HILTON & DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
[2015] FamCAFC 223
•26 November 2015
FAMILY COURT OF AUSTRALIA
| HILTON & DEPARTMENT OF FAMILY AND COMMUNITY SERVICES | [2015] FamCAFC 223 |
| FAMILY LAW – APPEAL – CHILD ABDUCTION – Where child wrongfully removed from Norway – Where return order made – Where the appellant has a history of episodic anxiety and depression – Where the appellant submitted that a return order exposed the child to a grave risk of psychological harm or placed in an intolerable situation due to the risk of deterioration of the appellant’s mental health – Whether the primary judge misconstrued regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the primary judge determined regulation 16(3)(b) is to be “narrowly construed” – Where error established – Where evidence of the mother’s mental health relied on in her case accepted by the primary judge – Where the error is not fatal as the primary judge did not apply a “narrow construction” – Appeal dismissed. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth): reg 16(3)(b) |
| DP v Commonwealth Central Authority (2001) 206 CLR 401 In Re E (Children) (Abduction: Custody Appeal) [2011] 4 All ER 517 Wolford & Attorney-General's Department (Cth) [2014] FamCAFC 197 |
| APPELLANT: | Ms Hilton |
| RESPONDENT: | The Secretary, Department of Family and Community Services |
| FILE NUMBER: | SYC | 4476 | of | 2015 |
| APPEAL NUMBER: | EA | 178 | of | 2015 |
| DATE DELIVERED: | 26 November 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 18 November 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 October 2015 |
| LOWER COURT MNC: | [2015] FamCA 849 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPELLANT: | GP Legal Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Department of Family & Community Services |
Orders
The appeal against the orders made by the Honourable Justice McClelland on 9 October 2015 is dismissed.
There is no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hilton & Secretary, Department of Family and Community Services has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 178 of 2015
File Number: SYC 4476 of 2015
| Ms Hilton |
Appellant
And
| The Secretary, Department of Family and Community Services |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 13 November 2015, Ms Hilton (“the mother”) appeals against orders made by McClelland J on 9 October 2015 which require her to make arrangements to return her son, L (“the child”) born in 2013 to Norway. On the mother’s application his Honour granted a stay of the order for return pending determination of this appeal.
The proceedings before his Honour were brought by the Secretary of the New South Wales Department of Family and Community Services in his capacity as the State Central Authority (“the Central Authority”) under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the regulations”). The regulations give effect to Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”). The Abduction Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting states; the aim being to serve the interests of all children by deterring their wrongful abduction or retention and restoring them to their place of habitual residence, but also to serve the interests of the individual child by making certain assumptions about what will be in that child’s best interest. These assumptions can be rebutted by the establishment of one or other of the defences contained in the regulations (In Re E (Children) (Abduction: Custody Appeal) [2011] 4 All ER 517 at 525; Wolford & Attorney-General's Department (Cth) [2014] FamCAFC 197).
The Central Authority resists the appeal and seeks to uphold the orders.
The mother is an Australian citizen. The child’s father, Mr R (“the father”) is a Norwegian citizen. He is not a party to the proceedings.
The mother and father met in July 2012 when the father was working in Australia on a two year contract. They started living together in April 2013. In May 2013 the father returned to Norway to start a new job. The mother arrived in Norway in July 2013 and moved into a home with the father on 1 August 2013. Their child was born in Norway in 2013 and is a Norwegian citizen.
The parties and the child returned to Australia for Christmas in December 2014. After their return to Norway, in February 2015 the mother and child moved out of the family home and the mother commenced family law proceedings in Norway.
The mother and the child travelled to Australia in April 2015 with the father’s consent to spend Easter with the mother’s family and returned to Norway as planned.
On 4 May 2015 the mother surreptitiously left Norway with the child and the following day they arrived in Australia where they have remained ever since. On their arrival in Australia, the mother, without consulting the father, applied for and on 15 June 2015 obtained Australian citizenship for the child.
On 2 July 2015 the Central Authority commenced proceedings seeking the return of the child pursuant to the regulations.
There was no argument either before the primary judge or the Court on appeal that the conditions for return prescribed in the regulations were satisfied. Thus, unless one of the defences contained in the regulations was established, his Honour was obliged to order the child be returned to Norway.
In opposing the order for the return of the child to Norway, the mother argued that if the child was returned to Norway he would be exposed to a grave risk of physical harm, psychological harm, or be otherwise placed in an intolerable situation. Thus the determination of the matter fell to a consideration of the provisions of regulation 16(3)(b) of the regulations.
Regulation 16(3)(b) relevantly provides:
A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
…
(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;
His Honour found the mother’s case of grave risk of physical harm was not made out. There is no appeal from that finding. Although his Honour was satisfied that there is a risk of psychological harm to the child by reason of the possible deterioration of the mother’s mental health, he was not satisfied that the risk was sufficiently grave to establish a reg 16(3)(b) defence to the return of the child. Thus his Honour ordered the child’s return. In framing the orders for return of the child, his Honour imposed certain conditions on the father. Although the nature and effectiveness of the conditions were challenged on appeal, the challenges were not ultimately pressed.
It was the mother’s evidence that if the child was ordered to return to Norway, she would return with him.
The evidence
The evidence before the primary judge was that the mother had in the past suffered from anxiety and depression of a significant order. While living in Norway the mother had sought psychological assistance on a number of occasions. The reports from the treating health professionals establish that on 25 June 2014 she attended her general practitioner who referred her to a psychologist at the local District Psychiatric Centre. She then attended an
out-patient clinic between 5 September and 9 December 2014. On 13 September 2014 the mother attended an out-patient clinic and consulted a psychologist to whom she was referred for treatment of depression and suicidal thoughts. All of these consultations were the subject of reports by the health professionals both as to the mother’s presentation and as to their treatment recommendations.
At the District Psychiatric Centre the mother was seen by a psychologist who set out the history given by the mother:
The patient is referred due to suicidal thoughts and depressive symptoms. During pregnancy and postnatal period the patient has developed depressive symptoms. There are many things that has happened; such as unexpected pregnancy in an unstable relationship, moving to another country with a new culture, language and climate without friends and family, lack of social relationships, lack of desire to stay in her present professional field and in addition, difficulties in the relationship. Experiencing not being able to watch TV, isolating herself, doesn’t want to be outdoors being seen. No social interaction. She is thinking about dying every day, feeling of emptiness. She manages to go to work, but find this meaningless as well and the environment is not in line with her values. Great concentration difficulties and has become less productive. She gets tiered [sic] after small amount of exercise and is usually used to many hours of exercise every day.
(As per original)
The psychologist made a tentative diagnosis of an adjustment disorder with mixed disturbance of feelings and behaviour.
The mother attended the outpatient clinic at the District Psychiatric Centre on 13 and 14 September 2014. The notes record that the reason for referral was:
The last couple of months the patient has become increasingly depressed and had a strong wish of dying this morning.
The medical notes record that the mother had possession of about one hundred Nurofen tablets but she said she did not take them because of her concern for her child. We pause to observe there is no suggestion the mother acquired the tablets with the possibility of self-harm in mind. After noting that while the risk of the mother committing suicide was higher than the average in the population, that risk was not regarded as being acute at the time of assessment. The psychologist concluded:
The patient is depressed, but not acute suicidal. The patients has a supportive network around her at home, and is therefore evaluated to benefit more from staying at home rather than at a ward. The patient is asked to take care of herself in the time ahead, so as to stabilise herself, and is offered a following up appointment/conversation tomorrow. The patients’ partner is asked to throw away all the painkillers the patients has in the cupboards. Both the patient and her husband agree with this. The patient will be evaluated again tomorrow, she will be under observation for aggravation of her depression and/or suicidal risk.
(As per original)
As to the risk of suicide the following was reported (on 22 September 2014):
The patient has thoughts about death every day. She feels a bit better now than during the weekend and has now some difficulty understanding what happened. She thought of swallowing tablets, but the thought of her son stopped her. The tablets are now thrown away. The patient has a depressive state, and is locked in a difficult situation and has difficulties in the relationship with poor communication and few feelings. Sleeping difficulties. Agitation over time. As a protective factor she states that she is feeling better. Not ben [sic] suicidal or performed selfharm previously. She has thrown away the tablets and has no detailed plans for new “actions”, and she says that the thought of her son stops her from thinking of carrying out a suicide. There are no signs of psychoses, but a type of panic attack where she experiences losing control over herself. Today the danger of suicide is not seen as acute, but the danger of suicide is seen as higher than normal population. Routines for notifying the undersigned during daytime or the emergency clinic in the evenings is being discussed if she should get scared of her own actions and behaviour. A weekly appointment at the ambulant clinic is set as a suitable and sufficient follow up.
The final opinion expressed by those who the mother consulted in Norway is that by the psychologist on 24 October 2014 in which the following conclusions are reached:
· The mother is not assessed as having a serious psychotic illness, nor being psychotic or seriously clinically depressed;
· She suffered self-destructive thoughts and dramatic emotional outbursts when experiencing rejection and fear of being left by the father; and
· The self-destructive thoughts and limited episodes of strong emotional outburst are expressions of strain due to great life changes.
For the hearing before the primary judge, the mother engaged an expert psychologist, Ms J, who prepared a report and provided an opinion as to the likely effect on the mother if she returned to Norway with the child. In the course of preparing that report, Ms J reviewed the medical records and reports from the mother’s treatment in Norway.
Ms J said of the mother’s move to Norway:
[The mother] had no family support in Norway and although was employed struggled to form meaningful friendships due in part to not speaking the predominant language of the country. She was socially isolated and experienced her spousal relationship as unsupportive and emotionally abusive while caring for a newborn. [The mother] experienced depression, which can cause mild to severe disturbances in thought and behaviours which can result in an inability to manage life’s ordinary demands and routines.
She noted that the mother was fearful that her mental health may be compromised if she returned to Norway with the child. She said:
Throughout 2014, [the mother] sought help for her increasing feelings of depression and isolation. She acknowledges that her risk of suicide was assessed as higher than average at this time although she said she had no plans to kill herself and was “focussed on [the child]” and “his needs”. I note that [the mother’s] protective factors also assessed at that time included that she was focussed on her child, highly functional in her employment (even though she disliked this), and that she was in contact with family and friends in Australia.
On the impact on the mother’s ability to act as a parent if the child is returned to Norway, Ms J said:
Parents with mental health issues experience all of the challenge of other adults in attempting to balance their various roles in the community and meeting the parenting demands of young children. [The mother] experienced symptoms of depression while living in Norway and is vulnerable to feelings of sadness, loss and grief, anxiety and hopelessness if she were ordered to return [the child] to Norway and accompanied him. Research informs us that when parents experience depression, for example, they may become less emotionally involved and invested in their children’s daily lives. Currently, [the mother] is emotionally attuned to [the child’s] needs and she is bonded to him while he is securely attached to her.
It is my view that if [the mother] were ordered to return [the child] to Norway and accompany him there is no evidence that she would experience her situation differently to last year and would likely experience similar social isolation, loss of family connectedness that would affect her parenting over time. It is likely that [the mother] would need to access an effective, intervention program that could support her and [the child] until she was able to build a positive, supportive social network and find employment.
Turning then to the effect on the child if the mother’s mental health deteriorated on a return to Norway, Ms J said:
It is my view that [the mother’s] mental health is likely to be compromised should she be required to return [the child] to Norway and accompanies him. [The mother’s] mental health problems appear situational and connected to social isolation living in a country where she does not speak the primary language of that country, spousal relationship problems and a disconnectedness from her primary supports in Australia.
Research on children who live with a parent with a mental health problem suggests that the impact of a parent’s condition is varied and unpredictable. Although parental mental health problems pose biological, psychosocial and environmental risks for children, not all children will be negatively affected in the same way. Rather, it is how the mental health condition affects the parent’s behaviour as well as familial relationships that may cause risk to a child.
Extensive evidence exists that when protective factors are present and robust in a family, the severity of risk diminishes. Research also identifies a number of factors that support healthy environments for the optimal development of children. These include parental resilience, knowledge of parenting and child development, social and emotional competence of children, social connectedness and utilisation of support at times of need.
There is no doubt that currently [the mother] is a resilient person who is bonded with her son and providing an environment that meets his developmental needs. While living in Norway she demonstrated her capacity to seek appropriate help when she felt depressed and had the primary care of a newborn infant. However, her protective factors are less robust in Norway as [the mother] does not have family support or positive and effective relationships with others in Norway that could potentially mediate the impact of re-occurring mental health problems and the impact on [the child].
The Appeal
As we have said, of the asserted grounds of appeal contained within the Notice of Appeal, only one was pressed, namely Ground 1. The mother sought and leave was granted to add a further ground of appeal, Ground 1A. Only these two grounds were argued.
Ground 1A
That the learned trial judge erred in law by misconstruing regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
The error is said to lie in his Honour’s summary of the law where he said:
50.In Director-General, Department of Families, Youth and Community Care & Bennett, the Full Court undertook a detailed consideration of the deliberations of the Hague Conference on Private International Law that led to the implementation to the Child Abduction Convention. Based on that analysis, the Full Court concluded that the regulation 16(3)(b) exception is “to be narrowly construed".
51.In undertaking that analysis, reference was made to Gsponer & Director-General, Department of Community Services, Victoria where the Court said:
So understood, regulation 16(3)(b) has a narrow interpretation. It is confined to "grave risk" of harm to the child arising from his or her return to a country which Australia has entered into this convention with. There is no reason why this Court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child's welfare.
…
We agree with the comment of Kay J in Re Lambert that "the convention is clear, in my view, that the exceptions to it are likely to be few and far between…"(Emphasis added, reference omitted)
(Footnotes omitted)
That there is to be a “narrow construction” given to the words contained in regulation 16(3)(b) was expressly rejected by the High Court in DP v Commonwealth Central Authority (2001) 206 CLR 401 where Gleeson CJ said at p 407-408:
9.To my mind, it is unhelpful to say that reg 16(3)(b) is to be construed narrowly. In a case where there is no serious question of construction involved, such a statement may be misunderstood as meaning that the provision is to be applied grudgingly. The task of the decision-maker is to give effect to the regulation according to its terms. The meaning of the regulation is not difficult to understand; the problem in a given case is more likely to be found in making the required judgment. That is not a problem of construction; it is a problem of application. …
To the same effect Gaudron, Gummow and Hayne JJ said (at p 417-418):
41. In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a “strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed”. 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…
…
44. These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
(Footnotes omitted)
Thus his Honour’s statement of the law in [50] and [51] of the reasons is wrong. His Honour’s error is somewhat surprising given that immediately following the above passages, his Honour made specific reference to DP v Commonwealth Central Authority. However, as counsel for the respondent pointed out, if his Honour did not proceed to determine the proceedings by reference to that misstated legal principle, the error is not fatal.
For the reasons which follow, we agree with counsel for the respondent that his Honour did not in fact apply a “narrow construction” to the issue before him. This is clear from the passage that follows these infelicitous paragraphs. At [52] his Honour said:
52. The task of considering whether a regulation 16(3) exception has been established, as set out in DP v Commonwealth Central Authority (supra), requires the Court to have regard to the following:
·As is made clear by the text of the Regulation, which reflects the text of the Child Abduction Convention, the onus of proof in establishing a regulation 16(3)(b) exception "lies on the party opposing return."
·The assessment as to whether there is a "grave risk" as contemplated by regulation 16(3)(b) "requires some prediction, based on the evidence of what may happen if the child is returned."
·In making that prediction, "certainty is not required”. Rather, “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."
·However, the Court will not be persuaded to make a prediction of relevant risk without some "clear and compelling evidence".
·If a risk is found to exist it is then necessary to determine whether it is of a nature "which warrants the qualitative description ‘grave’."
(Footnotes omitted)
Senior counsel for the mother agreed with the proposition that at [52] his Honour accurately summarised the proper and well settled approach to be taken when considering the defence.
However, in seeking to argue that the identified error permeated his Honour’s determination, senior counsel for the mother argued that by adopting a narrow construction, his Honour must, per force, have excluded from consideration relevant evidence falling outside that narrow approach. Whether his Honour did, in fact, take such an approach must be determined by looking at his reasons as a whole. Consideration of this aspect overlaps to a considerable degree with the issues agitated in Ground 1 to which we will shortly turn.
His Honour said:
53.In terms of the facts of this matter, the first task is to consider whether there is "clear and cogent evidence” to satisfy the Court "that there is a grave risk that the mother's psychological and emotional state is such that she will not be able to cope" with an order requiring the child to be returned in circumstances where, appropriately, she intends to accompany the child. In considering whether it is appropriate to find that the mother "will not be able to cope," it is appropriate to have regard to any evidence of the existence of "appropriate treatment" in Norway.
54.Having regard to those matters, it is then necessary to determine whether the child would be exposed to a risk as a result of the impact of the return on his mother and whether that risk “warrants the qualitative description ‘grave’."
(Footnotes omitted)
As will be seen from our discussion of Ground 1, his Honour’s reasons as a whole make it clear that he did not, in fact, apply an erroneous approach to the evidence in the matter and adopted an entirely orthodox approach to the assessment of the evidence before him.
We put to one side any failure of the trial judge to engage in a separate consideration of whether the child would be placed in an intolerable situation on a return to Norway. Senior counsel for the mother accepted that, in the circumstances of this case, the evidence as to grave risk and intolerable situation was the same and that it was the asserted grave risk to the child that established any intolerable situation.
Ground 1
We turn then to the second challenge by the mother which is that the trial judgment was affected by errors of fact when his Honour found that the mother had failed to establish grave risk of psychological harm where the evidence established that:
·If the mother had to return to Norway for any extended period of time it was probable that she would suffer anxiety and depression;
·If the mother suffered from anxiety and depression it would compromise her ability to parent the child; and
·The consequential unavailability of the mother for the child would place the child at a grave risk of psychological harm or otherwise place the child in an intolerable situation.
The trial judge accepted Ms J’s unchallenged evidence.
He said:
59.The mother relied on the fact that she has experienced depressive episodes in 2003, 2006 and 2014, when she was isolated from her family, as the basis for extrapolating that it will be likely that she will suffer further episodes if a return order is made. This, in turn, it was argued, would present a grave risk of psychological harm to the child or otherwise place him in an intolerable situation.
60.Ms [J] was engaged by the solicitors for the mother to provide an expert report in respect to the mother’s psychological condition. In the course of her report, Ms [J] observed:
It is my view that if [the mother] is ordered to return [the child] to Norway and accompany him there is no evidence that she would experience a situation differently to last year and would likely experienced similar social isolation, loss of family connectedness that would affect her parenting over time. It is likely that [the mother] would need to access an effective, intervention program that could support her and [the child] until she was able to build a positive, supportive social network and find employment.
…
It is my view that [the mother’s] mental health is likely to be compromised should she be required to return [the child] to Norway and accompanies him. [The mother’s] mental health problems appears situational and connected to social isolation living in a country where she does not speak the primary language of the country, spousal or relationship problems and a disconnectedness from her primary supports in Australia.
Research on children who live with a parent with a mental health problem suggests that the impact of a parent's condition is varied and unpredictable. Although parental mental health problems posed biological, psychosocial and environmental risks for children, not all children will be negatively affected in the same way. Rather, it is how the mental health condition affects the parents behaviour as well as familial relationships that may cause risk to a child
…
There is no doubt that currently [the mother] is a resilient person who is bonded with her son and providing an environment that meets his developmental needs. While living in Norway she demonstrated her capacity to seek appropriate help when she felt depressed and had the primary care of a newborn infant. However, her protective factors are less robust in Norway as [the mother] does not have family support or positive and effective relationships with others in Norway that could potentially mediate the impact of recurring mental health problems and the impact on [the child]. (Emphasis added)
61. Taking the mother’s evidence at its highest, is the statement by Ms [J] that the mother’s "mental health is likely to be compromised should she be required to return [the child] to Norway and accompanies him." If this does eventuate then it poses a “biological, psychosocial and environmental risk” for the child although it is not possible to identify the extent of that risk because “not all children will be negatively affected in the same way.”
62. The evidence falls short of satisfying the Court, on the balance of probabilities, that [the child] will be exposed to a “grave risk” as required by regulation 16(b)(3) if a return order is made.
63. Moreover, in so far as there is a risk to the child, and no risk to a child should be ignored, that risk needs to be seen in the following context:
· The mother will have access to appropriate health services including mental health services that are available in Norway.
· The evidence establishes that those services were effective in previously treating the mother’s depression.
· Unlike the facts in Berney (supra), the child would have his father, and his broader paternal family, available to him to support him through any period during which his mother’s care for him may be compromised by a depressive condition.
· This matter is before a Norwegian court with the first court event listed for 5 November 2015.
· No evidence was been presented to the Court to displace the assumption that “once the child is so returned, the courts [of Norway] are not appropriately equipped to make suitable arrangements for the child's welfare.”
64. As noted, in determining risk, the Court is entitled to have regard to any treatment facilities available to the mother if a return order was not made. Counsel for the mother asserted that the evidence before the Court was only that the mother ceased having treatment after October 2014, not that the treatment received by the mother in Norway was inappropriate or successful.
65.With respect to counsel, the Court considers the evidence is stronger than that. The nature of the treatment the mother received in Norway in the period from June until October 2014 is summarised in detailed reports from the Norwegian health system. Translations of those reports are annexed to the mother’s cross application (Form 2A) and are admissible pursuant to regulation 29(2). No evidence was presented by the mother that the treatment was in anyway inappropriate.
66. In terms of success of the treatment, the evidence from Ms [J’s] report was that the mother is now psychologically robust and has no long term psychological illness. It is noted that it was argued that the mother’s psychological health was situational in so far as difficulties may emerge in Norway but not in Australia. Nevertheless, the evidence is that, with the benefit of treatment in Norway, the mother has not suffered any long term or permanent health consequences.
(Footnotes omitted)
As the ground itself contends, the mother argues that the evidence before his Honour led to three conclusions. First, that it is more likely than not that should the mother return to Norway she will suffer anxiety and depression. Secondly, if the mother was to suffer from anxiety and depression it would compromise her ability to parent the child. Thirdly, the effect of the anxiety or depression likely to be suffered by the mother would lead to her being unavailable to him in two ways: emotionally; and actually, in the event that she was, for example, hospitalised for intensive medical treatment.
His Honour found that the mother’s mental health was likely to be compromised on a return to Norway and further found, accepting Ms J’s evidence, that it was not possible to identify the extent of the risk to the child correctly identifying that the focus of the regulation was the risk to the child. It is significant to his Honour’s determination that neither Ms J’s interview and assessment of the mother, nor the medical notes to which she was referred, pointed to any grave risk to the child that had arisen from, or was likely to arise from, the emotional difficulties the mother had in the past or was likely to have in the event she returned to Norway.
It was submitted that his Honour failed to consider and take into account the risk to the child if the mother in fact took her life. It was submitted and is demonstrably correct that while that risk was slight, the consequences to the child would be grave. However, there was no evidence before his Honour that this risk was even a remote possibility. Ms J did not suggest differently in her report nor was it suggested by those with whom the mother consulted in Norway. His Honour made no error in failing to consider what could only be speculation.
Further, his Honour took into account that the mother would continue to have access to appropriate health services in Norway that were previously effective in treating her depression.
It follows that his Honour’s finding that the mother had failed to establish that there was a grave risk of psychological harm to the child on a return to Norway was entirely supported by the evidence.
It also follows that his Honour took the mother’s evidence into account without qualification. There was no “grudging application” of the regulation or an attempt to cast it into a narrow framework. Therefore, although his Honour incorrectly referred to authorities that supported such an approach, we are not satisfied that he followed it.
Conclusion and costs
Neither challenge to the decision of his Honour has been established. The appeal will be dismissed.
As a consequence of the appeal being dismissed the child is to be returned to Norway forthwith.
The Central Authority did not seek a costs order if that was the outcome of the appeal and, accordingly, there will be no order as to costs.
I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 26 November 2015.
Associate:
Date: 26 November 2015
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