Director-General, Department of Families v P - [2003] FamCA 691

[2003] FamCA 691

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. BR 5717 of 2002

BETWEEN:
  DIRECTOR-GENERAL
  DEPARTMENT OF FAMILIES
  Applicant

AND:
RSP
Respondent

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 2 December 2002

Date of Judgment: 14 January 2003

Appearances: Mr Green of Counsel, instructed by Crown Law, appeared on behalf of the Applicant
Mr North of Senior of Counsel, instructed by Robert Downey Lawyers, appeared on behalf of the Respondent

In 2000 a daughter SSP, was born to SRP and RSP, in B State in the United States of America (USA). The father is a USA citizen, the mother an Australian citizen. They married in the USA in 1997, but marital difficulties arose within a relatively short time.
In 2002 the mother secretively removed SSP from the marital residence and brought her to Australia.
The father promptly invoked the assistance of authorities to secure the return of the child to the USA and the application which now requires determination was brought on 8 October 2002 by the Director-General, Department of Families as State Central authority under the Family Law (Child Abduction Convention) Regulations (the Regulations).
There is no contest that the prerequisites for an order for return have been made out, and it is only necessary to record them. In these circumstances, the mother’s resistance to an order for return rests on the contention that one of the exceptions to an otherwise mandatory return is established, namely that:
“there is a grave risk that the return of the child to the country in which he or she habitually resided immediately before the removal or retention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation…” (Regulation 16(3)(b)).

Prerequisites for an order for return

By virtue of regulation 16(2) the Court must refuse to make an order for the return of a child if it is satisfied of certain matters. In the mother’s Answer filed 25 October 2002, it is stated:
“2. The Respondent admits:-
(i)that the child, [SSP] was born [in] 2000;
(ii)that the habitual residence of the child immediately prior to the removal of the child was the United States of America, a convention country;
(iii)that the Respondent Mother and the child are residing at [C Street, Suburb D] in the State of Queensland.
3.   The Respondent denies that the child was wrongfully removed or retained from the United States of America.
4.   The Respondent admits:-
(i)that [SRP] is the natural father of the said child;
(ii)that he resides at [E Street, Suburb F, G State] in the United States of America;
(iii)that he and the Respondent lived together at that address, it being their marital home, together with the said child, until 2002;
(iv)that she removed the said child from the family residence without [SRP’s] knowledge or consent.
5.   …
6.   The Respondent admits that [SRP], as father of the said child, was exercising rights of custody when the child was removed from the United States of America.”
During the hearing the denial contained in paragraph 3 was effectively withdrawn.
All the concessions above are consistent with the evidence of the father and mother and, as to rights of custody, the evidence of Mr H, attorney at law in the USA, and in particular paragraphs 5 and 6 of his affidavit filed 26 November 2002. Further on this point, it was submitted that the law of the USA, as discussed by the Supreme Court of that country in Troxall v. Granville 530 US 57 recognised the right of parents to bring up their children and that right included the right to care for the person of the child and to determine the place of residence of the child.
On the concessions and the evidence I am satisfied that none of the matters which would prevent the making of an order for return, referred to in s 16(2), exist.

The claimed exception

The particulars of the contention of the mother are set out in the answer filed 25 October 2002 as follows:
“(i)the Respondent’s state of physical and mental health is such that she must stay in Australia where she has the physical, emotional and financial support of her immediate family; she is simply unable to return to the United States of America;
(ii)the Respondent has been the primary giver of child care to the child in her life to date;
(iii)there is a grave risk of the Respondent committing suicide should she be separated from the said child;
(iv)the unavailability of the Respondent to continue to provide primary care to the child, however that may occur, would expose the child to serious psychological harm;
(v)the father of the child would necessarily be reliant upon his parents for assistance in physically caring for the child and placing the child in the care of the father’s parents, for any period of time, would expose the child to serious risk of physical or psychological harm.”

A. Evidence – the mother’s case

The mother is 31 years of age. She was born in Country J in 1971. She is now an Australian citizen.
In 1996, the mother left Australia intending to travel overseas for about 1 year. In 1996 she met the husband in the USA. Within a short time arrangements were made to marry. The mother moved into the residence of the husband’s parents. The relationship between her and her respective parents-in-law developed poorly.
The father and mother married in a civil ceremony in 1997. The father at that time was away from the family home studying. The parties still did not co-habit as they had not been through a religious wedding ceremony which was fixed for 1998, although the mother visited the father from time to time.
After she obtained her work permit the mother commenced work as a professional in 1998. At the end of that month the father moved back to live with the mother at his parent’s home. After some 9 months, during which the father did not work he announced that he did not wish to continue with his studies. Thereafter he pursued a course while financially supported by the mother.
In 2000 the mother fell pregnant with the child. The mother’s parents went to the USA to be present for the child’s birth. They stayed with the father’s parents, also.
As previously seen, SSP was born in 2000. The mother gradually developed depression which was diagnosed as post natal depression. She was prescribed anti-depressants. The mother’s parents left the United States in early 2001.
The father completed the course and found employment in early 2001.
On 18 April 2001 the mother first experienced shooting pains to one side of her head. At about this time the father and mother moved to G State for the husband to take up his new employment and to reside with his cousin. Soon after moving to G State the mother started to feel dizzy and develop other symptoms. The mother had a number of attendances on a medical practitioner. No answer to her problems was found. She was in constant pain. Eventually after a CAT SCAN it was found that the mother had a chronic medical condition.
The mother’s parents returned to the USA to support the mother during the medical investigations and hospitalisation which followed. The mother’s mother stayed in the USA for about 3 months.
In early 2002 the mother’s sister visited her in the USA for several weeks. A month later, the mother and SSP left the USA for Australia. In mid-2002 the mother and her parents returned with SSP to the USA. The mother had further medical appointments in the USA.
The mother’s material establishes (in excessive detail) that, from her perspective, during the years since marriage, the relationship between herself and the father was breaking down. She perceived slights and animosity towards her from the father’s parents and a lack of support generally from the father in relation to her difficulties with his parents, care of SSP, financially and in respect of her ill-health.
Presumably the relevance of all this material is to establish that the father and his family would not be carers who could provide for SSP an environment which protected her from physical or psychological harm if SSP was returned to the USA.
By mid-2002 the mother had told the father that she wished to get a divorce and she consulted a solicitor. The mother’s parents left the USA a few weeks later.
The mother deposes that it was soon after she saw a solicitor that she began to have dreams about “losing” SSP. These dreams included the mother jumping from a bridge. She says she told the father about these dreams. He asked her if that was what she would do and she said it was.
Subsequently the parties had some counselling and that concluded in mid-2002.
The mother decided that she wished to return to Australia and decide about her future. She says she knew that if she asked the father for permission to come to Australia with SSP to think about the future, he would refuse. She decided not to tell him and asked her sister to book return tickets.
When she left, the mother left a note for the father saying that she had taken a vacation with SSP and would talk to him soon. She left G State and arrived in Brisbane, Australia in late 2002.
The father filed an application under the Hague Convention in the USA in September 2002.
Over the next couple of weeks there were some discussions between the father and mother in which the mother raised the prospect of him coming to Australia and resuming their relationship.
The application by the Australian Department was served on the mother upon her attendance at the Department on 8 October 2002.
The wife says she cannot return to America because her health is poor and she needs the support of her family. She says she has been feeling very weak and unwell and under continual stress.
She says that since arriving in Brisbane she has been very dependent upon her family. Her daily routine consists mainly of looking after herself with help from her parents. She has no money. Her parents are financially supporting her and SSP.
The mother says she would have no means of financially supporting SSP and herself if she were to return to the USA. Although she has a Greencard US work permit she has no idea of her current immigration status in respect of the United States. Neither her mother nor her sister are in a position to be able to go back to the USA with her for any length of time. She says she does not wish to again change medical practitioners by leaving those with whom she has established contact in Australia. She deposes:
“I cannot and will not now go back to the US. I cannot even contemplate the thought of not having [SSP] with me and not being able to see her. Since she was born, she was all I had in the US except for the times my own family members came over and stayed with us. I cannot even begin to think of how she will be without me given how attached she is to me. I just cannot.”
The mother also filed an affidavit by her sister, Ms K, in which her sister deals with her observations while she was in the United States with the mother, father and SSP. She also deposed that she had observed the mother’s deterioration in moods since her arrival in Australia in September 2002. She said:
“One day I asked her what she would do if [SSP] was taken away from her and she told me, and my parents, that she could not live without [SSP]. I kept asking her what she meant by this and she eventually said to me that she would kill herself if [SSP] was sent back to the USA.”
This passage was not objected to. Ms K explains that it was those conversations which resulted in arrangements being made for the mother to see a doctor who referred her to Dr L, a psychiatrist.
The mother’s mother, Ms N also swore an affidavit. She deposed that, to keep a close eye on the mother, she even sleeps in the same bed as her.
Dr L is a consultant psychiatrist. He has been seeing the mother since 9 October 2002. In his affidavit he said:
“I am very concerned about [RSP] and truly and honestly believe that her threats of suicide must be taken seriously, she being a real suicide risk if her young child is forced to return to the United States of America.”
Dr L records that the presenting problems of the mother were depression and suicidality. The mother told him that the basic problem underlying her depression was the breakdown of her marriage and a dispute over the custody of her daughter SSP. The mother stated to Dr L that her daughter was her only purpose in life. She said she would “jump off the bridge” if she had to hand her daughter back to the father to be looked after by her mother-in-law.
Dr L concluded that the mother’s mood was severely depressed and her expressed thought content included a suicidal ideation with a clearly stated intent to take her own life if she had to hand her daughter back to the father. On the other hand, she expressed no delusions and gave no indication of suffering from hallucinations or any other psychotic phenomena. She was in a clear state of consciousness with intact cognitive functions and an estimated average level of intellectual ability.
Dr L diagnosed the mother as suffering Major Depressive Disorder.
Dr L had seen the mother on five occasions prior to his report.
Dr M, neurologist, first saw the mother in early 2002 and last in late 2002. Dr M recorded that from early 2002 the mother had recurrent serious medical episodes. However, she had stabilised in mid-2002 before she returned to the United States. When Dr M saw the mother on her return in late 2002 he said there had been some progression of her medical condition since he last saw her in mid-2002. He concluded that as a consequence of the treatment of her conditions she has serious mental and physical difficulties. He said:
“Because of her [medical condition] she requires close support and supervision from either family or friends, as well as ongoing medical support. She told me that family support was not available in the United States where she had no family other than her estranged husband.
As to the prognosis, it is impossible to say. I hope that her [condition] has stabilised and with time will improve. Similarly, hopefully her [condition] will remain reasonably controlled. However, it is possible that both […] will worsen and it may be some years before we know the exact level of [impact].”
The mother deposed that she last saw Dr M on 23 November 2002. She last saw Dr L on Thursday, 21 November 2002 but she also had appointments for times not long after those dates. She said that during the course of the recent appointment with Dr L, after many conversations she had with him, she promised him that she would admit herself to hospital under his care for 15 days in the event that the result of the case was that SSP would be sent back to the USA.
Ms O, a psychologist, saw the mother and SSP at the request of the mother’s legal representative. Ms O had been forwarded most, if not all, the extensive affidavit material filed in this matter. Her report dated 29 November 2002 discloses that she “observed” the mother and SSP over a period of approximately one hour on 28 November 2002. She expressly says “I did not interview [RSP]”. Ms O recorded her instructions as seeking:
“…an opinion as to whether or not [SSP] ‘would be exposed to a grave risk of physical harm, psychological harm or some other intolerable situation’ if required, as a result of a Hague Convention hearing, to return to the United States of America.’”
She said:
“I shall focus on the likelihood of her being exposed to a grave risk of psychological harm as a result of such action.”
Ms O opined that SSP was securely attached to her mother. SSP presented as socially competent. The mother interacted appropriately with SSP.
From a reading of the documents Ms O concluded (rightly or wrongly) that the mother had been SSP’s one constant care giving figure throughout SSP’s life and that there were times when the mother had primary and at times sole responsibility for SSP’s care.
After discussing the content of medical reports she had read, Ms O expressed the view that:
“…it would be inhumane to force [RSP] to return to the United States in her current physical and mental condition, whether or not she was charged with the care of [SSP]. It is reasonable for her to expect to be able to rehabilitate in the environment provided by her parents, if this is what she desires.”
Of course, this is not an application seeking the return of the mother to the USA.
Ms O then turned to consider the short term effects on SSP should she be returned to the United States without her mother. She said:
“It is my opinion that should [SSP] be returned to the United States without her mother, especially since she has had no contact at all with her father for over two months and has been in constant contact with her mother at her maternal grandparents home, she would experience a sense of loss and distress over the disappearance of her mother and would be at risk of suffering in the short to medium, as well as possibly the long term, as a result of feeling of abandoned (sic). She would not, at this stage of her life, have the cognitive capacity to understand explanations to her as to why she was separated from her mother.”
Ms O then went on to discuss the long term effects on SSP should she be returned to the United States without her mother. These related mainly to personality traits and disorders of a dependent nature arising from the sense of abandonment that SSP might feel.
In relation to the risk of the mother suiciding if SSP is removed from her care Ms O said:
“The ramifications of this would obviously be devastating long term for [SSP], in that she would grow up without any access to her biological mother.”
Then, observing that it would be unlikely (if SSP was returned to the USA) that SSP would have any contact with her mother’s side of the family, Ms O said:
“Such a situation is not desirable in that it would not foster a healthy sense of self, personal identity formation being fundamental to the development of well-integrated personality.”
Ms O then addressed a further potential consequence if the mother committed suicide. She said:
“…[SSP] would be burdened with a not well understood phenomenon which is that suicide tends to ‘run in families’. Although there are biological factors such as genetic predisposition to depression which might play a part, it is also thought that in some way the knowledge that a parent has suicided can be tantamount to suicide being presented to a vulnerable individual as a viable option for solving intractable problem situations. The ramifications of this are obvious.”

B. Evidence – the father’s case

The father deposes that he has not replied at length to the mother’s affidavit because he has been advised that the proceedings are summary in nature but that in fact he disagrees with most of the assertions against him in her affidavit. He then proceeds to provide excessive detail in opposition to a number of the mother’s claims.
The father was born in Country P and moved to the USA when he was one year old. He is now 33 years old. He is a USA citizen. He deposes that he is still willing to try and save the marriage. He declares that if the mother comes to the USA the home is still open to her. He says that if reconciliation is effected he will support the wife financially, emotionally and physically. He says that he will hire outside assistance for the mother if necessary.
The father also deposes that if the mother is unwilling to reconcile and so chooses, he will agree to move out of the home so that she and SSP can live there until the marital issues are resolved through the USA court systems. He will continue to pay the rent and provide money for food and other expenses. He says that he is willing to pay spousal and child support pending the resolution of their financial affairs. He also agrees to advance money from joint funds that she will need for counsel’s fees for divorce and/or custody proceedings.

The order that the father obtained is exhibit B to his affidavit. He says that it provides for him and the mother to have joint legal custody of SSP upon her return to the United States and for an immediate custody hearing.
The father says that if SSP is returned to the United States without the mother, he will do everything he can to ensure that the mother maintains a close relationship with SSP. He will permit phone calls as often as they both would like. He will send pictures and videos of SSP via e-mail and mail. He will also, he says, welcome RSP into his home and allow her to spend time with SSP whenever she chooses to visit the United States.
The father says he is prepared to be SSP’s primary care giver. He says he was home and not in employment for the first 5 months of SSP’s life and took an active role in her care.
He details his involvement at some length. He says that during the first few months of SSP’s life RSP was not the primary carer because there were so many including the mother’s parents and his own parents who shared the responsibility.
The father says that though he will need to work during the daytime he has flexible hours and can work from home if necessary. He however will use a day carer to care for SSP while he is at work. SSP will be in care from 9.00am until 6.30pm.
The father says that the mother’s condition (from which, he asserts she will always suffer) as well as mood disorder and depression, make her a danger to SSP if she has a medical episode while she is performing an activity such as driving or cooking. He says it does not appear that the mother will ever be able to care for SSP without assistance.
The father further says that the mother’s parents have various health problems which would make them unable to render much assistance to the mother in caring for SSP in the long term.
As to the mother’s case relating to the risk of her suicide, the father says that the mother emailed him a number of times between 26 September and 17 October 2002, in which communications she conveyed changing thoughts about her returning to the United States or not. However, she did not state that she was suicidal, severely depressed or that her health was failing.
On the other hand the father himself asserts that the mother had emotional highs and lows throughout the marriage and that her moods varied greatly. He stated that the instability of her moods was caused by her conditions and the medications she was on. Occasionally, she would threaten to kill herself. The father never took these statements as serious threats and he does not believe that the mother will carry out any threats to harm herself.
Also relied upon by the Applicant Director-General was an affidavit of Ms Q, the wife of Mr R, the father’s cousin. Ms W deposed to the father’s involvement with SSP both in playing with her and attending to tasks involved in her care.
Ms S, the mother-in-law of the father’s brother, Mr T, the father’s brother, Ms U, Mr T’s wife, Ms V, who had acted as mediator, Ms W, a cousin of the father, Ms X, the husband’s maternal grandmother, and Ms Y, the father’s mother, all filed affidavits going to such matters as the relationships between the father and SSP, and between his parents and SSP, the character of his parents, and the moodiness, temper and unreasonable behaviour of the mother.

C. Discussion

I do not accept that the mother could not return to the USA. The frequency with which her family has travelled to the United States to spend long periods of time with her, the mother’s return to Australia in 2002 and return to the USA before again leaving the United States in 2002, indicate financial and physical capacity to move between the two countries, notwithstanding her illness.
Whether, if SSP is returned to the USA, the mother will herself return, is more speculative, depending as it does entirely upon the mother’s degree of determination to remain in Australia (and leaving aside the risk of suicide).
However, I do not accept that it is more probable than not that in those circumstances she would remain in Australia but, even if I thought that she would, I would not find that would produce a situation which would expose SSP to a risk of harm of the degree required under regulation 16(3)(b) or place SSP in an intolerable situation.
It seems that the excessive and detailed description provided by the mother and her witnesses of her life in the USA with the father and his family was designed to show firstly, that the mother was the primary carer of the child and that secondly, that the father and his family could not provide appropriate care of SSP.
It is clear from the mother’s material that there was a great deal of dissatisfaction on her part with the father and his family and, from her point of view, numerous slights, insults and shortcomings from them and in them. Within the mother’s evidence is a real sense of pettiness and exaggeration. I would not accept the contention that the father and/or his family could not adequately care for SSP. It may well be that the mother is entitled to the description of the primary carer, but a great deal of SSP’s care even on her case has been in the presence of the father’s family and the father.
Concerns about the lack of contact (such as voiced by Ms O) between SSP and the father in recent times since the removal of the child from the USA might be met by arranging for contact between the father and the child in Australia over a period of time preceding the return of the child with the father to the USA.
Though no doubt some distress for SSP upon removal from the mother might be anticipated, I do not find that this gives rise to a grave risk of harm to her, or places her in an intolerable situation. The mother may well follow her to the USA.
As Justices Gaudron, Gummow and Hayne said in DP v Central Authority; JLM v NSW Department of Community Services (2001) FLC 93-081, at 88,390:
“…It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country to habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.”
That leaves for consideration the risk of the mother committing suicide if the child is returned to the USA.
In DP; JLM (supra) in the judgment earlier referred to, their Honours said:
“41.…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 o 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 the 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 would expose the child to harm.
43.Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44.These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evidence choice to be made between a regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.”
On the evidence, I accept that there is a grave risk that if SSP is returned to the USA the mother will suicide.
I accept the evidence (particularly that of Ms O) of the harm for SSP which might follow a suicide by the mother. I find that there is grave risk of psychological harm.
I do not reach these findings without disquiet. Courts will understandably have a real concern about the disingenuous adoption of stances designed to achieve the purposes of abductors in resisting orders for the return of children. But the response to this concern cannot be to disregard evidence, but rather to scrutinise it with great care.
In this case there is a history of depression and mood changes in the mother. She demonstrated an intense need for the comfort and support of her family. She has suffered dramatic and no doubt traumatic health difficulties. She threatened suicide when cohabiting with the father.
Her consultations with Dr L are apparently for the purpose of treatment, not evidence gathering. His medical opinion of the risk is clear and unchallenged.
The risk in my view is little alleviated by the arrangement that the mother will enter hospital under Dr L’s supervision if SSP is sent back to the USA. Though this is clearly an arrangement to mitigate the prospects of the mother taking her own life, there is nothing from which I can gauge any reduction in risk thereby achieved. The same applies to the prospect of detention of the mother under Mental Health legislation.
In the course of their submissions counsel referred to a number of cases but I think it unnecessary to refer to other than that already cited. One of the two matters the subject of the judgments in that case is (disturbingly) similar in its facts to the facts here. In JLM the primary judge found that a very serious or high risk of the mother committing suicide if an order was made requiring the return of a child to Mexico constituted a grave risk of psychological harm to the child. The Full Court of the Family Court overturned that decision. The majority of the High Court considered that the Full Court was wrong in holding that there had been no evidence before the trial judge which warranted the conclusion he reached.
At page 88,395, Gaudron, Gummow and Hayne JJ discussed two grounds of appeal before the Full Court which had, in view of the conclusions it reached, not been considered by it. One of these grounds was that the primary judge had given undue weight to the threat made by the mother that she would commit suicide and the second was that the judge gave no or insufficient weight to the fact that the mother was the originator of the source of the grave risk of psychological harm. In respect of these grounds, their Honours said:
“It is as well to say, however, that they are grounds which appear to ignore the fundamental fact found by the primary judge (and not thereafter disputed) that the mother is ill. To say that she is the originator of the source of the risk of harm appears to take no account of the fact that the mother is not in command of her situation and it betrays a complete lack of any understanding of the major depressive illness from which she suffers.”

Residual Discretion

I accept that notwithstanding the findings made, I might still order a return of SSP to the USA. However, in view of those findings, I see no factor which would render such an order appropriate.

Terms of Order

In the circumstances, the application of the Director-General should be dismissed.

Orders

That the application of the Director-General, Department of Families, filed 8 October 2002 be dismissed.