Director-General, Department of Human Services & Harries
[2010] FamCA 1129
•10 December 2010
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF HUMAN SERVICES & HARRIES | [2010] FamCA 1129 |
| FAMILY LAW – CHILD ABDUCTION – Whether the mother may rely on certain documents annexed to an affidavit filed by her – Whether the father had consented to the children being retained in Australia – Whether there is a grave risk that the return of the children under the Convention would place them in an intolerable situation – Where the mother has been diagnosed as suffering from a serious mental illness – Where the mother alleges that the father has a drug and alcohol problem and that he has been abusive towards her – Reasons given for the delay in the determination of the matter |
| Convention on the Civil Aspects of International Child Abduction Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Evidence Act 1995 (Cth) |
| LK v Director-General, Department of Community Services (2009) 237 CLR 582 Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321 DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 Re G (Abduction: Psychological Harm) [1995] 1 FLR 64 Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011 State Central Authority v Perkis [2010] FamCA 649 De L v Director-General, NSW Dept. of Community Services (NSW) [1996] 187 CLR 640 |
| APPLICANT: | Director-General, Department of Human Services |
| RESPONDENT: | Ms Harries |
| FILE NUMBER: | SYC | 4565 | of | 2010 |
| DATE DELIVERED: | 10 December 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 14 October, 10 November & 2 December 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie |
| SOLICITOR FOR THE APPLICANT: | Ms Pereira |
| COUNSEL FOR THE RESPONDENT: | Mr Livingstone |
| SOLICITOR FOR THE RESPONDENT: | Ms Marr |
Orders
The application filed 20 July 2010 is dismissed.
All prior orders in this matter are discharged.
IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Human Services & Harries is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4565 of 2010
| DIRECTOR-GENERAL, DEPARTMENT OF HUMAN SERVICES |
Applicant
And
| MS HARRIES |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application brought by the Director-General, Department of Human Services, Community Services (“the Director-General”), as the New South Wales Central Authority, for orders pursuant to regulation 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The application was filed on 20 July 2010 and hearing of it commenced on 14 October 2010. The Director-General seeks, inter alia, that an order be made requiring the Director-General and Ms Harries (“the mother”) to ensure the return to Canada, in the company of such person and on such conditions as the Court deems necessary, of K (“K”), born in September 2007 in Sydney, Australia and C (“C”), born in April 2010 in Canada (“the children”).
On 28 September 2010, pursuant to a direction made by the Court, the mother filed a Form 2A (sub regulation 14(3)) Answer and Cross Application. In that document, the mother asserts the following:
1.Australia is the habitual place of residence for the children;
2.The children remained in Australia with the consent of the Applicant upon his return to Canada on 29 May 2010;
3.If the children are returned to the Applicant then there is a grave risk that the children will be exposed to psychological and physical harm or be placed in an intolerable situation; and
4.If the Respondent is returned to the Applicant there is a grave risk that the Respondent would be exposed to psychological and physical harm or be placed in an intolerable situation.
The hearing of this application was substantially different to the hearing by me over the last 9 years of other applications made under regulation 14 of the Regulations. The difference was the requirement for all the witnesses to be available for cross-examination. Although I limited the length of time for such cross-examination, I was compelled to allow significant time for the cross-examination of Mr Harries (“the father”), the mother, the maternal grandfather, Dr L (the mother’s psychiatrist) and Ms D (the mother’s psychologist).
The cross-examination by Counsel for the Director-General of the mother and her witnesses, I would describe as forceful. At one point, I felt compelled to mention to Counsel that the tone being used may not be appropriate. Counsel clearly did not realise this and immediately modified her approach. I mention this only because the cross-examination by Counsel for the Director-General did allow me to see the mother’s witnesses under some pressure. Thus, I have had a reasonable opportunity to consider the credit of all witnesses.
I should also say that the cross-examination by Counsel for the mother of the father was a forceful one. It was clearly designed to challenge the father’s evidence and, indeed, did so.
The Background Facts
The basic chronology of many relevant background facts is not in contention. However, alleged conversations and representations made between the mother and the father from time to time are in serious contention.
In 1979, the father was born. He is a Canadian citizen. He holds an Australian resident visa.
In 1980, the mother was born. She is an Australian citizen. She has a right to residence in Canada.
In or about April 2001, the mother and the father met in Australia while he was travelling in Australia and thereafter, they commenced a relationship. In or about May 2001, the father returned to Canada.
In or about June 2001, the mother moved to Canada to reside with the father. She remained there for approximately 6 months. She then returned to Australia.
In or about 2003, the mother was granted a visa to reside and work in Canada. She subsequently resumed cohabitation with the father and worked in Canda for a period of approximately 12 months. In or about December 2003, such visa expired and she accordingly returned to Australia.
At the end of 2004, the mother and the father spent time together in Thailand and Japan.
In 2006, the father was granted a prospective spousal visa by the Australian government and, in or about August 2006, the father moved to Sydney, Australia and resumed cohabitation with the mother.
In November 2006, the mother and the father married in Sydney.
In early 2007, the mother became aware that she was at that time pregnant.
In or about July 2007, the father was offered a place at a Canadian University to study law which he later accepted. In or about September 2007, the father moved to Canada to commence such study. The mother remained in Sydney.
In September 2007, the child, K, was born in Sydney.
In or about December 2007, the mother and K moved to Canada to reside with the father.
In or about October 2008, the mother and K travelled to Sydney for approximately 5 weeks.
In or about December 2009, the mother, the father and K travelled to Sydney. The mother and K remained in Sydney for 7 weeks. The father remained in Sydney for 3 weeks. During that time, the father was granted permanent residency in Australia.
In or about March 2010, the maternal grandfather travelled to Canada to visit the mother.
In April 2010, the child, C, was born in Canada.
On 16 April 2010, the mother was admitted to Hospital in Canada in relation to her mental health. She was diagnosed as suffering from post partum psychosis. On or about 3 May 2010, she was discharged from hospital.
On 10 May 2010, the mother, the father, the children and the maternal grandfather travelled to Sydney. On 12 May 2010, they arrived in Sydney.
On 26 May 2010, the father filed an application for divorce and division of matrimonial property in a Canadian Court while in Sydney.
On 29 May 2010, the father returned to Canada. The mother and the children remained in Australia.
On 4 June 2010, orders were made by Justice MacLeod of the Court of Queen’s Bench of Alberta, Canada, on the ex parte application of the father, providing, inter alia, that the father have sole custody of the children.
On 20 July 2010, the application before the Court was filed by the Director-General.
On 14 October 2010, hearing of the application before the Court commenced.
There is no issue between the mother and the father that the mother has been treated and continues to be treated in relation to her mental health. Annexed to the mother’s affidavit filed on 8 November 2010 is a letter dated 24 September 2010 from her consultant psychiatrist, Dr L. That psychiatrist therein attests to the fact that the mother has experienced three brief episodes of mental illness: the first, at the age of 21 after a family friend committed suicide and as a result of which she was hospitalised for 5 days; the second, after the birth of K; and, the third, after the birth of C.
The diagnosis of the mother’s mental health condition is Bipolar I Disorder.
Dr L said that the mother has been compliant with her treatment regime and that the mother has not experienced an episode of any mental illness while she has been under his care.
Dr L said the following:
In summary [the mother] has a mental illness that occurs at times of significant stress (child birth being a well known trigger for this illness) but which at other times is well controlled. She is compliant with her treatment and attends appointments reliably. She is well supported by her father with whom she lives. Her interactions with her children appear healthy and the children appear happy and well adjusted.
I will refer later to the further evidence given to the Court by the mother’s psychiatrist and psychologist.
The Issues to be Determined
The following issues are to be determined:
(1)Whether the mother may rely upon certain documents annexed to her affidavit filed on 8 November 2010.
(2)Whether the father had consented to the children being retained in Australia within the meaning of regulation 16(3)(a)(ii) of the Regulations.
(3)Whether there is a grave risk that the return of the children under the Convention would expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of regulation 16(3)(b) of the Regulations.
In submissions, Counsel for the mother identified that the issue of the children’s habitual residence is directly linked to the issue of whether the father had consented to them being permanently resident in Australia on or about 24 May 2010.
The Submissions
Counsel for the Director-General submitted that the children were habitually resident in Canada, a convention country, immediately prior to their retention in Australia and that their retention in Australia was wrongful. This was conceded by Counsel for the mother to be the case only if the Court is satisfied that the father had not consented to the mother retaining the children in Australia permanently.
Counsel for the mother submitted that the father had consented to the children being retained in Australia. He submitted that the father had given such consent by 24 May 2010 or at the very latest by 29 May 2010.
Counsel for the mother further submitted that there is a grave risk that the return of the children under the Convention would place them in an intolerable situation. He submitted that such a grave risk arises from the mother’s mental health condition and the father’s past behaviour including his drug and alcohol use and allegedly abusive treatment of the mother. In relation to the former, he submitted that the evidence of Dr L is to be accepted and that such evidence would satisfy the Court of there being a grave risk within the meaning of 16(3)(b).
The Credit of the Parties and the Witnesses
Somewhat unusually, this case saw all of the relevant witnesses cross-examined. I have thus had the opportunity to see the parties and the witnesses in the witness box. I can therefore form an opinion as to their reliability as witnesses and generally whether one witness might be preferred to another where there is a dispute on facts.
The Father
I have difficulty accepting the evidence of the father in many respects where it is in conflict with that of the mother and her witnesses.
I have a concern about the father’s approach to honesty because of his action in commencing divorce and parenting proceedings in a Canadian Court while he was still in Australia attending on Counselling with the mother and without informing her that he had so acted. It seems that the reason he took that action was to achieve some tactical advantage over the mother in relation to the parenting issues. There can be no other reasonable explanation. Had the father genuinely been hoping to effect reconciliation with the mother which would see her return with the children to Canada, at least until he finished his studies, he would not have not so acted. In my view, the father, with his skilled legal knowledge, took advantage of the circumstances and his connection with lawyers in so acting. The father clearly did not consider the impact upon the mother had she succumbed to his entreaties, travelled to Canada with him and then discovered his deceit and/or deception. In my view, his action was of a person who ought not to be trusted to be truthful with the mother or the Court. In my view, it reflects very badly upon the father as a person and a potential practicing lawyer.
I am also troubled by the father’s concession in his oral evidence that he does use marijuana as he understands that that is an illegal act in Canada while at the same time he professes to be pursuing a career as a lawyer.
The father also conceded that he had been deliberately untruthful with the mother when he had told her in an email dated 12 April 2010 that he had a problem with alcohol. He did not consider that to be true at the time. The tenor of his evidence was that he had told her that in order to manipulate her disposition toward him. He told me: “I was saying what I thought my wife wanted to hear.”
The father denied much of the evidence of the mother’s supporting witnesses. Those witnesses principally recited conversations said to have been conducted with the father while he was in Australia. Those witnesses presented as credible and believable witnesses. Mr J (neighbour of the maternal grandfather) appeared to be in error about the date upon which the father, the mother and the children arrived in Australia. I do accept the understanding of Mr J as to what the father was conveying to him in relevant conversations was that intended by the father. The suggestion that these witnesses would lie because they were neighbours of the maternal grandfather, I find naïve, most unlikely and probably offensive to them. The father’s action in denying the evidence of the mother’s witnesses further shakes my confidence in his evidence.
The Mother
In my observation, the mother appeared to be a witness doing her best to tell the truth. It may be that, in these reasons, I do not accept all that she has said; however, at no time did I think that she was being deliberately untruthful to the Court.
The maternal grandfather
The maternal grandfather gave his oral evidence in a passionate and apparently honest manner. I do not consider that he had been untruthful to the Court. He made concessions when called upon to do so. As a general proposition, I preferred his evidence to that of the father.
Dr L and Ms D
I accept that these witnesses were truthful witnesses.
Ms V
Ms V (neighbour of the maternal grandfather) presented as an honest witness. I accept her evidence.
Mr J
Mr J (neighbour of the maternal grandfather) gave his evidence in an apparently honest manner. He was clearly wrong as to the date on which the mother, the father and the children arrived in Australia in May 2010. That, however, does not, in my view, detract from the veracity of his evidence. He had a clear recollection of the subject matter and gist of conversations with the father in May 2010.
Ms E
Ms E (neighbour of the maternal grandfather) gave her evidence in an apparently honest manner. I accept her evidence. In particular, I accept that the father did not use the word “abducting” in any conversation with her. I accept that she would clearly have remembered the use of that word.
The Evidence
Affidavit Evidence in Relation to the Issue of Whether the Father Had Consented to the Children Being Retained in Australia
In her affidavit filed on 28 September 2010, the mother asserts that, in or about July 2007, after the father was offered a position at a Canadian University to study law and before the birth of K, they had a conversation in which he said to her “words to the same effect: …I promise you we will live in Australia after I finish my degree”. She asserts that, prior to the family arriving in Australia on 12 May 2010, the father made, on a number of occasions, representations about relocating to Australia as a family or indicating an intention to do so; and, that, in part, “[t]he intention for [their] travel to Australia [in or about December 2009]… was… for [the father] to collect his Australian residency documents”. She asserts that, prior to her being discharged from Hospital, the father and herself had a conversation in which she said to him “words to the same effect: …I don’t know if I will be ready to go back with you by the time you need to return to complete your exams. I am not sure if I want to return to Canada… I need to feel fully recovered and confident you have changed your behaviour before I will return with you to Canada with the children” to which he responded: “…[y]ou and the kids stay with your parents for however long it takes for you to recover”. In relation to that conversation, she asserts that “[she] believe[s] as true that [the father] agreed the children and [herself] were to remain living… and make a home in Australia unless [he] altered his behaviour”. She asserts that, subsequent to them arriving in Australia on 12 May 2010, the father made, on a number of occasions while in Australia, further representations about relocating to Australia as a family or indicating an intention to do so. She further asserts that, on or about 24 May 2010, the father and herself had a conversation in which he said to her “words to the same effect: …Okay, you and the children remain living in Australia. I will come back to Australia once I have tied up the remaining loose ends in Canada…”
In his affidavit, the maternal grandfather asserts that, prior and subsequent to them arriving in Australia on 12 May 2010, the father made, on a number of occasions, representations about relocating to Australia as a family or indicating an intention to do so. The maternal grandfather asserts that “[t]he intention for the trip to Australia [in or about December 2009] was to celebrate Christmas and for the [father] to receive his permanent residency documents”. The maternal grandfather asserts that “[f]rom [his] previous conversations with the [father]… [he] believed as true the [father] was returning to Australia to live once he completed his exams in Canada”. The maternal grandfather asserts that he heard the father say to the mother: “[y]ou and the kids stay with your parents for however long it takes”. The maternal grandfather further asserts that, on or about 4 May 2010, the father said to him: “[h]owever long it takes. If she needs a couple of months in Australia, then I will return to Australia to be with my family”. The words “However long it takes” is understood to refer to the time necessary to have the mother recuperate from her recent bout of mental illness.
In their affidavits, Ms V, Mr J and Ms E (neighbours of the maternal grandfather) assert that the father made representations to them individually about returning to Australia with his family or indicating an intention to do so. In her affidavit, Ms V asserts that, on or about 27 May 2010, the father said to her words to the same effect: “I cannot return to Australia to live until I have finished my studies at uni. I will be coming back to Australia and hopefully work out any issues that [the mother] and I may have had”. In his affidavit, Mr J asserts that, in or about December 2009, the father said to him: “I am going to move to Australia with [the mother] and [K] after finishing my university exams” and “[w]ould you assist me in finding accommodation [in Sydney]?”. Further he says that, in or about 26 May 2010, the father said to him: “I am here to help get [the mother] and the children settled before going back to Canada. I have some things to sort out before returning to live with my family in Australia”. In her affidavit, Ms E asserts that, on or about 18 May 2010, the father said to her words to the effect of: “…I put my law exams on hold. I will have to go back to Canada and complete them, but then I will return to Australia to be around the children…”
In response, in his affidavit sworn on 7 October 2010 and annexed to the affidavit of Ms Pereira filed on 11 October 2010, the father asserts that “[he] did not promise [the mother] that [they] would move to or ‘live in’ Australia after [he] finished [his] degree, but rather referenced and reinforced [an] agreement [between them]… that included articling and working in Canada after law school”. He denies, prior to (or even subsequent to) them and the children arriving in Australia on 12 May 2010, having made any representations about relocating to Australia as a family or indicating an intention to do so. He asserts that he obtained an Australian residency visa when in Australia in or about December 2009 “…coincidentally and conveniently as [he] was required to be in Australia to have the document entered into [his] passport”; that “…[it] is conditional upon the marriage having lasted two years since the issuance of the second Visa in the series…”; and, that “…[it] in no way implies or creates actual residency”. He further asserts that “the children did not remain in Australia with [the mother] with [his] consent”; but rather, that “[the mother] encouraged [him] to believe that… she would travel with the children to Australia only for a vacation, and then she chose to stay without [his] consent”.
Affidavit Evidence in Relation to the Issue of Whether There is a Grave Risk that the Return of the Children under the Convention Would Expose the Children to Physical or Psychological Harm or Otherwise Place the Children in an Intolerable Situation
In her affidavit filed on 28 September 2010, the mother asserts that “the father has not cared for the children alone for significant periods of time”. She asserts that “[she is] and [has] been the primary carer for [K] and [C] since their births”. Further, she asserts that “[C]… is anxious when separated from [her] for significant periods of time”.
In response, in his affidavit sworn on 7 October 2010 and annexed to the affidavit of Ms Pereira filed on 11 October 2010, the father asserts that “[he has] been heavily involved with the care of the children as far as [he] could be given [his] academic and career responsibilities”. Further, he asserts that he has not had “…the opportunity to develop [a close and loving] relationship with [C]”.
In her affidavit filed on 28 September 2010, in relation to the likelihood of her experiencing another episode of Bipolar I if she returns to Canada with the children, the mother asserts that “[she] consider[s] [her] mental health has significantly improved since being in Australia”. She asserts that “[she] does not have a large support network in Canada” and that “[her] family and current treating doctors are in Australia”. She further asserts, in her affidavit filed on 8 November 2010, that “[she does] have concerns that if [she] was required to return to Canada that it could be a stressor to trigger a relapse” and that “[she] will feel overwhelmed and will not be able to cope with the stress of financial pressures, ongoing Court proceedings and having no support persons with [her]”.
In response, in his affidavit sworn on 7 October 2010, the father asserts that “[the mother] has a large and existing support network in Canada” and that “[s]he has current treating doctors… who are… able to receive her as a regular patient immediately upon her return to Canada”.
In her affidavit filed on 28 September 2010, in relation to the father’s alleged “drug and alcohol issues”, the mother asserts that “[d]uring [the] relationship [she] regularly observed [the father] drink alcohol in excessive amounts”. She asserts that, in 2003, “…[she] witnessed [the father] experience a drug induced psychosis for a constant period of about two (2) to three (3) days”. She asserts that, in or about December 2007, “…[she] began to observe [the father] consuming illicit drugs…”; specifically, “[she] observed [the father] smoking marijuana three (3) to four (4) nights each week…” She asserts that, on or about 1 July 2009, when he was admitted into hospital after experiencing chest and heart pains, the father said to her “…words to the same effect: …[w]hen I was out last night I used cocaine”. She asserts that, on or about 25 April 2010, when they, the children and the maternal grandfather were staying at a hotel in Canada, the father “…[arrived] back at the [hotel] at approximately 4:00am… [smelling] strongly of alcohol [and]… [appearing]… to be intoxicated and unbalanced”; and, that he attempted to sleep in the same bed as the young children. She asserts that, on or about 25 April 2010, the father said to her “…words to the same effect: …I talked to [Alberta Alcohol and Drug Abuse Commission]. They asked me a series of questions and they said by my answers I am an alcoholic”. Further, she asserts that “[she has] concerns for the children’s and [her] safety if [they] returned to Canada”; that “[she is] concerned that [the father] may hurt [her] or the children, particularly when he has consumed alcohol or has taken an illicit substance”; that “[f]rom [her] observations, [she] consider[s] when [the father] drinks or [is] under the influence of another substance he does not know what he is doing”; and, that “[she] consider[s] [the father] is at risk of harming himself or others when he is drinking alcohol or under the influence of another substance”.
In his affidavit filed on 28 September 2010, the maternal grandfather asserts that he observed the father intoxicated on a number of occasions. The maternal grandfather asserts, for example, that, in or about July 2009 and April 2010, “[he] witnessed the [father] drinking alcohol to excess until he was intoxicated”. The maternal grandfather asserts that “[b]ased on [his] observations, the [father] drank alcohol frequently, most days when [he] attended their home”. The maternal grandfather further asserts that, on or about 25 April 2010, after observing the father intoxicated, the father said to him: “…[w]hen I start drinking I do not know when to stop. I think I have a bigger problem than just drinking”.
In response, in his affidavit sworn on 7 October 2010, the father denies having drug and alcohol issues. He asserts that “[he has] never had a ‘problem’ with drinking such that it has affected [his] work, school, or family commitments, or caused [him] to become, angry, depressed or act belligerent or inappropriately”; that [s]ince having children, [he has] a drink on average one or two times per week”; that “[o]nly on occasion, probably about once a month, [does he] consume alcohol in excess of a few drinks”; and, that “[he has] never been drunk while [K] was in [his] care”. He concedes that, in 2003, “[he]… consumed one pill of what [he] was told to be ‘ecstasy’” and that he attended voluntarily upon medical staff at the event for approximately half an hour after “not feeling well”. He asserts that, from December 2007, “[the mother] has never observed [him] consume ‘illicit drugs’ other than marijuana”. He concedes to having been “an occasional marijuana smoker” and that “[d]uring periods where [he] would smoke marijuana, [he] did so on average once or twice a week”; but, he asserts that “…[he has] never been under the influence of marijuana when [he] was responsible for [K’s] care”. He concedes, on or about 30 June 2009, to having “…consumed a small amount of cocaine”; but, he asserts that “[he has] not done cocaine or any other drugs with the exception of marijuana on occasion… since this incident”. He contests the mother’s account of the events occurring on or about 25 April 2010. He concedes that, on or about 25 April 2010, he contacted the AADAC information hotline as “[h]aving been accused of being an alcoholic multiple times by [the mother], [he] decided that it was responsible to ensure that [he] was not”; but, he asserts that the AADAC did not advise him that he was an alcoholic. Further, he asserts that “there is absolutely no incident, behaviour or grounds upon which [the mother] can base a concern for her or the children’s safety”; that “there is nothing upon which [the mother] can base her assertion that [he has] ever been in any condition such that [he does] ‘not know what he is doing’ or that there is any risk of [him] harming [himself] or others”.
In her affidavit filed on 28 September 2010, in relation to the father’s alleged “anger management issues”, the mother asserts that “[a]fter [C’s] birth, [the father’s] behaviour seemed… to worsen. He increasingly became angry with [her], picking fights with [her] and acting erratically”. She asserts that “[K] witnessed [the father’s] aggressive behaviour”. Further, she asserts that “[the father] denigrated [her] in front of the children…”
In his affidavit, the maternal grandfather asserts that “[he] observed the [father] speaking to the [mother] in what seemed to [him] to be in an aggressive tone” and the father behave aggressively. The maternal grandfather asserts, for example, that “[the father] regularly stomped heavily around the house and slammed cupboard doors shut”.
In response, in his affidavit sworn on 7 October 2010, the father denies having any anger management issues. He asserts that “[i]t is… believable that [his] behaviour ‘seemed’ to worsen to [the mother] after the birth of [C], as [the mother] was beginning to lapse into psychotic and manic episodes…” Further, he asserts that “[he has] not ever denigrated [the mother] in front of [the] children”.
In relation to her assertions above, in her affidavit filed on 28 September 2010, the mother asserts that “[a]s far as [she] is aware, [the father] has not sought professional help…” In response, in his affidavit sworn on 7 October 2010, the father asserts that “…[he does] not have any alcohol or drug issues that require professional help” and that “[he has] never done anything to indicate… that [he] would need professional help in relation to anger issues”.
Letter of Dr L Dated 24 September 2010
Annexed to the affidavit of the mother filed on 8 November 2010 is a letter from Dr L (her psychiatrist) dated 24 September 2010.
In that letter, Dr L states that the mother is currently under his care and that he has had the opportunity to assess her on three occasions: 10 June 2010; 22 July 2010; and, 27 August 2010.
Dr L provides the following history of the mother:
[the mother] has experienced three brief episodes of mental illness. The first at the age of 21, when a family friend committed suicide; she was in hospital for five days. The second was after the birth of her first child… and the third was after the birth of her second child…
Dr L states that “[h]er diagnosis is Bipolar I disorder”. He states that “[n]o depressive episodes have occurred”. Further, he states that “[the mother] has been compliant with medications and her appointments…” and that “[t]here has been no recurrence of symptoms of Bipolar I Disorder while she has been under [his] care”.
Dr L states that, “[t]o the best of [his] knowledge, there have never been any concerns about [the mother’s] care of her children and no reports of any threats to harm herself or others”. He states that:
[the mother] describes difficulties in her marriage: she describes her husband as verbally abusive and as a binge drinker and user of illicit substances. It is for these reasons that she chose to effectively separate from him by remaining in Australia. Her father corroborates [the mother’s] account of her husband’s behaviour…
In relation to the impact on the mother’s mental health of her being obligated to return with the children to Canada, Dr L states that:
[the mother] has no family or other significant supports in Canada. I feel that, if she were obligated to return to Canada, essentially alone, with an abusive estranged husband and two young children to care for, this would have a markedly deleterious effect on her mental state. As her treating psychiatrist, I would not recommend such a course of action.
Further, by way of summary, Dr L states that:
[the mother] has a mental illness that occurs at times of significant stress (childbirth being a well known trigger for this illness) but which at other times is well controlled. She is compliant with her treatment… and attends appointments reliably. She is well supported by her father, with whom she lives. Her interactions with her children appear healthy, and the children appear happy and well-adjusted.
Letter of Dr L Dated 29 October 2010
Annexed to the affidavit of the mother filed on 8 November 2010 is a second letter from Dr L dated 29 October 2010.
In that letter, Dr L states:
[the mother] suffers from Bipolar I Disorder and episodes of her illness are generally precipitated by significant psychological stress. At all times other than brief episodes she is stable and fully compliant with medication. In Australia she has the support of her father and friends. She has started to establish connections in her community…
In contrast to the above, Dr L states:
…were she required to return to Canada, she would be going to a situation where she has no family, no supports, no source of income, no home, no car and significant financial stress. She would be required to care for two small children in these circumstances and to deal with an estranged partner who is said to be verbally and emotionally abusive and who is described as a binge drinker and user of illicit substances. Furthermore, were she required to go to Canada in the near future she would be returning to a Canadian winter which I imagine is not easy to deal with coming from Australia in spring or summer.
By way of conclusion, Dr L states: “As will be obvious, my opinion is that, in terms of her mental health, [the mother] should remain in Australia. This is also her clear preference”.
Letter of Ms D Dated 2 November 2010
Annexed to the affidavit of the mother filed on 8 November 2010 is a letter from Ms D (her psychologist) dated 2 November 2010.
In that letter, Ms D states that the mother was referred to her in June 2010 regarding her symptoms of anxiety, depression and stress. She states that, “[a]lthough [the mother] presented with a diagnosis of Bipolar disorder, throughout the time [the mother] has been in treatment with [herself] there has been no evidence of psychosis or mood fluctuations…” She states that the foregoing “…indicates that [the mother’s] mood disorder has been fully diagnosed, treated and stabilised”. She further states that “[the mother] has been proactive in her approach to managing and optimising her mental health and has actively engaged in all facets of therapy”.
However, in that letter, Ms D, in her professional opinion, advises against the mother returning to Canada. She states the following as reasons for such an opinion: the “lack of social support” in Canada; the “lack of professional support” in Canada; and, the “increased relapse risk”.
In relation to the first reason, Ms D states that, “[i]n the reflections [the mother] has presented during sessions there is not a perception that [the mother] has suitable access to family support in Canada” and that “[t]hese reflections have been consistent and supported by evidence presented by [the mother’s] family members”.
In relation to the second reason, Ms D states that:
The details presented by [the mother] and other family members regarding her hospitalisation in Canada do not reflect a service that [the mother] would feel encouraged to approach if she had concerns for her mental health. This may result in a crisis situation and reduce her chances of full recovery if she experienced another episode of psychosis or mood disorder in Canada.
It is expected that [the mother] will also experience limited access to services due to low income, transport issues and lack of knowledge of local services.
In relation to the third reason, Ms D states that:
When experiencing extreme stress, affective relapse (i.e.: depression or mania) can occur in patients with bipolar disorder even when they take their medication consistently…
The pattern of depression presented by [the mother’s] reflections of her experience in Canada indicate that situational factors impacted on her experience and worsened her depression.
These factors remain (in Canada, but not in Australia), therefore her symptoms of depression are more likely to recur (eg: Extreme cold and lack of sunlight in winter, geographical and social isolation, lack of connection with family and other support networks).
Financial and housing concerns may also present an issue for [the mother] as her level of training and education would not qualify her for a well-paid job. This would also be expected to impact on [the mother’s] access to medical insurance and treatment in Canada.
Ms D further states that the above factors “would contribute to a poor prognosis should [the mother] return to Canada, and would therefore need to be addressed”.
Oral Evidence of the Father
On 10 November 2010, the father, a witness of the applicant Central Authority, gave oral evidence in these proceedings by video link from Canada. Of that evidence, I note the following in particular.
The father is a law student by occupation. He is also employed by a Canadian government agency.
The father told me that a Notice of Motion had been filed in the Canadian Court which was to proceed on the following Friday. A copy of the Notice was marked as an exhibit in the proceedings (DOH 1). The Notice of Motion is somewhat defective in that it does not prescribe the date of the order of Mr Justice A.D.MacLeod as referred to in paragraph numbered “1” in the document. The paragraph numbered “2” in the Notice refers to an order made 4 June 2010 by that same Justice. I believe I am to assume that the earlier paragraph refers to the orders of the same date.
Having looked at DOH1 and the order of the Canadian Court of 4 June 2010, appearing as page 62 annexed to the application filed 20 July 2010, I am of the view that the mother and the Court should be very concerned about what deception the father and his lawyer have in mind. Firstly, the Notice does not seek to set aside orders 1 and 2 of the order of 4 June 2010 but rather vary the orders in an unspecified manner. The orders numbered 1 and 2 (the father have sole custody and day to day care and control of the children and the mother have undefined supervised access) would remain intact assuming the Court were to make the orders specified in the Notice. The one consolation the mother might have is that there would be power for this Court to order conditions of return in certain circumstances and one condition might cover the unsatisfactory circumstance of the orders of 4 June 2010.
The father applied for orders in the Canadian Court while he was still in Australia on 26 May 2010. He did not tell the mother that he had done so. He conceded that after filing the proceeding in the Canadian Court and before the mother was served with any documents which alerted her to his action in that Court he sent her “loving messages”. He said “I had been instructed by lawyers in Canada and Australia not to inform her.” At the trial the Counsel for the mother called for the production of any document which evidenced the advice to which the father referred. No such document was produced.
The father was questioned about paragraph 4 of his affidavit sworn 2 July 2010. The words directed to his attention were, “While travelling with a friend, [Ms B], in Italy, in her early twenties, the defendant was hospitalised in a mental institution for approximately two weeks.” He conceded knowledge that the mother (called the defendant in the affidavit) was diagnosed with exhaustion and anxiety induced mental illness.
It was put to the father that it was his intention to pursue career opportunities in Australia. He replied “In the undefined future.” He said “We had not decided when or where or under what circumstances”.
The father conceded he had been issued with an Australian permanent residency visa by the Australian Government in 2009.
The father conceded he had sought that visa so he could pursue employment in Australia. He conceded he had discussed with his father-in-law the possibility of obtaining employment in Perth, Australia.
The father denied he had discussed with the mother a proposal to complete his law degree in Australia. He conceded that before he was accepted into University in Canada he had looked at studying law in Australia.
The father denied he had asked the maternal grandfather, the mother’s father, to look for accommodation for he and the family in Australia in May of this year. He did not recall telling the maternal grandfather he would like to do “hang gliding” in Australia. He concedes it was possible he said that.
The father conceded that he had been hospitalised on one occasion as a result of cocaine use. Later he said it was 1 July 2009. He said he had told the mother about this event. He denied he currently had a problem with the consumption of alcohol. In relation to the use of marijuana he conceded the use of marijuana, however, he confirmed his written evidence (allegation) that the mother had encouraged him to use it. He conceded that possession of marijuana was illegal in Canada.
The father conceded that on 12 April 2010 he had written in an email to the mother that he had “a problem with drinking”. The father told me that statement was not what he believed to be the real position at the time it was made. He conceded that in the circumstances he was not being frank with the mother. He conceded he sent an email to the mother saying “I know you have heard me say I’ll quit drinking before, But I obviously have a problem as I could never let myself truly see how much it’s hurting you….I will get help.”
At the conclusion of a line of cross-examination the father stated that his intention in setting down those words was “I was saying what I thought my wife wanted to hear.”
The father agreed he knew Mr J (the deponent of an affidavit filed in the respondents’ case). It was put to the father that in December 2009 he said to Mr J: “I am going to move to Australia with [the mother] after I finish my exams.” The father denied that. It was put the father had asked Mr J: “Would you assist me in finding accommodation [in Sydney]?” He denied that. It was further put the father had said to Mr J at that time: “[the mother] and I would like to live close to [the mother’s] parents and the University [in Sydney].” Again he denied that conversation.
The father acknowledged he knew Ms V (the deponent of an affidavit in the respondent’s case). It was put that the father said to Ms V in December 2009: “I love Australia and would love to raise my family in Australia in the future.” The father did not specifically recall saying such words however conceded he may have as that was something he had said in the past. He conceded that he had said to her: “we planned on some day in the future moving to Australia.”
It was further put that the father had said to Ms V on about 27 May 2010 “I cannot return to Australia to live until I finish my studies at uni. I will be coming back to Australia and hopefully work out any issues that [the mother] and I may have had.” He denied saying that. After further being pressed the father conceded it was possible he had said he wanted to work out the issues with the mother.
The father conceded that the parties’ oldest child was two when the father was hospitalised following cocaine use.
The father conceded there was an occasion when he had sought medical attention following a “bad trip”. (I take this to be a reference to the use of an illegal drug).
It was put to the father that whilst living in Canada (with the mother) that once or twice a week he would go out and become intoxicated. It was put that three or four times a week he would go to the back porch and smoke marijuana. He denied each of those allegations.
The father told me there were times when he smoked marijuana once or twice per week.
The father conceded that the children are very closely bonded and attached to their mother. He said he had no intention of reconciling with the mother if she returns to Canada with the children.
The father was asked about assistance he might be able to provide for the mother and the children if they returned to Canada. He said he would assist with the location of and furnishing of accommodation for the mother and children. He would also be prepared to pay rental for a period of three months. He thought somewhere around $1,300 per month was a price he could afford and which would be suitable for the mother and the children. He would have to borrow the money from his family.
The father was asked what employment prospects might be available to the mother in Canada. He considered she could earn money by caring for other people’s children in her home. He said she had done that in the past. He was asked about the availability of a motor vehicle for the mother in Canada. He said that he has a car however he needs that to get to and from work. He said he would run errands for the mother and/or transport her to destinations outside of his work times.
The father was asked to agree that if the mother was required to take the children back to Canada she would be “under immense stress and strain”. He said “I understand that there will be some stresses in the process of relocating. I will do everything in my power to minimise them”.
The mother’s Counsel questioned the father on how reliable his undertaking to support the mother might be if she was to return with the children to Canada. The father was asked: “Your willingness to help (the mother) was at its height when your second son was born, wasn’t it? The father replied: “That is right”. It was put to the father that at that time he became drunk. He conceded that was the case. He conceded he returned to the hotel room and wanted to sleep in the same bed as the eldest child K. He agreed the mother’s father had said it was inappropriate.
The father said he had stated to an officer from Social Services in Canada that in a test he had subjected himself to on the internet it indicated he was considered an alcoholic.
The father had not disclosed to the Canadian Court that he had used illegal drugs or that he may be considered an alcoholic. He didn’t think they were relevant matters. I note the father had applied ex parte for an order for sole custody and care and control of the children. I note that order was made after considering evidence from the father. It is incomprehensible that a person of the father’s intelligence and legal training might think that it was irrelevant to tell the Canadian Court considering his application that he was a user of illegal drugs and an abuser of alcohol (assuming he conceded that).
It was put to the father that his alcohol and drug use was a problem for him. He denied that.
The father acknowledged he knew Ms E, the deponent of an affidavit filed on behalf of the mother. He acknowledged talking to her in May 2010. He denied he had exactly said “Yes things are not good. I put my law exams on hold. I’ll have to go back to Canada and complete them, but then I will return to Australia to be around the children. I will do anything to work on the marriage.” He said he told her, amongst other things “[the mother] is abducting the children”. He claimed that Ms E was lying in her evidence.
In relation to the conflict of evidence between the father and Ms E I prefer the evidence of Ms E. She said in her evidence that she would have remembered if the father used the word “abducting” in reference to his children. It seems to me that most people in this society would remember an allegation of “child abduction” as it is a very serious criminal offence and carries far reaching emotional impact.
Oral Evidence of the Mother
Under cross-examination the mother conceded she was in error in stating in her affidavit that the father had proposed to her in about September 2006. She was shown a letter and then conceded that she knew of the proposal in February 2006.
She confirmed her evidence that it was May 2010 when the father consented to she and the children remaining permanently in Australia. She stated it was 24 May 2010.
The mother claimed that prior to boarding the aircraft to come to Australia in May 2010 the father had said “Let’s all go to Australia to stay.” She said it had been raised because of her mental illness, his stress, and their marital problems. There was to be a fresh start. She claimed the father had said “we owe it to the boys.” He had said to her “Sydney or Perth could be somewhere we could make a living.”
The mother conceded that she had written on the immigration card she presented at Sydney airport upon arrival in May that she would be staying for 18 days. She claimed she had written what the father told her to write.
The mother conceded that the 18 day period was the return date on the air tickets, however, she claimed the father had said she could stay “for however long it takes to recover”. She conceded she had not told the Immigration Authorities upon arrival in Australia that she was here permanently. In relation to completing the immigration card on the plane before arrival in Australia the mother said she was “heavily sedated” on medication which had been prescribed for her two and a half weeks before hand. She had no recollection of completing the form. She could remember the father sitting next to her on the plane telling her what to write.
The mother asked for an opportunity to volunteer some further information to the Court. She told me that she and the father had a verbal agreement which stated three conditions for her and the children to return to Canada. Given that she had filed a detailed affidavit I stopped the evidence in this form when it appeared that she was repeating information she had set out in her affidavit.
The mother said that on 24 May 2010 the father had said to her “We will relocate. We will remain in Australia.”
The mother was taken to an email she had sent to the father on about 10 April 2010. The email was very praising of the father as a husband and a father. The mother told me she had sent the email even though she did not at the time believe it to be true. She explained he was studying for exams and she wanted to assist him by showing him love. She conceded under questioning that the father had been supportive to her at times.
The mother conceded she was aware that the father had secured articles with a prestigious firm of lawyers in Canada and was due to commence on 21 June 2010. She knew his commitment was for one year. She conceded he had deferred exams to come to Australia.
It was put to the mother that she was present and heard conversations between the father and her father where her father had said “I guarantee that [the mother] will return”. This conversation was said to take place in Canada prior to May 2010. The mother said “That was the intention to return.”
The mother acknowledges that in April 2010 she had joined the congregation at a Sydney Church. She said she had enrolled the parties’ eldest boy in pre-school months before the trip to Australia took place.
The mother conceded she had made enquiries of friends about availability of housekeeping services and also who might be able to accompany her to concerts when she returned from Australia. She conceded she told the authorities at the Hospital in Canada that the trip to Australia was “a trip only”. She conceded that on 2 April 2010 and again on 26 April 2010 she did not intend to move to Australia permanently.
It was put to the mother that when she saw Dr G with the father he did not say she could stay in Australia “for however long it takes to recover”. The mother denied that. The mother asserted the father had said that to her before leaving Canada and again in Australia.
The mother conceded arriving in Australia on 12 May 2010.
The mother alleged that she and the father had agreed on 24 May 2010 that the father would do his studies in Australia as they had agreed the family would not be retuning to Canada.
The mother conceded she did not pack up her clothing and that of the children consistent with permanently remaining in Australia.
The mother denied she had told the father by 18 May 2010 that she did not intend to return to Canada.
The mother said that although the initial agreement for her and the children to stay in Australia was made with the father on 24 May 2010 he “backed that up for the remainder of his stay”.
The mother conceded that between 12 May and 29 May 2010 she spoke to the father on most days about her desire to remain in Australia. She agreed she told him she wanted to live near her parents.
The mother agreed that in May 2010 in Australia the father tried to persuade her to return to Canada with him. She said he had also spoken to her about coming back to Australia to see the children.
The mother agreed that by 21 May 2010 the father had told her he did not consent to the children remaining in Australia.
The applicant sought to rely upon a memo from a mediator/Counsellor who saw the parties in Sydney before the father returned to Canada. This document came into evidence by virtue of being annexed to the father’s affidavit. It was marked as page 281 in the applicant’s book. The letter appears on letter head of “F Counselling”. It is signed by Mr F, Psychologist. It refers to a Counselling/ dispute resolution session conducted on 21 May 2010.
Section 10B of the Family Law Act defines “Family Counselling”. Section 10C defines the term “family Counsellor”. Sections 10D and 10E go to the duties of confidentiality imposed upon a family Counsellor and also the embargo upon the admission of evidence from a family Counsellor of anything said or any admission made in family Counselling.
The letter from the psychologist does not purport to be an accredited organisation or person for the purpose of the Family Law Act1975 (Cth) (“the Family Law Act”). However, the process the parties went through suggests the Counsellor knew the procedure and wording associated with family dispute resolution.
The applicant submits that the document is admissible whether it contravened the provisions of the Evidence Act1995 (Cth) (“the Evidence Act”) or the Family Law Act. It is submitted that the Regulation, specifically Regulation 29, covers the field.
I do not propose to give weight to the document which appears at page 281 of the applicant’s book of evidence for the following reasons.
Although I am unable to determine whether the maker of the document would be caught by the provision of section 10E of the Family Law Act, section 111D of the Family Law Act provides that the Regulations may make provision in relation to the rules of evidence that are to apply in proceedings under the regulations. The section further provides that the regulations have effect despite any inconsistency with the Evidence Act or with any other law about evidence.
The document would not be admissible if the respondent was to seek to rely upon it as she is subject to the Evidence Act and section 10E of the Family Law Act. The document is not admissible as a business record (would not fulfil the requirements of section 69 of the Evidence Act). The applicant asserted it would be admissible as an exception to the hearsay rule specified in the Evidence Act without specifying which section is relied upon. To the extent that it is said the mother relies upon an assertion which would be contradicted by the content of the document I reject such a submission. The document could not be tendered as opinion evidence.
The purported purpose for relying upon the document is not made out. It was submitted that there is a substantial difference between the evidence now given by the mother about the content of conversations between she and the father, on or prior to 21 May 2010 and that asserted in the document sought to be relied upon. I do not accept that to be the case.
The clear purpose of regulation 29 is to avoid difficulty with evidence being received from a party or entity in the convention country which has instigated the request for the convention to be invoked. In this case the witness sought to be relied upon is in Australia. There appears to be no reason why an affidavit could not have been obtained from that witness if the evidence was important.
The Regulation creates an uneven playing field in relation to the applicant and respondent to proceedings under the regulations. In the administration of justice in Australia that is a most unusual provision. This is a Court of law in which justice is to be dispensed. While understanding the reason behind the wording of Regulation 29, the Court, in my view, needs to ensure that the regulation is not used in a manner which was clearly not intended.
The operation of the regulation operates most unfairly against the respondent mother in relation to this document. To the extent that there is a discretion in the Court not to give weight to that evidence I would exercise that discretion in favour of the respondent.
Before leaving this subject I pause to note that regulation 29 only applies exclusively to the applicant to the extent of regulation 29(1) and (2).
The mother said that about the time of 21 May 2010 the father vacillated in his statements to the mother about whether he wanted the children to return to Canada or stay in Australia.
The mother denied the father had said to her on 24 May 2010 that he wanted the children to return to Canada. She conceded he said that to her before and after that date. The mother said she did not hear anything further from the father between 24 May 2010 and when he arrived back in Canada in opposition to her and the children returning to Canada to live.
The mother denied the father had asked her for the children’s passports after 24 May 2010. She said he had the passports. She denied she asked him to cash in the return air tickets.
The mother denied she had exaggerated the extent of the father’s drinking.
The mother told me she had a lawyer acting for her in Canada. Her lawyer is participating, on her behalf, in family law proceedings in Canada, which the father had initiated. She will participate in those proceedings in Canada if she returns with the children.
When asked if her father would accompany her to Canada should she and the children have to return she told me “No. He can’t afford it.”
If she returned to Canada she would try to make money.
If the children are required to return the mother will accompany them and remain in Canada with them.
If she returns to Canada she will engage a psychiatrist and a psychologist.
The mother was asked about the offer of the father to provide accommodation for the mother and the children should she return with them to Canada. She said she would prefer to arrange her own accommodation. She would need financial support and the figure proposed as rental support of $1,300 per month by the father was not criticised by her.
If she returned to Canada she confirmed she would seek to re-establish friendships she had created before May 2010 and she would join her church again.
Oral Evidence of the maternal grandfather
The maternal grandfather was cross-examined by Counsel for the Director-General.
He agreed that in April this year he was holidaying in Canada with the mother and father. He denied that he told the father that he was a great son-in- law. He agreed that he had told him that he was proud of his studying and academic achievement. He agreed that in April this year in Canada he had offered to buy the mother a motor vehicle. He confirmed that whilst in Canada this year he had seen the father consuming alcohol every day that he saw him. He agreed that there were some days when he did not see him. He denied that he had left the children in the father’s care when he went to the hospital to see the mother. He said that on each occasion he was driven to the hospital by the father. He agreed that at a meeting at the hospital, which included him, the father, the mother and her psychiatrist, the father had said he was concerned that if the mother and children visited Australia they would not return to Canada. It was put to the maternal grandfather that he said he would guarantee their return. He replied “I said I would guarantee the return if the cycle of violence stopped.” He could not remember his precise words.
The maternal grandfather said that he was aware that the father had to sit for examinations in Canada. He said “He told me he could do a bridge course in Australia.” The maternal grandfather was aware that if the father remained in Canada he would have to do articles. He said that he was aware that when discussing the trip to Canada with the father and the mother’s psychiatrist the father said he would have to return on 29 May 2010. The maternal grandfather said “Later he said [the mother] was to stay as long as it takes.” He denied that he had told the father that he would be in Australia for weeks not months. The maternal grandfather said of the father “I have no doubt that he loves his kids to the extreme.”
The maternal grandfather said that he had been to Canada on three occasions and stayed about a month on each of those occasions. On each occasion he had travelled alone and his wife had stayed in Australia. He was asked “If the mother returned to Canada you would travel to Canada to be with her in the future?” He replied “I would have to. I can’t afford it. I have spent $45,000 of my money on these legal fees.” Later he told me that he had also paid legal fees in Canada and that in total his expense has been $51,000. The maternal grandfather told me that in Australia the father had told him that he did not want to go back to Canada he wanted to stay in Australia. The maternal grandfather said he persuaded the father to return to Canada to complete his exams. The maternal grandfather was asked “Was there an agreement that the mother and children would stay in Australia.” He replied “Yes. With me he said that a break in the relationship it would do them all good. He was going to return, he was going to do his exams and then come back. Three days later he said he would not go back to Canada. I persuaded him to do so.” He was asked whether there was any agreement between the mother and father. He said that as far as he was aware they had never used the word “indefinitely.” They spoke of agreeing to the whole family staying here and the father would come back. The maternal grandfather denied talking to the father about the air travel tickets. He said that on 6 May 2010 the father had talked to him about working in Australia and in particular in Perth as a lawyer. He confirmed that the father had asked him to assist him in finding accommodation in Sydney. He said “He wanted to go to [a Sydney] University.” The maternal grandfather said “the mother and the father were to return to Canada to tie up ends before coming to Australia. Then return to Australia. But the father and the mother were fighting. This is not good for her. The fighting was about me being present at the youngest child’s birth. It was also about the mother posting defamatory material on a facebook page.” He asserted there was no dispute between the mother and father about living in Australia.
I asked the maternal grandfather some questions about how he would travel to Canada if his daughter was required to return. He told me he had a mentally ill wife. She has been mentally ill for 25 years. He tends to her daily. He has paid almost $51,000 for legal fees on behalf of his daughter since the commencement of these proceedings. He did not know how he would live in Canada. The social security is not as good as it is in Australia. He said the mother would get $250 per month. If he would go to Canada it would cost him $500 per week to live there together with airfares. He would only be able to stay for about one month. He does not know how his daughter would survive in Canada in his absence or at all. He made an impassioned plea indicating that he had a very grave concern that her mental illness would progress in Canada to a point where her life was at risk. He would be able to have contact with her by Skype communication three times per week. He does not own his own home, he rents it. He receives a carer’s pension by way of income. Finally he told me “I am concerned by suicide. She would be all alone in Canada and not supported. It is a very cold climate.”
Oral Evidence of Ms V
Ms V (neighbour of the maternal grandfather) was cross-examined by Counsel for the Director-General.
She agreed she and the maternal grandfather are friends. She denied they were extremely close friends.
She agreed that the father had not said to her in December 1999 “I think I’ll come to Australia to finish my degree”. She said “No, he was always going to finish his degree in Canada”.
She agreed the father had talked to her about the fact that he would love to live in Australia. She agreed it was said, in context, about a future event. He did not say when that might be.
Ms V conceded that when the father told her on 27 May 2010 he would be returning to Australia he did not say when that would be. She agreed he had said he hoped to “work out issues with [the mother]”. He also told her he needed to return to Canada to do exams. She said she recalled the father had told her that after he finished his exams he wanted to return to Australia to work things out with the mother.
Ms V agreed that in May 2010 the father had said to her the following:
·“I can’t believe this is happening.”
·“They told me they were coming back to Canada”.
Oral Evidence of Mr J
Mr J was cross-examined by Counsel for the Director-General.
He agreed that he and the maternal grandfather were good friends arising from their being neighbours. He said they did have barbecues together on occasion but did not otherwise socialise.
Mr J recalled seeing the mother on 26 May 2010 “when they arrived”. During the time the father stayed in Australia Mr J saw him about once a week. He thought he had seen him four or five times during that period.
He said that he had a conversation with the father on the day the family arrived from Canada. His partner had picked them up from the airport. He confirmed the father had said to him “I’m here to help [the mother] and the children get settled before going back to Canada. I have some things to sort out before returning to live with my family in Australia.”
He had also had a conversation with the father in May 2010 about “helping him to find accommodation.” Mr J said he had previously worked in real estate in the area.
Mr J used a number of different versions of the conversation he said occurred on 26 May 2010 when the mother, father and children first arrived in Australia. It is common ground between the parties that the mother, father and children arrived in Australia on 12 May 2010.
Mr J said “I know that we did have the conversation on numerous occasions about him mentioning that he was moving to Australia and that he needed help finding accommodation”. He denied the father had told him he had been hired to article in Canada. Nor did he tell him he had a job for when he completed university. He reconfirmed his evidence that the father had told him “[the mother] and I would like to live close to the mother’s parents and the University …”.
Oral Evidence of Ms E
Ms E (neighbour of the maternal grandfather) has not seen the father intoxicated. She did not recall the father ever using the word “abducting the children” when talking to her and in relation to the complaint against the mother. She asserted that the father had told her that he was going to return to Australia after he had been to Canada. It was put to her that she may have forgotten that he had talked to her about the mother abducting the children. She replied “I would remember that.”
Oral Evidence of Dr L
Dr L (the mother’s psychiatrist) provided a document which listed his qualifications and Curriculum Vitae. There is no challenge to his expertise to give the evidence that he has given in these proceedings.
Dr L first saw the mother on 10 June 2010. She had previously attended the medical facility to which he is attached and she had been seen by a colleague on 13 May 2010 and again on 18 May 2010. Dr L saw the mother again on 22 July 2010 and 27 August 2010. As part of the consultations with the mother Dr L also spoke to the mother’s father, the maternal grandfather.
Dr L was asked for his opinion on the impact on the mother’s mental health if required to return to Canada with the children. He said that she would be going to a situation where she has no family and no supports. No source of income, no home, no car and where there will be significant financial pressures. She will also have to deal with an estranged husband who she describes as being verbally and emotionally abusive.
Dr L told me: “I think the nature of [the mother’s] condition is that it has been precipitated on all three occasions by either significant psychological or physiological stress. The list of stressors would be those I have just described were she to go to Canada. I think it would pose a significant psychological stress for her and rationally put her at risk of relapse.”
Dr L told me it is difficult to quantify the degree of risk, that is, is it high or low. He said: “The nature of the illness is that she almost certainly will experience relapses in the future so we are not able to quantify, necessarily, how much extra risk there would be, but I would imagine, in broad terms, perhaps a doubling of the risk in the initial 6 to 12 months that she would be back in Canada.”
Dr L also said: “The more worrying possibility is that those stressors would lead to a major depressive episode, which is the depressed stage of her bi-polar illness and the consequent harm that can do to the relationship between [the mother] and her children and the psychological distress it would create for her.”
Dr L was asked to describe what symptoms she might be expected to suffer and what the consequences for the mother might be should she suffer a major depressive episode. He replied: “The main symptoms are of a pervasively depressed mood. By that I mean a depressed mood most of the time. A loss of interest or pleasure in any of her usual activities. Feelings of hopelessness or helplessness, feeling of guilt, sleep disturbance, appetite disturbance and possible low energy and impaired motivation and concentration…Suicide is always a risk in depression and the risk of suicide in someone who has a depressive or bi-polar is in the order of 10% which compares to the general population, where the risk is something like 20 per 100,000.”
Dr L said that in a person suffering from a major depressive episode the risk of suicide is increased and becomes “much more likely.”
Were the mother to suffer a major depressive episode and were it to be of some duration (several months) it is possible there would be damage to the mother-child relationship as she would not be emotionally available to her children during that time.
Dr L was asked for his opinion about the likelihood of a recurrence of psychotic episodes in the mother. He said “I believe the episodes that have been described as ‘psychotic’ have, in fact, been manic episodes, of the manic phase of a bipolar illness…broadly speaking, I estimate that the risk of a relapse of that would be probably double, given all those stressors in the first 6 to 12 months back in Canada.” He spoke of “Double the usual rate of relapse.” Dr L said “the mother is already in a category of persons who would be expected to suffer a relapse in her condition at the rate of 50% to 70% every two years.” He thought that the chances of the mother having a major depressive episode in the next 6 to 12 months would be in the order of 5% to 10% if she remained in Australia. It would be double that if she was to return to Canada.
Dr L was cross-examined by Counsel for the Director-General.
Dr L conceded that a stressor for the mother would have been living with the father who she considered verbally and emotionally abusive. Dr L was asked whether in assessing the likelihood of the mother to suffer a depressive episode in the future it was necessary to consider whether she had suffered a depressive episode in the past. He said “Yes and no. It is, but the reason the condition is called bi-polar, even though she has only experienced one pole of the illness, is that it is inevitable, at some stage she is going to suffer the other pole, i.e., depression.” He then added “The other proviso I would have to your assertion is that I think the stressors would be greater were she to return, because she would be alone rather than living in a family home with a husband, for all of his shortcomings, and nevertheless providing…economic support.”
Dr L was asked about his report contained in a letter dated 1 September 2010. In that report the following appeared:
It is for these reasons that she chose to, effectively, separate them from him by remaining in Australia.
He confirmed that she had told him that. He said there was some corroboration from her father for that fact.
Dr L confirmed that he had prescribed medication for the mother and that medication was now supervised by her General Practitioner. He had last seen her on 23 November 2010.
Dr L agreed that participation for the mother in these legal proceedings is a potential stressor.
Dr L was asked to assume that the father did not suffer in the way the mother had alleged and that he was a good and viable parent. It was put to the doctor that in those circumstances it would be of assistance to the children to have a viable parent nearby should the mother suffer from a major depressive episode or relapse. Dr L said that might be the case but he was not in a position to say that the father was an available and suitable parent. He was also concerned about the impact on the youngest child who has had virtually no ability to develop a relationship with his father since his birth.
Dr L was asked whether he was confident that the mother would continue to comply with medical advice. He said he was, however, “[the mother] had raised a concern that were she to be in Canada she would not be able to afford the medication that she has been prescribed.” Dr L said he had no detailed knowledge of the medical system in Canada, however, he did have some awareness of the situation in North America, both the USA and Canada.
Dr L said “If the mother is the primary carer for the children she would therefore have quite a degree of difficulty working at this point in time.” This related to the income and financial support which she may be able to access in Canada. The mother had told Dr L that she had worked in caring for children in the home and would receive $40 per child. She thought that to earn a viable wage she would need to look after four or five children each day in addition to her own children.
Dr L was asked “If it were the case that she was returning to a home which would be financially supported in the short-term by her in-laws, had friends in Canada, a church in Canada, access to social security in a sum greater than she’s represented to you ($60 per week), a capacity to work – that changes the picture that she put to you about the stress factors, doesn’t it?” Dr L answered “Yes, it does. It doesn’t take away the stress, however, of leaving one’s home and own family and long term friends and support to go to somewhere that is not one’s home and where there may be a conflicted relationship with another person.” (I note I do not have evidence of the amount of social security payment the mother would be entitled to in Canada were she to be living there with the two children.)
It was then put to Dr L “But it makes it more in the order of a preference, doesn’t it? It would be preferable for [the mother] to live in Australia?” Dr L answered “I agree. It would be preferable, but also I think, in terms of her psychological health and psychiatric health, it would be preferable to be in Australia. I mean, one could make a similar argument for her estranged husband to leave his home and come to Australia, particularly as he doesn’t appear to suffer from a mental illness as such. And, in fact, he has greater resources, considering he’s completing training as a lawyer.”
Dr L said that he will be reviewing the mother’s health three monthly.
Should the mother be required to return to Canada Dr L would be prepared to liaise with any psychiatrist engaged by her and forward any records required.
Oral Evidence of Ms D
The Curriculum Vitae of Ms D (the mother’s psychologist) was tendered and became exhibit “M2”.
Ms D said that she had spoken to the maternal grandmother two or three times, and that she had spoken to the maternal grandfather two times officially and at least once unofficially (an official conversation occurs when the psychologist actively obtains history to assist in the care of her patient).
Ms D was asked why she thought that the winter temperature in Canada would have an impact upon the mother’s health. She said that it was not necessarily the temperature; but rather, the cold and dark which create a sense of isolation. She said that the mother had said to her that the mother felt isolated; that she could not go out; and, that she felt trapped in the winter in Canada.
Ms D said that she had seen the mother professionally on five occasions and had three phone consultations with her. There had been some other incidental contact between them. She said that the first meeting between them was on 9 July 2010 and that she last saw the mother on 3 November 2010.
Ms D was cross-examined by Counsel for the Director-General.
Ms D confirmed that she has been in private practice since July 2009 and that she does not hold qualification as a clinical psychologist.
Ms D confirmed that, when she spoke to the mother on 9 July 2010, the mother was not clinically depressed. She considered that the mother suffered stress as a consequence of being involved in the Court proceedings. She confirmed that, at this time, she would say the mother is fully diagnosed, treated and stabilised.
Ms D said that she had spoken to the mother about her attending upon a psychologist in Canada should she return to that country.
Ms D confirmed that she does not have personal knowledge of public transport available in Canada; social security benefits in Canada; nor, medical services which might be available to the mother in Canada.
Ms D confirmed that she was of the opinion that the Canadian weather is a potential trigger to depression for the mother. She described this type of depression as “seasonal affective disorder”. She said that, if the mother developed depression in Canada not associated with the weather, she could be assisted by a psychologist.
Ms D said that she was able to give the opinion that the chances of the mother having a relapse in Australia are low because the mother has treatment and support available to her in Australia. She said that the mother has available to her in Australia: social support; family support; the right medication and a psychiatrist who she trusts; a General Practitioner with whom she has a good working relationship; a psychologist; exercise and good food. She said that: “All these kinds of different aspects that are important to her health and wellbeing are being met currently in Australia”.
Ms D said that the mother does not have those supports in place in Canada at the moment. She could not say that the mother could not develop those. She said that the mother had told her that she did not have a very good working relationship with her treating professionals in Canada.
Ms D confirmed that the mother provided a history of not suffering from stress generated mania for 10 years. This is notwithstanding that the mother has spoken of stress related incidents in both Australia and Canada in those 10 years.
Ms D told the Court that her opinion was that the mother’s chances of a relapse were increased if she returned to Canada. She could not say by how much they would be increased. She considered that, should the mother suffer a relapse, she would most likely suffer clinical depression.
The Relevant Law in Relation to and Determination of the First Issue
The Determination of the Second and the Third Issues
Whether the Father Had Consented to the Children Being Retained in Australia
The parties made submissions both orally and in writing.
The mother submitted that the evidence established both directly and inferentially that the father had given his consent to the children remaining in Australia with her indefinitely. The applicant submitted the case was not established on the evidence.
I do not accept the denial by the father of any promise to the mother to move to Australia to live after completing his law degree in Canada. I am satisfied that the parties had agreed over a period of years, to move to live in Australia after the father had finished his law degree. That time may have been extended by either agreement or innuendo to include the compulsory article period required in Canada.
There are a number of inconsistencies in the mother’s evidence relating to the issue of whether the father gave consent to the children remaining in Australia permanently. Most of the inconsistencies arise in the mother’s oral evidence.
I am satisfied that there was only one conversation which could have given rise to the mother’s belief that the father had consented to she and the children remaining in Australia while he went back to Canada to sit for his exams and “tidy things up” before returning to Australia to obtain employment and participate in the lives of his children. That conversation occurred on 24 May 2010. The mother conceded that while in Australia both before and after 24 May 2010 the father told her he did not agree to the children remaining in Australia permanently.
Other evidence from the mother and her witnesses suggest disharmony between the mother and father, fairly consistently over the period of time the father was in Australia in May this year. It may be that something was said by the father to the mother on 24 May 2010 to make her think he had given his consent. It may be that he did say he would consent; however, my concern is that if it was said it was said as part of a quarrel between them and could not therefore fulfil the requirement of having given real consent. In those circumstances it may have been, for example, that the father saw he had no choice.
Although there are statements attributed to the father by the mother’s witnesses which suggest the father understood the children were remaining in Australia there is no clear evidence that the father had given his consent freely to such a circumstance.
It is the aspect of giving consent freely which troubles me in this case. If I assume that the father did say something to the mother on the 24 May 2010 which an objective and impartial bystander, overhearing the conversation, would take to be consent by the father to the mother and children remaining in Australia permanently, then the question which still needs to be established is whether that consent, prima face at least, was given freely and unequivocally.
It seems to me, having referred to the authorities quoted above, that as a general guideline, if a parent (or person) who is exercising rights of custody to a relevant child, considers (on good and objectively assessed facts) there is no choice to be made because of the particular circumstances, or such a parent, or person, considers that they are not free to exercise a real choice between agreeing to or not agreeing to a permanent change to a child’s country (place) of habitual residence, then an alleged agreement to a change to that habitual residence (as alleged by a respondent to an application under regulation 14) would not constitute the type of consent envisaged by regulation 16(3)(a)(ii). Clearly the facts of each case need to be assessed separately from the application of a general principal.
I do not conclude that the evidence, taken as a whole, would support a conclusion based on the balance of probabilities, that the father gave a relevant and acceptable consent on 24 May 2010 or at any other relevant time, to the children remaining permanently in Australia.
I am unable to be satisfied that there is clear and unequivocal evidence of acceptable consent being given by the father.
Whether There is a Grave Risk that the Return of the Children under the Convention Would Expose the Children to Physical or Psychological Harm or Otherwise Place the Children in an Intolerable Situation
The submissions of the parties are referred to in the reasons appearing below. In addition the matters I noted from the applicants submissions include the following:
The parties made submissions both orally and in writing.
One of the most significant facts in this case, so far as I am concerned, is that the youngest child is just 8 months of age with virtually no experience of the father and very little experience of his mother suffering an episode of psychosis. The child must be considered bonded to and dependant upon the mother. In my view that child is extremely vulnerable, given his age, to the consequences of his mother suffering depression or psychosis in the manner described by Dr L. Should the mother suffer from the depressive phase of her bi-polar condition and that phase not be brought under control quickly then the children’s relationship with their mother could be significantly affected (damaged) as described by Dr L. Clearly, circumstances which led to the demise of the mother through suicide would be catastrophic for the children. In this case the evidence is that the mother’s statistical chance of suffering that fate is significantly higher than another member of our community who does not suffer from mental illness in the same manner as the mother.
The evidence of the mother’s psychologist (Ms D) is summarised in these reasons. I accept that evidence. In particular I accept her opinion that the chances of the mother relapsing in Australia in her current circumstances were low. Those circumstances contrast with those the mother will face in Canada. She pointed out that in Australia the mother has social and family supports. She has access to the right medication which is affordable. She has a psychiatrist who she trusts. She has a good working relationship with her General Practitioner. She has a psychologist. She has exercise and she is eating well. She has availability of good food. The mother had told her she did not have a very good working relationship with treating professionals in Canada.
Ms D told the Court that her opinion was that the mother’s chances of relapse were increased if she returned to Canada.
The evidence from Dr L is that the mother faces a 50% to 70% prospect of a re-occurrence of her mental illness in the next two years if she remained in Australia. If she returned to Canada that prospect doubles. That evidence, which I accept, moves the case to one where the Court is considering the re-occurrence to a probability rather than a possibility. The applicant submitted that not withstanding that prediction there has been no re-occurrence of the illness and she has never suffered a major depressive event. Although being diagnosed as bi-polar she has only experienced manic episodes.
It is true that the mother has not suffered another episode of her mental illness, however, she is at her least vulnerable in her current circumstances. She is living with her parents and has the full time support of her father. Her father has been a very significant rescuer for the mother whenever she has suffered mental illness episodes in the past. She has a psychiatrist and psychologist with whom she has developed a trusting and confident relationship. She is complying with her medical advice and taking all medication prescribed for her. Although she is participating in this litigation her position is that she can have some hope that the children will not be required to return to Canada. Thus her stress levels might not be as high as she would experience if she felt it unlikely she would be permitted, by the Canadian Courts, to return to Australia with the children.
To return her to Canada I find will place the mother at her most vulnerable to relapse in her condition. She will probably not have her father available to support her. I accept his financial position is that he will not be able to travel to Canada to be with the mother unless he receives financial assistance from some source. I also accept that he could not stay in Canada for any length of time to support the mother through the litigation which she will face in that country. I have no evidence to tell me how long it might take the Courts in Canada to finally determine the parenting disputes between the parties including whether the mother and children can live in Australia.
Dr L told me that there is a significantly elevated prospect of suicide for the mother. He said there was a 10% chance of that event. In the general community in Australia the rate of suicide is 20 in every 100,000 people. I have no evidence of the community rate in Canada.
The applicant submits that the mother’s risk of suicide will be the same in Canada as it is in Australia. I do not know that. There may be other factors associated with the climate extremes suffered in Canada that affect that risk by elevating it.
There can be no graver event for a child than the death of a parent. This is likely to be even greater for very young children who appear to be primarily bonded to their mother.
It is my conclusion that the risk for the children of their mother suffering a major mental illness in Canada, if she is effectively forced to return with the children, is so great that it establishes a grave risk that they would be exposed to psychological harm and an intolerable circumstance.
The mother’s state of health upon return to Canada is not the only risk these children face. At this time the mother has no immediate accommodation, longer term suitable housing for herself and the children, financial support or family support in Canada. She returns to a situation she has not experienced before namely living as a single mother, having to care for two small children with limited financial support and facing litigation with an estranged husband. It has been suggested by the applicant and the father that the mother could support herself by caring for a number of other people’s children during the day. The mother told Dr L she would have to care for 4 or 5 additional children each day to make a viable income to support herself and the children. I have real doubts about her ability to do so in the circumstances she would find herself. I also have doubts about the willingness of parents to entrust children to the mother given her recent mental illness. I have no reliable evidence as to the amount of social security or ongoing spouse and child support she would be able to access. She would need to be able to support herself and the children at a level not substantially less than that experienced prior to the travel to Australia.
I do have evidence, from the father, that his family will provide him with funds to provide rental funds for the mother for three months rental. Assuming I could order that, as a condition precedent to the return of the children to Canada, the father was to deposit to the mother’s Canadian lawyers’ trust account, enough funds to cover three months rent of $1,300 per month together with the amount of any bond and initial expenses such as connection of power and phone services, then it is clear the father has no capacity to meet that condition otherwise than through his parents’ largess. Assuming the Canadian Courts have similar Family Law powers to those in Australia I cannot see how an order could be made against the father’s parents to require them to continue funding the mother’s rent until the Court in Canada finally determines the parenting issues. The same is true of the provision of financial support for the mother and the children should the social security benefits be inadequate for that purpose.
I accept that it would be possible, in relation to some of the circumstances which I determine would create a grave risk for the children, such as the provision of housing, financial support and, if necessary the provision of funding to cover the cost of the mother’s father travelling to Canada and staying with the mother for three months, to be remedied by the making of conditions to be fulfilled prior to the children’s departure. The making of such conditions would not remedy the situation entirely for the children.
I also have to take into account, in assessing the likelihood the father will shoulder his responsibilities to the children in a proper and acceptable fashion, that, notwithstanding his separation from the mother and the children since 29 May 2010 (now six months), he has made no contribution towards their financial support. This would give me little confidence that he would make good the promises he made in his oral evidence to assist the mother both financially and otherwise. It might be said that the Court could order the payment of funds by the father to the mother, however, should the father fail to make the payments then the mother would be required to take whatever steps were necessary to enforce such an order, placing her under further stress both emotional and financial.
How long will it be before the Canadian Courts can finally determine the parenting disputes? I accept that the Courts may be able to determine interim arrangements within a period of three months of the mother’s return, however, it is unlikely the Court would order the mother and children be permitted to live in Australia as an interim order. It is the ability for the mother to live close to her family support and medical and social services in which she has confidence which Dr L and Ms D consider most important to her continued good health. I accept that the maternal grandfather will be unable to remain in Canada to care for and support his daughter much longer than 4 to 6 weeks. He has responsibility to care for his wife who has suffered from mental illness for 25 years.
The Court being satisfied that a defence is made out does not end the Court’s obligation under the Regulation 16. The regulation provides that “A Court may refuse to make an order.” As such the Court needs to consider whether the discretion to refuse to make the order for return (thereby dismissing the application) should be exercised.
In the decision of State Central Authority v Perkis [2010] FamCA 649 Bennett J reviewed the authorities relating to the exercise of discretion as follows:
Turning to the exercise of the discretion, Kay J in State Central Authority and DB [2002] FamCA 804, His Honour, in my view, correctly summarised the relevant law in relation to the exercise of the discretion to refuse an order for return as follows:-
33.The existence of the Regulation 16(3) defence means that the Court may refuse to order the return of the child under the Convention. This raises the question of the exercise of a discretion. The Regulation offers no express terms as to how that discretion may be exercised. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640; FLC 92-706; 20 Fam LR 390 at CLR 661; FLC 83,456; Fam LR 403:
“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 [ Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.”
In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:
“(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”
34.Her Ladyship said:
“56.As to (f), the policy of the Hague Convention undoubtedly weighs heavily in respect of the children's objections. In my view, expressed in Re HB (Abduction: Children's Objections) [1997] 1 FLR 392, it weighs particularly heavily in those cases where children come to visit a parent living here and wish to remain: unless their objections are very cogent indeed, they should return to their primary carer for the dispute about a change in primary care to be settled in their home country. It weighs rather less heavily when the children wish to remain with their primary carer, particularly where, as here, the child has had no contact with the other parent for such a long time…”
35.Arden LJ said of the exercise of discretion in the TB case that as the majority were sending the younger children back and that the mother would follow, notwithstanding the wishes of the elder child, the interests of the child dictated that she be forced back as well.
“107However K is entitled to separate exception under Article 13 by reason of the fact that she is able to express her wishes and objects to return. She is now fourteen and a half years old. … It is important that her wishes should be respected so far as possible but on the other hand since her brothers are to return, the Court should consider whether it is right to respect those wishes in those circumstances. More importantly she is close to her brothers and her mother. She has been a source of strength to her mother in the past. Her mother says that at times she does not know how she could cope without K. In my judgment, the likelihood is that her mother will return to New Zealand with A and KI. In those circumstances, despite some dislocation in her education, it is in K's best interest to return also. In so concluding, I reach the same conclusion as Hale J (as she then was) reached on the facts of the case in Re: HB (Abduction: Children's Objections) [1997] l FLR 392, referred to with approval on appeal allowed on another point [1998] 1 FLR 422). Other factors include the fact that she has grown up in New Zealand and has the benefit of her mother's extended family there. Having considered those matters, in my view, in the exercise of discretion effect should not be given to K's wishes and she too should be ordered to return…”.
36.In HZ v State Central Authority [2006] FamCA 466, the Full Court comprising Kay, Coleman and Warnick JJ endorsed the above passage by Kay J in State Central Authority and DB as being the appropriate approach to be taken on the issue of the exercise of discretion to refuse to return a child to its country of habitual residence.
Looking then at the matters referred to as “suggested considerations” by Hale LJ (as specified above) I determine as follows.
Canada would be a suitable forum to determine the parenting disputes in relation to the children, all things being equal. Australia is also a suitable forum for that determination. Given that the mother and children are in Australia and that the father holds an Australian residency visa the Australian forum is probably to be preferred.
It is difficult to anticipate the likely outcome of the substantive proceeding. Each of the parties apparently has the capacities to live and work in either country. If the Court determining the dispute accepts the type of evidence provided by Dr L and is satisfied the father could live and work in Australia I consider the scales would tip slightly in favour of the mother’s case to live in Australia close to her most important support, namely her father.
The situation which will await the mother and children returning to Canada has been described by Dr L in so far as that situation poses a stress to the mother and thereby increases the prospect of a major depressive illness or the onset of psychosis. I have accepted that the mother will face very substantial levels of stress and that in that circumstance she could only have the support of her father for 4 to 6 weeks.
The emotional impact upon the children of return to Canada is directly connected to the emotional impact upon the mother. If she is adversely affected then so will they be. So far as K is concerned I would accept that he would welcome further association with his father and probably his father’s family. The 8 month old second child of the parents is unlikely to know the father or his family. Contact with them therefore may be traumatic for him if it means separation from his mother. No professional assessment of that circumstance is available in this case.
In my view the underlying philosophy of the convention would not be frustrated by a refusal to return children in this circumstance. The only reason for refusal to return is ultimately the probable catastrophic impact upon the children’s welfare. The High Court said in De L v Director-General, NSW Department of Community Services (NSW) [1996] 187 CLR 640 “the welfare of the child is properly to be taken into consideration in exercising that discretion.”
I am aware that conditions can be imposed to the effect that the circumstances which convince the Court it is appropriate to find that the defence set out in regulation 16(3)(a)(ii) has been established, can be counteracted by the imposition of conditions. Thus, in this case, conditions to be satisfied prior to the return of the children and mother to Canada, would include the payment of funds by the father to the mother’s lawyers in Canada to cover a bond and commencement costs of renting suitable accommodation together with three months rental, the provision of financial support for the same period, the payment of airfares for the mother, the children and a return airfare for the mother’s father, the provision of a fund of $3,000 Canadian to cover financial support for the maternal grandfather for 6 weeks stay in Canada. The discharge of the interim ex-parte orders obtained by the father in the Canadian Courts, as previously referred to.
On the last occasion the parties were before the Court I discussed with them the possibility of having to hear further submissions and receive evidence in relation to the imposition of those conditions. Such conditions are not to be made in circumstances where they are simply too numerous or onerous. If it is the case that there are to be numerous and/or onerous conditions to be imposed then the Court should consider whether the conditions should be imposed at all.
In this case the imposing of conditions would be numerous and onerous on the father. However, given that the father has volunteered that he could satisfy many of the conditions which were raised with him in his oral evidence I would not consider that conditions ought not to be required. The fact which compels against the making of any conditions is that the most important requirement to remove the aspect of “grave risk” to the children should they be required to return to Canada cannot be remedied by a condition. That is for the mother to avoid the risk of doubling her chances of experiencing severe depression, depression, or psychosis she needs to remain in Australia living close to her father and medical supports which she has established here and in which she has confidence.
The consequence of the above is that I do not consider it possible to impose conditions which would remedy the grave risks anticipated to attend the children’s psychological health should they be required to be returned to Canada at this time.
The Reasons for the Delay in the Determination of the Matter
Another aspect of this case which needs to be addressed is the length of time that has been devoted to its hearing. Due to the requirement of the mother to cross-examine the father (no criticism intended), it became necessary for the Director-General to cross-examine all of the mother’s witnesses including the mother herself. Once a challenge is made to the evidence of a crucial witness of the applicant, then the applicant is compelled to cross-examine the respondent’s witnesses who attest to the same issue.
In this case, the mother asserts that the father had consented to the retention of the children in Australia. The father denies that assertion and argues that the mother abducted the children. The outcome of the case to a great extent depends upon the Court accepting one version of facts over the other.
If the father is cross-examined on the issue of consent, and the mother and her witnesses are not, then the mother’s Counsel will submit, at the conclusion of the case, that the Court should prefer the unchallenged evidence of the mother to that of the tested and challenged evidence of the father. This will, in many cases, probably be a significant factor in the Court accepting one version of fact in preference to another.
In the extract from the case of LK quoted above, reference was made to the principles and objects of the Convention as follows:
that the appropriate forum for resolving disputes between parents relating to a child's care, welfare and development is ordinarily the child's country of habitual residence
It now seems clear that the conduct of proceedings under the Regulations bears little resemblance to that of a conventional dispute as to forum. If cross-examination of witnesses is to become common place in proceedings under the Regulations, then the ability of Courts to hear and determine such cases within the time required by the Regulations, and at the same time attend to other work, will be improbable.
The Orders to be Made
Given the reasons stated herein, I propose to dismiss the application filed by the Director-General on 20 July 2010.
I certify that the preceding two hundred and eighty-three (283) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 10 December 2010
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