Secretary, Department of Communities and Justice & Woodard
[2022] FedCFamC1F 52
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Communities and Justice & Woodard [2022] FedCFamC1F 52
File number(s): SYC 5088 of 2021 Judgment of: WILLIAMS J Date of judgment: 11 February 2022 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from Japan – Jurisdictional facts conceded by the mother – Consideration of regulatory exceptions (reg 16(3)(a)(ii) and (b)) – Held, it was not the father’s intention to acquiesce to the child remaining in Australia – Held, return of the child to Japan would not expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation – Insufficient evidence – Mother has not satisfied any of the regulatory exceptions – Family Law Act 1975 (Cth) s 111B – Family Law (Child Abduction Convention) Regulations 1986 – reg 16 – No conditions to return – Return order made. Legislation: Evidence Act 1995 (Cth), s 140
Family Law (Child Abduction Convention) Regulations1986 (Cth), regs 15, 16
Family Law Act 1975 (Cth), s 111B
Cases cited: De L v Director General, NSW Department of Community Services [1996] HCA 5
Department of Family and Community Services & Raelson [2014] FamCA 131
DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39
Harris & Harris (No. 2) [2010] FamCAFC 221
HZ & State Central Authority [2006] FamCA 466.
In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145
Re H (Minors) [1998] AC 72
State Central Authority & Handbury [2019] FamCA 668
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: 91 Date of hearing: 9 December 2021 Place: Melbourne Counsel for the Applicant: Mr Harris Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice Counsel for the Respondent: Mr Tully Solicitor for the Respondent: Hague Convention Legal Practice ORDERS
SYC 5088 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND: MS WOODARD
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
11 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The child, X born 2019, (“the child”) be returned to Japan pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
2.The mother be at liberty to accompany the child to Japan.
3.The Australian Central Authority notify the Japanese Central Authority of the mother and child’s date of departure.
4.Paragraph 5 of the Orders made 6 August 2021 is hereby discharged and the respondent or her nominee authorised in writing is permitted to collect the child’s and the mother’s passport immediately upon receipt of a sealed copy of this order.
5.Pending the child’s departure from Australia for return to Japan, the respondent continue to be restrained and an injunction issue restraining her from causing or permitting or suffering the child:
(a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b)to apply for any further or other passport or passports for the child;
(c)to be removed from New South Wales;
(d)to reside anywhere other than her present residential address or any other residence at which the applicant has agreed that the said child may reside.
6.Paragraph 5 of these orders remain in force, until a letter from the applicant is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to the Japan AND IT IS REQUESTED that the Australian Federal Police remove the name of the child, X born 2019 from the Airport Watch List upon presentation for boarding the nominated flight to Japan on the date nominated for the said travel.
7.A sealed copy of these orders be provided forthwith to the Marshal of the Federal Circuit and Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
8.The Marshal of the Federal Circuit and Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
9.Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
10.Otherwise the Application of the Secretary, Department of Communities and Justice be and is hereby dismissed.
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 Woodard is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
This is an application by the Secretary, Department of Communities and Justice (“State Central Authority”) filed on 13 July 2021 seeking the return to Japan of the child X born in 2019 pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations").
The respondent, Ms Woodard is the mother of the child. The requesting parent, Mr C who lives in Japan is the child’s father.
The relevant regulations are made pursuant to s 111B of the Family Law Act 1975 (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 Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful retention of a child from his/her country of habitual residence. Both Australia and Japan are signatories to the 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 to his 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.
(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.
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] HCA 5, 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, counsel for the State Central Authority cross-examined the mother and counsel for the mother cross-examined the father.
There was no dispute about the jurisdictional facts and it was conceded by the mother that all of the jurisdictional prerequisites had been satisfied in accordance with regs 16(1) and (1A), on the following basis:
(e)the application was made within one year of the child’s retention;
(f)the child is under the age of 16;
(g)the child was habitually resident in Japan;
(h)the requesting parent, the farther, has rights of custody in relation to the child, which he was exercising immediately prior to the child’s retention; and
(i)the retention of the child was in breach of the father’s rights of custody.
The State Central Authority initially asserted various alternate dates of wrongful retention. In his final submissions, Counsel for the State Central Authority asserted the date of wrongful retention was 15 July 2021.
The mother relied on the regulatory exceptions to return as follows:
(j)subsequent to the alleged retention date, the father acquiesced to the child being retained in Australia (reg 16(3)(a)(ii)); and/or
(k)there is a grave risk that returning the child to Japan would expose him to physical or psychological harm or otherwise place him in an intolerable situation (reg 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 mother bears the onus of proof to establish the regulatory exceptions to return.
Preliminary Matters
The hearing was conducted electronically via Microsoft teams, due to the COVID-19 Pandemic.
An electronic hearing enabled the father 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 13 July 2021;
(b)Affidavit of Ms D filed 25 November 2021;
(c)Outline of Case document filed 1 December 2021.
The respondent relied upon the following documents:
(a)Form 2A Response filed 26 October 2021;
(b)Affidavit of Ms Woodard filed on 27 October 2021;
(c)Outline of Case document filed 1 December 2021;
(d)Documents tendered during the trial.
The respondent mother tendered the following documents:
Exhibit Number Description R-1 Series of text messages between the parents commencing 29 October 2021 R-2 3 minute recording of events of 19 June 2020 R-3 6 minute recording of events of 19 June 2020 Credibility of Witnesses
Both the father and the mother were cross-examined by the other counsel. The father gave his evidence with the assistance of an interpreter. The father was a frank and forthright witness who directly answered questions. He required clarification, through his interpreter on number of occasions, prior to providing a straightforward answer. He was prepared to make concessions when appropriate, including a concession that his text messages about contemplating suicide were manipulative and designed to elicit sympathy from the mother.
The mother also gave straightforward answers to most questions, including admissions that some of her affidavit evidence was not correct. An example of that was her concession that the recording which was Exhibit R-2, did not refer to the father biting her. There were two topics of questioning where I gained the impression that the mother was less than forthright. The first was the circumstances surrounding the fracture of the child’s femur. I regard her evidence about that topic as most unsatisfactory and an attempt to avoid and downplay the reality of how the child sustained that injury. The second was her characterisation of the argument of June 2020, as it suited her purposes to exaggerate what occurred on that day.
Background
The requesting father is a Japanese citizen and the mother is an Australian citizen.
The parents met in Sydney in 2018 and commenced a relationship. In early 2019, the mother discovered she was pregnant and they were married in Australia later that year.
In September 2019, the mother and father decided to relocate to Japan to the father’s home city, where he intended to work in his stepfather’s business. The mother obtained a spousal Visa and on 4 October 2019 they registered their residence in Japan at the home of the paternal grandparents.
In 2019, the child was born and was named X. He was subsequently given the middle name B.
In February 2020, the mother’s grandmother became ill in Australia. The parents agreed that the mother could take the child to Australia to see her family for a three month visit.
On 27 May 2020, a Japanese passport was issued for the child and on 29 May 2020 the father obtained a return ticket for the mother and child, departing Japan on 1 July 2020 and returning to Japan on 30 September 2020.
On 1 July 2020, the father posted a message on Instagram stating “it’s hard to say goodbye to you, this is the last night together next three months I didn’t think I’d have to say goodbye I hate saying goodbye, I can’t wait to see you in September”.
The mother and child travelled to Sydney on 1 July 2020 where they were required to spend 14 days in hotel quarantine.
On 15 July 2020, at the end of the quarantine period, the mother sent a message to the father via a message service saying that she wanted to leave him, telling him he was violent and mentally ill, which the father denies. The message has not been produced by either party.
The father subsequently found out that the mother had formed a relationship with another man, Mr E, whom she had met online during her quarantine.
On 19 July 2020, the mother met with Mr E and commenced a relationship with him.
On 12 August 2020, the mother posted a message on Instagram with Mr E, which the father interpreted as a definite decision that the mother had no intention of returning to Japan with the child.
The mother did not return with the child on 30 September 2020, as had previously been agreed.
Subsequent to leaving quarantine, the mother lived with her father prior to moving into an apartment in Suburb F in October 2020, where she still lives. In December 2020, Mr E moved into the mother’s home.
In October 2020, the father was informed by one of his friends about his rights for the return of the child under the Convention. According to the father, he sought to persuade the mother to amicably return with the child between October 2020 and January 2021. He also sought to travel to Australia initially in November 2020 and thereafter in December 2020, however was unable to do so due to Covid-19 travel restrictions.
On about 24 January 2021, the child’s left leg was fractured whilst in the care of the mother and Mr E. The circumstances of the injury prompted a notification to the New South Wales Department of Communities and Justice. The mother notified the father about the child’s injury three days after it had occurred.
On 28 January 2021, the mother entered into a three month temporary care arrangement with the Secretary of the Department of Communities and Justice, who thereafter assumed care responsibility for the child, who was placed with foster parents for a three month period.
On 2 February 2021, the father completed an application seeking assistance under the Convention from the relevant Japanese authority.
Whilst the child was in foster care the mother had contact with him twice a week, prior to the temporary care arrangement pending on 28 April 2021. The mother’s former boyfriend Mr E returned to City G in March 2021.
On 13 July 2021, the State Central Authority filed a Form 2 Application in the (then) Family Court of Australia at Sydney.
The matter was heard on 9 December 2021.
REGULATORY EXCEPTIONS TO RETURN
I will now address in turn the exceptions to return raised by the mother. I will firstly address acquiescence (reg 16(3)(a)(ii)).
Acquiescence (reg 16(3)(a)(ii))
Relevant legal principles
In Department of Family and Community Services & Raelson [2014] FamCA 131, Kent J conveniently set out a number of propositions distilled from authorities, which are relevant to the test as to when acquiescence is established. His Honour said at [100]:
…. The following propositions are distilled from Re H (Abduction: Acquiescence) [1998] 2 AC 72; Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 per Lindenmayer J; Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106 (EWCA); Kilah v Director-General, Department of Community Services (2008) FLC 93-373 (Bryant CJ, Coleman and Thackray JJ); Police Commissioner of South Australia v Temple (1993) FLC 92-365; Laing v Central Authority (1996) 24 Fam LR 555.
a)The onus of establishing acquiescence rests upon the respondent. Acquiescence must be proven by clear and cogent evidence.
b)The right to which acquiescence is directed is the right of the applicant parent to the immediate return of the children. It is not acquiescence in the child or children remaining permanently in the forum that needs to be established.
c)Acquiescence operates to effectively estop the applicant parent from demanding the immediate return of the child or is to be seen as waiver by the applicant parent of the right to immediate return.
d)The applicant parent must be shown to have the subjective intention not to insist upon a right to summary return. If that subjective intention is not established it is only if the words or actions of the applicant parent clearly and unequivocally show, and have lead the respondent parent to believe, that the applicant parent is not asserting or going to assert a right to summary return, and are inconsistent with such return, that acquiescence is established.
e)Words or conduct of the applicant parent (including passive inaction over time where action ought be expected) have the potential to inform the enquiry as to acquiescence in two ways. First, and most commonly, the court infers from the words or conduct (or both) that the applicant parent had the requisite subjection intention despite later claims by the applicant parent as to his or her intentions being otherwise. In so doing the court is determining as a fact that the applicant parent had the requisite subjective intention. Second, and perhaps less commonly, the words or conduct (or both) of the applicant parent may be sufficiently clear and unequivocal as to demonstrate that the other parent was lead to believe that the applicant parent was not going to insist upon summary return. Later claims that the applicant parent always secretly intended to seek summary return, even if true, will not displace acquiescence in those circumstances.
f)In both categories of case the context or contextual matters surrounding the words or the conduct may be important considerations in determining that clear and unequivocal acquiescence is established.
g)Acquiescence, once established is irrevocable. To conclude otherwise would render the acquiescence exception illusory because it will only arise when the applicant parent, who has previously acquiesced, has changed his or her mind and seeks immediate return. Prompt attempts to displace or withdraw acquiescence might be relevant to the court’s exercise of discretion, as might be the reasons for those attempts and indeed the consequences of acquiescence, but acquiescence once established cannot be revoked.
Whether or not a wronged parent has acquiesced in the removal or retention of a child, depends upon their actual state of mind, which is a question of fact to be determined in all the circumstances of the case and where the burden of proof falls on the “abducting parent”: State Central Authority & Handbury [2019] FamCA 668, Bennett J at [242], adopting Lord Browne-Wilkinson in Re H (Minors) [1998] AC 72 at [90].
Discussion
In this case, the mother relies on a series of facts to support her contention that the father acquiesced to the child’s retention in Australia.
Those facts include:
(a)her assertion at [71] of her affidavit filed 27 October 2021 and that the father had been aware of her intention to remain in Australia with the child since July 2020;
(b)her assertion at [73] that she had formed a new relationship with her boyfriend Mr E and in October 2020 they moved in to live together;
(c)the father’s text message referred to at [55] of her affidavit to the effect that if her boyfriend had perpetrated domestic violence the child should return to Japan;
(d)the father was agreeable to a divorce;
(e)the father ostensibly approved of the mother’s new residential address at [54] and [76] by referring to the proximity of one of his friends;
(f)the father cooperated with the mother to change the child’s name to an Anglicised name;
(g)the father ostensibly confirming that as he knew the mother was not returning to Japan at least from August 2020, he did not bother to renew the mother’s spouse Visa;
(h)the father confirmed to the mother in an electronic conversation on 29 October 2020 that he was content to allow the child to remain in Australia, and that remained the case until the child broke his leg in January 2021 and was placed in foster care;
(i)it was not until February 2021 that the father made an application to the Japanese Central Authority for the child’s return.
Counsel for the State Central Authority submitted that none of the facts by the mother support a contention that there was a clear and unequivocal words and conduct which could properly be interpreted as acquiescence. The fact that the father cooperated to change the child’s name does not demonstrate he was permitting the child to remain overseas, nor do his remarks in around October 2020 that his friend lived near the mother. That remark was made in the same conversation as the father’s comment that if her boyfriend had perpetrated domestic violence, then the child should return to Japan. I accept that submission.
During cross-examination of the father, his evidence was that he had received a message from the mother on 15 July 2020, that she wanted to cease the relationship with him. He did not want the relationship to end, but considered the relationship at an end in August 2020, after the mother had posted on social media about her new relationship with Mr E, her boyfriend. The mother met Mr E online whilst she was in Australia in quarantine, after arriving from Japan. Thereafter, the father did not travel to Australia to collect the child as the then Covid-19 situation prevented him travelling.
The father first became aware of his rights under the Convention in October 2020. He was hopeful of travelling to Australia at the end of December 2020 so he could have a discussion with the mother to attempt to amicably resolve issues between them and to see his son. His evidence was that if discussions resolved outstanding issues, then there would be no need to lodge an application under the Convention. The strategy he adopted was to attempt to directly negotiate with the mother rather than make an application under the Convention. That is also supported by annexure W-03 to the mother’s affidavit, dated 2 August 2020 where the issue of the child’s future residence is one of the subjects of the discussion between the parents. The father’s evidence was that he was content for the child to remain in Australia until January 2021 as his strategy at that time was to persuade the mother to return the child to Japan and he wanted to avoid recourse to the courts.
Counsel for the mother put to the father a series of text messages which he sent to the mother on 29 October 2021 (Exhibit R-1). The text messages between the parents were written in English and are indicative of a discussion between the parents about their then situation. The predominant text relied upon by the mother as acquiescence reads:
And it’s okey (sic) he could stay with you I’m happy to stay at his mum but he gets injured on his leg and he was staying with hoster (sic) parents
That text, according to the mother, demonstrates that the father had been content for the child to remain permanently in Australia until the child was injured, whereupon he changed his mind and wanted the child to return to Japan. I do not accept that text as acquiescence on the part of the father for a number of reasons. Firstly, the level of the father’s command of English could not possibly lead to any such inference or conclusion and secondly, the trail of text messages demonstrate that the father’s previous messages to the mother during the exchange, specifically state that the father wants the child to be in Japan. The father’s previous texts read:
I just want him to be in japan (sic) near me that’s what I mean
I do care about him that’s why I want him
The mother also relied on other text messages in the same exchange to support her contention. However a close examination of those messages does not support the mother’s contention.
During cross-examination, the father gave evidence that he was willing to acquiesce to the child remaining permanently in Australia until January 2021. During re-examination his evidence was that he did not realise that the question meant his acquiescence to the child remaining permanently in Australia. Rather he intended to say that he thought that if the court legally decided the child had to stay in Australia he would accept it. I accept his evidence during re-examination.
With regards to the mother’s spousal visa, the application had been prepared in June 2020 before the mother left for Australia. The father was unable to lodge the application to renew the spousal visa because the mother’s signature was required on the application.
What requires consideration in this case is the father’s words and conduct between October 2020 and January 2021. I accept the father’s evidence that he intended to travel to Australia in December 2020 to pursue his negotiations with the mother, but was unable to travel to Australia. I also accept his evidence that until January or February 2021 he was content for the child to remain in Australia until he concluded his negotiations with the mother about the outstanding issues between them, which included whether the child would remain in Australia permanently or return to Japan. The father’s evidence, including the text messages of October 2020 does not demonstrate that the father had a subjective intention not to insist upon a right of summary return. Indeed it was the father’s own evidence that subsequent to October 2020, when he became aware of his rights under the Convention and January 2021 he was gathering information and material relevant to an application under the Convention, at the same time he was adopting a strategy of negotiation and discussion with the mother. It was not until he became aware of the serious injury to the child and the unexplained circumstances of the injury, that he was no longer prepared to continue to negotiate with the mother and thereafter pursued his application pursuant to the Convention.
During cross-examination, the mother agreed that she and the father continued to have conversations about divorce and the arrangements for the child subsequent to the text messages of 2 August 2020 which are exhibit W-03 to the mother’s affidavit. Those conversations continued via text and audio call, to the effect that the father wanted to maintain a relationship and wanted the child to return to Japan, and continued in the following months. There were frequent discussions between the parents and she was aware that the father had planned initially to travel to Australia in October 2020, however he was unable to do so because of Covid-19 travel restrictions.
In my view, the fact that there were ongoing negotiations between the parents about their issues, including the obvious living arrangements for the child, is the antithesis of any acquiescence by the father. The facts asserted by the mother do not demonstrate the subjective intention not to insist upon a right to summary return, as is required by the authorities, neither do the words or actions of the requesting parent clearly and unequivocally show the requisite acquiescence.
I do not accept that the text messages are sufficiently clear and unequivocal to demonstrate that the mother was led to believe that the father was not going to insist upon the summary return of the child. That is particularly so in the context of the ongoing negotiations between the parties and that the text messages were written by a non-English speaker. The mother’s attempt to extract a particular message to support her contention, without regard to the context of the chain of messages is particularly unconvincing. Furthermore, there was no unacceptable delay between the father being aware of his rights under the Convention in October 2020 and commencing his application in February/March 2021.
I find that the mother has not discharged her onus in this regard and that it was not the father’s subjective intention, demonstrated through either words or conduct during the relevant period, to acquiesce not to insist upon the summary return of the child.
Grave risk of exposure to 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 the following:
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).
Ryan and Aldridge JJ in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (“Walpole”) at [58] referred to comments of Gaudron, Gummow and Hayne JJ, at paragraph [40] of DP:
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.
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, 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.
Discussion
In this case, the mother relies upon a number of factors, which she submits would place the child at grave risk of harm, or an intolerable situation, if a return order were to be made.
(a)her inability to speak or read Japanese;
(b)the expiration of her spousal visa and inability to ascertain whether it could be renewed because relevant websites are in Japanese;
(c)her lack of knowledge about eligibility for Social Security benefits and inability to obtain information from Japanese websites;
(d)her lack of knowledge about her potential to work in Japan and inability to communicate with clients;
(e)her concern about returning to the town where the father is living due to her worries about his instability and previous violence towards her;
(f)her inability to help herself due to language barriers and the hostile reaction she would face from the father’s relatives.
The factors referred to in subparagraphs (a)–(d) of the previous paragraph relate to practicalities of her life, if she were to return to Japan. The factors referred to in subparagraphs (e) and (f) refer to her fears and apprehensions which she asserts arise from the father’s conduct.
I will firstly address the practical concerns.
It was submitted on behalf of the mother that she was particularly vulnerable in Japan given her youth, socio-economic isolation, lack of Japanese language ability, precarious visa situation, the likelihood of unemployment, her lack of eligibility for Social Security support, her inability to return to Japan, her wish not to return to Japan and her ability to access greater family support in Australia, compared to Japan. There was very little evidence adduced by her to support her assertions about the practical problems she would be likely to face in Japan, including no evidence of any enquiries she had made regarding the issues and obstacles she would face, as would ordinarily be expected. There was no evidence about any rights she may have to reside in Japan as a parent of a Japanese citizen, or any government assistance she might be able to obtain or the legal system in Japan.
The father did not disagree with the mother’s contentions about her inability to speak Japanese, and lack of friends and family in Japan. He also agreed she would likely face such challenges if she returned to Japan. His evidence about her spouse visa was in stark contrast to the mother’s, as he said the documentation for her spouse visa had been prepared and completed by the end of June 2020 prior to her departure for Australia in July 2020. All that remained outstanding to complete the spouse visa application was the mother’s signature on the document. I prefer the evidence of the father in this regard, as his response to cross-examination was direct and forthright and was inherently believable in circumstances where he expected, in July 2020 for his wife and child to return to Japan at the expiration of the three month period spent in Australia.
It is incumbent on the mother to adduce evidence of grave risk of exposure to harm as she bears the onus of establishing the regulatory exception. In this case, the evidence in terms of the practicalities is scant and economical in the extreme. The mother would also have been better served if she had proposed conditions to return to address the practicalities and had put those conditions to the father.
The other limb of grave risk relied upon by the mother includes her allegations of family violence and the father’s mental health. The mother relied upon two incidents of family violence, the first of which she alleges occurred in May 2020, when the father tried to choke her because she “made some online friends and he was concerned that I was getting too intimate with them”. There was no other evidence of this incident adduced on behalf the mother. During cross-examination, the father denied that the incident had never happened.
The second incident referred to occurred on 19 June 2020 when the mother alleges that the father spat at her, hit her and bit her on the arm. The mother recorded the incident and two recordings were tendered as exhibit R-2 and R-3. The father denied the allegations. During cross-examination, the father’s evidence was they were fooling around and tickling each other. Other than in a joking manner, he was never violent, did not hit, choke or restrain or spit at the mother. He conceded there was an argument on 19 June 2020 because the mother was talking on the phone with somebody she had met online and they were showing each other their bodies on a video call. He also agreed that he recalled the incident well, he may have raised his voice and used bad language and that he may have spat at her, however it was unintentional. He also agreed that the recording had sounds of a tussle and movement although he denied that he had slapped the mother. He agreed he was furious although he wasn’t really paying attention to what the mother was saying at that time.
The mother was cross-examined about the recording of the incident of 19 June 2020. She agreed the father had not spat at her that day, but had that had done so before. She also agreed that sometimes when he was yelling spit came out of his mouth unintentionally and that in the recording when she asked the father why he slapped her, his response was because she had slapped him first. There was nothing in the recording indicating that the father bit her, although she asserted she had a photograph of a bite, which was not attached to her affidavit. She also accepted that she was laughing in parts of the recording but that was because she was nervous, and that she did not complain to the police. Her evidence was that she had telephoned her mother to tell her what the father had done and although she remained in contact with her mother, she had failed to adduce evidence from her mother as to the telephone call.
I am able to ascertain from the evidence of both parties that both engaged in online activity with other partners during their relationship and marriage, which understandably caused friction between them. The recording of the incident of June 2020 demonstrates that both parents engaged in abusive conduct towards the other and that the mother’s evidence about biting occurring during this scuffle was not correct. I do not find that the incident of 19 June 2020, nor any of the mother’s other allegations about family violence perpetrated by the father satisfy the requirements of the relevant regulation.
The mother’s allegations about the father’s mental health arise from text messages which are annexure W-01 to the mother’s affidavit, wherein the father refers to suicide and that he went to hospital the previous night. During cross-examination, the father denied that he had ever consulted or received medical treatment for mental health issues, nor had he ever taken any medication. He did not think he had ever expressed suicidal ideation although he was aware of the SMS exchange where he had threatened suicide to the mother. He agreed that he had been angry at the time and that he had attempted to manipulate the mother’s feelings in his favour by threatening suicide. He was not happy with the state of his life at that time because he could not see his son. Although he wrote that he went to hospital, that was a “false plan to get her worried” and another attempt to manipulate the mother in his favour to achieve his desired outcome. I accept the father’s evidence about his manipulative behaviour and denial of any mental health issues, as the mother was unable to adduce any other evidence of the father’s asserted mental health issues, despite the fact they were in a relationship between October 2018 and July 2020.
Counsel for the mother submitted that the circumstances the mother would find herself in, and the nature of the challenges she would face if a return order were made, when viewed collectively with the allegations of family violence and the father’s mental health, establish a grave risk of exposure to harm and intolerable situation for the child and the mother. I was referred to the statements of the plurality at [61] and Watts J at [71] in Walpole, as authority for the proposition that the circumstances of the child’s primary carer are highly relevant to establish this regulatory exception.
Whilst I agree with the proposition that in some cases the circumstances of the primary carer are highly relevant to establish the regulatory exception, I do not accept the submission of counsel for the mother, that this matter is such a case which would satisfy the regulatory exception to return. The facts of this case can be readily distinguished from Walpole. In Walpole, the father had engaged in systematic criminal activity, abuse and family violence, some of which was comprehensively detailed by the court and where there were inherent difficulties protecting the mother and children from the father’s violence. The statements in Walpole cited by counsel for the mother, are in the context of a primary carer who fled from abuse and maltreatment and who should not be expected to return, as return would have a seriously detrimental effect upon the children. The context of the comments by Watts J at [71] refer to the facts of Harris & Harris (No. 2) [2010] FamCAFC 221, where there was compelling evidence that the primary carer genuinely and reasonably believed her life to be at risk from the father if she returned to the state of habitual residence of the child. Even if the mother’s evidence were accepted in totality, which it is not, her evidence cannot seriously be regarded as comparable to the facts of Walpole and falls well short of the situation referred to in Walpole.
Counsel for the State Central Authority submitted that the mother did not identify any grave risk to, or intolerable situation for the child, arising from the practical concerns which would engage reg 16(3)(b). Nor were any of the matters raised by the mother in regards to family violence and the father’s mental health issues sufficiently compelling or of sufficient gravity to meet the test in reg 16(3)(b). I accept those submissions.
I have no doubt that the mother will face real challenges if she chooses to return to Japan with the child, however the evidence adduced by the mother could not possibly be regarded as a grave risk of exposure to harm or an intolerable situation, which could be described as extreme and compelling, so as to invite the application of the regulatory exception. I agree with the submission of counsel for the State Central Authority that the matters described by the mother’s evidence describe the kind of disruption, uncertainty and anxiety which the High Court in DP at [45] considered to be an inevitable consequence of the child returning to his country of habitual residence.
It is most unfortunate that the mother did not adduce more detailed evidence about practical circumstances of return and in particular evidence about the Japanese family law system, the likely or probable living arrangements for the child, including which parent is likely to be the primary carer. All of those factors are pertinent to the determination of ‘grave risk’ or an ‘intolerable situation’ for the child.
It is appropriate to note that whilst the child was in the care of the mother, in January 2021, he sustained a serious injury, namely a fracture to his femur and bruising on his back and upper shoulder. Annexure W-06 to the mother’s affidavit is a Temporary Care Arrangement document whereby the mother voluntarily relinquished the care of the child to the New South Wales Department of Family and Community Services, whereupon he was placed in foster care for a three month period. The document, under the heading Reasons for Temporary Care Arrangement, states that in the opinion of a doctor, the type of fracture, age of child and a lack of a witnessed event is high risk for a non-accidental injury. Furthermore, the small bruises on the child’s back and shoulders are “more than expected…and would be consistent with inflicted injury”.
The mother has failed to discharge her onus to establish this regulatory exception.
I acknowledge there may well be difficulties and hardship for the mother, but she is the architect of her own destiny. It would be contrary to the purpose and underlying philosophy of the Convention to refuse to return the child to Japan.
Neither party adduced evidence or made submissions about conditions to return, other than counsel for the mother during his final submissions referred to the mother’s financial situation and her preference that the father be responsible or the costs of a flight to Japan. Neither were there submissions about the implications of international travel during the Covid-19 pandemic. In the absence of submissions by the parties, I do not intend to make any orders imposing conditions to return.
I intend to make an order for the return of the child to Japan in the terms sought by the State Central Authority.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Williams. Associate:
Dated: 11 February 2022
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