Director General, Department of Community Services as the New South Wales Central Authority and Gamble

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES AS THE NEW SOUTH WALES CENTRAL AUTHORITY & GAMBLE

[2007] FamCA 1061

FAMILY LAW – CHILDREN – Child abduction – Central Authority

Family Law Act 1975 (Cth)

DL v Director-General, NSW Department of Community Services and Anor (1996) 187 CLR 640
Agee and Agee (2000) FLC 93-055
Roberts v Director-General, Department of Child Safety [2007] FamCa 65
Re F (Hague Conventions: Child's Objections) (2006) FLC 93-277
Re H B (Abduction: Children's Objections) [1997] 1 FLR 392
Re M (A Minor) (Child Abduction) [1994] 1 FLR 390
Re T [2000] 2 FLR 192; EWCA Civ 133; Fam Law 594; 2 FCR 159
Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716
Zaffino v Zaffino [2005] EWCA Civ 1012

APPLICANT:

Director-General, Department of Community Services as the New South Wales Central Authority

RESPONDENT:

Ms Gamble

INDEPENDENT CHILDREN’S LAWYER:

Mr Hearl

FILE NUMBER:

SYF

2978

2006

DATE DELIVERED:

6 September 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

3 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hartstein

SOLICITOR FOR THE APPLICANT:

Legal Services Unit, Department of Community Services

COUNSEL FOR THE RESPONDENT:

Mr Hill

SOLICITOR FOR THE RESPONDENT:

Stuart & Mills

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hearl of Delaney Lawyers

Orders

The orders made on 29 August 2006 and 15 September 2006 be discharged.
The application filed on 18 May 2006 by the Director-General of the Department of Community Services as Central Authority be dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Ryan delivered this day will for all publication and reporting purposes be referred to as Director-General, Department of Community Services as the New South Wales Central Authority and Gamble

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2978 of 2006

Director-General, Department of Community Services as the New South Wales Central Authority

Applicant

And

Ms Gamble

Respondent

REASONS FOR JUDGMENT

Introduction

Before me for hearing is an application made pursuant to the Family Law (Child Abduction Convention) Regulations 1986. The Director-General of the Department of Community Services as Central Authority seeks orders for the return of the child J, born on … April 1996 to the Republic of South Africa. The Respondent is the child’s mother.
On 29 August 2006 I ordered that the Director General make all such arrangements as were necessary to ensure that the child was forthwith returned to South Africa. The return was subject to an order that the Father was to do all acts and things to ensure that upon the return of the child to South Africa, there was in place in the Republic on an interim basis, without admission by the Father, a protection order in favour of the Mother pursuant to the provisions of the Domestic Violence Act of that country.
There were difficulties in enforcing my orders and as a result the Mother filed an appeal in the Full Court. Then on 5 December 2006 the Full Court allowed the appeal in part and made an order that the matter be remitted for further hearing by me to determine whether, in light of the child's apparent refusal to accompany his father to South Africa in September 2006, it is now appropriate to discharge or vary orders made 29 August 2006 and 15 September 2006 for the return of the child. The appeal was otherwise dismissed.
The Director General concedes that in this case the Mother has now made out the “defence” that the child objects in reg 16(3)(c) of the Regulations and what remains for me to consider is whether pursuant to reg 16(5) to order the return of the child to South Africa pursuant to my discretion to do so.
An Independent Child Lawyer appeared. This was in consequence of what the Full Court said.
I had the benefit of a number of further affidavits from the Father. However I had no further evidence from the Mother.
I had the benefit of a report from a Court Expert Dr R who is a Child and Family Psychiatrist (Exhibit B). I was informed that neither counsel for the Director General nor counsel for the Mother nor the Independent Child Lawyer sought to cross examine Dr R. Dr R was the second expert witness.
I also had the benefit of written summaries of argument filed by the Director General and the Independent Child Lawyer.
For reasons which I will hereafter attempt to give this is a very difficult case.

Background Facts

The Father was born in November 1956 in South Africa and the Mother was born in August 1958 in Africa. The parents were married in January 1981.
A daughter was born in November 1981. This child is presently in Australia. A son was born in May 1985. This child resides in South Africa. The child J was born in April 1996 in South Africa. The present application concerns this child.
In February 2005 the Father ceased to reside in the matrimonial home.
On 30 May 2005 the Father commenced divorce proceedings in the High Court of South Africa.
On 5 October 2005 the Mother and the Father entered into an Interim Custody and Maintenance Order. The order provided that the Mother have custody of the child J, the Father have reasonable access and the Father pay various amounts being R4,100 per month as maintenance for the child, school fees, life insurance premiums, remuneration of a domestic servant and medical aid scheme premiums.
On 2 January 2006 the Mother and the daughter and J departed South Africa for Australia. On 19 January 2006 the Mother’s Attorney wrote to the Father’s Attorney and advised that the Mother had decided to extend her stay in Australia for an indefinite period and that the child would be enrolled in a school in Australia. The Mother’s Attorney also said that the Mother had obtained employment in Australia.
In her report Dr R said: “[J] and his mother came to holiday in Australia in January 2006. He had not known they would stay but after a few weeks suspected they would”.
The Father did not consent to the permanent removal of the child from South Africa nor consent or acquiesce to the child being retained in Australia. I accepted that the Mother either planned the wrongful removal of the child by falsely stating that she intended to return with the child on a specified date or she decided to retain the child wrongfully in Australia sometime during the holiday in this country.
On 18 May 2006 the Application for the return of the child was filed in the Sydney Registry of the Family Court.
The Application was heard by me on 29 August 2006. At the commencement of the hearing a number of important concessions were made by the Mother, namely:
·Australia and the Republic of South Africa are both signatories to the Hague Convention on the Civil Aspects of International Child Abduction;
·the child is under the age of 16 years;
·the child was habitually resident in South Africa at the time of his wrongful retention in Australia by the Mother;
·the Father resides in South Africa;
·the Father had rights of custody in relation to the child immediately before his removal or retention;
·the Father was exercising rights of custody;
·the child was retained in breach of the custodial rights of the Father;
·the application was filed within one year of the wrongful retention.
·the Father did not consent to the permanent removal of the child from South Africa nor consent or acquiesce to the child being retained in Australia.
However the Mother contended that:
·there was a grave risk that the return of the child to South Africa would expose him to physical or psychological harm or otherwise place him in an intolerable situation within the meaning of reg 16(3)(b) of the Regulations;
·the child objected to being returned to South Africa and had attained an age and degree of maturity at which it was appropriate to take account of his views within the meaning of reg 16(3)(c) of the Regulations.
On 29 August 2006 I made the following orders:
1. The Director-General of the Department of Community Services as the New South Wales Central Authority make all such arrangements as are necessary to ensure that the child [J] born [in] April 1996 is forthwith returned to the Republic of South Africa pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction subject to Order 2 hereof.
2. The Father do all acts and things to ensure that upon the return of the child to Republic of South Africa there is in place in the Republic on an interim basis and without admission by the Father a Protection Order in favour of the Mother pursuant to the provisions of the Domestic Violence Act of that country.
In my judgment of 26 August 2006 I said:
115    In conclusion, I am satisfied that in the circumstances of this case the facts are not compelling and the defence has not been established. I am not satisfied that there is a grave risk that the return of the child would expose him to physical or psychological harm or otherwise place him in an intolerable situation.
…
122    In the result I am 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.
123    In conclusion, I am of the view this second defence has also not been established. In the result given that the Mother has failed to establish a defence an order will be made for the return of the child to the Republic of South Africa.
124    I should add that even if I had been satisfied that a matter mentioned in reg 16(3) of the Regulations had been established I would have exercised the discretion in favour of making an order for the return of the child to South Africa so that matters of custody could be dealt with by courts in that country. There are already proceedings on foot in South Africa and they have not yet been finalised. The Mother is able to seek in that country relief in relation to financial and personal protection issues.
125    I will make an order providing for an interim protection order in favour of the Mother in the Republic of South Africa on a without admission basis by the Father. This will enable the Mother to return to that country and know that until it has been resolved by agreement or there is an adjudication of relevant issues she has the benefit of such an order. However, she will have to contest the making of a final order. I am not prepared to make any orders about the provision of financial support of the Mother as that is a matter that the Courts in South Africa are already seized of or will be when the Mother returns.
126    In my view, this is a case where the child should forthwith be returned to South Africa.
On 15 September 2006 I made the following orders:
IT IS ORDERED BY CONSENT:
1.      The Central Authority make such arrangements as are necessary for the return of the child [J] born […] April 1996 to South Africa as soon as practicable, in the company of the child’s Father […].
2.      The Registrar of the Family Court, Sydney Registry hand over the passports of the child […] born […] April 1996 and the Respondent [mother] born […] August 1958 to a representative of the New South Wales Department of Community Services to facilitate the child’s return to South Africa in accordance with Order 1.
3.      The Respondent [mother] hand over the child [J] to the Father […] at the Eastern Sydney Local Office of the Department of Community Services situated at […] in the presence of a Department of Community Services caseworker at a time nominated by the Casework Manager of the Eastern Sydney Office, and such hand over to take place not less than 24 hours prior to the child’s flight.
4.      The legal representative for the Central Authority deliver the passport of the Respondent to the solicitor for the Respondent within 72 hours of the child’s departure from Australia.
5.      The Australian Federal Police permit the child [J] born […] April 1996 to depart Australia in the company of the child’s Father […] following the receipt of these orders.
6.      Following the departure of the child [J] born […] April 1996 from the Commonwealth of Australia in accordance with Order 1 the Australian Federal Police remove the names of the following persons from the PASS alert system in operation at all Australian international arrival and departure points:
·[J] born […] April 1996
·[The mother] born […] August 1958
7.      The orders of Judicial Registrar Loughnan made on 6 June 2006 be discharged.
8.      The Central Authority serve a sealed copy of these orders upon the Commissioner, Australian Federal Police as soon as possible.
9.      All outstanding applications are removed from the list of cases awaiting finalisation.
THE COURT NOTES and it is accepted that the Father has not applied for a protection order in favour of the Mother pursuant to the provisions of the Domestic Violence Act of South Africa on an interim and without admissions basis as the Father has been advised that the Mother does not intend to return to South Africa with the child.
Following the order for return made on 29 August 2006, the Mother decided that she would not return with the child and the child then refused to board a flight for his return with his father to South Africa. On 19 September 2006 the child was taken by the Mother to the office of the Department of Community services in anticipation of return to South Africa.
The Father and the older son came to Australian in September 2007. The Father experienced difficulties spending time with the child. In her report Dr R said:
Discussing why she had not allowed [J] to have overnight contact with [the father] and [the older son] on the 2006 visit, [the mother] referred to [the father’s] [physical disorder], which is a “debilitating condition” and how she use to allow overnight contact in South Africa when [the father] was with his mother. When I pointed out [the older son] was present last year, she queried what could [the older son] have done, she was worried about [J’s] safety and [the older son] would not have known what to do (like call the Police if needed). She had tried to talk to [the older son], who would not talk to her and therefore she deemed he could not be responsible for [J] as she needed to known their arrangements. On the recent visit, because she knew the arrangements, [J] had been allowed to stay. She did not explain why, two days before this weekend contact was to occur, neither [the father] nor [J] were aware that he would be staying with his father overnight – this seemed only to have been organised after their assessment for this report.
Dr R also said:
When [the father] and [the] older son […] came in September 2006, they had restricted contact to [J] and could not see him overnight. [The father] reported that he had later heard [J] went on holiday alone with [Mr R], who was known to him and [the mother] as a alcoholic and gambler. He thought [the mother] was intentionally not allowing him to see [J] as she was “developing alienation” in [J], so [J] would not develop a “beneficial bond” with him. He referred to the man [the mother] was allegedly having an affair with ([H]) being a convicted criminal who had shot at [the older son].
On 26 September 2006 the Wife filed a Notice of Appeal. On 5 December 2006 the Full Court heard and determined the appeal and in a judgment of 5 December 2006 the following appears:
10     It is now common ground that the father came to Australia in September 2006 to collect the child. [J] was taken by the mother on 19 September 2006 to the Department of Community Services, Eastern Sydney Community Service Centre, where he made it clearly known that he did not want to return to South Africa. He was seen by child protection caseworkers to be visibly upset and distressed as attempts were made to return him to his father.
11     After one and a quarter hours, during which attempts were made to persuade to cooperate with his return to South Africa, it became apparent that the child was incapable of being convinced, and an agreement was then reached that [J] could return home with his mother that morning, but would be expected to have contact with his father over the ensuing days.
12     Ms G, a DOCS casework manager, deposed that [J] was kicking the wall and punching furniture at the handover had said, "Let me talk to the Judge, I'll talk to the Judge. The Judge did not talk to me." She said to [J], prior to him leaving the centre, words to the effect,
“[J], you can leave this morning with your mother. But this does not mean you do not have to return to South Africa. Even after the Judge listens to have you have to say, the Judge can still decide that you have to go back to South Africa”. If the Judge decides again that you have to go back, I want none of this type of behaviour, you just have to go. Do you understand?"
[J] said: "Yes, I'll go".
13     The father spent several hours with [J] on Thursday, Friday, and Saturday, 21, 22, and 23 September 2006. The father then left Australia without the child and returned to South Africa.
14     Each party included in the Appeal Books applications to lead further evidence of the events that occurred after the orders were made. At the commencement of the appeal we indicated that we felt it inevitable that we would allow sufficient parts of that evidence to be led that included the non contentious matters described above, namely, the presence of the father and the significant reluctance of the child to return with him.
…
16     In light of the subsequent events, we are of the view, that it is now appropriate that the matter be reconsidered by the trial judge to determine whether or not the evidence now discloses that the earlier order for the return of the child should be set aside on the basis of the child's objection to being returned in accordance with the provisions of reg 16(3)(c) of the Regulations.
17     It also needs to be considered that if the defence is successfully invoked, it may still be appropriate, having regard to the Court's residual discretion to order a return of the child. We note that this proposed course is one to which both parties of the appeal have given their consent.
…
20 We would now envisage that this matter should be returned to O'Ryan J for further consideration. His Honour has indicated he is available to make some directions in the matter on 14 December at 9.30 am. We would envisage that those directions would give consideration to the appointment of an independent child's lawyer for the child and for the preparation of a further family report. While s 68L(3) of the Family Law Act 1975 (Cth) provides in proceedings arising under the regulations made for the purposes of s 111B, the court may order the child's interests in the proceedings be independently represented by a lawyer only if the court considers there are exceptional circumstances that justify it in so doing and that it must specify those circumstances in making the order, given the strong expressions of the child and the promises held out to him by the case worker, O'Ryan J may find that this would be an appropriate case to fit within the exception outlined in that section.
On 5 December 2006 the Full Court made the following orders:
(1)     The appeal be allowed in part;
(2)     The matter be remitted for further hearing by O'Ryan J to determine whether, in light of the child's apparent refusal to accompany his father to South Africa in September 2006, it is now appropriate to discharge or vary the orders made 29 August 2006 and 15 September 2006 for the return of the child;
(3)     The matter be listed for a directions hearing before O'Ryan J on 14 December 2006 at 9.30 am to include consideration of the appointment of an independent children's lawyer and the preparation of a further family report;
(4)     The appeal be otherwise dismissed.

In summary the Full Court dismissed the Mother’s Appeal but ordered the matter be remitted for rehearing before me “in light of the child’s apparent refusal to accompany his father to South Africa in September 2006”.
On 16 February 2007 by consent I made the following orders:
1.      Pursuant to Regulation 26 of the Family Law (Child Abduction Convention) Regulations and/or Chapter 15 Part 15.5 Division 15.5.2 Rule 44 of the Family Law Rules 2004, Dr [R], child psychiatrist, (the “Expert”) be appointed to prepare a report (the “Report”) for the assistance of the Court in relation to the following matters:-
1.1Whether the child [J] (born […] April 1996) (“the child”) objects to being returned to South Africa.
1.2Whether the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes.
1.3Whether the Expert believes that any factors (such as the child’s maturity or level of understanding) are such that it is relevant to take account of and give weight to the child’s objection.
1.4That it be noted unless both parents are available to be interviewed by the Expert in person, the Expert is not required to speak to either of the parents in relation to the preparation of the Report but, in the event both parents are available to meet with the Expert, then the Expert, may at her discretion, speak to the parents to assist in the preparation of the Report.
2.      The parties bear the cost of the preparation of the said Expert’s Report in equal shares and shall ensure sufficient funds have been paid to the Independent Children’s Lawyer on behalf of the Expert before any steps are taken by the Independent Children’s Lawyer to formally retain the Expert to commence the interviews for the Report.
3.      The parties make payment of the cost of the Expert’s Report within fourteen (14) days of the written request by the Independent Children’s Lawyer to each of them to do so.
4.      The Independent Children’s Lawyer be given photocopy access to documents produced under Subpoena for provision of same to the Expert.
5.      The single Expert be granted leave to inspect documents produced to the Court pursuant to Subpoena for the purpose of preparation of her Report.
6.      It be NOTED that the intention of Order 1.4 is that in the event the expert decided to speak to the parents it would be on the basis that she spoke to both parents on a face to face basis and if she was unable to do that then none of the parents would be spoken to.
7.      It be NOTED that the hearing of the pending application is expedited.
8.      The Expert be authorised to read all of the material which was contained in the Appeal Books with the exception of the report of Dr B dated 20 October 2006.
9.      The Expert be authorised to read all affidavits, if any, which have been filed by each of the parties subsequent to the determination of the appeal.
These orders reflected what the Full Court had said.
Dr R conducted interviews on 28 February 2007 and 15 and 28 March 2007.
The Father returned to Australia in March 2007 for the purposes on being interviewed by Dr R. I gather that again there were difficulties in relation to the Father seeing the child. In her report Dr R said:
On the recent visit, because she knew the arrangements, [J] had been allowed to stay. She did not explain why, two days before this weekend contact was to occur, neither [the father] nor [J] were aware that he would be staying with his father overnight – this seemed only to have been organised after their assessment for this report.
Dr R also said:
The day prior to the appointment, Mr Hearl had called to inform me [the mother] had spoken to him to tell him that [J] was “traumatised” and “scared” at the prospect of meeting with his father.
…
After an anxious but warm reunion with his father, [J] rapidly relaxed and became animated as they chatted about cars and computers. [J] enjoyed advising his father about the latter! He noticed Dad’s scraped elbows and with interest enquired what happened and asked about [the older son]. His father was affectionate and appropriate with him, mentioning organising a video link up for when they “telephone” each other.
Discussing their contact on the coming weekend, [J] was clear he would go with Dad during the day.
…
[J] described his nice contact with his father and said he was “sort of” missing him. He has since spoken to both father and [the older son] on the telephone.
On 5 April 2007 a report was completed by Dr R.
The Father swore affidavits on 5 and 19 July 2007 and 21 and 28 August 2007. The older son swore an affidavit on 18 July 2007.
The Father traveled to Australia on 4 August 2007 to spend time with the child and also attend the hearing before me. The Father gave evidence about the time he has spent with the child. The Father said, and I accept, that the child has thoroughly enjoyed being with the Father and has been very affectionate towards him.

Relevant principles

Regulation 16(3) provides that court may refuse to make an order for the return of a child if a person opposing return establishes that the child objects to being returned and the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views. However the court is not precluded from making a return order for the child only because a matter mentioned in sub reg (3) is established by a person opposing return.
In DL v Director-General, NSW Department of Community Services and Anor (1996) 187 CLR 640 the majority (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) said at 661:
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 reg16(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.
In Agee and Agee (2000) FLC 93-055 the Full Court (Finn, Holden and Guest JJ) said at 87,907:
[82]    …There have been many decisions at first instance considering the factors to be taken into account by a court in the exercise of the discretion arising under the Regulations, and in which it is made perfectly clear that a significant matter for consideration is the underlying purpose and intent of the Convention.
[83]    …[w]e 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 the return. In doing so, the purpose and intent of the Convention is to be accorded significant weight.
[84]    …The discretion is necessarily a wide one which should not be limited by fixed criteria, for each case is necessarily dependent upon its own facts and circumstances. …
[85]    The identification of those matters relevant to the exercise of his discretion included the background of the children’s residence in both Australia and New Zealand, the removal of the children by the wife, the policy of the convention and events that have occurred since the children have been brought to Australia.   They necessarily encompass matters impacting upon the welfare and interests of the children. …
Then in Ryan v Director-General, Department of Child Safety [2007] FamCa 65 the Full Court (Kay, Coleman and Boland JJ) said:
20. We accept the submission that his Honour was in error in determining that there needed to be “clear and compelling” reasons to frustrate the objectives of the Convention. The Convention and the Regulations mandate the return of children in certain circumstances. There are permitted exceptions to such mandatory return. Once an exception has been established there remains a discretion to refuse to order a return. The discretion is at large and requires the competing considerations to be carefully weighed before determining an outcome. The factors to be considered will vary according to each case but may certainly include giving significant weight in an appropriate case to the underlying objectives of the Convention as stated in the preamble to the Convention, namely a desire to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.
I sought some assistance in relation to authorities dealing with the exercise of discretion conferred by reg 16(3) of the Regulations and I was referred to those set out above and Re F (Hague Conventions: Child’s Objections) (2006) FLC 93-277. There were other cases referred to which I will shortly identify.
In my view the position may be summarised as follows:
·The Regulations do not specify the matters to be taken into account in the exercise of the discretion conferred by reg 16(5).
·The matters that may be considered will depend on the circumstances of the case.
·However although the discretion is at large the relevant matters must relate to the welfare of the child, and
·the scope and purpose of the Regulations namely a desire to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence may make a particular matter extraneous. This has been expressed in some cases to mean that depending on the circumstances significant weight may be given to the scope and purpose of the Regulations.
In considering the welfare of the child the discretion is not governed by the principle that the welfare of the child or best interests of the child is the paramount consideration.
I was also referred to cases where as in this case the following occurred. An order had been made for the return of a child. The subsequent behaviour of the child made it difficult to implement the order. The party opposing the return of the child then made an application by appeal or otherwise and was given the opportunity to revisit or raise one of the defences and in particular the defence of objects.
In the first written summary of argument the Director General it was said that:
Although every case must be decided on its own facts, it is useful to see what has been done in other cases in Australia and by courts in other jurisdictions when met with similar reactions from a child ordered to return. It appears that in each case where children have physically opposed the enforcement of a return order that order has subsequently been overturned. (emphasis mine).
I was then referred to Re F (Hague Conventions: Child’s Objections) (supra). In that case the Full Court considered the circumstances where after a return order was made there were two attempts to persuade a child to board a flight to the United States. The Court held that in determining the manner in which they should exercise the discretion as to whether to require a return it was appropriate to consider, amongst the other well known considerations, the impracticability of successfully enforcing an order for return short of using inappropriate force (Ibid at [63] – [70]. The Court finally found, after balancing the relevant factors, that it could not ignore the reality of the situation (Ibid at [70].
In Re H.B. (Abduction: Children’s Objections) [1997] 1 FLR 392 two children, a boy aged 13 and a girl aged 11½ had been living with their mother in Denmark and having extended access with their father in England from time to time. In February 1996 the Mother suggested that the boy live with his father for an extended period and he was sent to England on a one way ticket in April of that year. The girl followed in late June on a return ticket for 10 August. In late July the Father told the Mother he would not be returning either child. The Court ordered the return of both children despite finding that the boy’s objections were valid but the girl’s were not. The girl refused to board the plane. A substantive appeal was allowed on the basis that there had been a fundamental change in the circumstances since the original decision and the matter was remitted to the trial judge.
In Re M (A Minor) (Child Abduction) [1994] 1 FLR 390 two boys aged 11½ and almost 10 at the date of removal were ordered by consent to return to Australia. On the day of return the Mother decided she would not return herself. As the plane taxied for takeoff the older boy attempted to open one of the plane doors. The flight was then aborted and the boys placed in police custody. The Mother then appealed against the consent order and the court found that there had been a fundamental change in circumstances and therefore the case should be remitted to a High Court judge to decide whether or not to take the children’s objections into account.
In the first case written summary of argument of the Independent Child Lawyer no submission was made in relation to the outcome in this case.
In the first written summary of argument of the Director General it was simply said that the discretion is at large and “…the impracticability of achieving a return without recourse to inappropriate force is a relevant consideration”. It may be that what was being referred to is what the Full Court said in Re F (supra) namely:
63 … It is difficult to see how almost three years after the wrongful retention has taken place it would be appropriate to return a most reluctant 12 year old child in circumstances where the return might require the use of force and where the return would separate the child from his primary caregiver.
This paragraph was relied upon by counsel for the Mother.
In the second written summary of argument the Director General referred me to decisions of the English Court of Appeal in Re T [2000] 2 FLR 192; EWCA Civ 133; Fam Law 594; 2 FCR 159; Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 and Zaffino v Zaffino [2005] EWCA Civ 1012.
In the second written summary of argument the Independent Child Lawyer was more inclined to express a view on the outcome and concluded:
Whilst the circumstances whereby the child came to be in the particular jurisdiction are a relevant consideration, it appears that Courts in various jurisdictions administering the Hague Convention have invariably placed the immediate physical welfare of the child over all other considerations. In particular, there appears to have been a consistent refusal to return a child (notwithstanding any other considerations) in circumstances where the child’s return can only be achieved through the use of inappropriate force (which, in the respectful submission of the Independent Children’s Lawyer, would include sedation of the child in question). (emphasis mine)

Conclusion

This is a very difficult case and for this and other reasons I sought further submissions in relation to the exercise of discretion. For this reason I then received what I have referred to as the second summaries of argument. The Director General conceded that the objection defence has been made out and this admission was supported by the Independent Child Lawyer in the second written summary of argument. Further neither the Director General nor the Independent Child Lawyer made a submission that I should still order the return of the child.
In her report Dr R described the child as “a sensitive, pleasant, young eleven year old who is highly anxious about being separated from his mother, his primary caregiver”. She said:
[J] clearly, very adamantly and repeatedly expressed his objections to returning to South Africa. There is undoubtedly was a strength of feeling beyond the mere expression of a preference or of ordinary wishes, as is also evidenced in his uncharacteristic behaviour at the handover to his father in 2006..
Dr R then went on to explain why in her opinion the child has this view and said:
The reasons for his objections are likely to be multifactorial.
…
However I hypothesise it is the family situation which is most significant in making [J] feel unsafe: the marked, chronic parental discord; the breakdown of the marriage and then the splitting of his siblings into alliances with their parents as well as his mother’s frightening experiences with armed men in Johannesberg (sic) and her failure to protect him from knowing the details (or correcting misinformation, for example when he spoke in front of her about them being “gassed” multiple times in South Africa). Even if [the mother] has not been overtly graphic with [J] about her experiences, her fearful attitudes and concerns about safety (supposed reason for not letting [J] stay with his brother and father in 2006; failure to reassure him his father can keep him safe) would have impacted on him: he is tuned into her emotional state and becomes distressed if she is, accepting her version of the reasons for this distress.
…
The biggest source of distress and fear for [J] is separation from his mother and as she has made it clear she would not return with him, he cannot countenance returning to South Africa. Age appropriate, he is not psychologically equipped to separate for an indefinite period from his primary caregiver, even though he would be in the company and care of his loved father. He is also NOT yet competent to be aware of the implications for his development of losing the relationships with his father and brother he could have if he were to have significant periods of time with them. With maturity, he might arrive at this awareness with anger towards his mother or he might fail to mature, remaining at his current immature (age appropriate for now) position of splitting – Mum is right (“good”) and Dad is wrong (“bad”). He might well end up alienated from his father if the current family dynamics persist. It will be difficult for him to move away from his current position while he remains with his mother and if she continues operating with this same splitting defence with respect to [the father] and South Africa.
In the second written summary of argument the Independent Child Lawyer submitted that twelve matters may be relevant:
·The circumstances whereby the child came to be in Australia.
·The child has been resident in Sydney since in or about January 2006 and appears to be well settled in his current environment.
·The Mother to whom the child is primarily attached is also resident in Sydney and also appears to be well established in her current environment.
·The child is residing with his mother and extended family members in terms of [J]’s sister, and other members of the mother’s family in Sydney.
·Notwithstanding the cost, the Father has visited [J] on a number of occasions in Sydney and has spent enjoyable time with him whilst here.
·The child is presently in school and, indeed, has been in school effectively since just after he arrived in Australia in early 2006.
·The child’s opposition to returning to South Africa has remained undiminished throughout the course of the matter.
·At the time of the original case before me the child’s reaction or possible reaction to a return to South Africa was unknown. As a consequence of his refusal to return to South Africa in September 2006 it is now clear that the child’s return to South Africa in the current circumstances (that is, where the mother has indicated she will not return to that country) can only be achieved through the use of inappropriate force.
·The consequences for the child’s relationship with his father and brother if he is to remain permanently residing in Australia with his mother.
·The consequences for the child’s relationship with his mother (and to the extent relevant his sister) if he were forced to return to South Africa (without his mother).
·The long term consequences for the child in terms of his own personal development if he is forced to return to South Africa, given the very clear caution expressed by Dr R in that regard.
·The matters listed under s.60CC(3) of the Family Law Act may also provide a useful guide but are not mandatory.

I will deal with the above matters. However I had some difficulty understanding some of the matters.
The circumstances whereby the child came to be in Australia were that he thought he was coming to Australia for a holiday. I have already found that the Father did not consent to the permanent removal of the child from South Africa nor consent or acquiesce to the child being retained in Australia. The Mother either planned the wrongful removal of the child by falsely stating that she intended to return with the child on a specified date or she decided to retain the child wrongfully in Australia sometime during the holiday in this country.
The child has been resident in Sydney since about January 2006. The Independent Child Lawyer submitted that the child appears to be well settled in his current environment. This appears to be based on what Dr R reported the child told her.
There is the evidence of Dr R that the Mother is the primary caregiver of the child. The Mother is resident in Sydney. For the purposes of this application I will accept that the Mother appears to be established in her current environment.
The child is residing with his mother and his sister in Sydney.
The Father has visited the child on three occasions in Sydney and has spent enjoyable times with him whilst here.
The child is presently in school and has been in school effectively since just after he arrived in Australia in early 2006.
The child is opposed to returning to South Africa.
As to the practicality of effecting the return of the child to South Africa the only evidence before me is that given that the Mother has now indicated she will not return to South Africa the return of the child to South Africa can only be achieved by the means suggested by Dr R. This appears to be accepted by the Director General and the Independent Child Lawyer.
There are very significant consequences for the child’s relationship with his father and brother if he is to remain residing in Australia with his mother. Dr R said that the child may be alienated from his “loved father”.
There may be consequences for the child’s relationship with his mother and to the extent relevant his sister if he were forced to return to South Africa without his mother. According to Dr R there are long term consequences for the child in terms of his own personal development if he were to return to South Africa and the Mother remained in Australia. However this assumes that the Mother would not return to South Africa.
There may be consequences for the child’s relationship with his mother and to the extent relevant his sister if he does not return to South Africa. The child has an enmeshed emotional relationship with his mother and Dr R described a consequence of losing a relationship with his father and brother being anger towards the Mother or he might fail to mature.
In my judgement of August 2006 I said that there was support for the submission on behalf of the Director-General that the Mother’s decision not to return with the child was made with the primary purpose of forcing the Father to pay her more money than he had offered. I also said that the Mother’s contention that the level of violence in South Africa posed a grave risk of physical harm to the child was an ex post facto justification for her failure to return tailored to meet the wording of the Regulations. I said that a significant portion of the Mother’s evidence concerned her complaints that the Father was a poor provider. I said that if the Mother and the child were at grave risk of harm as a result of the Father’s refusal to provide the amount of money the Mother sought she could apply to the relevant South African court which is seized of the matter for appropriate relief. I also said that the Mother could work in South Africa as well as in Australia.
The Mother previously raised the defence of objects and in my August 2006 judgment I said that the Counsellor who gave expert evidence said that the child presented as a child with the appropriate emotional and social development of a child of 10 years but was not yet old enough to be able to understand the ramifications of his remaining in Australia if it meant an interruption in his relationship with his father and brother. This is what Dr R also appears to be concerned about. I said that the child clearly has a close relationship with the members of his family and craves proximity to both his parents. I said that the child voiced an objection to being returned to South Africa based on perceived notions of relative safety and importantly that the Counsellor said that it seems likely he would accord with the views of his mother and accept whatever living arrangement she deemed were best for them (emphasis mine). In my opinion Dr R dealt with at some length the child’s expression of the views of the Mother.
Pausing there the inference I drew was that if the Mother returned to South Africa then there would be no difficulties for the child also returning to that country. In fact the Mother had sought that if an order was made that the child be returned to South Africa conditions be attached to any order. She sought that the Father be required to pay R22,500 per month into her bank account, being R15,500 the Father was required to pay pursuant to a previous order and R7,000 being for what the Mother described as her loss of income. The Mother sought that the Father provide her with a motor vehicle. The Mother sought that the Father provide a two month rental deposit on a fully furnished three bedroom house with full security in a suburb of Johannesburg, the rental being approximately R10,000 per month. The Mother sought that the Father pay R30,000 to her South African attorney to enable her to contest the proceedings. As well, the Mother sought that the Father pay the cost of air tickets for her and the child to return to South Africa. In my judgment I said that the Mother proposed certain conditions for her return to South Africa and although the Father declined to meet the conditions it was clear, from the very fact that the payment of money can negate the risk, that the facts of the case did not bring it within that class of case of compelling facts. I also said that the Mother’s own fears would be assuaged by the provision of a large sum of money by the Father.
I concluded that there were already proceedings on foot in South Africa and they had not yet been finalised. I said that the Mother was able to seek in that country relief in relation to financial and personal protection issues. I said that I was not prepared to make any orders about the provision of financial support of the Mother as that was a matter that the Courts in South Africa were already seized of or would be when the Mother returned.
Given what I have said the question that arises is what happened after the orders and, in my opinion, prima facie the answer is obvious namely that the Mother did not achieve what she wanted and changed her mind about returning to South Africa.
In her report Dr R said a number of important things. She said that when the child was asked if he would go back if the Mother was living in South Africa the child in a guarded manner said “maybe” and when “pushed” said that the Mother would not want to. Dr R asked the child how he would feel about being returned by me so that his parents could finish making arrangements about his future in courts in South Africa and the child replied that he would not feel good and he “did not know if Mum would go back”. Dr R said that the child “…declared he would not set foot on the plane-but agreed he would if Mum went with him”. The Mother however has made very clear that she will not do anything to effect the return of the child to South Africa.
In my opinion the next issue is to consider what are the consequences of the Mother’s approach. Before dealing with this question there are some important matters.
The child clearly has a close and loving relationship with the Father. The child also has a close relationship with his brother who lives in South Africa. For the purposes of the hearing in August 2006 the counsellor said “As a ten year old, [J] is not yet old enough to be able to understand the ramifications of his remaining in Australia if it means an interruption in his relationship with his father and brother. He misses them and would like them to live nearby him in Australia. Like any ten year old, [J] craves proximity to both his parents”. Dr R gave evidence of what the child said to her and her observations of the child and the Father and her evidence corroborates the relationship of the Father and the child.
The child also has a very close relationship with the Mother to whom he is primarily attached. However this relationship may be problematic. Dr R said a number of things including:
Asked what she had told [J] before the Ordered return in 2006 about when he would next see her, [the mother] replied she had said she would try and see him when she could, to come to an arrangement with his father but no time frame was given. [J] had been “terrified of being forced to go back to a place where he knew he would not be taken care of”. He feels (sic) more secure with her as she has always organised his security and other aspects of his life. She did not reassure him [the father] would take care of him, asking “why would I lie to him” and so did not say anything.
…
His narrative and attitudes are so similar to his mother’s that I have concerns he has an enmeshed relationship with her.
I also refer to what Dr R said in that part of her report titled “Summary and Discussion” some of which I have already set out above
There are number of important consequences if an order is not made. One consequence is that the Mother would not participate in the pending proceedings in South Africa where a determination would be made as to what is in the best interests of the child. This may have the result that the only way there would be consideration of what is in the best interests of the child is if there were proceedings in Australia and the Father participated in those proceedings.
Next if there is not consideration of what is in the best interests of the child then according to Dr R the child will remain in an enmeshed relationship with his Mother and there may be implications for the child’s development. In fact there are a number of matters raised by Dr R that would require further exploration, including by appropriate experts, if this was a best interests inquiry. Without repeating all of them in my opinion there are a number of matters that would be relevant if I was being asked to make a parenting order in accordance with the provisions of Pt VII of the Family Law Act 1975 (Cth) including the capacity of each parent to provide for the emotional needs of the child and the attitude to the child and to the responsibilities of parenthood demonstrated by each parent. Dr R recorded a number of things she was told by the Father and they include his admission that the child loves the Mother and the importance of the child spending time with both parents.
Dr R said:
When she was asked, [the mother] said she would not go back if [J] had to – there was nothing that needed to be attended to that could not be sorted out from here, she would return for the Court Hearing (emphasis mine) and it’s “entirely up to [J] if he goes back”. She would not return with him as she cannot take care of him there, “not got anything”.
This was not explored and thus the question is what does it mean. On one view it may be that what the Mother said was that she would go back to South Africa for the “Court Hearing” but she would not take the child and it is “entirely up to [the child] if he goes back”. For my part if this is what the Mother was saying then it is extraordinary and does her no credit at all. The Father put on evidence in response to what Dr R said and the Mother provided no evidence. It may be that the Mother was referring to pending proceedings in South Africa in relation to financial issues but it does not really matter.
The hearing before me proceeded, as before, in truncated way in that there was no cross examination of Dr R or the parents. However taking into account what I have said, given the untested evidence before me, on one view, in the circumstances of this case, if an order was not made that the child return to South Africa then the Mother has been able to effectively “…drive a carriage and four through the Convention…”: C v C (minor abduction: rights of custody abroad) (1989) Fam Law 228; 2 All ER 465 per Butler Sloss LJ. I observe that in Re F the Full Court referred to a decision of an English Deputy High Court judge in Re SC (A Child) [2005] EWHC 2205 (Fam Div) who when dealing with a case involving a child who had been wrongfully removed from the United States in 1999 and secreted in England for more than four years said:
It is clear to me (at least) that notwithstanding the grievous wrong done to F; notwithstanding the deceit and subterfuge perpetrated by M; and notwithstanding the existence of a Californian custody order, that it was in October 2003 or at any time thereafter inconceivable that an English court would have returned S to California for a custody trial there.
…
I recognise that all manner of moral and philosophical objections can be raised to this view. No doubt F, and his many supporters in California and Ireland would say that in taking this view I am rewarding the worst kind of turpitude and encouraging a kidnapper’s charter which says that if someone can successfully abduct a child for sufficiently long period of time then that person will get away from it. But these views have to be subordinated to the child’s best interests and in my view it would be a breach of the judicial duty to sacrifice a child’s best interests in order to prove a point of principle.
I am not sure if anything turns on the reference by the Deputy High Court Judge to “best interests”.
In summary I take into account that the child is 11 years of age, that the child has been in Australia since January 2006, that the child appears to be settled in Australia and that the child is primarily attached to the Mother who does not intend to return to South Africa. However, if these were the only matters relied upon by the Mother and the Independent Child Lawyer I would have no hesitation in making an order for the return of the child to South Africa. This is, in my opinion, a border line decision. 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 and what Dr R recorded the Father said namely; “[The father] said he could not take up the DOCS suggestion to get the Federal Police involved as it would have been too much for the child to handle: “he’s been through hell” “. The one person who comes out of this case with some credit is the Father.
In the result I propose to discharge the orders for the return of the child. In doing so I record that this is a very unsatisfactory outcome and cannot simply be explained as was done by the English Deputy High Court Judge in Re SC (A Child) (supra). What is also of concern is that no proposals were put to me by the Director General, the Independent Child Lawyer and/or the Mother as to possible ways or means that the order for the return of the child could be achieved. This is particularly of concern given that in my view if the Mother assisted the order for the return could be effected and this concern is heightened if in fact the Mother is intending to go to South Africa to participate in proceedings in that country.

I certify that the preceding 81 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice O’Ryan

………………………………………………………..
Associate:
Date: 6 September 2007

[2007] FamCA 1061

3 September 2007

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