Secretary, Department of Communities and Justice & Caladine (No 2)
[2022] FedCFamC1F 51
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Communities and Justice & Caladine (No 2) [2022] FedCFamC1F 51
File number(s): SYC 5734 of 2021 Judgment of: WILLIAMS J Date of judgment: 11 February 2022 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Children wrongfully removed from the USA to Australia – Regulatory exception raised by the mother – Regulation 16(3)(b) grave risk of exposure to physical or psychological harm or otherwise place the children in an intolerable situation – Held, regulatory exception established – Exercise of discretion – Application dismissed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15, 16
Family Law Act 1975 (Cth) s 111B
Cases cited: DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39
HZ & State Central Authority [2006] FamCA 466
Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145
Secretary, Department of Communities and Justice & Caladine [2021] FedCFamC1F 179
State Central Authority & Sigouris [2007] FamCA 250
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Division: Division 1 First Instance Number of paragraphs: 126 Date of hearing: 22–23 November 2021 Place: Melbourne Counsel for the Applicant: Ms Hartstein Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice Counsel for the Respondent: Mr Green Solicitor for the Respondent: Parker Family Law ORDERS
SYC 5734 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF COMMUNITIES & JUSTICE
Applicant
AND: MS CALADINE
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
11 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Application filed by the Secretary, Department of Communities and Justice on 9 August 2021 is hereby dismissed.
2.Paragraphs 1–3 of the Orders made on 12 August 2021 be discharged.
3.Paragraph 5 of the Orders made on 12 August 2021 be discharged and the mother be entitled to retrieve any passports lodged for safe keeping with the court.
4.The Court requests that the Australian Federal Police remove the names of the respondent mother, Ms Caladine born 1985 and the children X born 2017 and Y born 2019 from the Watch List at all points of international arrivals and departures in Australia.
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 the pseudonym Caladine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
This is an Application by the Secretary, Department of Communities and Justice (“the State Central Authority”) filed on 9 August 2021 seeking the return to the United States of America (“USA”) of the children, X born in 2017 (“X”) and Y born in 2019 (“Y”), pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations").
The respondent, Ms Caladine is the mother of the children. The requesting parent, Mr B who lives in State F, USA, is the father of the children.
The proceedings were bifurcated as to jurisdiction and regulatory exception to return. The jurisdictional issues were heard and determined (Secretary, Department of Communities and Justice & Caladine [2021] FedCFamC1F 179). The present hearing was therefore limited to regulatory exceptions (reg 16(3)(b)).
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the children to their country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The relevant Regulations provide as follows:
Reg 16 Obligation to make a return order
…
(3)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.
(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.
Onus of proof
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
The respondent bears the onus of proof to establish the regulatory exceptions to return. The regulatory exception which the mother relies upon is that there is a grave risk that returning the children to the USA would expose them to physical or psychological harm or otherwise place them in an intolerable situation (reg 16(3)(b)).
Preliminary Matters
The hearing was conducted electronically via Microsoft teams, due to the COVID-19 Pandemic.
An electronic hearing enabled the parties and practitioners to participate in the proceedings.
I wish to express my appreciation to both Counsel for the professional and courteous manner in which the proceedings were conducted.
Evidence and Documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)Form 2 Application filed 9 August 2021;
(b)Affidavits of Ms K filed 18, 19 and 21 November 2021;
(c)Case Outline filed 22 November 2021;
(d)Documents tendered during the trial.
The respondent relied upon the following documents:
(a)Form 2A Answer and Cross-Application filed 26 August 2021;
(b)Affidavit of Mr D filed 14 October 2021;
(c)Affidavit of Mr C filed 15 October 2021;
(d)Affidavits of mother filed 11 November 2021 and 19 November 2021;
(e)Affidavit of Mr Caladine filed 11 November 2021;
(f)Affidavits of Ms L filed 11 November 2021 and 15 November 2021;
(g)Affidavit of Mr N filed 11 November 2021;
(h)Affidavits of Mr M filed 11 November 2021 and 18 November 2021;
(i)Affidavit of Dr O filed 11 November 2021;
(j)Case Outline filed 19 November 2021;
(k)Documents tendered during the trial.
As the onus of proof falls on the mother, she was treated as the applicant and was cross-examined first. Thereafter, her treating psychologist, Dr O, was also cross-examined. None of her other witnesses were required for cross-examination.
The father was also cross-examined by Counsel for the mother.
The mother was not an impressive witness and did not often answer the question asked of her. Many of her answers were monosyllabic and it was at times difficult to follow her narrative. She often delayed answering relatively direct questions and attempted to cast her answers in a manner most favourable to her case. Generally, I consider the mother to be more reliable of a witness than the father. Examples of this include the claims from each parent as to the level of care they have provided in the past for the children and the father’s wavering evidence regarding the arrangements for the future care of the children in the USA, should a return order be made.
The father was also not an impressive witness. He often used questions as opportunities to provide speeches and his answers were often littered with grandiosity. At times, the father would only make concessions when he was backed into a corner and at times when it was convenient to make those concessions. An example of this was during re-examination when the father offered to make significant financial contributions to the mother to support her and the children in the event a return order were made, despite there being insufficient evidence that he had the financial means to do so. The father also lacked insight of the level of care required for two children, one of whom has special needs and in circumstances where the mother has been the primary caregiver of the children at least since September 2019.
Both Counsel tendered documents during the trial as follows:
Exhibit Number Description R-1 City G Sheriff's Department Incident Report in regards to Ms Caladine R-2 Proof of Service R-3 Two Police Emails to Mr Caladine R-4 Email from Mr B to Ms Caladine with 2 attached photographs R-5 Suburb Q Police Department Incident Investigation R-6 List of corrections to Respondent’s affidavit emailed to associate on 22 November 2021 R-7 Email from father to Mr Caladine dated 26 September 2019 R-8 Email from Mr B (father) to mother dated 7 October 2019 R-9 Email dated 26 September 2019 at 10:03am from father to Mr Caladine A-1 Letter to mother dated 22 January 2020 from H Company
BACKGROUND
I do not propose to repeat the background in the first judgment except insofar as it relates to the regulatory exceptions.
On 28 September 2019, the mother told the father she would go to a hotel for a break but instead used the opportunity to take the children with her to a domestic violence shelter. On 4 October 2019, the mother and the children were transferred to a hotel for three days to ensure they were not being followed before moving to an emergency shelter, where they remained for 45 days. The mother then secured transitional housing for a seven month period through a domestic violence housing programme until she acquired an apartment in Suburb P.
On 5 December 2019, the mother commenced proceedings for a temporary restraining order and child related orders which were made that day on an ex parte basis. They continued in place until the mother left the USA for Australia in mid-2020.
On 12 December 2019, the father filed a petition for dissolution of marriage and on 18 December 2019, filed his own request for domestic violence restraining orders. His request for ex parte orders was denied and no temporary orders were made.
On 26 March 2020, the mother filed a petition to be able to take the children out of State F to live in Australia. The hearing has yet to be heard and determined by the Court. Both domestic violence restraining orders were set down for hearing on 15 July 2020 but was adjourned to 4 September 2020 with the father ordered to spend supervised time with the children in the interim.
In mid-2020, the mother travelled to Australia with the children. This was done in breach of court injunctions and without knowledge of the father. At the hearing on 23 September 2020, the mother’s US counsel informed the court that she left the USA as she was at risk of being in violation of USA laws.
At the court hearing on 4 September 2020, the mother was ordered to return the children to the USA. At a later hearing on 23 September 2020, Commissioner V, the presiding judicial officer made orders granting the father with sole legal and physical custody of the children. These orders do not have an end date and no other order made provides for a review of that order. The orders were not made following a consideration of the child’s best interests.
At the 30 December 2020 hearing, Commissioner V confirmed his approach at the previous hearing and told the father he could travel to Australia to retrieve the children and that he made the sole physical and custody orders as a punishment for violating the court orders.
On 30 September 2020, X commenced psychology sessions with his psychologist, Ms R and attended 27 sessions in total. X attended a clinical psychologist in November 2020, where the mother states the psychologist informed her that X did not have autism markers.
In February 2021, the mother had her green card renewed and in March 2021, the mothers Domestic Violence Restraining Order was dismissed without prejudice.
In November 2021, a report regarding X was obtained from the T Centre which references a diagnosis of Global Development Delay and notes that X presents with “significant delays in cognition, social/emotional development and fine and gross social skills”.
REGULATORY EXCEPTIONS TO RETURN
Grave risk of physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b))
I will now address the issue of exposure to grave risk of physical or psychological harm or placing the child in an intolerable situation.
Relevant legal principles
The leading authority in Australia pertaining to this regulatory exception is DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39 (“DP”) Gaudron, Gummow and Hayne JJ stated:
39.… Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry…
…
41.… 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 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.”
42.Necessarily 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.
43.Because 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.
44.These 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.
45.That 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.
In DP at paragraph [130], his Honour Justice Kirby, in a dissenting judgment stated:
… Inevitably…the application of the exception provided for in reg 16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law…It should not therefore be surprising that they (the exceptions) have only been invoked successfully in comparatively rare instances.
Further at paragraph [132], his Honour Justice Kirby considered the language used in reg 16(3)(b) and said:
The adoption of the word “grave” to qualify “risk” plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not “grave”) risk of the kinds of harm contemplated. Similarly, the use of the word “otherwise” in reg 16(3)(b) indicates that the types of “physical or psychological harm” referred to must also be such as to place the child concerned in an “intolerable situation”. Therefore, the language in question, as well as its appearance in a provision enumerating limited exceptions to the general rule, make it clear beyond argument that orders of return will be made to uphold the principal object of the law in circumstances where, were the matter simply a custody dispute (however described), in all likelihood, on the evidence provided, the child's current arrangements would not be altered. Only a circumstance where the party resisting the order can establish, in the context presented by the ordinary rule of return, that that result would expose the child to a grave risk that was “intolerable … extreme and compelling”, will invite the application of the exception.
(Citations omitted).
In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 at 1154, the Court of Appeal stated that:
…There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which may be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence”
In State Central Authority & Sigouris [2007] FamCA 250, Bennett J said at [79]:
In order for the respondent mother to make out the exception under Regulation 16(3)(b) of the regulations (Article 13(b) of the Convention), it is necessary to establish at the risk of exposure to physical or psychological harm or the children being placed in an intolerable situation in the event of their return to Greece forthwith is not only very real but “grave”.
In Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65, Watts J at [90] made it clear that the regulations are to be interpreted according to Australian legal standards and the fact that in DP the High Court did not give a restrictive meaning to the defence of grave risk that made clear that the words of reg 16(3)(b) are to be given their natural meaning and not a narrow construction.
I will address the factors relied upon by the mother, which are most helpfully referred to in the written final submissions of Counsel for the mother. They are:
(a)The father’s previous care of the children including his judgement around medical matters;
(b)The mother’s experience of the father’s behaviour prior to separation;
(c)the effect on the mother’s psychological and emotional well-being resulting from the father’s actions and behaviour towards her prior to separation in September 2019;
(d)the mother’s ability to re-enter and remain in the USA;
(e)the prospect that the mother will face criminal proceedings arising out of removing the children from the USA in August 2020 and punishment she may receive in any such criminal proceedings;
(f)the separation of the children from their mother on return to the USA;
(g)the effect on the children of being separated from the mother for weeks, months or even longer;
(h)the mother’s ability to participate in the current legal proceedings pending in the USA;
(i)the effect of the mother removing the children from the USA in mid-2020 upon any application she may make on an interim or final basis to relocate the children to Australia;
(j)the mother’s ability to support herself financially and emotionally in the short and longer term, should she be able to legally re-enter the USA;
(k)the capacity of the parents with or without assistance of state funding to finance extensive health support required for the child X.
Firstly, I will address the father’s previous care the children including his judgement around medical matters.
The evidence of both parents about their respective involvement and day-to-day care of the children are at opposite ends of the spectrum.
The mother deposes that the father’s care of the younger child Y was limited to the time when she showered, he changed her nappy less than five times in six months between March and September 2019 and held her less than 10 times. She further deposes that there was only one occasion when the father cared for the child when she was absent from their house for approximately 30 minutes, and that the father would be at home working on his business whilst smoking cigarettes and marijuana, while she attended to the children.
It was submitted that the mother’s version was corroborated by the observations of her father, when he and his wife visited the family in March 2019. The maternal grandfather was not required for cross-examination. His evidence was that when staying with the parents he formed the view that the father was obsessed with his son and although he observed them playing in the backyard together, the father’s focus was elsewhere. He also said that at no time did he see the father interact with his daughter and that the father had told him previously he did not want a daughter. He also deposes to the father frequently not rising until about 10.00 am each day, as he spent a lot of the evening hours awake doing other things and when he did get up, he would frequently ignore his son. He also deposes that during his stay with the family, the father was stoned on marijuana most of the time, was non-coherent and delusional in his ideas and stories. He observed the father on 20 occasions smoking “straight marijuana” in the backyard and that on numerous occasions the father would go to the bedroom to sleep.
In contrast, the father deposes that until 2020 he spent “every day and every hour with [his] children personally tending to all their needs”. At the same time he deposes that he finished renovating the house, recovered his business as well as tending to his son to “recover him intellectually from Ms Caladine’s severe neglect”. At the same time, the father was applying to work as a senior public servant. The father admits to smoking a mixture of tobacco and marijuana in the USA for a medical condition.
It was submitted by counsel for the mother that the court should accept the mother’s evidence on this issue, as her version is more likely to be accurate as the father’s statement that he spent every day and every hour with the children is incredible, in the context of him deposing to engaging in so many other activities at the time. The mother’s version is also corroborated by her father.
The unchallenged observations of the maternal grandfather, that the father appeared delusional at times with his ideas and stories is consistent with his penchant for grandiosity, which is apparent from his statements filed in the week prior to trial. Examples of that include:
(a)this case may have serious diplomatic consequences between our nations at a time when Americans just want to bring the troops home and China is threatening Australia;
(b)the family tradition of volunteering to protect democracy in East Asia;
(c)alleging that the mother’s family is trying to raise an issue with his religion, when the material filed by the mother does not raise any religious issues;
(d)asserting that the mother referred to her father’s wealth status, when she did not, to enable him to mention his family background, whereby he asserts noble European roots traced back to centuries ago, an uncle who was senior Freemason and a politician and being directly related to former senior US politicians;
(e)his mindset of being unable to accept that the children may remain in Australia as an outcome of the proceedings, stating he would never tolerate such an injustice.
Having considered the evidence of both parties and their evidence during cross-examination, I find that it is more probable than not that the father had limited involvement with the children and that the mother was the primary carer of both children during the relationship. I have also had regard to the unchallenged evidence and observations of the maternal grandfather in this regard. In making that finding, I do not accept the evidence of the mother as to the father’s limited time with the children, as deposed by her, nor do I accept the father’s evidence that he was constantly with the children. The evidence of both parents is highly improbable and unlikely.
I will now address the issue of the father’s judgement on medical matters. Counsel for the mother submitted that the court should be concerned about the prospect of the father making medical decisions for both children. During cross-examination, the father maintained his belief that the mother’s failure to take a multi-vitamin supplement caused the child X to suffer from an S-curve spine and bowed legs. Initially, the father maintained that was in accordance with medical advice, but he subsequently referred to a doctor having recommended vitamin D and plenty of sunshine. The father did not offer any credible medical evidence of a link between the failure of the pregnant mother to take a routine multi-vitamin supplement and X’s conditions. It was submitted that although the belief is honestly held it is on spurious medical grounds.
The father also maintained that he utilised psy-ops (psychological operations) techniques, which he learned in the defence force to treat X for his severe autism. That was despite the father agreeing that the child had never been diagnosed with autism but he had been diagnosed with developmental delay. During cross-examination, he initially resiled from his previous position that he may have cured the child from autism, and suggested that he may have alleviated the symptoms, prior to maintaining that he may have cured the child. When pressed as to whether he would again use psy-ops techniques on the child, his evidence was he didn’t believe it would be necessary and effectively attempted to avoid admitting that he would continue to use such an approach. During re-examination, his evidence was the technique involved singing to the child.
It was submitted that the father’s answers indicated a complete lack of understanding of the nature and causes of autism and it is a significant concern that the father believed and continues to believe. The father subjecting the child to an experimental form of psychotherapy raises concerns about how he reaches conclusions on important health matters. During cross-examination his evidence was that he researched the subject from unspecified sources on the Internet and several psychiatrists, whom he called at random. As he was unable to name any of the psychiatrists, it was submitted that he had embellished his evidence in that respect and had not in fact called any doctors. His conduct in relation to his belief that the child has autism is another example of the father wrongly reaching a conclusion that the child suffered a medical condition, when in fact he did not. It was submitted that the court could not have any faith that the father would make sound medical decision about appropriate treatment for a child with special needs.
I agree with the submissions of counsel for the mother about the father’s views pertaining to the child’s special needs, when there was no medical evidence or indeed any past diagnosis to support the child as having autism. Similarly, the father’s view of a link between the mother’s failure to take over-the-counter vitamins, whilst pregnant, and the child’s S-curve spine and bowed legs, lacked any medical foundation.
Secondly, I will address the mother’s experience of the father’s behaviour prior to separation and the effect on the mother’s psychological and emotional well-being resulting from the father’s actions and behaviour towards her prior to separation in September 2019.
The mother alleges that the parental relationship was characterised by domestic violence directed to her or X which culminated in an incident on 22 September 2019. The mother asserted that the father constantly berated X for squeaking or playing loudly in the mornings when he was trying to sleep. Prior to the September 2019 incident, the mother asserts that there were multiple threats from the father, where he would tell her she needed a good beating and that in some countries, they beat their wives and that was okay. The mother’s evidence was that on that evening the father followed her into the child’s bedroom, put his fist to her cheek, spat on her neck and said words to the effect that she deserved it.
The father asserts that the relationship was characterised by a long history of domestic violence perpetrated by the mother, including verbal and physical abuse and that the mother and maternal grandfather referred to X as flappy.
Both parents deny the allegations of domestic violence levelled by the other. In his denial of the mother’s allegations, the father’s evidence was that “old and new allegations against him as patently false” and during cross-examination he denied the allegation he had told her that she needed a good beating.
In so far as the mothers allegation of the father owning firearms, the police incident report of the Suburb Q Police Department records states that the father is the owner of three firearms as at 12 February 2020. The father’s evidence was that he had not owned a firearm since 2016 despite reference to maintaining a gun safe in his second unsigned statement annexed to the affidavit of Ms K filed 19 November 2021. The father’s evidence was that he sold the firearms to a person in State W and that there is an issue with different gun laws in different states which would explain the discrepancy.
The father admitted to opening mail addressed to the mother subsequent to separation and justified this on the basis the mother continued to receive emails related to their former business. The mother is fearful that if she returns to the USA the father will attempt to locate her and the children. It was submitted that the mother’s fear and apprehension is genuine and based on objective facts which would lead to such a fear, particularly in the context of the investigating officer at the City G Sheriff’s Department forming the view that the father’s complaint made 28 January 2020 was to use departmental resources to locate the mother and children.
Thirdly, I will address the effect on the mother’s psychological and emotional wellbeing.
Dr O, the mother’s psychologist was cross-examined by counsel for the State Central Authority. During cross-examination, she appropriately conceded that it was not her role to challenge a history provided by her patient. It was her view that the mother did not suffer from any diagnosable mental health disorder. She was not dissuaded from her view that if the mother were required to return to the USA she would be extremely concerned about the impact on the mother’s health. Her evidence was that the mother would also be at a high risk of psychological decompensation due to the extreme stress involved in a return to the USA. When questioned by me as to what that meant, her evidence was the mother’s attitude would be one of helpless exhaustion and in community parlance, as the mother having a nervous breakdown. She also was of the opinion that the mother may develop an adjustment disorder if she returned to the USA. The sources of the mother’s concerns were identified as the strong fears for her safety and not being able to access security available to her in Australia.
Counsel for the mother submitted that it was more probable than not that should the mother be ordered to return the children to the USA she would have a psychological breakdown and that breakdown would be deleterious and affect her capacity to provide care and support for the children, should they be in her care.
Counsel for the State Central Authority submitted that Dr O’s evidence that it is more probable than not that the mother would experience a nervous breakdown does not amount to a grave risk of harm to the children.
Whilst I agree with the submission of counsel for the State Central Authority in the preceding paragraph, if that were the only factor relied upon by the mother to establish the regulatory exception, she would not be successful. However, the mother’s mental health and capacity to care for the children is a significant factor in assessing whether or not the factors relied upon by the mother collectively satisfy the requisite threshold.
I will fourthly consider the mother’s ability to re-enter and remain in the USA.
The mother relied on an affidavit of Mr M filed 11 November 2021. Mr M is a USA immigration lawyer who is engaged to provide advice about the mother’s capacity to re-enter the USA. The affidavit states that the mother was approved for Lawful Permanent Residence on 31 August 2018 and was issued with a Green Card. At that time she was considered a Conditional Permanent Resident because her marriage was less than two years old. The conditional nature of her immigration status required a further application to be filed by 31 August 2020 to remove conditions on her residence.
In her affidavit filed 11 November 2021, the mother deposes to making the requisite application on 21 August 2020 and that she has been informed that her renewed Green Card was posted to an address where she was living in State F, prior to her departure in 2020. The mother has made enquiries with the manager of the apartment building where she was previously living however her replacement card has not been located. According to Mr M, the mother is required to file a further application, a form I-90 to obtain a replacement Green Card. That application may be filed online or by mail however the current processing time for a replacement card is 7 ½ to 16 ½ months.
Mr M refers to three options available to the mother to re-enter the USA prior to receiving a replacement Green Card. Additionally, he refers to the mother’s options to permit temporary return to the USA, whilst awaiting the replacement Green Card. The first option requires an appointment with a US consulate, where the delays for appointments are 297 days in Sydney in 295 days in Melbourne. Appointments are available in Perth in 25 days however travel to Perth from Victoria is currently restricted due to the Covid-19 pandemic.
The second option is to attempt to board a plane to travel to the USA with whatever evidence she has on her about her permanent resident status, including a receipt for lodgement of a Form I-90. That option carries inherent risks that she would not be permitted to board an aircraft.
The third option is for the mother to travel to a country adjacent to the USA and attempt to enter the country through a land border.
Mr M also refers to other options available to the mother to enable her to temporarily return to the USA. Option one is for her to rely on visitor status, which would effectively require the mother to voluntarily abandon her current immigration status and apply for entry to the USA under a Visa waiver program, with such visas issued generally for up to 5 years. The second option is to enter as a visitor through a humanitarian parole, which is discretionary, “used sparingly” and generally only enables residents in the USA for up to one year.
If the mother attempted to enter the USA utilising a visitor option, that would “trade off” her ability to remain and work in the USA with the benefit of a green card.
I will fifthly consider the prospect that the mother will face criminal proceedings arising from her removal of the children from the USA in August 2020 and any punishment she may receive in those proceedings.
There was significant evidence about what awaits the mother if she returned to the USA, in terms of criminal proceedings.
On 23 September 2020, at a court hearing in the USA, the father’s counsel, Mr U stated in open court:
…. But I can only state for the record, there is an open FBI investigation, your Honour, in the kidnapping and there are multiple subjects involved in that investigation.
In the father’s second unsigned statement filed the week prior to the hearing, he stated “I will not seek any form of punishment against Ms Caladine nor criminal charges”. In that statement he has attempted to redact his earlier statements that he clearly reserved to himself the option of pursuing the mother should that prove necessary. The father’s unsigned statements demonstrate that he has spoken with at least one City G Police Department detective who “read over the evidence and…was told that the DoJ (Department of Justice) would intervene immediately”. The father also said that “various detectives have all questioned my sincerity since I will not let them punish Ms Caladine as they want”. He has also spoken to agents from the FBI, although it is unclear whether he has made a formal complaint.
Counsel for the mother submitted that although the father’s evidence should be generally viewed with great suspicion, it is unlikely that he would blatantly lie about conversations with law enforcement personnel. The father’s evidence demonstrates that he is upset by the actions of the mother and he considers that the process which has followed has been unjust. The statements in his second unsworn statement, it was further submitted, appeared to be prompted by an unknown person and indicates that the father’s desire for criminal action to be taken against the mother has changed a number of times since the mother brought the children to Australia in August 2020. For those reasons, the Court should not accept the father’s statement that he will not seek any punishment against the mother as a genuine statement of his unqualified intentions.
Furthermore the father’s evidence was that he understood the FBI investigation was open but he had not “at present” made any complaint to the city attorney’s department which prosecutes misdemeanours.
The comments of Commissioner V, the presiding judge in the State F Court that “there clearly needs to be punishment for her conduct beyond the sole legal and physical custody, which I’ve already given” enable the court to predict that it is likely that the mother will face some form of sanction for removing the children from the USA and/or be prosecuted in criminal proceedings.
As to the penalties which the mother may face upon a return to the USA, the mother relied upon an affidavit of Mr N, a criminal lawyer practising in State F, which was filed on 11 November 2021. Mr N was not required for cross-examination and his evidence is therefore unchallenged.
His evidence was that it is likely a prosecutor would proceed with a violation of Penal Code Z which would involve prosecution as either a misdemeanour or a felony. Sentencing for a misdemeanour is from zero days to one year imprisonment and for a felony, from one year and four months to three years in prison. He also refers to possible charges and actions resulting from the mother’s breach of restraining orders in place under the domestic violence and family law proceedings which would most likely be a contempt of court charge, which carries a maximum penalty of six months imprisonment and/or a maximum fine of $1,000.
It was submitted that the mother would face the worry of returning to the USA with uncertainty as to her fate with incarceration as a possibility and some sanction likely. That would in turn affect her mental health, in accordance with the evidence of Dr O. This would impact the mother’s capacity to care for the children on a day-to-day basis should she be permitted to do so.
I will sixthly consider whether the children will be separated from their mother upon return to the USA.
On 23 September 2020, the State F Court, in the absence of the mother, made an order granting sole legal and physical custody of the children to the father. According to the mother’s lawyer in the USA, Ms L, it is more likely than not the children will live with the father upon their arrival in the USA.
In his second unsigned statement the father has said that he would seek joint custody of the children with the mother. During cross-examination, the father said that after speaking to his mother he would not want to separate the children from their mother and that he would do anything just to see the children. According to counsel for the mother, those statements should not be believed for the following reasons:
(a)that view was not offered until after the father received a list of undisclosed questions;
(b)the comment in his second statement is contradictory to the clear statement in the first affidavit that the mother would require monitored visitations for a very long time;
(c)it is incredible to seriously entertain the idea that the father would walk away from an order awarding him sole legal and physical custody of the children (which he sought in the divorce petition) to share joint custody with the mother;
(d)there was no proposal as to what time arrangements would flow from joint custody of the children and when it would be implemented.
Furthermore, at a court hearing in State F on 19 March 2021, Commissioner V, confirmed that the order for sole legal and physical custody of the children would remain until the children were back in the custody of the United States, and that would be an issue for trial.
It was submitted that the statements of Commissioner V are a clear indication of the docket presiding officer’s views that the current order should remain until the children are returned to the USA and unless the mother is able to re-enter the USA, that will result in the children being separated from their mother and being placed in the care of their father.
Seventhly, I will address the effect on the children of being separated from their mother.
It was submitted by counsel for the mother that there was no dispute that since separation the mother had been the sole day-to-day care of both children. At the time of separation, Y was six months old and she is now two years and ten months. X, at the time of separation, was two years and three months old and is now four years and seven months old. Even if the court were not inclined to accept the mother’s evidence about the father’s lack of involvement with the children, there is no necessity to obtain expert evidence to conclude that the effect of removing the children from their mother’s day-to-day care and placing them with their father, may have a profound effect upon them. That effect would be exacerbated if the mother were unable to return to the USA and spend time with the children.
The evidence of the child psychologist who has treated X since 30 September 2020, Ms R, was that should he be separated from his mother, that will cause an increase in stress and result in further emotional difficulties for the child. X’s primary caregiver, safe haven and attachment figure is his mother and Ms R opines, separation from her for extended periods longer than a couple of hours, would be detrimental to his psychological well-being.
The lack of evidence about what arrangements would be made for the father to care for the children is an indication that the father has not turned his mind to the day-to-day care of the children nor how he will deal with the children’s sense of loss of being separated from their mother.
Counsel for the mother urged the Court to find that it was more likely than not that X’s psychological well-being will be detrimentally affected by separation from his mother of weeks or longer.
Eighthly, I will address the mother’s ability to effectively participate in the current legal proceedings pending in the USA.
If the mother is unable to re-enter the USA to attend future court hearings, she would require the court’s permission to appear remotely. In September 2020, the court did not permit the mother to appear remotely when she attempted to do so, however the court in City G now has an electronic system.
Ninthly, accordingly I will address the effect of the mother removing the children from the USA in August 2020 upon any application she may make on either an interim or final basis to relocate the children to Australia.
The order of 23 September 2020 granting sole legal and physical custody of the children to the father has no expressed ending date, although it is an interim order. The current family law proceedings in State F are stayed pending determination of an appeal filed by the father on 3 November 2021. There is no evidence whether child custody proceedings can continue whilst there is an extant appeal. However, the mother’s USA attorney, Ms L, opines that a change in circumstances allows a party to file a request to modify existing orders (RFO). Therefore, the mother would be able to file an application for a domestic family violence restraining order and an RFO, but there is no guarantee when the court would entertain such an application. Ms L is of the view that it is possible to file an ex parte emergency request to modify the order of 23 September 2020 and that such a request could be heard the following day, but it is not likely that the court would grant an ex parte request to change child custody and visitation orders because an actual hearing is required. The timeframe for a hearing would be May 2022.
With respect to the prospects of success of such an application filed by the mother, Ms L is of the opinion that when a party violates a court order and that is known to the court it is relevant to ruling on other matters. Once the mother violated the court order, the focus of the court proceedings “shifted to resolve the violation instead of focusing on the best interest of the children and the protection of abused spouses” (Ms L’s affidavit filed 15 November 2021, paragraph 54).
It was submitted that the effect of the events referred to in the preceding paragraphs is that if the mother is unable to return to the USA with the children, any application to allow the children to reside with her outside the USA could be heard in May 2022. If the mother is able to return to the USA with the children an application for an emergency ex parte order could be made, but is unlikely to be granted in favour of an evidentiary hearing which may not take place until 2022, subject to whether the court with deal with custody proceedings separately from the balance of the proceedings which are stayed pending an appeal. As such, the children would be placed in the father’s care unless he voluntarily surrendered the care of the children in favour of the mother.
Tenthly, I will consider the mother’s capacity to support herself financially and emotionally in the short and longer term, should she be able to legally re-enter the USA.
In his unsigned statement filed the week prior to the trial, the father states he is able to support the mother as he asserts he has done so in the past. He proposes depositing money into bank account every two weeks to assist with her financial support. It was submitted that such a proposal was not credible when considered in the context of the history of lack of providing financial support by the father.
According to Ms L, because the mother is not a USA citizen, her entitlement to government assistance is limited. There was no evidence adduced by the State Central Authority as to the mother’s eligibility for government benefits. Although the mother was entitled to child support from the father that right was forfeited when she left the USA and the issue of child support is now an issue for the final trial.
It was submitted on behalf of the mother that her ability to support the children and herself will depend entirely upon her own resources and she has no job or housing awaiting her return. Her employment prospects may be affected by her mental state should she return to the USA, according to the evidence of her psychologist Dr O, who predicts a psychological breakdown if this occurs.
The mother’s evidence is that the father will not leave her alone and she would be isolated from family and friends and would be unable to live a normal life. In response to the mother’s evidence, the father indicated a willingness to move to State AA where he said two former friends of the mother now live. The mother’s evidence is that she has not maintained contact with those friends since her departure from the USA.
The mother’s understanding of financial assistance she may receive would be dependent upon if she had a current green card and that assistance was $878 per month cash and $341 per month in food stamps. The mother’s evidence was that was barely sufficient to survive. She additionally previously received a subsidised accommodation through an affordable housing program in State F and there is no evidence that type of housing would be available to her if she returned to the USA, particularly if the children were not in her care.
During cross-examination, the father’s evidence was that his liquid assets were $1000 cash and around $99 in shares or securities. His financial obligations included paying $700 per year in property taxes. It was submitted that it is reasonable to infer that his income pays for his living expenses with very little surplus. In this context, the father’s offer in re-examination to contribute just under half of his income to the mother, move out of the house that he currently pays $1600 USD per month for and rent elsewhere for between $700 and $800 per month does not add up. The only conclusion that can be drawn is that the father does not have the capacity to support the mother and children as well as himself.
Finally, I will consider the ability of the parents with all without assistance of state funding to finance the extensive health support required for the child X.
The mother, in her affidavit, refers to the extensive support she receives through the National Disability Insurance Scheme in Australia for the child X. The support includes psychology, speech therapy and occupational therapy to an annual budget of $17,459.10.
Whilst in the USA the mother formally received assistance with the child’s medical needs however based on previous experience she anticipates a delay of between 4 to 8 weeks before any services are likely to be provided. It is the mother’s position she is unable to afford private medical insurance. As to the father’s capacity to contribute, it is the mother’s evidence that the father rarely made sufficient income to support the family and the family was assisted by cash grants of over $160,000 from the maternal grandfather. The payments were not denied by the father.
Conclusion as to grave risk and intolerable situation
In the context of my consider of the factors which the mother asserts constitute a grave risk of harm or intolerable situation if a return order were made, I am of the view that her allegations collectively meet the threshold test and I accept the submissions of her counsel. In particular, the following factors are of particular concern:
(a)the mother’s ability to travel to and enter the United States with the children, as she has been the children’s primary carer since at least September 2019 and most probably since birth;
(b)the prospect of the mother facing criminal proceedings and punishment arising from her removal of the children from the USA in 2020 and in particular having regard to the comments of the presiding judge, Commissioner V during the proceedings of 23 September 2020;
(c)my lack of acceptance of the father’s assurances that he would not pursue punitive sanctions against the mother nor enforce his existing orders for full custody of the children;
(d)the prospect of separation of the children from their mother, their primary carer and the uncertainty of their future living arrangements, to the special needs of the child X;
(e)the mother’s inability to support herself and the children, including the costs of child X’s medical and allied needs;
(f)the impact on the mother’s health and capacity to care for the children.
Counsel for the State Central Authority submitted that some of the concerns raised by the mother could be addressed by appropriate conditions for return including the father making an application to the State F court for appropriate protection orders and to provide an undertaking that he would not enforce the orders currently providing for the children to live with him.
The problem with that submission, according to the available evidence in the preceding paragraphs, is that any application to the State F court would not be heard until the earliest in May 2022 and possibly beyond that date. The object of the Convention is to make timely return orders which would not seem to be achievable on this timeframe.
Additionally, the mother would face the problem identified by Ms L that the courts in State F may well be reluctant to make orders as submitted by the State Central Authority, as the approach of the court has shifted to take into account the mother’s violation of the previous orders, rather than the best interests of the children. There is also no evidence of the father’s financial capacity to meet the legal fees which would inevitably be incurred to make such an application.
I am also not convinced that the father would actually make such an application, despite his protestations during cross-examination that he would do anything to see his children.
I have significant reservations about the extensive punitive or criminal proceedings which the mother may face. Except for his recent about-face, apparently after conversations with his mother or with an unidentified person, the father has not categorically stated that he would do all steps necessary to withdraw any punitive or criminal proceedings, nor is there any evidence as to what would be required or indeed whether it is possible to do so.
The father’s offer to financially assist the mother can be described as too little too late. It was not until re-examination that the father made any proposal to contribute to the support of the mother. When viewed in the context of his own evidence about his financial situation, it is simply implausible that he has the capacity to meaningfully contribute to the support of the mother and the children, even if he were to move out of the former family home and permit the mother to live there. There is a huge question mark about whether the mother, who rightly or wrongly perceived herself as a victim of family violence, would wish to return to a home where she alleges she has been subjected to an abusive relationship.
Furthermore, I have no confidence that the needs of the child X could be met in the short term if he returned to the USA, as neither parent, absent the assistance of the maternal grandfather, has the financial means to secure necessary treatments and therapy for the child, irrespective of whether or not he is formally diagnosed with autism.
There are unfortunately no conditions to return which would address the impact on the mother’s mental health if she were forced to return to the USA with the children. I accept that it is the mother’s position that she would not voluntarily allow the children to return to the USA without her. I accept the evidence of the mother’s psychologist, Dr O about the prospect of the mother having a meltdown. It is not difficult to contemplate that as a possible or probable result. That would of course have an obvious and immediate impact on her capacity to care for the children, as she has done at least since separation and most probably since their birth.
After observing the father whilst giving his evidence and hearing his responses to questions during cross-examination, I am not persuaded that the father has the emotional nor practical capacity to be the principal caregiver for two young and vulnerable children, particularly a child with obvious special needs. He did not impress me as having any insight or any grasp of the reality of caring for two young children on a day to day basis, nor of the impact on them of being separated from their primary care. To separate these children from their mother would place the children in an intolerable situation.
In conclusion, I find the factors which the mother asserts create a grave risk of exposure to physical or psychological harm or otherwise place the children in an intolerable situation, collectively constitute such a risk, particularly where I am not satisfied there are protective measures which could be put in place to ameliorate the risks.
I am satisfied the mother has met the threshold test of “grave risk” or “intolerable situation” in this regulatory exception.
Discretion to return
If an exception is found, as it has been in this matter, I am now required to address whether I should exercise my discretion to return the children to the USA.
At paragraph 29 of HZ & State Central Authority [2006] FamCA 466, the Full Court of this Court referred to the factors relevant to the exercise of discretion to refuse return as follows:
…
In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”
…
In this matter, the forum which would determine the child’s future in the substantive proceedings is State F in the USA, which is a jurisdiction where ordinarily the best interests of the child and the child’s welfare are paramount in proceedings. However, the best interests’ considerations in this case, must be seen in the context of the unchallenged evidence of Ms L about the shift in focus of the proceedings from best interests to the mother’s breach of the restraint preventing her from removing the children from State F. The father would be able to access proceedings in the USA and electronically access proceedings in Australia, as he did for these proceedings. The mother would be able to access proceedings in Australia, either in person or electronically. Her participation in proceedings in State F would be subject to the court permitting her to attend electronically.
The likely outcome of the substantive proceedings would ordinarily be based on the child’s best interests. However, it is not known what impact the mother’s removal of the children from State F will have on the substantive proceedings. If the proceedings were determined in Australia then the father is entitled to seek orders that the children return to the USA. The mother would be entitled to seek orders that the children live with her in Australia and to spend time with the father, both electronically and in person. The father would be able to participate electronically in such an application in Australia even if he were unable to travel to the country, as he participated electronically in these current proceedings.
The consequences of exercise of the discretion are that the children would remain with their mother in Australia, where they have lived since the removal of the children from State F in August 2020. The mother has secured rental accommodation and has the support of her family. She has also successfully enrolled X in the National Disability Insurance Scheme where he receives support for his special needs. She also receives psychological support on a regular basis from her psychologist, Dr O and according to her no longer lives in the shadow of domestic violence.
The mother has deposed that there may be significant impediments to her returning to the USA, including the migration options available to her to return to the USA. It was common ground that the mother may face sanctions and possibly criminal sanctions upon her return to the USA, as a result of her breach of the order of the State F court restraining her from removing the children from that state, absent the father’s consent or a court order. An added complication is the order which the father obtained on 23 September 2020 providing for him to have sole custody of the children. There is considerable doubt whether the mother or indeed father would be able to obtain an order reversing that order in a timely manner to enable the children to continue to live with their mother, in circumstances where they have done so since separation in September 2019 and where she has probably been their primary carer since birth. The prospect of the children being separated from the mother for an unknown period of time and the impact on both the mother and the children is a significant factor and concern.
As previously referred to in these reasons, I do not accept that the father’s late in the day concession that he would share custody of the children is genuine, nor do I have any evidence as to what the father’s concept of shared custody would mean on a practical level. Additionally, there are concerns about the financial support of the children and the mother in the USA and the father’s capacity to implement his proposal which was made during final re-examination.
Absent an order reversing the father’s order for sole custody of the children, the anticipated emotional effect of an immediate return would separate the children from their mother, who has been their primary carer. On the other hand, they would either be placed into the sole care of their father, whom they have not seen in person since August 2020 or alternatively continue to have electronic time with their father, which has been the case since separation in September 2019. There are also additional complications with international travel due to the Covid-19 imposed travel restrictions and the waxing and waning of the severity of the pandemic in different countries.
In terms of the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order is not made, there was no evidence or indeed any submissions by either counsel. However, in this case an exception to return, as provided by the regulations, has been satisfied.
For the reasons set out herein, I propose to exercise my discretion not to return the children to the USA and will make the relevant orders dismissing the application.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 11 February 2022
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