Harries v Harries
[2011] FamCAFC 113
•24 May 2011
FAMILY COURT OF AUSTRALIA
| HARRIES & HARRIES | [2011] FamCAFC 113 |
| FAMILY LAW - APPEAL – CHILD ABDUCTION - Was it correct for the trial judge to find that there is a grave risk that the return of the children to Canada would expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of the Regulations – Was the trial judge correct in exercising the discretion to decline making an order for return of the children to Canada – Was the father denied procedural fairness by the trial judge allowing additional medical evidence to be admitted into evidence during the course of the trial without the father having a reasonable opportunity to obtain some medical evidence in response – Was the trial judge in error for not giving reasons for admitting the additional evidence |
| Convention on Civil Aspects of International Child Abduction Family Law Act 1975 (Cth) – s 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) – r 2(2), r 14(1), r 15(1), r 16(1), r 16(1A), r 16(3) |
| Bennett and Bennett (1991) FLC 92-191 Harris & Harris (2010) FLC 93-454 |
| APPELLANT: | Mr Harries |
| RESPONDENT: | Mrs Harries |
| FILE NUMBER: | SYC | 4565 | of | 2010 |
| APPEAL NUMBER: | EA | 6 | of | 2011 |
| DATE DELIVERED: | 24 May 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Johnston JJ |
| HEARING DATE: | 17 March 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 December 2010 |
| LOWER COURT MNC: | [2010] FamCA 1129 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lloyd, SC & Ms Gillies |
| SOLICITOR FOR THE APPELLANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Livingstone |
| SOLICITOR FOR THE RESPONDENT: | Watson & Watson Solicitors |
Orders
The appeal be dismissed.
The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:
(a) On behalf of the respondent within 21 days of the date hereof;
(b)On behalf of the appellant within 21 days thereafter;
(c)On behalf of the respondent in reply within seven days thereafter, and;
(d)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment under the pseudonym Harries & Harries is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EA 6 of 2011
File Number: SYC 4565 of 2010
| Mr Harries |
Appellant
And
| Mrs Harries |
Respondent
REASONS FOR JUDGMENT
Introduction
On 2 December 2010 Le Poer Trench J completed the hearing of an application by the Director-General, Department of Human Services, Community Services, as the New South Wales Central Authority (“the Central Authority”), for an order for the return to Canada of two young children, the child K, now 3½ years of age and the child C, now 13 months of age, pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).
His Honour delivered Reasons for Judgment on 10 December 2010 declining to make the order for return, on the basis that he was satisfied that there is a grave risk that the return of the children to Canada would expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of the Regulations. Accordingly, his Honour made an order dismissing the application.
From this order the father appeals. The mother resists the appeal. Correctly in our view, having regard to the amendment in 2007 of sub-regulation 14(2) of the Regulations and the terms of s 94 of the Act, learned counsel for the mother does not oppose the father’s standing to bring this appeal.
A similar situation presented before the Full Court (Bryant CJ, Finn & Boland JJ) in the recent case of Harris & Harris (2010) FLC 93-454. In that case the Full Court said as follows (at paragraph 4):
Formally therefore, the father was not the applicant in the proceedings before the trial judge. He is however a person affected by the orders of the trial judge, and his appeal was brought on that basis. Thus it is without doubt that the father being a person with the requisite rights of custody in respect of the child, and being affected by the orders under appeal, has standing to commence and prosecute the appeal.
We regard the appellant’s standing in the present case in the same manner.
Four matters arise for determination:
·Was it correct for the trial judge to find that there is a grave risk that the return of the children to Canada would expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of the Regulations;
·If so, was the trial judge correct in exercising the discretion to decline making an order for return of the children to Canada;
·Was the appellant denied procedural fairness by the trial judge allowing additional expert evidence to be admitted into the evidence during the course of the trial; and
·Was the trial judge in error by not providing reasons in the judgment for accepting this additional evidence.
Background
The facts of the case can be briefly stated following the findings of fact made by the learned trial judge.
The father, a Canadian citizen, married the mother, an Australian citizen in 2006 in Sydney.
In approximately September 2007 the father moved to Canada to commence studying law. The mother remained in Sydney.
In September 2007 the child K was born in Sydney.
In approximately December 2007 the mother and the child K moved to Canada to live with the father.
Numerous trips have been made by the parties and the child to Australia. The mother and the child K travelled to Sydney for approximately five weeks in about October 2008. The mother, the father and the child K travelled to Sydney in approximately December 2009. The mother and the child K remained in Sydney for seven weeks, the father returning to Canada after three weeks.
In approximately March 2010 the maternal grandfather travelled to Canada to visit the mother.
In April 2010 the child C was born in Canada.
In April 2010 the mother was admitted to a hospital in Canada. She was diagnosed as suffering from post partum psychosis. She was discharged from hospital on or about 3 May 2010.
On 10 May 2010 the mother, the father, the children and the maternal grandfather travelled to Sydney arriving on 12 May 2010.
On 26 May 2010, while he remained in Sydney, the father filed an application for divorce and division of matrimonial property in the Canadian Court.
On 29 May 2010 the father returned to Canada. The mother and the children remained in Australia.
On 4 June 2010 orders were made ex parte by the Canadian Court which provided, amongst other things, for the father to have sole custody of the children.
The Application for the Return of the Child
On 20 July 2010 the Central Authority filed the application commencing these proceedings pursuant to the Regulations. The Regulations are made pursuant to s 111B of the Family Law Act 1975 (Cth) (“the Act”) and give effect to Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). Amongst the orders sought by the Central Authority was an order to ensure the return of the children to Canada forthwith.
Sub-regulations 14(1)(a) and (b) of the Regulations enable a “…person…that has rights of custody in relation to the child …(to) apply to the court …for…a return order for the child”. The appellant is such a person.
Sub-regulation 16(1) provides in effect that if an application is made under sub-regulation 14(1) for a return order for the child, the application is made within one year of the child’s removal or retention and the applicant satisfies the court that the removal or retention was “wrongful” within the meaning of sub-regulation 16(1A) the court must, subject to sub-regulation 16(3) make the order. There is no issue that the retention was wrongful within this meaning.
Sub-regulation 16(3) provides that a court may refuse to make an order for return if the person opposing the making of the order establishes one of a number of specified grounds. There is only one relevant ground in these proceedings. That is the ground contained in sub-regulation 16(3)(b) namely, “there is 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”.
The Issues Before the Trial Judge
His Honour identified the issues to be determined to be as follows:
·Whether the mother may rely upon certain documents annexed to her affidavit filed on 8 November 2010;
·Whether the father had consented to the children being retained in Australia within the meaning of sub-regulation 16(3)(a)(ii) of the Regulations; and
·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 sub-regulation 16(3)(b) of the Regulations.
In relation to whether the father had consented to the children being retained in Australia, his Honour was not satisfied that the mother had established that there was clear and unequivocal evidence of acceptable consent being given by the father to the children remaining in Australia. This finding is not the subject of appeal.
On the other hand his Honour was satisfied that there was a grave risk that the return of the children to Canada would expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of sub-regulation 16(3)(b) of the Regulations. His Honour also determined that it was appropriate to exercise the discretion to refuse to make the order for return and therefore dismissed the application by the Central Authority.
The Grounds of Appeal
The Notice of Appeal set out three grounds of appeal as follows:
1.That his Honour erred in finding that there was a grave risk that the return of the children to Canada would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation.
2.Even if it were open to his Honour to be satisfied that there was a grave risk to the children or that they would be placed in an intolerable situation, the Court erred in the exercise of its discretion in not returning the children to Canada.
3.That his Honour denied the Appellant procedural fairness in allowing additional medical evidence during the course of the trial without the Appellant being afforded a reasonable opportunity to obtain medical evidence in response.
At the outset of the hearing, leave was given to the Appellant to include additional grounds of appeal. These were as follows:
4.His Honour erred in receiving into evidence the additional reports of [Dr L] (24.9.10 and 29.10.10) and [Ms D] (2.11.10) and in allowing [Dr L] and [Ms D] to give oral evidence in chief.
5.His Honour erred in not providing any, or any adequate reasons, for receiving into evidence, or rejecting the tender of, the reports of [Dr L] dated 24.9.10 and 29.10.10 and [Ms D] dated 2.11.10.
The Evidence
Having regard to the course which the appeal hearing took, namely a focus on the additional grounds of appeal including the procedural fairness ground, it is necessary to consider the development of the evidence at trial.
The initial evidence of the Central Authority consisted of its Application filed on 20 July 2010, including the Request for Return from the Canadian Central Authority, a copy of an ex parte sole custody order of the Court of Queen’s Bench in the applicant’s favour, a copy of the applicant’s affidavit in support of his application for that order and various other supporting documents.
This was answered by the respondent’s Answer and Cross Application filed on 28 September 2010.
The evidence in support of this Answer and Cross-Application consisted of a detailed affidavit by the respondent also filed on 28 September 2010 in which, amongst other matters, the respondent said that she had been diagnosed with a bipolar disorder in approximately April 2010. The respondent also alleged various risks if the children were returned to Canada. These included the appellant’s alleged drug, alcohol and anger management issues, the appellant’s alleged lack of experience in caring for the children, financial difficulty and, relevantly, a concern expressed by the respondent that upon return to Canada, where she does not have a large support network, her mental health problems might manifest and she would become depressed, her family and current treating doctors being in Australia. The respondent also said that she did not consider the appellant would support her and the children financially in Canada and that she had neither accommodation nor income to support herself and the children in Canada.
The respondent annexed to her affidavit reports from her treating professionals.
The first was from her psychologist Ms D dated 2 August 2010. Omitting formal parts it is as follows:
[The respondent] was referred to me for treatment regarding her symptoms of Mood Disorder, Anxiety, Depression and Stress, under a Mental Health Plan dated 30th June, 2010.
[The respondent] has attended an initial appointment at which a semi-structured interview was conducted and DASS21 scores were discussed. Results indicated that [the respondent] has experienced a complex array of situational stressors and experiences that have resulted in symptoms of anxiety. [The respondent] reported that although she experiences a lot of background stress relating to her ex-partner, she feels that she has a lot of support here in Australia.
It was noted that [the respondent] attended with pre-existing diagnoses of Bipolar disorder and postnatal psychosis (although the accuracy of these diagnoses and criterion used have not been verified). There was no evidence of psychosis during the times of our conversations.
During our discussions together over the past few weeks it has been noted that [the respondent] has at all times focussed on the safety and welfare of her children as being of primary importance. [The respondent] was observed with her youngest son. He seemed well-cared for and content. It was reported that whilst in Canada, Social Services were alerted from a number of sources that there was suspected risk to the children whilst they were in the care of the father and his parents. I would strongly recommend following this up with Social Services in Canada for verification.
The second was from her psychiatrist Dr L dated 1 September 2010. Omitting formal parts it is as follows:
[The respondent] is currently under my care. I have had the opportunity to assess her on three occasions: 10th June 2010, 22nd July 2010 and 27th August 2010.
[The respondent] has experienced three brief episodes of mental illness. The first was 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, 2½ years ago and the third after the birth of her second child, at the end of April 2010. Her diagnosis is Bipolar I disorder.
To the best of my knowledge, there have never been any concerns about [the respondent’s] care of her children and no reports of any threats to harm herself or others. No depressive episodes have occurred.
[The respondent] 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 respondent’s] account of her husband’s behaviour.
[The respondent] has been compliant with medications and her appointments. In addition to seeing me, she has arranged through her local doctor to see a psychologist. There has been no recurrence of symptoms of Bipolar 1 Disorder while she has been under my care.
I am not a child psychiatrist, nor have I undertaken formal assessment of [the respondent] with her children. However, I can report that her interactions with her children appear normal and healthy. [The respondent] attends to her children appropriately and in a warm and nurturing fashion. The children in their turn appear happy and well adjusted. [The respondent] has significant support from her father, with whom she lives. I have advised [the respondent] to undergo formal assessment of her parenting style with a child psychologist.
In summary, [the respondent] 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 (Epilim 500mg mane, 700mg nocte and Seroquel 300mg nocte) 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.
The respondent also filed with the above material on 28 September 2010 affidavits by her father, Mr S and her neighbours Mr J, Ms X and Ms E. The affidavit by the respondent’s father supported the respondent’s assertions about alcohol abuse and aggressive behaviour by the appellant. Otherwise these affidavits are not relevant to the matters on appeal.
On 11 October 2010 an affidavit by Ms Pereira, a solicitor employed by the Central Authority was filed annexing an affidavit by the appellant in response to the respondent’s affidavit filed on 28 September 2010. Exhibited to the appellant’s affidavit are copies of numerous documents including the Government Child Welfare file concerning the family, and affidavits in response to the affidavits by the respondent’s father and her other witnesses.
On 14 October 2010 the proceedings came before the trial judge. Mr Livingstone, counsel for the respondent, informed the trial judge that he would seek leave to cross-examine the appellant in person. Ms Christie, counsel for the Central Authority indicated that they would require the respondent and her witnesses for cross-examination. His Honour expressed his view that the issues in the case were such that credit was “enormously important”. His Honour ordered that the appellant be made available for cross-examination from an appropriate place in a Canadian court at an appointed time and that a representative of the mother be permitted to be present in Canada on that occasion for the purposes of assisting the mother’s counsel in that cross-examination through production of documentation as her counsel would require.
It was also clearly contemplated that the respondent and her witnesses would be available for cross-examination by counsel for the Central Authority.
His Honour also indicated that he would place time limits on the cross-examination permitted for each witness. Significantly for the purposes of this appeal, his Honour directed the Central Authority to provide the respondent and the Court with amended material making it clear what material would be relied on by 4 November 2010. His Honour also ordered the respondent “to respond only to what is effectively evidence in chief (contained in the amended material) …” by 4:00 pm on 8 November 2010.
In relation to the reports by the respondent’s psychiatrist and her psychologist, counsel for the Central Authority informed his Honour that they had no issue about what was contained in those reports. His Honour adjourned the matter for hearing on 10 November 2010.
The respondent filed a further affidavit on 8 November 2010. Of particular relevance is that the respondent annexed to her affidavit new reports from her psychologist and from her psychiatrist. These provided for the first time by these witnesses, evidence recommending against a return by the respondent to Canada and the possible impact on her mental health if she was to return there.
The report dated 2 November 2010 from the respondent’s psychologist Ms D was as follows (omitting formal parts and its annexure):
…
[The respondent] was referred to me in June 2010 for treatment regarding her symptoms of Anxiety, Depression and Stress. Although [the respondent] presented with a diagnosis of Bipolar disorder, throughout the time she has been in treatment with myself there has been no evidence of psychosis or mood fluctuations, which indicates that her mood disorder has been fully diagnosed, treated and stabilised.
[The respondent] has been proactive in her approach to managing and optimising her mental health and has actively engaged in all facets of therapy. Other factors that seem to have improved [the respondent’s] resilience include the support of family and friends, as well as the mental health support services available.
In my professional opinion, I would not advise [the respondent] to return to Canada, for the following reasons;
Lack of Social Support;
- In the reflections [the respondent] has presented during sessions there is not a perception that [the respondent] has suitable access to family support in Canada. These reflections have been consistent and supported by evidence presented by [the respondent’s] family members.
Lack of Professional Support;
- The details presented by [the respondent] and other family members regarding her hospitalisation in Canada do not reflect a service that [the respondent] 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 respondent] will also experience limited access to services due to low income, transport issues and lack of knowledge of local services.
Increased Relapse Risk;
- When experiencing extreme stress, affective relapse (ie: depression or mania) can occur in patients with bipolar disorder even when they take their medication consistently (Please see attached information from Beyond Blue).
- The pattern of depression presented by [the respondent’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 respondent] 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 respondent’s] access to medical insurance and treatment in Canada.
These factors would contribute to a poor prognosis should [the respondent] return to Canada, and would therefore need to be addressed.
…
There were two reports annexed from the respondent’s psychiatrist, Dr L. The first was dated 24 September 2010 and this was in identical terms to that dated 1 September 2010 set out above except with the following addition to the fourth paragraph:
… She 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. …
The second was dated 29 October 2010. Omitting formal parts it is as follows:
…
Please see also my letter of 24th September 2010 which is attached.
[The respondent] has asked my opinion regarding the possible impact on her of being required to move to Canada at this time.
[The respondent] suffers from Bipolar 1 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 such as with her local church and with a playgroup comprising young mothers with similar age children. It goes without saying that as [the respondent] has lived the vast majority of her life in Australia the familiarity and routine of life here are likely to be quite grounding and comforting for her.
In contrast to the above, 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.
As will be obvious, my opinion is that, in terms of her mental health, [the respondent] should remain in Australia. This is also her clear preference.
…
The proceedings came before his Honour on 10 November 2010 for hearing. On this occasion there was cross-examination of the appellant by video connection. The appellant was in Canada with his counsel Ms Logie. The respondent was also cross-examined as were her witnesses Ms X and Mr J.
Counsel for the Central Authority made objections to the reports of Ms D and Dr L as set out above. His Honour accepted that the objections were legitimate and appropriate. The respondent’s counsel confirmed his preparedness to call evidence in chief from these witnesses to deal with the areas of objection. We shall refer to this matter again below.
The respondent’s psychologist Ms D was cross-examined by telephone. It became clear that Ms D had also spoken to both of the respondent’s parents. Ms D indicated that the respondent had said she felt isolated and trapped in winter in Canada because she did not want to take the children out into the extreme cold and because of the darkness and lack of sun. Ms D also said that if the respondent had a sense of isolation, this would not necessarily be alleviated by forming ties with a social group. Ms D confirmed her opinion that the respondent’s chances of relapse in Australia were low because of her treatment and support and that if the respondent was to return to Canada her risk of a relapse would be “increased”. Ms D also said that the respondent did not feel that she had a very good working relationship with the treating professionals she had in Canada. Ms D also said that if the respondent did have a relapse it would more likely be depression rather than mania. Ms D confirmed that the respondent was currently fully diagnosed, treated and stabilised. Ms D acknowledged that she had not spoken to the respondent about her friends or her church in Canada.
The hearing was further adjourned to 2 December 2010.
On 2 December 2010 the hearing resumed. The respondent’s father, Mr S was cross-examined. He confirmed that he had seen the appellant drinking alcohol every day when he was living with the parties in Canada. He confirmed that the respondent’s health was better currently. He also said that it would be very difficult for him to go to Canada to support the respondent because he did not have the funds to do so and also because his wife suffered from mental illness and he needed to stay in Australia to care for her.
Then the respondent’s psychiatrist, Dr L was cross-examined. Dr L confirmed that he had spoken with the respondent’s father. Over the objection by counsel for the Central Authority, counsel for the respondent was given leave to examine Dr L about matters which went beyond the information contained in his reports. We shall refer in greater detail to these matters below. But they include that Dr L considered that the likely lack of family and supports, income, home, car, significant financial pressures along with having to deal with an estranged husband whom the respondent described as being verbally and emotionally abusive would potentially put the respondent at risk of relapse. There would be perhaps a doubling of the risk in the initial six to twelve months after she returned to Canada. Dr L also said that the more worrying possibility was that those stressors would lead to a major depressive episode causing consequent harm to the respondent’s relationship with the children and psychological stress for her.
Dr L was also asked about suicide. He said that suicide was always a risk with depression and for persons who have a depressive or a bipolar disorder the risk was 10 per cent compared with the general population where the risk was something like 20 per 100 000.
Dr L said that the risk of the respondent suffering a relapse would be probably double the usual rate of relapse in the first six to twelve months back in Canada. And the usual rate of relapse was in the order of 50 per cent to 70 per cent every two years.
Dr L also said that the respondent’s risk of having an episode of major depression in the next six to twelve months was probably in the order of 5 per cent to 10 percent and that it would be doubled if she went to Canada.
Dr L also agreed that the respondent was likely to suffer a relapse at some stage wherever she lived, that the respondent was compliant with her medication and that she would be likely to comply with her medical advice.
Dr L confirmed that even if the respondent was to return to a home in Canada funded in the short term by her in-laws, had friends in Canada, a church, access to reasonable social security and some capacity to work, such things would not take away the stress of leaving her home and her own family, long term friends and support to go to somewhere that was not her home and might involve a conflicted relationship.
Dr L also said that he would recommend against the respondent caring for other people’s children in her home on a commercial basis because it would be a potential source of stress for her.
Finally the respondent’s last witness, her neighbour Ms E, was cross-examined and the only matter of relevance to the matters before us was that she said that she had not observed the appellant drinking.
Grounds 3 and 4
The first part of the submission was that his Honour made clear directions on 14 October 2010 about what further material the respondent would be permitted to file. As indicated above, the respondent was “to respond only to what is effectively evidence in chief” and this was to be served by 4:00 pm on 8 November 2010. It was submitted that the affidavit by the respondent filed and served on 8 November 2010 went well beyond material in response. This was said to be because annexed to the affidavit were the new reports by the respondent’s treating professionals Dr L and Ms D dated 24 September and 29 October 2010 and 2 November 2010 as set out above.
As can be seen from these reports they introduced new material. In the case of Dr L this was to introduce into the evidence for the first time his opinion that if the respondent was required to return to Canada in the circumstances referred to in his reports, this would have a “markedly deleterious effect on her mental state” and “in terms of her mental health [she] should remain in Australia”.
In the case of Ms D, her report introduced her opinion that the respondent should not return to Canada for the reasons set out therein including that the respondent’s symptoms of depression would be more likely to recur if she returned to Canada.
It was submitted that this material was not in response to the material contained in the Application and the appellant’s affidavits but rather was new material which was in the nature of evidence in chief. It was submitted that, as such, it did not comply with his Honour’s directions and, having been served on the Central Authority little more than a day in advance of the trial on 10 November 2010, it could not be dealt with by the Central Authority and ought not to have been admitted into the evidence. It was submitted that this was all the more so in the case of the report of Dr L dated 24 September 2010 because that report had been available to the respondent at the time she filed her affidavit on 28 September 2010 yet it was not annexed to such affidavit, the only report from Dr L annexed to that affidavit being his report dated 1 September 2010.
It was submitted that by permitting these additional reports into the evidence in circumstances where, on the previous occasion in court counsel for the Central Authority had indicated that the expert evidence to that time filed by the respondent would not be objected to by the Central Authority, his Honour denied the Central Authority procedural fairness and therefore fell into error.
In our opinion, there are real difficulties with this submission.
In the course of articulating the Central Authority’s objection to the 29 October 2010 report by Dr L, counsel for the Central Authority informed his Honour that they would wish to challenge the opinion and conclusion in the report. The transcript for 10 November 2010 indicates at page 49 as follows:
…
HIS HONOUR: And how would you do that? By … cross-examining or questioning [Dr L], is it?
MS CHRISTIE: There may have been two methods. One would have been to obtain further documents in respect of her treatment in Canada and the second method would have been to potentially obtain an independent report…
…
MS CHRISTIE: … had it been the position that there was an assertion of opinion on the last occasion to the effect that the preferable mental health outcome is that she should remain in Australia, then it would have been open to do two things. One, to obtain further information about mental health in Canada, … but also potentially to obtain independent evidence in respect of the mother’s mental health …
…
HIS HONOUR: … From my perspective, I think [the reports of Dr L and Ms D] are important. It’s important evidence and it, in my view, from just prima facie, is likely to have an important impact on these children. So if I admit this evidence, what would the department want to do about that? Do you want an adjournment, do you want the appointment of an independent assessor, what would the department want?
MS CHRISTIE: Your Honour, the difficulty is that if your Honour were to admit them … and, for example, grant an adjournment ---
HIS HONOUR: Yes
MS CHRISTIE: --- then you deal with one prejudice by creating another.
HIS HONOUR: I know.
MS CHRISTIE: And that we’re talking about extremely, and particularly in the case of the younger child – young children, accordingly, the length of time that they have now been separated from their father is unacceptable, so I am not instructed to ask for an adjournment because in weighing the prejudices, it is a greater prejudice … (own emphasis)
In these circumstances in which his Honour offered to the Central Authority an adjournment to enable the Central Authority to address any unfairness which might have arisen by the introduction of the new material, an offer which the Central Authority declined, we do not accept that his Honour fell into error by rejecting the objection by the Central Authority to this material based on procedural unfairness.
Moreover, it was clear at this point of the hearing that the hearing could not be completed that day and would have to be adjourned. As indicated above, it was adjourned to 2 December 2010 which would have enabled a further three weeks for the Central Authority to be able to obtain further material. If this was considered insufficient time, it would have been open to the Central Authority to seek further time. But it chose not to. In these circumstances, in our opinion, the appellant cannot rightly complain that the Central Authority was not afforded procedural fairness.
But there are also other aspects to these grounds.
Objections
Part of the submission that his Honour erred in admitting into the evidence the additional reports of Dr L and Ms D, was on the basis that there were opinions expressed therein about which objection could properly be taken.
For example, Ms D’s qualifications to express an opinion about the respondent’s treatment or prognosis were challenged. Counsel for the Central Authority said that Ms D appeared to have spoken to persons other than the respondent in reaching the conclusions expressed in her report, yet it is not clear to whom she had spoken and what they had spoken about. Counsel also said that to the extent that Ms D expressed opinions about access to professional support for the respondent in Canada, and in respect of the respondent’s likelihood of relapse, these matters were outside Ms D’s area of expertise and qualifications. Counsel also objected that the report contained no evidence about the frequency or duration of the respondent’s treatment by Ms D or details of their contact.
Counsel for the Central Authority objected to the passage in Dr L’s 24 September 2010 report to the effect that the respondent’s father corroborated her account of the appellant’s behaviour on the basis that details of Dr L’s conversation with the father were not included in the report. Counsel also objected to the 29 October 2010 report on the basis that it did not set out when Dr L saw the respondent, what the respondent said to Dr L or how he grounded his opinion.
After hearing submissions from the respondent’s counsel in respect of these objections his Honour indicated that he regarded the objections as being “legitimate and appropriate objections”. His Honour informed counsel for the respondent that if the respondent wanted weight to be given to the opinions of Dr L and Ms D, learned counsel for the respondent would have to adduce further evidence from them to address these matters.
So far as the objections in relation to Ms D’s report were concerned, most of the matters which formed the basis of such objections were attended to by counsel for the respondent during examination of Ms D. Some of the material which emerged has been referred to in the course of our describing the evidence above. As also indicated above, counsel for the Central Authority had the opportunity of testing all areas of Ms D’s evidence in cross-examination.
Oral Evidence
The next aspect of these grounds (3 and 4) of appeal was the submission that the learned trial judge erred in allowing Dr L and Ms D to give oral evidence in chief.
In relation to Dr L’s reports, the matters which formed the basis of objections were the subject of questions during examination in chief of Dr L. Much of the evidence which emerged during his examination in chief has been referred to above. In the main, the deficiencies were cured.
Learned senior counsel for the appellant however, criticised the examination in chief of Dr L as being “like a bit of a runaway train” and said that in the course of his examination, from the appellant’s point of view, “the matter goes completely and utterly off the rails”. This was said to have been because the leave which his Honour granted was to adduce additional evidence to address the objections whereas what emerged during the examination in chief went well beyond the leave granted.
Amongst other matters we were taken to by senior counsel for the appellant was the following part of the examination of Dr L [transcript 2 December 2010 at page 23]:
MR LIVINGSTONE: … What are the more significant issues?
[DR L]: As I’ve written she would be going to a situation where she has no family and no supports, no source of income, no home, no car, and significant financial pressures, along with having to deal with an estranged husband who she describes as being verbally and emotionally abusive.
MR LIVINGSTONE: And are you able to identify the risks of those difficulties and those factors in relation to her mental health?
MS CHRISTIE: I object, your Honour. I didn’t have any difficulty with my friend in not only giving me a proof of evidence, but then leading the witness through it; it seemed a sensible course of action. However, given that [Dr L] has prepared three written reports for the purpose of the court, and … the question that’s just been put to him is not one which is in the proof of evidence, it’s not appropriate that the evidence be given in this way.
HIS HONOUR: Well, if he doesn’t ask it, I will. I need to know, and if … you’re prejudiced by that, then you can make an application about it. But it’s the nub of the issue and I need to know.
…
MR LIVINGSTONE: In terms of the expression that you just used,
[at transcript page 24] “risk of relapse”, are you able to assist the
court in terms of how grave or mild that risk
is, the risk of relapse that you’ve identified?[DR L]:Yes. Look, it’s difficult to quantify. The nature of the illness is that she almost certainly will experience relapses in the future, so we’re not able to quantify, necessarily, how much extra risk there would be, but I would imagine, you know, just in broad terms, perhaps, a doubling of the risk in the initial six to twelve months that she’s back in Canada. But to be quite frank, I feel that the – while there is a significantly increased risk of the relapse in her illness, the more worrying possibility is that those stressors would lead to a major depressive episode, which is the depressed stage of her bipolar illness and the consequent harm that can do to the relationship between [the respondent] and her children and the psychological distress it would create for her.
MR LIVINGSTONE: Now, in terms of a major depression – what are some of the symptoms or consequences of [the respondent] suffering a major depression? …
[DR L]:Okay. Yes, the major 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, feelings of guilt, sleep disturbance, appetite disturbance, and possible low energy and impaired motivation and concentration. (own emphasis)
However, the evidence which emerged during the examination in chief of Dr L which attracted the most criticism from senior counsel for the appellant was the following [transcript page 25]:
MR LIVINGSTONE: What about suicide?
[DR L]:Suicide is always a risk in depression, and the risk of suicide … in someone who has a depressive or a bipolar disorder is in the order of 10 per cent, which compares to the general population, where the risk is something like 20 per 100,000.
MR LIVINGSTONE: Now, with the risk of suicide, is that increased with the extent of the depression? That is, is suicide much more likely or less likely with the same level of likelihood in somebody suffering from a major depressive episode?
[DR L]:Much more likely.
MR LIVINGSTONE: Now, assume the mother were to have a major depressive episode … What sort of impacts would you expect to see on the young children of her relationship?
[DR L]:It depends how long it lasts. So a relatively brief episode may not have a significant impact, but it’s not unusual for depression to last several months. And if that were to happen, it’s possible there would be damage to the mother–child relationship if the mother … is not emotionally available to the children during that time.
MR LIVINGSTONE: Are you able to form any view as to the likelihood, if any, of there being a recurrence of the psychotic episodes the mother has undergone in the past if she were ordered to return with the children to Canada?
[DR L]:Yes. As I 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. And I would – just broadly speaking, estimate that the risk of a relapse of that would be probably double, given all those stressors in the first six to 12 months back in Canada.
MR LIVINGSTONE: So double what?
[DR L]:Double the usual rate of relapse … which is … in the order of … 50 to 70 per cent every two years.
MR LIVINGSTONE: Are you able to say what the risk of having a major depression episode would be in the next six to 12 months?
[DR L]:That’s harder to estimate, but it’s probably in the order of five to 10 per cent.
MR LIVINGSTONE: And you said, then, that that risk would be doubled in the event that she were to be returned to Canada?
[DR L]:Yes. … it’s an estimate.
MR LIVINGSTONE: And of people having a major depressive episode, suicide can be the outcome in a significant proportion or percentage of those cases?
[DR L]:Correct. I mean, suicide is what we worry about when people are depressed.
At this point the examination in chief concluded and the following transpired between his Honour and counsel for the Central Authority (at transcript page 26):
HIS HONOUR: Now, Ms Christie, do you want a bit of time to think about this, or are you able to ask questions now? What would you like to do about it?
MS CHRISTIE: The difficulty, your Honour, is that no amount of time to think about it today will be particularly useful, since what I actually would need would be the opportunity to discuss it with somebody who has professional qualifications different from my own. I’m going to embark on the cross-examination now. At the end of that, if I have an application, I’ll let your Honour know what it is. (own emphasis)
Neither in these passages, nor anywhere else to which we have been referred, did counsel for the Central Authority expressly or impliedly make any application of the kind she had thus foreshadowed.
It was submitted by learned senior counsel for the appellant that it was procedurally unfair for his Honour, having acknowledged that the objections raised in relation to some of the material in the reports were “appropriate” and proper, to have allowed into the evidence oral material which expanded upon the realms of the leave given, then for his Honour to rely on it to the detriment of the appellant. It was submitted that the procedural unfairness was all the greater because to enliven the grave risk defence the onus was completely upon the respondent.
In our opinion there are a number of difficulties with this submission. So far as the oral evidence from Dr L about the risk of suicide in someone who has a depressive or bipolar disorder is concerned, this was described by learned senior counsel for the appellant as “the most alarming piece of evidence that fell without warning” and as “the explosive material that caused his Honour to accept that there was an enlivenment of the defence”. Albeit perhaps of greatest individual significance, this was not the only evidence which informed his Honour’s judgment that the defence of grave risk had been established. Absent the material about the risk of suicide if the respondent was to return to Canada, there still would have been considerable material to support a finding that the history of the mother’s bipolar disorder and the circumstances that she would be likely to face in Canada were sufficient to establish the defence of grave risk. In fact the material in the reports together with the other evidence would have been sufficient to establish the defence once the parts objected to had been repaired by the oral evidence, and provided that the material withstood cross-examination.
The circumstances in which the "explosive material" emerged were regrettable. The complaint on behalf of the appellant that the evidence could and should have been introduced much earlier resonates with the Court. The trial judge was clearly placed in an invidious position as a result of the belated calling of that evidence, in that he was confronted by evidence which was, as the submissions of senior counsel for the appellant before us clearly confirm, central to the issue of grave risk which he was obliged to determine. Nothing to which we have been referred establishes that the trial judge erred by admitting the evidence complained of, on the basis on which he did. Moreover, as with his previous invitations to the Central Authority to do so, the opportunity his Honour afforded the Central Authority to apply for an adjournment was not availed of. We do not criticise the Central Authority for that, but not having done so denies this complaint any entitlement to success.
In addition, it was conceded by learned senior counsel for the appellant that his Honour did not fail to have regard to each material aspect of the challenges to Dr L’s evidence.
In all these circumstances, in our opinion, it cannot be said that his Honour erred in receiving into the evidence the additional material which emerged during the course of the examination of Ms D and Dr L.
Ground 5
His Honour indicated that he would give reasons for admitting into the evidence the additional reports by Ms D and Dr L but he did not do so. Does this constitute appealable error in this case?
This Court, in the case of Bennett and Bennett (1991) FLC 92-191, referred to the importance of judges giving adequate reasons. At page 78,266 it described the test propounded by Gray J of the Supreme Court of Victoria in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 as “a particularly useful one” such test being as follows:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: -
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In Soulemezis v Dudley(Holdings) Pty Ltd (1987) 10 NSWLR 247 at page 279 McHugh JA observed as follows:
… Justice is a multifaceted concept. In determining whether justice was done and seen to be done other interests and values, beside the giving of reasons, have to be considered. The limited nature of judicial resources and the cost to litigants and the general public in requiring reasons must also be weighed. For example, many questions concerning the admissibility of evidence may require nothing more than a ruling: in New South Wales, common law judges have long held that they are not obliged to hear argument on the admissibility of every question of evidence let alone give reasons. It all depends on the importance of the point involved and its likely effect on the outcome of the case. …
As the authorities make clear, the extent to which reasons for judicial decisions are required is governed by the ambit of the issue which is decided. Save to the extent that we have discussed in considering the challenges raised by grounds 3 and 4, we do not understand there to have been any additional bases for rejecting the additional evidence of Ms D and Dr L advanced before the trial judge, or before us. Nor do we understand it to have been asserted before his Honour, or us, that the evidence was inadmissible on any but the natural justice basis which gave rise to grounds 3 and 4. The extent to which the trial judge's reasoning process needed to be discernible was thus limited to that issue.
It cannot be said that on a reading of his Honour’s judgment, the process of reasoning for arrival at his ultimate decision is unable to be discerned. It is obvious that his Honour regarded the evidence of Ms D and Dr L as very important, he said so many times during the trial. It is also obvious that his Honour was alive to the prejudice that accepting the additional material would cause the Central Authority. His Honour offered an adjournment and this was declined, as we have said. And, as was submitted by learned counsel for the respondent, his Honour clearly heard and understood the submissions by counsel for the Central Authority objecting to the additional material being admitted into the evidence.
Clearly these matters were weighed by his Honour and he chose the course of admitting the material. We are not persuaded that any error has occurred because of the absence of reasons contained in the judgment for admitting this material into the evidence.
We now turn to consider the earlier Grounds of Appeal.
Ground 1
The essence of this ground was that the facts in this case did not support a finding that there was a grave risk that return of the children to Canada would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
The submissions in support of this ground were very broad. They can be distilled into the following:
·a challenge to Dr L’s opinion that the respondent would face more risk of relapse of her illness if she was required to return to Canada. Dr L’s opinion was based on an assumption that lack of family, social and financial supports, adverse situational factors, as well as an estranged husband who had allegedly acted abusively towards her, would all be likely to confront the respondent in Canada, whereas such was unlikely to be the case;
·a challenge to Ms D’s opinion that the respondent’s chances of a relapse of her illness were low if she remained in Australia because of the supports being enjoyed by her in Australia. Adequate social and medical supports would be likely to be available to the respondent in Canada. Documents from government agencies in Canada which had contact with the family cast doubt on the respondent’s allegations that the appellant had been abusive towards her;
·that the trial judge really undertook the broader sort of inquiry that would be appropriate in substantive parenting proceedings based on what would be a “preferable outcome” for the children, rather than the more limited inquiry required under the Regulations to determine whether the children would be exposed to “substantial” risk. Inherent in this was an assumption by his Honour that the respondent would be the primary caregiver to the children in Canada, whereas such an assumption was not necessarily open to his Honour;
·that the trial judge was in error in finding that insufficient financial support would be available to the respondent in Canada; and
·that the trial judge was in error in finding that conditions could not be put in place to ameliorate the grave risk of harm to the children.
We are not persuaded that there is sufficient force in these submissions. Firstly, we are satisfied that the substance of these submissions was presented to the trial judge and that he considered them in arriving at his findings.
Secondly, we do not agree that there was any misunderstanding by his Honour of his task under the Regulations as suggested. Examination of the manner in which his Honour went about his responsibility to consider and determine this case makes these matters clear in our opinion.
His Honour commenced his consideration by setting out the terms of sub-regulation 16(3)(b) and then including relevant paragraphs of the judgment of the majority of the High Court in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 which are as follows:
39.… If it would expose the child to a grave risk of physical or psychological harm, or an intolerable situation, the discretion to refuse to make an order for return is enlivened. It is for the Australian court to decide whether return would expose the child to that risk. Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry. Often enough the answer to a claim of grave risk will be that the feared harm will form a central issue in subsequent judicial proceedings in the country of return. But it is important to notice that this answer has two parts: first, that there will be judicial proceedings in the country of return and, second, that the feared harm which is alleged can be a matter relevant to those proceedings. Both parts of that answer are important if it is to meet a contention that return will expose the child to a great risk of harm.
40.… There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
41.… Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
42.Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43.Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
…
45.That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
…
65.… while it may be right to say that return is to a country, not a place or a person, the application of reg 16(3)(b) requires consideration of what are said to be the consequences of that return. That is essentially a question of fact which will fall for decision on the evidence that is adduced in the proceedings. No doubt it is necessary to bear in mind not only that the person opposing the return carries the onus of proof, but also the way in which the proceedings are conducted both by the person opposing return and by the Central Authority.
66.If, as was the case here, upon return of the child there will be a judicial determination of questions of custody and access, it will probably often be the case that assertions of risk of exposure to harm will not be established. But the bare fact that there will be such a judicial determination in the country of return does not mean that reg 16(3)(b) can have no operation. Cases in other jurisdictions concerning the possible return of a child to a sexually predatory or violent parent illustrate why that is so. The fact that there will be proceedings between the parties in the country of habitual residence does not relieve the Australian court of its obligation to give effect to the whole of the Regulations including, where applicable, the provisions of reg 16(3)(b). (original emphasis) (footnotes omitted)
His Honour went on to refer to the decision of this Court in Director-General Department of Families Youth and Community Care v Bennett (2000) FLC 93-011, the English case of Re G (Abduction: Psychological Harm) [1995] 1 FLR 64 (“Re G”) and the first instance decision of Bennett J in State Central Authority v Perkis [2010] FamCA 649, the facts in each of which had some similarity to those in the present case.
In relation to Re G the trial judge in his reasons observed as follows:
234.… In that case, the mother, who had wrongfully retained the young children in England, having travelled there with them with the agreement of the father, argued that the return of them under the Convention posed a grave risk, arising from her mental health condition, within the meaning of the equivalent of regulation 16(3)(b). She accordingly adduced evidence from a psychiatrist in relation to her mental health condition. Specifically, the psychiatrist reported that:
…he was of the view that the mother was suffering from a moderately severe reactive depression … [and that] should the mother be forced to return to Texas, there was not only a risk but the likelihood that she would become psychotic … By that he meant that the condition would become more severe and that the balance of her mind might be affected; it might be that she would be unable to look after the children. [He] takes the view that the exposure to seriously stressful situations and the removal of the support given by her family might cause a progression from the depression she suffers into a psychotic state. He thought that the closer and stronger the prospect, the worse she might become (at 68).
235.In declining to make an order for the return of the children under the Convention, Ewbank J concluded that: “…having seen and heard the mother and seen and heard [the psychiatrist]… the effect of [such] an order… would be that there would be a serious deterioration in the mother’s condition and the children would be affected accordingly” ( at 69).
What the submissions on behalf of the appellant fail to address is the significance which his Honour placed on what he regarded as the extreme vulnerability of the younger child C to the consequences of his mother suffering from depression or psychosis. At paragraphs 251 – 260 of his judgment, his Honour said as follows:
251.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 fete [sic] is significantly higher than another member of our community who does not suffer from mental illness in the same manner as the mother.
252.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.
253.[Ms D] told the Court that her opinion was that the mother’s chances of relapse were increased if she returned to Canada.
254.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 notwithstanding 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.
255.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 fulltime 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.
256.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.
257.[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.
258.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.
259.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.
260.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.
His Honour then discussed the possibility of support and situational factors being available to the respondent if she was to return to Canada. His Honour expressed doubt that the respondent would be able to make a “viable” income to support herself and her children from caring for the children of others. His Honour accepted that the appellant’s family would provide funds for three months rental accommodation for the respondent and the children but he also expressed the view that the appellant had no capacity to support the respondent and children other than through his parents. His Honour noted that the appellant had made no contribution to their support since separation.
It was submitted that his Honour did not take sufficient account of evidence of financial supports available in Canada to the respondent. In particular it was submitted that the Court had before it evidence that some $5000 worth of cheques were awaiting the respondent in Canada from social security payments and that the respondent would be eligible for further payments upon return.
We reject this submission. Although his Honour did not specifically refer to these matters in his judgment, the evidence was certainly before his Honour, his Honour referred to it during the submissions and we are satisfied that he took such matters into account. Even if, contrary to our conclusion, the trial judge did not take these matters into account, failing to do so did not render, and in our view could not have rendered, his conclusion with respect to grave risk erroneous.
It was also submitted that his Honour erred in finding that conditions could not be put in place to meet the needs of the children upon return and ameliorate the risk, and in finding that there was insufficient evidence of the financial supports available to the respondent in Canada. It was said that there is no reason to expect that the appellant would not comply with any of the undertakings which he gave to the Court, especially because he is a law student hoping to attain admission to the Canadian Bar. The appellant gave sworn evidence about assistance which he would provide to the respondent upon her return and he also indicated he would give assistance to the maternal grandfather to travel to Canada and stay with the respondent for a period.
In relation to the possibility of imposing such conditions his Honour considered this. We would particularly refer to the following paragraph:
262.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 [sic] 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.
His Honour went on to consider various conditions which might be imposed and the likelihood that the appellant would be able to comply with conditions. His Honour thought that the appellant would be able to comply with some conditions but that he would be unable to comply with others, particularly in relation to making financial provision for the respondent and the children. This was because the appellant had made no contribution towards their financial support since separation. Nothing to which we have been referred establishes that any finding of fact recorded by the trial judge in this context was not reasonably open to him.
Ultimately, his Honour said as follows:
275.… 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.
276.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.
277.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.
We are not persuaded that his Honour was in error in finding that it would not be possible to obviate the grave risk to which he considered the children would be exposed by return to Canada by the imposition of conditions.
Ground 2
In relation to the final ground of appeal the overall submission was that the trial judge misconceived the applicable law, and its application to the facts of the case, with respect to the exercise of the Court’s discretion to refuse to make an order for return of the children to Canada.
We note that his Honour considered the exercise of his discretion in the relevant context commencing at paragraph 267 of his judgment said:
267.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 … 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.”
…
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.
268.Looking then at the matters referred to as “suggested considerations” by Hale LJ (as specified above) I determine as follows.
269.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.
270.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.
271.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.
272.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 [the child 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.
273.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 Dept. of Community Services (NSW) [1996] 187 CLR 640 “the welfare of the child is properly to be taken into consideration in exercising that discretion.” (original emphasis)
Then his Honour considered the possible imposition of conditions as referred to above and determined that it would not be possible to impose conditions which would remedy the grave risk to the psychological health of the children should they be required to return.
His Honour exercised his discretion to refuse to make a return order.
A number of his Honour’s findings about the factors suggested by Waite and Hale LJJ as being relevant to the exercise of discretion were the subject of challenge on behalf of the appellant. In particular, it was submitted that the likely outcome of the proceedings in Canada was not able to be predicted from the evidence presented on behalf of the respondent and that his Honour should not have found that it was more likely that the respondent would succeed with her case to live in Australia. We are not persuaded that the trial judge predicted, or attempted to predict the outcome of any proceedings which might be determined in Canada. Nor did he pre-empt the likely determination of the issues to which he referred (para 270), as his carefully chosen words confirm. Having not concluded that any Canadian proceedings would be determined in the respondent’s favour, his Honour could not have impermissibly relied upon that factor, or afforded it excessive weight.
The other major challenge was to his Honour’s finding about the anticipated emotional effect upon the children of an immediate return. As can be seen above, this was said to be twofold. Firstly, that returning to Canada would pose “a stress to the mother and thereby (increase) the prospect of a major depressive illness or the onset of psychosis”. Secondly, the reason for refusal to return was ultimately “the probable catastrophic impact upon the children’s welfare”. It was submitted that this was not a proper representation of the medical evidence nor of what the respondent might face if she were to return. We are not persuaded that his Honour’s findings in this regard were erroneous.
In our opinion, his Honour was correct in his understanding of the relevant law to be applied to consideration of the exercise of his discretion. That is, as the High Court held in De L v Director-General, NSW Department of Community Services (above), that the discretion is “unconfined except in so far as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous … That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.”.
His Honour has considered those of the factors referred to by Waite and Hale LJJ which he regarded as being relevant and ultimately considered that the welfare of the children would be served by exercising his discretion to refuse to order the return of the children to Canada, as his Honour was entitled to do.
Nothing to which we have been referred establishes that the trial judge’s discretion was exercised in reliance upon material errors of fact. Nor was it vitiated by reliance upon extraneous or irrelevant facts or circumstances, or a failure to have regard to relevant facts and circumstances. It has not been demonstrated that any relevant fact or circumstance was afforded inadequate or excessive weight in the exercise of the trial judge's discretion. These challenges thus fail.
Conclusion
For the above reasons we propose to dismiss the appeal.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Johnston JJ) delivered on 24 May 2011.
Associate:
Date: 24.05.11
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