GAMBLE & DEPARTMENT OF COMMUNITY SERVICES - [2006] FamCA 1401

FAMILY COURT OF AUSTRALIA

GAMBLE & DEPARTMENT OF COMMUNITY SERVICES

[2006] FamCA 1401

APPEAL – CHILD ABDUCTION – Hague Convention – Ten year old child brought to Australia by his mother from the Republic of South Africa and retained in this country – Trial Judge ordered return of the child subject to some conditions – further evidence admitted on appeal that the child refused to accompany his father back to South Africa – Child was visibly upset and distressed – Appropriate to remit back to trial Judge for further consideration in light of this evidence – Discussion of a possible amendment needed to Regulation 19A of the Family Law (Child Abduction Convention) Regulations1986 to enable application to be brought without the necessity of an appeal- Remitted back to trial Judge for further hearing.

Family Law Act1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Family Law Rules2004

APPELLANT:

S GAMBLE

RESPONDENT:

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

FILE NUMBER:

SYF

2978

2006

APPEAL NUMBER:

103

2006

DATE DELIVERED:

5 DECEMBER 2006

PLACE DELIVERED:

Sydney

JUDGMENT OF:

KAY, WARNICK & BOLAND JJ

HEARING DATE:

5 DECEMBER 2006

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 AUGUST 2006

LOWER COURT MNC:

[2006] FamCA 817

REPRESENTATION

COUNSEL FOR THE APPELLANT:

MR HILL

SOLICITORS FOR THE APPELLANT:

STUART & MILLS

COUNSEL FOR THE RESPONDENT:

MS HARSTEIN

SOLICITORS FOR THE RESPONDENT:

LEGAL SERVICES UNIT, DEPARTMENT OF COMMUNITY SERVICES

Orders

(1) The appeal be allowed in part;
(2)The matter be remitted for further hearing by O'Ryan J to determine whether, in light of the child's apparent refusal to accompany his father to South Africa in September 2006, it is now appropriate to discharge or vary the orders made 29 August 2006 and 15 September 2006 for the return of the child;
(3)The matter be listed for a directions hearing before O'Ryan J on 14 December 2006 at 9.30 am to include consideration of the appointment of an independent children's lawyer and the preparation of a further family report;
(4)The appeal be otherwise dismissed.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 103 of 2006
File Number: SYF 2978 of 2006

S GAMBLE

Appellant

And

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT

Kay J

In this matter, on 29 August 2006, O'Ryan J ordered that the Director General of the Department of Community Services as the New South Wales State Central Authority make all such arrangements as were necessary to ensure that the child, J, born in April 1996 was forthwith returned to the Republic of South Africa, pursuant to the provision of the Hague Convention on the Civil Aspects of International Child Abduction.
The return was subject to another order that the father was to do all acts and things to ensure that upon the return of the child to the Republic of South Africa, there was in place in the Republic on an interim basis, without admission by the father, a protection order in favour of the mother pursuant to the provisions of the Domestic Violence Act of that country.
There were further orders made on 15 September 2006 relating to the mechanics of the proposed handover of J to the father so that the child could be returned to South Africa.
J is the youngest of three children born to Mr and Mrs Gamble . The older two are now adults. One lives with his father and the other with her mother. The parents lived in South Africa from the time of the marriage, January 1981, until January 2006, save for a period from 1986 to 1989 when they lived in Australia.
The parents separated in February 2005 and, thereafter, there was a significant amount of litigation between them in South Africa involving issues of maintenance, custody, access, child support and personal protection.
J was brought to Australia by his mother in January 2006 ostensibly to visit his maternal grandmother. The trip was supposed to last three weeks. The mother did not return J to South Africa at the end of that period and has remained in Australia with J ever since.
The mother accepted that there had been a wrongful retention of the child in Australia but sought to rely upon the defences set out in reg 16 of the Family Law( Child Abduction Convention) Regulations 1986 (Cth), and in particular, she asserted there was a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation. She further asserted the child objected to being returned and the child's objection showed a strength of feeling beyond the mere expression of a preference or of an ordinary wish and the child had attained an age and degree of maturity of which it was appropriate to take account of his views.
The trial judge rejected the defences and concluded that it was appropriate to make an order for the return of the child. His Honour said that even if he had been satisfied that one of the reg 16 defences had been established he would still have exercised his discretion in favour of making an order for the return of the child so that the matters of custody could be dealt with by the courts in South Africa.
His Honour noted that there were already proceedings on foot in South Africa that had not yet been finalised, and the mother was able to seek, in that country, relief in relation to financial and personal protection issues.
It is now common ground that the father came to Australia in September 2006 to collect the child. J was taken by the mother on 19 September 2006 to the Department of Community Services, Eastern Sydney Community Service Centre, where he made it clearly known that he did not want to return to South Africa. He was seen by child protection caseworkers to be visibly upset and distressed as attempts were made to return him to his father.
After one and a quarter hours, during which attempts were made to persuade to cooperate with his return to South Africa, it became apparent that the child was incapable of being convinced, and an agreement was then reached that J could return home with his mother that morning, but would be expected to have contact with his father over the ensuing days.
Ms G, a DOCS casework manager, deposed that J was kicking the wall and punching furniture at the handover had said, "Let me talk to the Judge, I'll talk to the Judge. The Judge did not talk to me." She said to J, prior to him leaving the centre, words to the effect,
“[J], you can leave this morning with your mother. But this does not mean you do not have to return to South Africa. Even after the Judge listens to have you have to say, the Judge can still decide that you have to go back to South Africa”. If the Judge decides again that you have to go back, I want none of this type of behaviour, you just have to go. Do you understand?"
J said: "Yes, I'll go".
The father spent several hours with J on Thursday, Friday, and Saturday, 21, 22, and 23 September 2006. The father then left Australia without the child and returned to South Africa.
Each party included in the Appeal Books applications to lead further evidence of the events that occurred after the orders were made. At the commencement of the appeal we indicated that we felt it inevitable that we would allow sufficient parts of that evidence to be led that included the non contentious matters described above, namely, the presence of the father and the significant reluctance of the child to return with him.
Whilst we note that the mother has sought to rely upon a report prepared by Dr B, Clinical Psychologist, on 20 October 2006, we have declined to admit that document into further evidence at this stage. The Family Law (Child Abduction Convention) Regulations provide in reg 26, for the preparation of a report by a family consultant. We also note the provisions of Part 15.5 of the Family Law Rules2004 on the presentation of expert evidence, and in particular, the desirability of the appointment of a single expert witness by all parties concerned in the proceedings. We note that Dr B was not retained by all of the parties, but was retained on behalf of the mother.
In light of the subsequent events, we are of the view, that it is now appropriate that the matter be reconsidered by the trial judge to determine whether or not the evidence now discloses that the earlier order for the return of the child should be set aside on the basis of the child's objection to being returned in accordance with the provisions of reg 16(3)(c) of the Regulations.
It also needs to be considered that if the defence is successfully invoked, it may still be appropriate, having regard to the Court's residual discretion to order a return of the child. We note that this proposed course is one to which both parties of the appeal have given their consent.
In the course of hearing this appeal, we drew attention to reg 19A of the Family Law (Child Abduction Convention) Regulations. We note, in passing, that an amendment to reg 19A seems appropriate. That regulation provides (emphasis added):
19A     Discharge of return order
(1)      If a court makes an order under this Part for the return of a child (a return order), the responsible Central Authority or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.
(2)      The court must not make an order discharging a return order, or a part of a return order, unless it is satisfied of all of the following:
(a)all the parties consent to the return order being discharged;
(b)      since the return order was made, circumstances have arisen that make it impractical for the order to be carried out;
(c)exceptional circumstances exist that justify the return order being discharged;
(d)      the day on which the application for the discharge of the return order was made is more than 2 years after the return order was made or any appeal in relation to the return order was determined.
We can see no apparent reason why the regulation requires all four conditions to be met before an application can be made to a judge sitting at first instance to discharge a return order. The regulation would have been the appropriate vehicle to deal with the circumstances that had presented themselves here had it read “any of the following”, rather than “all of the following”.
We would now envisage that this matter should be returned to O'Ryan J for further consideration. His Honour has indicated he is available to make some directions in the matter on 14 December at 9.30 am. We would envisage that those directions would give consideration to the appointment of an independent child's lawyer for the child and for the preparation of a further family report. While s 68L(3) of the Family Law Act 1975 (Cth) provides in proceedings arising under the regulations made for the purposes of s 111B, the court may order the child's interests in the proceedings be independently represented by a lawyer only if the court considers there are exceptional circumstances that justify it in so doing and that it must specify those circumstances in making the order, given the strong expressions of the child and the promises held out to him by the case worker, O'Ryan J may find that this would be an appropriate case to fit within the exception outlined in that section.
The orders of the Court are:
(1) The appeal be allowed in part;
(2)The matter be remitted for further hearing by O'Ryan J to determine whether, in light of the child's apparent refusal to accompany his father to South Africa in September 2006, it is now appropriate to discharge or vary the orders made 29 August 2006 and 15 September 2006 for the return of the child;
(3)The matter be listed for a directions hearing before O'Ryan J on 14 December 2006 at 9.30 am to include consideration of the appointment of an independent children's lawyer and the preparation of a further family report;
(4)The appeal be otherwise dismissed.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate:

Date: 20 December 2006