M v F

[2006] FamCA 1400

FAMILY COURT OF AUSTRALIA

MCDONALD & DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES NSW [2006] FamCA 1400

APPEAL – CHILD ABDUCTION – Hague Convention – Grave risk demonstrated - discretion to return - Imposition of conditions – Mother brought 6 month old child to Australia from Belgium without knowledge or consent of the father – Trial judge found that return of the child to Belgium would put her at grave risk of  psychological harm or otherwise place her in an intolerable situation because of mother's psychological state and likely impoverishment if required to live in Belgium – Trial Judge considered this could be alleviated by the imposition of numerous conditions on the return including ensuring that mother and child could obtain visas for entry into Belgium, a protection order for the mother and provision of airfares and financial support for mother and child – These orders were subsequently varied by the trial judge so that it was sufficient for the father to provide a written undertaking to the mother in place of a court ordered protection order.

Held: that if conditions are to be imposed to alleviate what would otherwise be a grave risk to the child of return, those conditions must be clearly defined and capable of being objectively measured to determine whether or not they have been fulfilled – The orders as formulated by the trial judge do not meet these requirements nor do they succeed in neutralising the risk to the child of return – In this case, there are so many difficulties in establishing satisfactory preconditions to enable the return of the child that the only proper exercise of discretion open to the trial judge, once the grave risk exception had been established, was to refuse to make a return order – Appeal allowed – Order for return discharged.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations1986 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640; 139 ALR 417; 20 Fam LR 390; FLC 92–706
DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401;  (2001) 180 ALR 402; 27 Fam LR 569; (2001) FLC 93–081
In re D (a child) [2006] UKHL51
Re M(Abduction: Undertakings) [1995] 1 FLR 1021

APPELLANT: MS MCDONALD

RESPONDENT: DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES NSW

FILE NUMBER: SYF 3959 of 2005

APPEAL NUMBER: EA 110 of 2006

DATE DELIVERED: 22 DECEMBER 2006

PLACE DELIVERED: SYDNEY

JUDGMENT OF: KAY, WARNICK & BOLAND JJ

HEARING DATE: 6 DECEMBER 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT ORDER DATE: 6 SEPTEMBER 2006 and subsequently varied on 29 SEPTEMBER 2006

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT: MR ANDERSON

SOLICITORS FOR THE APPELLANT: LEGAL AID COMMISSION OF NSW

COUNSEL FOR THE RESPONDENT: MS HARTSTEIN

SOLICITORS FOR THE RESPONDENT: NSW DEPARTMENT OF COMMUNITY SERVICES

Orders

(1)That the appeal be allowed.

(2)That the orders made by the Honourable Justice Le Poer Trench on 6 September 2006 as varied on 29 September 2006 be set aside.

(3)That the application of the Director-General, Department of Community Services filed 13 September 2005 seeking the return of the child [S] to Belgium be dismissed.

(4)That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 110 of 2006
File Number: SYF 3959 of 2005

MS MCDONALD

Appellant

And

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES NSW

Respondent

REASONS FOR JUDGMENT

1. This is an appeal against orders made by Le Poer Trench J on 6 September 2006 and subsequently varied on 29 September 2006 that required the return to Belgium of S, a child born in November 2004, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.

2. The appellant mother primarily submits that the application for the return of the child filed 13 September 2005 should be dismissed.

Background

1. The appellant mother, an Australian national, lived in Belgium with Mr V (“the father”) from 1996 until February 2005.  The mother and the father married in Belgium in January 2001.  S was the only child born of the marriage.

2. On 13 May 2005 the mother brought the child to New South Wales without the father’s knowledge or consent. 

3. On 13 September 2005 an application was filed in the Family Court of Australia in its Sydney Registry by the Director-General, Department of Community Services as the State Central Authority for New South Wales, seeking an order for S’s return to Belgium pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction. 

4. The mother’s response to the application was to admit that the child had been removed to Australia from Belgium in breach of the custodial rights of the father but to assert there was a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place her in an intolerable situation.

5. As was then the common practice in the Sydney Registry, the application of the mother was heard and determined by a Judicial Registrar who ordered on 22 March 2006 that S be returned to Belgium as soon as practicable in the company of such persons and upon such conditions as may be agreed upon between the parties or as the Court otherwise ordered.

6. The mother immediately sought to review the order made by the Judicial Registrar.  The procedure applicable to a review of a decision of a Judicial Registrar is for the application to be heard de novo. 

7. Whilst continuing to seek an order for a dismissal of the return application, the mother also sought, in the alternative, that if the child was to be returned certain conditions of return should be attached to the order namely:

   1.That the Mother and child’s passports held at the …… Family Court pursuant to orders made 21 August 2005 be released;

   a.That upon release of the passports to the Mother that the Mother and child return to Belgium within 60 days of obtaining appropriate visas.

   b.That the details of the arrangements for the child’s return to Belgium not be disclosed to the Father.

   2.That any order placing the child’s name on the Airport Watch List or P.A.C.E. Alert be discharged.

   3.That the child be returned in the company of the Mother.

   4.That the Father continue to provide weekly urinalysis samples to a Court accredited laboratory and in accordance with the usual protocols for this type of testing:

   (a)That the test results be provided to the Mother’s solicitor as soon as practicable after the release of the results;

   (b)That in the event that the Father fails to provide clean urinalysis results, that the Mother be granted leave to re-list the matter before the Family Court of Australia.

   5.That all initial communications between the Mother and the Father on the Mother’s return to Belgium be restricted to communication through the parties’ respective legal representatives.

   6.That the Father shall consent to an order in an appropriate Belgium Court that he “shall not contact, approach, harass, intimidate or assault the Mother, the child or any member of their family, friends or associates for a period of 12 months”.

   (a)That the Central Authority provide the Mother’s solicitor with evidence of such order being made within 14 days of the Mother and child returning to Belgium.

   7.That the Father shall provide an agreed amount of financial support to the Mother until she has received a level of government housing and financial assistance which will enable the Mother to provide for the child independently.

   8.That in the event that the Father fails to pay monies ordered by the Court prior to the Mothers departure to Belgium, that the Mother be granted leave to re-list the matter before the Family Court of Australia.

   9.That the Father provide to the Mother the equivalent costs for obtaining open return air tickets between Australia and Belgium for she and the child:

   (a)That the Mother shall notify the Central Authority in writing and within 10 days of the date of the orders, the total amount required for payment of the air fares for return to Belgium;

   (b)That the Mother shall provide the Central Authority within 10 days of the date of the orders all relevant banking account details to effect the transfer of monies referred to above at (a) to the Mother’s account.

   10.That the Father make the matrimonial home… available for accommodation for the child and the Mother alone or in the alternative:

   (a)That the Father provide to the Mother an agreed sum of money to pay for the initial and usual costs incurred in leasing a home appropriate to the child’s needs;

   (b)That in the event that the Mother and the Child do not return to reside at the matrimonial home as proposed in paragraph (10) above, that the Father shall arrange for the return of necessary furniture, household possessions and personal effects belonging to the Child and the Mother;

   (c)That the father shall incur the costs associated with and effect delivery of the items specified in the last mentioned paragraph to the Mother within 14 days of receiving written notification of details for delivery.

   11.That the Central Authority shall provide written confirmation from an appropriate authority in Belgium as to the Mother’s entitlements to government housing, legal aid services and social security payments within 14 days of the Mothers departure from Australia.

8. The matter came on for hearing before Le Poer Trench J on 9 and 23 June 2006.  His Honour delivered a judgment on 12 July 2006 wherein he indicated that he would order the return of S to Belgium subject to conditions.  The matter was then further adjourned for submissions as to the appropriate conditions to be imposed.

9. On 6 September 2006 his Honour pronounced the following orders:

   1.That the Director-General, Department of Community Services make such arrangements as are necessary for the return of the child [S] (female) … to Belgium forthwith in the company of the respondent mother pursuant to the provisions of the Hague Convention on the Civil Aspects of the International Child Abduction upon the following conditions being met:

   a.that the respondent mother’s passport and the child’s passport be handed to the solicitor for the Central Authority for the purpose of organising the return of the child to Belgium.

   b.that the mother and child are provided with air transport for the return to Belgium.

   c.following the departure of the child [S] (female) … from the Commonwealth of Australia for Belgium in accordance with paragraph 1 of the Order dated 25 July 2006, the Australian Federal Police remove the names of the following persons from the PASS (sic) Alert system in operation at all Australian international arrival and departure points as soon as practicable:

   i.the child [S] (female) …

   ii.the respondent [Ms McDonald] …

   d.following the departure of the subject child from the jurisdiction of the Commonwealth of Australia in accordance with paragraph 1 of the Order dated 25 July 2006 all other orders made by the court in relation to this matter be discharged.

   e.that the Central Authority serve a sealed copy of these Orders upon the Commissioner, Australian Federal Police as soon as possible.

   f. there be liberty to restore within 24 hours notice to the courts as to the implementation of the return order.

   g.that if necessary the mother and child be provided with visas by the Belgium Government which:

   i.         permit the mother and child to reside in Belgium

   ii.permit the mother to work for remuneration in Belgium.

   h.that the equivalent of a protection order is in place prior to the mother and child returning to Belgium. That is, an Order from a court in Belgium which would restrain the father from assaulting, molesting, approaching or interfering with the mother or the child.

   i.that the mother will be provided with an income by the father or by the Belgium Government sufficient to enable her to maintain the child and herself at the same standard of living as is presently being enabled in Australia by the Australian Government.

   j.that the mother and child are provided with suitable accommodation in Belgium available to them immediately upon arrival in that country.

   k.that the mother is provided with legal aid or its equivalent in Belgium to enable her to prosecute her family law proceedings, including the consideration of any application she might wish to bring allowing her to relocate to Australia with the child from Belgium.

   l.that the mother is able to instruct a solicitor/attorney or equivalent in Belgium to act on her behalf in relation to family law proceedings prior to her departure from Australia.

   m.that the Director-General satisfies him/herself that the mother and child will be able to access appropriate health care, should it be required, in Belgium once they arrive in that country.

   n.that the mother and child’s passports are released to them to enable their travel to Belgium.

10. The State Central Authority subsequently sought some clarification of the orders as pronounced and on 29 September 2006 his Honour made further orders as follows:

    1.That Orders be made in terms of paragraphs 1 and 2 of the document entitled "Draft Minute of Order" dated 29 September 2006, filed herein as set out hereunder:

    "1.That it be sufficient compliance with Order l(i) of the Orders of this Honourable Court made on 6 September 2006 that the father pay the respondent mother the sum of 835 EUR prior to her departure from the jurisdiction of the Commonwealth of Australia to cover the respondent mother's and child's living expenses for the 1^st month.

    2.That it be sufficient compliance with Order 1(j) of the Orders of this Honourable Court made on 6 September 2006 that the father pay to the respondent mother a sum of 300 EUR to cover the mother's first month's rent prior to her departure from the jurisdiction of the Commonwealth of Australia.”

    2.That it be sufficient compliance with condition 1(h) of the Orders made by this Court on 6 September 2006 if the father provides a written Undertaking to the mother witnessed by his lawyer that he will not assault or molest the mother nor will he approach or interfere with the mother or the child prior to any Court Order being made in a Belgium Court following the return of the mother to Belgium and at which Court the mother has had an opportunity to be heard.

The judgment

1. In his reasons for judgment the trial judge outlined the mother’s case as to why the return of S would expose her to physical or psychological harm or otherwise place her in an intolerable situation.  His Honour said the mother’s evidence asserted (par 13):

   (a)A return by the Mother to Belgium would expose the Mother to the type of abuse that she says was occasioned to her at the hands of the father…This behaviour included the Father yelling at her, slapping her on the head, pulling her hair and/or threatening to kill himself.  The Mother alleged further that the Father had slapped her face, threatened to cause her to be sent back to Australia, was verbally abusive to her, threatened to harm the parties’ pet dog. 

   (b)The Mother says that the Father also abused the use of drugs and alcohol.  She alleged that the Father was violent to her friend, [I]. The mother would be traumatised if exposed to this type of behaviour from the Father. In relation to this concern of the Father’s, it is conceded that conditions could be imposed which would protect the Mother from such harms.

   (c)That the Father is a drug user and consequently the Child would be exposed to an unacceptable risk if placed in his care where that care was not supervised by a responsible adult… She said that the Father had continued using drugs and alcohol to excess and this had an adverse impact on his personality... The Father has filed an affidavit in which he clams to be free of drug use and provided a certificate to confirm that claim.

   (d)The Mother would have no financial support. She is currently supported by the receipt of a pension or allowance in Australia.… If she was to return to Belgium, she would need to be supported financially. The Father is unemployed and has been for some considerable time.  The Father receives an income in modest proportions which sounds as if it is a similar provision to that of a disability allowance which a disabled person may receive in Australia.  It seems that the Father has little ability to provide financially for the support of either the Child or the Mother.  The Mother would therefore need government support.  She would also need to be permitted to work either full time or part time if she so chose and/or if she was able to find suitable child minding arrangements for [S] during her work hours.

   (e)The Mother has no housing in Belgium. She would need to be provided with housing.  …it appears that the father’s capacity to contribute financially to the cost of rental for the Mother and Child would be limited.

   (f)The child and the Mother could be exposed to the Fathers’ behaviour which she says arises from his poor mental health…. the Mother alleges ... that the Father admitted himself to a psychiatric hospital in April 2005.  In material provided by the Father himself, he confirms that he has been hospitalised in relation to a psychiatric condition.

   (g)The Mother does not have legal representation in Belgium. She does not have the capacity to pay legal fees. The Mother would need to access the Belgium legal service in order to prosecute an application to be able to remove the child from Belgium for the purpose of living in Australia.  She would also need to access legal assistance to deal with any application that the Father may bring in respect of the Child and or herself. The Mother would therefore need the equivalent of legal aid in Belgium.

2. The mother relied upon evidence from Dr P, a consultant psychiatrist, and Dr R, a clinical psychologist.  The Central Authority provided a report by Dr Q, an associate professor of psychiatry at the University of New South Wales.  His Honour said of that evidence:

   14.…  Dr. [Q] concludes that the Mother had suffered from Post Traumatic Stress Disorder whilst she was in Belgium and until some time after she returned to Australia.  Dr. [Q] noted that Dr. [P] and she agreed that Ms [McDonald] suffers from traumatic anxiety as a result of exposure to domestic violence and that she would suffer an exacerbation if she were to return to Belgium.  Dr [Q] further said, “in any situation of legal proceedings involving residence and custody, mother and child are exposed to a significant degree of stress and anxiety.  This is true generally and is even more significant when a woman is attempting to escape a situation of domestic violence.  Relying on the information provided by Ms [McDonald], it certainly suggests that the Father is mentally unstable and that he has been threatening and violent towards her and the Child and towards himself.  There appears to be independent confirmation of this in terms of action taken by the refuge and the police.  This information may suggest that there may be a significant risk of harm to Ms [McDonald] and the Child.  I note that the Father was able to locate her when she went to a refuge in Belgium. She would be aware of these risks and hence her fears.”

   15.Further Dr [Q] reports “If Ms [McDonald] were facing Family Court proceedings in Australia, I would regard it as of the highest priority that she have an enforceable protection order.  She would also need access to legal services and to appropriate community services as well as financial and housing support.”… “In Australia she also has family support and this is of immense value in terms of well being and welfare of herself and the child.”  “In my opinion, these proceeding (sic) will be stressful for Ms [McDonald] and would be also if they were taking place in Australia.  Family support is available to her here and not in Belgium.”

   …

   17.In a report by Dr. [P], Consultant Psychiatrist, dated 21 April 2006, he refers to his earlier report.  Dr. [P] says, “However, the important clinical aspect would be that Ms [McDonald] did suffer with traumatic anxiety due to the domestic violence in the relationship.  Should she return to Belgium, I have predicted that she would once again experience significant clinical anxiety which would interfere with her ability to provide optimal care for her daughter, [S].”

   18.In the last paragraph of his report dated 21st April 2006, Dr. [P] says as follows, “There would be a real and significant risk that should she return to Belgium she would once again develop anxiety.  I would consider that it would be in the best interests of the child, [S], that she remain in her mothers (sic) care in Australia.”

   19.Part of the evidence relied on is a report from Dr. [R], Clinical Psychologist, dated 30th January 2006. On page 6 of that report, Dr. [R] sets out the following, “In my opinion Ms [McDonald] was suffering Post Traumatic Stress Disorder during the period leading up to her decision to leave the family home during the period of time she was residing in the women’s refuge and for at least one month after her return to Australia.  It appears that she is no longer suffering from symptoms of Post Traumatic Stress Disorder at this time. …..In my opinion, Ms [McDonald] firmly believes that her safety and that of her daughter, [S], will be jeopardised if she is to return to Belgium.  The filed document I was able to observe suggests there is substance to this belief. …….In my opinion, Ms [McDonald] is likely to re-experience intense anxiety if she is returned to Belgium.  Although she is no longer experiencing such anxiety with her current living arrangements, the nature of Post Traumatic Stress Disorder is such that cues which are associated with the original cause of this disorder are likely to trigger a re-experiencing of this disorder.  It is likely that simply on observing her husband she would begin to re-experience significant symptoms of Post Traumatic Stress Disorder.” 

   20.Dr [R] goes on to say that factors such as loss of family, loss of financial support, the challenges of living and lack of safety would all be additional factors adding to her anxiety.  He then goes on to say as follows, “ The likely exacerbation of anxiety for Ms [McDonald] if she were to return to Belgium would strongly jeopardise her ability to care for [S].  This is likely to create a disturbance in her attachment to [S].  Another factor which is likely to be a disadvantage to [S] if she were to return to Belgium with her mother is the breaking of her attachment with her grandparents.”

   21.Given [S]’s age and dependence on her mother and given her lack of contact with her father for some period of time, it seems unlikely that the Father would be able to provide care for [S] which would alleviate her from some of the consequences of her mother’s predicted increased anxiety.

1. His Honour then concluded that the return of the child S would expose her to psychological harm and would place her in an intolerable situation because:

   (a)the mother was likely to suffer anxiety and possibly a return to the type of condition she had been diagnosed as having at the time she left Belgium.  If this was the case, it would seriously affect the quality of parenting she would be able to provide to S;  and,

   (b)there was uncertainty about the provision of income, housing and legal support for the mother if she was to return to Belgium without adequate housing and financial support that would create an intolerable position for the child and could possibly in itself exacerbate the mother’s anxiety.

2. His Honour made reference to conflicting material concerning the mother’s entitlements to state assistance in Belgium, saying:

   25.The conflicting information … raises considerable doubt about the ability of the Mother to return to Belgium with the child in circumstances where she will be provided with an income to support herself and the child, accommodation of a reasonable standard for herself and the child and the ability, if she so chose, to be able to work in Belgium.

3. His Honour then outlined conditions which if imposed would mean the return to Belgium would no longer pose a grave risk of harm or an intolerable situation, those conditions being:

   (c)That the Mother and Child are provided with visas by the Belgium Government which:

   (i)Permit the Mother and Child to reside in Belgium.

   (ii)Permit the Mother to work for remuneration in Belgium.

   (d)That the equivalent of a protection order is in place prior to the Mother and Child returning to Belgium.  That is, an order which would restrain the Father from assaulting, molesting, approaching or interfering with the Mother.

   (e)That the Mother is provided with economy air tickets for herself and the child on an airline of her choice to return to Belgium.

   (f)That the Mother is provided with an income by the Father or by the Belgium Government sufficient to enable her to maintain the Child and herself at the same standard of living as is presently being enabled in Australia by the Australian Government.

   (g)That the Mother and Child are provided with suitable accommodation in Belgium available to them immediately upon arrival in that country.

   (h)That the Mother is provided with legal aid or its equivalent in Belgium to be able to prosecute her family law proceedings, including the consideration of any application she might wish to bring allowing her to relocate to Australia with the child from Belgium.

   (i)That the Mother is able to instruct a solicitor/attorney or equivalent in Belgium to act on her behalf in relation to family law proceedings prior to her departure from Australia.

   (j)That there is in place an order from a Belgium Court prior to the arrival to the Mother and Child in Belgium which restrains the Father from removing the Child from the care of the Mother until there is a further order of the Belgium Court following the arrival of the Mother in that country.

   (k)That the Director General satisfies him/herself that the Mother and Child will be able to access appropriate health care, should it be required, in Belgium once they arrive in that country.

   (l)That the Mother and Child’s passports are released to them to enable their travel to Belgium.

   (m)That the Child only be returned to Belgium in the company of the Mother.

   (n)That entries on the Airport Watch List and P.A.C.E. Alert be removed. This condition would be the subject of order by the Court in the event of the conditions being met and the return of the child to Belgium then being ready to be implemented.

4. His Honour went on to say:

   34(d)      The situation which would await the Mother if she returns [S] to Belgium will be appropriate for [S]’s and the Mothers [sic] needs if the conditions are met.

   (e)The anticipated emotional effect upon the child of an immediate return to Belgium if there were no conditions imposed by me would be intolerable. If the conditions are met I conclude that would not be the case.

   (f)The purpose of the Convention is recognised by the making of an order for return on the conditions I propose should be met before the child’s return to Belgium.

5. As already indicated, a return order subject to conditions was formally made on 6 September 2006.  It included the provision for liberty to restore within 24 hours notice to the Court as to the implementation of the return order.  The matter was relisted for mention at the request of the State Central Authority on 15 September 2006.  That listing eventually led to supplementary orders being pronounced on 29 September 2006 which his Honour described as “declaratory orders which sought to clarify obligation that was envisaged by Orders 1(i) and 1(j).”  His Honour also ordered that rather than have a protection order in place prior to the mother and child returning to Belgium, it would be sufficient if the father provided a written undertaking to the mother witnessed by his lawyer that he would not assault or molest the mother nor approach or interfere with the mother or the child prior to any court order being made in a Belgium court following the mother’s return and at which the mother had an opportunity to be heard.

The appeal

1. The primary position urged upon us at the appeal was that this was an inappropriate case for his Honour to exercise his discretion to return the child in light of the findings that the return of the child would create a grave risk to the child or place her in an intolerable situation.  A secondary aspect of the appeal was that if it was appropriate to exercise the discretion for return, it could only be exercised upon the court being satisfied that certain conditions precedent to the return had been met, those conditions needing to be stated with sufficient particularity that they could be objectively measured to determine whether the conditions had been met.  If they were not met within a reasonable time, then the order for return should automatically lapse.  Finally it was argued that the orders that were made on 29 September 2006, especially the order in relation to the substitution of the undertaking for the return order, were made after the proceedings were completed and were beyond power as his Honour was by then functus officio.  If and in so far they were within power, they so radically changed the basis upon which the return was to be ordered as to negate the exercise of discretion.

Discussion

1. Section 111B of the Family Law Act 1975 (Cth) provides that regulations may be made to enable the performance by Australia of its obligations under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention).

2. Regulation 15 of the Family Law (Child Abduction Convention) Regulations 1986 provides:

   1.If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under Regulation 14:

   (a)make an order of a kind mentioned in that Regulation;  and

   (b)make any other order that the court considers to be appropriate to give effect to the Convention;  and

   (c)include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.

3. The relevant order under Regulation 14 would be an order for the return of the child under the Convention.

4. Regulation 16 sets out the circumstances in which a court is mandatorily required to make an order for the return of the child and the circumstances, often referred to as “defences”, in which a court may refuse to make an order, but is still empowered notwithstanding a “defence” is established, to make an order for the return of a child.  In this case the relevant basis was established to empower the Court to refuse to make an order, namely that there was a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

5. In DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401; (2001) 180 ALR 402; 27 Fam LR 569; (2001) FLC 93–081, Gaudron, Gummow and Hayne JJ said at par 40:

   So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.

6. The extent of the jurisdiction to impose conditions was discussed in the majority judgment of the High Court in De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640; 139 ALR 417; 20 Fam LR 390; FLC 92–706, where Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said (citations omitted):

   It should also be noted that, in its present form, the effect of reg 15(1) is to provide that, in making an order in relation to the return of a child from Australia, the court may include in its order a condition the court considers appropriate to give effect to the Convention.

   In delivering the leading judgment in the Supreme Court of Canada in Thomson v Thomson, La Forest J said:

   Given the preamble’s statement that “the interests of children are of paramount importance”, courts of other jurisdictions have deemed themselves entitled to require undertakings of the requesting party provided that such undertakings are made within the spirit of the Convention: see Re L [(Child Abduction) (Psychological Harm)], C v C [(Minor: Abduction: Rights of Custody Abroad)], P v P (Minors) (Child Abduction); and Re A (A Minor) (Abduction). Through the use of undertakings, the requirement in Art 12 of the Convention that “the authority concerned shall order the return of the child forthwith” can be complied with, the wrongful actions of the removing party are not condoned, the long-term best interests of the child are left for a determination by the court of the child’s habitual residence, and any short-term harm to the child is ameliorated.

   Both the Supreme Court of Canada and the English Court of Appeal in C v C (Minor: Abduction: Rights of Custody Abroad) were concerned with Convention applications raising an issue as to whether the return of the child would expose the child to grave risk of psychological harm. In the latter decision, undertakings were given to the Court of Appeal by the father seeking return of the child to Australia. Butler-Sloss LJ said:

   These undertakings are crucial to the welfare of the child, who has been sufficiently disrupted in his removal from his home and his country and needs as a priority an easy and secure return home. The mother has been the primary caretaker throughout his short life, and since the parting of the parents when he was three for all but access periods his sole caretaker. If possible, she should for his sake and not for hers be with him and help him to readjust to his return. The father should not be instrumental in putting obstacles in the way of that easy return, or make difficulties once the child is back. It is essential that the judge hearing the future issues of custody and access or indeed the Australian Family Court should have the opportunity to consider the welfare of the child as paramount without emergency applications relating to the manner of the return of the child.

   It is impossible to identify any specific and detailed criteria which govern the exercise of the power whereby the court may impose such conditions on the removal of the child “as the court considers to be appropriate to give effect to the Convention”. Many of the criteria which may be applicable in a particular case are illustrated in the above passages from the Canadian and English decisions. The basic proposition is that, like other discretionary powers given in such terms, the court has to exercise discretion judicially, having regard to the subject matter, scope and purpose of the regulations.

7. In Re M(Abduction: Undertakings) [1995] 1 FLR 1021 at 1025 Butler-Sloss LJ explained the role of undertakings in eliminating and alleviating the risk to a returning child when her Ladyship said:

   It is perhaps helpful to remind those engaged in Hague Convention applications about the position of undertakings or conditions attached to an Art 12 order to return.  Such requirements are to make the return of the children easier and to provide for their necessities, such as a roof over the head, adequate maintenance, etc, until, and only until, the court of habitual residence can become seized of the proceedings brought in that jurisdiction... This court must be careful not in any way to usurp or to be thought to usurp the functions of the court of habitual residence.  Equally, the requirements made in this country must not be so elaborate that their implementation might become bogged down in protracted hearings and investigations... Undertakings have their place in the arrangements designed to smooth the return of and to protect the child for the limited time before the foreign court takes over, but they must not be used by parties to try to clog or fetter, or, in particular, to delay the enforcement of a paramount decision to return the child.

   It would be helpful if realistic time-limits for the compliance with the undertakings were included in the orders to return the child, but in the absence of a specified time, clearly the court would consider a reasonable time and not allow the case to drag on with repeated applications to the court.

8. At the Fifth Meeting of the Special Commission to Review the Operation of the Hague Convention held at The Hague in November 2006, at which both Australia and Belgium were represented, the Commission noted:

   1.8.1Courts in many jurisdictions regard the use of orders with varying names, eg stipulations, conditions, undertakings, as a useful tool to facilitate arrangements for return.  Such orders, limited in scope and duration, addressing short term issues and remaining in effect only until such time as a court in the country to which the child is returned has taken the measures required by the situation, are in keeping with the spirit of the 1980 Convention.

9. It seems to us that if conditions are to be imposed to alleviate what would otherwise be a grave risk for the return of the child, then those conditions need to be clearly defined and be capable of being objectively measured as to whether or not the conditions have been fulfilled.  The conditions need to be met before the return can take place.  In the event that they are not met, the order needs to contain a mechanism that clearly recognises the return is no longer required to take place.  All this needs to be done within a tight timetable to meet the requirements of the Convention that is founded upon the concept that prompt return to the place of habitual residence is appropriate to protect a child from the harmful effects of its wrongful removal or retention.

10. Recently the House of Lords in In re D (a child) [2006] UKHL51 set aside orders that required the return of a child to Romania four years after he had been removed from that country.  Lord Hope of Craighead said:

    4.…As the preamble to the Convention indicates, its purpose is to protect children from the harmful effects of their wrongful removal. The assumption on which the remedy of prompt return proceeds is that the state to which the child will be returned is the state of his habitual residence. Through no fault of his own, the child whose return is being sought in this case has now been settled for so long in this country that this assumption is scarcely tenable.

11. Whilst the delays in this case do not parallel the decision of the House of Lords, S, then barely six months of age, was removed from Belgium more than 18 months ago.  The assumption that her return to Belgium will now best advance her welfare cannot be so readily made.

12. In the same case Baroness Hale of Richmond, when discussing the application of the exceptions to the mandatory return of the child said:

    51.…there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention to require it.

13. Baroness Hale went on to say in par 52:

    …Thus the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there. In many cases this will be sufficient. But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so. … No-one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm.

14. Her Ladyship seems to contradict the proposition advanced that in appropriate cases undertakings or conditions may be sufficient to alleviate an Article 13B defence when she says at par 55:

    …It is common in article 13 cases to divide the issues into two. First, is one of the so-called “defences” there provided made out on the facts? Secondly, if it is, should the court exercise its discretion not to order the summary return of the child? It is possible to envisage circumstances in which a child should be returned despite the consent or acquiescence of the other party or the child’s own objections. But, as my noble and learned friend, Lord Brown of Eaton-under-Heywood, pointed out in the course of argument, it is inconceivable that a court which reached the conclusion that there was a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate.

15. Baroness Hale concludes at par 68 by reminding the reader that the Convention does not require the return of each and every child brought to this country without the consent of the other parent.  There are some cases, albeit few in number, where this is not required.

16. Given the extent of the discretion identified by the High Court in De L can it be properly said that there is an appealable error in the exercise of the discretion by the trial judge in this case?

17. When answering that question we think it is important to highlight that Dr Q’s report was commissioned by the NSW Department of Community Services and not by the mother.  Dr Q was asked to comment upon the reports prepared at the mother’s request from her psychologist Dr R and her psychiatrist Dr P. 

18. Dr P provided two reports to the Court.  The first report in November 2005 was prepared after he conducted an interview with the mother.  The conclusions reached in the first report were that if the mother was forced to return to Belgium:

    it is likely that she would come under stress due to her concerns about financial support, working and using child minding facilities.  She would not have support of family and friends in her day to day life.  Furthermore she expressed a continuing concern of violence from her former partner [the father].  The combination of these adverse factors are likely to lead to some degree of, at least, understandable anxiety.  This degree of worry and anxiety would compromise her ability to provide the optimal care for her daughter.

1. Of itself it would appear that that report would not have been sufficient to properly persuade a court of the existence of a Regulation 16(3)(b) defence. 

2. Dr R, a clinical psychologist, saw the mother in January 2006.  His report was far more detailed as to the history provided by the mother, and included the following:

   Ms [McDonald] described incidences (sic) occurring from the time she was married to her husband in 2000, saying these incidents became more regular and violent, leading up to her decision to leave the family home in 2005.  Her description of these incidents would if correct, be sufficient to induce an extreme state of anxiety on her part.  These incidents included threats made by her husband while Ms [McDonald] was in the women’s refuge.  It appears these threats towards Ms [McDonald] by her husband and a threat by her husband to burn himself in front of the refuge have been verified by the refuge worker, [RM] (27/10/05).

   …She described his increasingly unpredictable behaviour, not knowing when he might fly off the handle and direct anger or violence towards her.  She told me how he would be remorseful after incidents of violence.  He said he would seek professional help;  however she said he never did this…

   While at the refuge Ms [McDonald] advised me that for the first month while residing there she felt she needed to leave the light on in her bedroom and also have her door locked at night, even though she believed she was safe in the refuge.  She described feeling quite stressed and having lost weight.  She described difficulty with sleeping with frequent nightmares.

   …

   Ms [McDonald] advised me that she frequently experienced flashbacks of past frightening events with her husband whenever her mobile telephone rang.

   …

   I asked Ms [McDonald] for her opinion on how she would cope if she were to return to Belgium.  She described this as “a death sentence”.  She said her husband had threatened her life and has often threatened suicide in the past.  She said she maintains a fear that he may kill her and [S] and then kill himself.  She said that his state of mind still seemed to be very troubled as suggested by text messages that he sends to her sister.

3. Dr R concluded that Ms McDonald was suffering Post-Traumatic Stress Disorder during the period leading up to her decision to leave the family home, during the period of time she was residing in the women’s refuge, and for at least one month after she returned to Australia.  It was his opinion that Ms McDonald was likely to re-experience intense anxiety if she was to return to Belgium.  It was likely that simply on observing her husband she would begin to re-experience significant symptoms of Post-Traumatic Stress Disorder.  Additionally, the loss of strong family support and loss of financial support and a general sense of lack of safety would also tend to create anxiety for her.  This likely exacerbation of anxiety for her if she was to return to Belgium would strongly jeopardise her ability to care for S.

4. Dr P was then shown Dr R’s report and asked to comment.  He said whilst he was not persuaded from his own observations that the label of post-traumatic stress disorder was appropriate, it was clear that the mother had suffered from an acute stress disorder with similar features.  The important clinical aspect was that the mother did suffer with traumatic anxiety due to domestic violence and that if returned to Belgium she would once again experience significant clinical anxiety which would interfere with her ability to provide optimal care for S.  Dr P concluded saying there would be a real and significant risk that should she return to Belgium she would once again develop anxiety.

5. These reports were then provided by the Department of Community Services to Dr Q with a request that she prepare a report commenting upon the observations made by Dr P.  As already indicated, Dr Q upon reading the relevant documents, including the mother’s affidavit material, stated that she agreed with Dr R’ formulation that the mother had suffered from Post-Traumatic Stress Disorder as a result of the trauma of domestic violence.  She further agreed with the consensus reached by the other experts that the mother would suffer an exacerbation if she was returned to Belgium.  She went on to discuss the significance of alleviating the matters by the provision of necessary protection orders and appropriate material support, saying that if there were Australian Family Court proceedings it would be of the highest priority to have an enforceable protection order, the implication that it would become all the more necessary in Belgium.  She highlighted that in Australia the mother had family support which was of immense value in terms of the wellbeing and welfare of herself and the child and emphasised that such support was not available in Belgium.

6. In the passage we have already cited from DP v Commonwealth Central Authority, before determining whether to exercise the discretion to return the child, it is necessary to determine what sort of conditions could be appropriately imposed that would create a proper basis for the return of the child.  In this case the areas of concern that were identified were the minimisation of the risk that the mother’s traumatic anxiety would be exacerbated and the provision of adequate housing and financial support for the mother and child upon the return of the child.  In our view, the orders in their present form fail both requirements. 

7. The requirement recommended by Dr Q was that it was of the highest priority that there be an enforceable protection order in place if there were proceedings in Australia.  Clearly one would assume that the doctor was at the very minimum recommending the same situation be in existence in Belgium.  The order in its present form requires the child to be returned to Belgium forthwith “upon the following conditions being met”, and included a condition that the equivalent of a protection order was in place prior to the mother and child returning to Belgium.  That was defined to be an order from a court in Belgium that would restrain the father from assaulting, molesting, approaching or interfering with the mother or the child.  The return order was silent as to when it would lapse if the precondition was not met.  Given the requirement under the Convention for a prompt return of the child that is not a situation that is consistent with one of the aims of the Convention.  If such a precondition could not be met within a reasonable time the order needed to contain a provision that it would lapse and that the return would no longer be required.

8. In any event, the effect of the subsequent orders on 29 September 2006, in so far as there was any power in the trial judge to vary his own order, was to completely negate the obligation for the equivalent of a protection order to be in place by providing that it would be sufficient if the father provided a written undertaking to the mother, witnessed by his lawyer, that he would not assault or molest the mother, nor would he approach or interfere with the mother or the child prior to any court order being made in the Belgium court following the return of the mother to Belgium at which the mother had had an opportunity to be heard.  Exactly what would flow if the father breached the undertaking was not made clear.  It was to be an undertaking given by the father to the mother.  It was not an undertaking that would attract any potential jurisdiction of an Australian court to deal with the father for the breach of the undertaking, nor, given that it was not an undertaking being made to a Belgium court (if such undertakings are indeed recognised in the courts of Belgium) that would be likely to attract a penal sanction in the Belgium courts.  We question the utility of making such an order, even if there was jurisdiction so to do, which we doubt.

9. At the very least, before a condition could be devised that would alleviate the concern of the trial judge, the trial judge might need to be informed of the appropriate procedures available in Belgium for the obtaining of a protection order.  This would mean the provision of evidence as to whether such an order could be made prior to the mother’s return to Belgium and if so at whose instigation it could be obtained, for example the Central Authority in Belgium (who has a duty under the Convention to ensure the safe return of the child) or at the request of a legal practitioner or some person acting on behalf of the mother.  Once such information was available to the trial judge, then the trial judge could either further adjourn the proceedings for a short period until he was satisfied the condition had been met or alternatively express in the orders that unless such an order was obtained within a defined period of time the application for return would be dismissed.

10. Similarly regarding the provision of appropriate financial arrangements to enable the mother and the child not only to return to Belgium but there to be housed and supported, the trial judge needed to be informed, as was suggested by Dr Q, of the mother’s capacity to access appropriate community services and be given financial and housing support in Belgium.  The provision of these matters needed to be attended to as conditions precedent to the return of the child in order to alleviate the Court’s concern that there was a grave risk to the child if they were not in place and/or available to the mother.  In their present form the orders are incapable, in our view, of being interpreted so as to determine when the preconditions have been met.  Nor do they provide any time limit within which it is appropriate for the preconditions to be met.

11. Order 1(g) provides that a precondition for the return of the child is (emphasis added)

    that if necessary the mother and child be provided with visas by the Belgium Government which:

    i.         permit the mother and child to reside in Belgium

    ii.        permit the mother to work for remuneration in Belgium.

12. We do not understand the circumstances in which either the Central Authority or the mother would be able to measure whether or not it became necessary for the provision of such visas.  If the precondition is simply to clarify an issue of doubt as to whether the mother had any rights to (a) return to Belgium and reside there with the child and (b) work for remuneration in Belgium, then those were matters that needed to be clarified before the Court could decide whether it was appropriate to return the child, given the grave risk findings. 

13. The Court was of the view that it was essential to the welfare of the child that the mother be entitled to return with the child.  Once again the provision of an appropriate visa ought to have been seen as a necessary prerequisite to the making of any order.  If there were real doubts about the mother being able to obtain an appropriate visa then either those doubts ought to have been resolved before the return order was made or a time limit ought to have been set within which the mother could be expected to procure a visa.  In the event she was unable to obtain a visa within that time then liberty to apply to set the order aside could have been reserved.

14. If the Court was of the view that it was essential for the mother to be permitted by the laws of Belgium to work for remuneration then the Court needed to be satisfied that she would be so able to work.  In the absence of such satisfaction the court presumably would need to conclude that the child ought not be returned.

15. The next condition as originally set by the trial judge before the child was to be returned to Belgium, again without any time limit as to when the condition had to be met, was that contained in order 1(i) namely that the mother was to be provided with an income by the father or by the Belgium government sufficient to enable her to maintain the child and herself with the same standard of living as is presently being enabled in Australia by the Australian government.  After the Central Authority led some further evidence this order was subsequently clarified in the orders of 29 September 2006 by the declaration that the order would be sufficiently complied with if the father was to pay the mother the sum of €835 prior to her departure from the jurisdiction from the Commonwealth of Australia to cover the respondent mother’s and the child’s living expenses for the first month.  This clarification appears to us to be a significant departure from the initial order which was unlimited in quantum or time and was uncertain as there was no capacity to measure whether any income provided to the mother as a precondition to the return of the child would meet the test postulated by the trial judge although in fairness to his Honour we note there was evidence that €835 was the minimum amount of social security the mother may receive in Belgium.  Once again it seemed that if this was to be a condition precedent, as clearly it ought to have been before the return could be contemplated, then the amount necessary for whatever was considered to be an appropriate duration for the order to be in place prior to the Belgium courts being able to take over the matter should have been the subject of appropriate evidence.  The Central Authority sought to rectify these shortcomings and seemingly the clarification order made 29 September 2006 was designed to meet some of these criticisms but it did not meet the problems of time within which payment was to be made or the consequences if payment was not made.

16. Similar comments can be made in respect of Order 1(j) that required the mother and child to be provided with suitable accommodation in Belgium, available to them immediately upon arrival in that country.  That order was subsequently clarified to be the payment of the sum of €300 to cover the mother’s first month’s rent prior to her departure from the jurisdiction of the Commonwealth of Australia.  Whilst the verification is commendable in that at least it creates an identifiable condition precedent, there remains some dispute between the parties as to the sufficiency of the sum proposed.  Also the order fails to provide a reasonable time limit within which it was to be implemented before the return order could be seen as being inappropriate.

17. Order 1(k) in its present form seems to offend for two reasons.  First, all of the orders would need to be seen as conditions precedent to the return of the child.  Secondly, this particular order is expressed for the provision of legal aid unlimited as to time as to when it was to be provided and also unlimited as to the scope it was to take.  This might be seen to be an unreasonable intrusion into the affairs of the Belgian authorities, but more importantly it would be most unlikely to be in place prior to the mother leaving Australia for Belgium.

18. Any orders for preconditions need to meet the warnings of Butler-Sloss LJ in Re M above that they should not in any way usurp or be thought to usurp the functions of a court of habitual residence and that they should contain realistic time limits for compliance.

19. Whilst there is no cross appeal in this application, we would also comment that conditions 1(l) and 1(m) seem entirely inappropriate.  Condition 1(l) provides that as a matter of precondition to the return of the child the mother is able to instruct a solicitor/attorney or equivalent in Belgium to act on her behalf in relation to family law proceedings prior to her departure from Australia.

20. Condition 1(m) provides that the Director-General satisfy him/herself that the mother and child will be able to access appropriate healthcare, should it be required, in Belgium once they arrive in that country. 

21. As to the latter condition it is presumptuous to assume that Belgium does not have appropriate healthcare (whatever that means) available to persons within its borders, and secondly no time limit is given upon which the Director-General is to so satisfy him/herself nor is there any method provided for the mother to determine whether or not the Director-General has appropriately so satisfied himself or herself. 

22. In so far as the requirement that the mother be able to instruct a local solicitor or attorney in Belgium is concerned, we can only assume that that is somehow tied in to the precondition for the grant of legal aid in Belgium sufficient to enable the mother to prosecute family law proceedings, including any relocation applications.  It would be difficult to measure when the precondition had been met. 

23. Notwithstanding what we have said of the conditions as formulated, the trial judge found that conditions of that nature were all necessary in this case.That finding remains undisturbed.  However, it seems to us that there are so many difficulties involved in this case in establishing satisfactory preconditions to enable the return of the child to Belgium that the only proper exercise of discretion open to the trial judge, once the grave risk exception had been established, was to refuse to make a return order.  Even if we are in error in relation to that conclusion, given the passage of time that has now occurred since the removal of the child in May 2005, we conclude that it could no longer be seen to be an appropriate exercise of discretion to order the return of this child to Belgium, notwithstanding the flagrant disregard for the father’s rights as custodian of the child in the circumstances under which the mother wrongfully removed the child from Belgium.  It of course remains open to the father to apply to an Australian court for parenting orders which would either see the child residing with him in Belgium or at least creating a regime that would enable the child to have some form of contact with the father, hopefully with a view to establishing an appropriate parent/child relationship in due course.

24. The order in the circumstances that would be appropriate would be:

    1.        That the appeal be allowed.

    2.That the orders made by the Honourable Justice Le Poer Trench on 6 September 2006 as varied on 29 September 2006 be set aside.

    3.That the application of the Director-General, Department of Community Services filed 13 September 2005 seeking the return of the child S to Belgium be dismissed.

Costs

1. It is appropriative in this case that the appellant, who has succeeded on a question of law, should be granted a certificate relating to the appeal pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate: 

Date:  22 December 2006