Director-General, Department of Community Services and Heybridge

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES AND HEYBRIDGE

[2009] FamCA 937

FAMILY LAW – CHILDREN – Hague Convention – whether two male children, aged 10 and 13 object to being returned to the USA – Application for children’s return dismissed

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Family Law Act 1975 (Cth)

Agee & Agee (2000) FLC 93-055
De L vDirector-General, NSW Department of Community Services & Anor (1996-1997) 187 CLR 640; (1996) FLC 92-706; (1996) 20 FamLR 390
De Lewinski v Director of Community Services (1997) FLC 92-737 (“De L (Full Court) No. 2”)
Director‑General of Department of Community Services & Crowe (1996) FLC 92-717
Director-General of the Department of Community Services & Gamble [2007] FamCA 1061
Director-General for DOCS & JH [2002] FamCA 598
DP v Commonwealth Central Authority (2001) FLC 93-081
Gsponer v Director‑General of Community Services Victoria (1989) FLC 92-001
Director‑General of the Department of Community Services & Timms (2008) FLC 93-376
Murray v Director, Family Services, ACT (1993) FLC 92-416
In Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277; [2006] FamCA 685
Richards & Director-General, Department of Child Safety [2007] FamCA 65
Tarrit & Director-General, Department of Community Services [2008] FamCAFC 34

APPLICANT:

Director-General, Department of Community Services

RESPONDENT:

Ms Heybridge

FILE NUMBER:

SYC

3068

2009

DATE DELIVERED:

24 August 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

13 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Rees

SOLICITOR FOR THE APPLICANT:

Department of Community Services

COUNSEL FOR THE RESPONDENT:

Mr Tockar

SOLICITOR FOR THE RESPONDENT:

Doolan Wagner & Callaghan

Orders

The Application filed by the Director-General, Department of Community Services on 26 May 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Community Services and Heybridge is approved pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3068 of 2009

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MS HEYBRIDGE

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application by the Director-General, The Department of Community Services made under the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The respondent is Ms Heybridge. The applicant seeks orders requiring the return of two children, P, born in May 1996, and T, born in April 1999, to the United States of America.
The respondent is the mother of the two children sought to be returned to the USA. She opposes the return of the children to the United States and relies on two grounds which she says would justify the Court refusing the application. The two grounds are:
(1)The return of the children to the United States would place the children at a grave risk of exposure to physical and psychological harm, or otherwise the place the children in an intolerable situation (Regulation 16(3)(b)); and
(2)The children object to being returned to the USA (Regulation 16(3)(c)).

Background Facts

Both children were born in the United States of America.
The mother was born in 1973. The father was born in 1964. Both collectively will be referred to as “the parents” hereafter.
The parents were married in 1994 in the United States.
The mother removed the children from the United States of America on 4 August 2008.
The children now live with the mother in central New South Wales.
On 12 April 2007, the parents filed in the District Court of E County in the State of Oklahoma, USA a “Joint Custody Plan”. This plan provided both parents were to have “equal rights and responsibilities” in relation to their children. The father was granted “primary placement” of the children. The mother was granted “reasonable visitation” as agreed between the parents.
On 16 May 2007, a Decree of Dissolution of marriage was granted in the District Court of E County. The Decree noted the parents had resolved property and child support matters.
On 21 August 2008, a Petition for a Protection Order which had been filed by the mother was listed for hearing in the District Court of E County. The petitioner did not attend.
On 11 September 2008, the mother filed an affidavit in the Federal Magistrates Court of Australia at Sydney. In her affidavit, she said she was an Australian citizen. She said she fled from the USA on 4 August 2008.
In that affidavit the mother further said the father abuses alcohol. She recited an incident of violence to the children by the father. She said the father suffers from post‑traumatic stress disorder and abuses drugs. The mother annexed to her affidavit a copy of a petition for a protective order which she made on 14 November 2005. This recites a history of abuse and intimidation alleged to have been perpetrated by the father upon the mother and the children.
On 21 January 2009, the District Court of Y County denied an application by the mother to quash the Special Petition of the father filed 15 September 2008 seeking full custody of the two children. In that Petition, she set out details of the oldest child’s allegation that he had been severely beaten by the father some time about 1 August 2008. It recited that the matter of the child’s beating was being investigated by the Department of Human Services. It recited that the mother obtained a protective order which prohibited the father having any contact with the children or the mother. It further recited the mother was in fear of her life and that of the children and had fled to Australia.
On 30 September 2009, the father swore an affidavit. In that affidavit the father agreed that when the mother collected the children (on the last occasion she did so) she was collecting P, who was to live with her for a few weeks. The father said he and P were having “issues” at the time. He had disciplined P that morning. This included grabbing him by his arm and “smacking him once or twice”. The child said he wanted to live with his mother, having been given that option by the father. The father insisted that it was to be “for a few weeks”. When P was collected, the father said the mother asked about the bumps on his head and bruising. The father denied any knowledge of the injuries.
In the father’s affidavit, he claimed P had a propensity to hit his head against a wall and to hit himself (that is, to self harm). In paragraph 112 of his affidavit attached to the affidavit of Ms G filed 11 August 2009, the father said:
On several separate occasions [T] has seen [P] hitting his head and punching his legs and arms after he got in trouble. My wife […] also observed this is [sic] a couple of occasions and even talked to [P] about it.
This was, to me, a worrying piece of evidence.
On 16 July 2009, the mother filed an affidavit in the proceedings. The mother in this affidavit set out a long history of concerns she had about the father’s behaviour during the marriage. All pre-date the parenting agreement reached between the parties. Part of this history recites the father receiving treatment in 1999 for alcoholism. She set out details of what she said was the father’s Post Traumatic Stress Disorder. She set out details of hospitalisation of the father in 2001 or 2002 due to mixing alcohol and drugs (prescribed medication). The mother set out threats made by the father against her. She spoke of the father being in gaol because of driving whilst under the influence of alcohol. She set out details of what she said were “alcohol withdrawal seizures” suffered by the father. She set out the circumstances of the separation. The mother also set out details of threats made to “hunt her down and kill her” if she sought to leave the father and take the boys.
On 14 November 2005 the mother obtained a protective order against the father. She separated from the father at that time. The children had no contact with the father between November 2005 and May 2006. The mother moved back to the former matrimonial home in January 2007. She remained there until March 2007.
From March 2007 until 4 August 2008 the children lived between the parties in a flexible arrangement. The mother worked as a nurse on shifts which changed. Some weeks the children were with her for three days and other weeks they were with her for four days.
On 12 April 2007 the mother acknowledges entering into a parenting agreement with the father. She agreed to use the same attorney as the father. She said she agreed to the parenting agreement for a number of reasons. Those included the following:
a)the father had been alcohol-free since January 2007;
b)the father said he did not want to lose the boys;
c)she had effective communication with the father; and
d)very strained finances (with the possibility of bankruptcy).
In relation to the granting of primary placement of the children with the father, the mother said she accepted an explanation from the jointly appointed attorney which sounded innocuous and was connected to the fact that the father retained the former matrimonial home.
The mother said that following the parenting agreement being signed, the children lived with their respective parents equally. I note this assertion was disputed by the father. He claimed the children spent more time living with him than they did living with the mother.
The father remarried in December 2007. The mother said that in 2008 the father’s new wife indicated to her that she may move out because of the father’s drinking.
In mid-2008 the mother asked the father about his changed behaviour. She inquired if he was drinking again. He denied it and attributed his changed behaviour to a change in his prescribed medication. The children complained to the mother about their father’s behaviour at that time. The mother observed the father to be intoxicated around mid-2008 and discussed that with his wife.
The mother set out, in her affidavit, the circumstances in which she collected the children from the father on 1 August 2008. She said that when she arrived at the father’s residence there were eight large garbage bags on the front lawn of the father’s house. This turned out to be P’s belongings. P left with the mother. She did not speak to the father. As she was leaving she noticed a mark on P’s forehead. It was a large bump. He appeared fearful. She took him to a hospital. P said, “Dad punched me a few times. He pushed me down the stairs, grabbed me by the hair and slammed my head against the wall.” When the mother spoke to the father about this allegation he told her, “[P] can go and live with you.” I note there was no reference to that being for a limited period of time. The father disagrees with that version of the conversation insofar as he asserted the period of time P was to live with the mother was to be limited.
The mother also set out in her affidavit her account of the history of her contact with the Department of Human Services (“DHS”) (I understand this to be the equivalent of the Department of Community Services in New South Wales). At the conclusion of her recounting of the contact between herself and DHS she claimed to have no confidence that DHS would protect her children.
The mother described how the children have settled in Australia.
Annexure P to the mother’s affidavit is a psychological report from Dr B (Australian psychologist). He had seen both boys. Both “reported in an unsolicited way, that they have no wish to return to America.”
On 11 August 2009 Ms G swore an affidavit which contained an affidavit in reply by the father; that is, a reply to the mother’s affidavit of 15 July 2009. Much of the evidence by the mother about the father’s medical condition/history is conceded.
The father disagreed that the children’s time was shared equally after the making of the parenting agreement.
At paragraph 107 of his affidavit he set out his version of the facts as to why P was going to live with his mother. He described P as “having issues”. He said he had disciplined P that day. He said he did “grab him by his arms”, “smacked him once or twice,” and told him “it might be better if he went to stay with his mother for a couple of weeks”. The father said, “He said yes he wanted to go live with his mother for a couple of weeks.” The father said he placed P’s belongings in plastic bags and “placed the bags on the front yard”.
The father denied all knowledge of bumps and bruises on P.
The father denied the allegations that he punched P, slammed his head against a wall or pushed him down stairs. The father said T had reported seeing P “hitting his head and punching his legs and arms after he got in trouble.” The father’s wife had also observed this.
He has had no contact with the children since 1 August 2008.
A Writ of Habeas Corpus was issued in March 2009 requiring the mother to deliver the children to the District Court of E County, Oklahoma by 1.30 pm on 7 April 2009. Thereafter that Court found the mother in violation of the Habeas Corpus Writ.
The children were seen by a Family Consultant (of this Court) for the purposes of preparation of a Family Report. The reporter was Ms F who issued her report on 8 July 2009. I have particularly noted the following matters from the Family Report. The last paragraph of the Report is as follows:
28.Both boys expressed fear of returning to the USA and both have a sense, related to the amount and nature of their fear, that they could not be protected wherever, and with whomever, they might live there. They would likely experience psychological harm if they were to return, unless and until they could be persuaded and assured that they would be safe.
The Report was prepared to address the following:
a)whether the subject children (P and T) object to being returned to the USA and;
b)whether each child has attained an age and degree of maturity at which it is appropriate to take into account the child’s views.
The reporter noted that the last time the children saw their father was 1 August 2008. I add here that the balance of the evidence in the case leads me to the conclusion that the children have had no contact with their father of any kind since 1 August 2008.
The Family Consultant interviewed P, who she noted was then 13 years and two months of age. She noted:
11. [P] objects to returning to the USA. At the present time, the USA is synonymous in his mind with his father as the fear he expresses in relation to his father is pervasive. The way he expressed it was that he would “strongly object to living with Dad” and that he would not object to going to America for a holiday but “not for a couple of years” because “I’d be scared of him [his father]. He’s made threats” and that makes America “not a safe place”. Rather than the “couple of years” being about his getting older and perhaps being able to manage situation differently, [P] thought that after a couple of years his father might not find it as easy to track down where he (his brother and mother) might be living if they were to go back to America.
I here include the contents of paragraphs 12, 13 and 14 of the Report:
12. [P] made a number of statements about his father and his father’s treatment of him. He appeared genuine and there was no sense of his having been coached or encouraged to say certain things. The words he used were commensurate with his age, he sometimes became muddled and confused about details like the timing of events, he shifted from topic to topic, he gave each topic serious thought and did not seem to answer any questions or raise any topics himself without first pausing to think. Many areas covered in the interview triggered [P] emotionally and he was either on the verge of tears of crying (in a passive way, with tears simply falling unchecked from his eyes) much of the time.
13. Notwithstanding his depiction of the frightening and abusive behaviour of his father towards him which, he spontaneously said, when he was describing the day he, his mother and brother had left the USA, “Sometimes I miss my Dad. I love my Dad a lot”. He was tearful and emotional when he said this.
14. [P] is aware of his father’s drinking problem. He said that his father had “stopped – maybe for one or two years” but had started again. He also knows that his father has PTSD which he attributes to his father’s time in the [armed forces]. These factors and, he said, his father’s use of pain killers when he had problems with his teeth, were the reasons for his father being “angry” and “yelling”. He thought that his father “had gotten really angry about seven times”. [P] said that it was he who would bear the brunt of his father’s anger and that this would take the form of his being “thrown around”, his being threatened to be “kicked out” and his having his head banged against the wall or other objects. In addition to events which had occurred on the “seven” angry times, [P] said that every morning since he was three years old, his father would get him out of bed and make him run on the treadmill for three miles and lift weights on equipment they had at home. If he did not perform as well as usual or as well as his father thought he should, his father would “yell”.
At paragraph 17 of the Report, the Family Consultant noted:
… [P] would also not like to talk to his father on the phone “for a long while” because “he might yell and put on pressure”. [P] said that the other day the phone had rung while his mother was in the shower and he had answered it and he had thought the man on the other end was his father. He had felt “scared and upset” until he was realised it was “someone else.
I here incorporate the contents of paragraphs 18, 19 and 20 of the Family Report:
18. [P] presented as an intelligent and thoughtful young man who has the capacity to reflect upon his life situation and to encompass and articulate some of the contradictions which confront him – most significantly that he loves and misses his father but is scared of him and wants to be far away from him in order to feel safe. The reasons [P] gave for wanting not to return to the USA were logical and rational for a 13 year old and they seemed to be based on his own experiences rather than to have been inculcated by anyone else. The degree of emotion he exhibited and the detail he gave when describing his father’s treatment of him, together with the attribution of his father’s behaviour to PTSD and alcohol abuse, suggest that his fear and distress are genuine and valid.
19. [P] has a degree of maturity commensurate with his age and it
would be appropriate that his views be given weight. It would appear that a number of things have happened to him over which he has no say, many of which he has, understandably, not liked or found difficult. He is mature enough to understand that he is not yet in control of his own life but also have a developmentally appropriate need to feel that his perspective is being taken account of when decisions are being made about him.
20. From his descriptions and from his presentation, it would appear that [P] has been exposed to trauma and that he can be at times preoccupied with thoughts about some of the sad and frightening events which have been part of his life. It would seem that he has the capacity to put aside these worrying thoughts when necessary, in order to perform at school for instance, but his feelings are close to the surface and deeply felt and it would be helpful if he could have a neutral support person to talk to when the indecision about his and his brother’s lives has been resolved. He is at risk of depression otherwise and this is a particularly dangerous condition for adolescent males.

In relation to T, the Family Consultant said, “[T] does not want to go back to the USA.” He indicated that his father and the USA “are one and the same to him.” He said, “’Even if we were with mum, he [his father] knows where we live.’” That would make T, “‘sort of scared’”.
I here incorporate the whole of paragraph 23 of the Family Report in these reasons:
[T] said that living “sometimes with Dad and sometimes with Mum” was “not that great”. He said that “Dad yelled and hit…a lot. More [P] [than him]”. He said that his father “pushed us hard”, for example making [P] run and do gym. He also said, when asked whether there was anything he particularly wanted the judge to know, that his father had once held a knife to his eye and threatened that he would have to go and live at “Mum’s” minus one eye, because he [T] had taken some money. He added that his father had once “threatened to hunt [P] down and kill him” if either boy told their mother about their father getting angry. The matter of fact way he presented all of this material was at odds with the seriousness of the content. He had a quizzical look on his face as if aware that adults might react to hearing it with some alarm but his own emotional affect was flat. [Emphasis added]
T told the Family Consultant that when he arrived in Australia, “he had ‘kept bugging Mum about calling Dad’.” When asked if he would like to visit his father or talk to him on the phone, or whether he missed him, he said, “I don’t know.”
The Family Consultant reported that T “is not mature enough to make sense of the complexities of his family situation or to think through difficult conundrums… He presented as a worried little boy… As with his brother, [T’s] life experiences make him vulnerable to psychological problems...”
I here incorporate paragraph 27 of the Family Report:
While [T’s] preference not to return to the USA was based on rational grounds and an understandable fear (if his allegations about his father have some basis) of what could happen were he to have to return, he is not of a maturity such that it would be appropriate to take into account his views to any significant degree.
I particularly note the last words of this paragraph from the Family Consultant: “…he is not of a maturity such that it would be appropriate to take into account his views to any significant degree.”
Each party provided outline of case documents which contained extensive written submissions.
Prior to calling for submissions, I inquired of each party whether any cross-examination of the other’s witnesses or the Family Consultant was sought. Each party declined any cross-examination.

The Director-General’s Submissions and Case

The Director-General tendered an Undertaking signed by the father in the following terms:
I will not assault, molest, harass, threaten or engage in any other conduct that intimidates
[The mother] born […] 1973;
[P] born […] May 1996; and
[T] born […] April 1999.
The undertaking was given to the Family Court of Australia. I note that the undertaking to this Court is of little or no value to the mother in America. Nonetheless, it must be seen as an attempt by the father (no doubt on advice) to placate the mother and possibly the boys’ fears that he would do them harm were they to return to the United States of America.
The submissions of the Director-General noted that all of the necessary prerequisites for the return of the children to the United States of America as set out in the Regulations were conceded by the mother. I accept that submission.
The Director-General points to the “Joint Custody Plan” dated 12 April 2007, noting the father “shall have primary placement of the minor children”. She submitted that the children had lived with their father until their removal from the United States of America. Although it is not crucial to the decision to be made by me, the Director-General did not refer to the fact that the father had at least relinquished “primary placement” in relation to P on or about 1 August 2008. This is a reference to the decision by the father that P should live with his mother for a few weeks (the mother says indefinitely).
Another matter referred to by the Director-General was that the Application was brought within one year of the removal of the children from the United States of America. However, the hearing was taking place more than 12 months after the removal. This may be a matter which ultimately impacts upon the discretion to be exercised by the Court.
The Director-General submitted that Regulation 16(3) provides that the court may refuse to make an order for return if either of the defences is made out. The refusal is not to be seen as automatic. I was referred to the decision of De L vDirector-General, NSW Department of Community Services & Anor (1996) FLC 92-706 at page 83,456. The following quote is of assistance should I come to exercise the discretion spoken of:
As earlier indicated, the so-called “paramountcy principle” is not applicable in proceedings under the Regulations. However, it is to be noted that, if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child's return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the “discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]” enable it to be said that a particular consideration is extraneous. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
I was also referred to the judgment of Kirby J in De L (supra) where reference was made to “…the need for a clear and compelling case to sustain an objection which permits an exception to the ordinary duty to order the return of the child…”
In relation to the defences raised by the mother, the Director-General pointed out that the return contemplated by the Regulations and sought by the Director-General in her orders was to the United States of America, not to the father. In relation to that submission, although factually correct, it must clearly be seen that given the orders the father has obtained in the United States of America, in the absence of any other order from a court in the United States of America of competent jurisdiction to the contrary, the father would be able to have the authorities in that country remove the children from the mother and place them in his care as soon as their whereabouts was made known to him.
The Director‑General submitted that if I found either of the defences established, then I could impose conditions to be met prior to the return of the children and thus order their return as opposed to simply dismissing the application.
The Director‑General submitted that the evidence of the Family Consultant did not meet the combined test of:
(1)      grave risk of;
(2)      exposure to physical or psychological harm; or
(3)      otherwise place the child in an intolerable situation.
I was referred to Gsponer v Director‑General of Community Services Victoria (1989) FLC 92-001 where the Full Court said:
…there must be a “grave risk” of the occurrence of one or more such events...it is not the grave risk of any physical or psychological harm which would satisfy the first two aspects of this subparagraph. The physical or psychological harm in question must be of substantial or weighty kind.
The Director‑General pointed out that the father denied physical harm (this submission ignored the father’s admission earlier referred to). The Director‑General submitted the allegation should be tested in the United States courts. I note if that were done, then the psychological harm referred to by the Family Consultant would necessarily have been inflicted.
The Director‑General pointed out that most of the evidence (such as medical records) to establish or otherwise the mother’s and the children’s allegations was in the United States and therefore, another good reason for the case to be determined in that country.
The Director‑General referred me to that portion of the Full Court decision in Gsponer (supra) which says (at 77,160), “so understood, reg. 16(3)(b) has a narrow interpretation.”
I was also referred to the Full Court decision in Director‑General of the Department of Community Services & Timms (2008) FLC 93-376. The passage cited referred to the decision of Murray v Director, Family Services, ACT (1993) FLC 92-416 where it said (at 80,259):
It would be presumptuous and offensive in the extreme, for a court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand Courts or that relevant New Zealand authorities would not enforce protection orders which are made by the Courts.
The Full Court in Murray (supra) went on to say (at 80,259):
…the circumstances in which Regulation 16(3) come into operation should be largely confined to situations where such protections are not available.
In relation to the defence in regulation 16(3)(c), (that the child objects to being returned), the Director‑General submitted the objection must be to the return to the country and not to the parent. It was submitted that it is not possible to interpret P’s objections as objections to the return to the United States of America. The Director‑General referred me to the Full Court decision in Agee & Agee (2000) FLC 93-055. In that case, it was noted by the Court that although the child’s objection must be to a return to the country rather than return to a parent, the decision in De Lewinski v Director of Community Services (1997) FLC 92-737 at 83,939 and which referred to the decision of Balcombe LJ in Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716, stated:
…there may be cases ‘where the two factors are so inevitably and inextricably linked that they cannot be separated’… The court must have regard to the whole of the evidence and determine, no matter how the children articulate their views, whether the children object in the relevant sense.
The Director‑General noted that in Director‑General of Department of Community Services & Crowe (1996) FLC 92-717, the Full Court said (at 83,641, emphasis added) the trial Judge had erred:
…in that he did not consider whether the return to which C objected was the return which would otherwise be ordered, namely an immediate return to New Zealand so that the courts of that country could resolve the merits of any dispute as to where and with whom she should live.” [Emphasis added]
The underlined words were however the subject of mention in the High Court in De L (supra). In that case it was noted those words do not appear in the Regulation. The High Court said the words in Regulation 16(3)(c) “should be accorded its natural and ordinary literal meaning.”
The Director‑General points out that the Full Court in Agee (supra) said at paragraph 77:
Finally we see merit in the submissions that were put forward in DL (Full Court) No. 2 (supra) that the language of Regulation 16(3)(c) raises three distinct issues:
1. Whether the child objects; if so,
2. Whether the child has obtained an age and degree of maturity at which it is appropriate to take into account the child’s view; and
3. In the event that there is an affirmative answer to both the foregoing, whether the discretion arising from the word ‘may’ in the opening phrase of regulation 16(3) should be exercised to refuse to order the return of the child. (at 83,934)
Later in that same decision at paragraph 79 the Full Court said:
At that point of time, [the exercising of the discretion] the discretion must be exercised in the context of the Regulations under which it is conferred and the Convention which they implement and schedule. That requires:
‘…assessment of whether decisions affecting the child should be made in the court from the country from which the child has been wrongfully removed, or the country of the court in which it is wrongfully retained. That requires consideration of the purpose and policy of the Act in speedy return and consideration of the welfare of the child in having the determination made in one country or the other.’ (at 351)
The Full Court then referred to the High Court decision in De L (No. 1) at page 661. That quote dealt with the exercise of discretion.
Finally, at paragraph 83 of Agee (supra), the Full Court said:
It was the submission of the Central Authority before his Honour, and with which we agree, that having regard to the subject matter, purpose and scope of the Regulations, the Court must undertake a balancing exercise weighing the factors for and against a return. In so doing, the purpose and intent of the Convention is to be accorded significant weight.
In the event that I come to consider the exercise of discretion the Director-General submits, I would take the following matters into consideration:
a)The likelihood of both children re-establishing a relationship with their father;
b)The mother has successfully obtained protection orders in the past in the United States of America;
c)The mother was aware of the availability of the courts in the USA to hear any child dispute;
d)At the time the mother left the USA, there was a DHS investigation on foot; and
e)If the children are returned to the United States of America, a proper investigation of the children’s and the mother’s allegations against the father can be conducted.
In the written submissions of the mother I note the following matters in particular.
The mother recited the orders made in the USA as:
a)Protection order made 14 November 2005 and set aside 12 January 2006;
b)Joint Custody Plan dated 12 April 2007 with Decree of Dissolution 16 May 2007;
c)Temporary Protection Order 4 August 2008, set aside 21 August 2008.
The mother set out a chronology of particularly relevant facts. The chronology concluded with an extract from the Family Report.
In relation to the mother’s submissions on the defence of “grave risk”, the mother said:
a)The father is an un-rehabilitated alcoholic;
b)The father suffers from Post Traumatic Stress Disorder;
c)The father has anger management problems;
d)The father has assaulted the children;
e)The history provided by the mother discloses a disturbing pattern of behaviour in the father; and
f)The risk of psychological harm to the children is high if they are returned to the USA (they regard the USA and their father as synonymous).
The mother referred me to the decision of DP v Commonwealth Central Authority (2001) FLC 93-081, a High Court decision. She quotes from paragraphs 41 and 42 of the judgment of the Majority:
41. In the judgment of the Full Court of the Family Court, which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a “strong line of authority, both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed.” Exactly what is meant by saying reg 16(3)(b) is to be narrowly construed is not self-evident. On its face, reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes 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 return 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 courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
42. Necessarily, there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants a qualitative description “grave”. Leaving aside the reference to “intolerable situation” and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return will expose the child to harm.
The mother submitted the facts in this case will inevitably result in a prediction that there is a grave risk that the children will be exposed to harm if they return to the United States of America. The predictable harm is both physical and psychological.
The mother pointed to the father’s own admission that he “disciplined” P by grabbing his arm and smacking him. He told P to live with his mother “for a couple of weeks” (this aspect of “a couple of weeks” is in dispute). The father had suffered Post Traumatic Stress Disorder and has had an alcohol problem.
Added to the above, I consider the father’s history as a trained soldier and a member of the United States military who experienced battle needs to be considered. I also consider his threats to the mother such as:
a)Whilst playing with large knives in the back shed saying “I am trained to kill.”
b)“If you ever leave me and take the boys, no matter where you are…I will hunt you down even if you are in Australia.”
I need to consider the father’s interaction with the boys. T told his mother, in about August 2008 or September 2008, that his father had held a steak knife to his eye in June and threatened to take out his eye if he ever stole money from him.
Both boys told their mother of angry outbursts from their father which involved what must objectively have been frightening physical actions by the father against the boys at those times (lifting them off the ground by hanging onto their shirts).
In mid July 2008, the father told the mother he had considered suicide at the time of their separation. He said, “I know how to do it properly you know? You slit the wrist up the artery not across.”
The mother referred to a conversation with her lawyer in the United States of America about the effectiveness of a protection order in that country. She reported he said to her, “Do you have a gun in the house? That is all that will save you. The protection order means nothing.”
The mother recited her conversation with a doctor who had seen P on or about 1 August 2008 and said to the mother, “[P] is a very smart young boy. No-one should do this to him. Unfortunately cases like this are very common and regular in military emergency rooms.”
Whereas I cannot give weight to the truthfulness of the conversations recited by the mother’s solicitor to her and/or the doctor in the emergency room, I do take into account that they are matters which the mother has reported and which in context appear to be matters of great concern to her.
Before leaving the USA, but after 1 August 2008, whilst at the mother’s apartment P said to the mother, “I am scared that Dad might come to the apartment.” Since arriving in Australia P has said to his mother, “How would we know if Dad came to the country? What if he finds us?”
The mother said that in about 2004 P spoke to a school counsellor. He was referred to a DHS officer. P told the officer that his father had kicked him. The DHS officer visited the house. The father became extremely angry with P and said to him in front of the mother, “If you ever tell anyone something like that again they will take you away and you will be living in a shitty foster home.”

The mother disclosed a history of alcohol abuse, prescription drug abuse, and angry outbursts by the father during the marriage. The children were clearly exposed to that behaviour over a lengthy period of time. All of the above is important background material to assist in setting the context in which P and T object to being returned to the USA. It assists in determining the weight to give to the boys’ objections and to determine if the circumstances warrant a declining of the application for return.
The mother pointed out that the children have been assessed as credible historians by both Dr B and the Family Consultant, Ms F. I accept that submission.
In relation to the defence of “the child objects” the mother submitted as follows:
a)The Family Consultant assessed P’s objection to return to the United State of America as genuine and that his level of maturity means weight should be given to his views.
b)The Family Consultant assessed P as “at risk of depression”. She said, “this is a particularly dangerous condition for adolescent males.”
c)The Family Consultant described T as, “a worried little boy.” The mother notes, however, that the Family Consultant assessed T, “is not of a maturity such that it would be appropriate to take into account his views to any significant degree.”
d)The Family Consultant’s conclusion that the children “would likely experience psychological harm if they were to return, [to the USA] unless and until they could be persuaded and assured that they would be safe.”
The mother submitted there appears no prospect at this time that the children would be “so persuaded or assured”.
The mother submitted that if the Court determines P does have a relevant objection to returning to the USA which should be given real weight, then the question of returning T by himself is raised for consideration. The mother submitted further that to send T back without P would create an intolerable situation for both children. Such a situation would mean the mother would have to choose whether to return with T and proceed through the courts of the USA seeking to bring T to Australia to live with her or alternatively, stay in Australia with P and try to run litigation in the USA from Australia. Clearly there are a number of entirely unsatisfactory and troubling aspects of such a scenario.
In relation to the discretion which the Court has to accept one or more of the defences established under Regulation 16(3) and nevertheless order the return of the children to the United States, the mother refers me to De L (supra) at 83,456.
The mother submitted that while the objection must be “exceptional” before it overcomes the objects of the Convention, the fact is that no additional “exceptionality” is required before an objection is to be taken into account: see Richards & Director-General, Department of Child Safety [2007] FamCA 65.
The mother submitted that the aim of a speedy return can no longer be met as the children have been in Australia for over a year.
Finally, the mother said that when the father’s sworn evidence is considered, many of the allegations of the children and the mother are conceded. This, she said, acts to add weight to the opinion and conclusions of the Family Consultant.

Conclusion

The child objects

I find the child P does object to being returned to the United States of America. I find the child has a real fear of his father, which is objectively understandable. He has been physically and psychologically abused by his father. In the lead up to and on 1 August 2008, I find the father assaulted P. This is a father who was a long serving member in the United States military who has also experienced battle. The father expelling P from his house on 1 August 2008 was, in my view, emotionally abusive of the child. That action gave the child every reason to believe he was being rejected by his father, at least for some period of time. I find the mother’s evidence about her life with the father compelling. This conclusion arises from an assessment of her affidavit evidence coupled with the father’s concessions to some of her allegations.
As a result of accepting credibility of the mother’s evidence, it establishes a larger picture of the type of family life the children have experienced. The children could not live in a household where the events the mother described took place without being subjected to some of that behaviour described by the mother. Thus a further dimension is added to the fear of, and concern about, the father’s future behaviour towards the children and the mother.
Clearly both boys object to being returned to the USA. I accept that for these boys, the return to the USA is synonymous with a return to their father, as they have a real understanding that their father could and would “hunt them down”, wherever they may be. However, they would understand that would be an easier task for him in the USA as opposed to Australia.
I accept that both boys show strength of feeling beyond mere expression of a preference or of ordinary wishes.
In relation to P, I accept he has attained an age and a degree of maturity at which it is appropriate to take account of his views.
Having reached that conclusion, I now need to consider whether I should refuse to make an order for the return of the boys to the USA. In the exercise of that discretion, I take into account the following:

The subject matter and scope and purpose of the Regulations

The purpose of the Regulations is set out in Regulation 1A. I have read that Regulation including the principles and objects in the preamble to Article 1 of the Convention. I note the reference to “prompt return”. I do not regard a return more than 12 months after removal as “prompt”.
I emphasise that I understand that for the Convention to work to the advantage of each signatory country, the Convention must be enforced and acted upon unless there is a very good reason to depart from the requirements for return, such as the establishment of a defence provided for in Regulation 16(3)(b) or (c).
One of the matters I take into account is the welfare of the children. I take into account the conclusion of the Family Consultant that it is likely the children would experience psychological harm if returned to the USA unless and until they could be persuaded and assured that they would be safe. I do not see any evidence to suggest how the children might be assured or persuaded as to their safety in the short term, and particularly in the circumstances of the history of these children living with their father in the United States of America.
I turn to consider whether the children might be returned subject to preconditions being met. The Director-General suggested a condition which, on its face, has merit. I was initially attracted to the apparent solution it suggested. The Director-General had suggested, in summary, that the parties be required to take action in the District Court of E in Oklahoma, to obtain orders which would see the children remaining in the sole care of the mother upon their return to the United States of America, until such time as that Court had the opportunity to consider the mother’s and the children’s concerns and complaints about the father.
Upon considering the evidence again as a whole, I do not consider such orders would have the effect of sufficiently easing the boys’ fears about their father, a trained soldier who has expressed his intention to hunt down the mother and the children. I am particularly concerned about the efficacy of a protection order against a man of the father’s training and ability to inflict personal harm. I am shocked by the mother’s American attorney’s suggestion that the mother should acquire a gun to protect herself and the children. In those special circumstances therefore, I am entitled to have regard to the fact that the protections which a woman and her children might have in Australian society appear different to those available to her in the community she would need to return to in Oklahoma.
I take into account that the mother felt so powerless in her community in Oklahoma that she agreed to a joint custody arrangement which, on the face of it, was unsatisfactory to the children and failed to protect them from their father’s anger and aggression. It allowed the children to be exposed to their father’s abuse of alcohol and drugs.
I consider that to return T without P would place both children in an intolerable situation. One of them would be without their mother’s care for at least some time while the Oklahoma Court heard the mother’s application to relocate to Australia. If T was returned to Oklahoma without the mother accompanying him, then there would be no overseeing parent to protect him from his father’s excesses. Clearly the father’s new wife has been unable to protect the children in the past. That would be an intolerable situation. It would expose T to probable reoccurrence of physical and psychological harm. It would therefore be a grave risk of occurring.
I take into account the age of P and the fact that he is strong enough to resist return if he so determined. I find it completely unacceptable that the orders of this Court would be effectively to force a child of 13 years to resist police and authorities in order to avoid a return. There are circumstances in which T might be returned to the USA alone if there was a resistance by P to board an aeroplane. Such circumstances have occurred, in my experience, in Australia in the past. I now turn to consider some of the cases dealing with children of about the age of P and T, and how this Court has dealt with those circumstances.
In the decision of In Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277 the following occurred. In this case there were some peculiar facts including that notwithstanding a return order having been made under the Regulations the child was not returned. Ultimately, some two and a half years after the child arrived in Australia the mother applied to set aside the order for return. That application was refused. The mother appealed. In the meantime, the Department attempted to remove the child to the United States of America. The child, then about 13, physically resisted at the airport. The Australian Federal Police would not physically place him on the plane. No criticism is intended of the Australian Federal Police. The matter then came before the Full Court of the Family Court of Australia. The Full Court said (at 80,707-80,708):
“In our view the evidence is now overwhelming that the child objects to being returned to the United States.”
The Full Court recited that this child had been removed from his mother and placed in foster care by the Department of Community Services as part of an attempt to send him back to the United States of America. The mother was not returning. There had been two attempts to put him on a plane.
For my part, I consider it abusive to subject a child to that treatment to “test his objection”, not that I suggest the trial Judge had that in mind. However, the decided cases when dealing with the defence of “the child objects” have an underlying requirement that the objection must be to the return to the country. If that cannot be found to be the case, an order for return is compelled by those decisions no matter how strong the objections may be found to be.
In my experience with children of 12 years or more who are caught up in proceedings under the Regulations requiring return to a Convention country there appears to be developing an understanding that if you are required to return by court order, then you need to physically resist in order to avoid return. I shudder to think what damage that might do to a child, both short and long term. The Full Court in In Re F(Hague Convention: Child’s Objections) (2006) FLC 93-277; [2006] FamCA 685 referred to:
“…not only to the impracticability of successfully enforcing such an order short of using inappropriate force on a now 12 year old child who is resistant to the course, but also that we look to the terms of the Regulations and the Convention itself.”
The Full Court then referred to the requirement for prompt return of the child under the convention. The Full Court said that could not be achieved in the case where it was almost three years since the removal.
In the unreported decision of Director-General for DOCS & JH [2002] FamCA 598 determined 26 July 2002, the court ordered the return to Scotland of two boys aged 15 and 10. This order was made notwithstanding the 15 year old objected to being returned to Scotland. The expert evidence provided in the case concluded that the 15 year old’s objections would be “no objection” if he could reside separately to his father (in Scotland) until the custody case between his parents could be heard in Scotland. The other defences raised by the mother were not successful.
The Court having made the orders for the return, the Director-General attempted to implement the orders. However, the 15 year old refused to board the plane and return to Scotland. The order for the return of the 15 year old was subsequently set aside. Disturbingly, the 10 year old did not resist and he was returned, thereby separating the children.
In the matter of Director-General of the Department of Community Services & Gamble (2007) FamCA 1061, an order was made by the trial Judge for the return of a 10 year old to South Africa notwithstanding the child’s objections. The trial Judge found he was (at paragraph 22):
“…not satisfied that the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes. Further, I am not satisfied that he has attained an age and degree of maturity at which it is appropriate to take account of his views.”
The child resisted the return. He was taken to the Department of Community Services office by his mother. He was incapable of being convinced to co-operate in the return. He was allowed to return home to his mother. The child was reported by the Department of Community Services officer to be kicking a wall and punching furniture. He wanted to “talk to the Judge.” He complained “the Judge did not talk to me.” He agreed to spend some hours with his father and brother who had travelled to Australia to collect him. He did not return to South Africa.
Six months later orders were made by consent for a re-hearing. A Chapter 15 report was ordered. At the second hearing, it was conceded at the hearing by the Director-General of the Department of Community Services and the Independent Children’s Lawyer that the child objected to being returned to South Africa. He was 11 years of age.
The trial Judge discharged the order for return. In so doing, his Honour said (at paragraph 80):
“The matters which ultimately resolve the case are the opinion of Dr R as to what would have to be done to ensure the return of the child without the Mother namely, the child may have to be sedated…”.
Further, his Honour referred to the fact that the father could not take up the Department of Community Services’ suggestion to involve the Australian Federal Police.
The trial Judge made reference to some unsatisfactory and disturbing aspects of the case which I do not repeat here.
In the Full Court decision of Tarrit & Director-General, Department of Community Services [2008] FamCAFC 34 the Full Court was provided with a further Family Report which dealt with the objections of the child returning to the United States of America. The child was 11 years and four months at the time of the Full Court hearing. The child was just 11 years old at the time of the decision of the trial Judge. The second Family Report had been ordered by the trial Judge at the time of considering the stay application in respect of his orders for the return of the child pending the hearing of the appeal.
The Full Court held that in the evidence before that Court the defence under Regulation 16(3)(c) was made out. The Court concluded that in the evidence before the trial Judge the ground had not been made out.
The Full Court noted the provisions of the first Report as follows:
a)The child objects to the return to the United States of America. But in her mind, living in the United States and living with her father are synonymous;
b)There were two main themes in relation to her father:
i)concern about whether the father and his girlfriend cared for her;
ii)concern about bullying from her brother;
c)The child became anxious when it was time to return to the US;
d)Notwithstanding the objection to return, the child said “she would like to see her father and [her brother] ‘once a year’”;
e)The child presented as a serious and intense young girl. She has an extreme position against her father which allows little room for the usual ambivalence felt by children for their parents, even when estranged from them;
f)The child is not mature enough to be able to understand the complexities of her past or current family situation, or the reasons the adults might be doing and saying certain things. However, the family consultant said, “[i]n my view, [the child] is of an age and maturity at which it would be appropriate that her wishes be given some, but not significant, weight.”
The contents of the second Report for the appeal were noted by the Full Court as follows:
a)The reasons for the child wanting to stay in Australia were the same. However, the child said her father had recently, in a conversation, threatened that he would come to Australia and make her get on a plane. That made her feel “unsafe”;
b)The child told the Family Consultant she had been feeling very stressed since the order to return to the US was made. She was having counselling. She had thrown chairs and got stomach aches as a result of the stress. When asked how she would feel if she had to go back, the child said “Last time I felt like I wanted to kill myself”;
c)The Family Consultant was concerned about some of the child’s words and their similarity to those of the mother. She considered, however, that the child does have her own view, feelings and reasons for not wanting to return. The child was still wishing to have ongoing contact with the father, as long as she is not subjected to pressure from him;
d)The delay, through continuing entrenchment of positions has led to an increase in her stridency of expressed opinion and her emotional vulnerability. “[H]er increasing resistance is such that there would be considerable negative impact on her should she be made to return to her father in the USA.” The Family Consultant continued to hold the view that the child’s maturity is still such that normally her views should be given some but not significant weight.
The Full Court concluded that the evidence of the child’s objection contained in the second Report supported a conclusion that each limb of Regulation 16(3)(c) had been made out.
In relation to the exercise of discretion, the Court had regard to the length of time the child had been in Australia between arrival here and the date of the order for return (14 months). The Full Court said that was “not an insignificant fact”.
The Full Court said that “[w]hile appreciating the spirit and purpose of the Convention…” there were significant factors in this case. “These include the strongly expressed wishes of the child and the grave concerns arising from the nature of the feelings expressed by the child contained in the most recent report.” The Full Court exercised discretion to refuse to make an order returning the child.
In a separate judgment delivered by Finn J in that case, her Honour said (at paragraph 79):
When it is remembered that this child, at 11, is of an age at which she can, if she was so minded, take matters into her own hands, the concerns regarding her welfare which support the conclusion that she should not be returned to her father in the United States must, in my opinion, outweigh those other grave considerations which would support an order for return.

These last words of Justice Finn do, in my view, articulate a matter which has not been said by the Full Court at an earlier time. That is, the Court should consider the age of the child and the child’s capacity to resist an order for return. To make an order for return without considering that matter is to potentially subject the child to trauma and abuse; an action which, I accept, would never be intended by a court. It is a matter which should be considered as part of the exercise of discretion to refuse an order for return where the defence set out in Regulation 16(3)(c) has been established.
To add to the already serious concerns I have about P, I am particularly aware of the reports of his “self harming” which arise from his father’s evidence. I consider it is open for me to conclude that a boy of P’s age who has the capacity to inflict harm to himself intentionally would have little reluctance to physically resist any attempt to return him to the USA. This is a matter which I have taken into account as part of the exercise of discretion as to whether to refuse a return order. This behaviour further highlights to me the possibility of a vulnerability that P might have over other boys of his age. Adding to this concern, I have the report of the Family Consultant that P is “at risk of depression”, which she said was “a particularly dangerous condition for adolescent males.”
If P is not to be the subject of an order for return, I need to consider where that leaves T. I have already referred to the intolerable situation that would be created for T and P if only one of them was required to return.
Having reached the conclusion that P should not be required to return, I conclude that to make an order for T to return would place him in an intolerable situation. I accept the evidence of the Family Consultant that T, and in fact both boys, would likely experience psychological harm if returned to the USA unless and until they could be persuaded and assured that they would be safe. I agree with the mother’s submission that there is no reasonable likelihood of either child being so assured or persuaded at this time.
As a consequence of the above I conclude that there is a grave risk that T would be exposed to psychological harm and/or otherwise be placed in an intolerable situation if he was returned to the USA.
I need to consider whether, notwithstanding that finding in relation to Regulation 16(3)(b), I should refuse an order for return.
In my view, the preponderance of considerations fall in favour of not making a return order for T. I reached that conclusion notwithstanding the subject matter and scope and purpose of the Regulations, and I reiterate what I have said about that earlier. I bear in mind that although the failure to return each boy ousts the jurisdiction of the courts in the USA to hear matters relating to the care of and welfare of both boys it does not oust the jurisdiction of the Family Court of Australia. The father has an entitlement to bring an action in this Court if he so desires. I accept that will carry with it all of the difficulties of conducting litigation in a foreign land.
In the result, I would dismiss the applications of the Director-General in relation to both children. In so doing, I record that at the end of the day, I find this a compelling case and decline the application. The order of the court will be that the Application filed by the Director-General on 25 May 2008 be dismissed.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate:

Date: 2 October 2009

[2009] FamCA 937

24 August 2009

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