State Central Authority & Abdalle
[2012] FamCA 1151
•16 March 2012
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & ABDALLE | [2012] FamCA 1151 |
| FAMILY LAW — PARENTAL CHILD ABDUCTION — Conceded wrongful removal from Country F — Difficulties with interpretation of evidence from Country Q resulting in procedural fairness issues — Criticism of practitioners for not preparing witnesses to give evidence — Cost of video link for cross examination prohibitive for the Court and not sustainable — Request for Central Authority to make alternative provision for cross examination of remote witnesses in future cases — Adversarial hearing — Requirement for clear and cogent evidence of grave risk of harm to which children will allegedly be exposed by return to Country F — Insufficient evidence of risk of harm — Insufficient evidence upon which to find children object to return — Conditions imposed on return — Return ordered — Discretion to allow children to remain in Australia not applicable but discussed. |
| Convention on Civil Aspects of International Child Abduction, opened for signature 25 October 1980, Hague XXVIII (entered into force 1 December 1983) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| C & C (Minor: Abduction: Rights of Custody Abroad [1989] 2 All ER 465; 1 WLR Director-General, Department of Families & RSP (2003) FLC 93-152. |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Abdalle |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Caroline Smith |
| FILE NUMBER: | MLC | 798 | of | 2011 |
| DATE DELIVERED: | 16 March 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 27, 28 and 29 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms J Greenham |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Dr J Walsh of Brannagh |
| SOLICITOR FOR THE RESPONDENT: | Starnet Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms S Dowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
ORDERS
IT IS ORDERED THAT:
1.The children B born … June 2001, C born … March 2003, D born … June 2005 and E born … November 2008 (‘the children’) be returned to Country F pursuant to the Family Law (Child Abduction Convention) Regulations 1989 within 30 days of compliance by the father with paragraph 2.
2.The children’s return to Country F pursuant to paragraph 1 of this order is conditional upon:
(a) the requesting father paying the sum of 8000 pounds sterling in full (“the monies”) by not later than 12 noon on 18 May 2012 to the mother’s solicitors, Starnet Legal whose trust account details are …, the monies to be held on trust and be paid out by Starnet Legal as follows;
i.to pay the costs of one way airfares for the mother and children to travel from Australia to Country F, the funds to be paid directly to the travel agency or airline; and
ii.the remainder to be paid to the mother at the direction of the State Central Authority to her nominated bank account as soon as practicable after the mother and children enter Country F on the flights referred to in paragraph 2(a)(i) above; and
iii.as may otherwise ordered by the Court.
(b) the requesting father signing an irrevocable consent to orders being made against him by a Court of competent jurisdiction in Country F, such consent orders to be drawn up by the mother or her representatives and to be submitted to the father within 14 days of the date of these Orders and to be on the following terms:
i.the children remain in the care of the mother pending further orders of a Court;
ii.the father must not:
a)molest harass, threaten, abuse or interfere with the mother or the children;
b)communicate with the mother or children orally, in writing, by telephone or any other means, except through solicitors or in accordance with an Order of a Court;
c)knowingly come within 250 yards of the mother’s residence, her place of work or the children’s school or day care, except if permitted pursuant to an Order of a Court; and
d)pursue any form of criminal proceedings or sanctions against the mother pursuant to the Child Abduction Act 1984 (UK) or under common law in relation to the removal of the children from Country F either in Australia or Country F.; and
iii.the mother being excused from disclosing her residential address to the father until further Order of a Court.
3.Within 14 days the mother provide to the applicant State Central Authority minutes of the proposed consent order referred to in the preceding paragraph that she seeks be made in Country F.
4.Paragraph 14 of the Orders made on 3 February 2011 and paragraph 8 of the Orders made on 7 November 2011 be discharged and that the applicant State Central Authority is entitled to collect any and all passports that have been lodged with this Registry of the Court and to hold them safely pending compliance with paragraphs 6 and 8 of this Order.
5.Immediately prior to the departure of the children from Australia, paragraphs 9, 10, 11, 12 and 13 of the Orders made on 3 February 2011, paragraph 4 of the Orders made on 3 November 2011 and paragraph 4 of the Orders made on 7 November 2011 be and are hereby discharged.
6.The mother’s solicitors notify the applicant State Central Authority and the independent children’s lawyer of the flight details of the mother and the children no less than fourteen days prior to the intended date of travel, in writing, supported by photocopy e-tickets or itinerary.
7.For the purpose of giving effect to the return provided for in paragraph 1 of this Order:-
(a) The respondent mother be at liberty to accompany the children on the children’s return to Country F;
(b) The respondent mother attend with the children at Tullamarine Airport in sufficient time to have baggage check in procedures completed, and to attend at the customs entrance for departing passengers, by not later than four hours prior to departure;
(c) Cooperate with the sequence of events provided for in paragraph 9 of this Order.
(d) Until the children arrive in M City the respondent mother not cause suffer or permit the children to be removed from the transit area of a terminal during any period of disembarkation in Hong Kong or any unscheduled port.
8.An officer (or officers) of the Department of Human Services in Victoria:-
(a) attend at the lowest number check in counter designated for the flight to Country F referred to in paragraph 2(a)(1) of this Order;
(b) hand the children’s passports to the mother so that she may complete the check in procedure;
(c) immediately thereafter, accompany the mother and the children to the entrance of the restricted customs area and observe them enter the area.
9.The State Central Authority provide a copy of these Orders and the flight details of the mother and children no less than seven days prior to the intended date of travel to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
10.The Manager of Child Dispute Services of this Registry of the Court advise the mother and each other party to the proceedings as soon as practicable of the name and address of support services which may be of immediate assistance to the mother and children upon their return to Country F and, for that purpose, obtain information from various agencies including, but not limited to, the following:-
(a) International Social Service:-
i.in Melbourne; and
ii.by Mr G, CEO, Country F Branch,
(b) by Ms H, Acting Director, J Centre.
11.For the purpose of paragraph 2 of this Order:-
(a) The applicant State Central Authority advise and keep all other parties to the proceedings advised of compliance by the father with his payment of the monies;
(b) The solicitors for the mother notify the mother and each other party to the proceedings when the monies have been received into their trust account;
(c) Within 7 days of compliance by the solicitors with sub-paragraph 3(b) of this Order, the mother may notify the solicitors and each other party to the proceeding, in writing, if she wishes to convert the one way tickets to return tickets on the basis that she is solely responsible for, and prior to the purchase of any such ticket will pay for, the difference between the return tickets and the one way tickets.
12.For the purpose of sub-paragraph 2(a)(i) of this Order:-
(a) The family fly Qantas if practicable and cost effective;
(b) The solicitors obtain the prior written approval of the independent children’s lawyer to the fare required for the purchase of the tickets;
(c) The mother notify each other party to the proceedings of the name and account details of the bank into which she wants the balance of the monies to be transferred so that those funds are accessible to her, for the benefit of herself and the children, after their arrival in Country F.
(d) The mother may request in writing that return tickets be booked which provide for a return journey for herself and the children to Australia not sooner than nine months after the forward journey, with the increase in fares being at her sole expense and providing that the amount of the extra expense (over and above the cost of a one way ticket) be paid to the solicitors by, or on behalf, of the mother prior to the purchase of the ticket; and
(e) In the event of disagreement and in order to avoid delay, I reserve to all parties liberty to make application on short notice in relation to the purchase of airline tickets and to contact my associate … for the purpose of securing an urgent listing of the matter.
13.If for any reason the solicitors for the mother decline or cannot hold the monies (or any part thereof) on trust as is provided for in this Order, the parties do all acts and things necessary to transfer the monies to the independent children’s lawyer to be dealt by her with in accordance with this Order.
14.The applicant State Central Authority be responsible for service of a copy of this Order by electronic means on the proper officer of the carrier on which the flights of the children are booked and IT IS REQUESTED that the proper officer of the said carrier inform the applicant State Central Authority, in response to a request for information, that the children and mother have boarded the flight which is the final leg/sector of the journey to Country F.
15.I reserve liberty to the parties to apply to vary the orders in relation to the safe custody of the children and travel documents pending the return of the children to Country F.
16.Subject to the mother confirming in writing to my Associate by not later than 12.00 noon on 22 March 2012 that she wants the reasons for decision herein translated to her, IT IS DIRECTED that the Registry Manager of this Registry of the Court arrange for an interpreter to attend Court on 27 March 2012 for the day for the purpose of translating the reasons for decision to the mother.
17.Liberty is reserved to the parties to apply in relation to the implementation of this order.
18.The application of the State Central Authority filed 1 February 2011 and the response of the mother filed on 28 November 2011 be otherwise dismissed.
19.The order for the appointment of the Independent Children’s Lawyer is hereby discharged as and from 14 days after the departure of the children from Australia.
IT IS NOTED BY THE COURT that nothing in this Order, in relation to the mother’s entitlement to request and pay for return air tickets rather than one way flights, entitles the mother to remove the children from Country F without the prior permission of a court of competent jurisdiction in Country F or otherwise than in accordance with the laws of Country F.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Abdalle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 798 of 2011
| State Central Authority |
Applicant
And
| Ms Abdalle |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By application filed 1 February 2011 the State Central Authority seeks the return to Country F of the children B born in June 2001, C born in March 2003, D born in June 2005 and E born in November 2008, pursuant to reg 16 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘the Regulations’).
Mr K is the children’s father, at whose behest the application is made. He is a witness in the applicant’s case. I will refer to him as the father or the requesting parent.
The respondent, Ms Abdalle, is the mother of the children.
The Regulations import into Australian law the provisions of the Convention on the Civil Aspects of International Child Abduction, which was concluded at The Hague on 25 October 1980 (‘the 1980 Convention’). The 1980 Convention is an international private law treaty between contracting States for the selection of the forum in which a child’s future parenting arrangements should be decided. It provides that children who are wrongfully removed to, or retained in, Australia are to be returned to the Convention country in which they were habitually resident immediately prior to the wrongful removal or retention, so that appropriate arrangements can be made for the children within the legal and social framework of that country. There are some exceptions to mandatory return in which case the court has a discretion to refuse to return a child notwithstanding that the removal of the child was wrongful in the relevant sense. The exceptions relevant to this proceeding are that the mother contends that the children object to being returned to Country F, and that being returned would expose the children to a grave risk of psychological harm or otherwise place them in an intolerable situation.
Procedural history
Regulation 15(4) provides that if an application is not determined within 42 days from the date of filing of the application, the responsible central authority may ask the Registrar to provide a written explanation as to why the matter has not been determined. This reflects Article 11 of the 1980 Convention. No such request was made here, but there should be some explanation of the delay between the filing of the application on 1 February 2011 and the determination of the matter now, more than a year later.
In short, these proceedings, which were initiated by the SCA’s application filed on 1 February 2011, could not be served on the mother because she could not be located until November 2011.
By way of background, the family lived together until 6 January 2010 when the mother excluded the father from the family home because she believed that he had sexually abused their daughter, C. On 26 April 2010 the father was charged with rape of a girl under 13 years of age in relation to C, who was then six years old. He was released on bail on conditions which included that he not communicate with the mother or any of the children. The charges were cancelled in August or September 2010 due to lack of evidence. The father consistently denied the allegations. On 16 or 17 August 2010 the mother removed the four children from Country F to Australia without the knowledge or permission of the father.
The father first knew that the children had been removed from Country F on 24 August 2010. He made his application promptly to the Central Authority for Country F. On 26 October 2010 the Central Authority for Australia requested further information, which the father provided by his affidavit sworn on 9 November 2010.
When the matter was first before me on 3 February 2011, I requested the appointment of an independent children’s lawyer. In due course Ms Caroline Smith of Victoria Legal Aid was appointed. Thereafter, there were several hearings at which ex parte Orders were made to assist in locating the children.
Along the way, I required enquiries to be made by the applicant SCA as to the feasibility of the children eventually being returned to Country F given that the father’s request to the Central Authority in Country F stated:-
[the] father is on a very low income and unable to afford flights to Australia to collect the children or attend any hearing. The father has no family in Australia who can assist him.[1]
The inquiries were to address the frequently encountered situation where children are ordered to be returned as expeditiously as possible in the care of the taking parent but where the taking parent says that she has no funds to pay for air travel for the children or for herself. The response was delayed but was, ultimately, that the father would raise the necessary funds by seeking donations or loans.
[1] Page 15.
The mother was located and served with the proceedings in early November, 2011, some 16 months after the children had been removed to Australia and 10 months after those return proceedings had been instituted. When the matter was before the Court on 3 November 2011 the mother appeared in person. There was difficulty with interpreters and the matter was adjourned for a few days so that the mother could obtain legal advice and an interpreter could be arranged.
On 7 November 2011, the mother was represented by Ms Ebejer of Ebejer & Associates Pty Ltd who retained Ms Abdallece Carter as Counsel. The mother’s legal representation was funded by Victoria Legal Aid. An interpreter was late to Court but the matter did proceed. A final hearing date was fixed for 9 January 2012 and the mother was required to file her response and evidence in opposition to return by 28 November 2012.
A reg 26 report was ordered to be prepared to address all relevant issues arising out of the exceptions upon which the Court was then informed the mother would seek to rely, namely the objections of the children and the grave risk of emotional harm to the children in various scenarios. In particular, the family consultant was required to assess the children and to report on:-
·What (if any) objections each child has to returning to Country F;
·Whether any such objection by a child shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
·Whether the child, whom it is alleged holds an objection to return, has attained an age and degree of maturity, at which it is appropriate to take account of his/her views;
·The psychological effect on the child C of being returned to Country F in the care of and accompanied by her mother;
·The effect on any of the children who may remain in Australia of being separated from any of the children who may be required to return to Country F, as well as the effects on the children of being separated from the mother.
The reg 26 report of Ms L was published on 21 December 2011.
On 30 November 2011 the matter came before me for review, essentially to confirm that the mother’s documentation was filed and could be dispatched in sufficient time for it to be answered by the requesting Central Authority and to assess whether the mother’s case did raise issues which required a reg 26 report (which it did). As the mother’s opposition to return included reliance on the grave risk of harm exception, I raised with counsel for the mother, Ms Carter, what pre-conditions to return the mother would seek. The mother appeared to become upset at the prospect of a return order being made, so I did not press the issue in Court, but required that any such conditions be specified in writing. I ordered, inter alia that:-
By not later than 12.00 noon on 7 December 2011 the respondent mother file and serve an affidavit in which she sets out any conditions to return that she will seek in the event that any of the children are required to be returned to the [Country F] NOTING THAT it remains the respondent’s position that the application for the return of the children pursuant to the Regulations ought be dismissed.
The conditions were required to be specified well in advance of the hearing so that they could be sent to the requesting parent and the Central Authority in M City for a response. Matters raised in Court included the mother’s choice of a High Court registry location convenient to her and whether she would seek, at her own expense, the ability to incorporate a return fare to Australia, rather than having one way tickets booked on her behalf. The parties consented to communications through the International Hague Network of Judges as to the implementation of any conditions precedent to return.
The mother did not comply with the Order for specification of conditions by 7 December 2011. By letter, the lawyers for the mother advised that counsel for the mother had attempted to obtain instructions about pre-conditions to return but had been unable to do so and that :-
Ms Carter has raised her concerns with us and stated that [Ms Abdalle] could not even turn her mind to the issue of having to return to [Country F].[2]
[2] Exhibit “C2”.
On 7 December I made Orders, to which all parties agreed, which extended the time in which the mother could apply to 9 December 2011 and ordered that the time in which the applicant SCA could file and serve any further evidence upon which it relies (including any evidence by the requesting parent in response to the affidavit evidence of the mother and in relation to the practicability of, and his agreement to, any of the conditions sought by the mother upon the return of the children, or any of them, and herself to Country F) be extended to 12.00 noon on 23 December 2011.
By letter dated 7 December 2011 the lawyers for the mother were reminded[3] that any applications had to be made on adequate notice and “[for] instance, given your recent correspondence about the inability to obtain instructions, if you are considering applying for a case guardian to be appointed for your client, time really is of the essence given that the final hearing commences on 9 January 2011.”
[3] Exhibit “C2”.
By letter dated 12 December 2011[4], the lawyers for the mother further advised:-
We also confirm that we will not be seeking the appointment of a case guardian for our client. Our client confirmed her instructions with us and her affidavit was filed on 9 December 2011, as ordered by Her Honour.
Our client will be ready to proceed with the final hearing on 9 January 2012.
[4] Exhibit “C2”.
The final hearing commenced on 10 January 2012.[5] The issues were confined to the exception of grave risk. Counsel who then appeared for the wife conceded that she could not succeed with the exception relating to the children’s alleged objections to return within the meaning of reg 16(3)(c) and Article 13 of the 1980 Convention.
[5] Due to the unavailability of video link facilities to the Royal Courts of Justice in M City on 9 January 2012, the hearing commenced on 10 January 2012.
The mother’s counsel required the father for cross examination. It had been arranged that the father’s cross examination would take place at the Royal Courts of Justice, M City, by video link between that Court and ours. As we recommenced our sittings at approximately 7.30 p.m. (8.30 a.m. M City time), counsel for mother made an application to abort the hearing. It was contended that the mother had not been accorded procedural fairness or natural justice because the interpreter used by the mother all day had failed or neglected to accurately interpret the proceedings to the mother. Specifically, it was contended that questions had not been accurately put to the mother and what responses she had given had not been accurately translated into evidence. There was a general acceptance amongst all representatives and myself that there had been difficulty, if not some friction, between the mother and the interpreter during the day. In the result, it was conceded that the final hearing was to be adjourned. The issue was whether the translation had been accurate. The SCA sought time to consider whether it wanted to adduce expert evidence as to the accuracy of the interpretation on the basis that, if the interpretation was not flawed, it would seek to continue with the trial, but if it was flawed, then the trial should start again. I adjourned the matter for mention before me to 15 February 2012.
On 15 February 2012 neither the applicant SCA nor the independent children’s lawyer opposed the mother’s application for a new trial and the matter was adjourned to the new trial date, 27 February 2012. The mother had engaged an alternative solicitor after 10 January 2012. On 15 February 2012 the mother’s new solicitor, Mr Boden of Starnet Lawyers, appeared on behalf of the mother. The mother’s case was stated not to have changed. By this stage, it was apparent that two suitable interpreters were not going to be able to be found in Melbourne. Ultimately, the mother located a NATI accredited interpreter who was also acceptable to the applicant SCA and the ICL. The applicant SCA was able to make arrangements for an interpreter to be retained in M City for the father’s cross examination.
At this trial, which commenced on 27 February, time was wasted because, when called to give evidence, the mother appeared not to recognise her affidavits and then questioned whether they had ever been accurately interpreted to her. Counsel for the mother suggested that all of the mother’s affidavit evidence could be interpreted to her in Court. In the absence of an application or even a specific complaint that the interpretation which had been attested to was flawed, I indicated that we were entitled to presume that any fault in interpretation would have been brought directly to the attention of all concerned and that all parties would have been given notice of what alternative evidence would be relied upon. Counsel for the mother did not make application to adduce alternative evidence. If counsel for a party is going to ask the witness to confirm the accuracy or otherwise of evidence already sworn to, the least that they can do is to prepare the witness to answer accurately and, most importantly, to be able to propose a solution which is proportional to the problem of which everyone will then have notice. The mother’s lawyers must have been alive to the issue of the mother’s language and possible problems with interpreters, as the first hearing was aborted for just that reason, and they had a transcript of that proceeding. If counsel thought that all evidence should be reinterpreted to the witness, that should have been done well prior to the mother being put into the witness box, and any application which was required to be made as a consequence of re-interpretation should be made on adequate notice to all.
Likewise, the father appeared not to have been prepared to give evidence. He was a witness for the applicant SCA. Early on the first day, counsel for the applicant SCA tendered a document entitled Proposed conditions upon return order – prepared with instruction on behalf of the father.[6] The father was called to give evidence at about 7.45 p.m. (Melbourne time) on the same day. When asked by counsel for the applicant SCA to confirm the conditions to which he was prepared to agree, the father said that he had given no such instructions. He referred to the 8,000 pounds as “ransom”, indicated that he would pay for the children’s airfares only and said that he would decide what constitutes necessary support for the children once they were back in Country F. Time was wasted whilst evidence was sought to be adduced from the father as to the terms and conditions with which he would, or could, abide.
[6] Exhibit “SCA2”.
Counsel for the mother at the earlier hearing, then Ms Carter, had sought to cross examine the father. I considered at that time whether the cross examination could be conducted by telephone. I concluded that, because the father’s credit was to be in issue, we would need to be able to assess his demeanour visually and not just by listening. I was also concerned about comments made by the family consultant about difficulties experienced by her whilst conducting an interview of the father by telephone. She had written:-
There were a number of difficulties associated with conducting the interview by telephone and with the assistance of an interpreter. A primary issue of concern was the presence of another person who was heard frequently providing [Mr K], presumably with responses to questions. [Mr K] was requested on more than one occasion to ensure it was he providing responses to questions.[7]
[7] Regulation 26 report of Ms L dated 21 December 2011 [28].
My ruling was that the father ought to be cross examined by video link if that was feasible and only by telephone as a last resort.
The Court incurred the considerable cost of the video link for the purpose of allowing the father’s evidence to be tested in cross examination, but undue time was taken trying to adduce evidence in chief. My observation was that the father interpreted the questions as an invitation to negotiate terms more lenient to him, rather than as an invitation to confirm the arrangements which he had made with the Central Authority for Country F to facilitate the return of the children as soon as possible. It was also stated that neither the father nor his solicitor has been provided with the reg 26 report of Ms L. That seems to be an extraordinary oversight given that the report had been published more than a fortnight earlier, included criticisms of the father and was material upon which he could, undoubtedly, be cross examined.
The conduct of this matter leads me to issues outside the parameters of this case but which are relevant to it nonetheless. Australian jurisprudence in Hague matters confirms that the determination of return proceedings should be conducted with speed but not haste, and that it is not appropriate to limit the parties to “a hearing on the papers” when there are issues about which there can properly be cross examination and a party seeks to cross examine. However, currently the Court lacks the technology to conduct remote cross examination at a reasonable cost also in a way that is also consistent with maintaining the security of the Court’s communication systems. I understand that the cost borne by the Court in this matter was approximately $600 to $1,000 per hour (or part thereof) over two evenings when the Court sat at hours compatible with the Court in M City having regard to international time zones. Some three to four hours in all.
An expense of $2,000 to $4,000 per case for video links for cross examination or even a fraction of that amount is not a sustainable expense which can be borne into the future. The cost of video link is not an expense which the applicant SCA has the resources to meet and the ICL and respondents are usually funded by Victoria Legal Aid. Of course, there are serious consequences if evidence cannot be tested in an appropriate manner.
I urge the Australia Central Authority to give consideration to what online technology can be made available for use by the court, at minimal cost, to facilitate the following:-
·cross examination of witnesses from remote locations within Australia or overseas;
·assessment interviews by a family consultant with the requesting parent and other relevant persons located outside Australia for a reg 26 report –
both of which arose in this case.
Relevant law and issues to be determined
There is no issue that the mother’s removal of the children to Australia was wrongful within the meaning of reg 16(1A) in that:-
·The children were are all under the age of 16 years.[8]
·The children were habitually resident in Country F immediately prior to the removal.[9]
·The father had rights of custody, within the meaning of reg 4, immediately before the children were removed,[10] which he was exercising,[11] and the removal was in breach of the father’s rights of custody.[12]
[8] Reg 16(1A)(a).
[9] Reg 16(1A)(b).
[10] Reg 16(1A)(c).
[11] Reg 16(1A)(d).
[12] Reg 16(1A)(e).
The mother opposes the return of the children to Country F on the basis that an exception to an otherwise mandatory return is established, namely that pursuant to reg 16(3)(b) there is a grave risk that the return of the child to the country in which he or she habitually resided immediately before the removal or retention would:-
expose the child to physical or psychological harm or otherwise place the child in an intolerable situation…
In final submissions, counsel for the mother asserted that, pursuant to reg 16(3)(c), the children object to being returned and the children’s objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes and that the children have attained an age and degree of maturity at which it is appropriate to take account of their views.
If an exception is made out in relation to any child then I have a discretion, in relation to any child in respect of whom the exception is made out, to refuse to return the child to Country F. The basis upon which the discretion is to be exercised is not prescribed in the Regulations, and the best interests of the particular child is a matter to which I can have regard, together with various other non-extraneous matters.
Evidence
The applicant SCA relies upon the evidence contained in the application filed 1 February 2011[13], which includes the father’s affidavit sworn 9 November 2010, and the affidavit of Ms N sworn 21 December 2011, to which a copy of the father’s affidavit sworn 19 December 2011 is attached.
[13] Pursuant to reg 29(2) any document attached to or given in support of a return application is admissible as evidence of the facts stated in the document.
The father was an unsatisfactory witness who did not provide responsive answers to many questions. In the family consultant’s report (to which I shall come shortly), it is noted that “[Mr K], although generally cooperative, would not provide certain information. Specifically, he was unwilling to discuss his current living arrangements nor was he willing to discuss in detail the alleged sexual abuse of [C].”[14] When asked in cross examination where he resides, he described a general municipal area. When pressed, he was unable to recall his address. He looked through his wallet and opened a large envelope and read an address aloud. The father said that he has lived at that residence for three to four months. Ultimately, however, I am not able to be satisfied that the unsatisfactory aspects of the father’s evidence are attributable to a lack of truthfulness. He appeared not to have been prepared to give oral testimony and he did not appear to appreciate that unresponsive answers are unlikely to assist his case.
[14] Regulation 26 report of Ms L dated 21 December 2011 [28].
The mother relied upon her affidavits affirmed on 24 November 2011 and 9 December 2011. I permitted the mother to rely in part on an affidavit of Ms O, Deputy Manager for Children and Youth Persons Services, M City, Borough of P, sworn or affirmed on 5 December 2011. That affidavit was one paragraph long as to narrative but had annexed to it 176 pages of copy documents which it was said are a true copy of the authority’s file in relation to C. The document was maintained for ease of reference. Only specific pages were tendered and thereby admitted into evidence and no objection was taken by the applicant SCA or the independent children’s lawyer as to the hearsay nature of some of the documents.
The mother was a largely unsatisfactory witness as well. It was not a far reaching cross examination, but the mother was avoidant and evasive in her responses more frequently than she was forthright. Effectively, she refused to answer relevant questions about the likely circumstances of herself and the children in the event that the children are ordered to be returned to Country F. Instead she repeated that she had removed the children for good reason, that they had all ‘put the past behind them’ and are happy and well adjusted in the care of her supportive family in Melbourne.
The mother would not, and perhaps could not, contemplate a return of herself or any or all of the children to Country F. As with the father’s evidence, I am not able to be satisfied that the unsatisfactory aspects of the mother’s evidence are attributable to a lack of truthfulness on her part. The mother appeared not to have been prepared to give oral testimony and she did not seem to appreciate that unresponsive answers were unlikely to assist her case. She may also have been under the misapprehension that any response which was predicated on children’s return may be seen as a concession by her that the family should be sent back to Country F. The manner in which the mother gave evidence and the content (or lack of content) of her evidence could possibly have been assisted by expert evidence as to her functioning, but there was no such evidence.
The only other witness was the family consultant, Ms L. Ms L prepared a report pursuant to reg 26, dated 21 December 2011, which is discussed in more detail below. Ms L was required for cross examination by all parties. Ms L was an impressive witness whose evidence I accept to the extent of the assessment that she was required to make. Ms L conceded that, insofar as she contemplates that the mother may “lack the inner resources to adequately support the children through their own experience of returning,”[15] this was merely an impression which she formed in the course of her assessment of the children rather than a conclusion reached after having undertaken an individual or focussed assessment of the mother’s functioning and capacity to parent, such as would be necessary enable Ms L to formulate a conclusion in that regard.
[15] Regulation 26 report of Ms L dated 21 December 2011 [50].
Relevant background and agreed facts
The mother is Country Q by birth and has been granted citizenship in Country F and in Country R. The father is Country Q by birth and a Country F citizen. The mother and father met and married in an Islamic ceremony in Country R in 1995. They did not live permanently in the same country until 2000, when the mother joined the father in Country F and they commenced to reside there.
The children were all born in M City between June 2001 and November 2008. The children are all Country F citizens by birth and have obtained, or are entitled to, Country R nationality by descent. The mother and children are entitled to reside here and to draw government welfare payments by virtue of their Country R nationality.
No one is an Australian citizen, although the mother has significant family support here.
The mother has two brothers in M City. She last lived with one brother in 1997 in Country S. She has not resided with either brother in M City.
The parents participated in a civil marriage ceremony in M City in September 2009, although the mother denies that she understood the nature of the ceremony at the time. The parents separated on 6 January 2010 when the mother excluded the father from the family home. The mother said that, based on statements made to her by C, who was then six years old, the father has sexually abused C.
There was a delay by the mother in complaining to the appropriate authorities. It appears that the mother made a complaint to the police on 5 March 2010, at the same time that she complained of the father having approached her and the children in the street and, according to her, but denied by the father, having grabbed her and threatened her and the children.
C was interviewed by a social worker on 5 March 2010. She was interviewed by the police on 12 March 2010 and 23 March 2010. C did not make any statements indicative of sexual abuse.
On 13 April 2010 C was exposed to a medical examination. The doctor reported that C’s hymen was damaged, consistent with penetration, and assessed the injury/condition as non-accidental. The medical practitioner interviewed C. C stated that she had not been hurt by anyone. I do not understand the fact that C underwent a genital examination to be an issue, but, as best I can ascertain on the evidence, there has been no opportunity to test the expertise or conclusions of the medical examiner as to what she observed or the cause of it.
On 26 April 2010 the father was arrested and charged with rape. The father was bailed on conditions including that he not approach or contact the mother and/or the children. On 29 April C was interviewed by a social worker but, again, did not make any statements indicative of sexual abuse.
At an indeterminate date in April or May 2010 the mother arranged for the school aged children to attend a different school. She did so as a means of preventing the father from having contact with the children, or any of them, at school. The file of Ms O[16] makes clear that the mother enlisted and received assistance from various government agencies to facilitate the changes of school.
[16] Attached to the affidavit of Ms O, Deputy Manager for Children and Youth Persons Services, for the M City Borough of P, sworn or affirmed on 5 December 2011.
The mother also sought to change her accommodation to live closer to one of her brothers. Correspondence from the files of Ms O includes a summary report and a letter by Ms O to the Homeless Persons Unit of M City Borough of P supporting the mother’s urgent application for re-housing in which, inter alia, reads:-
[Mrs Abdalle] has stated that due to cultural reasons she does not wish to share information with or receive support from a Domestic Violence service in [Borough of P] at this time. [Ms Abdalle] has expressed she wishes to move to the [M City] Borough of … to be nearer to her brother, her only support network.[17]
[17] Exhibit “ICL 2” being pages 90 and 91 of the file of Ms O.
The mother also received support for her urgent application to relocate from the M City Police.[18] Alternative accommodation was found for the mother but not taken up by the family because it was fully furnished and the mother did not want to dispose of, or store, the household belongings. Consequently, the mother and children remained in the former family accommodation until their departure from M City.
[18] Exhibit “ICL 2” being pages 92 of the file of Ms O.
Standard, burden of proof and problems of proof
The relevant test for the court’s assessment of evidence in this matter is found in s 140 of the Evidence Act 1995 (Cth). Section 140(1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities.
The mother bears the onus of proof in relation to whether either of the exceptions is made out.
In the context of the exercise of any discretion to refuse to return the children to Country F, which arises in the event that an exception to return is found to exist, the parties bear the onus of proof for the result for which they contend. The “best interests of the child” principles have some application at the point of exercising the discretion.
The disposition of the matter is pursuant to Part XIIIAA – Division 2 of the Act, so the principles for conducting child-related proceedings provided for in Part VII – Division 12A do not apply to this case. Therefore, the less adversarial trial procedures outlined in Part VII – Division 12A, including that certain provisions of the Evidence Act 1995 (Cth) do not apply, and that the court must conduct proceedings “with as little formality, and legal technicality and form, as possible,” do not apply to these proceedings. These proceedings are adversarial. There is no compulsion or imprimatur for the court to make directions about matters in relation to which parties must present evidence or who is to give evidence about an issue, including evidence by an expert (such as is found in the less adversarial trial provisions of s 69ZX(1)).
There are certain evidentiary provisions in reg 29 which apply to this case. There was no objection as to the admissibility of parts of the file of Ms O being received into evidence. In fact, there were no objections as to evidence taken by any party in the case.
In these reasons, statements of fact are findings of fact.
Grave risk of harm: domestic violence
Regulation 16(3)(b) provides that a court may refuse to return a child to its home country if a person opposing return establishes that 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. Practically, it mirrors the provisions of Article 13(b) of the Convention which provides:-
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that … b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The appropriate interpretation of Regulation 16(3)(b) has been settled by the High Court majority judgment of Gaudron, Gummow and Hayne JJ in the cases of DP & Commonwealth Central Authority; JLM & Director-General NSW Department of Community Services (2001) 206 CLR 401, 417–418. In that judgement it was held that the burden of proof in establishing the ‘grave risk’ exception is “imposed on the person who opposes return,” who, in this case, is the mother. Their Honours held that establishing that there is a “grave risk” that returning a child would expose that child to some “harm” or otherwise place the child in an “intolerable situation” requires “some prediction, based on the evidence, of what may happen if the child is returned.” Their Honours noted that “the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.” Their Honours further stressed the need to prove that the “risk” warrants the qualitative description “grave.” In order to substantiate the gravity of the risk, their Honours opined that it is necessary to provide “clear and compelling evidence,” and that “[t]he bare assertion, by the person opposing return, of fears for the child” may well not be sufficient. Their Honours further noted that it is very likely that a child who must return to his or her country of habitual residence may suffer “disruption, uncertainty and anxiety” similar to that experienced during the initial move away from that country, however “Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.”
It was submitted on behalf of the mother that she and the children would be at grave risk of psychological harm were they to return to Country F. Counsel for the mother opened his case with the following assertions in support of this contention:-
·The children have not seen their father for more than two years;
·If required to return, Country F will be an unknown environment for them;
·It is unclear as to whether the father seeks that they be reunited as a family unit;
It was also asserted by the mother, through her counsel, that it would be psychologically harmful for the children to be separated from the mother. However, this contention was not further advanced given the mother’s position that the children will remain together and in her care such that, if even one of the children is required to return to Country F, she will return with all of them.
At this point, I queried the relevance of the above assertions by counsel for the mother vis a vis what has been held by this Court and courts in other contracting States to constitute psychological harm or an intolerable situation. Counsel for the mother particularised the psychological harm as follows:-
·C would be sent back to the place where she was allegedly sexually abused by the father at the request of the father, who is the alleged perpetrator of the alleged abuse;
·The other children will be adversely affected by C’s upset and anguish;
·All children will be affected by the mother’s distress at having to return.
The mother’s case appears to be that she will be distressed or not be able to cope or to parent the children adequately if she is required to return all or any of the children to Country F. The mother’s evidence in support of the contention appears at paragraphs 4 to 10 of her affidavit sworn on 9 December 2011 which read as follows:-
4. Prior to leaving the [Country F], I was so concerned for the safety of the children that I was anxious all day when the children were at school, wondering whether they would be returned to me, and worrying that their father would attend at the school and take the children. Every time I heard police sirens, my heart would race as I thought it was because something bad had happened to the children.
5. Also before I left [Country F] I was not coping with the stress and worry of the circumstances of my daughter’s abuse. The whole situation is just so incredibly difficult to deal with, and humiliating, and it is so uncomfortable and painful to have to explain to different people over and over again what has happened. I am struggling to cope with all of this. I also had almost no friends or supports in [Country F]. The only family member I have there is my brother who lives more than one hour away from where we are living. He has his own family and work commitments, and he was rarely available to assist me. I felt so very alone and isolated.
6. When the children and I arrived in Australia, I felt like I could put the whole of the trauma of the separation and the abuse behind us. The children also were very relieved to be out of [Country F], and have been very settled here. They feel safe here.
7. When I was served with the application for the children’s return, this reopened all the pain and worry for the children and me. The process server arrived one afternoon when the children were all at home with me. We did not know what had been delivered, and my brother read out the documents to me. Unfortunately the children overheard. I was very distressed and worried, and the children were also worried. It took a long time to comfort and reassure the children. They have told me on many, many occasions that they do not want to return.
8. I am very concerned about returning to [Country F] with the children. My lawyers have told me I need to tell this Court what my proposals would be in the event the children were ordered to return. I would not permit the children to travel without me – I have always been their primary carer, and they are very attached to me. It would be terribly traumatic for them to be removed from my care. However, I simply cannot consider how I might be returned to [Country F]. I am so distressed at the thought of having to leave Australia, I do not know how I would cope mentally if we were unable to remain here. It would be extremely traumatic for me and also for the children. I am worried that I will become unwell if I have to return.
No particulars are given of the symptoms likely to be suffered by the mother if she were to “become unwell” upon her return or how her condition would impact on her capacity to care for the children.
It is apparent that the mother’s apprehensions are based largely on her belief that the father sexually abused C, consistent with the criminal charges laid against him in April 2010. This is understandable as far as the mother is concerned, but is not a position that the court can assume is correct for the purpose of this proceeding. There has been no finding against the father in relation to the sexual offence nor, indeed, any prosecution. In closing submissions, it was contended by counsel for the mother that there was nothing to suggest that the criminal charges against the father would not be revived in the event that C returned to Country F. That contention is contradicted by evidence filed by the respondent mother[19]. In particular, a summary by police dated 2 September 2010 as to why the charges against the father were discontinued states, inter alia:-
[19] Affidavit of the mother affirmed 24 November 2011, Annexure “A” page 39 of 43.
Conclusions
Firstly there is NO evidence to suggest that the father has done this injury to his daughter. There is no relevant, admissible evidence that could be used against the father. The victim has told her mother and a SW that her father picked her up and laid her on his lap but has NOT said anything about penetrating her. In fact she has said to the Dr that nothing happened.
The statements from the SW and mother are at best hearsay.
Even if the child did give an ABE that would be considered admissible, I fail to see where the evidence would materialise from. There is nothing clear in her disclosures to the SW or her mother that would convince a jury her father penetrated her or did anything to harm her.
With these points in mind and the late reporting by the mother and the inconclusive medical even if this did pass the 1st part of the threshold test, it would not be the 2nd part.
Continued investigation of this matter is not required. I cannot see where we are likely to obtain further evidence that would provide a realistic prospect of conviction.
In my view as ERO this does not meet the threshold test and should therefore be NFA’d.
I would also strongly suggest that the matter should remain as a CRI and not be classified as a crime.
All of the evidence relied upon by the mother in this proceeding suggests that the fact of the assault and the nature of the assault were conclusions drawn by the mother rather than being based on any statement by C. The medical examination which produced evidence consistent with non-accidental injury did not come until much later. This is a hearing about forum and not an investigation into the allegations which are only contextually relevant for our purposes. I am not in a position to adjudicate on the truth of the allegation of rape. However, it is abundantly clear that there is a very real issue to be tried before a court of competent jurisdiction as to whether any sexual assault took place and, depending on the outcome of that enquiry, the parent with whom the children should primarily reside. The latter issue is likely to be as important as the first issue because it is clear from the father’s evidence that he says that the mother’s complaint of sexual abuse is neither reasonable nor genuine and that she has made the complaint maliciously and for the express purpose of preventing him having an ongoing relationship with the children, and they with him.
A further aspect of the mother’s assertion in support of her contention that the return of the children to Country F will expose them to a grave risk of harm or place them in an intolerable situation, is that the father harassed her and the children prior to them leaving Country F and that he is likely to do so again if the children are ordered to return. It was also alleged by the mother that, in making unwanted contact with the mother and children, the father previously breached conditions of his bail.
The mother’s evidence of the father’s harassment includes the following extracts from her affidavit affirmed on 24 November 2011:-
33. Although [Mr K] claims to have stayed away from us he didn’t. In fact I say he attacked me in the presence of the children. On the first occasion I took the children to school and on returning home with our youngest son [Mr K] approached us and said he was sorry and asked for forgiveness. I said if you want forgiveness pray to your god and don’t speak to me again. I said you hurt me one time you are not going to do it again. When I said this I meant that he raped our daughter. When I told him that I kept walking home and he continued to follow us. We were near our house and he grabbed me saying ‘my wife has gone mad’ and he tried to push me in the house. I asked a passer by for help and said he was going to kill me. After I said this he let me go and he said “I am not going to kill her”. I got my phone and tried to call the police. Before he left [Mr K] demanded that I answer the intercom and speak with him and he said if I didn’t I should be aware of what was going to happen to me.
34. When I got into the house I called the police to come and then while I waited for the police I called my brother, [Mr T], I told him about [Mr K] harassing me and that he attacked me and tried to push me into the house.
35. Not long after the police came to my house and I finally reported the rape to them. I think it was from this time that the police told him to stay away but he didn’t. On that day the police said [C] would need to see a doctor. Now shown to me and marked Annexure A is the police report.
36. By this time I had known about the rape of our daughter for about two weeks. I was scared to say anything firstly the taboo in our community about rape and secondly mostly in my mind was that [Mr K] was stalking me always around. When I made calls from the house he would turn up as if he was hearing who I was talking to. He threatened me saying I was in the country only because of him.
37. There was another occasion where I had the four children with me and [Mr K] approached us and we tried to get away. The children were scared when they saw him and we ran home. I got home and called the police and told them he was stalking me and the children and that he would not leave us alone. The police attended my home and again they warned him to stay away. I know sometime after that he was arrested and put on bail.
The timing of the events deposed to by the mother is muddled. Records provided by the mother show that the mother complained of the incident described in paragraph 33 of the above extract on 5 March 2010 and on the same day made a complaint of sexual assault of C to the attending police. The mother’s assertion that “I had known about the rape of our daughter for about two weeks” does not accord with her having excluded the father from the family home on 6 January 2010 because of her belief as to the sexual assault. In paragraph 29 of the same affidavit the mother deposes that she “cannot recall the exact date that I asked him to leave our home. I am not sure whether it was January or February 2010”. However, it is clear that the incident described in paragraph 33 of the above extract occurred prior to the father being charged with criminal offences and, necessarily, before he was bailed on conditions not to approach the mother and children.
The mother gave oral evidence that the last sentence of paragraph 37 of the above extract is incorrect and that that incident occurred after the father was charged and bailed and was, therefore, in breach of conditions of bail not to approach the family. The father denies the incident.
Relevantly, counsel for the mother did not contend that the mother and children could not be adequately protected in Country F. Counsel conceded that Country F has adequate legal and community structures to protect children and families. It was not suggested that there would be any difficulty in the mother seeking an order for her personal protection and that of the children, prohibiting the father from approaching any of them, or that such order would not be able to be enforced. It was agreed that the mother and children would be eligible for social security payments in Country F as well as for legal assistance.
I accept the submission of the applicant SCA[40] that the mother’s contention that the children, or any of them, object to returning to Country F in the relevant sense, is not supported by the evidence.
[40] SCA Outline of Submissions Exhibit dated 28 February 2012.
The SCA further submitted, and I accept, that the report of Family Consultant Ms L at [34] – [40] of her report indicates that it was not possible for her to establish whether the children object to returning to the [Country F]. With the exception of B (then 10 years old), it was not possible to gain an acknowledgement from the children that they had previously lived in the [Country F]. B was the only child who stated he did not wish to return to the [Country F] but he provided no explanation for his view. The children were assessed by Ms L as not feeling free to express their views. E, at three years old, was assessed as not having attained an age and degree of maturity at which it would be appropriate to take into account his views. In the assessment of Ms L, neither C (nearly eight) nor D (six) had attained an age or level of maturity at which their views, if expressed, could be given any significant weight. B, at ten years of age, had the ability for more independent thought but it seemed unlikely to Ms L that he had reached a level of maturity at which his views could be given significant weight.
Ms L’s evidence was not challenged in cross examination. I accept it.
I am not satisfied that the mother has made out a case of any child objecting to return to Country F. As no other exceptions to return were relied upon or have been found to exist, the children must be returned to Country F.
Exercise of discretion against mandatory return
There were some brief submissions as to how I should exercise my discretion to refuse to return the children in the event that either the exception under reg 16(3)(b) or reg 16(3)(c) had been made out. I will address that issue even though I have not found that either exception is applicable and, accordingly, no discretion is enlivened pursuant to which I can permit the children to stay.
The applicant SCA contended that if the discretion arose I should not exercise it. The mother contended that I should exercise it and thereby allow the children to stay in Australia. The ICL concluded that there was no exception to mandatory return and therefore no discretion to permit them to stay.
Conditions precedent to return define the context within which the discretion could be exercised. In the High Court cases of DP & Commonwealth Central Authority; JLM & Director-General NSW Department of Community Services,[41] Gaudron, Gummow and Hayne JJ said that “…if, on the evidence … one of the conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened.” Their Honours stated that “many matters” may bear upon the exercise of that discretion, and in particular, that in some cases “the discretion will properly be exercised by making an order for return on … conditions, notwithstanding that a case of grave risk might otherwise have been established.” Their Honours opined that in “moulding” these conditions, “[e]nsuring … that there will be judicial proceedings in the country of return” and also “that there will be suitable interim arrangements for the child” may be important considerations. Their Honours further noted that “care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.” [42]
[41] (2001) 206 CLR 401
[42] Ibid, 417.
I have already discussed the conditions suggested by counsel for the mother and offered through the SCA. I have previously discussed the appropriate breadth of conditions in SCA & Daker [2008] FamCA 1271 pars [66] to [87]. Conditions ought to be directed to the circumstances of the children in the very short term and not usurp the function of courts in the state of habitual residence. Practically, that means that conditions should be directed to circumstances which will arise prior to this family being before the High Court in M City.
From the very beginning of this case, I have had concerns about whether the father will be able to fund the return of the children and mother to Country F but it now seems that he can. The family’s passage to Australia and the mother’s private legal fees to an immigration agent have been paid by the mother’s family. It was not suggested that I have the power to require the mother’s family to fund the return journeys to Country F. I appreciate that imposing the condition of payment of monies on the father may be adding insult to injury. However it is the quickest and most reliable means of repatriating the children. The mother has no money. Her banking records were inspected. The government and central authorities will not fund the fares. In this context, the applicant State Central Authority agrees to the condition. If the father does not meet the condition as to payment, the children will not be returned. In my assessment, the conditions agreed to by the SCA are proper if not generous.
The Convention and the Regulations do not specify the factors to be taken into account in the exercise of the discretion to refuse to return children which arises once an exception to return is made out[43].
[43] Kay J in State Central Authority and DB [2002] FamCA 804 as subsequently endorsed by the Full Court in HZ v State Central Authority [2006] FamCA 466, the Full Court there comprising of Kay, Coleman and Warnick JJ.
In TB & JB (formerly JH) [2000] EWCA Civ 337, Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W & W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H & H (Abduction: Acquiescence) [1996] 2 FLR 570, 574 which were:-
(a) the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b) the likely outcome (in whichever forum) of the substantive proceedings;
(c) the consequences of the acquiescence;
(d) the situation which would await the absconding parent and the child if compelled to return;
(e) the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f) the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.I will deal with such of those factors as are relevant to this case.
I am satisfied that Country F is the most suitable jurisdiction in which to decide parenting matters pertaining to the four children. I do not perceive there to be much difference in the legal principles to be applied. However, all of the evidence of the alleged sexual assault, including the social workers and medical examiner and police officers, are in Country F as are the records upon which they would rely. The family had extensive involvement with government services and those workers and their records are in Country F. The personnel and records of the children’s schools and doctors are in Country F. The mother and father will presumably have access to legal assistance in Country F. There must be some doubt as to the eligibility of either or both parents for legal aid here given that neither is an Australian citizen.
I cannot predict the outcome of the substantive proceedings save that I am confident that it would be arrived at, in Country F, with the best interests of the children being a paramount consideration. This matter has all the hallmarks of a complex and time consuming case.
There is no suggestion of any criminal charges or civil penalties which would await the mother in the event of her return. In any event, the father is prepared to undertake to a court of competent jurisdiction in Country F that he will not participate in any prosecution of the mother. It is not suggested that he can do more than that.
There was evidence from the family consultant of an adverse emotional impact on the children of an immediate return to Country F in the event that the mother lacks inner resources to assist in their adjustment. However, I state again, there was no independent expert evidence of her capacity. It is likely that the mother will find it very hard and that her capacity to care for the children will be challenged. Given how the mother’s case was conducted, however, I cannot find how diminished her capacities might be having regard to the assistance that she will get. I must balance against the emotional upset of the children the fact that the children will have the benefit of a principled decision about their parenting arrangements by a court before which all parties can appear and have access to all relevant evidence, including expert evidence.
On balance, I am convinced that fair hearing by a court of competent jurisdiction in Country F, even with all of the disruption that a return will entail for the children, is a safer outcome for them in the long term than permitting their future to rest with the mother’s unilateral act of removing the children from Country F.
If an exception to mandatory return had been made out, I would go on to consider the extent to which the purpose and underlying philosophy of the Hague Convention would be frustrated if a return order were refused. Leaving to one side the parts of the 1980 Convention which deal with rights of access, the philosophy of the 1980 Convention is to protect children from the harmful effects of wrongful removal or retention across international borders by depriving the abductor’s actions any practical or juridical advantages. It is not the philosophy of the 1980 Convention to capture all abductions. The concept of wrongfulness defines the children and the relationships which the 1980 Convention is intended to protect and then the exceptions are to be given application.
I enter into this discussion having already decided that the mother has failed to make out her case under either exception. Viewing the facts of this case through the perspective of the philosophy underlying the Convention, I am comfortable with the decision that the children should be returned. I reach this conclusion notwithstanding that the 1980 Convention, and the Regulations which import it into Australian law, are intended to provide a hot pursuit remedy and this case has been inordinately delayed to a point that the pursuit has become measured and cold. The countervailing consideration is that, in my perception, there is a complex and necessitous parenting case to be tried, and the issues in that case are very much alive. If the children are not returned to Country F, it is unlikely that there can be an appropriate adjudication of those issues elsewhere. Even if the father could enter Australia, all of the evidence is in Country F.
So, if on the facts of this case I had a discretion to refuse to return the children to Country F (which I do not), I would not exercise that discretion in favour of the mother.
The Operation of this Order
The timing of the payment of the monies and various other aspects are machinery provisions to implement the core preconditions of the return order which are: (a) payment of the monies; and (b) the obtaining of orders providing for the protection of the children and interim parenting matters.
If there is no return effected within the next 12 months, I would anticipate an application to be made pursuant to reg 19A in the event that a return is sought after 12 months.
I am satisfied that the mother and children should have the benefit of any support services that the family consultant can suggest. The provision of this information is not a condition to return, but it is a humane measure.
I am satisfied that the more conservative approach adopted by the applicant SCA in relation to the mother’s possession of travel documents is prudent. Given that at least three months is likely to elapse before the children travel, there will be liberty to each party to make application to the Court in the event that they seek different orders about custody of travel documents or the applicant SCA and/or ICL consider that stricter conditions ought to apply to the mother’s care of the children pending their departure.
It is important that the mother have the opportunity to understand the reasons why I will order the return of the children to Country F on certain conditions. Whether she avails herself of the opportunity is a matter for her and her lawyers. Locating suitable interpreters has been a problem in this case. There will be an interpreter present when the Order is pronounced and I anticipate that the Order will be translated to the mother immediately after the Court rises. However, the reasons will take much longer to translate. As it is, the pronouncement of this Order has been delayed to coincide with the availability of the interpreter previously selected by the mother.
I will require that the Registry Manager of this Registry of the Court provide an interpreter to translate the reasons to the mother if the mother advises in writing that she wishes to have the reasons translated to her. The interpreter will be provided for half to one day at the expense of the Court. Obviously, the mother’s lawyers will be able to be present. It must be done within a week or two of this decision being handed down so as to fall comfortably within the time in which a notice of appeal may be filed. There may be little option as to dates. It should not occur unless the mother’s lawyers notify the Registry Manager and my Associate within seven days that she will avail herself of the opportunity. If the mother does not provide written notice within seven days, the Registry Manager is relieved of the obligation to provide an interpreter to translate these reasons to her.
Conclusion
The application of the SCA will be granted. The applicant SCA and the ICL have each submitted minutes of suggested orders and counsel for the mother had the opportunity to make submissions in that regard. I have incorporated most of the provisions in my Order.
The children will be returned to Country F, hopefully within three months but, in any event, with as little delay as possible.
I certify that the preceding one hundred and forty five (145) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 16 March 2012.
Associate:
Date: 16 March 2012
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