State Central Authority and Carter

[2008] FamCA 305

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & CARTER [2008] FamCA 305

FAMILY LAW – CHILD ABDUCTION – Hague Convention – child habitually resident in the United Kingdom – child came to Australia on a holiday to visit the father in December 2007 and has remained in Australia – whether mother had consented or acquiesced to the child’s removal to or retention in Australia - whether grave risk to child if returned – objections of child aged almost 16 years of age – findings of Family Consultant – objection of child beyond mere expression of a preference or of ordinary wishes - child has attained age and degree of maturity at which it is appropriate to take account of his views – Order: refuse to make order for the child’s return

Family Law Act 1975 (Cth) s 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) Reg 16

Gazi and Gazi (1993) FLC 92-341
Panayotides and Panayotides (1997) FLC 92-733
Cooper and Casey (1995) FLC 92-575
DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401
Murray v Director of Family Services ACT (1993) FLC 92-416
De Lewinski v Department of Community Services (1997) FLC 92-737
In Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277
De L v Director-General of Community Services and Anor (1996) FLC 92-706

APPLICANT: Commissioner of Police South Australia as State Central Authority

RESPONDENT: Mr Carter

FILE NUMBER: ADC 566 of 2008

DATE DELIVERED: 2 May 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 1 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Olsson

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

COUNSEL FOR THE RESPONDENT: Ms McCappin

SOLICITOR FOR THE RESPONDENT: D'Angelo Kavanagh

Orders

1. That the application of the State Central Authority filed on the 13 February 2008 is dismissed.

2. That paragraphs 1, 2 and 3 of the order of the 26 February 2008 are discharged.

3. That the passports of the Respondent Father, …, and the child S born on … May 1992 be returned to the father.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Carter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 566  of 2008

COMMISSIONER OF POLICE SOUTH AUSTRALIA AS STATE CENTRAL AUTHORITY 

Applicant

And

MR CARTER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Commissioner of Police, South Australian Police as the State Central Authority makes application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 for the return of S to the United Kingdom. S is the child of Mrs Carter and Mr Carter. The child travelled to Australia in December 2007 to visit his father.

2. His mother has made application through the relevant Authorities requesting the State Central Authority obtain orders for the return of the child to the United Kingdom.

Hearing

1. I heard the matter on the 1 April 2007.  Ms Olsson appeared representing the State Central Authority and Ms McCappin represented the respondent father.

2. The parties agreed that the matter should be determined on consideration of the papers and submissions without the Court hearing oral evidence.

3. This is consistent with the Convention and Regulations which recommend or propose a summary procedure for the speedy resolution of applications of this type (see Gazi and Gazi (1993) FLC 92-341 and Panayotides and Panayotides (1997) FLC 92-733). In the latter case the Full Court referred with approval to observations of Justice Jordan, the trial Judge, and at 83,897 quoted him:

   "The first thing to observe is that there is much conflict in the evidence. These are summary proceedings and issues must be determined on the papers. This often presents the Court with difficulties. It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see, Re F (1992) 1 FLR 548). As was submitted by counsel for the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.”

Background and Chronology

1. The mother was born in the United Kingdom in April 1963.  The father was born in the United Kingdom in August 1969.  The mother and father were married in February 1989 in Wales.

2. The first child of the marriage of the mother and father is R who was born in Wales in August 1989.  R is now 18.  The child to whom this application applies is S, who was born in Wales in May 1992 and is now 15 nearly 16.

3. The mother and father were divorced in June 1996.  The children remained with the mother. 

4. In April 1999 a District Court Judge made an order providing for R to reside with the father.  S remained residing with the mother, having contact with his father each alternate weekend, every other Tuesday evening and half the school holidays.  There was also telephone contact by agreement.

5. Prior to the father emigrating to Australia, the mother signed a form which is dated 21 December 2005 and reads:

   “TO WHOM IT MAY CONCERN

   I, [mother’s name] of [mother’s address] am aware of [the father’s] application for permanent resident to emigrate to Australia and have no objection to our children, [R] and [S] being included in his application and emigrating with him.

   I am aware and understand that this does not entitle me to permanent residency to Australia.

   Signed [mother’s name]”

6. The children did not travel to Australia when the father and his wife emigrated.  R and S did travel to Australia in February 2007.  The father said that this was for the purpose of “validating our Australian visas which included visas for [R] and [S]”.

7. The father’s affidavit says as paragraph 22:

   “The boys did not travel with my wife and I however in July 2007, as they were unsure at that time if they wished to immigrate to Australia.  The boys however wished to visit my wife and I for Christmas in 2007 and I purchased them return tickets for them for this purpose prior to my wife and I immigrating.”

8. In February 2007 the children accompanied the father and his second wife on a holiday to Australia.  In July 2007 the father and his second wife migrated to Australia.  R and S continued to live with the mother in Wales.

9. The father agrees that R and S travelled to Australia for a three week holiday commencing on or about the 19 December 2007 (see the father’s affidavit filed on the 26 February 2008, paragraph 3).

10. The father admits that the arrangements made with the mother were for S and R to travel to Australia for a holiday in December 2007 and January 2008.  Paragraph 34 of the father’s affidavit says:

    “The plan was that [S] and [R] spend a three (3) week period over Christmas with my wife and I in Adelaide Australia.  Some three (3) days before the boys’ departure back to the United Kingdom, the boys both approached me and advised me they did not wish to return to the United Kingdom.”

11. The father insists that R and S have made the decision themselves and he has not influenced them.

12. Paragraph 49 of the father’s affidavit says:

    “As to paragraph 6(c) of the Wife’s application, I say that although the travel period for the children to return was originally scheduled for around 14 January 2008, I kept the tickets open as I did not know whether the boys would change their mind about wishing to return to the United Kingdom.  As a result, I have tickets for them in the event that they do wish to return, departing 10 June 2008.  Annexed hereto and marked with the letters ‘KAC6” are copies of the email tickets for both [R] and [S] with Qantas Airways.  These tickets were booked on 8 January 2008 prior to this Application being served upon me.”

13. On the 14 January 2008 the mother signed a request for an Application form for the Central Authority for England and Wales as Agents to do all things reasonable and necessary to bring about the return of S to Wales.

14. By Application filed on the 13 February 2008 the Central Authority for the State of South Australia filed the Application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 seeking orders which included an order that the child S be returned to the United Kingdom forthwith.

15. Since then both parties have filed affidavits upon which they seek to rely.

16. Interim and procedural orders were made on the 26 February 2008 and the matter was adjourned for final hearing to the 20 March 2008.  At that date the matter was further adjourned with leave given to the parties to file further affidavit material.  The final hearing took place before me on the 1 April 2008.

17. The orders of the 26 February 2008 include the orders making arrangements for a Family Consultant to prepare a report directed to the “… the child’s independent view in relation to returning to the United Kingdom and the strength of that view and on any other matters that are relevant to the proceedings as may be appropriate including any issue of grave risk”.

18. S was interviewed by a Family Consultant on the 7 March 2008.  The Family Consultant also briefly interviewed the father and S’s brother R.

19. The interviews took place on the 7 March 2008.  The Family Consultant’s report (Ms D) dated 17 March 2008 was before the Court.

Issues

1. The father concedes the factors required for Regulation 16(1) (a), (b), (c), (1A) (a), (b), (c), (d) and (e).  It is not therefore in contention that an Application is being made for the return of S within one year of his removal or retention and the Court has been satisfied that the child’s removal or retention was wrongful on the basis that he was under 16 and habitually resident in the United Kingdom immediately before his removal to or retention in Australia and that his removal or retention in Australia was in breach of those rights of custody at a time when the mother was actually exercising those rights of custody or would have exercised those rights of custody if the child had not been removed or retained.

2. The father seeks to rely on the exceptions in sub-section (3) of Regulation 16 namely, that the mother has consented or acquiesced in the child’s removal to or retention in Australia.

3. The father also asserts that the exception relating to grave risk has been established on the basis that the return of the child would expose him to physical or psychological harm or would otherwise place him in an intolerable situation. 

4. The father also seeks to rely upon S’s objections to being returned and asserts that it has been established that S objects to being returned and that his objection shows the strength of feeling beyond the mere expression of preference or of ordinary wishes.

The Law

1. The Hague Convention on the Civil Aspects of International Child Abduction sets out certain objects and principles. The Family Law (Child Abduction Convention) Regulations set out the provisions to be applied when an application is made to return children from Australia to another Convention country. United Kingdom is a Convention country.

2. The Family Law (Child Abduction Convention) Regulations 1986 and in particular Regulation 16 state:

   “(1) If:

   (a)an application for a return order for a child is made; and

   (b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and

   (c)the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);

   the court must, subject to subregulation (3), make the order.

   (1A)For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:

   (a)     the child was under 16; and

   (b)the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and

   (c)the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and

   (d)the child's removal to, or retention in, Australia is in breach of those rights of custody; and

   (e)at the time of the child's removal or retention, the person, institution or other body:

   (i)was actually exercising the rights of custody (either jointly or alone); or

   (ii)would have exercised those rights if the child had not been removed or retained.

   (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)the person, institution or other body seeking the child's return:

   (i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

   (ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

   (b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

   (c)each of the following applies:

   (i)the child objects to being returned;

   (ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

   (iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

   (d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

   (4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before hi or her removal or retention.

   “(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.”

Evidence and Findings

1. It is not disputed that S was habitually resident in the United Kingdom before he travelled to Australia or that the mother had rights of custody which she was exercising.

2. It is also clear on the evidence that they all agreed that S could travel to Australia for a holiday from the 19 December 2007 to the 11 January 2008.  The father admits that the visit was arranged at that period of time and that it was to be a holiday.  The airline tickets obtained by the father clearly indicate that S and his brother were due to return to the United Kingdom in January 2008.

3. Regulation 16(3) provides that a Court may refuse to make an order if the person opposing the return establishes that the person seeking the child’s return had consented or subsequently acquiesced in the child being removed to or retained in Australia. 

4. The evidence is that the mother consented to S travelling to Australia for a holiday.  The father asserts that the documents and previous arrangements concerning the possible immigration to Australia of S and R indicate that the mother had consented to S remaining in Australia or has acquiesced in his remaining in Australia.

Consent or Acquiescence

1. One of the items upon which the father seeks to rely to establish this consent or acquiescence is the letter signed by the mother in December 2005, being “KAC1” annexure to the father’s affidavit filed on the 26 February 2008.  (See paragraph 10).

2. In her affidavit and response the mother says:

   “12.My sons and I became aware of the father’s intention to emigrate to Australia in late 2005.  I have seen the letter dated 21 December 2005, which I cannot I cannot (sic) recall signing.  This purports to show my agreement to my sons taking up permanent residence in Australia.  I have never agreed to this.  I have always said to them and the father that this decision must be made by them when they had left full time education and were of an age when they were fully aware of the consequences of emigrating.

   13.I agree that I saw Ms Susan Cotter in 2005, who was the father’s legal adviser and I did so at his suggestion.  I explained my views to Ms Cotter as set out in paragraph 11 above.  Ms Cotter informed me that the form I signed stated exactly that.  The letter dated 21 December 2005 does not reflect my wishes.”

3. The father also takes issue with this part of the mother’s affidavit.  He has filed a subsequent affidavit seeking to put his version of the events of the execution of the document in December 2005 in paragraphs 13, 14 and 15 of his affidavit filed on the 28 March 2008 (document 16).  I take into account those allegations.

4. In summary there is contested evidence about the existence of the continuing consent by the mother to S emigrating to Australia following upon the document signed by her in December 2005.

5. I am satisfied that the evidence clearly established that the mother consented to S travelling to Australia in December 2007 but only on the basis that he was to be travelling for a short holiday and would be returning in January 2008.

6. There was also contested evidence of the mother and the father about the mother repeatedly saying to the child S that he should go and stay with his father in Australia.  I accept that the evidence indicates that the mother consented to S travelling to Australia for a holiday, but that she did not consent to him remaining in Australia when he failed to return.  The mother has not consented to S’s retention.

7. As to the assertion that the mother has acquiesced in S’s retention in Australia I am not satisfied that the father has made this out on the evidence, notwithstanding the remarks made by the mother in paragraph 14 of her affidavit filed on the 20 March 2008:

   “However, if [R] and [S] want to stay in Australia and they have made considered decisions to do so, then this is up to them and I will abide by this.”

8. It was submitted on behalf of the Central Authority that this was not an assertion but just a comment which should not be seen as acquiescence.  Indeed, it would be extremely inconsistent with the mother’s actions in pressing for the return of the child for this paragraph to be construed as acquiescence in the retention of the child in Australia as it calls into question the whole purpose of the proceedings being brought on the mother’s behalf by the Central Authority.

9. I am therefore not satisfied that the father has established that the mother has consented or subsequently acquiesced in S being removed to or retained in Australia.

Grave Risk

1. The father also maintains that the exception in Regulation 16 (3) (b) is established namely, that:

   “There is a grave risk that the return of the child under the Convention would expose the child to physical harm or otherwise place the child in an  intolerable situation.”

2. The father submits that S would be exposed to grave risk of harm if returned to the United Kingdom as the child has told him (inter alia) that in the past he would wander the streets of his home town in Wales late at night, smoke cannabis with his friends, such friends being described as “trouble-makers, druggies and a bad influence”.

1. The father also submits that S has a poor relationship with the mother and an unhappy home life with the mother.  The Court is asked to infer that the child was developing self-destructive behavioural patterns in the United Kingdom and that there is evidence to establish the grave risk.

2. I accept the submissions by counsel for the State Central Authority that the grave risk must apply to the return of S to the United Kingdom and not to the care of the mother.  The father has not established that there would be a grave risk to S if S was to be returned to the United Kingdom.  (See Cooper and Casey (1995) FLC 92-575; DP v Commonwealth Central Authority; JLM v Director- General, NSW Department of Community Services (2001) 206 CLR 401 especially pages 417-418; Murray v Director of Family Services ACT (1993) FLC 92-416).

3. The mother does not accept the allegations about the extent of the child’s poor behaviour.  She denies the allegations of failure to care for him or that he had been having behavioural difficulties.

4. The mother’s affidavit filed on the 20 March 2008 explains some of the background from the mother’s point of view.

5. The evidence indicates that there has been a poor relationship between the mother and father for a considerable period of time which has no doubt had an impact upon the psychological welfare of the child. 

6. This, however does not necessarily establish that his return to the United Kingdom would expose him to a grave risk.

7. Whilst the father has filed other affidavits of persons supporting his Application I am not satisfied in this case (where the factual material is substantially disputed) that the father has established that S would be exposed to a grave risk of physical or psychological harm or otherwise placed in an intolerable situation if he was returned to the United Kingdom.

8. I am satisfied that the government and community facilities in the United Kingdom and the judicial processes available to the father and mother in the United Kingdom (including the appropriate child protection authorities) would protect S whilst a decision was made in the United Kingdom about his ongoing care.

Child’s Objection

1. In De Lewisnki v Department of Community Services (1997) FLC 92-737 at page 83,939:

   “It is clear that the objection must be an objection to being returned to the country of the children’s habitual residence, here the United States of America, not to living with a particular parent, here the husband.

   …

   We would not suggest that children must articulate that they object to being returned to the country of their habitual residence for the purpose of enabling the courts (sic) of that country to resolve the merits of any dispute as to where and with whom they should live in order to come within the provisions of reg. 16(3)(c).  That is not the language of children, and the Court should not expect them to formulate and articulate their objection, if they had objected in the relevant sense, in that manner.  The Court must have regard to the whole of the evidence and determine, no matter how the children articulate their views, whether the children object in the relevant sense.”

2. See also the comments of the Full Court in In Re F (Hague Convention:  Child’s Objections) (2006) FLC 93-277 at paragraphs 54 to 58.

3. The father maintains that “the boys” S and R informed him of their intention to stay in Australia.  He says at paragraph 25 of his affidavit filed on the 28 March 2008:

   “The boys only notified me of their intentions to stay in Australia within a couple of days before their return flight.  We had even purchased Christmas presents for family members in the United Kingdom for them to take back with them.  I advised the boys to go back to the United Kingdom, for [R] to continue with his work at the garage and for [S] to return to school.  [S] said to me words to the effect ‘do you not want us here Dad?’.  The boys were quite adamant that they wanted to stay.”

4. The mother asserts in her affidavit filed on the 20 March 2008:

   “27.I have spoken to both my sons on numerous occasions over Christmas and the New Year.  Both were clearly upset at the fact that they were not returning home.  [S], in particular, was upset and has said that he is very homesick.  When I spoke to him in the last week of January, he was crying, was ill and told me that he was not eating because of his homesickness.  He wanted me to book his return flight for him.  I said I would borrow money from my bank to do so and my bank manager has said that she was prepared to authorise a loan to pay for the return tickets of both my sons.

   28.I have also seen the letter written by the father’s Solicitors dated 21 February 2008.  I do not know what is meant by [S] not wanting to return home “for a number of reasons”.  Whenever I have spoken to him since he has been in Australia, he has always said that he wants to return home.  There is no question of [S] “ending up on the streets”.  I have lived at my present address since 2002 and both [R] and [S] have their own rooms here.  [S] has lived with  me all his life.  Whilst [R] lived with his father for a number of years, he returned to me when he became aware that the father intended emigrating to Australia, as he did not want to emigrate with him.  [S] has said to me that if I forced him to live in Australia, he would never speak to me again.”

5. In reply the father says:

   “30.As to paragraph 27 of the Mother’s Affidavit, I deny that the boys were upset at all over the Christmas/New Year period.  They were very happy to be here and were enjoying their time in Australia.  It was only when the Mother filed this Application and served it upon me on February 15 2008, that [S] became extremely distressed over the mother’s actions as he was with me when the documents were served upon me.  Plain clothed Police Officers served the documents upon me whilst I was at my wife’s work with [S] and [R], at the […] Shopping Centre. [S] is bitter, angry and frustrated over the mother’s actions.  The Mother’s actions have caused a great deal of distress with our entire family, which actions I believe are highly vindictive and aimed at causing me financial loss, and her financial gain (by enabling her to claim benefits if [S] is returned to live with her), with no concern whatsoever for [S’s] wishes.

   31.I was present during all of the boy’s (sic) telephone calls to the Mother over the Christmas/New Year period and never once did I see the boys ‘clearly upset at the fact that they were not returning home’.  [S] was however extremely angry and tearful about his Mother’s actions in filing this Application, and I recall him being tearful and angry with the Mother on the telephone in February 2008 for this reason.  [S] has been eating very well since he has been living with us in Australia and has in fact put on 10 kilograms.  He was thin and pale when he arrived and is now a healthy weight.

   32.As to paragraph 28 of the Mother’s Affidavit, [S] has advised me, and I do verily believe that, almost every day since my wife and I emigrated to Australia, the Mother has said words to the effect “I can’t cope with you and your temper, you have to live with your father in Australia”.  [S] was not sure if he wanted to do this at the time I emigrated and did not wish to be forced to do so, but rather to make up his own mind.

   33.[S] has advised me as late as 24 March 2008, that on the day they were leaving for Australia, [S] asked his Mother words to the effect “do  you want us to come back then” and the Mother replied to him “I have not decided yet, I will let you know”.  I find this to be a disturbing attitude of the Mother, which has given [R] and [S] the impression that the Mother was not sure if she wanted them at all.

37.[S] has advised me and I do verily believe, that he did not say he was  homesick but that he had been.  We have all been homesick for the familiar surroundings of Wales, but nevertheless are enjoying life in Australia.  [S] has advised me that he denies saying “he has no friends and rarely goes out”.  He did say however “that everyone in the UK thinks I should stay here”, rather than saying “they wanted me to stay here” which gives the impression that it is my wife and I that wish [S] to remain.  My wife and I have always been of the view that [S] should make up his own mind and that we would always abide by his wishes.  [S] is certainly not of an age where I feel that I could force him to do anything against his will.  I would not be prepared to force him to remain here if he was miserable and anxious to return home as he would be too difficult to live with.”

1. S was brought to see the Family Consultant of the Family Court on the 7 March 2008 in the company of his father and older brother R who is now 18.  The mother was not interviewed.  The Consultant interviewed the father briefly to obtain background information.  She then interviewed S on his own.  She also interviewed R briefly. 

2. The report of Ms D dated the 17 March 2008 states:

   “[S] did not impress as a particularly mature boy, but nevertheless his answers indicated that he was intent on staying with his father…”

3. Paragraph 6 reads:

   “[S’s] presentation overall indicated that he felt very strongly about his decision to stay in Australia.  It was clear to the writer that [S] would not willingly move back to England and his mother’s care.”

4. In the conclusion of the report, Ms D says:

   “Nevertheless the most significant aspect of this assessment is that [S] is nearly sixteen years of age.  The next significant aspect is that [S] expressed clearly that he had made his own decision in regard to staying in Australia.  It was clear that he and his older brother [R] made the decision collaboratively, and that the two boys are quite close.  [S] appeared to be well able to make this decision and his comments indicated that he had given thought to his future activities and lifestyle.
   [S’s] presentation indicated that he felt strongly about his decision to stay in Australia with his father.  It was abundantly clear that [S] would object strenuously to being returned to his previous situation.”

5. The most reliable evidence available to the Court is that of the independent Family Consultant who had the opportunity to interview S privately.  I take into account the circumstances in which the interview was conducted.  However, the report of the Family Consultant emphasises the significant aspect of S being nearly 16 and that S “expressed clearly that he has made his own decision”.  The Family Consultant has also concluded that S had given thought about his future activities and lifestyle and that his decision was one about which he “felt strongly”.  The last sentence of the report “It was abundantly clear that [S] would object strenuously to being returned to his previous situation” clearly places S’s objections in a category of a strength of feeling beyond the mere expression of a preference or of ordinary wishes. 

6. S is 15, nearly 16.  He has attained an age and a degree of maturity at which it is appropriate to take into account his views.

7. Notwithstanding the disputed evidence of the father and the mother I am satisfied that the father has established that S objects to being returned and that his objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and that S has attained an age and a degree of maturity at which it is appropriate to take account of his views.

Exercise of discretion

1. Notwithstanding the existence of one of the exceptions in subregulation (3), the Court still has a discretion to exercise to determine whether to refuse to make the order or not.  In particular, subregulation (5) provides:

   (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.”

1. In De L v Director-General of Community Services and Anor (1996) FLC 92-706 the majority of the High Court of Australia said at page 83,456:

   “...However, it is to be noted that, if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return.  The regulations are silent as to the matters to be taken into account in the exercise of that discretion and the discretion is therefore, unconfined except insofar as the subject matter and the scope and purpose of the [regulations] enable it to be said that a particular consideration is extraneous.  That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.”

1. I am not satisfied that the father has established consent, acquiescence or the exception of grave risk.  I am satisfied that the father has established that S objects to being returned to the United Kingdom. 

2. The basis of his objections appear to be the perception of S’s lifestyle and happiness.  His older brother R wishes to remain in Australia and has supported S’s desire to remain in Australia.

3. S is nearly 16.  He has expressed his views to the independent Family Consultant.  She has concluded that he would “object strenuously” to being returned.

4. This is a significant factor taking into account S’s age.

5. I am satisfied therefore that it is appropriate for the Court in these circumstances to refuse to make the order for his return.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  2 May 2008