Secretary, Department of Family and Community Services and Hilton
[2015] FamCA 849
•9 October 2015
FAMILY COURT OF AUSTRALIA
| SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & HILTON | [2015] FamCA 849 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Final orders – Where the parents lived in Norway with the child – Where the child is two years old – Where the removal was wrongful – Where the mother relied upon the defence of “grave risk” pursuant to Regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the mother has previously suffered from depressive episodes – Whether the mother may suffer a depressive episode upon her return to Norway – Whether such an episode would present a grave risk to the child or otherwise place him in an intolerable situation – Where the mother’s own expert evidence suggested that she is not currently suffering from any psychological illness and has proven capable of seeking appropriate assistance for her mental health in the past – Where there are ongoing family law proceedings in Norway and a first listing is to take place within a month’s time – Conditional order made for the return of the child to Norway. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 16(3) Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 |
| APPLICANT: | Secretary, Department Of Family And Community Services |
| RESPONDENT: | Ms Hilton |
| FILE NUMBER: | SYC | 4476 | of | 2015 |
| DATE DELIVERED: | 9 October 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 24 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hartstein |
| COUNSEL FOR THE RESPONDENT: | Mr Harper |
| SOLICITOR FOR THE RESPONDENT: | GP Legal Solicitors, Attorneys, Conveyancers & Notary Public |
Orders
That the father and respondent mother make such arrangements as are necessary to ensure the return of the child, L born … 2013 (male) (“the child”), by 28 October 2015 to Norway, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
That the Registrar of the Family Court of Australia at Sydney releases forthwith all passports and air tickets concerning the child to the legal representative for the Central Authority.
Paragraphs 1 and 2 of the Orders of 8 July 2015 be discharged to allow the child to leave the Commonwealth of Australia for the purposes of giving effect to Order 1 above.
The following conditions apply in relation to the Order for the return of the child, being Order 1 above:
4.1.That the Central Authority facilitate the father in furnishing a written undertaking to the Court, on or before 4pm on 16 October 2015, that he:
4.1.1.has done all things necessary to withdraw the criminal proceedings pending in Norway in respect of the respondent mother removing the child from Norway without his knowledge or consent;
4.1.2.will not voluntarily support any punishment or committal of the respondent mother in respect to any contempt of the Norwegian Court;
4.1.3.undertakes to pre-pay for airline tickets for the respondent mother and the child to travel from Sydney to Town H, Norway. If needed, the father undertakes to accompany the respondent mother and child or to accompany the child on his own during the return;
4.1.4.will vacate the home at Town H, Norway and make it available to the respondent mother and the child. The father will continue to service the mortgage and outgoings in respect of the home. It is noted that there is a wireless internet connection at the home which will be made available to the respondent mother;
4.1.5.will make a motor vehicle available to the respondent mother and continue to meet all expenses related to that vehicle;
4.1.6.will make a mobile telephone and subscription available to the respondent mother;
4.1.7.has maintained a place for the child at a pre-school in Norway. He will continue to pay any fees and charges associated with the child’s attendance at the pre-school when the child returns to Norway; and,
4.1.8.undertakes to provide financial support for the child and the respondent mother from the day of their return to Norway, which includes covering their indexed costs equating to 2380 Norwegian Krone (NOK) per month for the child and 4590 (NOK) for the respondent mother. It is noted that these amounts may be reduced, subject to any welfare entitlements the respondent mother and the child may be entitled to in Norway.
That the Central Authority cause the father’s written undertakings the subject of these Orders to be lodged at the Sydney Registry of the Court, and furnish copies thereof by mail or email to the mother.
Prior to the departure of the child from the Commonwealth of Australia for Norway, the Australian Federal Police shall remove the name of the child from the Airport Watch List in operation at all Australian International arrival and departure points as soon as practicable.
Following the departure of the child from the Commonwealth of Australia to Norway, in accordance with Order 1 above, all other Orders made by the Court in relation to proceedings SYC4476 of 2015 are discharged.
That the Central Authority serve a sealed copy of these Orders upon the Commissioner of the Australian Federal Police.
That the Central Authority cause the following documents to be furnished to the HH District Court prior to 5 November 2015:
9.1.a copy of the Orders made on 9 October 2015; and
9.2.a copy of the Reasons for judgment delivered on 9 October 2015.
Liberty is granted to restore this matter to the Court within twenty-four (24) hours’ notice to the Court as to the implementation of the return order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Family and Community Services & Hilton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4476 of 2012
| Secretary, Department Of Family And Community Services |
Applicant
And
| Ms Hilton |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The Secretary of the New South Wales Department of Family and Community Services, in his capacity as the State Central Authority (“the Central Authority”), has by Form 2 Application filed 2 July 2015 sought orders in respect to L (“the child”), born in Norway in 2013.
By consent, at the hearing of this matter on 24 September 2015, leave was granted to the Central Authority to allege that the child was wrongfully removed from Norway on or about 4 May 2015 by Ms Hilton (“the mother”).
The orders sought by the Central Authority included the following:
That the applicant and respondent mother make such arrangements as are necessary to ensure the return of the child, [L] (male) born … 2013, to Norway forthwith in the company of such person and upon such conditions as this Court deems necessary pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
Background
The relevant facts are as follows:
·The child's father, Mr R (“the father”), was born in Norway in 1979.
·The respondent mother was born in Australia in 1984.
·In 2000, the mother enlisted in the Australian Defence Force.
·In July 2003, the mother travelled to the United Kingdom but was brought home early because of homesickness.
·In November 2006, the mother suffered a major depressive episode with comorbid anxiety including panic attacks, due to her separation from her family whilst in the Defence Force.
·In May 2011, the father moved to Australia on a two year employment contract.
·In July 2012, the parents met on a diving trip in the South Pacific.
·In August 2012, the parents commenced their relationship.
·In April 2013, the parents commenced living together.
·In May 2013, the father returned to Norway to start a new job and commenced looking for a house and car for himself and the mother.
·In July 2013, the mother arrived in Norway.
·On 1 August 2013, the parents moved into their new home.
·In late 2013, the child was born.
·In December 2013, the maternal grandparents visited Norway.
·In February 2014, the mother and child travelled to Australia for a holiday.
·Between April 2014 and October 2014, the father took paternity leave.
·In May 2014, the mother obtained employment in Norway.
·On 25 June 2014, the mother sought medical attention for depression.
·On 5 September 2014, the mother sought further medical attention for depression.
·On 13 September 2014, the mother sought further medical attention in respect to her depression.
·In October 2014, the child started day care.
·On 14 October 2014, the mother sought medical treatment for a broken arm.
·In December 2014, the parents and the child travelled to Australia for Christmas.
·On 20 January 2015, the parents signed an enrolment form for the child to attend X Grammar School commencing in 2019.
·In February 2015, the parents received a notice that the child had been accepted into X Grammar School.
·In February 2015, the mother moved out of the family home in Norway with the child and commenced family law proceedings seeking orders in respect to custody of and time spent with the child.
·On 30 March 2015, the mother's lawyer wrote to the father and stated:
There is no doubt that [the child] lives permanently in Norway. Future care, access and place of residence must therefore be decided in Norway and in accordance with Norwegian legal rules if there should be any disagreement between you.
·In April 2015, the mother and child travelled to Australia to spend time with her family over Easter.
·On 17 April 2015, on their return from Australia, an incident occurred in respect to the father seeing the child and the police were called. The police spoke to the mother and father separately.
·On 18 April 2015, the mother sent a Facebook message to the father telling him that he could see the child the following day.
·On 19 April 2015, the parents met at the harbour to exchange the child in the presence of a witness from Child Services.
·Between 30 April 2015 and 3 May 2015, the father took the child skiing with friends.
·On 4 May 2015, the mother left Norway with the child for Australia.
·On 5 May 2015, the mother and the child landed in Australia.
·On 10 May 2015, the mother sent an email to the father to advise him where the child was located.
Regulatory Framework
The legislative framework within which this application is to be determined is set out in the Regulations.
Regulation 4 relevantly provides:
(1) For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a) the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b) rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2) For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3) For the purposes of this regulation, rights of custody may arise:
(a) by operation of law; or
(b) by reason of a judicial or administrative decision; or
(c) by reason of an agreement having legal effect under a law in force in Australia or a convention country.
Sub-regulation 16(1) relevantly provides:
(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 subregulation (1A);
the court must, subject to subregulation (3), make the order.
Sub-regulation 16(1A) relevantly provides:
(1A) For subregulation (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.
Sub-regulation 16(3) relevantly provides:
(3) A court may refuse to make an order under subregulation (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.
Sub-regulations 16(4) and (5) provide:
(4) For the purposes of subregulation (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 subregulation (3) is established by a person opposing return.
Issues
The issues to be considered are as follows:
·Was the removal of the child wrongful?
·Should there be an order made for a return of the child to Norway?
·Would there be a grave risk of physical or psychological harm or circumstance otherwise that would place the child in an intolerable situation, as contemplated by regulation 16(3)(b), if a return order is made?
Was the removal of the child wrongful?
The child is under sixteen years of age. It was acknowledged by the mother that she had removed the child from Norway without the consent of the father.
The mother asserted that she and the father had made plans to travel to Australia with the child to live. That was to occur in time for the child to commence schooling at X Grammar School in 2019. It was not, however, disputed that at the time the mother removed the child from Norway, on or about 4 May 2015, the child habitually resided in Norway immediately before his removal.
There was no issue that, as at 4 May 2015, the father was exercising his rights of custody in relation to the child in accordance with Norwegian law.
Accordingly, the conditions required under sub-regulation 16(1A) for wrongful removal are satisfied.
Order for return
Sub-regulation 16(1) of the Regulations requires an order for the return of the child to be made in the circumstances where an application for a return order for a child has been made, where that application has been made within one year of the child’s removal or retention, and where the Court is satisfied that the child’s removal or retention was wrongful. The Court has found that the conditions under sub-regulation 16(1A) have been satisfied and that the child’s removal from Norway was wrongful. There is also no issue that the application for the return of the child has been made within one year of the child's removal from Norway.
Further, sub-regulation 16(1) requires the Court to make an order for the return of the child upon being satisfied that the removal was wrongful unless at least one of the matters set out in sub-regulation 16(3) has been satisfied.
It was submitted by counsel for the mother that, within the contemplation of 16(3)(b), there was "a grave risk that the return the child under the Child Abduction Convention would expose the child to physical or psychological harm or otherwise place [him] in an intolerable situation."
Grave risk of physical or psychological harm
Submissions of the Central Authority
The Central Authority referred to Gazi & Gazi (1993) FLC 92-341 at 79,624 in noting that:
The primary purpose of the Convention, the relevant legislation and the regulations is to provide a summary procedure for the resolution of the proceedings and, where appropriate, a speedy return to the country of their habitual residence of children who are wrongfully removed or retained in another country in breach of rights of custody or access.
Reference was also made to the decision of the High Court in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 (‘DP v Commonwealth Central Authority’) noting the following principles:
·The onus of proof “lies on the parties opposing the return” and “it will be for that party to demonstrate a grave risk of exposure to harm".[1]
·That task requires the Court to make “some prediction, based on the evidence, of what may happen if the child is returned".[2]
·"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 without some clear and compelling evidence…"[3]
[1] at [39].
[2] at [41].
[3] at [43].
Reference was also made to the case of Murray & Director, Family Services, ACT (1993) FLC 92-416, where the Full Court commented that it would be "presumptuous and offensive in the extreme" for an Australian court to conclude that a court in a convention country would not properly exercise its jurisdiction.[4]
[4] at 80,260.
Reference was also made to Zafiropoulos & the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264, with counsel for the Central Authority noting that, in non-return cases, the facts have usually been very compelling.
The Central Authority also referred to Wolford & Attorney-General’s Department [2014] FamCAFC 197 (‘Wolford’), which was relied on by way of factual analogy to the present case. The Central Authority’s counsel noted, that in Wolford, reference was specifically made to DP v Commonwealth Central Authority (supra) at [45] where it was observed that the concept of grave risk of psychological harm as contemplated by sub-regulation 16(3)(b) requires more than what could be regarded as inevitable for a child to suffer "disruption, uncertainty and anxiety".
Reference was also made in Wolford (supra) at [57] to In Re E[5] as authority that the predicted risk "…must have reached such a level of seriousness as to be characterised as ’grave‘", and that although the word "grave" characterises the risk rather than the harm "there is in ordinary language a link between the two."[6]
[5] In Re E (Children) (Abduction: Custody Appeal) [2011] 4 All ER 517 (‘In Re E’).
[6] Ibid at 532[33].
It was further said In Re E (supra) at [33]:
Although ‘grave’ characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as ‘grave’ or higher risk might be required for other less serious forms of harm.
Applying those authorities, the Central Authority argued that the evidence falls far short of establishing a grave risk of harm to the child, either as a result of the mother's deteriorating mental health or as result of violence on the part of the father.
The Central Authority’s counsel accepted that Ms J, who provided a report in the proceedings which is dated 24 August 2015, was appropriately qualified. However, counsel argued:
·Insofar as there is any risk to be determined, it is a risk to the mother not the child.
·There is no evidence of a diagnosis that the mother suffers from a psychological illness.
·The report of Ms J indicated that the mother is currently psychologically robust.
More generally, it was argued by counsel for the Central Authority that:
·The mother is not currently suffering any mental health issues; indeed such evidence as is before the Court is that the mother is psychologically robust.
·The mother is able to access mental health services as she needs them both in Australia and in Norway.
·It should not be assumed that the mother would be exposed to the same factors that led to her depressive condition in the middle of 2014 to late 2014.
·The mother's expert evidence falls short of supporting the assertion that there is a grave risk that the return of the child to Norway would expose him to physical or psychological harm or otherwise place him in an intolerable situation.
·The available evidence is that Norway has appropriate medical facilities which are available for the mother and that she is able to obtain support there should it be needed.
·The evidence suggests that, with the support of medical facilities in Norway, the mother would be able to address her depression if it were to occur.
·Taking the evidence of the mother at its highest, even if the mother does suffer a depressive illness, the husband would be available to care for the child.
·The evidence suggests that the mother would have a network of friends available to her to provide her with assistance.
·The mother may make an application for relocation to Australia upon her return to Norway.
In summary, it was argued that if the Court took the mother’s case at its highest, it would not find that, as a matter of probability, there was a grave risk of physical or psychological harm to the child or otherwise result in the child being in an intolerable situation.
In terms of the risk of domestic violence, the Central Authority’s counsel argued there is no credible evidence that there has been domestic violence involving either the mother or the child. Further, it was argued, the mother’s characterisation of one occasion when the father pushed past her to get into her house to see the child after the child had been overseas, as an incident of domestic violence, is “a gross exaggeration”.
Submissions of the mother
Counsel for the mother argued that the return of the child to Norway would expose him to a grave risk of physical and psychological harm and otherwise place him in an intolerable situation.
In terms of both physical and psychological harm, it was argued that there was evidence that the father had engaged in threatening, controlling and coercive behaviour that constituted domestic violence. While that behaviour had not been directed at the child, the child’s exposure to it would likely cause him psychological harm.
Also, in terms of psychological harm, it was noted that the mother is and has always been the primary carer of the child who is still young - just two years old. He is primarily attached to his mother and he has spent little time with his father since May 2015.
It was argued that it would not be appropriate for the child to be separated from the mother for any extended period of time. To do so would expose him to grave risk of psychological harm.
The mother acknowledged that she would accompany the child in the event of any orders being made for his return. However, the difficulties may become untreatable in Norway if the period of the return is lengthy or indefinite. This, it was argued, may result in her being compelled to return to Australia for her psychological wellbeing.
Even if the mother did not return to Australia, it was argued that separation would also include a situation where the mother would be unable to provide proper parenting as result of psychological illness or depressive condition.
It was submitted that the mother has a genuine and well-documented vulnerability to extended periods of separation from her family, including:
·in 2003 she had to return from an extended period in the United Kingdom because she was missing her family;
·in 2006 while on deployment with the Australian Defence Force she had to return to Australia and suffered a major depressive episode; and
·in 2014 the mother experienced anxiety, depression and had suicidal thoughts while she lived in Norway.
Based on that history, it was argued that it was more likely than not that:
·if the mother had to return to Norway for any extended period of time she would suffer anxiety and depression;
·if the mother suffers from anxiety and depression it will compromise her ability to parent the child; and
·the consequential unavailability of the mother for the child will place him at a grave risk of psychological harm, or otherwise place him in an intolerable situation.
It was submitted that, in the event of the mother suffering a further psychological episode, then in those circumstances “it is entirely likely” that there would be a separation between her and the child. This would be either as a result of her incapacity to properly care for the child or as a result of the need for her to return to Australia to address her psychological problems.
Counsel for the mother relied on the decision of Le Poer Trench J in the matter of Department of Family and Community Services & Berney [2015] FamCA 383 (‘Berney’). In particular, reference was made to [51] which noted:
The family consultant stated that separation from the primary carer begins to be felt by child within one day. She stated that the child would be significantly and negatively impacted upon by separation from his mother. She said: Grief does not necessarily increase or lesson in impact as time goes by. It’s pathway is not linear. Its greatest impact, especially for children, may be in the beginning when the shock of it does damage which may be irreparable. Sudden and monumental loss in childhood, particularly early childhood, and especially when there is not a relationship with a secondary carer to serve as a buffer, usually has a lifelong impact physiologically as well as psychological.
While counsel for the mother acknowledged that the father was arguably a buffer, it was submitted that the Court should not take the risk that he would be able to fulfil the role currently undertaken by the mother and, in any event, the child would suffer grief as result of separation from his mother.
Part of the problem, it was submitted, was that the mother would be returning to Norway in a situation where she would not know how long it would be before the family law proceedings in Norway were finalised. It was submitted that the longer the period, the greater the risk that, at some point, the mother’s psychological problems would manifest themselves.
In assessing grave risk, it is on the one hand necessary to assess the probability of the event occurring, as against the magnitude of the consequences of that risk occurring. In terms of probability, it was submitted that it is probable that the mother will suffer from a mental health condition which may be as little as becoming weepy to having to leave Norway to return to Australia. It was argued that the consequence of leaving Norway would be grave from the point of view of the risk that it presents to the child.
The Law
In considering a legislative instrument based on an international treaty, consistent with Article 31(1) of the Vienna Convention on the Law of Treaties,[7] it is appropriate for the Court to have regard to the "terms of the treaty in their context” as well as the “object and purpose" of that treaty.
[7] Vienna Convention on the Law of Treaties, signed 23 May 1969, [1994] ATS 2 (entered into force 27 January 1980).
In adopting that approach, in Applicant A v Minister for Immigration and Ethnic Affairs,[8] the High Court said in that it is necessary to adopt “an holistic but ordered approach”, which was described in the following terms:
The holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to ascertain its true meaning. Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources. The form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at the true interpretation of its text. (Emphasis added)
[8] (1997) 190 CLR 225.
The Regulations are made pursuant to section 111B of the Family Law Act 1975 (Cth) which confirms that the purpose of the Regulations is to enable the performance of Australia’s obligations "under the Convention on the Civil Aspects Of International Child Abduction signed at the Hague on 25th of October 1980…” (“the Child Abduction Convention”)
Sub-regulation 1A(2) of the Regulations provides that:
These regulations are intended to be construed:
(a) having regard to the principles and objects mentioned in the preamble to and article 1 of the Convention; and
(b) recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and
(c) recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of Convention countries.
Sub-regulation 16(3) reflects Article 13 of the Child Abduction Convention which sets out the relevant exceptions to the obligation to return an abducted child. It is useful to read the exceptions in context. Articles 12 and 13 of the Child Abduction Convention relevantly provide:
Article 12
Where a child has been wrongfully removed … the authority concerned shall order the return of the child forthwith…
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person …which opposes its return establishes that –
a)…
b) 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.” (Emphasis added)
In Director-General, Department of Families, Youth and Community Care & Bennett,[9] the Full Court undertook a detailed consideration of the deliberations of the Hague Conference on Private International Law that led to the implementation to the Child Abduction Convention. Based on that analysis, the Full Court concluded that the regulation 16(3)(b) exception is “to be narrowly construed".[10]
[9] (2000) FLC 93-011.
[10] Ibid at 87,228.
In undertaking that analysis, reference was made to Gsponer & Director-General, Department of Community Services, Victoria[11] where the Court said:
So understood, regulation 16(3)(b) has a narrow interpretation. It is confined to "grave risk" of harm to the child arising from his or her return to a country which Australia has entered into this convention with. 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.
…
We agree with the comment of Kay J in Re Lambert that "the convention is clear, in my view, that the exceptions to it are likely to be few and far between…"(Emphasis added, reference omitted)
[11](1989) FLC 92-001 at 77,161.
The task of considering whether a regulation 16(3) exception has been established, as set out in DP v Commonwealth Central Authority (supra), requires the Court to have regard to the following:
·As is made clear by the text of the Regulation, which reflects the text of the Child Abduction Convention, the onus of proof in establishing a regulation 16(3)(b) exception "lies on the party opposing return."[12]
·The assessment as to whether there is a "grave risk" as contemplated by regulation 16(3)(b) "requires some prediction, based on the evidence of what may happen if the child is returned."[13]
·In making that prediction, "certainty is not required”. Rather, “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."[14]
·However, the Court will not be persuaded to make a prediction of relevant risk without some "clear and compelling evidence".[15]
·If a risk is found to exist it is then necessary to determine whether it is of a nature "which warrants the qualitative description ‘grave’."[16]
[12] at [39].
[13] at [41].
[14] at [42].
[15] at [43].
[16] at [42].
In terms of the facts of this matter, the first task is to consider whether there is "clear and cogent evidence” to satisfy the Court "that there is a grave risk that the mother's psychological and emotional state is such that she will not be able to cope"[17] with an order requiring the child to be returned in circumstances where, appropriately, she intends to accompany the child. In considering whether it is appropriate to find that the mother "will not be able to cope," it is appropriate to have regard to any evidence of the existence of "appropriate treatment" in Norway.[18]
[17] State Central Authority & Abdalle [2012] FamCA 1151 at [91].
[18] Director-General, Department of Families, Youth and Community Care & Bennett (2001) FLC 93-011.
Having regard to those matters, it is then necessary to determine whether the child would be exposed to a risk as a result of the impact of the return on his mother and whether that risk “warrants the qualitative description ‘grave’."[19]
Consideration
[19] DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 at [42].
Grave risk of physical harm
The mother has failed to satisfy the Court that should an order be made requiring the mother and the child to return to Norway there is a grave risk that such return would expose to the child to physical harm.
At its highest, the mother's evidence refers to an incident which occurred on 17 April 2015. The officially translated police report in respect to that incident relevantly provides:
On Friday, 17 April 2015 at 3:43pm, [Town H] police station received a call from the mother that the child's father was trying to take the child, [L], away…
…
The police went to the address… arriving at 3:55pm. Both parents and the child were outside… Both the mother and father seemed upset by the incident. The mother and father were separated and were allowed to speak to the police separately.
…
The mother explained that she wanted to end the relationship with the father. The mother had moved out with her son around 2 months before.
…
The reason for contacting the police today was that the mother and son; [L], had been on holiday in Australia for 14 days, visiting grandparents and family. When the mother landed with [L] at [the] airport she did not answer the phone when the child's father called. The child's father wanted to see his son after they had been away on vacation for 14 days. Therefore, the father went to the mother's new address… and knocked on the terrace door. The child's mother had let him in. The father had taken [L] in his arms and had said that he wanted to "take" his son with him. The mother had become upset and tried to take [L] back. [L], who is 16 months old, stretched his arms towards his mother. The child's mother said that the child's father had then pushed her in the chest several times (the father said that he held the mother at a distance and did not push her. The argument had lasted for 5 minutes until the mother called the police.)
The matter was resolved temporarily when the father was ordered not to contact the mother during the afternoon/evening. The child's father agreed to this. The father was urged to contact a lawyer and possibly mutual friends to talk. Both parties were informed that the child's welfare service would be informed of the incident.
The following day, the mother sent a Facebook message to the father which read:
I'm not treating you differently, I was just scared yesterday. I simply asked you nicely to not come into my house and you pushed in without my permission and that made me feel unsafe. And I never was angry especially in front of [L]. I made sure of that. It was upset when [L] wanted me and you didn't give him back. That's when I got scared the most. [L] was so upset. But I forgive you I know you wanted to see him and I wanted him to see u too. I just need to know he'll be OK and you'll let him Skype and FaceTime me. I know [L] loved the snow. He will need to play in the snow more this time. I think you need to wait for Barnevernet to advise on what would be best for [L].
The reference to the snow was a reference to a trip that the father subsequently took the child on with friends that also had a young child. It is inconceivable that the mother would have let the child go away with the father if she had any concerns for his physical and psychological safety.
Grave risk of psychological harm
The mother relied on the fact that she has experienced depressive episodes in 2003, 2006 and 2014, when she was isolated from her family, as the basis for extrapolating that it will be likely that she will suffer further episodes if a return order is made. This, in turn, it was argued, would present a grave risk of psychological harm to the child or otherwise place him in an intolerable situation.
Ms J was engaged by the solicitors for the mother to provide an expert report in respect to the mother’s psychological condition. In the course of her report, Ms J observed:
It is my view that if [the mother] is ordered to return [the child] to Norway and accompany him there is no evidence that she would experience a situation differently to last year and would likely experienced similar social isolation, loss of family connectedness that would affect her parenting over time. It is likely that [the mother] would need to access an effective, intervention program that could support her and [the child] until she was able to build a positive, supportive social network and find employment.
…
It is my view that [the mother’s] mental health is likely to be compromised should she be required to return [the child] to Norway and accompanies him. [The mother’s] mental health problems appears situational and connected to social isolation living in a country where she does not speak the primary language of the country, spousal or relationship problems and a disconnectedness from her primary supports in Australia.
Research on children who live with a parent with a mental health problem suggests that the impact of a parent's condition is varied and unpredictable. Although parental mental health problems posed biological, psychosocial and environmental risks for children, not all children will be negatively affected in the same way. Rather, it is how the mental health condition affects the parents behaviour as well as familial relationships that may cause risk to a child
…
There is no doubt that currently [the mother] is a resilient person who is bonded with her son and providing an environment that meets his developmental needs. While living in Norway she demonstrated her capacity to seek appropriate help when she felt depressed and had the primary care of a newborn infant. However, her protective factors are less robust in Norway as [the mother] does not have family support or positive and effective relationships with others in Norway that could potentially mediate the impact of recurring mental health problems and the impact on [the child]. (Emphasis added)
Taking the mother’s evidence at its highest, is the statement by Ms J that the mother’s "mental health is likely to be compromised should she be required to return [the child] to Norway and accompanies him." If this does eventuate then it poses a “biological, psychosocial and environmental risk” for the child although it is not possible to identify the extent of that risk because “not all children will be negatively affected in the same way.”
The evidence falls short of satisfying the Court, on the balance of probabilities, that the child will be exposed to a “grave risk” as required by regulation 16(b)(3) if a return order is made.
Moreover, in so far as there is a risk to the child, and no risk to a child should be ignored, that risk needs to be seen in the following context:
·The mother will have access to appropriate health services including mental health services that are available in Norway.
·The evidence establishes that those services were effective in previously treating the mother’s depression.
·Unlike the facts in Berney (supra), the child would have his father, and his broader paternal family, available to him to support him through any period during which his mother’s care for him may be compromised by a depressive condition.
·This matter is before a Norwegian court with the first court event listed for 5 November 2015.
·No evidence was been presented to the Court to displace the assumption that “once the child is so returned, the courts [of Norway] are not appropriately equipped to make suitable arrangements for the child's welfare.”[20]
[20] Gsponer & Director-General, Department of Community Services, Victoria (1989) FLC 92-001 at 77,161.
As noted, in determining risk, the Court is entitled to have regard to any treatment facilities available to the mother if a return order was not made.[21] Counsel for the mother asserted that the evidence before the Court was only that the mother ceased having treatment after October 2014, not that the treatment received by the mother in Norway was inappropriate or successful.
[21] Director-General, Department of Families, Youth and Community Care & Bennett (2001) FLC 93-011.
With respect to counsel, the Court considers the evidence is stronger than that. The nature of the treatment the mother received in Norway in the period from June until October 2014 is summarised in detailed reports from the Norwegian health system. Translations of those reports are annexed to the mother’s cross application (Form 2A) and are admissible pursuant to regulation 29(2). No evidence was presented by the mother that the treatment was in anyway inappropriate.
In terms of success of the treatment, the evidence from Ms J’s report was that the mother is now psychologically robust and has no long term psychological illness. It is noted that it was argued that the mother’s psychological health was situational in so far as difficulties may emerge in Norway but not in Australia. Nevertheless, the evidence is that, with the benefit of treatment in Norway, the mother has not suffered any long term or permanent health consequences.
In terms of addressing any short term health consequence for the child resulting from the mother’s return to Norway, it is noted that, contrary to the factual circumstances considered by the Court in Berney (supra), the child would have other support available to him in Norway. This would include the father and the broader paternal family. It is noted that the father has travelled to Australia to spend time with the child since he was removed from Norway. The father has attended the court proceedings and has offered undertakings to provide accommodation, transport and financial assistance to the mother and the child pending the family law proceedings being dealt with by the Norwegian Court.
While counsel for the mother argued that the support offered by the father in his undertaking to the Court would be inadequate, counsel declined an invitation by the Court to make submissions on more appropriate arrangements.
In summary, the facts in this case compel the Court to reach a similar decision to that reached in Director-General, Department of Families, Youth and Community Care & Bennett (2001) FLC 93-011 where the Court said:
At its highest the evidence established that [the] mother's health might be deleteriously affected if she accompanied him to England, was parted from the support of her family and was prohibited from obtaining appropriate treatment in England. There was no evidence to support the existence of the latter condition.
In the present case, there is evidence of the availability of treatment and, indeed, treatment that was appropriate and effective in treating the mother’s depression when she suffered from that condition in Norway in 2014.
Conclusion
In finding that the mother has not satisfied the onus of proof she carries in establishing a regulation 16(3) exception, it should not be taken that the Court has rejected the merits of any claim the mother may make in the Norwegian family law proceedings.
To the contrary, the matters the mother has raised require serious and detailed consideration by a Court. The Family Court of Australia has every confidence that the mother’s concerns will receive that consideration by the HH District Court in Norway. There was no evidence presented to the Court to cast any doubt on that assumption.
Accordingly, consistent with this Court having mutual respect for the HH District Court, the Court will make orders in terms of those sought by the applicant Central Authority.
In making those orders, the Court notes the undertakings to be provided by the father to provide accommodation, transport and financial support for the mother and the child for their travel arrangements and needs upon arriving in Norway. The orders that have been made are conditional on that undertaking being complied with.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 9 October 2015.
Associate:
Date: 9.10.2015
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