Secretary, Department of Communities and Justice & Brandt

Case [2023] FedCFamC1F 257

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Secretary, Department of Communities and Justice & Brandt [2023] FedCFamC1F 257

File number(s): SYC 9274 of 2022
Judgment of: CHRISTIE J
Date of judgment: 11 April 2023
Catchwords: FAMILY LAW – HAGUE – Where the child is habitually resident in South Africa – Where the child came to Australia to visit her father and now says she wishes to stay – Where the Central Authority asks that the child be returned to South Africa – Where the father opposes the return of the child under reg 16(1)(b) and (c) of the Family Law (Child Abduction Convention) Regulations – Where the onus is on the father to establish the matters in reg 16(1) – Where reg 16(1)(c) is satisfied but the return is ordered.
Legislation:

Family Law (Child Abduction Convention) Regulations 1986 (Cth) rr 17 and 16

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:

De L v Director-General, NSW Department of Community Services and De L (1996) 187 CLR 640; [1996] HCA 5

Department of Communities, Child Safety and Disability Services & Garning (Discharge Application) [2012] FamCA 839

DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401; [2001] HCA 39

Soysa & Commissioner of Police [2011] FamCAFC 39

TB v JB (formerly JH) [2000] EWCA Civ 337
Division: Division 1 First Instance
Number of paragraphs: 98
Date of hearing: 24 and 27 March 2023
Place: Sydney
Counsel for the Applicant: Mr Tockar
Solicitor for the Applicant: DCJ Legal
Counsel for the Respondent: Mr Bateman
Solicitor for the Respondent: Dimocks Family Lawyers

ORDERS

SYC 9274 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

Applicant
AND:

MR BRANDT

Respondent

order made by:

CHRISTIE J

DATE OF ORDER:

11 April 2023

THE COURT ORDERS THAT:

1.The:

(a)Application filed by the Secretary, Department of Communities and Justice (State Central Authority) on 23 December 2022, pursuant to reg 14(1) of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) be granted; and

(b)Answer and Cross-Application filed by the respondent father, Mr Brandt (“the father”), on 6 March 2023 be dismissed.

2.The father make arrangements for the child X born 2009 to be returned to South Africa pursuant to reg 16(1) of the Regulations before 1 May 2023, including the purchase of a single economy ticket for travel between Sydney and City D.

3.Upon purchase of the ticket, the father provide a copy of the ticket and itinerary to the State Central Authority forthwith.

4.The parties have liberty to apply for orders (including orders by consent) in respect of issues relating to release of X’s passport and removal of X from the Airport Watchlist and any other matters concerning implementation of these orders.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review…

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Secretary, Department of Communities and Justice & Brandt [2023] FedCFamC1F 257
Case
[2023] FedCFamC1F 257
Decision Date

CaseChat Overview and Summary

The case of Secretary, Department of Communities and Justice & Brandt involved a dispute between the parents of a child, X, concerning her place of residence. The father had moved to Australia with his wife and their children, while the mother sought to relocate with X to Country G, where her husband had employment. The father filed an application in the High Court of South Africa seeking orders to permit X to spend time with him in Australia. The primary legal issue was whether X's objections to being returned to South Africa were sufficient to warrant the exercise of the court's discretion under regulation 16(3)(c). The court had to consider the child's age, maturity, and the strength of her objections, as well as various expert reports and testimonies from the parents and the court child expert.

The court considered several reports and testimonies to assess X's views and objections to returning to South Africa. The reports included assessments by a social worker, a family counsellor, the family advocate, and the legal representative of the children. These reports, along with the court child expert's findings, provided a comprehensive view of X's emotional state and her wishes regarding her place of residence. The father argued that X's objections were strong and showed a maturity beyond mere preference, while the mother contended that X's objections were not sufficiently strong to override the court's discretion.

The court found that while X did express a preference to live in Australia with her father, her objections did not demonstrate a level of strength or feeling beyond a mere preference or ordinary wish. The court concluded that X's objections were influenced by her emotional ties to her mother and sister, and her fear of being separated from her sister. Consequently, the court exercised its discretion under regulation 16(3)(c) and ordered that X be returned to South Africa. The court emphasised that the child's best interests and emotional security were paramount in making its decision.

Orders

Orders of the court

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Background

Background to the litigation

Counsel who appeared on behalf of the father conceded that the contention that the application ought be dismissed because the child was well settled was not available and accordingly not pursued.BACKGROUND The mother of the subject child is Ms B. The parents of X were married in 2004. They have two children: Ms C born 2004 and X. The parties were divorced on 30 March 2012. At the time of the divorce, the divorce decree provided that each of the parents had full parental responsibilities and rights in respect of the minor children. Both the parents of X have re-partnered, the father marrying his wife Ms E in 2013 and the mother marrying her husband, Mr F in 2019. The father and his current wife have two children born to that marriage, aged nine. The mother and Mr F have two children born to their marriage: one who is about seven years old and a baby. In early 2018, the father moved to Australia with his wife and their children. In late 2019, Ms C and X visited the father in Australia for approximately six weeks. The mother says that the father refused to send the children back to South Africa. The father says that, notwithstanding the fact that the children expressed a view that they were happy in Australia, they were returned to South Africa. Proceedings were commenced in the High Court of South Africa in 2020. The mother sought orders permitting her to change the children’s place of residence so that they might live with her in Country G, where her husband has employment. In mid-2020 the High Court of South Africa appointed an expert, Ms H, to conduct an investigation and assessment of the best interests of the children. At that stage, the dispute as between the parents concerned whether or not the children would live together with their mother in Country G or together with their father in Australia. In late 2020 Ms H’s confidential psycho-social legal report was completed. On 30 November 2021 a report was prepared by a Family Counsellor, Ms J (social worker), at the request of the Family Advocate, Ms K, to assist the investigation into the best interests of the two children, Ms C and X. On 8 December 2021 a report was prepared by the legal representative for Ms C and X, Ms M. On 9 December 2021 a report was prepared by Ms K in respect of the intended re-settlement of Ms C and X to Australia or Country G. In December of 2021 after release of these reports, the father filed an application in the High Court of South Africa seeking orders to permit X to spend time with him in Australia. In December 2021 orders were made in the High Court of South Africa by agreement between the parties, which included the mother, the family advocate and a Curator ad Litem on behalf of the children. The order provides:1.…2.[X] shall fly to Australia [in] December 2021 and shall be taken to the [L Airport] by the First Respondent to permit her to fly to Australia.3.The First Respondent shall ensure that [X] has a PCR covid test Rapid/Urgent PCR covid test the morning of [the flight] and the results are to accompany [X] to the airport. The Applicant has to deposit R1 000.00 for this test to be done, into the bank account of the First Respondent on or before [three days prior to departure].4.The First Respondent shall ensure that [X] has her valid passport with her to enable her to fly and ensure that she flies with her flight tickets, that must be provided by the Applicant to the First Respondent.5.[Mr N] and his wife [Ms P], whom is the cousin of the Applicant’s wife [Ms E] and whose cellular number is […], shall accompany [X] throughout the entire flights, including connecting slights and layovers, during her flight to Australia [in] December 2021, as well as, the entire flights, including connecting flights and layovers, during her flight back from Australia to South Africa on or before 10 January 2022.6.The First Respondent shall provide her express written consent for [X] to visit her father in Australia for the upcoming December 2021/January 2022 school holiday and comply with all requirements of Home Affairs to enable [X] to fly to Australia. The relevant documentation must be provided by the Applicant to the First Respondent.7.The Applicant shall ensure that return flight tickets are purchased to facilitate [X] arriving back in South Africa on or before 10 January 2022.8.The Applicant shall ensure that [X] has her valid passport with her to enable her to fly and ensure that she flies with her flight tickets, on her flight back to South Africa from Australia on or before 10 January 2022.9.The Applicant shall ensure that [X] has a PCR covid test Rapid/Urgent PCR covid test the morning before her scheduled flight back to South African from Australia and that the results are to accompany [X] to the airport. 10.Each party is to pay their own costs of this application. (As per the original)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As is plain, even if the Court finds that one of the circumstances set out in reg 16(3)(a), (b), (c) or (d) is satisfied, the Court retains a discretion to order that the child be returned. Here the respondent relies on reg 16(3)(b) and/or (c). CONSIDERATION The focus of the evidence in this case is squarely on reg 16(3)(c). It is contended on behalf of the father that each of the following apply:(a)X objects to being returned;(b)X’s objection shows a strength or feeling beyond the mere expression of a preference or of ordinary wishes; and(c)X has obtained an age and a degree of maturity at which it is appropriate to take into account her views. The parties rely on a number of different sources of information to make their submissions as to whether or not the views expressed by the child satisfy the test set out in the Regulation. Those include words attributed to the child herself, the views of experts engaged in the South African proceedings and the Hague Report prepared by the court child expert. It is necessary to take a longer view in this case than merely taking into consideration the views expressed by the child to the court child expert. Proceedings were commenced in South Africa in the first half of 2020 and since that time the court in South Africa has had the advantage of reports from the following sources:(a)The report of Ms H, social worker, ordered by the South African court in mid-2020 and dated 10 November 2020;(b)The report of the Family Counsellor, Ms J, social worker with the office of the Family Advocate dated 30 November 2021;(c)The report of the Family Advocate, Ms K dated 9 December 2021 – this appears to be a consolidation of other sources as opposed to an independent firsthand account; and(d)The report of the legal representative of the minor children, Ms M dated 8 December 2021. In addition, the mother, the father and the father’s wife have all given some evidence about the child’s views. The father, his wife, the mother and the court child expert were all cross-examined.Ms H’s report The report was court ordered and was to provide a recommendation about the competing proposals - should the children Ms C and X live with the mother in Country G or the father in Australia. The report was informed by the provisions of the Children’s Act, Act 38 of 2005 and relevantly ss 7(g) and (h):(g) the child’s –(i) age, maturity, and stage of development;(ii) gender;(iii) background; and(iv) any other relevant characteristics of the child(h)the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development …And s 10:Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.(Referred to in the affidavit of Ms Q filed 21 December 2022 p. 58) The report writer interviewed X and made the following observations:[X] impressed as a very friendly and likeable eleven-year-old. She was always friendly and cooperative with the undersigned social worker and she presented with a positive demeanor [sic].She very clearly expressed a wish to go and live in Australia with her father and his family. She continuously indicated that this was her wish, but she was also very scared that her sister was not going and she indicated that she does not want to go without her sister. It was evident that she is emotionally influenced by her mother and sister and the dispute between them and her father.It was interesting to note that [X] did not indicate that she wants to remain in the care of her mother, but that she would like to be with her sister.(Affidavit of [Ms Q] filed 21 December 2022 p. 82)