POLICE COMMISSIONER OF SOUTH AUSTRALIA & AGUSTINA

[2020] FamCA 1010

FAMILY COURT OF AUSTRALIA

POLICE COMMISSIONER OF SOUTH AUSTRALIA & AGUSTINA [2020] FamCA 1010

FAMILY LAW – CHILD ABDUCTION – where return of 10 year old girl sought to the United States – where child has an 8 year old sibling in state of habitual residence with the requesting parent and an infant sibling in Australia with the respondent mother.

FAMILY LAW – CHILD ABDUCTION – where respondent mother makes application for a psychiatric assessment of impact of return on the child of being separated again from the respondent mother and also from her infant sibling in context of grave risk of harm exception to mandatory return.

FAMILY LAW – CHILD ABDUCTION – where lack of regular and effective communication, both between the sisters and between sister and respondent mother prior to child’s arrival in Australia – where important that some communication be organised and a reliable structure be put in place for communication to occur between children and parents in Australia and the United States of America.

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services [2001] HCA 39

APPLICANT: POLICE COMMISSIONER OF SOUTH AUSTRALIA

RESPONDENT: MS AGUSTINA

FILE NUMBER: ADC 3887 of 2020

DATE DELIVERED: 12 November 2020 

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 November 2020 

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Keane

SOLICITOR FOR THE APPLICANT: Crown Solicitor's Office

COUNSEL FOR THE RESPONDENT: Ms Saladino

SOLICITOR FOR THE RESPONDENT: Hague Convention Legal Practice

Orders

1. This matter be fixed for final hearing before me on 3 December 2020 at 2.15 pm AND IT IS NOTED that the requesting parent will be the first witness AND IT IS FURTHER NOTED THAT THE Court may sit late on this day to complete the cross examination of the requesting parent.

2. There be leave to the respondent mother to make an oral application for a psychiatric assessment of the child X born … 2010 (“X” “the child”).

3. The oral application of the respondent mother be and is hereby dismissed and I DIRECT that my reasons for decision be transcribed and when settled placed on the Court file and a copy provided to the parties.

4. The respondent mother file and serve any further affidavit material upon which she proposes to rely by not later than 24 November 2020.

5. Paragraph 3 of the Order made on 2 September 2020 be amended by adding that:

   “Provided that the mother is permitted to remove the child X from South Australia temporarily upon providing the State Central Authority with not less than 7 days notice of:

   a) the dates upon which X will be out of the State of South Australia;

   b) the reason for the trip; and

   c) X’s whereabouts during the time she will be out of South Australia.”

6. Pursuant to section 68L of the Family Law Act 1975 the interests of the child X born … 2010 be independently represented by a lawyer AND IT IS REQUESTED that the Legal Aid Commission of South Australia arrange such representation and the Independent Children’s Lawyer be appointed in sufficient time to forthwith investigate –

   (i)the establishment of electronic and audio-visual communication between X and her sister Y for the time being including but not limited to incorporating any assistance which is available from M Service;

   (ii)the availability of Dispute Resolution Service through the Legal Aid Commission of South Australia for a mediation using the Hague Model;

   (iii)the means by which X can be returned to the Unites States of America if that is what is ordered.

7. Forthwith upon appointment by the Legal Aid Commission of South Australia or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

8. Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

9. IT IS REQUESTED that Ms Caroline Smith of Victoria Legal Aid and Ms Freia Carlton of the Family Dispute Resolution Service at Victoria Legal Aid offer assistance to the Independent Children’s Lawyer appointed in South Australia as to the different role of an Independent Children’s Lawyer in Hague proceedings AND IT IS DIRECTED that a copy of this Order be provided to Ms Smith and Ms Carlton for that purpose.

10. IT IS DIRECTED that arrangements for interpreters and Court facilities be made by my Associate once the respondent knows where she will be located on the final hearing date.

11. In anticipation of the final hearing, the parties file and serve an outline of argument as follows:-

    (a)       The respondent mother by not later than 23 November 2020;

    (b)       The applicant by not later than 26 November 2020;

    (c)       The Independent Children’s Lawyer two days prior to the final hearing date on date and, in the case of the Independent Children’s Lawyer, the outline include a chronology of relevant facts and a preliminary view of what orders (including any conditions to return) ought to be made at the final hearing.

12. There be liberty to apply to further ready the matter for final hearing.

AND IT IS NOTED that the exceptional circumstances for the request for the appointment of an Independent Children’s Lawyer under s.68L(3) of the Family Law Act 1975 are that X will inevitably separate from a sibling and there is no structure for ongoing communication between X and the sibling and parent from whom she will be separated.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Police Commissioner of South Australia & Agustina has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:  ADC 3887 of 2020

STATE CENTRAL AUTHORITY

Applicant

And

MS AGUSTINA

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application filed on 19 August 2020 the Commissioner for Police, South Australia seeks the return of X (aged 10 years) to the United States of America.  The application is made at the behest of X’s father.

2. Ms Saladino, who appears on behalf of the respondent mother, makes oral application for a psychiatric assessment of X with a view to that supporting an exception to mandatory return being that the return of X to the United States would expose X to psychological harm or otherwise place her in an intolerable situation.  The specific focus of the proposed psychiatric assessment is to look at the impact, from a mental health perspective and child developmental perspective, on X of another separation between X and her mother and, I expect, X and her infant brother, who is a child of the mother’s from her subsequent relationship.

3. The matter is set down for final hearing before me and I am about to inform the parties that I anticipate being able to deal with it on 3 December 2020.  The matter was previously in the docket of Mead J in South Australia but her Honour could not accommodate this matter until March of next year and the matter has therefore been transferred to me for a quicker hearing.

RECORDED – NOT TRANSCRIBED

1. The father is 51 years old.  The mother is 40 years old.  They met in 2009 or 2010 in Country B.  Country B is the country of the mother’s birth and citizenship.  At that time the mother had a child of a previous relationship, W, who was approximately seven years old.  W apparently lives with his father in Country B.

2. X was born in Country B and suffered in ill health and now has been diagnosed with a medical condition.  She shows signs of right-sided spasticity.  The mother and father moved from Country B to the United States of America in approximately 2011 when X was about one year old.  Her formal diagnosis was apparently made in the United States of America.

3. The parents then had a second child, Y, who is now aged eight, having been born in 2012.  Y is X’s younger sister. 

4. In 2015, the family moved from the United States of America to Country B to live and then visited Country C for an extended period.  The father’s country of origin is Country C and a feature of the family’s life has been continual and frequent returns to Country C for various reasons, be they either child minding, family support, or for the purpose of meeting requirements to apply offshore for extensions of visa. 

5. It appears that in 2016, at which time X was about six years old and Y was four years old, the parties separated, with the father and the children remaining in City D in the United States and the mother being sent to Country B.  The mother deposes that the last time she saw the girls prior to X coming to Australia this year was in October 2016.  Thereafter, she says, it has been well-nigh impossible to have any regular communication with the girls and what communication she has had has been sporadic.

6. The father re-partnered in March 2018 and the mother re-partnered in April 2017.  She re-partnered with a man to whom she was introduced online, and he is Australian, and it was in that respect that the mother has made her home in Australia since November 2017.  She is now married to Mr F and they have a son now aged 13 months, born on … 2019. 

7. It is common ground that X came to Australia on 19 June 2019 on a return air ticket, for which the return journey was booked back to on 21 August 2019.  The parents are in dispute as to the specific purpose of X’s visit. 

8. It is common ground that prior to her departure from the United States of America there had been discussions between the mother and the father about X possibly relocating permanently to Australia to be cared for by the mother on an ongoing basis.  The father deposes that this was at the time of a period of ill health for him and when he thought that condition could prove fatal.  It is the father’s case, as the requesting parent in the return application, that prior to X’s departure from the United States of America it was resolved that it was a temporary trip, hence the return ticket was booked.  The mother does not agree.

9. When X arrived in Australia she was eventually, after some delay, enrolled in school in Australia and she receives medical care in Australia.  Significantly, her young brother was born – that is, the child of the mother and Mr F – and X has come to know him. 

10. The proceedings were filed in South Australia on 19 August 2020.  I have today confirmed with the Central Authority, for whom Mr Keane of counsel appears, that the alleged date of wrongful retention is 21 August 2020.  Accordingly, the application was filed within 12 months of the alleged wrongful retention. 

11. The respondent mother’s response, being a Form 2A, was filed on 24 September 2020.  At page 2 in paragraph 1 the mother states that X is habitually resident in Australia.  I have today confirmed with Ms Saladino that it is not asserted that X was habitually resident in Australia as at the date of the alleged wrongful retention, 21 August, 2020.  That is not a ground upon which the mother seeks dismissal.  Ms Saladino does say, however, that the child is now habitually resident in Australia and, whilst I have heard not anything from Mr Keane, it would not surprise me if ultimately I was satisfied of that, but for the purpose of a return application that is not relevant at this point time.

12. The next matter is that the father acquiesced in X living in Australia.  Now, that appears to be acquiescence based on inaction and inactivity with the child being allowed to integrate into her life here by going to school and getting medical care.

13. The next matter is the 13(b) exception that a return of X to the United States of America would expose her to a grave risk of physical or psychological harm, or otherwise place her in an intolerable situation.  In the mother’s affidavit material she deals with this, although obviously I would not confine her to only this material, at paragraphs 120 to 131 inclusive.  That appears to be, and it’s a contention, that the father favours Y over X, which is inequitable and unfair, and inappropriate, and that some of X’s basic needs are not met.  I will return to this ground in a moment.

14. The next is that the child objects to being returned, and her objection shows a strength of feeling beyond a mere expression of a wish. 

RECORDED - NOT TRANSCRIBED

1. Mead J ordered preparation of a report pursuant to regulation 26 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), and she did so on 24 September 2020. That was at paragraph 2 of the Order made that day and, for the purpose of the transcript, I read into it paragraph 2 of the Order made on 24 September 2020:

   2. That pursuant to regulation 26(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) a preliminary report be prepared in relation to the child X born … 2010 which records the following:

   a. If possible, to explain to the said child in words likely to be understood by her the nature of the Hague Proceedings and, in particular, that it is not a final decision about with whom she will live;

   b. The apparent emotional functioning of X and any acute distress or indicators that she requires immediate expert assessment or mental health treatment;

   c. What, if any, objections X has to returning to the United States of America;

   d. Whether any objection shows a strength of feeling beyond the mere expression of a preference or ordinary wishes; and

   e. Whether X has attained an age and degree of maturity at which it is appropriate to take account of her views.

2. Pursuant to that order a Family Consultant, Ms G, saw – assessed X at an interview on 12 October 2020.  The regulation 26 report is dated 15 October 2020 and was released to the parties shortly after that.  Significantly, at paragraphs 18 to 20 inclusive, the Family Consultant reaches the following conclusion:

   18. X’s presentation raised no concerns with respect to any aspect of her overall wellbeing, including her emotional functioning.  She impressed as a delightful, well-adjusted and happy child.  Although appearing to be acutely aware that these proceedings may result in her returning to her father in City H and although clearly identifying that she would be “so sad” should this eventuate, she also identified missing her father and sister, albeit suggesting that they visit her in Australia, rather than she return to the United States of America.

   19. X’s sadness about not  spending any time with her mother since October 2016 until she arrived in Australia in June 2020 was palpable and clearly underpinned her primary or sole objection to returning to City H.  It could be surmised that X has been grieving the loss of her relationship with her mother for the past 3 years and 8 months, and it is therefore not surprising that she identifies feeling “so sad” at the prospect of being separated again from her mother.  Whilst X’s worry and sadness in  this regard impressed as strongly felt and genuine, this seemed countered by her expressed sense of missing her younger sister Y, causing X to identify feeling “a little confused”.  As such, X’s objection to  returning  to  City H  seemed  tempered  by  these  conflicted  emotions  therein reducing  the  “strength of  feeling  beyond  the  mere  expression of  a  preference  or ordinary  wishes”.

   20.  Finally,  X  is  a  young  nearly  10  year  old  child.  She  is  not  mature  enough  to take  into  account  all  of  the  factors  involved,  especially  with  respect  to  the ramifications  of  being  separated  from  her  younger  sibling,  8-year  old  Y,  with whom  she  has  lived  all  of  Y’s life  and  with  whom  she  is  reportedly  very close.  It  is  not  surprising  therefore,  that  Y  would  feel  confused  by  her  loss with  respect  to  her  separation,  first  from  her  mother,  and  now  from  her  sister.  In any  event,  X’s maturity  is  such  that  weight  cannot  be  placed  on  her  views.

3. When asked, Ms Saladino said she would like to reserve her position in relation to that exception, and that is likely because of the outcome of the regulation 26 report. 

4. Today Ms Saladino makes the oral application for X to be psychiatrically assessed.  She relies on paragraph 14, 15 and 16 of the regulation 26 assessment, which read as follows: 

   14. There  was  no  sense  that  X  was  discomforted  by  the  interview  process,  nor did  she  seem  in  any  way  burdened  or  even  aware  of  the  gravitas  of  her circumstances.  She  spoke  of  missing  her  father,  stepmother  and  younger  sister, Y  (checking  with  the  writer  to  make  sure  ‘Y’ was  spelt  correctly), although  this  seemed  tempered  by  her  obvious  enjoyment  of  her  baby  brother Z  and  her  excited  account  of  having  been  in  Australia  when  Z  was  born.

   15.  X  then  spoke  of  having  missed  her  mother  ‘more and for  longer’ when living  with  her  father,  even  recalling  having  cried  in  Country C  when “my Mum went away... I was  little  then”. She  added, “I missed  my  Mum  so  much” The  sense  of loss  was  palpable  for  X  at  this  point,  and  seemed  to  cast  a  shadow momentarily,  on  her  previously  bright  and  happy  demeanour.

   16.  In  relation  to  whether  she  objected  to  returning  to the USA ,  X  acknowledged being  “a little  confused” on  this  issue.  Whilst  on  the  one  hand  she  clearly  missed her  sister,  father  and  stepmother,  on  the  other  hand,  her  memory  of  having  missed her  mother  “so much...so  long” before  arriving  in  Australia  in  June  2019  seemed to  fill  her  with  dread  at  the  prospect  of  being  separated  again  from  her  mother: “What if I was  so  sad  to  go  back?” She  added,  seemingly  beseechingly,  “What if they  [her  father,  sister  and  stepmother]  visit  me  here...they  can  visit  me  here  can’t they...the  Judge...  why  can’t  she  order  Y  to  come  here?”

5. Ms Saladino submits that it is necessary for X to be psychiatrically assessed to determine the extent to which a further separation from her mother will, or could, adversely impact upon X in the event that the return application is granted.  Ms Saladino submits that the report paints a concerning picture of X, who is already, I think it is fair to say, a vulnerable child, of being pushed from pillar to post again and sent back to the United States of America.

RECORDED - NOT TRANSCRIBED

1. The Central Authority does not support an application for a psychiatric assessment.  If one was undertaken the date for hearing would almost surely have to be adjourned and postponed.  However, it is not solely because of that I am now going to reject the application of – refuse the application of Ms Saladino.  The timing of the hearing is probably not vital, given that there may well be some delay in having X repatriated to the United States of America in the event that the State Central Authority succeeds with its application. 

2. My refusal of the application is based on the fact that I do not agree, nor do I conclude, that the evidence which is currently before the Court supports the need for a psychiatric assessment.  Notably, the Family Consultant was directed to make an assessment of “the apparent emotional functioning of X and any acute distress or indicators that she requires immediate expert assessment or mental health treatment.” 

3. It appears to be, from the report, that the Family Consultant does not see that this is a child who is in need of any treatment or expert assessment, or under acute distress.  I take that from the opening lines to the Family Consultant’s conclusion, which is:  “X’s presentation raised no concerns with respect to any aspect of her overall wellbeing, including her emotional functioning.” 

1. Cases of international parental child abduction are routinely sad and, when viewed from the perspective of the children who are the subject of the proceedings, they are very frequently heart rending.  In DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services [2001] HCA 39 the majority observed at [45]:

   That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.

RECORDED - NOT TRANSCRIBED

1. X is in an invidious situation at the moment.  She is separated from her father and her sister and clearly she misses her sister, but if she is returned to the United States of America I have no doubt that she will be missing her mother and her infant brother.  However, I do not accept that there needs to be psychiatric evidence.  I will dismiss the oral application of the respondent mother.

2. I am concerned, however, at the apparent lack of regular and effective communication, both between the sisters and between X, Y, and the mother prior to X’s arrival in Australia (according to the evidence of the mother).  I think it is vital that some communication be organised and a reliable structure be put in place and, for that purpose, I will consider the appointment of an Independent Children’s Lawyer.

3. I am thinking of a structure for communication through an organisation such as M Service, or something similar. An arrangement for communication which will endure after these proceedings have finished; that is, that it will establish a reliable avenue of communication between whoever is in Australia and whoever of the children are in the United States of America.  It seems that the parties have not been able to do that up to this point.  This is a matter to which I request the Independent Children’s Lawyer devote immediate attention.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 November 2020.

Associate: 

Date:  30 November 2020