year after the child’s removal from Country C;
h)All the requirements of reg 16(1A) are met and consequently, the child’s removal from Country C on 12 February 2011 was wrongful within the meaning of the Regulations;
i)None of the matters set out in reg 16(3) of the Regulations are established on the evidence.
For these reasons, I make Orders in terms of the Orders set out at the commencement of these reasons.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 December 2011.
Associate:
Date: 8 December 2011
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