Hays & Department of Communities and Justice
[2023] FedCFamC1A 3
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Hays & Department of Communities and Justice [2023] FedCFamC1A 3
Appeal from: Department of Communities and Justice & Hays [2022] FedCFamC1F 752 Appeal number(s): NAA 238 of 2022 File number(s): SYC 2382 of 2022 Judgment of: ALDRIDGE, AUSTIN & TREE JJ Date of judgment: 16 January 2023 Catchwords: FAMILY LAW – APPEAL – HAGUE CONVENTION – Appeal from orders requiring the return of the children to England pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) – Where the appeal challenged the primary judge’s rejection of the contended defences under reg 16(3) of the Regulations – Grave risk of harm – Amelioration of risk – Where parents should not be able to rely upon risks of harm of their own making to resist return orders – Whether the primary judge conflated the question of grave risk as posed by reg 16(3)(b) with the residual discretion under reg 16(5) – Whether the primary judge erred in rejecting a report by an adversarial expert into evidence – Rights of custody – Whether the mother was not actually exercising rights of custody at the time of retention – Where the mother’s proposal to the father for time arrangements with the children was itself an exercise of her rights of custody – Children’s objection to return – Age and maturity of the children – Where no challenge to the findings of fact about the children’s maturity was advanced – Whether the return order breaches human rights and fundamental freedoms – Where no ground of appeal succeeds – Appeal dismissed – Father to pay the Independent Children’s Lawyer’s costs in a fixed sum.
FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – AMEND GROUNDS OF APPEAL – Where the further evidence detailed events which occurred after the conclusion of the trial – Where the further evidence did not inform error by the primary judge – Discretion to admit – Where portions of the evidence is admitted into the appeal – Oral application to include an additional ground of appeal – Where the proposed ground enjoyed no merit and the amendment would be futile – Application refused.
Legislation: Evidence Act 1995 (Cth) ss 135, 138
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.08, 13.10
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16
Hague Convention on the Civil Aspects of International Child Abduction
United Nations Convention on the Rights of the Child
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Central Authority v Wageman (2012) 48 Fam LR 254; [2012] FamCAFC 176
Director-General of Family and Community Services v Davis (1990) FLC 92-182; [1990] FamCA 119
DP v Commonwealth Central Authority (2001) 206 CLR 401; [2001] HCA 39
Gsponer v Director-General, Department of Community Services, Victoria (1989) FLC 92-001; [1988] FamCA 21
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 123 Date of hearing: 14 December 2022 Place: Sydney Counsel for the Appellant: Mr Cox SC with Mr O’Brien Solicitor for the Appellant: JB Solicitors Counsel for the Respondent: Mr Guterres Solicitor for the Respondent: DCJ Legal Counsel for the Independent Children’s Lawyer: Mr Herzfeld SC with Ms Parker with Ms Scoufis Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
NAA 238 of 2022
SYC 2382 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HAYS
Appellant
AND: DEPARTMENT OF COMMUNITES AND JUSTICE
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE, AUSTIN & TREE JJ
DATE OF ORDER:
16 january 2023
THE COURT ORDERS THAT:
1.Save that there be admitted as evidence on the appeal:
(a)paragraphs 1-7 (both inclusive) and 10-18 (both inclusive) of, and Annexures C, F and H to, the affidavit of the appellant filed 5 December 2022; and
(b)the affidavit of Ms T filed 13 December 2022, and the annexures thereto;
the appellant’s Application in an Appeal filed 5 December 2022, and the respondent’s Response to an Application in an Appeal dated 13 December 2022 are dismissed.
2.Appeal No. NAA 238 of 2022 is dismissed.
3.The appellant is to pay the Independent Children’s Lawyer’s costs in the sum of $11,682 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hays & Department of Communities and Justice has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & TREE J:
introduction
On 30 September 2022, a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) requiring the return of the two children the subject of the proceedings (“the children”) from Australia to England. Mr Hays (“the father”) appeals from those orders.
The New South Wales Department of Communities and Justice (“the Department”), acting as the Central Authority, is the respondent. Both it and the Independent Children’s Lawyer appointed to act for the children oppose the appeal. Ms Hays (“the mother”) did not directly participate, having been the requesting parent and her interests advanced by the Department.
On 14 December 2022, we heard the appeal and reserved our decision in relation to it. For the reasons that follow, the appeal will be dismissed.
background
The father was born in Australia in 1980, and the mother was born in the United Kingdom in 1981. They married in England in 2008 and lived there for most of their relationship. The eldest of their two children, X, was born in City J in 2011, and the youngest, Y, was born in England in 2014. The parents separated in late 2019.
Following separation, the children lived with each parent on a week about basis up until around August 2020, when issues with the children going into the mother’s care emerged. By then, the child protection authority in the area where the children were then living, G Service (“G Service”) had become involved with the family.
In late September 2020, the father commenced Family Court proceedings in England. On 23 February 2021, being the first return date in the English court, orders were made appointing a single expert in the proceedings and prohibiting the assessment of the children by any other professional.
Time between the children and mother continued, albeit limited and facilitated by G Service. However, it was not without significant difficulties, including the mother being physically assaulted by the youngest child whilst in her care.
In July 2021, the English court made interim orders for the children to live with the father and spend weekly time with the mother, however the difficulties associated with it continued.
The mother’s time with the children was unilaterally suspended by the father in November 2021 (despite the interim orders still being in force), following an incident where the youngest child ran away whilst in the mother’s care.
On 23 December 2021, the English parenting trial was confirmed for 17–20 January 2022.
In late 2021, the father applied for the renewal of the eldest child’s British passport without notice to the mother. On 28 December 2021, he booked return airfares from City B to Australia for the children and himself, departing the next day and returning on 8 January 2022. Again this was done without notice to the mother. On 29 December 2021, the father and children departed City B and arrived in Sydney on 30 December 2021. It was only then that the mother first discovered that the father and children were in Australia, following a telephone conversation she had with the youngest child.
On 5 January 2022, the mother, through her solicitors, made a proposal to the father to vacate the upcoming parenting trial and agree on final orders for the children to live with the father and spend at least three hours of time with her during the forthcoming February 2022 English school holidays, together with “such other time as may be agreed” (Annexure MH1 to the father’s affidavit filed 28 April 2022).
In the first week after their arrival in Australia, the father took both children to doctors and obtained medical certificates for each of them certifying that they were not fit to fly back to England as scheduled, due to medical conditions. He also took them to see various other health professionals.
On 7 January 2022, the father informed the mother via a WhatsApp message that he and the children would not be returning to England as planned. On 10 January 2022, the mother advised the father that she withdrew her proposal for final orders, that therefore the English trial would be commencing on 17 January 2022, and she would be requesting that proceedings be initiated seeking the return of the children to England pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”).
On 12 January 2022, the mother applied to have Hague Convention proceedings commenced by the appropriate Central Authority.
The English trial proceeded on 17 January 2022, whilst the father was still in Australia, despite his multiple requests to adjourn it. The father initially appeared via video link, however later disconnected from the hearing, which thereafter proceeded in his absence. On 20 January 2022, the English court made interim orders for the return of the children to England by no later than 23 January 2022. On 26 January 2022, further orders were made in the English court prohibiting the father from taking the children to see any professional except the court appointed single expert. Contrary to those orders, the father arranged for the children to see a psychologist and other medical professionals in Australia on several occasions thereafter.
On 14 February 2022, the English court made final orders which provided for the children to live with the mother in England, although such order was only to be implemented after the court made arrangements for the transition of the children into the mother’s care. In that limited way, the proceedings remained on foot. At the time of the primary judgment, and indeed even now, that transition plan remains pending, being due for further consideration by the English court on 1 February 2023.
The reasons for judgment of the English Family Court judge for the 14 February 2022 orders were in evidence and relied upon by the primary judge in these proceedings.
The father subsequently appealed the English Family Court’s decision, and on 23 February 2022, a judge of the Family Division of the High Court in England stayed the order requiring the return of the children, but noted that the other orders remained in force.
On 8 April 2022, the Department filed the Hague Convention application in the Federal Circuit and Family Court of Australia (Division 1) in Sydney, where it ultimately came before the primary judge for trial in July 2022. The trial concluded on 21 July 2022, with the primary judge delivering his reasons for ordering the return of the children to England on 30 September 2022.
Although the primary judge’s orders have not been stayed, the father has not returned the children to England, and they remain living with him in Australia. The English proceedings, including now two appeals brought by the father, remain ongoing.
A close analysis of the above chronology caused us some disquiet, as we raised with the parties at the hearing of the appeal. Particularly, by the time the Australian proceedings seeking the return of the children to England were commenced, an English order requiring precisely that to be done had already been made more than two months earlier, and save for the settling of the transition plan, and subject to the father’s appeal, the English parenting proceedings had concluded.
Ordinarily, Hague Convention proceedings are brought in the context of there being disagreement between the parties as to where parenting proceedings relating to the children should be litigated, but that was clearly not the case here, and more, parenting proceedings have not been commenced by either party in Australia nor, on the evidence, even foreshadowed.
We are therefore at a loss to understand why the Hague Convention proceedings were commenced, particularly since it appears, from the brief 23 February 2022 reasons of the English High Court that, consistent with English authority, it granted the stay of the 20 January 2022 return order because of the foreshadowed Hague Convention application in Australia. Given that, any sensible advice about how best to effect the return of the children to England ought to have been that Hague Convention proceedings should not be pursued, to seek to dissolve the High Court stay on the English return order, to register that order in Australia, and thereafter seek its enforcement. That procedure would have circumvented the intricacies of proceedings under the Hague Convention which we shall shortly address, and the possibility (and as it transpired, the actuality) of an appeal.
Yet now the children have been in Australia for over 12 months, with the prospect of the father seeking special leave from the High Court of Australia to appeal from this judgment, and if granted, further time elapsing until the appeal is determined.
We acknowledge that, as senior counsel for the Independent Children’s Lawyer suggested, perhaps it might have been thought that Hague Convention proceedings would be quicker than enforcing the English return order, and further, that the mother would have the assistance of the Department in effecting the return of the children pursuant to any Australian order.
However, given the now common practice in Australia in Hague Convention proceedings of appointing an Independent Children’s Lawyer, and obtaining a Family Report (as to which practice, now is not the time to make comment), the likelihood of an earlier return of the children by recourse to the Hague Convention ought to have been seen as fraught, and in retrospect, has proved nigh disastrous, given that it has precluded the children even starting down the path of returning to live with the mother for over 12 months already.
application to adduce further evidence
By Application in an Appeal filed 5 December 2022, the father sought to put on further evidence in the appeal. The Department opposed that application, but the Independent Children’s Lawyer did not.
In the event that the application was granted, by its Response to an Application in an Appeal dated 13 December 2022, the Department also sought to put on further material comprising an affidavit of Ms T sworn 13 December 2022.
We reserved our decision on the father’s application, which follows.
As argued, the father only sought to put in a portion of the material in his affidavit also filed 5 December 2022, comprising the body of the affidavit (except paragraphs 8 and 9) and two annexures to it being Annexures F and H. The Independent Children’s Lawyer also sought to rely upon Annexure F, together with Annexure C.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) gives this Court an unfettered discretion to admit further evidence on appeal. The principles relevant to the discretion (albeit in relation to earlier legislation) were discussed in the High Court in CDJ v VAJ (1998) 197 CLR 172, where McHugh, Gummow and Callinan JJ observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
The relevant paragraphs in the father’s 5 December 2022 affidavit essentially detail events which have occurred after the conclusion of the trial. The two annexures sought to be tendered by the father, comprising a position statement of G Service in the English Family Court proceedings dated 2 November 2022, and a report of an expert’s conference dated 18 November 2022, were said to inform alleged errors by the primary judge, in that it was contended that certain assumptions he made about G Service’s future involvement with the children, or the English court’s ability to effect reunification, have proven incorrect. Although as we shall later detail, neither document does any such thing – in fact, quite the opposite – nonetheless we are content to admit them, together with Annexure C and the body of the father’s 5 December 2022 affidavit (except paragraphs 8 and 9) into evidence, along with the affidavit of Ms T of 13 December 2022.
the appeal
The application to amend the Notice of Appeal
At the commencement of the hearing before us, senior counsel for the father sought to amend the grounds of appeal to include a new ground as follows:
8.The primary judge erred in finding that the date of retention was able to be inconsistent from the case articulated by the Department of Communities and Justice.
Neither the Department nor the Independent Children’s Lawyer opposed that amendment, however we nonetheless refused it for the reasons which follow.
By Order 2 of the orders of an appeal judicial registrar made on 4 November 2022, the hearing of the appeal was expedited. Rule 13.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) permits grounds of appeal to be amended as of right up until the date fixed for the filing of the appellant’s Summary of Argument. Here, under the 4 November 2022 orders, that was Wednesday 23 November 2022 (Order 8).
The father did not avail himself of that opportunity, and for that matter did not file his Summary of Argument until 28 November 2022. Although the latter failure was addressed by senior counsel for the father, the former was not. Moreover, the explanation for the latter does not appear to explain in any way the failure to file the amended grounds by 23 November 2022.
True it is that in paragraph 38 of his Summary of Argument the father did address what was then foreshadowed as the proposed Ground 8, but that submission itself identified that the proposed ground alleged an error which this Court has previously said is not: Central Authority v Wageman (2012) 48 Fam LR 254 (“Wageman”). Rather it was said that an approach subsequently preferred by a single Family Court judge – arrived at per incuriam Wageman, which plainly bound her Honour – should be preferred. There is no reason to doubt the long-standing authority of Wageman on this particular matter, and therefore the proposed ground enjoyed no merit and the amendment would have been futile. We therefore refused it.
The Regulations
Before turning to consider the grounds, it is useful at the outset to recite the parts of reg 16 of the Regulations which bear upon this appeal:
Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d)the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child's removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
…
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child's return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)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; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
…
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
Scope of appeal
Before the primary judge, the father argued that, apart from the fact that the children were both under 16 years of age, none of the relevant jurisdictional facts required under reg 16(1A) were established, but in the event that they were, sought to invoke every defence under reg 16(3). The primary judge found that all of the jurisdictional facts existed, and none of the defences were established. Although Ground 4 in the father’s appeal appeared to challenge the findings as to jurisdictional facts under regs 16(1A)(c), (d) and (e), in his oral submissions, that was expressly disavowed by senior counsel for the father, which left the appeal only challenging the primary judge’s rejection of the father’s contended defences under regs 16(3)(a), (b), (c) and (d).
Further, as to those defences, although Ground 5 sought to challenge the primary judge’s rejection of the father’s contended defence under both limbs of reg 16(3)(a), again that was specifically rejected by senior counsel for the father, who pressed only a challenge to the rejection of the defence under reg 16(3)(a)(i).
Grounds 1 and 2 – grave harm and/or intolerable situation
These grounds provide:
1.That the primary judge erred in finding that Regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (regulations) was not established:
a.That the primary judge erred in finding that the physical and psychological harm which the return to the United Kingdom would cause could be mitigated by the intervention of future (unidentified) orders of the English Court or by the intervention of G Service.
b.The primary judge was in error in finding that the risk of the children causing harm to themselves if returned to the United Kingdom was not grave.
c.It was an error to assume that a plan for the children’s return, which has not yet been prepared nor was there evidence to support (which plan would likely involve [the children] being placed in separate foster homes), could mitigate or reduce the likely physical and psychological harm to the children.
d.Erred in inferring that [the youngest child’s] threats to harm his mother were not serious and in giving inadequate weight to the children’s concerns regarding a threat from their mother. It was an error to draw inferences on these facts by reference to the [father’s] conduct.
e.That the primary judge was in error in failing to find that the children would be placed in an intolerable position.
2.That it was an error to assume that the [father] could mitigate the physical and psychological harm to the children likely caused by a return to the United Kingdom which involved separate foster care arrangements for the children in circumstances where the [father’s] ability to support the children was contingent on the father being present in the UK and/or [the mother] giving the undertaking provided for in order 14. Further in support of this ground of appeal the [father] will seek leave to rely on further evidence that [the mother] on 7 October 2022 threatened criminal and punitive sanction arising from the [father’s] conduct.
Before the primary judge, the father asserted there were risks of physical and psychological harm to the children if they were to return to England, and which return would place them in an intolerable situation. It is not in dispute that in assessing those risks, the primary judge was obliged to undertake an evaluative prediction based on the evidence which included an assessment of the likelihood of those risks arising (DP v Commonwealth Central Authority (2001) 206 CLR 401 (“DP v Commonwealth Central Authority”)). We are satisfied that appellate review of such an evaluative exercise is to be conducted as explained by the High Court in Lee v Lee (2019) 266 CLR 129.
The first risk was said to be a risk of physical harm to the children by their own hand. As to this the primary judge found:
361.In relation to the alleged risk of physical harm to the children, occasioned by themselves, Ms E [the Australian family report writer] opines that “their extreme assertions of harm to themselves … are disturbing” (at [53] and see also [59]). They are indeed so. However, she continues by opining that “[e]nsuring that they are adequately supported is important, provided that any therapist was fully informed of their complex family context” (at [53]) and that “there would need to be scaffolding around the children” were a decision made to return them to the United Kingdom (at [59]).
362.There was no evidence (and thankfully so) that would enable me to find that, notwithstanding their threats, these young children, aged 10 and 8 years, would actually know how or have the capacity, to carry out and carry through with their threats.
(Emphasis added)
Before us, whilst this risk was the subject of Ground 1(b) and still pressed, senior counsel conceded that it was less likely to eventuate than the other risks he relied upon. The evidence could not possibly establish that, taken in isolation, the risk of the children self-harming was a grave one. No error in this regard is established, and Ground 1(b) is forlorn.
The next risk was said to be one of physical harm by the mother, which was rejected by the primary judge (at [358]). That was not challenged in this appeal, so no more need to be said about it.
At trial the evidence raised the prospect of there being some risk of the children assaulting the mother. As to this at [338] the primary judge said:
338.At the outset, it must be noted the defence is one of grave risk of harm or intolerability insofar as the children are concerned. In some cases, a risk of harm to the returning parent may, in turn, expose children to a grave risk of harm or intolerability: Murray v Director, Family Services, ACT. However, in this case, [the youngest child] (in particular) has made threats to harm and, indeed, kill his mother, who is the requesting parent. Notwithstanding those threats, the mother persists with her request, and the [Department] persists with its application, for the return of the children to the United Kingdom. I infer that the father does not take [the youngest child’s] threats in this regard seriously because it is not contended by him that physical harm to the mother, especially if inflicted by one of the children, would expose them to a grave risk of psychological harm. Presumably, if [the youngest child] harmed or killed his mother, there would be a risk (possibly even a grave one) that such actions would expose [the eldest child] and him to psychological harm arising therefrom. However, that is not part of the father’s case and I need take this issue no further.
(Emphasis added)
Despite not being pressed at trial, nonetheless this appeared to be the subject of Ground 1(d), and perhaps also 1(a), and we shall discuss it later.
Finally it was said that the return risked psychological harm to the children. As to that, the primary judge ultimately concluded as follows:
370.It is not contested, and I do not disagree, that a return to the United Kingdom will be difficult for these children and will require a well-thought out plan supported by relevant professionals. However, on my assessment of the evidence, and for the reasons herein, that does not equate to a grave risk of that the return of the children to the United Kingdom would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
…
384.In the circumstances, I am satisfied that, whilst there will inevitably be disruption, uncertainty and anxiety which follows an unwelcome return to the United Kingdom, there is not “clear and compelling evidence of grave risk” of harm or other intolerability in the sense discussed by the English Court of Appeal in Re C (Abduction: Grave Risk of Psychological Harm) at 1154 and by Bennett J in State Central Authority & Sigouras at [79]. I am fortified in coming to this conclusion by the evidence of Ms E in the course of her cross-examination by Senior Counsel for the father. When asked whether the return of the children to the United Kingdom would be a highly traumatic experience for them, she responded that it would be a “really difficult experience" for them. She was not challenged in this regard. In my view, a really difficult experience is qualitatively lesser or lower than a highly traumatic one. Further, when asked whether there is a risk to the children of physical self-harm if they are returned to England, she agreed that “there is a risk". However, she was not asked whether, nor did she proffer any opinion that, such a risk is a grave one.
385.As the plurality of the High Court held in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services, in considering this defence, I must make a prediction, based on the evidence, of what may happen if the children are returned. I must be persuaded that there is a risk which warrants the qualitative description “grave”. It is clear that if the children returned, difficult though it will be for them in the short term, a court already exercising in relation to them awaits, as does G Service, which has been involved with them since after separation. They will also have the benefit of Ms E’s involvement with them, prior to their return, (to which I refer further below) as well as that of Ms H upon their return. I am satisfied that such scaffolding, together with active and firm support of the father, which I now expect of him, sufficiently mitigate the risk of harm to them or of them being placed in an intolerable situation, such that the risk could not be described as “grave”. This is so, even if they are temporarily separated from each other and / or placed in foster care. It would be presumptuous, in the extreme, for this court to presume that any child welfare arrangements made for the children by the court and child protection services in the United Kingdom would be insufficient to mitigate any risk to them.
386.Ms H gave evidence that she could, with assistance of three other colleagues, assist in returning the children to the United Kingdom. She explained they would work in shifts of two on and two off duty. She said that, in her experience, physical force is never used. Occasionally, police may be called upon, who use their authority to explain to the children the need to comply.
387.Ms H also explained that her task, in the preparation of a therapeutic reunification plan, is to assist children to have a relationship with both parents. In order to achieve this, she said the children would need to be in the physical presence of the estranged parent, as “concrete” means are needed to achieve restoration. She also said that, in her experience, even where children have been physically or sexually abused by a parent, they have a longing for that parent. I accept that evidence and am fortified by it in my dismissal of the fathers reg 16(3)(b) defence.
(Emphasis added)
The primary judge also emphasised the amelioration of the several risks which was available in England at [337] where, consistent with the extract recited above, his Honour said:
337.The questions I must determine are: is there a 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 and, if so, is that risk grave? For the reasons below, I find that whilst there is a risk, I am satisfied that, on balance, it is not a grave risk, especially in circumstances where the risk can be ameliorated by the English court and G Service.
(Emphasis added)
The first question raised by Grounds 1(a), (c) and 2 is whether, as the father contended, but for the mitigatory measures discussed by the primary judge, his Honour was satisfied there would be a grave risk of harm. Certainly nowhere does his Honour say that and indeed we read [337] as tending towards the opposite conclusion.
Nonetheless, even if his Honour was only persuaded that the risk was not grave because of the ameliorative measures he discussed, there is still no merit in this challenge. As to that, the arguments advanced under Grounds 1 and 2 particularly focussed upon the alleged uncertainty in relation to those ameliorating supports being available to the children in England. It was said that G Service was no longer involved in the English proceedings, and there was now some disagreement between the relevant professionals involved in the English Family Court proceedings as to how reunification could be best effected. Further, given that if returned, the children could not immediately live with the mother, their potential placement with foster carers was the subject of criticism. More, it was said that the primary judge erroneously placed weight on the prospect of the father supporting the children in the transition into the mother’s care.
At least initially, central to all of these contentions was the need for institutional involvement, rather than the father undertaking any significant role in England, given the prospect of him being exposed to criminal sanction in England by virtue of his breaches of English Family Court orders. Mindful of that, the primary judge required the mother to provide an undertaking to both the relevant English and Australian courts that “she will not press criminal or any punitive sanctions against [the father] in respect of any prior breaches or alleged breaches of orders” made in the English proceedings (Order 14).
Although no such undertaking had been filed by the time the father filed his Summary of Argument on 28 November 2022 (see, for example paragraph 13(c)) the mother has now filed and served on the father the relevant undertaking in both the Australian and English courts (although the father claimed not to be aware of that until after 5 December 2022). Thus this practical impediment to the father travelling to England, which was one of three reasons advanced in his Summary of Argument as to why the primary judge’s alleged assumption that the children would be sufficiently supported in their transition into the mother’s care was erroneous, has now evaporated.
We should emphasise that therefore, any continuing risk of the children misbehaving on the return flight to England if not travelling with the father, or having no option but being placed into foster care upon their return to England, would be, if not entirely, then at least substantially, the result of the father’s intransigence. As a general proposition, parents should not be able to rely upon risks of harm of their own making to resist return orders (DP v Commonwealth Central Authority at 410 per Gleeson CJ and 449 per Kirby J; Director-General of Family and Community Services v Davis (1990) FLC 92-182 at 78,228).
As to the father’s intentions, at [373] the primary judge said:
373.Ms E opines that, whilst both parents acknowledge that a decision to return them to England may be harmful, “each seemed limited in being able to ameliorate this harm for the children in the short term” and that it “is likely that [the father] may find it very difficult to assist the children with such a decision given he supports their views and he reports having felt helpless to facilitate their contact in the past. Whether he would be able to in any way contain or support the children with such a decision is questionable” (at [61]). Given my concerns about the father’s motives in bringing the children to Australia, I would interpolate, after the word “able” in that latter sentence, the words “or willing”. However, I acknowledge that he told Ms E he “would do anything for his children, even ‘move to Mars’” (at [48]). I will take him at, and hold him to, his word and therefore expect that, disappointed as he will be by my decision, he will need to firmly support, encourage and ensure their return to the United Kingdom.
(Emphasis added)
Later at [377] his Honour continued:
377.I find that, whether by omission or comission on the part of the father, the children now largely find themselves in the position in which they are. Despite my misgivings, all parties agree that, in the first instance, the father should be given the opportunity of returning the children to the United Kingdom himself and, as discussed below, in the circumstances I will make such an order. However, that will require him to appear to them unequivocally supportive and encouraging of their return. He cannot sabotage their return to the United Kingdom, or be allowed to do so.
(Emphasis added)
Before us, senior counsel for the father contended that the aspects of those paragraphs which we have emphasised were mere assumptions, and that the primary judge relied too heavily upon the father’s support of the children’s return in concluding that the risks were ameliorated. The simple answer to that contention is that the primary judge was sceptical about the father’s likely actions, and clearly the orders were not contingent upon the father’s support of the return of the children to England. That much is plain from Order 4, which expressly contemplates that the father might do no such thing, in which event, the Department would need to effect the return of the children to England.
In any event, the father’s submissions in this respect are contrary to his own words and conduct.
Firstly, as the primary judge recorded, the father did indeed tell Ms E that he would do anything for his children. There was therefore evidence from which the father’s support of the children’s return to England could be inferred.
Secondly, there was direct evidence as to his intentions as well. Particularly Order 2 which gives the father liberty to return to England with the children, although primarily sought by the Independent Children’s Lawyer, was also sought by the father himself (Order 1(a) of the father’s proposed minute of order, Exhibit F3). Therefore the father sought orders which would permit him to ameliorate the risks to the children.
Thirdly, during closing submissions before the primary judge, the father (albeit in the result, unsuccessfully) sought that a condition be imposed upon any return order that the children at least initially live with him in England (Transcript 21 July 2022, p.498 lines 29–31) which order was also sought at paragraph 1(g) in his proposed minute of order handed up during addresses (Exhibit F3). Clearer conduct is difficult to envisage.
Ultimately it appeared that the father’s submissions to us on this point were akin to him saying that the primary judge erred by taking him at his word. Such a submission must be rejected.
As to the alleged disengagement of G Service, and lack of future support from it upon the children’s return, a proper reading of Annexure F to the father’s affidavit of 5 December 2022 shows that is only because the children would then not be returning to G Service’s district. However it is clear that whichever local government borough the children return to, similar services to those offered by G Service are available (Annexure F to the father’s affidavit filed 5 December 2022, paragraphs 15 and 17). As we previously noted, in this respect the new material which the father sought to lead on the appeal actually contradicted his submissions.
Finally, it is not contentious that the reunification plan in England is still to be determined, with it to be considered by the English court on 1 February 2023. Even if by then there remains some divergence in the expert advice as to how reunification should best proceed, it is plainly the role of the English court to evaluate such evidence and determine the way forward. It would be unreasonable to think that the English courts “are not appropriately equipped to make suitable arrangements for the [children’s] welfare” (Gsponer v Director-General, Department of Community Services, Victoria (1989) FLC 92-001). Indeed the father’s submissions in this respect are rather curious, considering it was he who initially commenced proceedings in the very court he now implicitly criticises.
Further, now that the father is no longer at risk of criminal or punitive proceedings in England, his potential involvement in caring for the children upon their return to England might well obviate any need for them to either be split, or placed into foster care at all.
We are not persuaded that the primary judge erred as contended by Grounds 1(a), (c) and 2.
Although not directly argued before the primary judge, before us the father contended for further risks of harm to the children, comprising them “acting out” or being hurt in the course of running away if in the care of the mother. As to the former, it appears to be little more than a repetition of the risk of psychological harm to the children if they were to harm the mother, or others, which as we have noted was not part of the father’s case before the primary judge. Even if it is open to the father to raise it now, there is no reason to think that the primary judge erred by dismissing the risk as unlikely to eventuate.
As to the risks associated with running away, whilst it is true that in doing so in the past, major roads have been crossed, the evidence fell far short of establishing that the children were thereby imperilled, or that they acted recklessly, oblivious to any risk of harm. Again this risk was not pressed before the primary judge, and there is no reason to think his Honour erred by failing to address it.
As to Ground 1(d), at the time the return order was made, the youngest child was then only eight, and questions of weight to be given to the relevant evidence were quintessentially for the primary judge. The complaint about the drawing of inferences about his threats by reference to the father’s conduct appears to be based on the first bolded passage in [338] which we have recited earlier in these reasons at [47]. However there was ample material in the family report which was traversed by the primary judge at [365]–[369] about the children’s views of their mother, which also bore upon the seriousness of their threats. Even if the primary judge did draw an inference based from the father’s conduct, that was not impermissible or erroneous. Ground 1(d) is without merit.
Whether considered individually or collectively, we are not persuaded that the primary judge erred in the ways contended by Grounds 1(a), (b), (c), (d) and Ground 2, or more generally that the primary judge erred by not concluding that there was a grave risk of harm to the children if they returned to England.
Ground 1(e) was not separately addressed, and we will therefore not address it either, save to say that on our assessment, the evidence fell far short of establishing that return of the children would place them in an intolerable position, and therefore no error on the part of the primary judge is discernible.
Finally we should address an argument advanced under these grounds that at [383] the primary judge conflated the question of grave risk as posed by reg 16(3)(b) with the residual discretion which reg 16(5) creates in the event that one or more of the defences are established.
There the primary judge said:
383.Ms E concludes her Family Report by opining that “[w]hile there is identified harm with a return to England, this needs to be carefully balanced against the harm of the children remaining in Australia, estranged from their mother and continuing to have such polarised and disturbed thinking with no opportunity for relationship repair” (at [62]). I note that whilst she referred in her report, inter alia, to the children’s “extreme assertions of harm to themselves” and to a return being “likely to be harmful” to them, in that they “may become acutely distressed and there would be concerns about their reactions”, that risk is not opined by her to be a grave one. I agree. Further, that risk is assessed by her to be more likely in the short term and I need to balance it against the risk to them, including in the long-term, of remaining estranged from their mother and continuing to have the polarised and disturbing thinking identified by Ms E, with no opportunity for relationship repair, if the children remain in Australia.
(Emphasis added)
In that paragraph the primary judge is traversing the evidence of Ms E, and it is clear from the quotation from her family report in the first sentence, that it was she who proposed some balancing of risks. In the bolded part of the extract above, the primary judge is doing no more than revisiting that quote. Even if the primary judge was incorrectly stating what his task was, there is no reason to think that any such error was thereafter perpetuated, or in any way impacted his decision, as plainly no such balancing exercise was in fact undertaken. This contention is without merit.
Grounds 1 and 2 both fail.
Ground 3 – decision to exclude evidence
This ground provides:
3.That the primary judge erred in rejecting the tender of Dr W’s report pursuant to s.138 of the Evidence Act 1988 [sic] (Cth).
Dr W was a psychologist who saw the children after they came to Australia, and who provided reports about them to the father’s solicitor. It is seemingly not now in dispute that in having her so act, the father was in breach of English court orders.
Section 138 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides as follows:
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The primary judge’s reasons for rejecting Dr W’s reports were as follows:
(a)her reports were “deliberately or recklessly obtained in clear breach of the English order” (at [127]);
(b)unlike Ms E who was the family report writer, Dr W did not seek any input from the mother, which rendered her reports of limited probative value (at [127]);
(c)The family report was more fulsome and recent (at [127]);
(d)the complete absence of any desirability of admitting Dr W’s evidence did not outweigh the undesirability of admitting it, given how it was obtained (at [127]).
The father challenged the primary judge’s finding that Dr W’s reports were “deliberately or recklessly obtained in clear breach of the English order” and that the primary judge gave no weight to the father’s explanation that by retaining her, the father was seeking to obtain appropriate therapy for them.
However the primary judge took a dim view of the father’s credibility generally, which was well open on the evidence, and not challenged on appeal.
More, the relevant order made by the English court on 26 January 2022 prohibited the father taking the children to any further appointments with Dr W, who was specifically named in the order. How the father’s continued taking of the children to her thereafter was not at least recklessly, and likely deliberately, in breach of that order, is not at all clear.
In any event, as argued this ground was founded on the premise that Dr W was engaged therapeutically rather than forensically, something which the primary judge expressly did not decide (at [106]). However that premise is clearly false by a review of relevant material.
The first contact with Dr W relevant to this proceeding was by the father’s solicitor on 12 January 2022, as is made plain by her letter to that solicitor of 26 January 2022 (Annexure C to the affidavit of Dr W filed 28 April 2022).
The email communications between the father and his solicitor of 12 January 2022, which bookended that first contact with Dr W (as contained in Exhibit ICL 2 at p.13–15), are telling (although the time stamps are likely erroneous).
At 12.15 am the father wrote to his solicitor as follows:
Hi Mr S
Can I ask you to kindly make the request / appointment. I have been strongly advised this is the better approach.
The children are free and available any time and I would like them to be seen urgently.
I attach the doctor notes and referrals.
…
(Emphasis added)
At 1.46 am the solicitor responded:
Mr Hays
Here are the contact details of Ms W, with whom I have briefly discussed your situation.
…
Ms W has availability to meet with you in person tomorrow morning, and would prefer to meet with you (alone) before deciding whether or not to meet with [the children]. (I am assuming that you can have the children minded while you are in town).
Ms W is not only very good at what she does – she has authored a number of books on parenting for separated parents: she – like the three of us – is also a Pom.
I have advised Ms W that if she can meet with the children, I may require a report from her, in relation to the children’s views.
PS I am copying Ms W in on this email, I think she is sailing this arvo, so perhaps an SMS or email to Ms W this arvo – to indicate your availability for an in-person meeting tomorrow morning – will be the best way to proceed.
…
(Emphasis added)
It is patently clear from those, and particularly the phrase “I may require a report from her” that long before Dr W first met with the children, she was not only expressly recruited with a forensic purpose well and truly in mind, but that purpose had actually been advised to her.
That is confirmed by the briefing letter to her of 25 January 2022 which in requesting a report from her in relation to both children, stated that “[w]e should make it clear that you are not being asked to act as a single or joint expert in any proceedings” (Annexure B to the affidavit of Dr W filed 28 April 2022). Quite so; she was being asked to act as an adversarial expert.
To the extent that the father tried to link Dr W’s alleged recruitment as a therapist with general practitioner referrals of the children for counselling, that failed, as those referrals were expressly to MM Psychology (Annexure E to the affidavit of [the Independent Children’s Lawyer] filed 24 May 2022). In any event, it is plain from the relevant general practitioner notes that it was the father who sought at least the referral in relation to the youngest child (patient notes of 7 January 2022 at Exhibit ICL 2, p.7).
All of this makes it unnecessary for us to determine an interesting issue which emerged during the appeal, namely whether appellate review of a s 138 ruling engages the principles espoused in House v The King (1936) 55 CLR 499, as even if they are not engaged, the decision was plainly right.
The primary judge did not err as this ground contends.
There is a further, and its seems to us insurmountable, obstacle to the appeal succeeding on this ground, namely that in the alternative to rejecting Dr W’s report under s 138 of the Evidence Act, the primary judge indicated that in any event, he would also have rejected it under s 135. Although in his Summary of Argument the father said the primary judge’s basis for exclusion under that section was “not explained” (paragraph 25), it was in fact explained in detail by his Honour at [128]–[131].
No ground of appeal challenges that alternative basis for rejection of Dr W’s reports, and the father’s suggestion that it could only be considered if a Notice of Contention raising s 135 had been filed (and none was) must be rejected, as such a notice is only required if a respondent “contends that the order should be affirmed on grounds other than those relied on by the court appealed from” (r 13.08 of the Rules).
Grounds 4 and 5 – mother not exercising rights of custody
These grounds contend:
4.That the primary judge erred in finding that Regulation 16(1A) (c) (d) and (e) of the Regulations had been satisfied at the time the primary judge found the children were wrongfully retained in Australia; and that Regulation 16(3)(a) was not established by the [father].
5.The primary judge erred in finding that the mother’s email to the father on 5 January 2022 did not impliedly consent and/or acquiesce to the father being solely entitled to determine the country of residence of the children; and in finding that the mother was still exercising rights of custody between December 2021 and January 2022.
We have already noted that, as argued, these grounds were expressly restricted to a challenge of whether the defence under reg 16(3)(a) was established, and particularly that at the time of the retention, the mother was not actually exercising rights of custody. It was conceded that, as so argued, Ground 5 raised precisely the same matter as Ground 4, and hence need not be considered separately.
As to whether the mother was in fact exercising such rights on 7 January 2022, at [305]–[314] the primary judge said as follows:
305.It is submitted on behalf of the [Department] that it is readily apparent the mother was actively pursuing her rights of custody. I agree.
306.The proceedings in the English court had been on foot since September 2020 when the parents filed their competing applications for parenting orders. When the father removed the children from the United Kingdom on 29 December 2021, albeit lawfully, he knew that the mother was seeking orders, at trial the following month, that the children live with her. Indeed, the orders made by the English court on 8 July 2021 contained the following statement:
The mother indicated her position is that in the absence of immediate and meaningful engagement and changed from the father resulting in the full restoration of the children’s relationship with her, she will be seeking an order that the children live with her.
307.At the following hearing, on 20 December 2021, her position had not changed. The orders made that day listed, among the pending applications -
The mother's application dated 30 September 2020 by which she seeks an urgent order that the children are returned to her care and that the father be prohibited from removing the children from her care…
308.The recitals to those orders noted, inter alia, that the mother did not agree that the children's contact with her should be suspended or that there should be any supervision and that she had indicated to the court that her position was that, at trial (the following month), she would be seeking an order that the children live with her.
309.When, on 30 December 2021, the mother was first informed that the father had removed the children to Australia and that they would be returning on 8 January 2022, she expressed the hope to him that “the kids enjoy the trip” (emphasis added). The father's representations of having “had to come and see [his] mum” and that they would be returning to the United Kingdom on 8 January 2021 could not, and did not, suggest anything other than a brief visit to Australia. Further, the mother expressed disappointment to the father regarding his lack of notice to her, saying: “It would have been nice to have received even just a text before the kids left. It takes only a few seconds and I am their parent too”.
310.When the mother's solicitors in the United Kingdom sent the minute of proposed consent orders to the father's solicitors there, it had not been suggested to her that the children would not be returning on 8 January 2022 (or at any time thereafter). Further, although the minute only provided for one specific and short occasion of time to be spent by the children with her (namely, for at least three hours, on a date to be agreed during the February 2022 school half-term holiday), it did also provide for her to spend “such other time as may be agreed” and did not in any way detract from the parental responsibility vested in her pursuant to ss 2(1) and 3(1) of the Children Act. The suggestion by and on behalf of the father that the proposal for time to be spent by the mother with the children during the February 2022 school half-term holiday did not imply that such time be spent in England is, in my view, unsustainable when properly considered. At the time that period was specified, there was no suggestion that the children would be living anywhere other than the United Kingdom.
311.As I have found above, when, on 7 January 2022, the mother first learned that the children would not be returning to the United Kingdom the following day, she expressed her displeasure and, I unhesitatingly infer, her disagreement thereto, asking him to tell her what he was planning to do “with my children” and when they would be returning to City B, telling him that just a date would suffice.
312.I note that 7 January 2022 fell on a Friday. The next working day, on Monday, 10 January 2022, the mother's English lawyers sent the email to which I have referred above, inter alia, seeking confirmation as to when the children would be returned to England and stating that she had withdrawn her consent to the orders previously proposed by her. The following day, on Tuesday, 11 January 2022, her lawyers again wrote to the father informing him that she intended to proceed with a Hague application. A week later, the parenting trial commenced in the United Kingdom.
313.In the circumstances, it is difficult to comprehend how it could properly be contended on behalf of the father that the mother was not actually exercising her rights of custody or that she would not have exercised those rights if the children had not been retained in Australia.
314.As is correctly submitted on behalf of the [Department], the onus of proving the jurisdictional fact in reg 16(1A)(e) can be discharged “reasonably easily” by it, whereas the onus on the father to prove the exception in reg 16(3)(a)(i) is “set high”: State Central Authority & Del Rosario [2019] FamCA 607 at [127]. That jurisdictional fact clearly has been established.
(Emphasis added)
On appeal, the father claimed that “the evidence showed the mother was at various times indicating from 6 December 2021 to 7 January 2022 that she did not intend to claim a right of custody” (Father’s Summary of Argument filed 28 November 2022, paragraph 27).
However this submission overlooks what the primary judge had earlier said at [303] as follows:
303.Further, it is submitted on behalf of the father that “the mother’s provision of consent orders to the Father on 5 January 2022, in which she effectively relinquished her ability to determine where the children lived on a final basis, allow an inference to be strongly drawn, that she was consenting to the father being able to determine where the children lived”. No such inference can be properly drawn. True it is that the proposed orders provided for the children to live with the father and to spend time with the mother “for at least three hours on a date to be agreed during the February 2022 school half-term [and] such other time as may be agreed”. Accordingly, the mother sought only one guaranteed occasion of contact with the children. However, her evidence was that she hoped, if she backed away, it might assist in repairing her relationship with them.
(Emphasis added)
Senior counsel for the father was unable to explain how seeking that contact was inconsistent with her exercising rights of custody.
Whilst what the primary judge said above was plainly correct, and on that basis alone these grounds fail, there is a far shorter and irrefutable reason why the mother was exercising her rights of custody, namely that the very act of proposing the arrangements that she did in her 5 January 2022 offer, could only have itself been an exercise of her rights of custody, particularly parental responsibility. When challenged by this contention, senior counsel for the father was unable to proffer any sensible alternative source of power.
Grounds 4 and 5 are without merit.
Ground 6 – children’s objections
This ground provides:
6.That the primary judge erred in concluding that Regulation 16(3)(c) of the Regulations was not established.
As to reg 16(3)(c), at [408] his Honour said:
408.In the circumstances, I find that whilst the children object prima facie to returning to the United Kingdom and their objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes, I am satisfied that, on balance, their objection to returning to the United Kingdom and the strength thereof has its genesis in their objection to returning to their mother. The other reasons proffered by them, such as their love for life in Australia, regularly playing sport here, living near the beach, spending time bodyboarding, surfing or otherwise outdoors, their dog, their new friends and extended paternal family here, the warm weather in Australia and the “cold and miserable” weather in the United Kingdom, in my assessment of the evidence, amount to no more than the mere expression of a preference or of ordinary wishes. Further, the fact that they have proffered those preferences or ordinary wishes for not returning to the United Kingdom add to my doubt that they have attained an age and a degree of maturity at which it is appropriate to take account of their wishes generally. I accept the professional opinion of Ms E that their polarised thinking and psychological splitting is of major concern; that whilst, at ten and eight years of age, they are increasingly able to assert their views, they are still at the stage of development where they are very dependent upon their carers to meet their needs and consider their best interests; that children of their ages can be prone to black and white thinking, which is intensified in a context of high parental acrimony and extreme alignment; that, given [the eldest child’s] age and the complexity of her family situation, she appears to lack emotional maturity and the ability to tolerate different perspectives or able to have a longer term view of her situation; that her inability to tolerate any mention of England or have any ambivalence / balance in her account suggests that there would need to be some caution in attributing them significant weight; that, at [the youngest child’s] age, caution is required in attributing substantial weight to his views, especially given his impulsive presentation; and that he may not be able to fully think through his actions and appreciate the long-term implications of these.
(Emphasis added)
That accorded with the oral evidence of Ms E, as recited by the primary judge in the succeeding paragraphs.
As argued, this ground was restricted solely to an alleged error by the primary judge in not being satisfied of the matter in reg 16(3)(c)(iii) and no challenge was advanced to the findings in relation to the other matters in regs 16(3)(c)(i) and (ii). Rather this ground proceeded on the premise that the primary judge was satisfied that those latter matters were established.
However, even the most cursory reading of [408] exposes the error in that premise. Particularly the primary judge distinguished between a wish not to return to England, with a wish not to return to the mother (and also see his Honour’s discussion of that distinction at [392]), and further that “the other reasons proffered by them” are “no more than the mere expressions of a preference or of ordinary wishes”.
Therefore, even if it were found that those “other reasons proffered by them” comprised an objection to being returned such that reg 16(3)(c)(i) was satisfied – and that is by no means clear – it is patent that the primary judge was not persuaded that reg 16(3)(c)(ii) was established. Hence even if there is merit to the challenge as argued, the reg 16 defence would still not be established, and the ground must fail.
However we should briefly explain why the argument about reg 16(3)(c)(iii) is nonetheless unmeritorious. The starting point must be the ages of the children, then being eight and 10. Focus then shifts to their level of maturity, and it was in that regard that, as the primary judge noted in [408], the eldest child “appears to lack emotional maturity” and the youngest child’s “impulsive presentation and that he may not be able to fully think through his actions and appreciate the long term implications of them” loom large, particularly given no challenge to those findings of fact was advanced in this appeal, nor sensibly could have been. Plainly neither child had the requisite maturity.
Under this ground the father contended that the primary judge failed to have regard to the children’s recent Australian school reports, which described the children as mature. However whilst it is true that the primary judge did not mention them in the reasons, he was not obliged to and there is no reason to think that he therefore disregarded them (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447).
Moreover, obviously school reports are not prepared with an eye to reg 16(3)(c)(iii).
It remains to be said that the onus of establishing this defence – and all the other defences – lay on the father. It is plain that not only did the father fail so to do, but the evidence virtually precluded otherwise.
Ground 6 Fails.
Ground 7 – fundamental human rights
This ground provides:
7.The primary judge was in error in failing to conclude that Regulation (16) (3) (d) of the Regulations were not established in light of, inter alia, those matters set out in grounds 1 and 2.
We were told by senior counsel for the father that the reason why his Summary of Argument was filed late, was because the father apparently wanted to argue Ground 7 in a way that would have seen him self-represent in relation to it. Even though we assume that there must have been some movement by the father to a position which his counsel were prepared to put their names to the argument, in fairness to them, it was nonetheless not embraced with any discernible enthusiasm.
And rightly so, since unsurprisingly senior counsel was unable to cogently explain what human rights and fundamental freedoms prohibited the return of the children to England.
In their Summary of Argument, the father’s counsel appeared to contend that it was the prospect of the children being placed into foster care upon their return to England that may infringe the children’s rights under the United Nations Convention on the Rights of the Child (paragraphs 33, 34 and 36). Even to just state that proposition exposes its absurdity.
To the extent that paragraph 37 of the father’s Summary of Argument raised some alleged error by the primary judge in saying “that the best interests of the children are not a paramount consideration” in Hague Convention cases, not only is that challenge not within the purview of this ground, but again what the primary judge said was clearly correct, as indeed the father’s counsel at trial conceded (Transcript 21 July 2022, p.512 line 40 to p.513 line 3).
The contention that paramountcy of the children’s best interests in Hague Convention proceedings is derived from the United Nations Convention on the Rights of the Child was acknowledged to be contrary to High Court authority which plainly binds us (Father’s Summary of Argument filed 28 November 2022, paragraph 37) and hence we need not consider it further.
Ground 7 fails.
conclusion
No ground of appeal succeeds, and the appeal must be dismissed.
costs
In the event the appeal failed, only the Independent Children’s Lawyer sought her costs in the sum of $11,682, which order was not opposed by the father. Those costs should be paid within 28 days.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Tree. Associate:
Dated: 16 January 2023
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