Secretary, Commonwealth Attorney-General's Department & Wolford
[2014] FamCA 445
•25 June 2014
FAMILY COURT OF AUSTRALIA
| SECRETARY, COMMONWEALTH ATTORNEY-GENERAL'S DEPARTMENT & WOLFORD | [2014] FamCA 445 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention application – Wrongful removal of children from jurisdiction by mother – Whether the children should be returned to the United Kingdom – Where the mother failed to establish that the father had consented to the children being removed to Australia – Where grave risk of psychological harm or an intolerable situation is not established – Where the court would exercise the discretion to make a return order under Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Order for return of children to the United Kingdom. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) – r 4(1), r 4(2), r 4(3), r 16(1), r16(1A), r 16(3), r 16(4), r 16(5) |
| DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 |
| APPLICANT: | Secretary, Commonwealth Attorney-General's Department |
| RESPONDENT: | Ms Wolford |
| FILE NUMBER: | SYC | 1648 | of | 2014 |
| DATE DELIVERED: | 25 June 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 23 May 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Legal Services Unit, Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Ms Hartstein |
| SOLICITOR FOR THE RESPONDENT: | Harris Freidman |
Orders
That these proceedings be adjourned to 9:30 am on 2 July 2014 for submissions about conditions to be included in an order for return of the children C born on … November 2011 and T born on … November 2013 to England forthwith pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Commonwealth Attorney General’s Department & Wolford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1648 of 2014
| Secretary, Commonwealth Attorney-General's Department |
Applicant
And
| Ms Wolford |
Respondent
REASONS FOR JUDGMENT
These are proceedings brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The Secretary of the Commonwealth Attorney-General’s Department, as Central Authority, filed an application on 20 March 2014 pursuant to the Regulations, seeking various orders in relation to the children C born in November 2011 and T born in November 2013.
The orders sought include the following:
That the applicant and respondent make such arrangements as are necessary to ensure the return of the children [C] born on … November 2011 and [T] born on … November 2013 to England forthwith in the company of such person and upon such conditions as this Court deems necessary pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.
The respondent, Ms Wolford, is the children’s mother (“the mother”). She was born in Australia in 1973.
The children’s father is Mr Wolford (“the father”). He was born in Australia in 1973.
The children were both born in the United Kingdom (“UK”) and are citizens of both the UK and Australia, as are their parents.
Background
Ms Wolford and Mr Wolford, both 41 years of age, commenced their relationship in late 2006. They cohabitated in England from early 2007 and lived in Australia from January 2008 to March 2009 when they returned to live in England.
In November 2011 their first child C was born in the UK.
Following C’s birth, the mother was depressed. The parties’ relationship became increasingly strained. The mother was prescribed a low dose of antidepressant medication which she took for five months. She also attended counselling with Ms S.
In approximately February 2012 the mother visited Sydney with C. She attended counselling in Sydney to assist her to manage her depression. She returned to England a month later.
In approximately September 2012 the mother returned to work, working 3 days per week.
The parties married in December 2012 in England.
The relationship between the parties became increasingly strained in 2013 leading up to the birth of T. There had been many arguments between them and the mother became quite depressed. There was a serious argument between the parents on the way to the hospital for T’s birth in November 2013. I shall refer to this again below. At approximately this time the mother informed the father that she wished to return to Australia to live.
The maternal grandmother arrived in the UK on 18 November 2013 to assist the mother.
In approximately November / December 2013 the mother was prescribed antidepressants. The mother attended the local police station and complained about the father’s behaviour. She was referred to the Family Justice Centre.
By late November 2013 both parties were of the view that their marriage had broken down.
On approximately 28 November 2013 the mother informed the father that she wanted to take the children to Australia when the maternal grandmother left the UK. The maternal grandmother had a return ticket to Australia leaving the UK on 28 December 2013.
On 28 November 2013 the mother handed the father a document titled “Separation from [the father]” which she had written.
On 19 December 2013 the father returned the said “Separation” document to her with handwritten terms on the back. I shall refer to this again below.
On 23 December 2013 the father received a text message from the mother to the effect that she had taken the children to County A (in the UK) to stay with her mother’s friend and that they would be staying for a few nights. The father asked whether he would be able to see the children on Christmas Day and the mother replied that he would. But in fact, the mother left the UK with the children and her mother on 24 December 2013 bound for Australia.
On 26 December 2013 the father received a text message from the mother informing him that she and the children were in Australia. The mother had obtained a passport for T without his consent.
On her return to Australia the mother attended Medical Practice M at Suburb B and received medical treatment and counselling. During this time she saw Dr D and Ms E (counsellor/psychotherapist).
C currently attends child care at Suburb B Child Care Centre.
The mother and children have lived in Australia since 26 December 2013.
Regulations
The legislative framework within which this application is to be determined is set out in the Regulations.
Firstly, sub-regulation 4(1) of the Regulations provides:
For the purposes of these regulations a person, an institution or another body has rights of custody in relation to a child if:
(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in the convention country in which the child habitually resided immediately before his or her removal or retention.
Sub-regulation 4(2) provides:
For the purposes of sub-regulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
Sub-regulation 4(3) provides:
For the purposes of this regulation rights of custody may arise:
(a) by operation of the law; or
(b) by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.
Sub-regulation 16(1) provides:
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 sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
Sub-regulation 16(1A) describes what is wrongful. It provides:
For sub-regulation (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 rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
Sub-regulation 16(3) provides:
A court may refuse to make an order under sub regulation (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.
Sub-regulations 16(4) and (5) provide:
(4)For the purposes of sub-regulation (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 sub-regulation (3) is established by a person opposing return.
Was the removal of the children wrongful?
As indicated above sub-regulation 16(1A) sets out what is wrongful in this context.
It is clear that both children were under 16 years of age. It was conceded on behalf of the mother that the children habitually resided in the UK immediately before their removal to Australia on 24 December 2013. There is no issue that at that time, the father was exercising rights of custody in relation to the children in accordance with UK law.
Accordingly, the conditions required under sub-regulation 16(1A) for a wrongful removal were satisfied.
Order for return
Sub-regulation 16(1) of the Regulations requires an order for return to be made in the circumstances referred to in the sub-regulation. The first such circumstance is that the application is made within one year of the child’s removal. There is no question about this. Sub-regulation 16(1) requires the Court to order the return of the child upon being satisfied that the removal was wrongful unless at least one of the matters set out in sub-regulation 16(3) has been established.
It is submitted by learned counsel for the mother that two of the matters set out in sub-regulation 16(3) are present in this case. The first of these is that the children’s father had consented to the children being removed to Australia. The second is that there is a grave risk that the return of the children under the Convention would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
Consent
It was submitted on behalf of the respondent mother that it is clear that the father gave his consent to the removal of the children to Australia. This is on the following basis.
The father and mother always intended to return to live in Australia with the children. The maternal grandmother lives in Sydney and the father’s parents live on the New South Wales Central Coast. The parents separated a short time after the birth of the parties’ younger child T, such separation being approximately 28 November 2013. On this occasion the mother informed the father that she wanted to return to Australia with the children in December 2013 when the children’s maternal grandmother proposed to leave the UK to return to Australia.
As indicated above, on 28 November 2013 the mother handed the father a document headed “Separation from [the father]”. This document was Annexure A to the mother’s affidavit. In the document the mother said amongst other matters as follows:
I believe the only way I can support the children on my own is to return to Australia ASAP. If stopped from leaving by Court Order I suggest the following.
Then the mother’s document set out two scenarios. In the first scenario she would move out of the home immediately into a small two bedroom apartment yet to be rented. In the other scenario she indicated that she would return to Australia as soon as possible and that it would be preferable if the children and she were to travel to Australia with the maternal grandmother on 28 December 2013. In the document the mother also expressed the hope that the father would “return to his home in Australia some time in the near future”.
On 19 December 2013 the father returned the mother’s document to her with his “hand written terms” on the back of the document. The father’s hand-written response was as follows:
-EQUAL RIGHTS 50/50
-MY PARENTS WILL RECEIVE MY 50% WITHIN REASON WHILE I’M NOT IN THE COUNTRY
-CITY OF YOUR CHOICE WILL BE MADE WHERE TO LIVE AND SCHOOL THE KIDS
-YOU WILL NOT LEAVE
The mother said that in discussions between the parents at this time about her and the children going to Australia that the father agreed that they could go. She said that the only unresolved issue was the terms upon which he would agree to her returning to Australia. The mother said that the father informed her as follows:
You can leave when I say so.
You will agree to my terms.
You will live where I say - near my parents.
You will not be supported by me.
I wipe my hands of you completely.
You must remain in the house until I say you can go home or you could leave [C] with me and just go and take [T].
A short time later the father handed the mother a typed letter which included the following:
As soon as I can get my rights on paper and signed by you and lodged in Australia you can go home. If this takes 3 weeks or 2 months you will except [sic] this. You are removing my children from me and if you cannot endure a little bit more of what you don’t want to get everything you do want then you don’t deserve it. Keeping in mind I need to find somewhere to live in 2 months I will aim for this if possible.
We will look at crating [C’s] things home so he has something familiar with him.
You will stay here or leave [C] with me until you leave.
You will not yell abuse or speak poorly of me until you leave, that includes under your breath where I can hear you.
I will have a say in where you take my children. [FF’s] environment is not ideal for our kids you said it yourself many times. I would like you to consider my parents place as I would like my parents to get to know my children. …
It was submitted on behalf of the mother that, based on the developments to this point, particularly the latter document from the father, he was giving his clear, unambiguous consent to the mother and the children returning to Australia. It was submitted that the only thing that was ambiguous was at what point in time the father would permit the children to leave for the purposes of moving to Australia.
Both learned counsel for the mother and for the Secretary agreed that the test to be applied by the Court in determining an issue about consent in the present context was as set out by the Full Court of this Court in the case of Wenceslas v Director-General, Department of Community Services (2008) 37 Fam LR 271. At page 315 the Full Court referred to the views of Baroness Hale in Re K (abduction: consent) [1997] 2 FLR 212 at 217-8:
It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.
The Full Court said (still at 315):
It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to their children. As presently advised … we are of the view that consent can be inferred from conduct; however, we are also of the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.
It was submitted by learned counsel for the mother that there is clear and cogent evidence that the father consented to the children leaving England and going “home” with the mother. It was submitted that the consent to that occurring was unequivocal. It was submitted that the fact that the father sought to choose the day of their departure and impose other unspecified conditions does not derogate from the fact that unequivocal consent was given.
I must say that I am far from persuaded to this view.
The father said in his affidavit that he did not agree to the mother moving to Australia with the children. He said that the mother obtained a passport for T without his knowledge. He said that he made it clear to the mother that she was not free to return to Australia until his rights and the care of the children were resolved. He said that he thought that if the mother and children moved to Australia in the future, he would do so as well and live near the children. He said that he needed the opportunity to find work and somewhere to live in Australia. The father said that he and the mother had discussed a “possible move in the future” but he did not agree to the mother and children going suddenly and with the maternal grandmother without the parties having sorted things out.
The father said that the mother was well aware that she had left without his consent as reflected in her text message to him dated 26 December 2013 as follows:
[The father’s given name] im [sic] sorry. I had no option but to head home. I was forced into this choice as you told me you werent [sic] going to support me financially and your terms were completely controlling. I have a return flight for me and the children. This gives us time to figure out how to move forward legally in a fair way for all involved but mainly the children. I will be in touch with your parents to arrange to see the children. We’re staying at [FF’s] [sic] in [Town G]. Also this has given me an opportunity to see my Grandmother for the last time. She has days to go! The landline is being connected and the internet access will be set up in a few days. The children are fine and slept most of the way.
I accept the submission on behalf of the Secretary that the mother has failed to establish that the father consented unequivocally to the removal of the children from the UK. In my view, the evidence in respect of this matter is, at best for the respondent, quite ambiguous. In my view, what has occurred is that the parties were having negotiations with a view to the mother being able to remove the children to Australia at some point in the future. In my view, however, the father made it quite clear that he would not consent to such a course until the parenting arrangements in relation to the children had been resolved by the parents.
In my view his hand-written document, written on the back of the mother’s document headed “Separation from [the father]” made this very clear. His final words, as indicated above, were “you will not leave”. In my view this was a clear reference to the suggestion in the document that a proposal by the mother was for her and the children to return to Australia with the maternal grandmother on 28 December 2013 when the maternal grandmother was booked to return. In my view the father made it very clear that he did not want this to occur.
In all these circumstances, in my view, the mother has failed to discharge the onus on her to establish that there was an unequivocal consent by the father to her removal of the children from the UK.
Grave risk
I turn now to consider the second of the matters in sub-regulation 16(3) which the mother asserts would enable the Court not to make an order for return of the children to the UK. This is that there is a grave risk that the return of the children under the Convention would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
It is submitted on behalf of the mother that the grave risk of psychological harm to the children arises because of the following matters.
Firstly, the father has emotionally abused the child C in the past by using him against his mother and by denigrating the child’s mother in front of him, making unreasonable demands for displays of affection from him and by the father not having shown any interest in T at all.
Secondly, the mother, who has always been the children’s primary carer, would become extremely anxious and stressed if required to return and this would have a deleterious effect on the children.
In relation to the mother’s assertion that the father did not show any interest in T, she said that the father said to her, after she arrived home from hospital after giving birth to T, “I won’t be bonding with her.” The mother said she was devastated by this.
On the other hand, the father said that he probably informed the mother that he was having difficulty bonding with T. He said that he was working and that he was spending time with C so that C did not feel (displaced) by T.
In any event, T was only approximately six weeks old when the mother removed her from the UK.
The mother said that she was the victim of emotional and psychological abuse at the hands of the father throughout their relationship. She said that within a short period of the parties commencing to live in England the father was emotionally abusive and belittling towards her. She said he called her “crazy”, “insecure”, “too soft”, “highly emotional” and “stupid”.
The mother said that in the last few months before T’s birth and subsequently, the father would ring her and say “I don’t want to see your miserable face or speak to you [the mother’s given name], I just want to talk to [C]”. The mother said that the father often said “You are a terrible mother” in front of C.
The mother said that in November 2013, the day of T’s birth, she and the father had a “dreadful row” in the car on the way to the hospital. She said that the father threw her suitcase at her in the car park and yelled abuse at her all the way up the corridor at the hospital.
The mother said that after she returned home from hospital after giving birth to T the father kept saying nasty things to her in front of the children such as:
·“How stupid are you?”
·“It’s your fault”;
·“You’ve got problems”;
·“You’re insecure”;
·“I will not acknowledge what you’ve done / you are doing”;
·“You don’t know how to communicate”;
·“You are boring in bed”;
·“I’m going to visit an old girlfriend”;
·“Tell your mother not to tell me how to parent my child before I explode”.
The mother said that after she separated from the father he used C as a pawn to distress her. She said that the father told C to choose whether to stay in one room with him or to go into a different room with his mother and grandmother. The mother said that this confused the child.
The mother also alleged that the father started to teach C to be rude and insolent to the mother.
The mother said that the father also said “You mean nothing to me. I wipe my hands of you. I will never support you. Earn your own money.” She also said that he yelled at her, bullied her and belittled her.
As indicated above, on 11 December 2013 the mother went to the local police station to complain about the father. But the police officer said that what she complained about was not physical abuse and that the police could not act on her complaint. The police officer suggested that the mother contact the Family Justice Centre which she did and complained that the father had emotionally abused her for the seven years that they had been in their relationship.
On the other hand the father denied that he had emotionally or verbally abused the mother. He said that he had not been sharp or insulting to the mother. He said that he criticised her for criticising him to her mother because he thought that this was unhelpful. The father admitted that on occasions he would tell the mother to “stop hassling [him] about it.”
The father also denied:
·that he shouted or verbally abused the mother in the presence of C;
·that he informed the mother that she could not be friendly with her family;
·that he emotionally abused the mother, called her names or belittled her.
The father said that when C was six months old the parties had arguments and that on occasions C was present.
The father said that by November 2013 the parties’ relationship was under great strain. He conceded that he behaved poorly towards the mother on the day of T’s birth (in November 2013) and that he did “put” her bag on the ground. He said that he did not yell at the mother but called out her name and asked her to stop.
The father said that the only time the mother had attended the police or a domestic violence centre was during the period when she was planning to leave for Australia.
The mother annexed to her affidavit and tendered into the evidence various letters from Dr D, her general medical practitioner.
The most comprehensive material from Dr D is contained in her letter dated 22 May 2014 addressed to the respondent mother’s solicitor. In my view the most relevant paragraphs are as follows:
[The mother] next presented to me on 03 January 2014, again in a very distressed state. She had subsequent visits on 03/02/14, 11/02/14, 20/02/14, 04/03/14, 16/04/14, 05/05/14 & 08/02/14. She explained that she had left her abusive husband in England, whom she described as having narcissistic personality traits. She described him as being very controlling, verbally abusive and dismissive of her and her needs. She was very distressed by having being [sic] forced to have a TOP in 2009. Her mother had been visiting the family in England in December 2013, and due to the intolerable home situation, [the mother] felt that for her childrens [sic] wellbeing and her own, that she had to return to Australia to have family support. She became very distressed by the pressures of having left [the father] and she presented to the surgery for help.
Arrangements were set in place for an urgent referral to a psychologist for counselling and [the mother] was prescribed an SSRI medication for a diagnosed Adjustment Disorder with Anxious Mood.
[The mother’s] symptoms and signs included, anxiety, irritability, feeling of being overwhelmed, unable to cope, disturbed sleep, periods of tearfulness and other somatic symptoms. On a few of her presentations to this practice, [the mother] attended with her children [C] (2yrs old) and [T] (6mth old) and I observed her to be concerned about them and nurturing towards them. If her symptoms are exaccerbated [sic] by the stress of the relationship with [the father], I feel that her ability to provide good nurturing care to her children would be jeopardised.
[The mother] reported that her husband [the father] constantly denigrated her and was critical of her and rude to her infront [sic] of their two children, [C] and [T]. She states that [the father] asked their 2yr old son [C] to choose between his parents and was demanding that [C] show him affection.
This terrified [the mother] as she felt that it was emotionally abusive to their son as he was being used as a pawn in the discord between his parents. [The mother] observed that [C’s] behaviour became severly [sic] affected by the emotional games being played. [The mother] was very concerned for her children’s emotional and psychological wellbeing and felt that she had to remove herself and her children from this unstable environment. [The mother] thus made the decision to leave and return to Australia to be with her family of origin, to provide support and a stable enviornment [sic] for herself, and her children.
[The mother’s] psychological state was and became increasingly vulnerable whilst she stayed in the relationship with [the father], where he was able to emontionally [sic] abuse and torture her.
[The mother] is the primary carer for [C] and [T]. Constant emotional threats and abuse continue via email and a visit from [the father].
I consider that for the wellbeing of both [C] and [T], [the mother’s given name], their mother, needs to be removed from the emotional abuse and threats from the children’s father, [the father’s given name]. I consider that there is grave risk that the return of the children to the UK (which means that [the mother] would have to return also due to their young ages and the fact that she is their mother, primary carer and wants to be with her children), would expose the children to psychological harm and place them in an intolerable situation.
I am very concerned that returning to the UK would again expose the children directly to emotional abuse by their father when he asks his children (namely [C] as [T] is too young) to make choices between parents and choose favourites. He would also expose them indirectly to emotional harm, as any further emotional abuse of their mother [the mother’s given name], would be very detrimental to her psychological state which would then impact on her maternal relationship and her ability to care for and nurture her children.
I consider that return to the UK and to the unhealthy and damaging family atmosphere would pose serious risk of emotional and psychological damage to the two children [C] and [T].
[The mother] has family, psychological and medical support here in Australia and I consider that for the emotional and psychological wellbeing of the children, their mother [the mother’s given name], with the two children should not return to the UK and be exposed to the emotionally abusive environment.
In my view care needs to be taken about what weight the Court might properly give to the opinions of Dr D. I say this because it would appear that she has diagnosed the mother as suffering from an adjustment disorder with anxious mood. In an earlier letter dated 3 January 2014 Dr D described the mother as “experiencing significant reactive depression and anxiety-Adjustment Disorder …”. There is no evidence that Dr D has any qualifications in clinical psychology or psychiatry. Much of Dr D’s material appears to be the mother’s explanation to her about the circumstances of her leaving the UK with the children, the mother’s view about numerous matters in issue between the parents and the doctor’s own view based on the mother’s account only, that there would be a grave risk to the children if they were required to be returned to the UK.
As indicated in the letter, Dr D referred the mother to a psychologist. This was Ms E. Ms E reported that she had arranged for the mother to provide answers to a questionnaire and that this revealed scores for moderate depression, anxiety and severe stress.
Relevant passages from Ms E’s report are as follows:
From my discussions with [the mother] I have concluded that returning to the UK would be detrimental to her well-being and would place [the mother] in an intolerable situation as she has no wish to recommence a close relationship with her husband. She is fearful of becoming “trapped” and isolated again, now with two children. She is concerned that her husband will continue to verbally put her down, play ‘mind games’ and emotionally manipulate and intimidate her as he has done in the past repeatedly in front of [C]. [The mother] is also concerned about his lack of consideration of the children’s developmental needs and the impact of his behaviour on them. [The mother] is convinced that, based on past experience, he will use the children as pawns in his control over her.
In my opinion it would potentially have harmful effects on [the mother] and both children if she has to return to her marital home in the UK, which at least initially seems to be her only option. Due to the young age of both children, especially baby [T], it is also not an option to separate them from their mother without causing psychological harm. The associated stress of going through a divorce is likely to escalate the already highly strained relationship. Neither partner has immediate family support in the UK and the children would be at increased risk of sustaining psychological and emotional harm.
[The mother] is still in the post-natal period and at high risk of escalated symptoms of stress, depression and anxiety if she is removed from her family and support network. [The mother] fears that she could not withstand the demoralising impact of again having to have close contact with her husband. It is important to consider that parental stress has an impact on the children and that everything possible should be done to create a stable, consistent and emotionally supportive environment and life-style. For [C] it could be extremely unsettling and stressful to move again and to start again in a new childcare facility. He and [T] have over the past months become familiar and close to their grandmother, uncles and cousins. Their paternal grandparents also live near Sydney.
The application of sub-regulation 16(3)(b) was considered by the High Court in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401. The majority said as follows::
40So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return ... would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
“Narrow construction”?
41In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration … it was said that there is a “strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed”. Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
42Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
45That 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.
…
65… while it may be right to say that return is to a country, not a place or a person, the application of reg 16(3)(b) requires consideration of what are said to be the consequences of that return. That is essentially a question of fact which will fall for decision on the evidence that is adduced in the proceedings. No doubt it is necessary to bear in mind not only that the person opposing the return carries the onus of proof, but also the way in which the proceedings are conducted both by the person opposing return and by the Central Authority.
66If, as was the case here, upon return of the child there will be a judicial determination of questions of custody and access, it will probably often be the case that assertions of risk of exposure to harm will not be established. But the bare fact that there will be such a judicial determination in the country of return does not mean that reg 16(3)(b) can have no operation. Cases in other jurisdictions concerning the possible return of a child to a sexually predatory or violent parent illustrate why that is so. The fact that there will be proceedings between the parties in the country of habitual residence does not relieve the Australian court of its obligation to give effect to the whole of the Regulations including, where applicable, the provisions of reg 16(3)(b).
(footnotes omitted)
Learned counsel for the mother also referred to the following statements by the UK Supreme Court in the case of In Re E(Children) (Abduction: Custody Appeal) [2011] UKSC 27 and In the matter of S(A Child) (Abduction: Rights of Custody) [2012] UKSC 10.
In In Re E the Court said at [33] – [36] about the risk that:
33.… It must have reached such a level of seriousness as to be characterised as “grave”. Although “grave” characterises the risk rather than the harm, there is in ordinary language a link between the two. …
34.… the words “physical or psychological harm” are not qualified. However, they do gain colour from the alternative “or otherwise” placed “in an intolerable situation” (emphasis supplied). … [T]here are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. …
35… [T]he situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home. …
36… Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. …
In In the matter of S the UK Supreme Court said (at [34]):
34.… The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.
I accept that it is necessary for the Court to make some prediction about what might happen if these children are returned to England.
The father has indicated that in the event that the mother decided not to stay with her sister in her home at Town H, she could live in the two bedroom flat which he is currently occupying while he organises another flat for himself.
The father has also offered the following undertakings:
a)to live separately from the mother and the children;
b)to temporarily, for up to 6 weeks, move out of his current accommodation to enable the mother and children to move in;
c)to assist the mother if required, to secure alternative accommodation and pay the initial deposit which he understands would be likely to be 6 weeks’ initial rent;
d)to assist the mother financially in the support of the children in addition (to the above) whether by paying further rent or childcare until a more permanent arrangement can be made; and
e)to attend mediation with the mother if she agrees to discuss future financial arrangements.
The father has made it clear that if the mother was to return to the UK she would not be living with him.
As indicated above, the mother alleges a long history of verbal, emotional and psychological abuse of her by the father. The father has denied this. The maternal grandmother, in her affidavit, said that the mother complained to her over a long period about arguments between her and the father. The father has conceded that the parents had arguments.
The maternal grandmother said that in late 2008 the mother appeared to suffer a nervous breakdown when she had an abortion. She also said that when the mother visited her in Australia with C in March 2012, the mother was constantly nervy and anxious, and clearly sad and depressed. She said that at that time when the father rang the mother he told her in an angry voice that he did not want to speak to her, he only wanted to talk to C.
The maternal grandmother also said that in July or August 2012 the mother telephoned her from the UK and said she was outside the house, that the father was abusing and shouting at her and that she was scared to go back into the house.
The maternal grandmother also said that when the parents and C visited Australia for one month shortly after their marriage in December 2012 she heard the father constantly speak to the mother in an angry, abusive voice and belittle and criticise the mother daily.
She also said that in approximately September 2013 the mother indicated that the parents had had another terrible argument, that she could not take it anymore and that the father was so awful to her that she had decided to leave him.
The maternal grandmother also said that just after T was born the father collected the grandmother from the airport. She said that on the way home in the car the father commenced to criticise the mother to her, notwithstanding that C was also in the car. The grandmother said she refused to talk about the matter.
The maternal grandmother also said that she had heard the father “consistently” tell the mother she was a bad mother in front of the children. She said that C started to copy the father and say to his mother “You’re not a good Mummy”.
In these proceedings there was no cross-examination of either parent or of the maternal grandmother. So their evidence remains untested. But it is certainly possible that the accounts given by the mother and maternal grandmother are more accurate than that of the father, and that he has minimised the level of the alleged verbal and emotional abuse by him towards the mother and in front of C.
The question ultimately must be, if the Court is to assume that the mother and maternal grandmother are correct in their allegations about this, what would be likely to confront the mother and the children upon their return to England.
One would think that on the one hand the father would be angry with the mother but presumably happy to see the children. On the other hand, the mother would likely be distressed, angry, frustrated, depressed and probably anxious about having been required to return to England against her very strong wish not to return.
But the mother would be living in a separate home from that of the father. She would be almost certain to file proceedings in the English courts for permission to relocate the children’s residence to Australia. After all, this Court is aware that the mother has current proceedings in the Federal Circuit Court of Australia in relation to parenting arrangements.
In the event that the mother had serious concerns about the father’s behaviour towards herself and / or the children, she could apply to the appropriate English court for protective orders or restraints, even to the point of requesting that any time spent between the children and their father be on a supervised basis. In the meantime, in order to address the mother’s allegations of verbal and emotional abuse, the father would provide as part of the conditions of return a without admissions undertaking, to continue pending an order by a court concerning such allegations, not to denigrate the mother to any person (which would include the child C), nor to molest, or argue with, the mother and not to discuss any court proceedings with the child.
In relation to the mother’s likely state of mental health in the event of her return, on indications to date, she would be likely to suffer some depression, anxiety and stress. Ms E, as indicated above, said that return of the mother and children to the former marital home in the UK (with the father also there) “would potentially have harmful effects on (her) and both children”.
Ms E also said that if the mother was removed from her family and support network she would be at high risk of escalated symptoms of stress, depression and anxiety. She also said that she fears she could not withstand the demoralising impact of again having to have close contact with the father.
One can well understand that the mother’s mood and level of stress would be likely to be better in Australia than upon return to the UK against her wishes. But she has alleged over a long time that the source of her stress and unhappiness is the father and his behaviour towards her.
As I have said, the mother would not be returning to live in a home with the father. Rather she would be living separately from him as proposed by him. In addition she would have the protection of the conditions envisaged.
I accept that the mother being stressed and anxious would be likely to have some negative effect on the children. But the mother has been able to manage her depression and anxiety in Australia by medication and some counselling. One would expect therefore that she could avail herself of appropriate professional assistance in this regard in the UK.
I accept that on the basis of the evidence before the Court in these proceedings the required return of these children to England would be likely to have some adverse psychological consequences for them because of the likely effect on them of living with a mother who will be likely to suffer from some depression, anxiety and stress. I do not regard any such effect to constitute a grave risk of harm as required by sub-regulation 16(3)(b) of the Regulations. This is because, in my view, conditions will be able to be imposed on the parents to assist the mother and afford protection to the children. These would be in accordance with the undertakings the father has indicated he would be prepared to offer, the undertakings I have referred to and also a condition which would require the mother to make an appropriate application to the English courts as soon as possible for appropriate relief. In the event that the mother might require financial assistance for legal representation for the purpose of such proceedings the mother can address this Court on this matter.
In my view, in all the circumstances, the mother has not established the “grave risk” exception in sub-regulation 16(3)(b) of the Regulations.
But if I am wrong about this, then in my view, the “grave risk” could only be at the margin of what the law requires. I would therefore regard it as appropriate to exercise the discretion to order the return of the children to England on the basis of the conditions referred to above.
Accordingly, I propose to make the order for return as sought by the Secretary.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 25 June 2014.
Associate:
Date: 25 June 2014
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