RYLAND

[2018] FamCA 896

FAMILY COURT OF AUSTRALIA

RYLAND [2018] FamCA 896

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the children have been taken from Australia – Where successful Hague Convention proceedings were brought – Where the Authority in the foreign jurisdiction has declined to return the children due to concerns about the mental wellbeing of the children – Where the children have been retained by the Authority in the foreign jurisdiction.

FAMILY LAW – CHILD ABDUCTION – Jurisdiction of the Family Court – Where it is conceded that while the children are in the care of the foreign Authority the Family Court is not the appropriate forum for matters pertaining to the children.

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 69E, 69E(1)

In the Marriage of Schwartz (1985) FLC 91-618 Karides & Wilson (1998) FLC 92-823 Scott & Scott (1991) FLC 92-241 Taylor & Taylor (1988) FLC 91-943 ZP H PS (1994) 181 CLR 639
APPLICANT:	Mr Ryland

FILE NUMBER: ADC 3889 of 2016

DATE DELIVERED: 7 November 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 24 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Reynolds

SOLICITOR FOR THE APPLICANT: Southern Vales Legal

Orders

1. That the father have sole parental responsibility for the care, welfare and development of F born … 2002.

2. That F live with the father.

3. That F communicate and spend time with the mother at times and upon such conditions as may be agreed, but in any event subject to his wishes.

4. That the father’s application in respect of C born … 2004 and B born … 2006 be dismissed NOTING the Court declines to exercise its jurisdiction.

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 Ryland 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 ADELAIDE

FILE NUMBER: ADC 3889 of 2016

Mr Ryland

Applicant

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Ryland (“the mother”) and Mr Ryland (“the father”) have been engaged in ongoing litigation since 2016 in respect of property settlement and children’s matters. Orders for settlement of property were made on 7 March 2018 after an undefended hearing.

2. By Initiating Application filed 17 October 2016 the mother sought final orders in respect of the parenting arrangements for the following children:-

   B born in 2006 (“B”);

   C born in 2002 (“F”)

   G and H both born in 2000 (“G” and “H” respectively; collectively “the twins”).

3. The mother initially sought that B, C and F live with her and spend time with the father. She conceded that the twins should live with the father and spend time with her.

4. The twins are now aged 18 years. F is 16 years of age. Notwithstanding his age, the father considers it important to seek a parenting order.

5. The father seeks orders that he have sole parental responsibility for F, C and B, that they live with him and spend time and communicate with the mother upon such terms and conditions as the parties may agree and in any event subject to the children’s wishes.

6. The proceedings were conducted as an undefended hearing.

7. The mother did not attend the hearing or engage in the proceedings.

8. On 28 August 2018 the mother filed a Notice of Discontinuance in respect of her Initiating Application filed 17 October 2017. The Notice of Discontinuance contained the following statement:-

   This is MY matter, and I have NOT been served with ANY “APPLICATION-in-a-Case” filed on 20 Apr 2017 by the Respondent which I see on the Portal, so I have NOTHING to Respond to, but I have seen his Affidavit, which is FULL of LIES, especially regarding the non-return to Australia of the two girls ([C + B]). I have the Boarding Passes when we left [Europe] to [stopover] AND from [stopover] to Adelaide for ALL three of us on 12^th & 13^th January 2017, so everything he says in his Affidavit is a LIE and Misinformation and Deception about the alleged non-return to Australia AND compliance with the Judge’s Order.

9. The proceedings were listed to commence on 24 September 2018. Pursuant to reasons delivered on 29 August 2018 orders were made that the matter proceed on an undefended basis with a reduced hearing time of one day allowed.

10. At the time of the interim hearing, the children were resident in Country P and have been the subject of proceedings pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“1980 Hague Convention”) which confirmed that the children’s removal from the Commonwealth of Australia to Country P amounted to a wrongful retention and removal.

11. The District Court of City O ordered on 4 September 2017 that C and B be returned to the Commonwealth of Australia. The mother filed an appeal which was rejected on 19 October 2017.

12. On 17 November 2017 C was admitted to the Hospital of City O with a diagnosis of “high emotional stress…anxiety symptoms with depressive tendencies, sleeplessness, lack of appetite, recurrent abdominal pain, self-mutilating impulses and suicidal thoughts.”

13. It appears that the ongoing litigation between the parties and the uncertainty as to whether she and her sister would be the subject of a return order was a catalyst for her psychological distress.

14. She is recorded as having expressed suicidal ideation that she would rather put an end to her life than return to her father in Australia.

15. As a result of C’s deteriorating mental health the order of return was stayed on 7 December 2017.

16. The International Social Services of the Country P Association for Public and Private Welfare in City W made enquiries as to whether provisional accommodation for C and B would be available outside of the father’s home. They apparently made contact with the Department for Child Protection and were advised that there were no child protection issues currently at large and accordingly there was no process by which, if the children were returned to Australia, they would be placed in secure care as opposed to the father’s home.

17. The proceedings are further complicated by a finding in the Local Court of City O on 13 April 2018 that C and B were at significant physical and psychological risk in the mother’s home. There is evidence that the mother sought that C undergo a gynaecological examination and surgical procedure because she believed that if undertaken, there would be evidence that the father had sexually assaulted the child.

18. The court received medical advice that C had an enlarged labia majora and any surgical intervention was at this stage premature.

19. C and B have been in a secure care accommodation since 10 April 2018.

20. It appears that the retention of C and B in Country P is supported by reference to Article 11 of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Hague Convention”).

DOCUMENTS RELIED UPON

1. The father relies upon the following documents:-

   a)Further Amended Response filed 21 September 2018;

   b)Affidavit of the father filed 14 September 2018;

   c)Affidavit of Mr Reynolds filed 19 September 2018;

   d)Trial Affidavit of father filed 19 December 2017;

   e)Family Senate Order of the Higher Regional Court of City O dated 19 October 2017;

   f)Family Senate Order of the Higher Regional Court of City O dated 10 January 2018;

   g)Family Court Order of the District Court of City O dated 13 April 2018.

BACKGROUND

1. The father was born in Country P and holds dual citizenship with Australia and the United Kingdom. The mother was born in Country P and holds dual citizenship with Australia and Country P.

2. The parties met in April 1990 and were married in 1990.

3. The parties separated on 13 April 2016 and proceedings were issued in October 2016.

4. Following the separation of the parties F initially remained in the care of the mother. He commenced living with the father in September 2016 and has since remained in the father’s care

5. The twin\s refused to live with the mother following separation and on 14 November 2016 orders were made by consent that the twins and F would live with the father and spend time with the mother pursuant to their wishes. C and B would spend time with the father each alternate weekend for six hours and one half of the 2016 school holidays. The arrangements varied to suit the mother’s relocation for work in 2017.

6. The orders of 13 December 2016 provided for the children to spend time with the father during the 2016 Christmas school holidays from 15 December 2016 until 22 December 2016.

7. The mother took C and B to Country P for a short holiday and it was understood that they would return on 13 January 2017 and spend time with the father from 14 January 2017 to 28 January 2017.

8. The father believed that the mother did not intend to return C and B to the jurisdiction when he received a copy of a psychologist’s report from Country P alleging that the children were fearful of him.

9. Without warning to the father, the mother returned to Australia with C and B on 13 January 2017 and departed for Country P with them a few days later. Whilst it is now not relevant to the current proceedings, it has been the mother’s contention that she was not in breach of orders made on 13 December 2016 because the children returned to Australia for a short period of time. She does not consider that the children have been abducted by her or removed from the jurisdiction.

10. An interim order was made on 2 June 2017 that the children live with the father and that the mother be restrained and an injunction granted restraining her from attempting to further remove the children from the Commonwealth of Australia. The difficulty was that at all material times C and B remained with the mother in Country P with no intention by her that either she or the children would return to Australia.

11. The father initiated proceedings pursuant to the 1980 Hague Convention and on 4 September 2017 an orders was made that the children return to Australia. Notwithstanding the order, the children remain in Country P.

12. The mother filed an appeal on 22 September 2017 seeking that the return order be revoked. The appeal was unsuccessful and by order dated 19 October 2017 C and B were ordered to return to Australia no later than 3 November 2017.

13. As discussed, C was admitted to hospital on 11 November 2017 and diagnosed with serious mental health issues.

14. The Regional Court of City O stayed the return of C and B having regard to the physical and mental health issues that were displayed by C.

15. On or about 20 March 2018 the father received a request via the mother’s solicitor in Country P seeking his consent to C undergoing a serious operation on her genitals but in particular her labia majora. The father was not told why the operation was needed and sought further information. He did not receive a reply to his requests and was not able to speak to any medical practitioner involved in C’s medical care.

16. As foreshadowed by her solicitor, on 10 April 2018 the mother sought a court order for C to undergo the surgical procedure in the absence of the father’s consent. The father had no knowledge of the hearing until after it had taken place.

17. He was then advised that on 10 April 2018 C and B had been removed from the care of the mother and placed into the care of Social Services with an allegation that the children were at risk in the mother’s care and that she may be suffering from a psychiatric condition known as Munchausen by Proxy.

18. C’s treating physician did not support the medical procedure requested by the mother. He prepared a report that did not confirm there were any external injuries to C, there was no indication of internal injuries and taking into account C’s age, the medical procedure was not warranted.

19. On 13 April 2018 the District Court – Family Court of City O outlined its concern that the mother appeared fixated in her view that C had been the victim of sexual abuse by the father, hence the justification for C and B’s abduction to Country P and her resistance to all efforts by the father to make contact with the children.

20. The court found that the mother had damaged, perhaps irreparably, the relationship between the children and the father and it was unlikely to abate unless the children were removed from the mother’s damaging influence.

21. The father has made contact with Social Services in Country P and maintained close and constant contact in an attempt to keep informed as to the children’s progress.

22. He communicates by email with the children but does not know whether they receive his communication.

JURISDICTION

1. The father contends that the Family Court of Australia retains jurisdiction to make a parenting order in respect of the children. For the purposes of the 1980 Hague Convention Application and the subsequent Appeal, the Court considered that the habitual place of residence of the children was in Australia. By reference to art 4 of the 1980 Hague Convention:-

   The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

2. The dismissal of the mother’s appeal and the making of a return order meant that the children were to be returned to Australia on or before 3 November 2017.

3. The Family Senate of the Higher Regional Court of City O by its order of 10 January 2018, temporarily stayed the enforcement of the return order by reference to art 11 of the 1996 Hague Convention. The court considered that it was necessary to intervene for the protection of the child C. The Convention does not provide a definition as to what may constitute “a case of urgency” but generally has been interpreted to refer to those cases where irreparable harm might be caused to the child, or the protection of the child, or the interests of the child might be compromised. Whilst it is not a matter for this Court to comment on the basis for the making of an order by an overseas court, it seems reasonable in circumstances where the child was experiencing extreme psychological distress with a genuine fear of self-harm and suicidal ideation.

4. An example of a situation of “urgency” might include the following:-

   (1)The child outside the State of his or her habitual residence and medical treatment is required to save the child’s life or prevent irreparable harm.

   (2)There are allegations of physical and sexual abuse against a parent with whom the child may come into contact.

5. The necessary measures for protection under art 11 of the 1996 Hague Convention should be of relatively limited scope. What is considered necessary to protect the child needs to be considered in each circumstance. It is a matter for the judicial officer in each contracting State to consider the extent of the measures necessary to ameliorate the urgency of the situation.

6. The implementation of measures of protection under art 11 is considered to be of a temporary nature.

7. It is argued that C’s prognosis has now improved following the removal from her mother and the restriction of open and unsupervised contact between the mother and the children. Therefore, even though the children have remained in Country P for an extended period of time, for the purposes of the proceedings and consequent upon the need for necessary measures of protection to have lapsed, the children’s habitual place of residence is Australia.

8. The District Court of City O determined that it would exercise its own independent power pursuant to s 1666a of the Country P Civil Code allowing the court to put in place parenting orders despite the pending proceedings.

9. Section 69E of the Family Law Act 1975 (Cth) (“the Act”) Act provides:-

   (1)Proceedings may be instituted under this Act in relation to a child only if:

   (a)the child is present in Australia on the relevant day (as defined in subsection (2)); or

   (b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

   (c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

10. Paragraphs (a) and (b) of s 69E(1) are at one with the common law basis of jurisdiction.

11. In ZP H PS (1994) 181 CLR 639 the High Court considered that the discretion to decline jurisdiction must bring to account the principles of the child’s welfare as the paramount consideration unless the discretion is subject to specific statutory provisions that give recognition to the application of the Hague Convention.

12. In the Marriage of Schwartz (1985) FLC 91-618 the Full Court considered that the interests of a child should not be determined by the principle of “forum non conveniens”.

13. Accordingly, the fact that a child is not resident in the Commonwealth of Australia does not preclude an Australian court from exercising jurisdiction.

14. In Karides & Wilson (1998) FLC 92-823 Kay J considered the issue of whether and in what circumstances a court should exercise jurisdiction over a child resident in an overseas country. His Honour determined that the exercise of the jurisdiction is “to be governed entirety by the ‘best interests’ principle”.

15. At 83,359 [45] his Honour posed the following question:-

    Looking at the question entirely from the issue of the best interests of the child, the question may be rhetorically asked as to how it could be in the best interests of the child to require the child’s parents to litigate in respect of an order which will have no binding effect?

16. His Honour considered the decision of the Full Court in Scott & Scott (1991) FLC 92-241 in relation to the following remarks of the trial Judge:-

    I find it a waste of the parties’ and/or the communities financial and legal resources to require this Court to embark on the exercise of deciding the question of the custody of the child, who has lived in Egypt for the past five of her six years’ existence, in relation to whom nothing affecting her welfare is known, and in circumstances where no order of this Court would be recognised and/or enforced by courts in Egypt.

17. His Honour adopted the remarks of the Full Court in Taylor & Taylor (1988) FLC 91-943where the Full Court said at 76,809:-

    Although it has been often done in the past, we consider it undesirable to formulate a rule or principle that jurisdiction should not be exercised in respect of children who were not within the jurisdiction unless there exists exceptional circumstances. It may be that in the majority of cases the Court will not exercise jurisdiction in respect of children absent from the jurisdiction. But this will arise out of two basic circumstances:

    (a)There is no likelihood of enforcing any order which the Court may make. …

    (b)The country in which the child resides is the better forum. This is especially true if it is the country of the child’s long established residence. …

PRINCIPLES RELEVANT TO PARENTING CONSIDERATIONS

1. C and B are currently resident in Country P and remain in the secure care of Country P Social Services.

1. The children have limited supervised time with their mother, but at present have not had any direct contact with the father. It is not clear as to whether the communication forwarded by the father reaches the children and if so, if it is read or considered by them.

2. Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests test is to be considered by the application of the objects of s 60B(1) and the underlying principles of 60B(2). I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in 60CC(2) and (3).

3. I am mindful of the directions contained in s 60CC(2A) and whilst the children continue to hold a belief that they are at risk if they were to return to the father’s care, I find that there is no evidence to support the contention promoted by the mother and tragically adopted by the children, that they are at risk in the father’s care. There is no evidence that has been presented which confirms or corroborates any allegation that the children have been the subject of sexual or other assault. The evidence suggests that if the children hold such a view it is a result of the unrelenting, malicious and unfounded promotion of such a view by the mother.

4. Accordingly, the matter proceeds in the absence of any allegation supported by evidence that the father presents as a physical risk to the children. It may be however that because of the circumstances in which the children find themselves, they are at risk of psychological harm, not because it is likely to be engendered by any adverse conduct of the father, but because of the damaging and misleading conduct of the mother.

5. I propose to adopt the following approach:-

   (1)Give consideration to the proposals put forward by the father as they are identified and presented to the Court.

   (2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2).

   (3)Have regard to the provisions of s 60CC in order to determine in each case what is in the children’s best interests.

   (4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the children having a meaningful relationship with both of the child’s parents and the need to protect the children from physical or psychological harm.

   (5)Have regard to the additional considerations under s 60CC(3).

   (6)The evidence adduced by the father in respect of the particular considerations pursuant to s 60CC(2) and (3) is to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.

PARENTING CONSIDERATIONS

1. The evidence presented in support of the orders the father seeks that C and B live with him is of limited assistance in determining what is in the best interests of the children.

2. There is no evidence as to the current circumstances of the children other than that they have been removed from the mother and are being accommodated by the Country P Social Services.

3. The father relies upon a report dated 16 May 2018 prepared for the Local Court of City O by the Office for Children, Youth and Family Support. The report provides the status of the children one month after they had been placed in secure care.

4. The report highlights that C and B adjusted quickly to the group setting and accommodation with other girls. They were not unhappy at being separated from their mother, however, following any communication with her there is a notable regression in C’s demeanour. She presents as sad and in a depressed mood.

5. An independent gynaecological examination was conducted on 2 May 2018 with a finding that whilst C had an enlarged labia majora, surgery was not required or warranted.

6. The children did not appear to have any clear understanding about why they were taken from their mother’s care and were apparently bewildered as to why their father wanted and demanded to have contact with them. C appeared resistant to having any relationship with the father. It is recorded that:-

   [C] tried with all her strength and effort to convince the signatory that she would be depressed and ill and needed antidepressants.

7. The children expressed a strong view that they did not wish to return to Australia and despite the best endeavours of those assisting the children, it does not appear that they displayed any willingness to resume a relationship with the father.

8. The report writer concluded that:-

   … [C] and [B] were already massively exploited by [their] mother in Australia as part of the custody dispute and consequently suffer from an extreme form of loyalty conflict.

   This is reinforced by the fact that [the mother] has been actively involving her daughters in the custody dispute since her entry into Country P, burdening them with it and requiring the girls to take responsibility for their mother, which has led to massive autonomy conflict between the two girls.

9. The risk to the children remaining in the mother’s care was that she would continue to exploit them and use them as part of the conflict with the father.

10. As discussed, there are still active proceedings in Country P.

11. There is no evidence as to the children’s current functioning, nor whether in all the circumstances attempts to reunite them with their father would present as a significant psychological risk to their fragile presentation.

12. It is argued that if the children were returned to Australia there is no impediment to the mother returning. She has citizenship and the Court would then be in a better position to hear evidence that would assist in determining the children’s best interests.

13. I do not consider that it is appropriate to make a parenting order in a vacuum. It is not appropriate that the father’s orders should be made as if by default.

14. There is no submission that the Country P court system is not competent to deal with the matters that affect the children. Clearly, significant litigation has occurred in respect of the Hague Convention proceedings and it now appears that the Country P authorities have taken independent action under their own Family Law legislation that they considered necessary to protect the children.

15. The children currently remain in Country P and under the care of Country P Social Services. They have been the subject of detailed assessment both by way of a family report, but also following medical and physical examinations.

16. None of that evidence is presented in these proceedings and certainly not in a way that is the subject of cross examination and challenge.

17. Whilst it is conceded that Australia is not an inappropriate forum, in circumstances where the children are resident in an overseas jurisdiction, the evidence necessary to make a determination as to what is in the best interests of the children is available only in that jurisdiction and the court system that is involved in protecting the children’s interests is clearly competent to do so, I consider that it would not be in the children’s best interests to make orders as sought by the father and that the appropriate forum lies in the Republic of Country P and not in Australia at this time.

18. Should the children return to Australia, then the proceedings would clearly have a focus and the parties would be able to present evidence that would assist the Court in determining what is in these children’s best interests.

19. I do not consider it appropriate that this Court should assume jurisdiction in respect of C and B who remain outside of the jurisdiction. That determination brings to account either the paramount consideration being the welfare of the child, or it is in any event a significant consideration.

20. Taking into account the age of F and understanding that he has been in the care of his father for a number of years, there is sufficient evidence before the Court to justify the orders that the father seeks in relation to that child.

21. I make orders as appear at the commencement of these reasons.

I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 7 November 2018.

Associate: 

Date:  7 November 2018