Secretary, Department of Communities and Justice & Brandt
[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 to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application by the New South Wales Secretary, Department of Communities and Justice as State Central Authority pursuant to the Family Law (Child Abduction) Convention (Regulations) 1986 (Cth). The Central Authority seeks orders for the return of the child X born 2009 to South Africa.
The respondent to the application is the child’s father, Mr Brandt, who has filed an Answer and Cross-Application in which he seeks that the application filed on behalf of the Central Authority be dismissed.
To the extent that the Answer and Cross-Application identifies a basis on which it is contended that the application should be dismissed, there are three matters raised:
(1)Return would pose a grave risk to the child;
(2)The child objects to return; and
(3)The child is well settled in Australia.
At the commencement of the hearing I clarified with those who acted on behalf of the respondent whether or not all of these bases would be pursued at trial.
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)
In December 2021 X travelled from South Africa to Australia for the purpose of spending time with the father pursuant to the orders which had been made two days previously.
On 10 January 2022, the date on which the order indicated that X would be returned to South Africa, the Central Authority contends that her retention on that date and thereafter was wrongful.
On 25 March 2022 the South African Central Authority made an application for return of X to South Africa.
For reasons which are not clear, an application for return was not filed in this Court until 23 December 2022. At that time X had been in Australia for just over one year. I pause to note that one year had not passed since the date on which she was retained.
On 23 December 2022 her Honour Justice Williams made orders placing X on the Airport Watchlist and restraining the father from removing her from the Commonwealth of Australia.
On 30 January 2023 an order was made for the preparation of a Hague Report by a court child expert, which report dated 7 March 2023, was released by the Court on 9 March 2023.
THE LAW
The Central Authority makes an application pursuant to reg 14(1) of the Family Law (Child Abduction) Convention (Regulations) 1986 (Cth) (“the Regulations”) and where such application is made within a year of the child’s removal or retention, the Court must, subject to reg 16(3), make an order for return: reg 16(1) of the Regulations.
There is no dispute in the circumstances of this case that the retention in Australia was wrongful. Accordingly, the provisions of reg 16(1A) are satisfied. This case turns on an assessment of the defences provided for in reg 16(3) of the Regulations. Regulation 16(3) creates a discretion whereby the Court may refuse to make a return order if the circumstances establish:
(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.
The Central Authority has discharged the onus of establishing that the retention of the child in Australia was unlawful. The onus to establish a defence rests on the respondent: DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 (“DP and JLM”).
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)
And recorded under the heading “Views expressed by the child”:
Consistently [X] expressed the wish to reside with her father and his family in Australia. However, after her sister indicated that she does no longer wish to go and live in Australia, she indicated that she still wanted to go to Australia but that she wants to be with her sister. She was extremely upset at this time and was crying profusely.
It was evidence to the undersigned social worker that [X] expressed a strong wish and need to reside in Australia with her father and his family. However, she presents as a resilient child that will, in the opinion of the undersigned social worker, adapt in any circumstances if she is with family.
(Affidavit of [Ms Q] filed 21 December 2022 pp. 87 - 88)
Ms H recommended that X live with her father in Australia.
I must treat Ms H’s report in its context – that is, it was issued in November 2020. At that time I accept that X expressed a wish or preference to live with her father in Australia rather than the mother in Country G. That evidence alone is squarely the expression of a mere wish or preference and accordingly would not satisfy the statutory requirement to be taken into account.
Ms J’s report
Ms J was engaged at the request of the Family Advocate, Ms K, to prepare a report for the South African proceedings. In preparing the report, Ms J spoke to X in mid-2021. Her report records:
7.2 [X] said that it will be better for her to stay on with the Mother, as she does not want to leave the Mother and her younger sister [R]. She also mentioned that she is used to the Mother and would miss her and [R] very much. [X] thought that she has now lived for so long with the Mother and away from the Father and her brothers that it will be much more difficult for her to separate now from the Mother and [R].
7.3 [X] became very emotional when the undersigned Family Counsellor asked how she would feel if the Court decided she has to go and live with the Father. [X] cried, and said that she did not want to be away from “[Ms C]” ([Ms C]), and that she knew that “[Ms C]” does not want to go and live with the Father. [X] indicated that it is very important for her to be where “[Ms C]” is.
…
7.5 According to [X], she cannot remember saying to the Father that she wants to stay with him and she also cannot remember the Father asking her if she wants to stay there and go to school.
Ms K’s report, as discussed above, is a synthesis of other information and does not, therefore require separate consideration.
Involvement of a legal representative for the minor children
An advocate, Ms M, was appointed in the South African proceedings to act on behalf of the children Ms C and X.
Ms M’s report is also a synthesis of the other material in the case, although it is clear that Ms M did have direct contact with the children. In the lead up to the father’s application for an order permitting X to travel to Australia for a holiday, she consulted with the children and wrote an email on 19 November 2021 which read in part: [X] indicated that she is willing to go and visit her father in Australia but that she does not want to live there.
It follows from an analysis of the above objective sources that no expression of views by X either in favour of living in Australia or South Africa (as was contained in the material before the South African court) would be regarded as more than a mere wish or preference.
It is necessary to consider the more recent evidence which includes the report of the court child expert Ms S and the evidence contained in the parents’ affidavit material and the affidavit of Ms E, the child’s stepmother.
Tendered into evidence at the hearing was a text message from X to her sister Ms C dated 3 March (presumably 2023). In part it reads: … Im staying with dad … I love you too but im NOT going back (as per the original).
It is plain that X is caught in the dispute between her parents about where she should live. Her sentiments as expressed in the text message are congruent with the discussions between X and the court child expert and demonstrate that she feels dismissed by her interactions with her sister but not to the extent that she does not express love and hurt.
Hague report
Ms S met with X alone on 1 March 2023. At that time X had been in Australia for more than 14 months.
Ms S recorded:
14. [X] demonstrated a clear understanding of the issues before the Court. She was very clear to state that she wanted to participate in the decision affecting her living arrangements, and wanted her views heard and understood by the Court (and by her parents).
Some of the matters discussed by X with Ms S fell into the category of being consistent with the expression of a preference or wish – they included references to a greater sense of freedom or the availability of greater sporting opportunities, better lifestyle or friendlier people in Australia.
However, Ms S opined that the primary reason for X’s objection was “the nature and security of her paternal family relationships … She described her father as warm, affectionate, and supportive of her needs”. X also described close relationships with her step-mother and paternal siblings. She indicated to Ms S that she was concerned about her capacity to cope emotionally if she returned to South Africa. This arose out of the child’s concern that the relationship with her mother has broken down while she has been in Australia.
Ms S recorded X’s views about the deterioration of that relationship as follows:
27. [X] described feeling “blamed” by her mother and [Ms C] for the current circumstances, and said “I can’t see things getting better”. She said, “I’m scared to go back. I don’t want to go back”. She said the sustained anger shown towards her by the mother and [Ms C] over the past 14 months makes her feel ‘scared’ and worried about what it would be like for her if she were made to return to live with them. While [X] denied acute concerns for her mental health at this time, she was clear to express her concern about her emotional wellbeing if such a decision were to be made. When asked how her mother demonstrates to her that she cares about her and her views, [X] said that her mother is not currently showing that she cares or understand her emotional needs at this time. She added that she is concerned for the wellbeing of [Ms C], who she believes is now “too scared” to express her desire to live with the father for fear that the mother will similarly reject her.
As she was requested, Ms S specifically addressed whether X’s objection showed a strength of feeling beyond the mere expression of a preference or of ordinary wishes. Ms S concluded:
29. [X’s] objection to return to South Africa was assessed to be beyond the expression of a mere preference, and instead, appeared to be founded in context of her attachment relationships/security and her emotional wellbeing. [X] depicted very close relationships with her father, step-mother and paternal siblings. She described sentiments of grief and loss about being separated from them in 2018, and a yearning to be close to them ever since. While [X] described positive aspects of Australian culture and lifestyle that appear to attract her to living in Australia, her wishes overall appeared to have been formulated in a context of how integral her paternal relationships are to her sense of identity and wellbeing at this stage in her life.
Ms S was also asked to express an opinion as to whether X had attained an age and degree of maturity at which it is appropriate to take account of her views. Ms S concluded that X was intelligent and mature. Importantly, she also commented that X’s expressed views appeared to be “aligned with her own emotional needs and experiences” as opposed to being the product of the needs or views of one or other of her parents.
It is important to understand the limited brief which Ms S had was to undertake an assessment on the basis of an interview with the child alone and having regard only to a limited part of the evidence as set out in her report.
During Ms S’s oral evidence she indicated that X had spoken warmly of South Africa and spoke sadly about the loss of her relationship with her mother. That gave the report writer some hope that the relationship could be repaired although the report writer was not in a position to express an opinion about the mother’s capacity to assist in that regard.
Ms S was taken to evidence of a note which had been attached to the affidavit of Ms E. That note was said to have been written by X prior to her attendance upon Ms S following a conversation between Ms E and the child during which the child expressed worry about speaking to Ms S and Ms E says, in an effort to allay the child’s concerns, she suggested making some notes. The annexed note read:
1 March 2023
I don’t want to go back because I’m not getting treated right, im mentally aboused by my own grandmother im only aloud to eat small meals because i need to lose weight and if i ask for more food i get slapped and called fat. But I can promise you one thing if you send me back i will kill myself i will hand myself or ill slite my througt if you send me back your driving me to a suicide I love my dad my one and only mother my step-mom. She cares more for then that.
(As per the original)
When taken to the note in cross examination, Ms S said it raised concerns on a number of levels and that she had specifically raised with X her mental health at interview and X denied having any thoughts of self-harm.
Ms S stated further that the denial did not necessarily discount that X’s feelings as expressed in the note were very real at the time that she wrote it and she could not conclude that there was not “a level of risk”. But she contextualised her answer by saying that sometimes children convey their strong views in that manner because they feel like, unless they do so, they will not be heard.
Ms S also gave evidence to the effect that she had assessed X as able to draw on a number of strengths in her life when Ms S was exploring her mental health but she remained concerned that the child does not feel heard by the maternal family and her emotional needs may not be being met by them, which may create a degree of risk if she is to be returned.
Ms S offered the opinion that suicidality is a very difficult thing to measure. She saw X as a “sensitive, bright, sad kid” around her current circumstances and she would not want to doubt the genuineness of what the child wrote in her note. She concluded that it would need to be considered with the other available evidence.
I was assisted by the measured and considered manner in which the court child expert weighed the material available to her and identified the issues for the Court.
I accept that the evidence demonstrates that the child objects to return.
I accept that the evidence demonstrates that in the period of more than a year since she was retained, the objection shows a strength of feeling beyond the mere expression of a preference or a wish and I accept that she has reached an age and a maturity where it is appropriate to take account of her views.
Counsel for the Central Authority in his written submissions likened the child’s position to that which presented for the Court in Department of Communities, Child Safety and Disability Services & Garning (Discharge Application) [2012] FamCA 839 where the children’s time and experiences living in Australia had had an impact on their views and the intensity with which they were expressed. I accept there are factual similarities. I was urged by the Central Authority to place X’s current expressed views in the context of her earlier contrary views. I accept that is both important and necessary. It is plain that right up until X travelled to Australia in December 2021 her more recent position had been that she wished to live with her mother. In context, X was expressing the desire to live with her father in Australia to Ms H in 2020, her desire to remain in South Africa with the mother in 2021 and her desire to remain in Australia with her father in 2022 and 2023. I cannot ignore the fact that her opinion has changed or that her current view has developed in a situation where she has been living with her father and has had minimal contact (and no face to face contact) with her mother and siblings in South Africa.
I cannot, however, by this reason alone, discount the child’s view. I did not form the view on the available evidence that X’s position was reached because of the improper influence of the father or extended paternal family. The fact that the child still impressed the court child expert as having a “warmth of sentiment” for her mother and sister Ms C were indicative that her time in the care of the father has not caused her to view her relationship with the mother in an extreme or polarised manner such as sometimes occurs.
Taking into consideration all of the evidence, I am persuaded that the respondent has satisfied me that X’s objection satisfies each of the three limbs of reg 16(3)(c) of the Regulations.
Grave risk/intolerable situation
The respondent bears the onus to satisfy the Court that return poses a grave risk or exposure to an intolerable situation.
The respondent explicitly acknowledged that his case was not focused on return to South Africa per se as the factor posing a grave risk but rather, having regard to the child’s objection, it was argued that a return order would create a situation of psychological or physical risk.
The psychological or physical risk identified was grounded in the child not having her emotional needs met, fearing anger on the part of her mother and, as a consequence of the note which she had written, a concern that she may be at risk of self-harm or suicide.
The evidence from the South African proceedings, in particular that from the social workers’ reports about the nature of the child’s relationship with her mother in 2020 and 2021, does not support the child’s concerns that the mother would react in a manner which was angry, retributive or emotionally unavailable.
The assessment of risk requires an analysis of what has happened and an assessment as to whether those facts suggest that there is a future risk: see DP and JLM at [41]. Here the most significant evidence said to underlie any future risk is the child’s handwritten note. The note taken with both the court child expert’s evidence about how the note should be seen, and the evidence of the social workers in South Africa about the mother’s capacity, are capable, when taken together, of allaying concern that return would pose a grave risk.
In considering the risk of return I have also had regard to the fact that, while I accept that X feels as though her mother has rejected her, the objective evidence is that her mother has maintained litigation in both South Africa and Australia with the sole aim of obtaining an order for X to be returned to her primary care, a position that X herself appeared to support until the time of retention.
The expression “grave” is to be given its proper meaning. The evidence does not establish that return would pose a grave risk to the child. I consider that the child’s desire to be heard will have outlet in the proceedings in South Africa in which she is represented.
Discretion
While I am satisfied that X’s objection satisfies reg 16(3)(c), the Regulation merely enlivens the discretion to dismiss the return application. The discretion to return remains.
The matters relevant to the exercise of discretion are at large as the High Court noted in De L v Director-General, NSW Department of Community Services and De L (1996) 187 CLR 640 at [46]:
As earlier indicated, the so-called "paramountcy principle" is not applicable in proceedings under the Regulations. However, it is to be noted that, if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child's return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the "discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the (Regulations)" enable it to be said that a particular consideration is extraneous(40). That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
In this particular case, there are a number of factors which persuade me that it is appropriate to order return. Those are:
(a)There are proceedings on foot in the requesting country;
(b)Judicial comity; and/or
(c)The father’s conduct.
Against that I must also, in this case, pay particular attention to the impact on the child of an order for return.
Proceedings in South Africa
In 2020 the mother sought an order from the South African court permitting her to make the children’s place of residence in Country G. The father’s response was an application to make the children’s place of residence in Australia. Accordingly, in 2020 and 2021, the subject matter of the litigation in the South African court was about where and with which parent the children should live.
X was born in South Africa as were both of her parents. It is beyond question that South Africa is the most appropriate forum for the dispute about parenting issues to be heard and determined.
The father immigrated to Australia in 2018. There was a visit by X and her older sister Ms C to the father in Australia in late 2019. The visit was scheduled for six weeks. During the visit the father enrolled the children in school for a week. The mother apprehended that the father did not intend to return the children and engaged legal representatives. The children were returned.
From the time of the filing of the mother’s application in 2020 there have been various court events in the South African proceedings.
In late 2021 the father filed an application seeking orders which would permit both children to travel to Australia. Ms C indicated she did not want to travel and the matter proceeded as regards X. The father was legally represented in the South African proceedings. The matter came before a judge in late 2021. The judge made a consent order by agreement of all parties.
Significantly, the consent order contained a clause which provided that X would be accompanied on the flights to and from Australia by Mr N and Ms P.
This is significant because Mr N and Ms P were immigrating to Australia and it was never the case that they were intending to return to South Africa by the date provided for in the orders, namely 10 January 2022.
The orders were explicitly characterised as a visit. The proposed trip was for a period of less than one month (inclusive of travel time).
The father was cross-examined about two relevant issues:
(a)The fact that Mr N and Ms P were not returning and his knowledge about same; and
(b)The fact that he did not buy X a return plane ticket.
The father agreed in cross-examination that when Mr N and Ms P left South Africa in December 2021, they were not returning and he was aware of this fact. He was asked why it was that he had represented in the consent orders that they would accompany X on her return flight to South Africa. He said that it was only intended by him that she would be accompanied on her way to Australia because the flight was not a direct flight. However, the plain words of the order required X be accompanied by Mr N and Ms P in both directions. The mother says in her affidavit sworn 1 March 2022, and annexed to the South African Hague Convention Application, that the application was adjourned for four days in December 2021:
4.1 The Parties, which was Adv. [Mr T] on behalf of me, the respondent Adv. and Adv. [Ms M] of Legal Aid whom represented our two minor daughters reached a settlement agreement and was heard [in] December 2021 by the Honourable Justice Fourie and the matter was postponed to [four days later in] December 2022, for the Respondent herein to provide instruction to his attorney of record as to who would accompany our minor daughter [X] on the flights, lay overs and connecting flights to Australia and from Australia back to South Africa.
The father had not booked a return ticket when he booked X’s ticket to Australia. In cross-examination he was asked about this issue and said his failure to book a return ticket was somehow COVID-19 related.
In late 2021 Ms E received an email from a travel agent which indicated that there was a direct flight from Sydney to City D departing in the morning from Sydney and arriving in the afternoon in City D on 10 January 2022. The father did not book this flight. The father’s evidence does not address why he did not book this flight. The father agreed in cross-examination that no further inquiries were made about flights returning to South Africa after the date of the email.
Both the father’s failure to book a return flight and his having agreed to an order that X return to South Africa in the company of persons he knew were not returning is consistent with an intention on his part not to return X at the conclusion of her holiday. Further it is consistent with him having formed that view prior, or at the time of, entering into the consent orders.
This approach to the orders of the High Court of South Africa by the father is not one which can be excused by reason of the father’s failure to read or understand the documents. Judicial comity requires that this Court acknowledge the father’s actions are in direct contradiction to the terms of the orders which bound him. I accept the submission that proper implementation of Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) depends on reciprocity and mutual respect between judicial authorities of Convention countries: Soysa & Commissioner of Police [2011] FamCAFC 39.
On 10 January 2022 the father’s South African lawyers wrote to the mother’s South African lawyers and indicated that X “feels safer in Australia where she has her own room and [the father?] believes that it is in her best interests to relocate to Australia”. Leaving aside the reasons for any relocation – the fact of relocation (or not) was precisely the subject matter before the South African court.
The importance of ensuring that parties who are engaged in litigation do not use self-help remedies to avoid adjudication in the child’s place of habitual residence is at the heart of my decision to order a return notwithstanding the child’s objection.
As Hale J observed in her dissent in TB v JB (formerly JH) [2000] EWCA Civ 337 at [56]:
… the policy of the Hague Convention undoubtedly weighs heavily in respect of the children’s objections. In my view, expressed in Re HB (Abduction: Children’s Objections) [1997] 1 FLR 392, it weighs particularly heavily in those cases where children come to visit a parent living here and wish to remain: unless their objections are very cogent indeed, they should return to their primary carer for the dispute about a change in primary care to be settled in their home country.
I am conscious that this decision has the effect of requiring that the child be involved in further litigation and that she is likely to be concerned about leaving her father and worried about the fractured nature of her relationship with her mother. I am confident that the South African court, with all the information available to it, will be able to reach a decision which pays proper regard to the views of this intelligent and mature child in the context of all the matters which fall for consideration pursuant to their laws.
The parties did not address me about any mechanics of return and accordingly I have made an order that the father pay for the child’s return ticket on the basis that he was obliged to do so pursuant to the consent orders in South Africa. The child will remain on the Airport Watchlist until there is an order (by consent or otherwise) to facilitate arrangements for return to South Africa.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 11 April 2023
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