NT Central Authority and Pankhurst
[2007] FamCA 1345
•16 November 2007
FAMILY COURT OF AUSTRALIA
| NT CENTRAL AUTHORITY & PANKHURST | [2007] FamCA 1345 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Child brought to Australia from Scotland by mother – Father seeks child’s return – Whether father has “rights of custody” – Father’s “right of veto” as right to determine child’s residence – Removal of child wrongful – Whether risk to child if return ordered – Issues of violence, drug abuse and criminal behaviour raised – Matters can be raised in Scottish Courts for appropriate determination – Not satisfied grave risk that return would expose child to harm or place in intolerable situation – Consideration of wishes expressed by child – Wishes do not amount to objection – No exception in Regulation 16(3) of Family Law (Child Abduction Convention) Regulations 1986 established – Child to be returned |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Children (Scotland) Act 1995 |
| Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321; Re D (a child) (abduction: custody rights) [2007] 1 All ER 783; R & R (unreported, Family Court of Australia, Barblett ACJ, Fogarty and Anderson JJ, 22 May 1991); Murray & Director, Family Services, ACT (1993) FLC 92-416; Gsponer & Director General, Department of Community Services, Vic (1989) FLC 92-001; Cooper & Casey (1995) FLC 92-575; Zafiropoulos and State Central Authority (2006) FLC 93-264; |
| APPLICANT: | NT Central Authority |
| RESPONDENT: | Ms Pankhurst |
| FILE NUMBER: | DNC | 409 | of | 2007 |
| DATE DELIVERED: | 16 November 2007 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 20 September 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Orwin |
| SOLICITOR FOR THE APPLICANT: | Margaret Orwin Barrister & Solicitor |
| COUNSEL FOR THE RESPONDENT: | N/A - Self-Represented |
| SOLICITOR FOR THE RESPONDENT: | N/A - Self-Represented |
Orders
Until the Central Authority consents in writing to the child travelling from Australia to Scotland the orders of the 26 July 2007 continue.
Within seven days from today the mother and Central Authority confer about and agree upon travel arrangements for the child from Darwin Australia to Glasgow Scotland.
Within six weeks from today the mother return the child to Scotland.
The father pay the costs of the airfare for the child from Darwin to Glasgow.
IT IS NOTED that publication of this judgment under the pseudonym CA & Pankhurst is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: DNC 409 of 2007
| NT CENTRAL AUTHORITY |
Applicant
And
| MS PANKHURST |
Respondent
REASONS FOR JUDGMENT
Introduction
The Central Authority for the Northern Territory has applied pursuant to the Family Law (Child Abduction Convention) Regulations 1986 for an order that the child … who was born on the … April 1998 be returned to Scotland in the United Kingdom.
The Central Authority brings the application under the Convention on behalf of the father who resides in Glasgow, Scotland. The respondent to the proceedings is Ms Pankhurst, otherwise known as …, who is the mother of the child. She is presently living in Darwin.
The Hearing
When the matter first came on before me Ms Clements as the Duty Solicitor appeared pro bono for the mother. I adjourned the matter to enable the mother to get legal advice.
On the 20 September 2007 Ms Orwin appeared as counsel for the Central Authority and the mother appeared in person.
I received the application, documents and supporting material filed by the Central Authority and two affidavits of the mother. It was agreed that the hearing should proceed on the papers without oral evidence. I also had the advantage of the Family Report dated 4 September 2007 prepared by Family Consultant, Mr R, following his interviews with the child and a brief interview with the mother.
I reserved judgment on the 20 September 2007, continuing the orders which had been made by Justice Burr on the 26 July 2007 which state:
“AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT TO MONDAY 3 SEPTEMBER 2007, THAT:-
2.The respondent mother by herself or her servants and agents be restrained and an injunction is hereby granted restraining her from causing or permitting or suffering the child […] born […] April 1998:-
(a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of this order;
(b)to be removed from Darwin in the Northern Territory; and
(c)to reside at any place other than her present residential address or any other residence at which the applicant has agreed that the said child may reside.”
Documentary Evidence
The child was born in April 1998 and is now aged 9. The father is Mr F who lives in Glasgow, Scotland. He was born in March 1976 and is now aged 31.
The mother of the child is Ms Pankhurst who was born in June 1979 and is now aged 28.
The mother and father separated in around April 2000. There is a dispute on the papers about the arrangements made for the father to spend time with the child since that time. However, it is clear from the papers that in February 2005 the father commenced proceedings in the Glasgow Sheriff Court seeking an order that he have contact with the child. Hearings took place in 2005 with orders being made that the father have contact with the child each Saturday from 12 Noon until 4.00 pm supervised by his mother.
There was a Child Welfare Hearing at the Glasgow Sheriff Court on the 24 November 2006. The father alleges that the mother told the Court that she had no intention whatsoever of moving to Australia. At that hearing the father’s contact was extended to every second weekend from 7.30 pm on Friday to 4.00 pm on Saturday and from 9.00 am to 4.00 pm on Saturdays of the intervening weekend. A further Child Welfare Hearing was fixed for the 2 March 2007.
At the hearing on the 2 March 2007 the father’s solicitors had lodged a Motion at Court requesting a Specific Issue Order preventing the mother from removing the child from Scotland. At that hearing the mother again indicated that she had no intention of moving to Australia.
The contact which the father was meant to have on the 24 March 2007 did not take place. The father was allegedly told that the child was ill and could not attend.
The affidavit of the mother sworn on the 20 August 2007 says:
“[The child] and I arrived in Australia on the 27 March 2007”
On the 27 March 2007 at the request of the father a Motion was granted prohibiting the mother from exercising her parental rights by removing the child from Scotland. Service however was not attempted until the 30 March 2007 by which time the mother had left with the child.
The documents filed by the Central Authority include:
(a)Court document of the 12 May 2005 referring to the need for the father to lodge a medical report from a General Practitioner to confirm no drug abuse;
(b)a reference to the interim contact to be supervised by the father’s mother ordered on the 24 June 2005 and continued on the 9 August 2005 and the 4 November 2005;
(c)the order of a Sheriff from Glasgow dated 24 November 2006 which states:
“The Sheriff, having heard parties’ procurators, finds the Pursuer entitled to Interim residential contact each alternative weekend from Friday 7.30 pm until Saturday 5.00 pm and finds the Pursuer entitled to Interim contact each intervening weekend on Saturday from 9.00 am until 4.00 pm, thereafter assigns 2nd March 2007 at 10.30 am as a Child Welfare Hearing.”
This was the order which was current when the mother and the child left Scotland. (Also annexed to the documents is the order of the 27 March 2007 which prohibited the mother from removing the child from Scotland).
The documents filed by the Central Authority include the affidavit of Ms B, a solicitor in Scotland setting out the applicable law in Scotland.
In the two affidavits which the mother has filed in the proceedings she alleges that the father subjected her to physical and mental abuse, that he has a criminal record and is a person who abuses drugs and alcohol. She expresses concern for the child if she spends time with the father. Her affidavits contain specific references to incidents in their past relationship, which if true, raise concerns.
The mother alleges the father has used heroin and cocaine.
The mother does not deny that the Scottish Court made orders providing for the child to spend time with the father. Part of her second affidavit states:
“33.In paragraph 3 of the same affidavit, [the father] refers to when he applied to the Courts for contact with [the child]. He did apply for contact in 2005 and began seeing [the child] again. I remember that I asked my lawyer to tell the Court about what [the father] had done in the past but the lawyer wouldn’t.
34.[The father] does not mention in his affidavit that the Court had ordered [the father] to provide the Court with urine samples to prove that he was no longer using drugs. [The father] never provided a clear sample. [The father] provided one sample and it was not clear, it showed he was still using drugs, but nothing was ever done about this. I think the sample that was not clear was given by [the father] some time before November 2006.
35.Contact with [the father] did continue. When [the father] and I were together [the child] used to wet her bed. This started again when she started seeing [the father] again. [The child] also started to suck her thumb again.”
The mother’s affidavit also states:
“45.I am scared that if [the child] is returned to live with [the father] she will be harmed both physically and mentally. [The father] has never looked after or cared for [the child]. I need to be with [the child] wherever she is because [the father] cannot look after [the child]. [The father] does not worry about exposing [the child] to drugs and violence.
46.It is not only [the father]’s drug use but also the people he spends time with and the people he has made enemies of. There are a lot of people who want to hurt [the father] and want revenge on [the father]. It is not a safe environment for [the child] at all.
47.I am certain [the father] is still using drugs. I doubt he could give a clear urine sample now. Both my mother and sister saw him recently and thought he was still using drugs.”
The mother alleges in her affidavit that her trip to Australia was originally for a holiday. She says that she was then offered a two year employment contract and that “a skill shortage 457 sponsorship visa has been lodged in June 2007 with the Department of Immigration”. (Paragraph 5 of mother’s affidavit sworn on the 20 August 2007).
The mother is now residing in Darwin with her boyfriend Mr M.
The father filed an affidavit in response to the first affidavit filed by the mother.
He disputes many of the matters raised by the mother in that affidavit. He admits that he is currently on a methadone programme which is being “closely monitored by my doctor”. He admits that he served a 10 week sentence in relation to car offences (being in response to the mother’s allegation that he served time in prison for car thief (sic) in 2004).
The mother alleges at paragraphs 9, 10 and 11 of the mother’s first affidavit that:
(i) he is a violent man; and
(ii) has many drug “enemies”; and
(iii)he assaulted the mother while she was driving a car, trying to cause an accident with the child in the car; and
(iv) The child has a fear of police because of the father’s behaviour.
The father responds that he does not accept these allegations and asserts that the mother did not “at any stage raise these issues at Glasgow Sheriff Court when the Sheriff required to make a decision about my suitability for contact”. (Paragraph 10 of the father’s affidavit filed on the 20 September 2007).
The father also denies that any bed wetting or thumb sucking problems were raised as issues by the mother at the Glasgow Sheriff Court.
The mother asserts that the child is settled into a new school and has made friends. The father asserts that the child is well settled in school in Glasgow and had “a good social life and was constantly going to parties with friends. [The child]’s life in Scotland was free of drugs, alcohol and abuse”. (Paragraph 16 of the father’s affidavit filed on the 20 September 2007).
The Family Report focused on the issues relating to Hague Convention matters, namely “an assessment of the child in terms of whether the child objects to being returned to the country from which she was removed, the nature of the objection and the possible impact on the child of being returned to that country”.
The child was brought to the interview with the Family Consultant by her mother and was aware that there were Court proceedings about whether she should remain in Australia or return to Scotland. The child presented as very quiet and shy. She reported that she enjoyed school and was enrolled in Year 4 at L School. She reported that she had made friends. During the interview the child spoke warmly of her family in Scotland, including her mother’s and father’s families (although she enjoyed a closer relationship with her mother’s family). The child indicated that she wanted to continue living in Australia, enjoy the warm weather at Darwin and the outdoor lifestyle.
The child also reported that she missed her dog in Scotland as well as her family and friends at times. At paragraph 11 of the report it is stated:
“11.…………She reported that she was accustomed to seeing her mother’s family daily while living in Scotland and seeing her father’s family on weekends. She did not acknowledge at any stage missing her father in Scotland. She spoke of time spent with her father on weekends and activities they enjoyed together. She gave the impression that her relationship with her father was not close but was still developing.”
At paragraph 12 of the report it is stated:
“12.[The child] reported that she would be “sad” if required to return to Scotland as she liked living in Australia. She expressed concern that there would be fighting between her parents on returning to Scotland and that for her this was a source of worry. She reported that her parents had argued “quite a lot” in the past.”
The conclusions of the Family Consultant were:
“13.The views of [the child] are clearly outlined in this report. She expressed the view that she would like to remain living in Australia rather than return to Scotland and she provided clear reasons for this view. It appears though that there are no major risks to [the child]’s welfare in returning to Scotland.
14.Although [the child] has expressed some concern regarding the possibility of conflict between her parents on returning to Scotland it is evident that she has the support of not only her parents, but her extended family and friends in adjusting to a return to Scotland. On returning [the child] would resume the lifestyle she left; attending the same school, and return to the home where she lived prior to coming to Australia. The presence of extended family and friends in a familiar environment are likely to ensure that she feels safe and supported in adjusting to a return to Scotland.”
Application of the Law
Scotland as part of the United Kingdom is a Convention country.
Section 111B of the Family Law Act deals with the Convention on the Civil Aspects of International Child Abduction.
Section 111B (1A) and (1B) of the Family Law Act state:
“(1A)In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision:
(a)relating to the onus of establishing that a child should not be returned under the Convention; and
(b)establishing rebuttable presumptions in favour of returning a child under the Convention; and
(c)relating to a Central Authority within the meaning of the regulations applying on behalf of another person for a parenting order that deals with the person or persons with whom a child is to spend time or communicate if the outcome of the proceedings is that the child is not to be returned under the Convention.
(1B)The regulations made for the purposes of this section must not allow an objection by a child to return under the Convention to be taken into account in proceedings unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes.”
The relevant regulations in this matter are:
“Regulation 16
(1) If:
(a)an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)the person, institution or other body seeking the child’s return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i) the child objects to being returned;
(ii) the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.”
“Rights of custody” is defined in regulation 4.
Section 111B(4) also refers to the circumstances in which “right of custody” arise and also deals with a “right of access”.
Subsection 5 specifically provides:
“Subsection 4 is not intended to be a complete statement of the circumstances in which, under the laws of the Commonwealth, the States and the Territories, a person has, for the purposes of the Convention, custody of, or access to, a child or a right or rights of custody or access in relation to a child.”
The affidavit of the father’s solicitors in Scotland identifies the applicable law in Scotland as the Children (Scotland) Act 1995. The order which was in force in Scotland at the time that the child was removed from Scotland was the order for contact made on the 24 November 2006, which provided that the father was “entitled to interim residential contact each alternative weekend from Friday 7.30 pm until Saturday 5.00 pm” and “entitled to interim contact each intervening weekend on Saturday from 9.00 am until 4.00 pm”.
The provisions of Section 2(3) of the Children (Scotland) Act 1995 state:
“Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in subsection (6) below.”
Subsection (6) reads:
“The description of a person referred to in subsection (3) above is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to him a right mentioned in paragraph (a) or (c) of subsection (1) above; except that, where both the child’s parents are persons so described, the consent required for his removal or retention shall be that of them both.”
The father was exercising the “right” referred to in paragraph (1)(c) of Section 2;
“(c)if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis”
The laws of Scotland therefore provided that the father’s consent was required before the child could be removed from Scotland.
Was the child’s removal to Australia wrongful?
(a) [The child] is a child under 16.
(b) Scotland is a Convention country.
Immediately before the child’s removal to Australia she was resident in Scotland. All of the evidence indicates that the child was habitually resident in Scotland immediately before her removal.
(c)Did the father have rights of custody in relation to [the child] under the law of Scotland immediately before her removal to Australia?
There are numerous cases dealing with the interpretation of the expression “rights of custody” in both the Convention and the Regulations. In the recent decision of the Full Court in Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321, Her Honour Justice Finn said at paragraph 22:
“22.In Jiang and Director-General Department of Community Services [2003] FamCA 929 (unreported), the Full Court (Finn, Holden and Mushin JJ) accepted (at least as then presently advised) that in determining whether a child’s removal to Australia is wrongful because it was in breach of the rights of custody which the person (or institution) seeking the return of the child had in relation to the child under the law of the country in which the child habitually resided immediately before the removal:
o the first task of the court is to establish, on the evidence before it, what rights, if any, the parent seeking the return had under the law of the foreign country in relation to the child at the time of removal;
o the next stage is to resolve, as a matter of Australian law under the Regulations (being the law of the forum where the Convention has been invoked), whether those rights amount to ‘rights of custody’ within the meaning of the Regulations; and
o finally, the question is whether or not the retention of the child was in breach of those rights, and therefore whether or not the removal was wrongful within the Regulations.
23.(See discussion and authorities referred to in paragraphs 33 to 36 of Jiang. See also In re D (a child) (abduction; custody rights) [2007] 1 ALL ER 783 at [39]).
24.It was also accepted in Jiang that the question of what rights the applicant for the return of the child had in relation to the child in the country in which the child had habitually resided immediately before being removed to Australia, must be determined by the court on the basis of expert evidence before the court. (See paragraphs 37 and 38 of Jiang). Although, it should be noted for present purposes, that under reg 29(5) the court may take judicial notice of a law in a Convention country.”
The joint judgment of May and Thackray JJ in Wenceslas (Supra) states at paragraphs 105 - 109:
105.It is important to emphasise that the meaning of “rights of custody” for the purposes of the Convention is to be determined in accordance with the law of Australia, not New Zealand. At times during the course of submissions by counsel for the Central Authority it appeared to be suggested that because K and his parents had lived in New Zealand, the decisions of the courts of that country concerning the meaning of “rights of custody” were conclusive of the issue. Any such suggestion is erroneous (as counsel for the Central Authority ultimately acknowledged) for two reasons.
106.First, New Zealand has honoured its obligations under the Convention by enacting domestic legislation. In doing so, the New Zealand Parliament has employed three different statutory definitions of “rights of custody”. The original version, which was in effect at the time Gross v Boda was decided, departed significantly from the words used in the Convention (and in the Regulations.) The amended version, which was in effect when Dellabarca v Christie was decided, came much closer to the words employed in the Convention (and the Regulations) but did not use precisely the same form of words. The current version (now to be found in s 97 of the Care of Children Act 2004) is different again.
107.Secondly, as Lord Browne-Wilkinson said in his much approved judgment in In re H (Minors) (Abduction: Acquiescence) [1998] AC 72 at 87:
An international Convention, expressed in different languages and intended to apply to a wide range of differing legal systems, cannot be construed differently in different jurisdictions. The Convention must have the same meaning and effect under the laws of all contracting states.
108.Regrettably, that ideal is more easily stated than attained. Not only have some countries used different words from those appearing in the Convention when enacting legislation to give effect to it, but also courts of different countries have sometimes taken different approaches in interpreting key elements of the Convention. In these circumstances, whilst judgments of the superior courts in New Zealand have much persuasive value, they are of no greater persuasive force than the judgments of superior courts of other signatory countries.
109.Accordingly, before we turn to consider the views expressed in the courts of New Zealand (and other countries) it is first necessary to determine whether the matter in issue has been considered and authoritatively resolved by the courts of our own country. It would be surprising indeed if the matter has not been the subject of consideration during the many years since Australia ratified the Convention.”
Conclusions
The father had “rights of access” under the Convention. The question remains however whether he had “rights of custody”.
That issue can be resolved by reference to the father’s “right of veto” as a right to determine residence. In particular, I refer to the judgments of Baroness Hale in Re D (a child) (abduction: custody rights) [2007] 1 All ER 783 and the Full Court’s decision of R & R (unreported, Family Court of Australia, Barblett ACJ, Fogarty and Anderson JJ, 22 May 1991) referred to with approval in Wenceslas (Supra).
In this case the father had a Scottish order which provided him with certain rights including the right of veto in relation to the removal of the child from Scotland. Therefore the Australian law requires an interpretation of the appropriate provisions which gives him a “right of custody”.
It is conceded by the mother that the father did not consent to the removal of the child from Scotland. The removal therefore was in breach of the father’s rights to veto or the father’s rights to be consulted about the removal from Scotland. He did not provide his consent and therefore the removal was in breach of the father’s rights.
It is necessary to consider whether the father was exercising his rights at the time the child was removed from Scotland. The father was indeed regularly taking his contact and, importantly, was also seeking to prevent the child’s removal from Scotland. The evidence clearly indicates the father was actually exercising his rights of custody.
A combination of all of these factors indicates that the child’s removal from Scotland at the time was therefore wrongful within the meaning of the Convention and the regulations under the Family Law Act.
Regulation 16(3) provides certain exceptions which need to be considered. The first question to be asked is “has the mother established that the father was not exercising his “rights of custody”, consented to the removal or acquiesced in the removal”. These matters were not an issue in the proceedings before me. No evidence was provided by the mother which would suggest that the father was not exercising his rights of custody at the time of the removal nor was there any evidence to suggest that he consented or acquiesced.
(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.
The evidence provided by the mother and the father in their affidavits raises substantial issues about violence, drug abuse, criminal behaviour and risk to the child from the father’s enemies and associates.
The father admits that in the past he had a heroin addiction, but says he is currently on methadone. He denies that there is any risk to the child.
This exception has been considered in many of the cases. In particular there has been discussion in Murray & Director, Family Services, ACT (1993) FLC 92-416, Gsponer & Director General, Department of Community Services, Vic (1989) FLC 92-001, Cooper & Casey (1995) FLC 92-575.
More recently the Full Court’s decision of Zafiropoulos & State Central Authority (2006) FLC 93-264 said:
37.It needs to be remembered that the purpose of the return under the Regulations is to enable the courts of habitual residence to determine the parenting issues that have arisen in the case. It would by no means follow that the children would be required to permanently reside in Greece nor would it by any means follow that the Greek courts would require the children to be placed in circumstances that the Greek courts found placed the children at physical or emotional risk.
38.Mr Davis urged upon us that the mere return to Greece itself in the face of the threat contained in the father’s SMS messages would place the children at risk of harm. He did however concede that the mother had taken no steps at all to alleviate that risk by making appropriate approaches to the relevant Greek authorities.
39.As we have already noted (at par 22 above) in the course of her Honour’s reasons for judgment her Honour quoted with approval from the recently published International Movement of Children: Law, Practice and Procedure, Nigel Lowe, Mark Everall and Michael Nicholls, Bristol, UK, Jordan Publishing, 2004, par 17.97 where the authors said (footnotes omitted):
“17.97 In judging risk, it is well established that courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally adept in protecting children as they are in the requested State.”
40.As discussed by Kay J in the unreported decision of SCA v Mander [2003] FamCA 1128 (17 September 2003), the particular problem created by allegations of domestic violence has been the subject of significant debate in cases throughout the world. There has been much academic writing about it. It seems to be generally accepted that the Convention was basically designed to discourage abducting non-primary caregivers, usually fathers, but that in its operation it has most significantly affected a group who can be loosely termed to be "escaping mothers". These persons are often primary caregivers who want to relocate with their children back to their own country of origin, or into a new relationship somewhere else, or to a place they see as a safe refuge from an unsatisfactory relationship.
41.The operation of the Convention which has the effect of potentially sending a mother back into a situation of risk to her own physical wellbeing has been a matter of significant academic criticism.”
In this case there is no evidence to suggest that Scotland is an inappropriate jurisdiction. The Courts in Scotland can make appropriate orders for the protection of the mother and child if that is considered appropriate after the consideration of the evidence provided to them.
The mother is capable of bringing to the attention of the Scottish Courts all relevant factual matters.
The current proceedings between the mother and father have been on foot in the Scottish Courts since 2005. In relevantly recent times consideration has been given to the facts alleged by both of the parties and orders were made in relation to the child as recently as November 2006.
There has been no evidence to suggest that the Scottish Courts are not able to determine in an appropriate way the matters which are in dispute and reach a conclusion which takes into account the welfare and protection of the mother and the child.
In submissions before me it was clear that the mother intended to return with the child to Scotland if the Court ordered that the child be returned to that jurisdiction.
The evidence indicates the mother has the support of her family in Scotland.
When considering the question of grave risk and intolerable situation for the child I take into account the child’s comments made to the Family Consultant about the time she spent with her father on weekends in Scotland and the activities they enjoyed together. (Paragraph 11 of Family Report dated 5 September 2007).
Paragraph 12 of the Family Consultant’s report indicates that the child has some concern about the fighting between her parents, however this fails to establish grave risk or an intolerable situation.
The evidence before me indicates that the mother is capable of bringing to the attention of the Scottish Courts all relevant factual matters so that the proceedings in the Scottish Courts are in a position to determine the appropriate orders which need to be made in relation to the child.
The serious allegations which the mother makes can be the subject of evidence in the Scottish Courts and if necessary the Scottish Courts can consider any application by the mother for permission to move from Scotland to Australia.
I am therefore not satisfied that it has been established that there is a grave risk that the return of the child to Scotland would expose her to harm or otherwise place the child in an intolerable situation.
(c) Each of the following applies:
(j)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
The evidence of the mother and the Family Consultant clearly indicate that the child has expressed a wish to remain in Australia.
Paragraph 10 of the Family Consultant’s report states:
“10.[The child] reported that she enjoyed living in Australia and openly stated that she would like to continue living in Australia. She reported that she enjoyed the warm weather of Darwin and the outdoor lifestyle. In discussing her current school she stated that she “liked it a real lot” because she could play outside and that the school had a climbing frame that was fun. [The child] also indicated that she had made some friends at school though she appeared to be still at the stage of developing these friendships.”
Paragraph 12 of the Family Consultant’s report states:
“12.[The child] reported that she would be “sad” if required to return to Scotland as she liked living in Australia. She expressed concern that there would be fighting between her parents on returning to Scotland and that for her this was a source of worry. She reported that her parents had argued “quite a lot” in the past.”
Paragraph 13 of the Family Consultant’s report states:
“13.The views of [the child] are clearly outlined in this report. She expressed the view that she would like to remain living in Australia rather than return to Scotland and she provided clear reasons for this view. It appears though that there are no major risks to [the child]’s welfare in returning to Scotland.
The child’s expressed wish should be considered together with her other comments such as:
“11.[The child] report that she missed her dog in Scotland, as well as her family and friends at times. She reported that she was accustomed to seeing her mother’s family daily while living in Scotland and seeing her father’s family on weekends. She did not acknowledge at any stage missing her father in Scotland. She spoke of time spent with her father on weekends and activities they enjoyed together. She gave the impression that her relationship with her father was not close but was still developing.”
I am satisfied from the evidence before me that the child’s wish can be categorised as an ordinary wish and not an objection which shows a strength of feeling beyond the mere expression of a preference or of ordinary wish.
The child is now 9; she is at an age where it is appropriate to take into account her views. But her views are not, in this case, capable of being categorised as an objection of the type referred to in the regulations.
On the evidence before me (and taking into account the restrictions in the assessment of the evidence brought about by the hearing on the papers) I am satisfied that none of the exceptions in sub-regulations 3 have been established.
The provisions of the regulations therefore require that I must make an order for the return of the child to Scotland.
I propose to make orders for her prompt return.
The father has indicated he is willing to pay the costs of the child’s return to Scotland.
I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate
Date: 16 November 2007
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