Secretary, Department of Communities and Justice & Laurenz
[2024] FedCFamC1F 503
•29 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Communities and Justice & Laurenz [2024] FedCFamC1F 503
File number(s): SYC 1071 of 2024 Judgment of: WILLIAMS J Date of judgment: 29 July 2024 Catchwords: FAMILY LAW – HAGUE CONVENTION – CHILD ABDUCTION – Return application to New Zealand – Where there is an allegation of wrongful removal – Where the respondent did not participate in the proceedings – Where the requesting parent has committed family violence against the respondent – Where the requesting parent has a history of mental health issues and drug use – Regulatory exceptions to return raised by the Independent Children’s Lawyer – Uncertainty as to the circumstances that await the children if a return order were made – Finding as to grave risk of exposure to physical or psychological harm or otherwise place the children in an intolerable situation – Grave risk of harm cannot be adequately ameliorated by available protective measures – Discretion to return not exercised – Application dismissed Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15, 16 and 26
Convention on the Civil Aspects of International Child Abduction
Cases cited: De L v Director General, NSW Department of Community Services & Anor (1996) 187 CLR 640; [1996] HCA 5
Department of Family & Community Services & Keen & Ors [2018] FamCA 505
Director General of Child Safety, Seniors and Disability Services & Hurston [2023] FedCFamC1F 711
1 DP v Commonwealth Central Authority; JLM v Director–General, NSW Department of Community Services (2001) 206 CLR 401; [2001] HCA 39
Gsponer v Director General of Community Services, Victoria (1989) FLC 92-001
H v H (Abduction: Acquiescence) [1996] 2 FLR 570
Harris v Harris (2010) FLC 93-454; [2010] FamCAFC 221
HZ & State Central Authority (2006) FLC 93-264; [2006] FamCA 466
In re B (Children) [2022] 3 WLR 1315
2 Re C (A Minor) (Abduction) (CA) [1989] 1 FLR 403
Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145
Secretary, Department of Communities and Justice & Handley [2023] FedCFamC1F 1063
Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165
Sheenan & Sheenan [2012] FamCA 383
TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515
W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211
Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 65
Yallop & Yallop [2018] FamCA 640
Division: Division 1 First Instance Number of paragraphs: 121 Date of hearing: 18 July 2024 Place: Melbourne (via video link) Counsel for the Applicant: Mr Harper Solicitor for the Applicant: Legal Services Unit, Department of Family and Community Services The Respondent: No appearance by or on behalf Counsel for the Independent Children's Lawyer: Ms Cantrall Solicitor for the Independent Children's Lawyer: Legal Aid NSW, Sydney Central Family Law ORDERS
SYC 1071 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF COMMUNITIES & JUSTICE
Applicant
AND: MS LAURENZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
29 JULY 2024
THE COURT ORDERS THAT:
1.The Application filed by the State Central Authority on 16 February 2024 is hereby dismissed.
2.The Registrar of the Federal Circuit and Family Court of Australia release to the respondent mother or her nominee all current passports relating to the children and the mother.
3.All previous orders are discharged.
4.The Independent Children’s Lawyer be discharged.
AND IT IS REQUESTED THAT
5.The Australian Federal Police remove the names of the respondent mother, Ms Laurenz born 1993 and the children, X born 2016 and Y born 2017 from the Airport 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Secretary, Department of Communities and Justice & Laurenz has been approved pursuant to subsection 114Q(2) 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 16 February 2024 seeking the return to New Zealand of the children, X born 2016 and Y born 2017, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent is the mother of the children and the requesting parent, who lives in New Zealand, is the father.
The relevant regulations are made pursuant to s 111B of the Family Law Act1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Hague Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal/retention of a child from his/her country of habitual residence. Both Australia and New Zealand are signatories to the Hague Convention.
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 child/ren to his/her 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 Regulations provide as follows:
Reg 16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the 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.
Note 1:In considering whether the matter mentioned in paragraph (3)(b) is established:
(a)the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and
(b)the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and
(c)the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.
Note 2:For the definition of family violence, see section 4AB of the Act.
(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.
(6)If:
(a)the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and
(b)a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):
(i)in a return order for the child; or
(ii)in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;
the court must consider whether it would be appropriate to include the condition.
(7)In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).
(8)Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed/retained from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 (“De L”), the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, the mother did not participate in the trial nor file any material, although she appeared at interlocutory hearings, made the children available for the reg 26 report, and was aware of the hearing date. The Independent Childrens Lawyer appointed by the court filed a Form 2A Response on 4 July 2024. Counsel for the Independent Childrens Lawyer cross-examined the requesting parent and the regulation 26 report writer.
The State Central Authority asserts that the children have been wrongfully removed from New Zealand to Australia in accordance with regs 16(1) and (1A), on the following basis:
(a)the application was made within one year of the child/ren’s removal;
(b)the children are under the age of 16;
(c)the children were habitually resident in New Zealand as at the date of removal;
(d)the requesting parent, the father, has rights of custody in relation to the children, which he was exercising immediately prior to the children’s removal; and
(e)the removal of the children was in breach of the father’s rights of custody.
The Independent Childrens Lawyer conceded the jurisdictional facts referred to in the preceding paragraph but opposed the return of the children to New Zealand, and asserted the return of the children would expose them to a grave risk of physical or psychological harm, or otherwise place them in an intolerable situation, within the meaning of regulation 16(3)(b).
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 State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v Commonwealth Central Authority; JLM v Director–General, NSW Department of Community Services (2001) 206 CLR 401.
The Independent Childrens Lawyer bears the onus of proof to establish the regulatory exceptions to return.
PRELIMINARY MATTERS
The hearing was conducted electronically via Microsoft Teams, which enabled the requesting parent to participate in the proceedings.
Counsel for the State Central Authority agreed it was appropriate for the Independent Children’s Lawyer to adopt the role of contradictor 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 16 February 2024;
(b)Two affidavits of the requesting father filed 16 February 2024;
(c)Affidavit of Ms B filed 16 February 2024;
(d)Affidavit of Ms C filed 16 February 2024;
(e)Affidavit of Ms D filed 16 July 2024;
(f)Affidavit of Ms E dated 16 July 2024 but not filed; and
(g)Outline of Case document filed 16 July 2024.
The Independent Childrens Lawyer relied upon the following documents:
(a)Form 2A Response filed 4 July 2024;
(b)Regulation 26 report of Ms F dated 17 June 2024;
(c)Outline of Case document filed 16 July 2024; and
(d)Documents tendered by counsel.
Regulation 26 enables the court to direct a family consultant to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate and that such a report may be received in evidence in any proceedings. In this matter a reg 26 report was ordered to address the following:
·What (if any) objections the children have to returning to New Zealand;
·Whether any such objection of the children shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
·Whether the children have attained an age and degree of maturity, at which it is appropriate to take account of his/her views; and
·The impact of alleged domestic violence on the children.
CREDIT OF WITNESSES
The father gave evidence and was cross-examined by counsel for the Independent Childrens Lawyer. The father was a troublesome witness who sought to minimise disadvantages in his evidence and to attempt to emphasise evidence which he considered would be beneficial to advancing the application to return. He showed little insight into his conduct or indeed the concept of family violence and was not candid about his obvious parenting deficiencies. He sought to portray himself as having been the primary carer of the children until their removal in January 2023, without providing an explanation as to how the children remained with him subsequent to the parental separation.
Of particular concern was his evidence about the incident in late January 2023, and events subsequent. Counsel for the Independent Children’s Lawyer vigorously cross-examined the father about this. The father conceded he plead guilty to the criminal charges arising from this incident. When asked whether that was because he had engaged in family violence against the mother, his response was “it was one knock on the head” because “she wouldn’t shut up”.
The Amended Summary of Facts dated 11 July 2023 is a document which represents the version of facts agreed to by the father and the mother in the New Zealand criminal proceedings and was relied upon by the sentencing judge.
According to the Amended Summary of Facts (Exhibit ICL-1, page 12-13), the father hit the mother on the back of the head, hit her several more times on the head, and retrieved a weapon which he held in a threatening manner.
The father asserted he had repeatedly told, presumably his lawyers or the authorities, the version of the assault in the Amended Summary of Facts wasn’t true, although he knew the sentencing court in New Zealand would rely on the document.
During cross-examination by counsel for the Independent Children’s Lawyer, the father denied he had to hit the mother on more than one occasion and attempted to explain that whilst he picked up a weapon, he dropped it immediately and did not go towards the mother with a weapon in his hand. He also denied Y was in the mother’s arms at the time of the assault and that he had tried to pull Y from his mother’s arms. He further denied he had followed the mother outside after the assault, while she was waiting for the police and sought to explain his presence outside as closing the gate to prevent the dog escaping.
Exhibit ICL-2 is an audio recording of the mother’s emergency call to police, which she made outside the house, immediately following the assault. The father agreed the mother was clearly distressed during the call. He maintained she was lying to the police, although he admitted her statements to the police during the call were consistent with her later statement to the police.
It was obvious from his evidence that the father considered the mother had exaggerated and escalated the situation, and he did not consider the involvement of the police to be necessary. He seemed to perceive himself as a victim of the mother’s overreaction and agreed he had probably said to Y following his arrest words to the effect of “look at me [Y], look what mummy did”. The father’s statement to Y is referred to in the New Zealand police records (Exhibit ICL-1, page 72).
I do not accept the father’s version of events, which is entirely inconsistent with the Agreed Statement of Facts in the New Zealand criminal proceedings. The father is bound by the Statement of Agreed Facts, see: Sheenan & Sheenan [2012] FamCA 383 [50]-[64]; Department of Family & Community Services & Keen & Ors [2018] FamCA 505 [52]; Yallop & Yallop [2018] FamCA 640 [33].
His inconsistent evidence about the circumstances of the assault leads me to doubt his evidence about a plethora of other matters, including his mental health and usage of illicit substances, in particular cannabis. I refer below to these issues. His evidence also demonstrates a lack of insight and understanding about domestic violence. I consider the father to be an unreliable witness.
The paternal grandmother swore an affidavit on 16 July 2024, which was not on the court file. Counsel for the Independent Children’s Lawyer did not object to reliance on the affidavit, subject to the paternal grandmother being made available for cross-examination. The paternal grandmother was cross-examined, and it was obvious she was highly aligned with her son, as would be expected. She was unaware of the mother’s version of the assault, as contained in the Agreed Statement of Facts. She also attempted to minimise her son’s conduct and implicitly accepted his version of events. For these reasons, I do not consider the paternal grandmother’s evidence to be persuasive.
Ms C is a New Zealand barrister who swore an affidavit on behalf of the State Central Authority which was filed on 16 February 2024. Her affidavit primarily concerned the relevant law in New Zealand in addition to rights of custody and guardianship matters. She swore two further affidavits on 18 March 2024 and 12 July 2024, which are annexed to the affidavit of Ms D filed 16 July 2024. These further documents detail the child protective services available in New Zealand, how allegations of domestic violence are treated in New Zealand, and what options are available to victims. She was not required for cross-examination, and I accept her evidence.
The regulation 26 report writer, Ms F, was cross-examined by counsel for the Independent Children’s Lawyer. She impressed as a highly competent professional witness who demonstrated insight into the children’s circumstances, I accept her evidence unequivocally.
BACKGROUND
I have adopted the background set out in the Case Outline of the Independent Childrens Lawyer filed 16 July 2024. I have annexed to these reasons, as Annexure A, the chronology to that document. The chronologies prepared by both the State Central Authority and the Independent Children’s Lawyer are extremely helpful, objective, and extensively reference the affidavits filed in the proceeding, the reg 26 report, and the documents included in the Independent Children’s Lawyers’ tender bundle.
The father was born in Country G in 1986 and moved to New Zealand in 2008.
The mother was born in New Zealand in 1993 and is of Country H heritage.
The parents commenced living together in 2013 and married in Country G in 2015. They returned to New Zealand after their wedding. Both children were subsequently born in New Zealand.
According to the father, in August 2019 he had his first panic attack. A month or so later, his mother travelled from Country G to New Zealand to help care for the children whilst the mother returned to work.
In February 2020 the father’s mental health deteriorated. He was diagnosed with anxiety, agoraphobia, and panic attacks. He ceased work. The father says that mother worked nightshift full-time and that he was the primary carer for the children, with the help of his mother.
The parents separated in February or March 2020, following which the children lived with the father and his mother. The father says that the mother came to see the children once or twice each week and sometimes slept on the couch. She otherwise stayed with her parents.
The paternal grandmother left New Zealand in around September 2021. The father says that he continued to care for the children on his own full-time after the paternal grandmother left.
In late 2021 the father was charged with an offence relating to cannabis. In late 2022 the father was convicted of that offence and sentenced to a supervision order.
From August or September 2022, the father no longer had a vehicle. He says that the mother sometimes took the children to school, or he would borrow his neighbour’s car to take the children to school.
From around September 2022, the maternal grandfather would collect the children from school each Friday and the children would stay at the home of the maternal grandparents until Sunday afternoon, when they would return to the care of their father. This arrangement remained in place until January 2023.
In January 2023 there was an incident between the parents at the father’s home. Both children were home and Y witnessed the incident. The father was charged with offences relating to assault and possession of a weapon. He was taken into custody and refused bail.
In February 2023 the mother and children travelled to Australia.
In March 2023 the father was released from custody. In July 2023 he pled guilty to charges relating to assault and possession of a weapon. A further assault charge was withdrawn.
In October 2023 the father was sentenced in the District Court to 12-months supervision with special conditions, including not consume alcohol or drugs that are not prescribed to him, to attend an assessment non-violence (NVP) as directed by a Probation Officer and to attend and complete any counselling, treatment or program as recommended by the Probation Officer.
REGULATORY EXCEPTIONS TO RETURN
I now turn to the regulatory exception relied upon by the Independent Children’s Lawyer.
Grave risk of physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b))
The Independent Children’s Lawyer contends the return of the children would place them at grave risk of physical or psychological harm, or otherwise place them in an intolerable situation, because of the following:
(a)the children will be at risk of being exposed to further family violence;
(b)the children will be placed in the care of their father who may be an unsafe carer for the children due to his history of drug misuse, social isolation, mental health, and use of violence; and
(c)the children will be separated from their mother and maternal grandparent who have been the children’s primary carers.
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) 206 CLR 401 (“DP”) in which Gaudron, Gummow and Hayne JJ stated :
40.So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
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.
Ryan and Aldridge JJ in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [58] referred to comments of Gaudron, Gummow and Hayne JJ, at paragraph [40] of DP (supra):
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 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.
The focus of the enquiry is the children (Harris v Harris [2010] FamCAFC 221 (“Harris”)). In Harris, the Full Court adopted the remarks of Lady Hale in her dissenting judgement in TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515, who said:
[44]It is important to remember that the risks in question are those faced by the children, not by the parent. But those risks may be quite different depending on whether they are returning to the home country where the primary carer is the ‘left behind’ parent or whether they are returning to a home country where their primary carer will herself face severe difficulties in providing properly for their needs. Primary carers who have fled from abuse and maltreatment should not be expected to go back to it, if this will have a seriously detrimental effect upon the children. We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it…
…
[57]But it cannot be the policy of the Convention that children should be returned to a country where, for whatever reason, they are at grave risk of harm, unless they can be adequately protected from that harm. Usually, of course, it is reasonable to expect that the home country will be able to provide such protection. But in this particular case, it is the totality of the situation in which the children found themselves, a combination of serious psychological and economic pressures, which creates the risk. A protection order, were it to be readily available, would not solve all their problems…
…
[59]… It would require more than a simple protection order in New Zealand to guard the children against the risks involved here…
When assessing grave risk of harm, the court should consider the cumulative effect of the allegations for the purposes of evaluating the nature and level of any grave risk that might be established, as well as the available protective measures to address such risk. see In re B (Children) [2022] 3 WLR 1315 per Moylan LJ at [70].
In Gsponer v Director General of Community Services, Victoria (1989) FLC 92-001, the Full Court of the Family Court stated Australian courts should be reluctant to find there would be a grave risk of harm to a child if it were returned to a convention country, at least where it is reasonable to expect that the prospect of harm could be prevented by appropriate judicial remedies in the requesting state. The Full Court said at 77,160:
… There is no reason why this court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child’s welfare. Indeed, the entry by Australia into this convention with the other countries may justify the assumption that the Australian government is satisfied to that effect.
The High Court of Australia in De L said:
[36]…The Regulations reflect the objects of the Convention to settle issues of jurisdiction between the Contracting States by favouring the forum which has been the habitual residence of the child. The underlying premise is that, once the forum is located in this way, each Contracting State has faith in the domestic law of the other contracting states to deal in a proper fashion with matters relating to the custody of children under the age of 16.
Notwithstanding this presumption, the court must undertake an assessment of the grounds asserted to give rise to a defence of grave risk or intolerable situation as per the High Court in DP at [41], where it was said:
… In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
The authorities acknowledge there may be some circumstances where a child’s return would expose the child to a grave risk of harm or place then in an intolerable situation, because of the prospect of separation from their primary carer; Secretary, Department of Communities and Justice & Handley [2023] FedCFamC1F 1063.
Separation from a primary carer, however, must be considered in the context of a deliberate and advantageous refusal by a primary carer to return with a child, see; Re C (A Minor) (Abduction) (CA) [1989] 1 FLR 403 (“Re C (A Minor)”) at 410:
If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parents who abducted him, then it would be relied upon every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children.
I now turn to the various factors relied upon by the Independent Children’s Lawyer.
First, I will consider exposure to family violence.
It is common ground an incident occurred between the parents in January 2023, when the mother was at the father’s home. The father was subsequently charged with offences relating to assault and possession of a weapon. The father pleaded guilty to two of the three charges, with one of the assault charges withdrawn.
The Amended Statement of Agreed Facts (Exhibit ICL-1, page 12-23) refers to the circumstances of the assault. The information in that document records Y woke his father around 12.00 pm and asked him to switch on the television. Upon discovering the power was out, the father yelled at the mother about the lack of electricity in the home. The mother then rang the maternal grandfather to obtain details of a debit card to pay for the electricity. Whilst on the phone, the father approached the mother and started talking to her. She told the father to shut up so she could hear, whereupon the father became angry and threatened the mother. He then approached the mother and hit her on the back of the head, whilst Y was present. The mother screamed and the father told her to “scream louder, scream louder” to which the mother replied, “don’t ever hit me again in front of my kids”.
The father then hit the mother several more times in the head and tried to pull Y from her arms. Y was crying so the mother let him go.
The father then went into the kitchen and retrieved a weapon and turned to face the mother who was sitting on the couch. The father held up the weapon in a threatening manner. Both the mother and Y screamed, and the father then took the weapon back into the kitchen.
The mother then went outside and called the police. An audio recording of the mother’s phone call to the police is Exhibit ICL-2. When the police arrived, the father was also outside with the mother.
In her interview with the police (Exhibit ICL-1, pages 2-11), the mother said:
… usually when we’re arguing he’ll say, “I’m gonna print the papers”, and I’m like, “Okay, yeah, that’s fine”, ‘cos you know, I want to leave. But every time we talk about separating he’s always threatening to take my kids… and we’ll just argue… I can’t let him take my kids, but he’ll say there’s no way he’s letting me go with the kids, so I just stay… the last few times he just – I don’t know if he gets, like, a power trip or something, he won’t sign it… it was just to get the divorce rolling and the separation so me and the kids can be safe but, yeah, it’s never been, we’ve never gone through with it.
… it’s sad that I had to wait for this io happen for me to do something but it made me really scared, I don’t want to be one of those stories. Um, and my son had to see it. And we’ve been attacked in our house before with my kids in it because of some of the stuff he’s done, it took about six months for my kids to…
… the house was attacked last time, um, for stuff that he does on the side that Police have attended… my kids were so traumatised that, like the littlest sound, a train or my dog would just bark when he saw a cat, they would start screaming and crying and running to grab each other. We had to come up with a. like, a, I don’t know if you call it an escape plan… if anything happens or they have to find each other, and there’s a room that they would go to together, in the bathroom. So it took a while for that to happen so I didn’t want that to happen again, they got over it after about six or seven months, it took ages, and [Y] [sic] was kind of the worst to get over something like that, so, obviously, I didn’t want him to see that or even if I did get [injured]. So I’m just scared but it’s made me, like, I need to leave for my kids’ safety.
The mother’s interview refers to the concerning conduct by the father and the children being aware of it. X also referred to the father’s conduct whilst being interviewed by the Court Child Expert.
During her interview for the reg 26 report, X told the Court Child Expert she moved to Australia to hide from Dad, which is recorded at [18]. She also said at [19] that her “parents had lots of fights before the big fight” and that the arguments were about “what should happen for [Y] and I”. She said that during the fights, her and Y would “play with toys in our fort (set up in the loungeroom) because we were scared”. She reported her father “was not mean to [her]”, but that “he would yell a lot when we had accidents”.
At [22] the report writer stated:
In regard to returning to New Zealand [X] [sic] identified her main objection as being related to a fear of seeing her father again and being exposed to possible aggressive behaviour from him. She said she worries that her father would go to her Nanna and papa’s home (where her Aunties still live) and would “have another fight about the bills or where we should live”.
Y was able to remember some details about “the big fight”, which he described as “scary” and said his mother might be sad about returning to New Zealand “because she might get hit again”.
I find the assault on the mother, perpetrated by the father in January 2023, occurred in the manner referred to in the Amended Summary of Facts for the above reasons. Furthermore, I accept the evidence of the mother in her police statement about multiple arguments about the living arrangements for the children, as this is corroborated by X during the reg 26 report interviews. It may well be that the father’s conduct in this regard could be characterised as coercive and controlling, although I make no finding to that effect. The father failed to provide any evidence about the circumstances leading to the children being ostensibly in his care subsequent to separation.
Secondly, I turn to the father’s mental health and social isolation.
The father refers to his mental health at [24] of his affidavit filed 16 February 2024. He deposes to having been diagnosed with agoraphobia, anxiety, and panic attacks. He ceased work in 2020 and is in receipt of a social security benefits.
The father told his probation officer in September 2023 that he had limited social contacts and that he did not spend time with others. His diagnosis of agoraphobic anxiety makes it difficult to leave the house and he reported “his mental health affects his ability to go out in public” and he had “an isolated lifestyle”.
According to the father, between September 2022 and January 2023 the children spent weekdays in the father’s household and each weekend with the maternal grandparents or the mother. X described this arrangement as giving the father a rest.
As a result of both children reporting to the Court Child Expert that the father reacted disproportionately to them having accidents at home, the writer suggested it may be an indication of the father’s struggle to remain calm and a consistently available caregiver for the children.
Thirdly, I turn to the father’s drug misuse.
It was not contentious that the father has a long history of cannabis use. The father’s probation officer recorded the following on 28 September 2023:
[The father] reported that he used cannabis daily to manage his anxiety. He reported that he began to use cannabis at the age of eleven. He reported that he previously consumed six to seven grams of cannabis a day, with that reducing to a couple of grams per day. [The father] reported that he completely stopped using cannabis since the incident in January 2023.
In December 2021 the father was charged with ‘[an offence relating to cannabis]’ and in September 2022, was convicted and sentenced to a one-year supervision order. At the time of the assault on the mother in January 2023 the father was subject to a supervision order.
In October 2023 the father was sentenced in the District Court for the assault on the mother, to a one-year supervision order, subject to special conditions which included “not possess consume or use any alcohol or drugs not prescribed to you”.
In his oral evidence, the father described his cannabis use as medicinal, whilst professing to not having used cannabis since January 2023. Although the supervision requirements of the father’s sentence included random alcohol and drug testing, the father’s evidence was that he had not been so tested subsequent to sentencing. There is therefore no independent objective evidence to support the father’s contention he has not used cannabis since January 2023, in circumstances where he contends, without the assistance of drug counselling, he has been abstinent after a 25-year habit.
Fourthly, I turn to the state of the family home.
According to the father, prior to his incarceration and following the assault on the mother, he was the primary carer of the children.
When the New Zealand police attended the father’s home in January 2023, they took photographs of the living room in the kitchen which demonstrated the house to be very messy with piles of rubbish and unwashed dishes. The photographs are included in Exhibit ICL-1 at pages 62-67.
Further to the photographs, per page 43 of Exhibit ICL-1, the police also recorded that:
The home was in a messy state with lots of flies around with strong odour. Bedrooms showed little bedding and it was very full with clothes, toys and other items scattered around.
Counsel for the Independent Children’s Lawyer submitted the photographs and comments of the New Zealand police attending the father’s home, raise concerns about the father’s ability to maintain the home, and thus care for the children.
Fifthly, I turn to the children’s school attendance whilst in the father’s care.
Both children previously attended J School in Suburb K, City L, whilst the children were in the father’s care on school days. The Independent Children’s Lawyer subpoenaed the school records of both children which demonstrated they were both frequently absent from school without appropriate explanation, and their lack of attendance was “causing concern”.
The records demonstrate that in 2021 X was absent 30.5 days out of 130 days, and in 2022 she was absent 66.5 days out of 191 days, which is equivalent to 69.79% attendance. Counsel for the Independent Children’s Lawyer submitted her absenteeism was undoubtedly impacting her academic progress, which was reflected in the comments of her school report as follows:
[X] would benefit from attending school every day, so she is more able to follow routines in the classroom.
As to Y’s attendance at school, in 2022 he was absent 31.5 days out of 71 days, which is equivalent to 55.64% attendance. Notwithstanding his significant absenteeism, the school reports stated:
… When he is at school, he shows enthusiasm for learning and is beginning to focus himself to complete set tasks… For you to reach your full potential learning you need to be at school every day ready to learn at 8:40am.
Lastly, I turn to separation of the children from their mother and maternal grandparents.
According to the father, he and the mother separated in early 2020, although he does not depose to the circumstances. His evidence was the mother spent at least one to two days per week at his home, and from September 2022 the children spend each weekend at the home of the maternal grandparents.
Subsequent to the assault on the mother in January 2023, the children have been in the sole care of the mother and maternal grandparents, a period of approximately 18 months.
At [47] of the report, the Court Child Expert states:
The children’s accounts suggest that they have previously had meaningful relationships with both parents, and a care history that has been enriched by active involvement from extended family members on both sides of the family. The involvement of these networks is likely to have increased the children’s resilience and protected them from some of the adverse effects associated with the experience of parental separation and domestic violence. It is noted that it is not clear at this stage as to whether or not the maternal grandparents or Ms [Laurenz] would return to New Zealand with the children if the Court makes such orders regarding [X] [sic] and [Y]. Given the children’s recent care history, the expressed views of [X] [sic], and the domestic violence allegations in this matter, it is suggested that a return to New Zealand without their mother and/or maternal grandparents may cause distress and possible harm to [X] [sic] and [Y].
Counsel for the Independent Children’s Lawyer contended the children would be placed in an intolerable situation having regard to the totality of the circumstances which would face the children on their return, as outlined above.
Counsel further submitted, although the mother had not participated in the trial, she had not frustrated the proceedings because she had appeared at the interlocutory hearings and had made the children for available for the reg 26 report interviews. The father had failed to engage in the proceedings in an optimal manner, specifically by refusing to attend mediation.
Because of the mother’s failure to participate, it was difficult to have any confidence that she would return to New Zealand with the children. The grave risk in this family is not only whether the mother would return with the children, but the circumstances the children would face in New Zealand if a return order were made. None of the risk factors identified in the preceding paragraphs could be ameliorated with protective measures, identified by Ms C. This court could not have any confidence that the mother would be capable of engaging in a court process in New Zealand, in circumstances where she has not participated in these proceedings or engaged with child protection authorities.
The Independent Children’s Lawyer has no confidence in the capacity of the father nor the paternal family to care for the children or act protectively, which is obvious from the alignment of the paternal grandmother with the father. According to the paternal grandmother, the mother is a liar, and she accepts the father’s narrative, in circumstances when she has no objective idea about the actual circumstances of the assault.
The father’s mental health will cause difficulty in providing adequate care for the children, including school attendance, which has historically been suboptimal, whilst the children were in the father’s care during the week.
The father’s use of drugs is also of significant concern. There is no objective evidence to substantiate his claim that he has been abstinent from cannabis since January 2023, in circumstances where he had a prior 25-year dependency on cannabis, which he described as medicinal, and where the supervising authorities has failed to require the father to undertake drug tests.
The circumstances the State Central Authority asks the children to return to have real consequences for the children’s welfare. The school records indicate the children have attended school about half the required time. The father, by his own admission, leads an isolated lifestyle and his attitude towards his conviction for and minimisation of family violence is particularly unimpressive. His attempts to step away from the agreed summary of facts, which were the basis for his sentencing, is particularly concerning and indicative of his attitude.
As to protective measures, the availability of protective measures in this case is insufficient, and the real issue is whether the measures available would be effective, and whether the mother would engage with child protection. There is no evidence that the mother has the capacity or willingness to engage with child protection authorities. Exhibit ICL-2, the recording of the mother’s phone call to the authorities immediately following the assault, demonstrates the mother was clearly very afraid of her circumstances, was distressed, and afraid for the children. She had been struck on her head in the presence of her son and threatened by a weapon. According to the mother’s statement to police and the children’s reports to the reg 26 report writer, prior to January 2023 there were significant issues between the parties and in particular, the mother states that she could not leave because the father would not allow it. It is difficult to see how the protective measures proposed by the State Central Authority could address this family’s issues, as the family has flown under the radar of child protection, notwithstanding the father’s conviction for an assault on the mother and the imposition of a supervision order, in circumstances when he is allegedly the primary carer of the children in the absence of the mother. The family’s complicated situation is not a slight on the New Zealand protective services, but rather indicative of the multiple reasons why the involvement of child protection wasn’t triggered for this family.
Counsel for the State Central Authority submitted that having regard to the father’s evidence and the extensive evidence of Ms C, the risk from a return to New Zealand does not give rise to a level of risk which could be described as grave. Additionally, he submitted the court should not be persuaded by the potential for the mother to refuse to accompany the children to New Zealand and the mother should not benefit from her own actions. He referred to the authority of Re C (A Minor).
Counsel for the State Central Authority asserted the court could rely upon the New Zealand child protection agency, Oranga Tamariki, as referred to in the evidence of Ms C. He submitted Oranga Tamariki could possibly be engaged by the court ordering that the agency be provided with a copy of the reasons for judgement of this court, as was ordered in Director General of Child Safety, Seniors and Disability Services & Hurston [2023] FedCFamC1F 711.
Whilst I accept Oranga Tamariki is an excellent service, evidence about the services available is an entirely different issue from the engagement and involvement of child protection with this particular family, in circumstances when it is not known whether the mother would be prepared to travel to New Zealand with the children, if a return order were made.
I do not accept the submission of Counsel for the State Central Authority, that providing a copy of these reasons would necessarily engage child protection. To do so would ignore the practical situation of the children, if a return order were made and the mother or a member of the maternal family do not accompany the children on a return flight. There was no evidence Oranga Tamariki had been involved with the family to date, despite one of the children directly witnessing a violent assault on his mother perpetrated by his father and in circumstances where the father’s parental deficiencies and incapacity would have been obvious.
This is not a case where the father is able to accompany the children on a return flight to New Zealand or where there is any certainty the paternal grandmother would be permitted or able to do so. Because of the father’s mental health and agoraphobia, there is also uncertainty whether he would even be capable of meeting the children upon their arrival at an airport in New Zealand.
The evidence of the paternal grandmother demonstrated she was aligned with her son. It was not apparent she was aware of the full extent of the version of events in the Amended Summary of Facts and she accepted her son’s version and stated that it was “one hit to the head”. There was no evidence about the immigration issues affecting the paternal grandmother and her capacity to reside in New Zealand, nor any evidence which would persuade the court she would be able to act protectively for the children, and stand up to her son, if necessary.
I accept the submission of counsel for the Independent Children’s Lawyer, and taking into consideration all relevant matters, I find the factors which the Independent Children’s Lawyer asserts create a grave risk of exposure to physical or psychological harm or otherwise place the children in an intolerable situation, when considered collectively, do constitute such a grave risk of harm and an intolerable situation. For the reasons above, the grave risk of harm cannot be adequately ameliorated by the available protective measures, as submitted by counsel for the State Central Authority.
DISCRETION TO RETURN
If a regulatory 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 New Zealand.
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 Australia, which is a jurisdiction where the best interests of the child and the children’s welfare are paramount in proceedings. Both parents are able to access proceedings in both New Zealand and Australia, although it may be electronically.
If the proceedings were determined in Australia, then the father is entitled to seek orders that the children are returned to New Zealand. The mother would be entitled to seek orders that the children live with her in Australia and 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 has participated electronically in these current proceedings.
As referred to in these reasons, the situation which would await the mother and the children if a return order were made is entirely uncertain, because the mother did not participate in the Hague proceedings. It is not known whether she would return with the children or if the children would be returning without their mother.
The very real possibility of the children’s separation from their mother, if the mother chose not to return to New Zealand, and the options for care of the children in New Zealand including possible placement care if the New Zealand authorities are involved and consider the father to be an unsuitable parent, would have a significant and immediate impact on the emotional and psychological call well-being and functioning of the children.
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 these reasons I propose to exercise my discretion not to return the children to New Zealand and will make the relevant orders dismissing the application.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 29 July 2024
0
10
4