Director-General, Department of Family and Community Services; and Raddison
[2012] FamCA 866
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF FAMILY & COMMUNITY SERVICES & RADDISON | [2012] FamCA 866 |
| FAMILY LAW – HAGUE – Child Abduction Convention – Access – Whether to grant the father access to the children – Where an application for the return of the children was refused in 2007 – where there has not been any contact between the father and children since 2007 – where the children’s attitude to the father has changed - |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640 Director General, Department of Family and Community Services & Brooks [2012] FamCA 179 Doherty & Another v Avis (2012) FamCA delivered 29 June 2012 McCall and State Central Authority; Attorney-General of the Commonwealth (Intervenor) (1995) FLC 92-551 Re G, a Minor (Hague Convention Access) (1993) 1 FLR 669 (United Kingdom) Shailer & Shailer [2007] FamCA 1312 State Central Authority (Secretary to the Department of Human Services) & Du Preez [2006] FamCA 1083 State Central Authority & Peddar (2008) 219 FLR 273 |
| APPLICANT: | Department of Family & Community Services |
| RESPONDENT: | Ms Raddison |
| FILE NUMBER: | SYC | 4975 | of | 2007 |
| DATE DELIVERED: | 9 October 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 2 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tockar |
| SOLICITOR FOR THE APPLICANT: | Legal Department, Department of Family & Community Services |
| SOLICITOR FOR THE RESPONDENT: | Mr Lee, Le Vaccaro Lawyers |
Orders
Mr A ( the father) is to have access to the children K, born …2000, and T, born …2003, (the children) as follows:
(a)Unless the respondent, Ms Raddison agrees in writing and makes arrangements with the father for the children to see him there is to be no face to face access by the father with either of the children.
(b)The father is permitted to provide to the Applicant Director-General an email address and a residential address at which he can receive communication from the children. He may also provide the address of any web page which could be accessed by the children to view information about the father or messages he may post there for them.
(c)Upon the applicant receiving the addresses from the father as set out in sub paragraph (b) hereof she/he is to cause the information to be provided to the respondent.
(d)The respondent is to place the information in a place in the children’s residence where they can each access the information without her assistance.
(e)The respondent is to inform the children of the orders made herein and also to ensure they know where the information supplied by the applicant may be found.
(f)Should either of the children ask the respondent to assist in the transmission of mail or messages between themselves and the father the respondent is to render that assistance.
The applicant is to contact the maternal grandfather Ms G to ascertain if he would be prepared to receive communication from the father or his wife which the said maternal grandfather could make available to the children should they ask him for same. If the maternal grandfather is prepared to receive such correspondence then the applicant is to obtain details of any email or residential address to which the father or his wife may send correspondence and cause same to be provided to the father.
The respondent is to provide an address to the applicant which can be provided to the father and which the father may use to send to the children on their birthdays and at Christmas time and again at Easter time, a card, a present for each and a letter for each.
The respondent is to ensure that any of the items received from the father pursuant to order (3) hereof are provided to the children.
The respondent is not to make any disparaging comments about the father in the presence or hearing of the children.
The application filed 24 November 2010 is otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family & Community Services & Raddison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4975 of 2007
| Department of Family & Community Services |
Applicant
And
| Ms Raddison |
Respondent
REASONS FOR JUDGMENT
Before the Court is an application filed by the Director-General of the Department of Human Services acting as the delegate of the Australian Central Authority to prosecute a claim under the Family Law (Child Abduction Convention) Regulations on behalf of the South African Government, such application being made through the Office of Family Advocate in Pretoria.
By that application an order is sought for the applicant to “make such arrangements as are necessary to ensure that the child [K] (female) born …2000 and [T] (female) born …2003 have access with their father, [Mr A] born …1960 upon such conditions as this Court deems necessary pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction.”
The respondent, Ms Raddison opposes the orders sought.
The Application has had a somewhat difficult pathway though the Court. It was heard by Justice Stevenson who made orders on 29 July 2011 dismissing the application. An appeal was lodged by the applicant and on 19 March 2012 orders were made by the Full Court for a rehearing. The matter was heard by me on 2 July 2012 and written submissions were received on 17 July 2012 from each of the parties.
A family report was prepared and released on 27 June 2012. The family report was prepared by Ms D, a family consultant attached to the Sydney Registry of the Court.
In the conduct of the hearing the only witness to give oral evidence was Ms. D.
The applicant seeks that orders be made pursuant to regs 24 and 25 of the Family Law (Child Abduction Convention) Regulations (hereinafter called the Regulations) as set out below:
REG 24
Request for access to child in Australia
(1) The Commonwealth Central Authority must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia if:
(a) it receives a request from a Central Authority on behalf of a person who claims:
(i) to have rights of access to the child under a law in force in a convention country; and
(ii) that those rights have been breached; and
(b) it is satisfied that the request is in accordance with the Convention.
(2) The Commonwealth Central Authority may, by notice in writing, refuse to accept a request received by it if it is satisfied that the request is not in accordance with the Convention.
(3) A notice under subregulation (2) must:
(a) be sent to the Central Authority that sent the request; and
(b) include the reason for the refusal.
(4) For subregulation (1), the action taken may include any of the following:
(a) transferring the request to a State Central Authority;
(b) applying to a court under regulation 25 for an order that is necessary or appropriate to establish, organise or secure the effective exercise of the rights of access to which the request relates;
(c) seeking an amicable resolution in relation to the rights of access to the child.
REG 25
Application for access to child in Australia
(1) The responsible Central Authority may apply to the court, in accordance with Form 4, for any of the following orders:
(a) an order specifying with whom a child is to spend time or communicate;
(b) an order for the issue of a warrant mentioned in regulation 31;
(c) any other order that the responsible Central Authority considers appropriate to give effect to the Convention.
(2) If a copy of an application made under subregulation (1) is served on a person:
(a) the person must file an answer, or an answer and a cross‑application, in accordance with Form 4A; and
(b) the responsible Central Authority may file a reply in accordance with Form 4B.
The applicant relies on the evidence contained within the Form 4 Application filed 24 November 2010. Further, the applicant relies upon the report of the family consultant, Ms D, dated 16 March 2011and her report dated 26 June 2012. The applicant further tendered specific pages from the transcript of the earlier proceeding before Justice Stevenson with the particular portions being marked as part of Exhibit A1.
The respondent relied upon the Answer filed 2 July 2012, which contained her evidence.
Each of the applicant and respondent provided written submissions and also spoke to those submissions when the matter was before the Court on 2 July 2012.
In the applicant’s case the following is a summary of the evidence which I consider to be the most relevant to the application under consideration.
The father of the subject children, Mr A, signed an affidavit on 31 May 2010. In that affidavit he said he was unaware of the residential address for the children in Australia however he was able to provide the mother’s “identity number”, whatever that may mean. He sought contact with his two children. The children left South Africa with the respondent on 27 December 2005. Following the separation of the parties, and before the respondent left South Africa, the father was visiting with the children every Wednesday afternoon and each alternate weekend.
In June 2007 the father made an application through the South African Central Authority for the return of the children from Australia to South Africa. That application was determined by me and was unsuccessful. The father attended the Court is 2007 when the application under the Hague Convention was heard and on that occasion he spent one day with the children.
Since returning to South Africa, the father has had no contact with the children at all. His wife, Ms E, on some occasions was able to contact the maternal grandfather. In November 2008 the maternal grandfather provided photographs of the children to Ms E , however, the father thought they looked sad and tired.
During July 2009, the maternal grandfather visited South Africa. He made contact with the father and informed him that the children expressed a wish to see him and have contact with him. Notwithstanding that information received by the father it was not until May 2010 that he signed the request made by the Office of Family Advocate in Pretoria to the Australian Central Authority.
Attached to the application and marked with the letter “D” is a report prepared for the Court by a single expert, Ms M, Clinical Psychologist. The report was prepared in December 2007 for the hearing of the Hague application which sought the return of the children to South Africa. In that report, it is clear that the maternal grandfather, who was interviewed, supported the children having access to their father. At that time, the children and the respondent were residing with the maternal grandfather in Australia.
As part of the preparation of the 2007 experts report both the children were interviewed. When K was asked what she remembered about her father she replied “No – I don’t have a dad. But we are getting a dad – maybe next year”.
The single expert arranged to interview the children at the head office of the Department of Community Services on 3 December 2007. The children were asked if they knew what was happening and they said they were aware that there was to be a meeting with their father but did not understand what it was about. K said that her father had been “mean to mummy”. She said that her mother had told her that. It appeared that K had very little recollection of her father. T was able to remember her father. K said “I was really missing my daddy when he was going to South Africa and he didn’t come back”. Although having spoken about her father being mean to her mother, she acknowledged having no memory of this. She said “He is not our dad anymore. Mum said. Mum said he will never be our dad anymore, and mum will never talk to him again”.
The single expert observed contact between the father and the children. K was able to recognise her father and she seemed quite excited about seeing him. T asked “Where’s our mum?” and said “We have another daddy”. K corrected her “No we don’t. We don’t even have a daddy anymore”. Both children instigated physical contact with their father and both hugged and kissed him. He had brought each of them a doll. K asked many questions of her father. She said “Daddy I missed you a lot”.
Both girls expressed a great deal of affection for their father and sought his reassurance that he loved them. They wanted the visit to last longer. They each said they would like to see their father again. K became upset when it was time to say goodbye. T was not visibly distressed leaving her father but hugged him goodbye.
When the mother came to collect the children she noticed the dolls. K told her “Someone gave them to us.” T corrected her with “Daddy gave them to us.” The expert noted “There were a number of indications that K does not have permission to remember her father and she struggles with this. She is on guard to correct T if she should say something untoward.”
As recorded earlier, two family reports have been prepared by Ms D, family consultant. The first was dated 15 March 2010. The following matters in particular I note from the report.
One of the matters which the report was required to address was as follows: “Both children’s views in relation to the time they should spend with their father”.
At the time of the interviews K was two weeks from turning 11 years of age and T was seven and a half years of age. Both girls made it clear that they would very much like to see their father in Australia. Ms D said “K’s confusion about whether her father really cares for her or not and her longing for a father were themes throughout K’s interview.” K said that she would like to see her father because “she has not seen him for so long and she would like to give him a hug”. She thought it would be fun to go to South Africa to see him if her maternal grandfather were to accompany her. She would like to see her father in Australia, she would like to have phone and email contact with him and Skype. She would like him to have photos of her and her school reports. She said “I do love him no matter what”. T also told the family consultant that she would like to see her father in Australia.
The most recent report from Ms D, family consultant, was dated 29 June 2012. In that report she sets out the views of the children which are radically different to the views they expressed in their earlier interview with her.
Ms D confirmed that the children had not seen their father since 2007 and have had no contact with him since that time.
At the time of the report, K was 12 years and three months. Ms D said she was demonstratively unhappy about having to attend on the interview. She “exuded emotional intensity.” She stated adamantly that she did not want to see her father. She was angry and asked why she had to attend and tell a stranger what she wanted when the judge ignored what they said on the last occasion. Ms D noted that statement was contradictory given that on the last occasion K had told her that she wanted to see her father. When she was asked about this, K became very upset and put her head in her hands. K expressed the view that her father was only pressing to see her in order to “annoy my mum”. K was on edge as she had been told the last meeting with Ms D had been recorded. She was assured that had not been the case and in fact Ms D moved rooms in order to settle K’s anxiety. Ms D reported that K is a mature girl for her years. Her presentation was overlaid with great distress. Ms D said “notwithstanding that her espressed views are no doubt a reflection of only a fraction of the complex feelings she has, K’s views should be given considerable weight because she knows she has reached her limit of tolerance of the family conflict and has made a rational decision to opt out of it.”
Ms D interviewed T, who was eight years and eight months at the time of the interview. She also expressed her views much more forcefully than she had previously. T expressed a strong view that she does not want to see her father ever again. She said that she has “thrown that away from my mind (the idea of having anything to do with her father)”. She described her father as very rude and not kind. She said “he never looked after me”. She said “he has never provided for us, he is making it worse for our childhood and we need to do our schoolwork.” She said that she and K really want a father “just not that kind of dad who ruined our life and childhood.” Asked what she would do if the judge ordered that she see him, T vehemently said that she “would never go near him”. She would not speak to him on the phone and she would not read anything he might send her. She told Ms D that she knew her mother did not want her to see her father. She said “everyone in her family including her grandfather is fed up with it”.
In relation to the possibility of the children travelling to South Africa to spend time with their father, Ms D said “neither child could tolerate going to South Africa to see their father at this point of their lives.”
Ms D provided a recommendation. She described both children as adamantly expressing the view of not wanting anything to do with their father.
“While [K] and [T] were able to maintain a position about their father which is different from their mother’s for a number of years, this is now becoming impossible for them. The pressure of this ongoing court case is taking its toll on the girls who, [K] in particular, want to put aside their father and get on with their lives. Given their absolute opposition, [K’s] emotional state and [T’s] very strong alignment with her mother, it could not be recommended that the children should spend any time with their father at this stage of their lives. What they need most of all is for the litigation to stop.”
The respondent filed her Answer on 2 July 2012. The matters of particular note from that document are as follows.
The respondent is opposed to the children’s father having access to them. If an order is to be made then she submits it should be on a graduating basis starting with telephone or Skype conversations on significant days such as Father’s Day, the children’s birthdays and Christmas Day. She submits that the father should meet all the costs associated with any such communication. If there is to be face-to-face contact then she submits that it should be supervised.
In her affidavit annexed to her answer, the respondent provides the following evidence which I have particularly noted.
The respondent says that she has raised the children on her own and received no assistance whatsoever from the father. She holds the view that the father has no genuine intent to be involved in the children’s lives. She points out that he has made no contribution financially to their upbringing. She asserts that the children constantly say to her that they do not wish to talk to or see their father.
Ms D was required to give oral evidence. The following matters were particularly noted by me from her evidence. Ms D was asked whether she was presented with any evidence that the mother had prepared the children for the interview with her in a way which caused them to report adversely about their father. Ms D said she was not able to say if that was the case.
It was put to Ms D that the children’s adverse view of their father as compared to that view illustrated in the earlier report of Ms D, could not have been influenced by the father as he had no contact with the children. She replied “No, I could not say that as the proceedings continued. The children have been brought to court to see me.” It was put to Ms D that the children are expressing the views of the mother. She replied “I think that is a strong possibility with T. However with K I think it is her view now”. Ms D said that one of the matters to be taken into account in considering why the children’s position has changed is the ongoing impact on the family of the continuing litigation.
Ms D was asked whether she would be able to assist in the implementation of any orders made by the Court for the children to spend time with their father. She said she could provide some assistance. She agreed with the suggestion that if action is not taken to implement access it will “shut the door on the father to have a relationship with the children”. Ms D was cross-examined by the mother’s counsel.
Ms D was asked “what is your opinion about the proposed orders? Is it in their [the children’s] interest?” She replied “In theory it is, unless he is dangerous. If the children could see the father in a way which they were not pushed then there is advantage. K is very very distressed. I would be concerned about her. I could not predict what could happen.” Ms D was asked what concerns she would have for the children if they were forced to see their father. She said she would be concerned about the lead up to that time. “It would be a number of weeks. K is already under pressure. She would have to come here to the Court and have strangers looking at her family”. Ms D said she did not have the sense that K had a potential for self harm, however she said everything has to be done in brief. “She has become more and more distressed and agitated. She was very angry. She believed everything was being recorded”. Ms D said she did not know what other things might happen to create a more unhealthy concern for K. Ms D said that she had a concern for K’s psychiatric health.
Asked whether she thought, if the orders were granted as proposed, they would be workable, Ms D said she did not know. She thought it might be for one and not for the other. Ms D said “whatever K might feel about her father, it is not the main reason for her action now. Her position is reflective of children caught in conflict. She is not saying negative things about her father”. Ms D thought K would withdraw rather than react negatively towards her father. When asked what orders she thought the Court should make, she replied “that will really depend on what the mother can tolerate.” Ms D thought that telephone contact is most unlikely to work. She thought the most likely chance of success would be outside the mother’s home and it should be face-to-face. As far as K is concerned, it needs to happen away from her school. Ms D said that it could happen at the Court with her facilitating an introduction and then the father take the girls out. Ms D could not predict whether K would comply with any order. She said it was in the hands of the mother and whether the mother would be positive about the children spending time with their father.
It was put to Ms D that in her report that she could not recommend the children spend time with the father. She said “I think it would be very difficult to force the children. I was not aware that the mother had agreed in the last hearing before Stevenson J for the children to spend time with the father so I have modified my view a little.” If the mother did not support the children spending time with the father it would be far more difficult for it to succeed and it would place the children under pressure which would be harmful to their psychological health.
The applicant provided written submissions in their outline of case document filed in Court on 2 July 2012. By that document the applicant reviews evidence from expert witnesses, including Ms D family consultant, and notes the change in the children’s attitude to spending time with their father between the report prepared by Ms M in December 2007 and the two family reports prepared by Ms D in 2010 and 2012.
The applicant submits that as the father has had no contact with the children between 2007 and 2012, no action on his part could have contributed to the children’s current views. The applicant says the children’s views are reflective of the mother’s position. The applicant points out that when the matter was before Justice Stevenson for hearing in 2011 the mother supported the concept of the father spending time with the children. She sought a graduated introduction of that time. The applicant submits that the report of Ms D can be put to one side and orders made for the children to spend time with their father. The applicant points out that Ms D has never met the father or observed him interacting with the children.
The applicant submits that Ms D recognises the mother is strongly opposed to the prospect of the children having a relationship with their father, however Ms D was apparently unaware that the mother had agreed to the children spending time with their father at an earlier time. The applicant asked that I take into account the evidence of another expert in a case of Doherty & Another v Avis (2012) FamCA delivered 29 June 2012. I consider it would be inappropriate for me to take into account evidence given in another case.
The applicant submits the Court should not be held to ransom by the mother’s unreasonable and harmful attitude towards the children. The applicant submits that it must be in the children’s long-term best interests to be able to re-establish their relationship with their father.
The applicants outline of case document set out a proposed order for the children to spend time with their father. The orders provide for telephone and or Skype contact. They provide for the father and children to be able to exchange gifts, photographs and letters and they provide for face-to-face time for the children to spend with their father. The time the children are to spend face-to-face with their father, is to be facilitated through a meeting supervised by Ms D, the family consultant who is now known to the children. The children are to spend time with the father between Monday 24 September 2012 and Tuesday 2 October 2012. This is to be a graduated process starting with three hours building to six hours on 26 September 2012 with built-in safe guards including the children being comfortable spending that period of time with their father.
The orders provide for a counsellor to supervise the father’s time with the children. The family consultant told the Court on the hearing day that only limited time could be made available to assist in facilitating the father and children spending time together.
The orders proposed then require a relisting and a further report to be provided by the family consultant. The effect of the orders proposed, if made, would be a continuation of the Court proceedings.
The applicant made further oral submissions on 2 July 2012. In those submissions the applicant acknowledged the evidence of Ms D that telephone and/or Skype would be unlikely to succeed. The applicant then pressed for face-to-face access when the father is in Australia.
The applicant referred to the evidence of Ms D that “the litigation must stop”. It was submitted that Ms D’s opinion is exaggerated. It was submitted that Ms D’s concern for the children suffering from litigation exhaustion is overvalued.
Should the Court determine that it is desirable for the father to have some face-to-face time with the children, then the applicant would seek an opportunity to consult with Ms D in order to more particularly frame some orders which may practically assist in implementing face-to-face time for the children.
On 2 July 2012 the respondent made oral submissions. The respondent submitted that the Court was required to make orders which are in the best interests of the children.
The respondent submitted that when the children saw their father in December 2007 they were expressing a view they would like to see him. Following that meeting, the father returned to South Africa and has done nothing until May 2010 when he sought access through the Central Authority. It is submitted that the father has not contributed to the financial support of the children at all.
The respondent acknowledged that the Central Authority, on behalf of the father, did request access to the children before commencing proceedings. When the matter was before Justice Stevenson the respondent submits the children were still showing positive signs about spending time with their father. However, there has been a significant change in the children’s attitude to seeing their father which the respondent attributes to litigation fatigue. Consequently, the respondent now opposes access between the children and their father because the children oppose it themselves.
On 26 June 2012 the respondent signed the Answer to the Application which had been filed by the applicant. In paragraph 14 of that document the respondent sets out her proposal for the time the father should spend with the children in the event of the Court concluding that it was in their best interest that they have access to their father. That proposal sought 30 minutes per week contact by phone or Skype. Contact of that same type on Father’s Day, the children’s birthdays and Christmas Day. The Father is to provide all equipment the children might need to participate in such contact. Any face-to-face time for the children with their father should be supervised. That time should not commence until after a further assessment by a Family Consultant as to the impact on the children of six months of phone and/or Skype contact as proposed.
The respondent submits that the contents of paragraph 14 of her answer belies the accusation that she has been intractably opposed to access between the children and their father.
On 16 July 2012, pursuant to directions which I had made on 2 July 2012 the applicant provided further written submissions. The request I had made for further submissions is set out in the preamble to the applicant’s supplementary submissions delivered on 16 July 2012. The applicant submits that the orders being sought are in the nature of interim orders and that an approach which would be appropriate in this case would be for the Court to make interim orders based on the evidence before it and then reserve making final orders until after a further report (perhaps in the nature of a full family report) was obtained following the completion of the early introductory provisions of the proposed orders. The applicant then referred to a number of decided cases and provided an analysis of those decisions.
Arising from that analysis the applicant made further submissions. It was submitted that the question to be determined by the Court is “how does the Court formulate the form and frequency of access by a left behind parent to children who have been removed to another convention country?” The applicant submits the Court has expressly been granted wide powers by the Regulations to make appropriate orders, and in performing such exercise the Court is not bound to proceed in accordance with the provisions of the Family Law Act, rather it is to be guided by the local legislative provisions. The applicant submits this approach allows the Court to have regard to the material before it and to determine, based on the facts of the case, what further evidence might be required.
Applying the above proposition to the current case under consideration, the applicant submits the Court, on the information and evidence before it, is in a position to make interim orders as sought by the applicant. Such interim orders clearly have to be guided by reference to the children’s best interests and have to be cautiously and sensitively formulated with inbuilt safeguards.
The applicant submits only after the children have had an opportunity to be reintroduced to their father will it be possible for the family consultant to observe the interaction between the children and the father and provide an opinion which might assist the Court in determining what further orders should be made. In preparing that report the Court expert could consult with and interview the parents and any other relevant persons.
The respondent filed further submissions on 17 July 2012. The respondent submits that the decision of Justice Bennet in State Central Authority & Peddar (2008) 219 FLR 273 outlines the correct procedure to follow in considering an application of the nature currently made by the applicant. The respondent submits that not only should the best interests of the children be considered paramount in the determination of this application but also the best interests of the children need to be considered when the Court is determining matters of procedure. To that end, it is submitted that it would not be in the best interests of the children in this case for the family consultant in preparing a full family report to observe the children with the father.
The respondent submits that the strong views expressed by the children and the distress observed by the family consultant in the last meeting with the children are clear indications that further intervention would be opposed by the children themselves and result in further distress to them.
Finally, the respondent submits that it is within the Court’s discretion to decide that it is in the best interests of the children to:
a)not subject them to additional trauma of having to endure further assessments; and
b)not grant Mr A access to the children in the current circumstances when the children are clearly distressed.
The Approach to the Child Abduction Convention Regulations: Paramountcy Principle
The respondent seeks to rely on, the reasons of Bennett J in State Central Authority & Peddar (2008) 219 FLR 273. In that case Bennett J determined the Court should adopt the methodology outlined in Part VII of the Family Law Act to establish what is in the best interests of the children when determining an application for access made pursuant to the Family Law (Child Abduction Convention) Regulations.
The Director-General of the Department of Human Services, Community Services submits the Regulations expressly grant the court power to make appropriate orders in relation to access, and in the performance of such an exercise the Court is not bound to proceed in accordance with the Act but rather be guided by domestic legislative provisions.
In relation to Access, regs 24 and 25 of the Family Law (Child Abduction Convention) Regulations 1986 are silent as to the approach the Court is to take in relation to Access applications.
The leading judgment in relation to judicial consideration of Hague Convention Applications (and their relationship to Australian Family Law) is the High Court judgment in De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640. In that case the majority held that the “paramountcy principle” did not apply in child abduction convention matters, particularly in relation to removal and retention, as the power of the Regulations derives from ss 111B and 125 of the Family Law Act, rather than Pt VII. They further held that the discretion of a judge in deciding what matters to take into consideration is not confined by the regulations.
The majority (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ) stated (footnotes omitted):
“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.”
Kirby J commented in relation to the notion of ‘best interests’ in the Regulations (in a separate but not dissenting judgment):
“It is not strictly correct to say that the Convention is an exception to the usual concern of our law for the welfare or best interests of a child or that the regulations incorporating it into Australian law exclude that consideration entirely, leaving it no part to play in the relevant decisions. What the Convention, reflected by the regulations, has done is to recognise that it is in the best interests of children as a class not to be subjected to the turmoil and emotional divisiveness of international abduction. Wherever this occurs the child involved is ordinarily to be returned to the country in which the child was habitually resident before the abduction. It is in that jurisdiction that contests about custody and access (or their equivalent) are to be litigated.”
Counsel for the Director-General relies on the judgment in State Central Authority v Peddar, which distinguishes itself from the earlier Full Court judgment in McCall and State Central Authority; Attorney-General of the Commonwealth (Intervenor) (1995) FLC 92-551. McCall was authority for the principle that Child Abduction Convention Regulations are not governed by Pt VII and therefore the “paramountcy principle” was not the chief consideration. State Central Authority & Peddar [2008] FamCA 519 agrees with this basic principle, however it distinguishes between orders relating to wrongful removal or retention of a child, as in the matter of McCall, and orders relating to access to a child, as was the case in Peddar.
Bennett J stated at [24]:
“I note the question and answer above is not confined to the provisions directly under consideration in McCall's case (wrongful removal or retention) but could be read to embrace the full scope of the Regulations, that is, the access provisions in Pt 4 of the Regulations in addition to the Pts 2 and 3 which dealt with wrongful removals and retentions. However, I do not consider that to be a correct application. The Full court's discussion of the jurisdiction of the Family Court under the regulations could, in my view, only have applied to the removal and retention cases, such as the facts were in McCall's case. If I am wrong and the Full court's response (quoted above) was intended to encompass access cases (which I very much doubt), the statement is obiter dicta. No access matter under the Regulations arose or was under consideration in McCalls case. Accordingly, I respectfully distinguish the reasoning of the Full court in McCall's case as applicable to wrongful removal and retention cases and not to access cases under the Regulations.
Bennet J went on to set out that regs 25 and 25A of the Regulations did not apply to access cases:
[26] Neither reg 25 nor reg 25A prescribe the matters be taken into account in access cases. In my view, that is because:
a) reg 25 prescribes what orders the responsible Central Authority may apply for; and
b) reg 25A specifies that the court can make the orders specified in reg 25(1) or any other order that would be appropriate to give effect to the Convention or apply a condition which the court considers appropriate to give effect to the Convention.
The court's powers to make orders specifying with whom a child is to spend time or communicate does not derive from reg 25. When reg 25A(1)(a) is read together with reg 25(1)(a), those provisions describe the orders the court may make, but reg 25A(1)(a) does not set out the basis upon which the discretion to make those orders is to be exercised.
Her honour agreed (to a limited extent) with the English decision in Re G, a Minor (Hague Convention Access) (1993) 1 FLR 669, in which the Court of Appeal in England set out the limited applicability of the Convention to access Applications, and held that an access Application ought be brought under domestic law.
In particular, Bennett J set out that access cases proceed on the basis that the child’s habitual residence is already established, and as such, the matter is one for the laws of the jurisdiction in which the child is habitually resident and not a Child Abduction Convention matter. She further pointed out that the regulations themselves make a tacit acceptance of the distinction between the way in which access applications ought to be dealt with as opposed to wrongful retention matters. The judgment concludes on this issue:
64. The securing of rights of access is made subject to a number of qualifications of which the greatest qualification is that the access rights are to be “respected” in contradistinction to being implemented or enforced. Reference to arrangements for organising and securing the effective exercise of rights of access “in a proper case” also leads me to infer that not every application is necessarily a “proper case”.
Judgment in the matter of Shailer & Shailer [2007] FamCA 1312 examined a situation in which both Family Law Act proceedings and Child Abduction Convention Proceedings were on foot simultaneously. The judgment considered whether to order a stay of the Child Abduction Convention proceedings until the Family Law Act proceedings were finalised. The judgment looked first to the preamble and article 1 of the Regulations as to the purpose of the regulations, then looked at the types of orders which might be made (or sought) under the regulations. Brown J stated:
23. I note that the order sought here is to “secure effective exercise” which, on its face, would be to secure the rights of access of the father in the United States. Regulation 23 makes it clear that the right of access is a right of access to a child in a convention country. If one looks at Regulation 10, a convention country is any country other than Australia. Thus, an application to secure the effective exercise of a right of access in that convention country is, in fact, an application to secure access in a country outside Australia. That does not mean, of course, that pursuant to Regulation 24 and 25, an application or request cannot be made for access to a child in Australia. However, the right of access which is to be enforced is a right of access to a child under a law in force in a convention country.
In Shailer Brown J differentiated between the parent seeking orders to spend time with the child in Australia as opposed to removing the child to ‘a convention country’ (i.e. not Australia) for the purposes of spending time, and held that as all orders sought at the time were to spend time with the child in Australia, the matter fell under the Family Law Act rather than the Child Abduction Convention Regulations.
Counsel for the Central Authority also drew the Court’s attention to the judgment of Watts J in the matter State Central Authority (Secretary to the Department of Human Services) & Du Preez [2006] FamCA 1083, particularly paragraph 11, which states:
11 It appears to me that in cases where the State Central Authority is applying for an order that gives effect to a right of access, for example rights that are established in a general sense by legislation, but have not been formulated into an order specifying the form and frequency that access is to take by a court in the relevant Convention country, the orders made in Australia will have to be guided by the local legislative guidelines for giving effect to the best interests principle, and the Convention does not contain or impose an alternative to the application of that principle in the determination of such a case.
This decision accords with the approach espoused in other judgments of single judges of this court as recited above, however, that matter dealt with access orders already in place and an access application which sought that children travel overseas to spend time with the “left behind” parent.
I also add, for the purpose of evidencing consistent judicial approach, that in an earlier decision of mine called Director General, Department of Family and Community Services & Brooks [2012] FamCA 179, I did determine to approach the hearing of a similar case to that under consideration, by applying the methodology which would be applicable to the determination of an application to spend time with a child pursuant to Part VII of the Family Law Act.
determination
I propose to adopt the approach taken by each of the single instance judges set out above and consider the application by applying the law applicable to the making of a parenting order in Australia where there is no issue that the children will reside with the respondent and that the applicant seeks an order that the father be permitted to spend time with the children.
The matters I consider of particular importance in determining what is in the best interests of the children in this application can be seen by considering the provisions of s 60CC(3) of the Family Law Act.
a)The children have been interviewed three times in relation to their spending time with their father and other matters connected with their removal from South Africa by their mother without the consent of their father. As set out above, the views and perceptions of the children about their parents role in their lives and also the prospect of spending time with their father changed between the time Ms D interviewed them in 2010 and the time she interviewed them in 2012. Their clear expressed wish and view at the last interview was to have no contact with their father. The children appear to have opted to support their mother in what they clearly perceive as ongoing conflict between their parents. They have had no face-to-face contact with their father since 2007. They appear to have little or no other form of contact with him.
b)The children are aged 12 and 8 (turning 9 in …2012). The words by which they voiced their objections to seeing their father were very strong. T used phrases such as “never want to see him ever again”, “very rude and not kind”, “he never looked after me”, “he has never provided for us”, “he is making it worse for our childhood”. She told the Family Consultant that the expressed views were her own, however, she acknowledged she knew her mother did not want her to see her father.
c)K (now 12.5 years) was observed to be “demonstrably unhappy” about having to be interviewed again. She was very clear in her view. She did not want to see her father. She attributed to him a motivation of only being interested in annoying her mother rather than having any genuine interest in her. She is “fed up” with coming to Court. She expressed the view that her whole life has been ruined by the Court hearings.
d)The Family Consultant opined that K had demonstrated some ambivalence about her relationship with her father, thus indicating that her now hard opposition to spending time with him could change at some future date. It is to be noted that the ambivalence observed by the Family Consultant is said to have been displayed “unwittingly”. I accept she would deny such ambivalence were she asked about it.
e)The Family Consultant opined that weight should not be given to T’s views because she could have no confidence that the views expressed were in fact her real views. In relation to K the Family Consultant said she is mature for her years. The opinion of the family consultant is that her views should be given considerable weight. The Family Consultant said “she knows she has reached her limit of tolerance of the family conflict and made a rational decision to opt out of it”.
f)The children clearly have a close and dependant relationship with their mother. They have a very poor relationship with their father. They have not spent any real time with him since before they left South Africa in December 2005. So far as T is concerned, her father must be very much a stranger to her. The children also appear to have a relationship with their maternal Grandfather who is in contact with them and with whom they lived when first in Australia.
g)The mother is opposed to the children spending time with the father. That has not been the case in the past. In 2010 she supported there being an order for the children to spend time with the father in Australia if there was jurisdiction to hear the application under the Regulations. That position has changed because she says the children’s views have changed.
h)The children clearly believe their mother does not support them spending time with or having a relationship with their father. If that really is her position it appears to be based on some foundation. The mother says she has received no financial support from the father for the children since she has been living in Australia. The father does not profess to have provided any support. He appears to take the view that the mother removed the children from South Africa without his consent and that action has relieved him of any financial responsibility for the support of the children. The mother on the other hand appears to accept no responsibility for the state of the relationship between the children and their father. She claims she left South Africa legally and that because the father at the time had no rights of a custody or access to the children under the local law there was no requirement for her to consult him about the plan to move the children to Australia. Clearly a reasonable and responsible parent who has regard to the rights and needs of children would take a different view to each of the parents on the matters referred to above.
If an order is made for the children to spend face-to-face time with the father whilst they hold the views expressed to Ms D, then it is probable that the order would not be able to be implemented. It is further possible, if not probable, that the implementation of the order could be damaging to the psychological wellbeing of both children. It seems on the evidence that K may suffer more in this respect than T, however, that is only supposition. In the circumstances requiring the children to spend time with the father may be abusive of them.
j)As the father lives in South Africa there are considerable hurdles to the implementation of any face to face access between the children and the father. As I understand the father’s proposal he would visit Australia on at least one occasion to see the children and otherwise he would like them to travel to South Africa to spend time with him.
k)Access by electronic means is less complicated and less expensive than requiring the children to have face to face access with their father either in Australia of South Africa. Access could take place by conventional mail, by email, by telephone or by Skype visual and audio internet connection.
l)One of the matters to be considered is the impact upon the respondent mother of the children having access to the father. The evidence provided by her suggests that the presence of the father in her family life in the manner he proposes will open memories for her of the relationship she shared with him. That may impact upon the respondent in a manner which adversely affects the way in which she can parent the children. In a parenting case under the Family Law Act the court would normally be assisted by a report from an expert witness in relation to the impact upon the various members of the family of the orders being promoted by the parties. In this case no such evidence is available and so I simply need to be cognisant of this potential difficulty for the children and the respondent of making any access order.
m)K is I accept, a young and developing woman who is displaying a mature development for her age. She is of an age where she is entitled to have her views taken seriously by the Court. T is younger and her views may not have been well founded and could merely be reflective of the information provided by the respondent which T has adopted without analysis. Because the children were born in South Africa they may well have been influenced by culture which is in some ways different to mainstream Australian culture. No particular aspect of cultural differences has been the subject of evidence.
n)The children have been raised by the respondent without input from the father since the end of 2005 when the children were brought to Australia. As pointed out earlier each of the parents have questions to answer about the way in which they have exercised parental responsibility. The conduct of the proceedings has not permitted any exploration of that conduct.
o)In her evidence the respondent alleges the father had been violent to her and that violence commenced when she was pregnant with K. The respondent sets out evidence of relentless abuse of her by the father. She says she separated from him. She alleges he made complaints to police that she had attempted to murder him. She alleges that the father raped her in January 2003. Later in 2003 she alleges he attacked her physically and cut her chest. He bullied and harassed her and would not leave her house. He threatened her with litigation. None of those very serious allegations were tested in the hearing before me.
p)The respondent says the father had a “violent temper” which made her fearful.
q)The respondent says that in August 2003 the father fabricated an allegation that she had assaulted him.
r)In July 2005 the respondent and her parents moved to another premises away from the father.
s)The description by the respondent of the father’s actions and behaviours towards her, if accepted, would mean that the children would have been exposed to parental conflict of the most significant nature. Physical and verbal abuse of the respondent within the home where the children lived.
t)The respondent’s evidence is corroborated by her father. He says whilst the parties lived with him the father was often “angry, loud and abusive” towards the respondent. When the respondent’s father reproached the father for his conduct, the father made a false allegation of violence against that man.
u)In her affidavit affirmed on 26 June 2012, the respondent set out the reasons she opposes access for the children with the father. Those reasons include the following:
(i)The children state they do not want to have any access with the father;
(ii)The litigation has caused the children anxiety such that it as affected their schooling;
(iii)There was a turbulent (I take this to mean abusive and violent) relationship between the respondent and the father;
(iv)The father has provided no support for the children;
(v)The respondent believes the father is motivated by spite and is not genuinely interested in having a relationship with the children.
The father claims that he had no way of contacting the respondent or the children prior to the 2007 proceedings. This accords with the respondent’s evidence that she secreted her address from him although she was served in 2007 with proceedings by the Central Authority.
w)In about 2008 the father’s wife made contact with the maternal grandfather by email. The father says he was provided with information about the children by the maternal Grandfather. That contact was maintained at least to 2009. Notwithstanding the contact made, the father has not paid nor has he offered to contribute towards the support of the children.
The analysis of the evidence guided by the provisions of s 60CC paints a picture of the worst of parental conflict. Rape of a female represents in our culture one of the most serious types of assault which can be perpetrated. There must be a clear acceptance in our society that such an event leaves serious emotional scarring from which the victim may never recover. Thus if the respondent has been assaulted and abused by the father in the manner she alleges it must be reasonably predicted that her having to meet with the father again is likely to be quite traumatic for her. With the type of history alleged by the mother of marital violence it can reasonably be predicted that the respondent would find it very difficult if not impossible to hide from the children her contempt for the father.
With the fact scenario which has emerged in this case where there has been no testing of the witnesses’ evidence, how should the Court proceed? I consider the answer to be that the Court should proceed very cautiously in order to ensure the children’s emotional well being is not exposed to an unacceptable risk of harm.
What orders then might represent proceeding with caution?
At the forefront of the framing of orders is the imperative that children should be permitted to have a meaningful relationship with each of their parents provided it is otherwise in their best interests. In this case, therefore, it seems to me that orders which open an avenue for the children to be able to pursue a relationship with their father should they wish to do so in the future, would preserve the possibility of future face to face time with the father. Such an avenue would not be onerous to the children and therefore would not require the children to respond to any communication made by or on behalf of the father. Thus this might be achieved by the father or his wife writing to the children at an address which would not unnerve the respondent or disturb her unduly.
I do accept that the mother would, despite her own feelings about the subject, facilitate contact for the children with the father were she convinced it was something the children really wanted. So if the children had access to an email address or a website on which they could write to their father or alternatively see messages from him to them, that may serve the purpose I have in mind. Alternatively some communication may occur through the maternal grandfather if he was prepared to facilitate same.
The applicant in the “Supplementary Submission” document set out orders which were sought. These orders were different to those contained in the Application. The orders sought provide for an adjournment of the proceeding until a further report can be obtained from the Family Consultant following a time of access between the children and the father. However, as I have set out earlier I would not order face-to-face time for the children at this time.
In my view the litigation needs to stop. I would not adjourn the proceeding and call for another report. Such a step in my view would likely continue the anxiety for the children about what might eventuate from such an order. An adjournment would be contrary to the recommendation of the Family Consultant.
As a consequence of the above I propose to make the orders set out at the commencement of this judgment. I consider those orders will provide to the children an opportunity to develop a relationship with their father at a rate and at a time where they feel emotionally able to do so. The orders will help to provide the children with an assurance the father really is interested in pursuing a relationship with them if he fulfils his part. Further, the orders should operate to ensure the children are not exposed to overt negativism by the respondent about their father. The children should be permitted to form their own views and opinions about their father untroubled by repeated historical accounts of the respondents recollections of her interactions with him. I propose to restrain the respondent from voicing any negative views or opinions of the father in the presence or hearing of the children.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 8 October 2012
Associate: S Hawkins
Date: 8 October 2012
0