Soysa & Commissioner, Western Australia Police
[2012] FCWA 28
•29 MARCH 2012
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: SOYSA and COMMISSIONER, WESTERN AUSTRALIA POLICE [2012] FCWA 28
CORAM: THACKRAY CJ
HEARD: 22 - 24 FEBRUARY 2012
DELIVERED : 29 MARCH 2012
FILE NO/S: PTW 2231 of 2010
BETWEEN: SOYSA
Applicant
AND
KARL JOSEPH O'CALLAGHAN COMMISSIONER, WESTERN AUSTRALIA POLICE
Respondent
Catchwords:
CHILD ABDUCTION – Where the five year old child was wrongfully removed from Sri Lanka by his mother in 2009 – Where an order for the child’s return was made and confirmed on appeal to the Full Court – Where the mother subsequently applied for the discharge of the return order pursuant to reg 19A of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the mother claims there are “exceptional circumstances” which justify the order being discharged – Where the mother asserts it is “impracticable” for the order to be carried out – Where the mother claims she will remain in Australia if the return order is implemented – It is not impracticable for the return order to be carried out, nor are there exceptional circumstances which justify the order being discharged – The discretion to discharge the return order is therefore not available – Had the discretion been available, it would not have been exercised in the mother's favour – Application for discharge of the return order dismissed.
Legislation:
Family Law Act 1975 (Cth), s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 5(3), reg 15(2), reg 15(4), reg 16, reg 19A
Category: Reportable
Representation:
Counsel:
Applicant: Mr Nicholls QC
Respondent: Ms Thatcher
Independent Children's Lawyer : Ms Hossen
Solicitors:
Applicant: Kavanagh Lawyers
Respondent: State Solicitor's Office
Independent Children's Lawyer : Reader Lawyers & Mediators
Case(s) referred to in judgment(s):
Baker v R (2004) 223 CLR 513
Cawthorn & Cawthorn (1998) FLC 92-805
De L v Director General, NSW Department of Community Services (1996) 187 CLR 640
Department of Child Safety v Starky [2009] FamCA 774
Director General of the Department of Family and Community Services v Davis (1990) FLC 92-182
Director-General, Department of Families and RSP (2003) FLC 93-152
Director-General, Department of Families v P [2003] FamCA 691
Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011
DP v Commonwealth Central Authority (2001) 206 CLR 401
Fox v Percy (2003) 214 CLR 118
HZ v State Central Authority (2006) FLC 93-264
In Re E (Children) (Abduction
Custody Appeal) [2012] 1 AC 144
In Re F (Hague Convention
Child’s Objections) (2006) FLC 93-277
In re M (Abduction
Rights of Custody) [2008] 1 AC 1288
In the matter of S (a Child) [2012] UKSC 10
La Rocca & La Rocca (1991) FLC 92-222
Mozes v Mozes (2001) 239 F. 3d 1067
MW v Director General, Department of Community Services (2008) 82 ALJR 629
R v Kelly (Edward) [2000] 1 QB 198
Re A (A Minor)(Abduction) [1988] 1 FLR 365
Re M (A minor)(Child Abduction) [1994] 1 FLR 390
Re M (Minors)(Abduction) [1992] 2 FCR 608
Rohde & Rohde (1984) FLC 91-592
Secretary, Department Of Health And Community Services and Karides
State Central Authority v Ustinov (No. 4) [2008] FamCA 987
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
W v W (Child Abduction
Acquiescence) [1993] 2 FLR 211
Zotkiewicz & Commissioner of Police [(2011) FLC 93-472]
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1The mother has applied for the discharge of an order for the return of her five year old son to Sri Lanka, where the father resides, and where the child resided before he was wrongfully removed in May 2009. The order was made under the Family Law (Child Abduction Convention) Regulations 1986, and was confirmed on appeal.
2The mother now claims there are “exceptional circumstances” which justify the order being discharged, and she also asserts it is “impracticable” for the order to be carried out. These propositions are made in the context of the mother being the child’s primary carer, the father now being a stranger to the child and the mother having announced, albeit after the order was made, that she will not return to Sri Lanka, even if the child is returned.
Brief background
3The child was born in Sri Lanka in July 2006. He is the only child of Ms Soysa (“the mother”) and Mr Redman (“the father”), who were both born in Sri Lanka and who married there in April 2004.
4The relationship between the mother and the father was unhappy from the outset. They separated on a few occasions, with the final separation occurring before the child was born. The father attempted to provide the mother with financial support during her pregnancy, but his efforts to assist were rebuffed.
5The father was only able to see the child on a few occasions after his birth. He wanted to spend more time with his son and, in February 2007, commenced proceedings in the District Court of Colombo seeking full custody. The mother responded, seeking that she have custody. A number of interim orders were made in 2008 giving the father access. He was exercising regular access until the mother removed the child from Sri Lanka, using a forged document. The custody proceedings were still pending.
6The mother claims she began planning her departure in August 2007, after her car had been “tailgated” by an unknown person. She did not report this to the police. Although she says she left “at the first opportunity”, she did not depart Sri Lanka until 8 May 2009.
7After leaving Sri Lanka, the mother took up residence in Perth, where she commenced full-time work. The child was placed in day-care. The mother’s representatives withdrew from the proceedings in Colombo, stating they had no instructions. The proceedings continued in her absence. On 10 September 2009, orders were made granting the father custody of the child.
8The mother and her family led the father to believe she and the child were in Botswana. After the father learnt that they were, in fact, in Australia, he caused proceedings to be commenced on 23 April 2010 for the return of the child under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (hereafter “the Regulations”). The applicant was the Commissioner of Police, as delegate of the Australian Central Authority.
9The application was heard on 6 August 2010. On 10 September 2010, Moncrieff J delivered his reasons for judgment in which he found that the child’s removal from Sri Lanka was in breach of the father’s “rights of custody”, which the father had been exercising. As the mother had not sought to enliven any of the “exceptions” under the Regulations, this finding required an order to be made for the child to be returned to Sri Lanka. Moncrieff J therefore made the order that the mother now seeks to have discharged, namely that “the child…be returned to Sri Lanka”. The order was silent as to the means by which it was to be implemented, and the matter was adjourned to 16 September 2010 “for further consideration”.
10Immediately following delivery of the judgment, the mother informed her legal representatives that she “could not” return to Sri Lanka with the child. She claimed, “I was and I still am, afraid of [the child’s] father and of his family and of what might happen to me if I went back to Sri Lanka”. These concerns had not been aired before Moncrieff J.
11The mother’s decision not to return to Sri Lanka was conveyed to Moncrieff J at the hearing on 16 September 2010. His Honour was also informed of the mother’s intention to appeal, but the appeal was not filed until 26 October 2010. The mother then applied for a stay, which was granted on 1 November 2010. The appeal was heard by the Full Court of the Family Court of Australia on 9 December 2010, and dismissed on 2 March 2011.
12After the appeal was dismissed the matter was promptly relisted before Moncrieff J. The mother reiterated her intention not to return to Sri Lanka. In light of this stated intention, his Honour made orders on 16 March 2011 to the following effect:
1.[The child] be returned to Sri Lanka in the company of the father, “departing Perth on a date to be fixed”.
2.The mother make “such arrangements as are necessary to facilitate the return of the child to Sri Lanka in the company of his father”.
3.Prior to 22 April 2011 the mother or her agent and the father make such arrangements as are necessary with the Adoption, Research and Counselling Service WA (“ARCS”):
(a)to facilitate “the reintroduction of the child with the father”; and
(b)to determine “how best to effect the return of the child to Sri Lanka in the company of the father taking into account the physical and emotional wellbeing of the child”.
Background to the child’s removal from Sri Lanka
13The father’s court ordered access visits in Sri Lanka initially occurred in play areas at local restaurants and lasted for three hours. The mother remained during the visits. The times were then extended to almost full day visits, exercised at local Buddhist temples. Initially, these were supervised by third parties, with the mother sometimes present. In the last few months before the mother’s departure the father was exercising unsupervised daytime access.
14The weekly access visits progressed well. The child was enjoying his time with the father, and was comfortable with him and with members of his family. Although the mother claimed that all but one of the supervisors were known to the father, I find they were not previously acquainted. They also held seemingly responsible positions, with some of them apparently being volunteers associated with the Buddhist temples.
15The supervisors provided periodic reports to the District Court of Colombo. The reports speak favourably of the father and contain some indications of his sensitivity towards the child’s needs, for example in accepting the mother’s presence during the visits when the child was younger and unsure of leaving her company. The one supervisor who the mother accepted as independent (described as the “probation officer in charge, Colombo”) also spoke positively of the father’s relationship with the child. He recorded that the child had “spent the time with the father without any problem”. He went on to say that “even the relatives of the [father] had a close relationship with this child”.
16Although the mother brought the child to most of the access visits, she seems to have been largely unsupportive of them. The retired school principal who supervised many of the visits reported as follows in October 2008 (the report is in translation):
…
On the very first day itself [the mother] challenged the right to access. That is that she stated that she had not received a document authorizing the access at that place. Thereupon the Observer had to intervene and explained on producing a copy of the Court Order that such authority has been granted. By the next date, she had even started to quarrel with [the father]. It was observed that she was addressing him using the word “thamuse”, which is not a proper word to use in addressing.
On another date she came to our office and requested for a letter stating the time of opening the office. I mentioned the time of opening of the office in that letter and that even on poya days access could be given after prior arrangement. Such a stand was necessitated to honour the Court Order as well as to provide our voluntary service to a maximum to the client. What actually happened as a result was that there was an unnecessary exchange of words between us. As a several such incidents were observed, it was felt that she needed counseling for the whole of her life. It was also observe that she had no feeling whatsoever about the parental affection. There were reasons to believe that she had an intention to use the child as a security rather than thinking of the importance of the pre-childhood welfare which should have been an inherent characteristic of a woman. Finally it has to be stated that it is very essential to have the warmth of the mother as well as that of the father for the mental development and the personality development of not only this child but any other child for that matter. That will help produce a good citizen.
17A further report was provided to the District Court of Colombo in March 2009, concerning the 13 visits between 21 December 2008 and 15 March 2009. The supervisor noted that the child was observed “leaving with the father after having played in the temple ground cheerfully”. The report recorded that on one occasion the mother started yelling, “May lightening strike”, notwithstanding the presence of students, teachers and the Chief Priest. The supervisor noted that “the environment was disturbed”, and the mother was asked why she was behaving in this fashion. The report said that although the “Observation Officer [was] embarrassed by this incident, he behaved towards [the mother] indifferently”. Although no complaints were recorded about the father, the supervisor “considered [it] appropriate to place on record that it is in the interest of the child that the father and mother conduct themselves properly in the matter of access to the child”.
18Shortly after publication of this report, the mother removed the child from Sri Lanka, using documents purporting to show the father was dead. The child has not seen or spoken to his father since.
The efforts to reunite father and son
19Given the criticisms made of the father, and for other reasons that will emerge, I consider it is necessary to set out in detail much of what has occurred since the order was made for the child to be returned to Sri Lanka.
20After the father learned the outcome of the proceedings, he promptly wrote to the Ministry of Justice in Colombo saying:
I was extremely moved in happiness to see the letter dated 20-09-2010 and its annexure. Any father, who loves his child, will know the happiness that I am going through at present. Madam [P], all these happiness is due to the instruction and guidance that was given to me by you at all times.
I also seek your assistance at this moment to convey my deepest gratitude to the Hon Attorney General of Australia and relevant officers, who has fought for my rights and concluded the matter expeditiously.
In view of taking custody of my son, I’m most willing to travel to Perth as soon as the required travel documents are successfully processed by the Australian High Commission, in Sri Lanka.
I also wish to state that I’m hoping to stay in Perth for a couple of days, until the handing over of my son is done accordingly.
21The father was then informed that the mother had lodged an appeal, and that he would therefore have to delay his trip to Perth until the appeal was determined. He promptly wrote to the Ministry of Justice in Colombo on 29 November 2010:
I learn that the said appeal may take further time in deciding the issue before court. The said order too is subjected to another appeal, which may take further time.
As you are aware, I have been deprived in exercising the custody rights over my child since mid 2009 and it has been more than 1½ years. I have not seen my child in those circumstances, I humbly appeal to you to make a request from the state of Australia to make application to court seeking & [sic] appropriate order subject to in condition to execute the order dated 10th September 2010…
22The father became concerned he was not receiving all relevant information and was given permission to communicate with the Australian High Commission. On 8 February 2011, he sent an email to the High Commission noting that nearly two months had passed since he had last heard from the Sri Lankan Central Authority. He referred to the impact of the delay in the return of his son on his health and capacity to work. He asked for “help to get some information on the case and also when I can travel to Australia to bring my son back to Sri Lanka”.
23On 25 February 2011, the father wrote directly to the Australian Central Authority, saying that he did so at the request of the Sri Lankan Central Authority. Having thanked the Australian Central Authority for the action taken on his behalf, he noted the difficulty he had experienced in getting “updates from the Australian end”, and referred to the stress he had been experiencing awaiting his son’s return. The father went on to say:
Also a deep concern has arise again as to well being of my son…Since I have been privy to the state of depressive behavior displayed occasionally by my wife I have a deep rooted fear that, during this period before I bring my son back to Sri Lanka, harm might come my son’s way. Also taking in to consideration the manner in which my ex-wife illegally abducted my son and took flight to Australia, I am convinced that such an unruly outcome is very much a possibility. In order to mitigate such a potential risk, I would like to request you to take the necessary steps to place my son under the care of the Department of Child Safety, which is the competent authority in Australia in such situations. This is merely a request giving due consideration to only the child’s well being.
I am also very concerned about the impact this whole exercise will have on my son and would request your assistance in expediting the final arrangements so that I can bring him back to Sri Lanka and start to provide him a stable home environment.
I’m very much anxiously waiting to see my son, since I have not seen him for more than 1½ years.
In the circumstances, please inform me when I will be able to receive custody of my son and the applicable procedures to be followed, so that I could make the necessary work and travel arrangements.
24On 7 March 2011, the father was informed that the mother’s appeal had been dismissed. He wrote to the Australian Central Authority the next day saying:
I am humbled and extremely moved with emotion to see the letter date 07-03-2011 and order made by the family court of Australia.
Any parent, who loves his child, will understand the gratitude, relief and happiness I feel at present and indebted to all concerned who supported my cause.
Please convey and accept my heartfelt thanks and gratefulness on behalf of Hon. Attorney General, Australian High Commission in Colombo and all the other relevant officers who fought for my rights and concluded the matter expeditiously.
In view of taking custody of my son, I’m anxiously waiting to obtain the final details, arrangements and required travel documents to travel to Australia. I am looking forward to hold my son in my arms as soon as possible and humbly request you to assist me in obtaining the relevant information/documentation without any delay. I did try to call you as well today. However I was not able to get through to you. Anyway I am really glad to see an end to the long months of anxiety.
25On 11 March 2011, the Australian Central Authority replied, advising that the matter had been set down for directions on 16 March 2011. The email continued:
I note your willingness to come to Australia to collect your child at any time. I also note that you advised that you were prepared to stay in Australia to gradually re-acquaint yourself with your child. Are you able to give us any indication on the time-commitment you are willing to give yourself with your child?
26The father must have provided that information promptly, since the Australian Central Authority sent him an email on 15 March 2011, thanking him for providing his “time-commitments”, and advising that the information would be sent to the State Central Authority.
27On the same day, the State Solicitor’s Office sent an email to the father asking him to confirm, prior to the hearing scheduled for the following day, he would:
be able to come to Perth within the next two weeks (that is, before the end of March), and stay for at least three weeks to enable the process of reintroduction to occur. It is proposed that your son return to Sri Lanka sometime after 22 April 2011. (emphasis added)
28The father replied by email on the same day, advising as follows:
I have already submitted my papers for the Visa, and I am ready to travel no sooner the visa is granted. As I have been indicated that the Visa processing will be fast tracked, the end of March date is very realistic.
As indicated, I am happy to stay as long as required but have one request. I have no friends in Perth and have no support structure there. However, I have friends in Sydney/Brisbane and believe staying with a family will help in the process of reintroduction with my Son. Is there a possibility for me to take custody of my son in Sydney/Brisbane.
29On 16 March 2011, Moncrieff J made orders in the terms earlier recorded, and adjourned the matter to 11 April 2011. It seems the father was immediately informed of the outcome, and was also informed of the fees that ARCS would render for their part in the reunification process.
30On 21 March 2011, the father sent an email to the State Solicitor’s Office noting that he had been informed that, following his earlier request, the Australian Central Authority proposed to ask the mother “to place the child in the custody of the Director General of the Department of Child Protection”. However, the father also noted that the State Solicitor’s Office, in an email dated 16 March 2011, had said that the child would remain with the mother during “the counselling process”. The father reiterated his concerns about the child remaining in the mother’s care during the process, again drawing attention to the means by which she had removed the child from Sri Lanka, and noting that “such an illegal action is always possible in this situation when taking into account the nature of behavior of my ex-wife”. He again said he would “appreciate your efforts to expedite the re-unification between me and my only Son”.
31The father’s email went on to record (emphasis and errors in the original):
6. Further I would like to draw your kind attention towards the fact that I have no relatives or friends in the city of Perth and accommodation in Perth will result in a significant cost to me. On the other hand referring to your email dated 16th March 2011, I will have to pay an amount of AU$ 85 per session, which is a huge cost to me and I’m not in a position to bear these costs. Thus I would like to make a kind request for any possible grant or financial assistance for me to bear the said cost of AU$ 85 per session of counseling and the cost of accommodation in Perth. However the cost of my travelling to Australia and Return and the cost of the airfare for my Son will be borne by me.
7. Further, considering the illegal conduct on the part of my ex-wife, I have a serious doubt in relation to any positive outcome of any counseling that will be done in the process of unification between me and my son as my ex-wife could influence my Son as long as the child is being kept under her custody whilst the counseling sessions are on. As we all know my ex-wife’s has already convinced my child to think that his father (that is me) is dead.
All my efforts and requests are for the safety of my son and to secure the future well being of my Son.
32On 7 April 2011, Ms Newbould, the Manager of ARCS, wrote to the State Solicitor’s Office saying:
I am writing to you to clarify our method of working with children who are transitioning to care with another primary caregiver. I would also like to raise some concerns I have with this case in particular.
Our model of work is child focused. Thus we work at the childs pace and not the adults. We base our intervention on attachment, trauma and developmental theories.
Attachment is not an optional extra in a child’s life. Research demonstrates that a secure attachment relationship is vital for emotional, social and cognitive development. When a secure attachment relationship is severed this can be experienced as trauma for the child and can be severely damaging for the child’s future capacity to form healthy relationships. This can also threaten a child’s neurological development. Children can have a sense of being not wanted, can feel confused frightened and isolated.
To minimise these effects we need to understand
• The child’s current relationship with the primary caregiver (mother).
• The child’s specific attachment behaviour/style.
• The child’s developmental needs and appropriate pace of transition.
• Meaning of the move for the child.
• Maintaining connection with the mother.
• Father’s reflective capacity for understanding the child's experience and needs.
A child focused approach indicates a longer time frame for pre-schoolers eg 6-10 weeks. It would be unreasonable to expect a child to tolerate a rapid transition as it would be unnecessarily painful to them.
Our concerns with this case are that:
• We have had no contract [sic] from the father
• The mother has told me that she cannot return to Sri Lanka because she fears for her life - this means that the child will have no further contact with the mother.
• The child’s secure attachment relationship is with the mother.
• The child has no conscious memory of the father and at this stage does not know of the decision to remove him from his mothers care.
• Most importantly the father appears not to understand that the child would need time to make this transition and how a removal from the mothers care would feel from the child’s perspective.
• From the mothers accounts of the fathers violence and threatening behaviours and attitudes towards women, I wonder whether he would enter into working with us for the child’s transition.
• Do we need to be concerned for our safety given our child focussed approach and if our recommended time frame does not suit the father?
33It is clear from this correspondence that Ms Newbould was concerned about what she understood to be the father’s failure to make contact with ARCS, and even more concerned about the nature of the assignment, especially given the picture the mother had painted of the father. Ms Newbould was, however, prepared to continue with the work required to reintroduce the child to his father.
34On 10 April 2011, the father sent an email to the Sri Lankan Central Authority (which was forwarded to the Australian Central Authority) in which he “categorically” denied the allegations mentioned in the letter from ARCS of 7 April 2011. The father also said:
Whist thanking you for all the assistance and co-operation, I wish to bring a few concerns of mine to your kind attention in order, to you to inform all relavant parties in Australia.
Please be informed that I have decided to be in Perth by 21st of April 2011 or even before. However as a senior government employee in Sri Lanka I cannot take indefinite amount of leave of absence. Hence there arises a concern for the length of my stay in Australia. I should protect my employment in order to ensure my son gets the necessary financial support when he returns back to Sri Lanka.
I am surprised that the Australian ARCS seems to have come to conclusions about my conduct and character, based on statements supposed to have been made by my ex-wife who has misled the Australian immigration authority many times before and also against whose family, there are pending criminal charges for death threats and violence against me in Sri Lanka
…
35The father went on to express his confidence that the Australian authorities would return the child “as soon as possible, respecting the international conventions, without going behind false and baseless allegations made against me by my ex wife”.
36On 11 April 2011, Moncrieff J amended his order to provide that the parties had until 30 May 2011 to make arrangements with ARCS to set up the reintroduction process. The father’s evidence, which I accept, was that he tried to telephone ARCS, but was unable to make contact and had left messages. Ms Newbould acknowledged that her office is open only four days a week, and accepted the father may have left messages that had not reached her.
37On 17 April 2011, the father sent an email to the Australian Central Authority in which he described his efforts to make contact with ARCS:
Thank you for your email informing me in advance about the Easter holidays. My visit to Australia will be rescheduled accordingly.
I have tried to reach ARCS [Ms Newbould] last Thursday and Friday and left couple of voice messages. I am anxiously waiting for a feedback. Anyhow I will keep trying to contact them this week as well.
I wish to state that the welfare of my son and the least impact on him from the impending removal from his mother has been and remains the foremost priority for me. My only concern was that the negative influence that may be exerted by the mother during the period of transition may aggravate the trauma on my son and may also unduly prolong the process.
However I plan to be in Perth for the counselling sessions very soon.
38The father then sent an email to ARCS on 20 April 2011, referring to his conversation with an employee of that agency on the previous day. The father’s email noted that he had been informed that Ms Newbould would not be available until early May. The father went on to say, “I have rescheduled my visit so as to be in Australia on 5th May 2011 and plan to meet [Ms Newbould] on 6th May 2011 at 09.30am as for the appointment confirmed by you…I look forward to this meeting and to re-unite with my son very soon with ARCS’s assistance”, and he thanked ARCS for arranging the meeting.
39During their conversation, the ARCS representative informed the father that he was to be responsible for the entire cost of the reintroduction process, including preliminary meetings held with the mother alone. It is unclear on what basis he was given this advice. Unfortunately, the arrangements made with ARCS by the Australian Central Authority had not dealt with the question of costs, and the order made on 16 March 2011 also did not specify who was to be responsible. The father said in his affidavit, “having taken this position by total surprise, I informed ARCS that I would be paying for all the sessions that involved me and my son but not others”. The father had, by this time, obtained a visa and booked his ticket arriving in Perth on 5 May 2011 and departing on 25 May 2011. However, the father was then informed there was to be a further hearing on 13 June 2011.
40On 29 April 2011, the father made a complaint to the police in Sri Lanka that he had received a death threat at work the previous day. He provided the telephone number from which the threatening call had originated. He claimed that the person said, “if you come to Australia to take the child back, you will have to go back to Sri Lanka in a box”. The father acknowledged he did not know the identity of the male person who made the threat, but he asked that it be investigated. I accept the father received such a threat.
41On 4 May 2011, the father sent an email to ARCS, advising that he had decided to postpone his trip to Australia. He apologised for any inconvenience he may have caused. He explained to ARCS that, as the matter was going back to court on 13 June 2011, if he came to Australia as planned for the meeting on 5 May 2011, he would have to return home without the child, and would then have to return to Australia later. He said, “since I have limited amount of leave of absence and work obligations in my workplace I have to plan my travelling carefully”. The father’s email went on to request a further appointment with ARCS in early June 2011, “enabling me to complete the required counselling sessions and bring my child in a single trip to Australia instead of scheduling on 6th May 2011”.
42The father was then advised that ARCS had arranged sessions for him on 7, 8 and 9 June 2011, and he agreed to participate. However, on 6 May 2011, Ms Newbould wrote to the State Solicitor’s Office in these terms:
The psychological needs of the child in situations where the child has been separated from a parent and is being reintroduced to that parent are paramount. The critical factors are the attachment needs of the child and the potential impact of trauma and it’s far reaching effect on the development of the child. When a child experiences the loss/fracture of the secure relationship with the mother it will be experienced as trauma. This can be mitigated to a certain extent, if the child has developed a trusting, secure relationship with the other parent…
In this case the case the child…
• has no verbal/conscious memory of the father
•has never lived with his father so has never been in the day to day care of his father
• sees his maternal uncle as his father figure
• has no attachment relationship with the father
The father…
• never had the day to care of the child
• no relationship with the child or knowing the child
Other factors
• The child will have no ongoing contact with the mother when he returns to Sri Lanka.
• The loss and grief associated with the separation from the mother, who is the child’s primary attachment figure.
• The loss for the child of his relationship with his maternal uncle and his current support network (friends, daycare, kindergarten)
• Our lack of knowledge of who will be caring for the child on his return to Sri Lanka
…
…You would appreciate with the complexity of the case it is impossible to give a definitive time frame.
From my experience working with other cases where the work entails sessions with all parties, I estimate the work will take at a minimum 3 months - but if course is dependent on the pace of the child and the capacity of the father to develop a warm and responsive relationship with his son.
At this stage our therapeutic work has focused on assessment of the child’s attachment style to his mother and on introducing him to the knowledge of having a father and integrating this knowledge.
…
When considering implementing [the child’s] reunification with his father it is vital to be mindful of the far reaching impact the attachment rupture and trauma have on the neurological and psychological development of the child.
…
43At around this time, a new case officer was assigned to the matter in the Australian Central Authority. By an email dated 26 May 2011, the case officer advised the father:
It has become apparent that the current arrangement for a gradual reintroduction of [the father] with [the child] through the ARCS office in Perth is no longer tenable. A key reason is that there is no agreement as to who will pay for the ARCS sessions. As you would appreciate, it is unethical to allow ARCS to continue the process in the absence of guaranteed payment. Moreover, the latest information from ARCS is that the number of sessions required to successfully complete the reintroduction process is open-ended. It is likely to take at least three months to complete the process and could easily take somewhat longer. Given that [the father] needs travel from Sri Lanka to Perth to complete the reintroduction sessions, and stay in Perth for the duration of the process, the lack of certainty as to how long the reintroduction process will take is completely undesirable.
44The email advised that the Australian Central Authority had instructed the State Central Authority to seek the appointment of an Independent Children’s Lawyer, and for a stay of the order requiring ARCS to carry out the reintroduction process. The email went on:
The purpose of these amended orders, if granted by the Family Court, would be for the independent lawyer for [the child] to identify a tenable and acceptable reintroduction process. Once that has been done the reintroduction process can commence.
45The email acknowledged the father’s intention to come to Perth on 13 June 2011, but strongly recommended he defer travel until amended orders had been obtained and a “clear reintroduction process has been organised”. The email concluded:
I sincerely regret the inconvenience that this must cause…Please be assured that this step is not lightly taken, and is taken because it appears that the existing court order involving ARCS is unworkable.
46The father responded by email dated 30 May 2011, in which he said:
I really appreciate your understanding of the difficulties I am facing. I confirm I will defer my travel plans and look forward to hear from you once the case has been taken up in the Family court.
Please let me know any further information required from my end in order to proceed. I know you will appreciate my anxiety due to the delay.
Once again Thanks a lot.
47The mother says her response to the change of approach by the Australian Central Authority “was that we should continue the ARCs process. As difficult as the sessions were, I at least could see that the people at ARCS were very sensitive to [the child’s] needs”.
48By this time, the mother had attended counselling sessions at ARCS on 22 March, 6 April and 14 April 2011. The mother and the child had also attended an “attachment assessment” session on 29 March 2011, and the mother and the child then attended six more sessions in April and May 2011, with the last occurring on 26 May 2011, the day the new case officer wrote the email mentioned above. The mother was found by ARCS to have been “fully engaged in the therapy and…committed to helping her son understand that he had a father and also that his father wished to be in his life and to see him”. The mother’s motives for this new approach were not explored at the hearing. Nor was I informed of the date when she first learned she still had one chance of having the order discharged.
49On 10 June 2011, Ms Newbould wrote to the State Solicitor’s Office in these terms:
ARCS agreed to enter into the therapeutic transition process of preparing [the child]…for his return to his father…in Sri Lanka as per the court orders. We agreed to this in good faith and with the belief that the needs and best interests of the child would be the overriding principle in the decision making process.
The first step in preparing [the child] for reunification is the establishment of the therapeutic relationship with him. This relationship allows the child to explore the full range of their emotional response within the safety of a secure, trusting and responsive relationship. This cannot be achieved without certainty and continuity.
To achieve a good outcome for the child in the reunification his psychological needs for safety, trust, continuity and attunement must be met.
[The child] has engaged in the work of developing an understanding that he does have a father and that his father wants to see him. He has formed a trusting relationship with the therapist and is sharing and exploring his feelings.
His mother has made the commitment of bringing [the child] to his sessions regularly and has cooperated with our suggestions of how best to assist [the child] in the transition.
…
Given the importance to the child of having the time to prepare psychologically for meeting his father, leaving his mother, and living with his father in an unfamiliar country it does not make sense to suspend this preparation mid-stream. It is only taking away time from [the child’s] preparation for this very complex life event and negating the work he has already achieved.
Ethically I feel compromised by the suspension of our work with the child. The focus of our sessions with the child has been developing his knowing of trust, safety and continuity of relationship. This suspension without warning or preparation fractures [the child’s] relationship with us and is potentially a mirror of what awaits [the child] in a rushed separation from his mother and reunification with his father.
The reunion with his father will turn this child’s life upside down, nothing with be familiar or feel safe thus it is of the utmost importance to do the most we can to minimise future damage to the child.
50I am unaware whether this letter was drawn to the attention of Moncrieff J on 13 June 2011. In any event, his Honour made an order suspending the operation of the orders of 16 March 2011 concerning the involvement of ARCS. The mother claims that the Australian Central Authority “insisted that the ARCS process be terminated”, notwithstanding her lawyer having informed the Court she was prepared to meet the costs of the process.
51At the same time he suspended the ARCS process, Moncrieff J ordered the appointment of an Independent Children’s Lawyer. There was some delay before Legal Aid agreed to fund the appointment. A hearing on 25 July 2011 had to be postponed to 26 August 2011, by which time funding had been approved. On 26 August 2011 an order was made dealing with an issue concerning the child’s education in Sri Lanka, the detail of which is not important. The proceedings were further adjourned to 16 September 2011.
52In the meantime, on 6 July 2011, the father had sent an email to the Australian Central Authority in which, inter alia, he said:
First of all let me thank you for the due consideration you have given to the state of affairs of my son and my concerns regarding this matter. I am comforted by the fact that the new initiates [sic] you have introduced are more sensible and practical in its approach which will safe guard the interests of my child while being fair in its dealings towards both the parents. Therefore I wish reinstate some concerns I have mentioned previously which were never addressed and request you to expedite the return of my son to Sri Lanka to ensure his placement in a well establish school.
53The email then went on to repeat the father’s concerns about what may happen to the child if left in the care of the mother pending the completion of the reintroduction process. Amongst other things, the father said:
Since I have been privy to the acts of depressive behavior displayed by my ex-wife I have a deep rooted fear that, rather than releasing my son from her custody she would harm him. Her disrespect for legal and ethical standards and dislike for compromise and the strength to act criminally regardless of the outcome was displayed in the abduction of my son which supports my concerns. I am convinced that such a horrible outcome is very much a possibility unless the child is removed before she expects it.
54The father went on to express concern about the ongoing delay in implementation of the return order. He said that having the child being looked after by someone other than the mother would permit him to have some interaction with the child by telephone or Skype, so as to:
…ensure that he has heard his father’s voice and seen his image before the initial meeting. This will enable him re-accept and get to feel the fatherly love and affection more strongly at the reintroductions. His father’s love was something he enjoyed prior to the abduction but now might be forgotten. The abduction severely deprived him of a close bond that was formed despite my ex-wife attempts to alienate him from me since his birth.
55The father’s email then referred in detail to his plans for enrolling the child in the Royal College in Colombo.
56The father sent a further email to the Australian Central Authority on 3 August 2011 in which he said (in response to correspondence that was not in evidence before me):
Thank you for the correspondence and immediate action. However in order to consider the costs for Mrs. Doubtfire’s services and see whether I can afford I would be grateful if you can give me an indication of the approximate cost for the reintroduction process. Also would appreciate if the process of reintroduction and the relevant costs involved with it can also be made known to me. Unfortunately I cannot figure out the costs involved using their cost chart as I am not sure what is going to happen during the reintroduction sessions.
Herein I must say that owing to costs involved and the absence of leave permitted by my employer, I can afford to be in Australia for 3 weeks but fly in only once. Also if counselling is needed in Australia can it take place before reintroduction and whether I need to be present for it? If so can the counselling, which needs my presence, be arranged in parallel with Mrs. Doubtfire’s services?
57The father sent yet another email to the Australian Central Authority on 15 August 2011 in which he said (emphasis and errors in the original):
In reply to your email dated 23 July 2011, I wish to raise the following concerns which have arisen recently.
1. Regarding payment for Ms Doubtfires services. - I am unable to cover any costs in Australia other than my travelling costs to pick up my child. I have also met well known Consultant child psychiatrists in Sri Lanka (Dr. Mrs [A]- consultant psychiatrist and Dr Mrs [W] consultant pediatric psychiatrist) to ensure that my son is given proper counselling and attention to recover from the abduction on his return back to his native country. As it is, ACA should appreciate I will be bearing the costs for my stay, travelling and other incidental costs for self despite being one of the victims due to negligent acts of the officials of the Australian government serving at the Embassy in Sri Lanka. I am paid in Sri Lankan rupees and though I am well to do in my motherland its not possible for me to spend the money I wish to save for my sons future education and well being.
2. Pickup and counselling services in Perth - I have raised this matter before hand but unfortunately this issue was never addressed properly. My ex-wife's family has assaulted me while I was married to her in Sri Lanka and was hospitalised, where there are police/medical records to prove it. Also on several occasions they have threatened to harm my life. Recently I was informed that my ex wife’s brother [Mr Soysa], the assailant is now living in perth with his sister. I receive many threatening telephone calls to give up the idea of bringing back my child to Sri Lanka. They have indicated that I will not live to collect my child in Perth as they have ways to ensure that I will meet my end before I bring my son back. I am confident about protecting myself and my son in Sri Lanka or in cities like Melbourne, Sydney, Canberrah, brisbane where I have friends and extended family who will protect and support me. However I am having deep concerns about visiting Perth where I have no friends or family. Due to these issues I request protection for my self and my son in Perth or to arrange the handover and counselling in any other city than Perth.
3. Duration of stay in Australia. I can be absent from my employer only for 3 weeks. Also I can make only a single visit to Australia due to the costs and limited leave of absence from my employer. If longer time needed for re-introduction it will have to be done in Sri Lanka where there are many capable institutions available. My ex-wife should try and travel to sri Lanka to continue on the reintroduction process. Her parents and many other relatives are still living in Sri Lanka where she does not have to bear cost like me for lodging and counselling.
4. Request for a reply to the issues addressed on my email dated 06/07/2011 – I have raised my concerns regarding my sons future and safety on many occasions and have still not received the view of australian courts or any authorities. Would appreciate if you can bring the matter up at the next hearing and let me know the standpoint of the Western Australian family Courts.
58The Australian Central Authority sent an email to the father on 30 August 2011 informing him of developments. The email said in part:
The matter was heard on mention on Friday, 26 August 2011 and was adjourned for three weeks to 16 September 2011. During this time, the Independent Children’s Lawyer…will prepare an assessment of [the child] in relation to attachment issues, with a view to requesting a contact order between [the father] and [the child] via Skype. Utilising Skype would be intended to be in lieu of a Perth-based introduction service such as Mrs Doubtfire. Our counsel (Ms Thatcher) indicated to the court that Skype is a sound suggestion but reminded the court that this matter is in the context that an order for [the child’s] return to Sri Lanka has already been made.
59The letter concluded by reference to plans by the Independent Children’s Lawyer to contact the Royal College in Colombo to discuss options for the child to take part in the required interview for enrolment in the school.
60When the matter came before Moncrieff J on 16 September 2011, the parties were given liberty to file a Minute of Consent Orders for the appointment of a Single Expert, and the proceedings were adjourned for monitoring on 7 November 2011.
61On 7 November 2011, orders were made for the appointment of Dr Watts as the Single Expert and the proceedings were adjourned to 6 December 2011. Dr Watts provided his first report on 29 November 2011, and a supplementary report on 13 February 2012.
The application for discharge of the return order
62On 18 November 2011, the mother filed an application pursuant to reg 19A for the discharge of the orders made on 16 March 2011. The application did not state the grounds relied upon (surprisingly, the prescribed form does not require this). There was reference in submissions to an amended application filed on 11 January 2012, but I was unable to locate such a document. In any event, the mother did file a further affidavit on 11 January 2012 which made clear the basis upon which she was seeking the discharge of the order.
63On 6 December 2011, Moncrieff J disqualified himself from hearing the reg 19A application. The date then allocated for hearing before another judge proved unsuitable. The matter was then listed for trial before me on 22 February 2011. Notwithstanding my prior involvement as a member of the Full Court which dismissed the mother’s appeal, no objection was taken, it being acknowledged that this application deals with an entirely different issue.
64Although listed for a one day hearing, the trial had to be completed over three (part) days in February 2012. The mother and father were cross-examined (the father by video and telephone). Dr Watts and Ms Newbould were also cross-examined. I also had the benefit of submissions from Mr Nicholls QC for the mother, Ms Thatcher for the State Central Authority and Ms Hossen for the Independent Children’s Lawyer.
The relevant legislative instruments
65Australia and Sri Lanka are signatories to the Convention on the Civil Aspects of International Child Abduction (“the Convention”). The Convention provides a framework for dealing with applications made by, or on behalf of, a parent for the return of a child who has been wrongfully removed from a country in which the child had been habitually resident. The aim of the Convention is to ensure, subject to certain exceptions, that the resolution of disputes concerning a child takes place in the country from which the child was removed.
66The preamble to the Convention is expressed in the following terms (emphasis added):
The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions…
67The objects of the Convention are stated in Article 1 as follows:
a)to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
68Australia has given effect to its obligations under the Convention by the insertion of s 111B in the Family Law Act1975 (Cth) (“the Act”) and by the promulgation of the Regulations. Section 111B(1) relevantly provides (emphasis added):
The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction…
69The English text of the Convention appears as a schedule to the Regulations. Regulation 1A refers to the Convention as a whole, and to the Preamble and Article 1 in particular. Importantly, reg 1A(2) provides as follows:
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.
70Regulation 19A, the provision now relied upon by the mother, was inserted into the Regulations in its present form in 2007 (replacing a version introduced in 2004). It provides a useful mechanism for the discharge of a return order by means other than appeal. The Independent Children’s Lawyer correctly observed that reg 19A is “specific to the Australian situation and does not arise directly from the words of the Convention itself”. The regulation relevantly provides (emphasis added):
(1)If a court makes a return order, the responsible Central Authority… or a respondent to the proceeding may apply to the court…for the discharge of the order.
(2)The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:
(a)all the parties consent to the return order being discharged; or
(b)since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or
(c)exceptional circumstances exist that justify the return order being discharged; or
(d)the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.
71Although I doubt reg 19A requires elucidation by reference to extraneous material, the Explanatory Statement that accompanied the 2004 amendments to the Regulations indicated it was designed to have “limited operation”. The 2007 formulation of reg 19A was similar to the 2004 iteration, save that the existence of only one of the criteria was henceforth required to enliven the discretion to discharge a return order, whereas previously all criteria had to be satisfied. The 2007 version also reduced the time specified in reg 19A(2)(d) from two years to one. The Explanatory Statement said this was done because “the two year time-frame has proved ineffective in practice, being too long a period before the court can consider discharging the order, and must be seen in light of the object of the Convention, namely a ‘prompt return’”.
72Regulation 16 also has potential significance. It relevantly provides:
(1)If:
(a) an application for a return order for a child is made; and
(b)the application…is filed within one year after the child’s removal or retention; and
(c) the responsible Central Authority…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.
…
(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 subregulation (1) or (2) if a person opposing return establishes that:
(a) … ; 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
…
(4) …
(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.
73There are a number of regulations evincing a clear policy that applications for return orders should be dealt with expeditiously. Regulation 5(3) provides that “the Commonwealth Central Authority must perform its functions and exercise its powers as quickly as a proper consideration of each matter relating to the performance of a function or the exercise of a power allows”. To like effect, reg 15(2) provides that “a court must, so far as practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows”. Regulation 15(4) provides that if an application for a return order is not determined by a court within 42 days after the date of filing, the applicant may ask the Registrar of the court to state in writing the reasons for the application not having been determined within that period, and the Registrar must then furnish the reasons as soon as practicable.
The relevance of the child’s best interests
74Although in proceedings under Part VII of the Act, the best interests of the child are the paramount consideration, this is not the position under the Convention, nor the Regulations which give effect to it: see De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 at 658 (“De L”).
75The Convention and the Regulations place emphasis on the best interests of children generally, expressly recognising that it is desirable to protect all children from “the harmful effects of their wrongful removal or retention”. As Waite J said in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 at 220 (“W v W”), “it is implicit in the whole operation of the Convention that the objective of stability for the mass of children may have to be achieved at the price of tears in some individual cases”.
76Linda Silberman discussed the policy underpinning the Convention in her article, ‘Hague Convention on International Child Abduction: A Brief Overview and Case Law Analysis’ (1994) 28 Family Law Quarterly 9. Professor Silberman, a leading commentator on the Convention, said at 32, 33:
Certainly it is hard to quarrel with rhetoric about the child’s best interests [but] attempts to frustrate return under the guise of best interests, if allowed to succeed, could undermine the Convention and transform its procedural framework into one of substance. Indeed, the Convention presumptively declares that the best interests of the child are in fact served by preventing abductions and ordering the return of the child…
In addition, attempts to serve the best interests of children by conducting extensive hearings on the “psychological harm” or “intolerable situation” defence lengthen the proceedings and undercut the expeditious procedure envisioned by the Convention. It is important to short-circuit such attempts.
77To give effect to this policy, the Convention assumes that a court of a signatory country will exercise self-denial by not following “its natural inclination to make its own assessment about the interests of children who are currently in its jurisdiction by investigating the facts of each individual case”: see Eekelaar, J. ‘International Child Abduction by Parents’, (1982) 32 University of Toronto Law Journal 281 at 305, cited with approval in De L at 649.
78However, as Emily Keris explained in ‘The interests of children or the interests of the child? Discretionary non-return of a child under Art 13 of the Hague Convention on the Civil Aspects of International Child Abduction’ (2007) 12(2) Australian Journal of Human Rights 139 at 142, the interests of the individual child are not ignored. She went on to say:
The best interests of a child are to be determined in a court in the child’s state of habitual residence upon return…Further, the Convention envisages circumstances in which it is not in the individual child’s best interests to be returned to the requesting state…Exceptions provide for instances in which the ‘specific welfare of the child is allowed to prevail over any generalised principle that a child should be returned’ (per Butler-Sloss LJ in Re M (Abduction: Leave to Appeal) [1999] 2 FLR 550 at 552). Importantly, none of the exceptions permit an overall analysis of the child’s interests but necessitate the fulfilment of specified criteria in order to prevent assessment of the merits of the case…The obligation to return children is best understood by reference to the exceptions which define its extent…
79The same points were made by the Supreme Court of the United Kingdom in In Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 at 154 [13] (“Re E”). The necessity of honouring the “exceptions” in the Convention was also stressed by Carol S Bruch in ‘The Unmet Needs of Domestic Violence Victims and Their Children in Hague Child Abduction Convention Cases’, (2004) 38 Family Law Quarterly 529, where she said (at 530):
…although the basic scheme of the Convention leaves the hearing on an individual child’s best interests to the courts of the habitual residence, its exceptions are intended as a deviation from this norm. Each defense to return…addresses a concrete factual situation in which an individual child’s best interests are, indeed, meant to control the outcome of the Hague proceeding.
80Professor Bruch therefore warned (at 535) against legitimate concerns about the exceptions being permitted to “swallow the return rule” developing further into “an improper disregard for the Convention’s intended protections against danger”.
81Consistent with that approach, the High Court of Australia and the United Kingdom Supreme Court have found that courts should not give a “strict or narrow reading” to the “exceptions” contained in reg 16: see De L at 654, DP v Commonwealth Central Authority (2001) 206 CLR 401 at 418 [44] (“DP”) and Re E at 154 [13]. Accordingly, I accept that a strict or narrow reading should not be given to the words “impracticable” and “exceptional circumstances” in reg 19A. Put another way, adopting Gleeson CJ’s expression in DP at 407 [9], it would be inappropriate to give a “grudging” interpretation to the regulation.
82The words of the regulation should therefore be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”: Vienna Convention on the Law of Treaties, art 31. The latter requirement accords with the injunction contained in reg 1A(2) to construe the Regulations “having regard to the principles and objects…of the Convention”.
83The Regulations have been drawn (and amended) with careful attention to the difference between the permissive, “may”, and the mandatory, “must” – as can be seen from the Explanatory Statement to the Family Law Amendment Regulations 2004 (Cth). Therefore, the deliberate use of “may”, where it appears in reg 19A, clearly reposes a discretion in the court to leave the return order in place even if one of the designated criteria is met. Of course, it would seem implausible that a court would decline to discharge a return order if it found it was “impracticable” for it to be carried out. However, it is easier to envisage situations in which the order would not be discharged even if “exceptional circumstances” were found to exist.
84Regulation 19A provides no guidance as to the matters to be taken into account in the exercise of the discretion to order the child’s return, should the discretion arise. However, it is clear that the child’s best interests would be a matter properly taken into account for the same reason the High Court determined in De L (at 660) that such interests should be taken into account if one of the reg 16(3) “exceptions” is established. The discretion is otherwise “unconfined except in so far as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous”: De L at 661.
85It was submitted on behalf of the mother in the present matter that “[the child’s] interests are to be taken into account both in determining whether ‘exceptional circumstances’ exist for the purposes of reg 19A and when exercising the discretion conferred by reg 19A”. It was argued that, in some cases, the “utilitarian approach” ordinarily taken under the Convention “fails to meet the essential objective of the Convention, which is to protect children from the harmful effects of abduction”. It was further submitted that “it is not the purpose of the Convention to do more harm than good”.
86Although, for reasons that will emerge, it makes no difference to the outcome, I am not persuaded that the best interests of the child should be taken into account in determining whether it is “impracticable” for an order to be carried out, or in finding whether “exceptional circumstances” exist. These words impose an objective test. It is either practicable for the order to be carried out or it is not. Similarly, it is only by comparison with other cases that a court could determine if the circumstances of a particular case are “exceptional”.
87Of course, in determining whether it is “impracticable” for the order to be carried out and/or whether the circumstances are “exceptional”, it could not be overlooked that at the centre of the enquiry there is a child, not a sack of potatoes. Thus, the strength with which an older child might resist being put on a plane may be such that it is “impracticable” for the order to be carried out. The order might therefore be discharged, not because forcing the child onto a plane would be contrary to his best interests, but simply because it could not physically be done and/or the airline may refuse to accept him: see In Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277 at 80,710 (“Re F”) and Re M (A minor)(Child Abduction) [1994] 1 FLR 390. Similarly, the circumstances may be found to be “exceptional” because the child’s reaction to being ordered to return home proved to be far more disturbing than would have been anticipated. The order in such a case may be discharged, not because it would protect the child’s best interests, but because the circumstances were “exceptional”.
88Adopting any other approach would be inconsistent with the objective of the Convention, which is aimed at limiting “best interests” litigation in any country other than that of the child’s former habitual residence. While the Regulations do contemplate some “best interests” disputes, the scheme of the Regulations suggests these should generally be dealt with at the same time as the court is determining whether there is a foundation for the return order. In any event, a “best interests” exception should not be allowed to creep in the backdoor after the return order has been made and confirmed on appeal. To adopt a construction of the Regulations that would not only allow, but encourage, such an approach would further impact on the ability of our courts to secure the prompt return of children.
89It follows from what I have said that I take a slightly different approach to that which the mother’s counsel suggested had been adopted by Dawe J in her admirable ex tempore judgment in State Central Authority v Ustinov (No. 4) [2008] FamCA 987(“Ustinov”), which is one of the few cases determined under reg 19A.
90Nevertheless, I agree that once the discretion is enlivened by a finding of “impracticability” or “exceptional circumstances”, the child’s best interests are a factor to be taken into account. But the best interests of the individual child will not be the only factor. The policy imperatives underpinning the Convention also need to be weighed, for fear of the effect the decision might have on the lives of many other children whose parents may be contemplating an abduction: see In re M (Abduction: Rights of Custody) [2008] 1 AC 1288 at 1307 [42] – [44] (“In re M”).
91In my view, nothing I have said about the relevance of the child’s best interests conflicts with what was said by the majority of the High Court of Australia in MW v Director General, Department of Community Services (2008) 82 ALJR 629 at 642 [62] (“MW”), where their Honours referred with approval to a remark made in the House of Lords in Re M at 1310 [54], that “children should not be made to suffer for the sake of general deterrence of the evil of child abduction world wide”. The majority in MW were careful to preface their comment by noting that the remark made in the House of Lords was made “in the circumstances of the case before it”. Regrettably, individual children all around the world have had “to suffer for the sake of general deterrence” since the advent of the Convention. But this is because, after protracted deliberation, an international consensus was reached that this was the lesser of two evils.
The mother’s instructions to her lawyers
92The mother waived legal professional privilege in relation to the proceedings before Moncrieff J. Documents to which only she and her legal representatives would normally be privy were therefore in evidence before me. They cast much light on the matter.
93The mother was originally represented by Legal Aid WA. Her then lawyer delivered a memorandum to Mr Mather of counsel, dated 14 May 2010. Mr Mather was requested to give advice, inter alia, as to the merits of an argument that the child’s return to Sri Lanka would give rise to a grave risk of physical or psychological harm, thereby enlivening the discretion not to make an order for the child’s return.
94The memorandum set out what were said to be the mother’s instructions. The most relevant parts were as follows:
5.The mother describes a relationship characterised by physical and verbal domestic violence perpetrated by the father.
6.Following separation there has been no incidents of physical violence, however, the mother has received abusive phone calls from the father during which he has made threats to kill her in order to get custody of the child.
…
10.The mother was granted interim custody of the child and the court made orders that the father spend three hours of unsupervised time per week with the child progressing to one full day of unsupervised time per week in the months prior to the mother and child relocating to Western Australia. Handover occurred without incident, however, it was supervised by a third party.
11.…The mother instructs that the chief motivating factor in leaving Sri Lanka was the strong likelihood that the father would get increased time and/or custody of the child.
…
18.On 17 December 2009 a Judge of the District Court of Colombo made an “order absolute” that the father have the legal and physical custody of the child. This order followed an ex parte trial of the family law matter on 10 September 2009.
19.The order absolute remains in force as of today, however, the mother intends on instructing a Sri Lankan solicitor to make an application to have the orders overturned. I am unaware of the merits of this application and the time it will take.
…
23I asked the mother about how the child presented at commencement and conclusion handover [sic] with the father. The mother instructs that the child was tired at conclusion handover [sic], but otherwise was not distressed at either commencement or conclusion of time spent with the father.
…
95Mr Mather provided a letter of advice on 24 May 2010 in which he concluded that, on the material available, “the jurisdictional and technical aspects of an application under the regulations are satisfied”, that the father was exercising “rights of custody” and that the child’s removal from Sri Lanka was “wrongful”. (Although Moncrieff J and the Full Court were, of course, unaware of this opinion, they reached the same conclusion).
96Mr Mather’s opinion went on to note that the court would be obliged to order the return of the child unless one of the reg 16(3) “exceptions” applied. Mr Mather considered that the only potentially available ground was the “grave risk of harm” provision. In discussing that ground, Mr Mather repeated the mother’s instructions as conveyed to him by her solicitor. Amongst the instructions he recorded were these:
•The mother describes a relationship characterised by physical and verbal violence perpetrated by the father;
•The mother instructs that the chief motivating factor in leaving Sri Lanka was the strong likelihood that the father would get increased time and/or custody of the child;
•The mother instructs that the child was tired at conclusion handover, but otherwise was not distressed at either commencement or conclusion of time spent with the father;
97The first dot point reveals a fabrication, since, as the mother now admits, there was never any physical violence. (Ms Newbould was misled in the same way, as she said the mother had told her that she had experienced “quite a lot of violence”).
98Although not denying she gave instructions in terms of the first dot point, the mother denied giving instructions in terms of the second and third dot points. Clearly those instructions are inconsistent with the position she now adopts, namely that the chief motivating factor in leaving Sri Lanka was fear for her safety and a desire to shield the child from distress.
99On 23 February 2012, the mother’s former Legal Aid solicitor wrote to the mother’s present solicitor, enclosing copies of privileged documents that were required to be disclosed. In the covering letter, the solicitor said:
In respect of...the Briefing Minute, I confirm that [the mother] instructed that her motivation for leaving Sri Lanka with the child was her concern that if the matter went to trial in Sri Lanka the father would get “custody” of the child. [The mother] instructed that the “father has $ - is able to bribe people”.
100Although I was informed the mother’s former solicitor was in court during part of the trial, he was not called to give evidence. I was not persuaded by the mother’s denials in her oral evidence (internally conflicting as they were) that the briefing memorandum, read together with the letter of 23 February 2012, contained anything other than a fair representation of her instructions.
101I also record that Mr Mather advised the mother, as long ago as May 2010, that on the information supplied, there was:
…no proper evidence that the child’s return to Sri Lanka would cause the child grave psychological harm (or other harm) sufficient to make out a ground in the sub-regulation. There would no doubt be concerns about the effects on the child of being transferred from his mother’s care to his father’s custody pursuant to the orders made in Sri Lanka on 17 December 2009 but that is an issue to be sorted out in the Sri Lankan court. The client may wish to seek interim orders of the sort which applied before the child’s removal, and permission to relocate to Australia with the child on the basis of arrangements which would allow the father regular contact with the child. However the proper forum for these issues would be in Sri Lanka…
102Mr Mather said his views had not changed after receiving a fax from the mother, “enclosing information from her brother in Sri Lanka consequent upon his consultation with a President’s Counsel there”. The advice conveyed by the mother’s brother is set out in full below (errors in the original, emphasis added):
We went to meet [Mr S]. His viewpoint is that you need a strong lawyer in Oz to fight the case. The role that the lawyers back in SL can play is a supportive role to that of your lawyers. If your lawyers indicate that a revision or stay of the custody order will help, the lawyers in SL can get it done. Even in Sri Lanka there is an act, where the interests of the child are considered paramount, when hague cases come up for hearing. In the words of [Mr S], the child is not a ‘sack of potatoes’. They have successfully fought such cases in SL and SL law does not attach that much importance to the Hague convention. The lawyers should get reports to show that the child is well settled in oz and that a child of 2.5 years, when he was removed from SL had no notion of habitual residence. But now he is in his formative years and strongly identifies with the australian way of life, even speaking english, his first language since he does not speak sinhala, he also has an australian accent. These things can easily be proved. [Mr N] will provide me with additional tips (that includes legal jargon) that [Mr S] provided so that you can take them up with Andrew or whoever you choose as your lawyer.
103Mr Mather did not represent the mother before Moncrieff J, or on the appeal. She was instead represented by Mr Nicholls QC, who also appeared before me. The mother said that Mr Nicholls agreed with Mr Mather’s opinion, save he had “some doubt” concerning the father’s “rights of custody”. The mother said that, “despite the realistic assessment of my chances of defending the Hague Application given…by my lawyers”, she had not disclosed her intention not to return to Sri Lanka for a number of reasons, including:
(a) In my heart of hearts I hoped against hope that the Court would allow [the child] to stay with me in Western Australia. I just couldn’t bring myself to contemplate ever having to return [the child] to Sri Lanka;
(b) The circumstances leading up to me leaving Sri Lanka, particularly the death threats and the harassment of my family put me in a very bad place emotionally and I was not thinking very clearly;
(c) I was afraid I may face criminal charges if I returned to Sri Lanka arising from my forging of a death certificate for the Father and I couldn’t face the thought of me being in prison and the Father having [the child] in his care.
104The mother also sought to explain her failure to mention her intentions to her legal representatives by saying that “the legal process went very quickly and I lost perspective”. In support of this claim, she said her application for Legal Aid had been refused as a result of Mr Mather’s adverse opinion. She said she was “desperate to defend the application” and had contacted Mr Nicholls. The matter was then listed for trial and she was “so busy getting documents ready for the hearing that all I could focus on was the ‘rights of custody’ issue”.
Credibility
105The dangers in assessing the credibility of a witness by reference to their demeanour are well known: see Fox v Percy (2003) 214 CLR 118 at 129 [31]. Particular care should be taken when assessing evidence given by someone from another culture: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(in liq) (1999) 160 ALR 588 at 619 [88]. Accepting these caveats, I nevertheless found the mother’s demeanour to be strangely incongruent with her expressed grave fears of returning to Sri Lanka. Similarly, her evidence concerning her intention to stay in Australia was given without apparent conviction.
205The many reasons for the delay in resolution of defended applications under the Regulations are not material, since the question is whether the delay here should lead to, or contribute to, a finding of “exceptional circumstances”. It must be remembered that the “exceptional circumstances” provision is an Australian phenomenon. It does not arise from the text of the Convention. The regulation therefore stands to be considered in the Australian context, knowing that we have a reputation for taking a long time to deal with defended applications, especially those that end up in the appellate arena. (In Australia, appeals against all orders relating to children can be made without leave. Excluding the Chief Justice and the Deputy Chief Justice, the intermediate court of appeal has just six judges to serve 22 million citizens).
206The Convention itself recognises that a delayed return of children may not be in their best interests when they have become settled in a new environment. But the manner in which the signatory parties agreed to give voice to that understanding was by prescribing that an order for return to the country of habitual residence was not mandatory in cases where the application for return was made more than a year after the removal. The fact the Convention expressly contemplates mandatory return in cases where the application is filed as long as a year after removal (and discretion to order return in cases filed more than a year after removal) indicates that “prompt” has a somewhat elastic meaning in the Convention.
207It is important also to recognise that the Convention and the Regulations focus on the date of filing of the application, not the date on which the matter is finally heard and determined. To have done otherwise would not only have failed to recognise the differing capacities of contracting States to deal with applications promptly, but would also have provided an even stronger incentive to absconding parents to seek to slow down the process.
208It is therefore noteworthy that when reg 19A was inserted in its present form, it provided that one of the grounds for seeking the discharge of a return order was that more than one year had elapsed from the making of the order or since the determination of an appeal. Even then, reg 19A does not require the order to be discharged – it merely gives the court discretion to discharge the order. It will therefore be seen that where no “defence” has been made out, the Regulations themselves contemplate mandatory return of children who have been away from their country of origin for a minimum of two years (i.e. the one year referred to in reg 16(1)(b) and the one year referred to in reg 19A(2)(d)). I say a “minimum” of two years because these two time periods do not take account of the time in which the application and any ensuing appeal(s) are heard and determined.
209Although the child has been in Australia for a long time, I am not persuaded that this, even considered with the other facts, is “exceptional”, albeit I accept the delay is unusual. It is worth noting, however, that such delays would very likely cease to be unusual if a practice developed of absconders being allowed to “save up” their real defence until after they have taken a practice run through the Australian court hierarchy.
The discretion (had it been open to be exercised)
210It is important I indicate how I would have exercised my discretion to discharge the order if it was determined I was wrong in finding there were no exceptional circumstances.
211First, I would have considered the child’s best interests. Although there is an assumption implicit in the mother’s case that he has settled in well in Australia, there was not, in fact, a great deal of evidence on that topic. He has recently started school. He speaks English. He lives with his mother and spends time being cared for by his grandmother, and he also spends some time in day-care. I accept Dr Watts’ evidence that he is “very secure” with the mother and they have a “solid relationship”. I also accept his other main attachments are to his maternal grandmother and uncle. There was no evidence of any other close or important connections in Perth.
212The child’s uncle is in Perth at present, but did not take any part in the proceedings, even as an observer in court. I am unaware of his residence status, save that the mother said in her affidavit that he was “in Western Australia” and that to the best of her knowledge he “will not return to Sri Lanka to live for any significant period of time”. She said the same about her mother in her affidavit, but I learned at the trial that her mother was only here on a visitor’s visa. When I suggested that the grandmother could be a support to the child in Sri Lanka, the mother advised that the grandmother hopes to return to Australia permanently after her visa expires. The grandmother’s roots in Australia, and those of the (unmarried) maternal uncle, cannot be very deep since they have arrived here only fairly recently. I am not persuaded they have to remain in Australia.
213If the child remains in Australia, he will be denied the regular company of the rest of his extended family on his mother’s side. More significantly, he will be denied the company of his father and all of his father’s family. It is important in this regard to note that the child does not have a negative picture of his father. It was suggested this was to the mother’s credit. I disagree. She gave the child no notion he had a father at all, allowing her brother to assume the role of father figure.
214The mother made no complaint about her life in Sri Lanka, save for her alleged fears of the father and his family. On the contrary, she said she had left behind a “very comfortable life”. While the move back to Sri Lanka would be a major change for the child, he is a young boy who I consider would be likely to adjust, and would then have the benefit of his whole family being closer to hand – assuming the mother accompanies him, which I have found she can safely do if she wishes. Although it could be predicted the mother and father would not enjoy a cooperative parenting arrangement in Sri Lanka, the child would be able to safely move between the parents, as it is clear the local family law system provides for supervision of contact and handovers to shield the child from direct exposure to conflict.
215I would next have taken into account the comparative suitability of Australia and Sri Lanka as the forum to determine the child’s future in proceedings between the parents: see HZ v State Central Authority (2006) FLC 93-264. This factor overall would favour Sri Lanka. It is highly improbable the father would be able to litigate at all in Australia, given the financial and logistical difficulties that would stand in his way. The mother has accommodation, relatives and legal advisors in Sri Lanka, all of which would help her to conduct proceedings in that country. Her own legal advice indicates that a punitive approach would not be taken by the courts of Sri Lanka merely because of her having fled the country during the earlier proceedings. There is also a good deal of evidence in Sri Lanka that would be of relevance concerning important contested matters of fact (medical records, police reports, court records and the supervisors who observed the child and the parents when the child was spending time with the father). This is not to say that there is not evidence in Australia that would be of importance, especially concerning the child’s current circumstances. However, that evidence is less likely to be contentious than the factual matters relating to events that occurred in Sri Lanka in the first years of the child’s life.
216I accept that the evidence given earlier in the proceedings about the “preferential rights of custody” afforded to fathers under Roman Dutch Law (as applied in Sri Lanka) would concern many, including me. However, the evidence made clear that such preferential treatment gives way to the best interests of the child. The advice of President’s Counsel, provided to the mother, gives further reason to expect that the best interests of the child would be given proper weight in Sri Lanka. See also the remarks made by Professor Pérez-Vera in her Explanatory Report on the Convention (paragraphs 21 and 22) concerning the dangers of each signatory State imposing their own “subjective value judgments upon the national community from which the child has recently been snatched”.
217A further matter to be taken into account is the likely outcome (in whichever forum) of the substantive proceedings (see W v W at 219). If it was likely, or inevitable, that the courts of Sri Lanka would allow the mother to relocate to Australia with the child, then there would be little point sending the child back to that country. No submissions were made on this topic, but there is no evidence to suggest this is a likely outcome. Similarly, if it were to be likely that the Sri Lankan court would refuse to entertain an application by the mother for the child to continue living with her, that would also be a factor to consider. However, the advice of President’s Counsel would not suggest this is the case, and the mother told her lawyer in Australia she intended to apply to set aside the order. The onus would be on the mother to establish that she is barred from seeking to set aside a custody order made in her absence.
218Given the child-focussed way in which the District Court of Colombo was dealing with the matter prior to the child’s removal, it is difficult to envisage that the courts would not deal with any application that came before it now on the basis of recognising the child’s primary attachment is to his mother and his father is a virtual stranger. Provided the court was satisfied that the mother would not again decamp with the child, it would be reasonable to expect that any transition of the child into the father’s care would be undertaken with sensitivity and on the basis of the mother continuing to have liberal access to the child.
219No submissions were made about the likely outcome of proceedings in Australia under the provisions of Part VII of the Act, assuming the return order was set aside. All that can safely be said is that in such proceedings the interests of the child would be the paramount consideration, and that Australian domestic law places considerable importance on a child having a “meaningful relationship” with both parents, unless this is not in accordance with the child’s best interests. The child is never going to have a meaningful relationship with his father if his parents continue to live in different countries. In fact, it is likely he will have no relationship with his father. On the little evidence currently available, such an outcome would not seem to be in his best interests. However, the outcome of proceedings under Australian domestic law is unlikely ever to be known, as the father would be unable to sustain the litigation. Even if he could, such proceedings would take a very long time to be concluded.
220The next matter I would have taken into account is the reason for the delay that has led to the lost opportunity for a “prompt” return. Although I respectfully accept the logic of Baroness Hale’s remark in Re M at 1307 [44] that “the further away the case was from the speedy return envisaged by the Convention the less weight the general Convention considerations must be”, I nevertheless respectfully consider it is relevant to take some account of who it was that caused the delay. Thus, in Re M it was the left-behind father who had contributed to the delay by not activating the Convention process until a year after he ascertained the whereabouts of his children.
221In determining that the reasons for the delay have some relevance, I have been guided by Kirby J’s observation in De L (at 669) that there is:
…a need to prevent an abducting parent from gaining the benefit of delays and thereby profiting from their wrongdoing by invoking the legal system of the country of resort. If such action were to succeed it would undermine confidence in the Convention and in the municipal laws designed to give it effect.
222The delay in the present matter can primarily be explained by the following:
•The mother originally concealing the whereabouts of the child and leading the father to believe the child was in a non-Convention country;
•The mother opposing the application which was promptly filed for the return of the child, such opposition being based on grounds found to be without merit and in circumstances where the first opinion she obtained was that her case would not succeed and her second opinion was only that there might be “some doubt” about one issue;
•The mother prosecuting an appeal which was found to be without merit;
•The mother belatedly raising, under the guise of reg 19A, an argument which could have been raised earlier as a reg 16(b) exception;
•The mother refusing to take the child home to Sri Lanka when his return was ordered, thereby necessitating what was always going to be a difficult process to reintroduce the father to the child – all on the pretext of her fears about her safety, which fears have been found to be without substance.
223I accept that the delay in setting up the reunification process was not the mother’s fault – but that process was only required because she falsely claimed her safety would be in jeopardy if she took the child home to Sri Lanka. Thus, even the delay associated with that process can be seen as part of her strategy, and should not now be used in a way that allows her to profit from her own conduct. While the child at the centre of this case cannot now be returned home “promptly”, an order requiring his return will send a strong message to would-be absconders that they cannot hope to circumvent a return order by opposing a meritorious application at every single step of the way.
224I would next have taken into account that the Regulations direct me to recognise that the effective implementation of the Convention depends on reciprocity and mutual respect between judicial authorities of Convention countries. This child was removed from Sri Lanka when the courts of that country were dealing with competing applications for custody. In my view, that is a weighty matter. In this regard, it is important to remember that the Regulations were promulgated to “obtain for Australia any advantage or benefit, under the Convention”. The advantage to Australia of ensuring that children wrongfully brought to this country are sent home, is because Australia can then more confidently predict that Australian children wrongfully taken to Sri Lanka will also be sent home.
225In considering all of these factors, and being acutely aware of the heavy burden that falls upon me in making this decision, I have arrived at a clear conclusion that I would not set aside the return order, even if I had an entitlement to do so.
Conclusion
226Queen’s Counsel for the mother described this whole case as pivoting on whether the mother was to be believed that she would not return to Sri Lanka. I do not believe her. In any event, I am not satisfied it is impracticable for the return order to be carried out. Nor am I satisfied there are exceptional circumstances. If I am in error in so concluding, I would still decline to discharge the order for return. The application will therefore be dismissed.
227Moncrieff J has said he is disqualified only in relation to the present application. I will therefore direct that the matter be relisted before him at the earliest opportunity.
228I will also request the Independent Children’s Lawyer to provide a copy of these reasons to Dr Watts and Ms Newbould, as well as to any professional person who may become involved in the process of reuniting the child with his father.
POSTSCRIPT
229I observed in the course of my reasons that the DVD of the access visit in 2008 was produced very late in the trial, and that the father had not been given an opportunity to comment on it, nor on the translation of what was allegedly said by him to the person who was video-recording his time with the child.
230Counsel for the State Central Authority informed me at the end of the trial that she “reserved” her position on this evidence, by which I understood that she foreshadowed the possibility of seeking to re-open. I heard nothing further from the State Central Authority, and was anxious to ensure the father had been afforded an opportunity to comment on the DVD prior to publishing my reasons. I therefore had my Associate contact the State Solicitor’s Office to advise that I was about to publish my reasons and to enquire whether there was any intention to provide further evidence from the father.
231My Associate was informed that, after some delay, the State Solicitor’s Office had been authorised to make direct contact with the father who did wish to provide an affidavit. I was informed, on 23 March 2012, that the affidavit had been received, but was being held by the State Solicitor’s Office, pending advice from the mother’s counsel concerning any objection to it being filed. As I am about to go on leave, and as I could see no basis upon which the father could be denied the opportunity to respond to the DVD evidence, I asked my Associate to inform the State Solicitor’s Office that the affidavit should be filed, with or without the consent of the mother.
232The affidavit was duly provided. The father denied the allegations made by the mother in the affidavit which accompanied the DVD. His affidavit continued:
3. I do not admit the genuineness of the video clips referred to in paragraph 3 of the said affidavit.
4. However, I recall an incident took place on 03.05.2008 at [McDonalds] regarding which I lodged a complaint to the [local Police Station].
5. Translation of which complaint I have annexed to my previous affidavit marked as “X2(a)” which is self explanatory.
6. Having flouted the Court order by which the Court granted to me very reasonable access to my child (i.e. 3 hours access from 10.00am to 1.00pm on Sunday only) by [the mother], started harassing me by shouting, verbally abusing me, disturbing my freedom to bond with my child by taking photographs.
7. Thereafter, she continued to take photographs throughout the time that I spent with my child notwithstanding the specific order by Court which says that I should be allowed to have the access to my child without any hindrance, disturbing my child who was well settled in my hands at that time (the translation the order is annexed hereto marked as Y).
8. Although I asked her to go away without disturbing my son who was just 1 year and 10 months and seeing me only for 3 hours for the whole week.
9. However, I state with responsibility that I cannot recall using the words recorded in the said video.
10. In those circumstances as lament I believe that [the mother] having provoked me by purposely disturbing my limited access to my child had video graphed me and my child had later hampered the same by using illegal editing methods.
11. If she is genuinely producing a true video I do not see any reason for her to produce few pieces taken from a continuing video which could have technically started at 10.26 am and ended at 12.05 pm.
12. I further state if I had been a person who had been offensive to [the mother] as alleged in paragraph 1 of her affidavit she would not have continued videoing me in the manner she had done especially when I was there with many of my family members as averted by her in paragraph 4 of her own affidavit.
233Attached to the father’s affidavit was what purported to be a translation of an order made by the court in Sri Lanka on 3 April 2008, providing for two access visits in April 2008, following which there was to be a report on progress and then a meeting with a family counsellor, prior to a trial on 25 April 2008. The order provided for the father’s access to be taken “without any hindrance”. It will be seen that the order did not expressly provide for the access visit in May 2008, but the point being made by the father appears to be that the court wished his visits to be taken “without hindrance”.
234The translation of the police report referred to in paragraph 5 of the father’s affidavit was, as he asserted, attached to the affidavit on which he relied at trial. I had not deemed it necessary to refer to the content of that report in giving my already lengthy reasons. However, for the sake of completeness, I now set out what the father claims he told the police in May 2008 (the entry at the top of the translation suggests the report was made on 3 May 2008, but it is clear from the body of the report it was made on a Sunday, which would make it more likely it was on 4 May 2008, which is the date of the access visit).
I have filed a case No. 25185/D. in the District Court of Colombo, seeking a divorce from [the wife]. That case is pending. When the case came up for hearing on the last day, that is on 25.04.2008, Hon’ District Judge made an Order. The Order was that my wife should bring my son born out of our wedlock, to [Mc Donalds], for me to have access from 10.00 a.m. to 1.00 p.m. on a Sunday. But she did not bring the child on Sunday following the date of the Order. Thereafter, on the subsequent Sunday, that is today in the morning I went to [Mc. Donalds], at 10.00 a.m. and waited for them, and by 10.26 a.m. my wife and her father brought the child. However, my wife prevented the child from coming to me. But after some time the child came to me. Then, when I wanted to take the child to the section of the Mac Donalds reserved for children to play, that too was prevented. But I took the child there. Then the wife came and shouted and took some photographs. My wife's father scolded me in filthy language. In view of that I felt that it was not suitable for me to stay there any longer, and I came out about 12.05.p.m. As I came out I received on [my telephone number] a threatening call from [another telephone number] at about 12.29 p.m. The caller threatened me that ‘my legs would be broken, and that ‘if I try to be too smart, I will be killed.’ When I inquired as to who was calling, the line was disconnected. I do not know who the caller was. I request the Police to investigate into this matter and ensure that I will not get further threatening calls. That is all I have to state.
235It should be apparent that if this case were to be re-opened in order to explore the father’s allegations concerning the possible “doctoring” of the DVD, and the circumstances surrounding the 2008 access visit, there would be yet more delay in resolving this matter. In preparing my reasons, I had proceeded on the basis that the father did speak to the mother in the terms alleged in her affidavit. I recognise there was no objection to the father’s report to the police being received into evidence, and I also accept the father was not cross-examined on the report. That said, having viewed the DVD again, there is nothing to suggest the father’s voice was “doctored”, unless the “doctoring” was undertaken in a very sophisticated fashion. If there was no “doctoring”, the only issue would be whether the words apparently coming out of the father’s mouth were directed at the mother, and whether they were correctly translated. As to the first issue, the father reported to the police that it was the mother who was taking the “photographs”, thus it could be assumed the 30 seconds of vitriol was directed towards her. As to the second issue, the father does not seek to provide an alternative translation.
236Accordingly, nothing in the father’s affidavit advances his case. It has not been taken into account in reaching my decision, which had been made prior to receipt of the affidavit. Subject therefore to hearing from counsel at the time of delivery of these reasons, I do not consider there is any need to re-open the proceedings.
I certify that the preceding [236] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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