Re Sophie

[2008] NSWSC 1269

CITATION:	Director-General, Department of Community Services; Re Sophie [2008] NSWSC 1269
HEARING DATE(S):	4 November 2008
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	4 November 2008
DECISION:	Mother ordered to return child to Australia within seven days.
CATCHWORDS:	CHILDREN – INJUNCTIONS – extra-territoriality – parens patriae jurisdiction – where Minister has parental responsibility for child – where father ordered by Children’s Court not to have contact with child due to unacceptable risk of sexual abuse – where mother and daughter have left Australia to visit extended family in Japan but have not returned within the time indicated by mother – where father has left Australia for China in contravention of arrangements made when mother and child left for Japan – whether child should be returned to Australia – relevant considerations
LEGISLATION CITED:	(NSW) Children and Young Persons (Care and Protection) Act 1998
CATEGORY:	Principal judgment
CASES CITED:	Director General of Community Services; Re Sophie [2008] NSWCA 250 Director-General, Department of Community Services; Re Sophie [2008] NSWSC 1239
TEXTS CITED:	TREATIES: Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children [2003] ATS 19
PARTIES:	Director-General, Department of Community Services (plaintiff) Names of defendants suppressed
FILE NUMBER(S):	SC 5419/08
COUNSEL:	Mr M J Niel RFD QC w Mr A J Allen (plaintiff) Mr P J Castley (first defendant) Ms K M Reynolds (second defendant) Ms M Castle (third defendant)
SOLICITORS:	Crown Solicitor (plaintiff) Bottrill van Kempen Solicitors Attorneys (first defendant) Belinda Eyers & Associates (second defendant) Paul Darnell & Associates (third defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Tuesday, 4 November 2008

5419/08 Director-General, Department of Community Services; Re Sophie

JUDGMENT (ex tempore)

1 HIS HONOUR: Sophie, the seven year old child at the centre of these proceedings, is a dual national of Australia and Japan, as a result of her father's Australian and her mother's Japanese citizenship. The plaintiff Director-General, Department of Community Services (“the Director-General”) represents the Minister for Community Services, who has parental responsibility for Sophie pursuant to orders made by the Children's Court on 4 August 2007, essentially on the ground that there was an unacceptable risk of Sophie suffering sexual abuse at the hands of her father, in circumstances where there was no issue but that she had contracted gonorrhoea from her father. It is important, however, to note at the outset that the father denies that that was as a result of any improper or sexual conduct on his part; that Sophie, has never, so far as is known, made any allegation or disclosure against the father in that respect; that criminal proceedings against the father were abandoned; and that even in the care proceedings in the Children’s Court no finding was made that he had abused the child and indeed, on appeal to the District Court, the orders of the Children's Court were set aside, the District Court judge being of the view that it was not proved to the requisite standard that the father had abused the child.

2 In addition to making an order that the Minister have parental responsibility for Sophie, the Children's Court made a further order that parental responsibility "with regard to Sophie's upbringing and the preservation of her cultural heritage” be allocated to her mother; noted that, in the Court's opinion, placement of the child with the mother would likely pose an unacceptable risk to her, unless there was also a significant geographic distance between the homes of the parents and an Apprehended Violence Order prohibiting the father contacting the child "and the Minister be proactive in administering his parental responsibility"; made an order pursuant to the (NSW) Children's and Young Persons (Care and Protection) Act 1998, s 90A, that the father be prohibited from having or attempting to have any contact to Sophie in person or by electronic or by any other means or approaching Sophie or within 100 metres of her home and school; and made a further order prohibiting the mother from permitting the father to have contact with or approach the child and requiring her promptly to notify the Director-General in the event of any such attempt.

3 Some important background for the purposes of the present application is contained in the following passages from the judgment of the Senior Children's Magistrate, whose experience in this field is extensive, and who had a far better opportunity than I have had to form an impression of the mother. His Honour said (at 16-17):

I take into account the potential danger to [Sophie's] emotional wellbeing involved in being required to confront a parent who may have sexually abused her and the diminished capacity of the Mother to give the child the support she may need in coming to terms with what has happened to her and with what may have happened to her. The Mother does not believe in the Father's guilt and it is clear from her evidence about their continuing relationship – they continue to meet three or four times per week and the Father describes her as 'supportive' – that the Mother continues to have affectionate feelings for him. If she harbours any doubts at all regarding [the Father's] suitability as a parent, she appears to be giving him the benefit of them. Ms Edge believes that the provision for [Sophie] of “a safe confidant” in the shape of a counsellor, independent of the Mother, would assist the child in relation to her anxiety with regard to the Father and would assist her in coming to terms with what may have happened to her.
The view I take of the Mother's protective capacity regarding the Father is that I think she would comply with the orders of the court, obey such restrictions as might be put in place and observe such undertakings as she might be required to give at least in the short term. She appears to be a truthful and decent person but her heart would not be in it. Perhaps the best guarantee of the Mother's long term compliance would be the continuing involvement of the Department of Community Services but that would have to be quite intensive as I was given to understand is the Minister's intention. Of course, there is also [Sophie's] increasing ability, which will develop with age, to speak up for herself and to raise the alarm should she find herself in danger. How effective the Department of Community Services has been in guaranteeing [Sophie's] segregation from the Father is illustrated by the events of July, 2007 when the child was hurriedly removed from [the Mother's] care in the mistaken impression that the Father had gained access to the child. That sort of vigilance would have to continue and I am advised from the bar table that it would.
Another important factor to be considered is the unhappiness and dislocation which will befall [Sophie] if, as a protective measure against the Father, she is separated from her Mother. She has always lived with [her Mother] and has only rarely been separated from her and, according to Ms Edge, there is an extremely close bond between them. There is a sense in which [Sophie] together with her mother appear isolated and the price which the child would pay being placed in out-of-home care and thus losing her whole family would be immense.

4 In allocating parental responsibility to the Minister, and without prescribing how to exercise it, his Honour expressed the opinion that the child should reside with the mother only if there was significant geographic distance between the parents, and in particular (at 17-18):

Should [the Mother] decide to return to live in Japan with [Sophie] or should [the Father] decide to leave the north coast/northern rivers district and relocate a long way away, for instance in Adelaide, and assuming an appropriate AVO to ensure the child's separation from the Father is in place and that the Minister is proactive in the exercise of his parental responsibility, then I think [Sophie] would be best placed with her mother. But, absent significant distance between mother and child on the one hand and the Father on the other and absent an appropriate AVO and the real involvement of the Minister, I think [Sophie's] safety could not be guaranteed and there would be an unacceptable risk of harm.

5 His Honour therefore proceeded to make the s 90A orders, to deal with a situation that would otherwise present as an "unacceptable risk" to the child. It is plain that assurances that there would be a real involvement on the part of the Minister, and that the Minister would be proactive in exercising parental responsibility, were fundamental to the course that the Children's Court took, and that otherwise the child would have been placed in care other than with the mother.

6 The District Court allowed an appeal brought by both the father and the mother, but the decision of the District Court was itself quashed by the Court of Appeal on 15 October 2008 [Director General of Community Services; Re Sophie [2008] NSWCA 250], following a hearing on 2 October 2008, essentially on the ground that the District Court Judge had applied the wrong standard of proof. The proceedings were remitted to the District Court, to be heard and determined according to law. Although it seems that there might be some prospect that the parties will agree to some less extensive appeal, at least as presently advised, it seems to me that prima facie that will require a hearing de novo of the District Court appeal, which itself is an appeal de novo from the Children's Court.

7 After the parents’ District Court appeal had succeeded, and pending the proceedings in the Court of Appeal, on 4 July 2008, the father's solicitor wrote to the Crown Solicitor inter alia (original italics):

Given his stated position and the fact that I continue at his request to hold his passport in safekeeping, any further action by your client is, and remains, unnecessary and inappropriate. You can have no doubt of his bona fides in this respect ... .

8 Pending the hearing of the application to the Court of Appeal, the mother – at a time when she and not the Minister had parental responsibility, by reason of the successful appeal to the District Court – proposed to take Sophie to Japan for what was described as a period of about two months. In her solicitor's letter of 7 August 2008 to the Crown Solicitor, who at that stage was holding the child's passports, the mother's solicitor wrote:

Our client is now intending to travel to Japan on the 20th August 2008 for approximately 2 months. She is of the view that at this time she and [Sophie] need the benefit of the love and support of her immediate family in Japan. Her sister travelled to Australia for a period of two weeks to support our client and [Sophie] when the matter was before the District Court. Furthermore our client wishes for [Sophie] to undergo her 'coming of age ceremony' as soon as possible in Japan with her family and friends. [Sophie] celebrated her first 'coming of age' ceremony when aged 2 years (in her third year) and it is normal for a female child to undergo the second ceremony whilst age 6 (i.e. in her seventh year.) The second ceremony is overdue, so to speak, so this ceremony will be performed when [Sophie] is in Japan.
Our client was considering waiting until the next school holidays to go to Japan but her paternal grandmother who is aged 98 years is beginning to have more and more frequent episodes of ill health. Our client's family have advised her that to come sooner would be safer so that [Sophie] and our client can spend some quality time with [Sophie's] great grandmother. Her health is compromised further by the fact her memory is beginning to fail. We will not elaborate upon the importance of [Sophie] seeing her great grandmother as it is we would suggest self evident.

The letter proceeded to request release of Sophie's Japanese and Australian passports.

9 The Court of Appeal proceedings were called over on 11 August 2008, when they were listed for hearing on 2 October. I accept that in the course of the proceedings that day, Senior Counsel then appearing for the Director-General spoke to counsel for the mother and said that he did not see any need for the mother to attend Court on 2 October, and thus have to come back from Japan early for that purpose, and that no adverse observation would be made as a result. At the same time, the solicitor for the Director-General informed the representatives of the mother that the Director-General would give the mother the passports that day "on presentation of her itinerary showing addresses and dates of her stay in Japan and details of flights". The following day, 12 August 2008, the mother's solicitors forwarded to the Crown Solicitor by facsimile a copy of an itinerary which provided for the mother and child to depart Sydney on Monday, 25 August 2008 for Japan, and to return departing Tokyo on Tuesday, 30 September 2008 and arriving in Brisbane on 1 October 2008.

10 Also on 12 August, the Crown Solicitor received a letter from the father's solicitor, responding to a telephone conversation of the previous day in which the Crown Solicitor had informed the father's solicitor that Sophie's passports would be released to her mother. The father's solicitor wrote:

I confirm that I continue to hold my client [the father's] passport in safekeeping at his request. I have been instructed to continue to hold this for the duration of travel to Japan by [Sophie] and [the mother] this year.

11 The mother and Sophie did not return on 1 October 2008 and, so far as the evidence goes, did not notify the Crown Solicitor that they would not be returning. As the mother at that stage had parental responsibility she was under no strict legal obligation to notify the Crown Solicitor, but in circumstances where these arrangements had been made consensually pending the Court of Appeal hearing, one might have anticipated some notification that plans had changed. On the other hand, given the discussions which had taken place at court on 11 August, the mother might well legitimately have considered that she was free to extend her stay beyond 1 October.

12 On 16 October, the Court of Appeal upheld the Director-General's application and quashed the District Court’s decision. Following this decision, the Crown Solicitor wrote to the father's solicitor, referring to the decision of the Court of Appeal and the fact that the mother and Sophie had not as yet returned from Japan, and seeking undertakings that until the hearing of the appeal remitted to the District Court the father would not leave or attempt to leave Australia and would give his solicitor irrevocable authority to hold and retain his passport, nor attempt to obtain any other passport. On 21 October, the Crown Solicitor wrote to the mother's solicitor, seeking information as to the current whereabouts of Sophie and in particular whether she was still at the nominated address in Japan and, if so, when were the mother and Sophie expected to return to Australia.

13 On 27 October, the father asked his solicitor to release his passport to him. Despite the correspondence that the solicitor had sent previously to the Crown Solicitor, he apparently immediately released the passport to the father. The following morning, at 11.09am, the solicitor sent a facsimile letter to the Crown Solicitor reporting what he had done, adding: "I am instructed that my client intends to depart for China shortly on 30 October". However, before that letter had been sent, on 28 October at or shortly before 11:00am Sydney time, a PACE alert for the father was triggered when he passed through Customs at Brisbane airport to board fight CI54 to Taipei due to depart at 10.45am Brisbane time (11:45 EDST), that morning. When the Department was notified, its officer telephoned the father's solicitor and informed him that the alert had been triggered. The father's solicitors said that he was in the process of sending a letter which explained the situation, and that is the letter sent at 11.09am to which I have referred. It conveyed an undertaking that the father would not have or attempt to have contact with his daughter pending the resolution of the matter remitted to the District Court, and indicated that he intended to work and live in China "for a time".

14 At about 11.45am (EDST), on the Director-General's application, White J made an order that the father be restrained from leaving Australia on flight CI54 from Brisbane to Taipei at 10.45am Brisbane time, and that until further order he be restrained from attempting to leave Australia. Police at Brisbane were notified of that order only shortly after the flight, with the father on board, had already departed.

15 On 30 October, the Department sought a mandatory injunction compelling the father to return to Australia within 48 hours. I declined to make that order, in the circumstances which then presented themselves, and discharged the ex parte injunction that White J had granted, given not only the non-disclosure to White J of the father's solicitor's letter of 28 October, but more so that the father had already departed when the order was issued [Director-General, Department of Community Services; Re Sophie [2008] NSWSC 1239].

16 Subsequently, there has been further correspondence between the Department and the mother. Until at least 31 October, there was no clear indication on the part of the mother as to when she proposed to return to Australia. Subsequently, on 3 November, she produced an itinerary which, though in Japanese, I am prepared to accept indicates that she has a booking to return to Australia with the child on 9 December 2008.

17 In the material that has been supplied on behalf of the mother, she has set out at some length the benefits which she perceives accrue to the child from being in Japan, and indeed from remaining there for an extended period up to 28 January 2009. The mother has offered undertakings to the Court to surrender her and Sophie's passports to the Australian Embassy in Japan; not to apply for any other passport; to give any requisite authorities and consents to enable a movement alert to be in effect, so that the Department of Foreign Affairs and Trade can monitor her movements in and out of Japan, and consequential provisions to enable her location in Japan to be monitored; and not to allow the child to have any contact with the father of any sort and to advise the Department of Community Services and the Australian Embassy in Japan if she becomes aware that the father has entered Japan or has plans to do so. The father for his part has, by his counsel, offered undertakings to the Court not to have or attempt to have any contact whatsoever with Sophie pending the outcome of the appeal remitted to the District Court; and to do anything that is necessary to permit his movements to be monitored by the Department of Foreign Affairs and Trade; an undertaking to give to the Department of Community Services details of his address and a landline telephone number in the People's Republic of China, so that his presence there can be monitored – which I will treat as including to be at his place of residence to which that landline relates on at least three occasions per week at a nominated time to receive a telephone call from the Department.

18 Today, the Director-General applies primarily for an order that the mother return the child to Australia within seven days, or alternatively, by 10 December 2008. The mother opposes that order, but offers an undertaking to return to Australia with the child prior to the commencement of school in 2009 – that is by 28 January 2009 – or, if required by the Court, by 10 December 2008. The separate representative for the child submits that an order should be made requiring the mother to return the child to Australia, not immediately but by 10 December 2008, with a protective regime along the lines of the various undertakings which have been proffered being implemented in the meantime.

19 This is not an application for leave to take the child from the jurisdiction for a period of time, nor a relocation application, nor a contact or residence application, but one in connection with the enforcement of existing orders of an Australian Court, namely, the Children's Court. For present purposes, parental responsibility is not in issue: there is an order in place that the Minister have parental responsibility for Sophie. The Court should not lightly second guess decisions made by the person to whom parental responsibility for a child is committed. The significance of this consideration in the present case is reinforced by the observations of the Senior Children's Magistrate, to which I have referred, to the effect that vigilance was to be expected of the Minister, and that close supervision was required if the child was to be placed with the mother. These considerations favour the order that the Director-General seeks.

20 One then comes to the circumstances of the father's departure from Australia. It is quite plain that the basis upon which the Minister released the child's passports on 12 August was that the father was in Australia, and unable to leave because his passports were held by his solicitor, and that basis has been falsified. Prima facie, on the evidence now before the Court, the father deceived his solicitor, at least as to the time of his intended departure. It may be – and I express no concluded view on this – that it could be said that there was strictly speaking no undertaking not to release the passport, but even if that be so, the course of events by which the father came to leave Australia on 28 October demonstrates that he cannot be relied on to honour the spirit or intent of arrangements made between and relied upon by the parties, at least if he forms the view that there is sufficient reason for him not to do so. Despite a number of opportunities, the circumstances in which he came to depart, and the timing and manner in which he did so, have not been explained, satisfactorily or at all, to the Court. As a result, I cannot rely on undertakings proffered by the father.

21 So far as the mother is concerned, no criticism can be made of the circumstances in which she departed from Australia, at a time when she had parental responsibility and the consent of the Minister to do so; nor, having reviewed the evidence and heard the argument, would I criticise the circumstance that she changed her plans and did not return on 1 October: having regard to what her counsel was told by then counsel for the Minister on 11 August, it seems to me entirely understandable that she would have taken that as an invitation to rearrange her plans so that she could spend something like the originally contemplated two months, rather than what had been truncated to five weeks, in Japan. However, it is troubling that not only did she change that plan, but apparently extended it far beyond even the two months that was originally contemplated, and indeed appears to have had no firm plan for a return to Australia until the matter was pressed by the Department, in the light of the institution of these proceedings, eventually producing a response on or about 3 November.

22 All the mother's family is in Japan; she has no relatives in Australia. It is plain enough, on the material tendered on her behalf, that she is obviously happy and comfortable in Japan – and given her recent experiences in Australia with this litigation, that is unsurprising. But as I see the matter at this stage, there is little if any real incentive for her, a Japanese citizen, to return to Australia, and significant reasons for her to remain in Japan. While I do not share the same reservations about the undertakings she proffers as I do about those proffered on behalf of the father, I do have to bear in mind that no undertaking that the mother proffers can prevent the father from approaching her and the child, and I also have regard to the observations of the Senior Children's Magistrate in respect of the mother's ongoing affection for and attitude towards the father. In short, even if the mother adheres, as I assume she will, to the undertakings she proffers, notifying the Australian Embassy that the father has arrived on the scene is hardly going to solve the problem, and nothing she can do will stop him arriving on the scene if he is determined to do so.

23 So far as Sophie is concerned, I do not think there is much doubt that she is enjoying her time in Japan and probably benefiting from it but, more significantly, that she has become somewhat settled in the Japanese environment, with her extended maternal family. One consequence of this is that the longer her stay extends and the more settled she becomes, the more traumatic will be any disruption of those arrangements if she is required to return to Australia.

24 Japan is not a signatory to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996. While this does not preclude the recovery of children removed to or retained in Japan, it means that the facility which the Hague Convention provides for that purpose in countries that are signatories are not available. This favours swift action over delay.

25 Endeavouring to bring those strands together, the position in my view is as follows. The situation has radically changed since the Minister released Sophie's passports to permit her to travel to Japan. First, the Minister's parental responsibility has been reinstated. Secondly, the father has left Australia, when his remaining here was obviously central to the release of the passports, and has done so by a stratagem which demonstrates, prima facie, that he is prepared to resort to relatively extreme means to achieve his ends. Thirdly, the nature of the visit to Japan has changed from a two-month visit for the purpose of contact with relatives and a ceremony to a proposed protracted stay of almost six months (if I were to accede to the mother’s preferred position). In the life of a seven year old child, a six month stay in Japan is a very major change and would work a significant alteration in the status quo so far as her care arrangements and relationships are concerned.

26 The risks of leaving Sophie in Japan may be summarised as first, that (as the Senior Children's Magistrate found) of potential exposure to sexual abuse if she comes in contact with the father. I readily accept, in the present circumstances, that this is a relatively remote one, because of the obstacles that the father would have to overcome to move from China to Japan in the face of the various undertakings proffered, and the circumstance that the mother and her family would presumably be alert to any risk of sexual abuse; nonetheless, I cannot ignore that it was this risk that founded the care order in the first place. Secondly, there is the risk of abduction or removal of the child by the father – with or without the assistance of the mother – in circumstances where there is still a bond of affection between the parents, a disbelief by the mother that the father has done anything wrong, and a quite possibly genuine belief by the father that he has been wronged by the justice system in this country and will not receive justice if he returns. Thirdly, there is a risk that an alteration in the status quo applicable to the child’s care arrangements and relationships will be brought about by a prolonged stay in Japan, coupled with an increasing risk of disruption and separation trauma if bonds she is now establishing in Japan are severed after a protracted stay. Fourthly, there is a delay in bringing to a conclusion the proceedings concerning Sophie's care – which it is in everyone's interests, but particularly Sophie's, that it be heard sooner rather than later. As the appellants are the father and the mother, this is plainly delayed while they remain out of Australia.

27 Against those risks of leaving Sophie in Japan for some time, I am afraid I can see no risk in the alternative of requiring her return to Australia. She may be deprived of some of the benefits of a prolonged stay in Japan, but they are more than offset by the countervailing risks. This is not the time for that prolonged stay, and it was never intended to be so. It may well be that ultimately, as the Senior Children's Magistrate foreshadowed and has been contemplated in the course of argument here, in the new hearing before the District Court one of the proposals might be that Sophie reside with her mother in Japan; and it may ultimately be that that is in Sophie's best interests. But that is a judgment to be made after a proper hearing, and not one brought about by a pre-emptive move of retaining Sophie at this stage in Japan so that she becomes settled, with the consequent risks to her of having to sever the ties and disrupt the settled arrangements that will otherwise eventuate, if that does not prove to be the best course.

28 Weighing the risks to which I have referred of leaving Sophie at this stage in Japan, against the absence of risk in requiring her return, in accordance with the wishes of the Minister who has parental responsibility for her, I see no warrant for leaving Sophie in Japan any longer than is necessary to make arrangements for her return. I, therefore, propose to order that the mother return Sophie to Australia within seven days.

29 I make the following orders.

30 Whereas (a) on 24 August 2007 the Children's Court of New South Wales made an order that the child Sophie, born 29 July 2001, be in the parental responsibility of the Minister for Community Services for the State of New South Wales; and whereas (b) the delegate of the Minister is the Director-General of the Department of Community Services of New South Wales; and whereas (c) the child is in Japan and outside the jurisdiction of the Minister and the Director-General; and whereas (d) it is in the interests of the child's safety, welfare and wellbeing that she be returned to the jurisdiction of New South Wales:

(1) Order that the second defendant return the child Sophie to her ordinary place of residence in New South Wales, Australia, or such other place as the Minister or her delegate may agree by Tuesday, 11 November 2008, and do all things and execute all documents necessary or convenient on her part to effect that return.

(2) Direct that notice of this order may be served on the second defendant by:


(a) facsimile transmission of a sealed copy of the order to Belinda Eyers & Associates, Solicitors, facsimile number 6685 1344, marked for the attention of Ms Hilary Bone; and/or

(b) transmission by email to the second defendant at ************@gmail.com of a scanned, sealed copy of the order; and/or
(c) service of a sealed copy of the order on the second defendant.


(3) Reserve liberty to apply in the event of any difficulty arising in the implementation of these orders, including for a recovery order or for any injunction directed to the first defendant, by arrangement with my Associate on 24 hours notice or such shorter time as in the circumstances may appear appropriate.

(4) Direct that these orders be entered forthwith.

**********