State Central Authority and Hampton

[2010] FamCA 679

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & HAMPTON [2010] FamCA 679

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION

APPLICANT: Commissioner of Police, South Australia (State Central Authority)

RESPONDENT: Ms Hampton

FILE NUMBER: ADC 125 of 2010

DATE DELIVERED: 22 July 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Stevenson J

HEARING DATE: 13 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Olsson

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

COUNSEL FOR THE RESPONDENT: Mr Pickhaver

SOLICITOR FOR THE RESPONDENT: Barr Lawyers

Orders

1. That the application of the Commissioner of Police, South Australia, filed on 13 January 2010, is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: ADC 125 of 2010

COMMISSIONER OF POLICE, SOUTH AUSTRALIA (STATE CENTRAL AUTHORITY)

Applicant

And

MS HAMPTON

Respondent

REASONS FOR JUDGMENT

the proceedings  

1. On 13 January 2010 the Commissioner of Police, South Australia, (State Central Authority) (‘the Central Authority’) filed an application pursuant the Family Law (Child Abduction Convention) Regulations. The Central Authority sought orders for the return to Spain of the child A, (‘the child’) who was born in May 2006. His parents are the respondent, Ms Hampton, and Mr G. The mother resisted the application, on the grounds set out below.

Background

1. The father was born in 1975 in the Basque region in Spain and is now 35 years old.  The mother was born in 1982 in Adelaide and is now 28 years old.  The parents met and commenced a relationship in Scotland in April 2004.  Their only child, A, was born in May 2006 in Scotland. 

2. In July/August 2006 the mother and the child visited Australia and stayed with her parents in Adelaide.  On 22 August 2006 the father, the mother and the child moved to Spain.  Initially they lived with his mother but moved into their own accommodation after their marriage on 25 January 2007.

3. With the father’s consent, the mother and the child came to Australia for a holiday on 28 April 2008.  Prior to their departure, return tickets were booked for 16 September 2008. 

4. In July 2008 the mother informed the father that she intended to remain in Australia with the child.  They then agreed that she could continue her holiday until 10 October 2008, when she and the child would return to Spain.  On 10 October 2008 the mother told the father that she intended to remain in Australia with the child permanently.

5. On 25 August 2008 the father informed the mother that he considered the marriage to be at an end.  He indicated that he had commenced divorce proceedings in Spain.

6. On 19 February 2009 the father filed an application in a Spanish court, seeking a divorce and an order that the mother return the child to Spain.  He also sought orders that the child live with him and spend time with his mother.  These applications were served on the mother on 9 December 2009.

7. As the Spanish proceedings progressed, the father became aware that his application filed on 19 February 2009 could not secure the child’s return to Spain.  It seems that a Spanish judicial officer told him that he needed to invoke the Convention.  He approached the Spanish Central Authority on 6 May 2009 and an application was forwarded to the Commonwealth Central Authority on 31 July 2009.

8. On 10 August 2009 the Commonwealth Central Authority requested additional documents from the Spanish Central Authority.  The Spanish Authority did not forward the requested material, advising that their offices were being painted and their files were in storage.

9. In mid-August 2009 the father spent nine days in Australia.  He saw the child each day, in the presence of the mother.

10. On 29 October 2009 the Commonwealth Central Authority received the additional documents requested from the Spanish Central Authority.  The present application was filed on 13 January 2010 and served on the mother on 18 January 2010.

The Relevant Law

1. Australia and Spain are signatories to the Convention on the Civil Aspects of International Child Abduction. The Australian provisions for implementation of that Convention are contained in section 111B of the Family Law Act and associated Regulations. Section 111B provides:

   (1)  The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.

   (1A) In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision:

   (a) relating to the onus of establishing that a child should not be returned under the Convention; and

   (b) establishing rebuttable presumptions in favour of returning a child under the Convention; and

   (c) relating to a Central Authority within the meaning of the regulations applying on behalf of another person for a parenting order that deals with the person or persons with whom a child is to spend time or communicate if the outcome of the proceedings is that the child is not to be returned under the Convention.

   (1B) The regulations made for the purposes of this section must not allow an objection by a child to return under the Convention to be taken into account in proceedings unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

   (1C) A Central Authority within the meaning of the regulations may arrange to place a child, who has been returned to Australia under the Convention, with an appropriate person, institution or other body to secure the child's welfare until a court exercising jurisdiction under this Act makes an order (including an interim order) for the child's care, welfare or development.

   (1D) A Central Authority may do so despite any orders made by a court before the child's return to Australia.

   (1E) Any regulations made for the purposes of this section to give effect to Article 21 (rights of access) of the Convention may have effect regardless of:

   (a) whether an order or determination (however described) has been made under a law in force in another Convention country (within the meaning of the regulations made for the purposes of this section), with respect to rights of access to the child concerned; or

   (b) if the child was removed to Australia--when that happened; or

   (c) whether the child has been wrongfully removed to, or retained in, Australia.

   (2) Because of amendments of this Act made by the Family Law Reform Act 1995 :

   (a) a parent or guardian of a child is no longer expressly stated to have custody of the child; and

   (b) a court can no longer make an order under this Act expressed in terms of granting a person custody of, or access to, a child.

   (3) The purpose of subsection (4) is to resolve doubts about the implications of these changes for the Convention. That is the only purpose of the subsection.

   (4) For the purposes of the Convention:

   (a) each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and

   (b) subject to any order of a court for the time being in force, a person:

   (i) with whom a child is to live under a parenting order; or

   (ii) who has parental responsibility for a child under a parenting order;

   should be regarded as having rights of custody in respect of the child; and

   (c) subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day to day or long term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and

   (d) subject to any order of a court for the time being in force, a person:

   (i) with whom a child is to spend time under a parenting order; or

   (ii) with whom a child is to communicate under a parenting order;

   should be regarded as having a right of access to the child.

   Note: The references in paragraphs (b) and (d) to parenting orders also cover provisions of parenting agreements registered under section 63E (see section 63F, in particular subsection (3)).

   (5) Subsection (4) is not intended to be a complete statement of the circumstances in which, under the laws of the Commonwealth, the States and the Territories, a person has, for the purposes of the Convention, custody of, or access to, a child, or a right or rights of custody or access in relation to a child.

   (5A) Subsections (1A) and (2) to (5) do not, by implication, limit subsection (1).

   (6)  Expressions used in this section have the same meaning as they have in Part VII.

2. The relevant Regulations are the Family Law (Child Abduction Convention) Regulations 1986. Regulation 16 sets out the court’s obligation to make a return order and provides:

   (1) If:

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

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

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

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

   (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 his or her removal or retention.

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

The Respondent’s Resistance To The Application

1. The mother resisted the application on the following bases:

   ·the child was not habitually resident in Spain immediately prior to his retention in Australia

   ·the father did not have rights of custody

   ·the application was filed more than one year after the retention, thus the court has a discretion not to order a return if the child is settled into his new environment

   ·if the child is returned to Spain there is a grave risk that he will be exposed to physical or psychological harm or otherwise placed in an intolerable situation

   ·the father acquiesced in the child’s remaining in Australia

The Evidence and Witnesses

1. The Central Authority relied on the following documentary evidence:

   1.Application and annexures filed on 13 January 2010

   2.Affidavit of Jennifer Grace Olsson sworn on 2 march 2010, with annexures

   3.Affidavit of Jennifer Grace Olsson sworn on 7 May 2010, with annexures.

   It should be noted that these annexures are admissible pursuant to Regulation 29(2), which provides:

   “The application under regulation 14, 19A or 25, or a request given under regulation 13, 24 or 25, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.”

2. The respondent, the mother, relied on her affidavits sworn on 11 February 2010 and 12 May 2010.  She was not cross-examined.

3. A Family Consultant, Ms C, prepared reports dated 21 April 2010 and 11 May 2010.  Ms C prepared two reports because, initially, she misconceived her task.  When she prepared her first report, she carried out an assessment of what parenting arrangements would be in the best interests of the child.  Her second report addressed the issues of whether the child is “settled in his new environment” and whether there is “a grave risk that [his] return would expose [him] to physical or psychological harm or otherwise place him in an intolerable situation”.  The Family Consultant was cross-examined by counsel both for the Central Authority and the mother.

Habitual Residence

1. The Central Authority submitted that the child was habitually resident in Spain prior to his retention in Australia on 10 October 2008.  In an Outline of Case document, counsel for the respondent wrote:

   “There was no agreement between the parties that Spain was to be their place of habitual residence neither at the time when the parties moved to Spain nor when the child and the mother left Spain and came to Australia in June 2008.   The move to Spain was conditional on the mother coping with the Spanish environment which she failed to do.”

2. There was no suggestion in the mother’s case that the child was habitually resident in another identified country immediately prior to the retention.  It seems to me that it would be difficult to identify any such country.

3. In LK v Director-General, Department of Community Services (High Court of Australia) 40 FamLR 495 French CJ and Gummow, Hayne, Heydon and Keifel JJ said (at p503ff):

   “…..it is sufficient for present purposes to make two points.  First, application of the expression ‘habitual residence’ permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual.  Second, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence…

   “When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live - where those persons have their habitual residence.  The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.  But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing for some principle of law like the (former) law of dependent domicile of a married woman…

   “Although intention is a necessary element in deciding domicile of choice, and ‘habitual residence’ is chosen as a connecting factor in preference to domicile, examination of a person’s intentions will usually be relevant to a consideration of where that person habitually resides.  Sometimes, intention will be very important in answering that question.  The example of a person who leaves a jurisdiction intending not to return is one such case.  But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not be given controlling weight.”

4. In her affidavit sworn on 11 February 2010 the mother set out her version of the circumstances in which the family moved from Scotland to Spain.  She said that they agreed that the father had better employment prospects in Spain but they were both concerned that she may have difficulty in adjusting to life there.  They recognised that she would be exposed to a different culture and that she could speak no Spanish or Basque.  They appreciated that she had no family or friends in Spain.

5. The mother claimed that the father agreed that he would “consider moving to Australia” if she “did not cope with living in Spain”.  She said that she told him that she “could no longer cope with living in Spain” in mid to late 2007 and asked that they move to Australia.  He responded that she had “not tried hard enough” and refused any further discussion.  She said that she reiterated early in 2008 that she could not cope with life in Spain and he told her that he was “not prepared to move to Australia”. 

6. The father’s version of events can be gleaned from the Family Report dated 21 April 2010 and emails attached to the affidavits of Jennifer Grace Olsson sworn on 2 March 2010 and 7 May 2010.  Essentially, he maintained that he and the mother agreed that they would try living in Spain for about two years and, if she failed to settle there, they would review their plans.

7. The Family Consultant reported on her telephone interviews with Mr the father as follows: 

   “[The father] further acknowledged that the parties’ move from Scotland to Spain was ‘to try and settle the whole family here…..after we would decide whether we would cope here…..a trial period…..a couple of years that’s a minimum’”.

8. Having spoken to both parents, the Family Consultant formed this view of their agreement:

   “Whilst the parties differ in their accounts as to their long term goals in relation to where they would be best living together as a family, given the differences in their countries of origin, culture and religious affiliations, there does appear to be some consensus that they would review their living circumstances in the event of [the mother] encountering difficulties adjusting in Spain to her non-English speaking surroundings and unique Basque country influences….”

1. Counsel for the Central Authority submitted that the following considerations support the contention that the child was habitually resident in Spain prior to the retention:

   ·    “the move of the mother, father and child to Spain from Scotland in 2006 to live

   ·    the residence of the mother, father and child initially with the maternal grandmother [in Spain] and later to a house rented in joint names by the mother and father [in Spain]

   ·    the obtaining of a Spanish passport for the child

   ·    enrolment enquiries into kindergarten and childcare in [Spain]

   ·    the use of the Basque health service by the family

   ·    the registration of the family with the local council

   ·    the payment of income tax whilst residing in Spain

   ·    the mother and paternal grandmother both enrolled in language courses in Spanish and English respectively to aid their communication with each other”

2. There was evidence of all these matters in the material filed on behalf of the Central Authority.  In my view these considerations weigh significantly in favour of a finding that the child was habitually resident in Spain at the time of his retention in Australia.  It is clear that the father and the mother established a home in Spain in 2006 and intended to live there for an extended period.  It was possible that they would make their permanent home in Spain.  I am not persuaded that their actions were consistent with those of holiday makers, as contended on behalf of the mother.  Payment of income tax, for example, does not suggest a holiday situation.

3. It is significant also that the mother did not suggest that the child was habitually resident in any country other than Spain.  As noted, in my opinion it would be difficult for her to nominate any such place.  Her own evidence went no further than to establish an agreement between the parents to review the family’s living circumstances, if she failed to settle in Spain.  Accordingly, I find that the child was habitually resident in Spain immediately prior to his retention in Australia on 10 October 2008.

Rights of Custody

1. It was submitted on behalf of the mother that the Central Authority failed to establish that the father had rights of custody in relation to the child, under Spanish law, immediately prior to the retention.  It was said that the Authority simply invited the court to assume that he had rights of custody, which he was exercising or would have exercised but for the retention.

2. The circumstances in which a person, institution or other body has rights of custody are defined in Regulation 4, which provides:

   (a)For these Regulations, a person, institution or other body has rights of custody in relation to a child if:

   (i)the child was habitually resident in Australia  or in a convention country immediately before his or her removal or retention;  and

   (ii)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention

   (b)For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.

   (c)For the purposes of this regulation, rights of custody may arise:

   (i)by operation of law;  or

   (ii)by reason of a judicial or administrative decision;  or

   (iii)by reason of an agreement having legal effect under a law in force in Australia or a convention country.

3. In support of its contention that the father had rights of custody prior to the retention, the Central Authority relied on parts of the Spanish Constitution and the Spanish Civil Code.  Two articles of the Spanish Constitution were said to be relevant and translate as follows:

   “Article 14.  Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.”

   “Article 39(1).  The public authority shall ensure the social, economic and legal protection of the family.

   (2).  The public authority likewise shall ensure full protection of children, who shall be equal before the law, irrespective of their parentage, and of mothers, whatever their marital status.  The law shall provide for the investigation of paternity.

   (3).  Parents must provide their children, whether born in or outside wedlock, with assistance of every kind while they are still under age and in other circumstances in which the law is applicable.

   (4).  Children shall enjoy the protection provided for in the international agreements which safeguards their rights.”

   I was not told how these articles assist the Central Authority.  I can identify no support from this source for the proposition that the father had rights of custody at the relevant time.

4. The relevant articles from the Spanish Civil Code are as follows:

   “Article 154.  Non-emancipated children are placed under the authority of his/her parents. 

   Parental authority will always be exerted on behalf of the children, according to their personality, and it will include the following duties and facilities:

   (1).  Looking after them, keeping them in their company, feeding them, educating them and providing them with an integral upbringing.

   (2).  Representing them and administering their properties.

   If children would be sufficiently judicious, they would have to be heard before any decision affecting them could be adopted.

   In the exertion of their power, parents could claim the authority’s help.  They could as well immediately and moderately correct their children.”

   “Article 156.  …..if parents are living separately, parental authority will be exerted by the one with whom the child is living.  The judge could however, on request of the other and acting on behalf of the child, find paternal authority to the petitioner, for him to exert it jointly with the other parent, or divide between father and mother the inherent functions.”

   “Article 160.   Parents, even those who do not exert parental authority, will have the right to keep in touch with their underage children, except with children adopted by another person or according to a judicial decision.

   Personal relationship between child and other relatives and family members could not be prevented but on just grounds.

   In the case of defiance, the judge, on the child or relative or family member’s request, will decide all circumstances being met.   It must be specially insured that the measures that can be adopted to facilitate the relationship between children and their grandparents, do not enable the infringement of judicial decisions with straining or suspending the relations of the children with one of their parents.”

5. In Wenceslas v Director-General, Department of Community Services 37 FamLR 271 Finn J said (at page 281):

   “Nothing was put to us, or to which we have been referred in this appeal, has persuaded me that we should depart from the decision of the Full Court in Jiang, being that in order to establish that a person has rights of custody within the meaning of Regulation 4, it is necessary to establish that under the law of the relevant foreign country that that person had a right to determine the place of residence of the child…..  In light of the authorities referred to in the joint judgment of Thackray and May JJ…..I would be prepared to include ‘a right of veto’ as being included in the expression ‘right to determine the place of residence’.”

6. In their joint judgment in the same case, May and Thackray JJ said at page 304:

   “We therefore intend to proceed in determining this appeal on the basis of the law as stated in Resina.  Accordingly, if it were to be established that the father or some other institution or body had a right to veto K’s removal from New Zealand, then his removal from that country would prima facie have been in breach of ‘rights of custody’ and is wrongful in the meaning of the regulations.”

7. The Central Authority did not specify what “rights of custody” the father was alleged to have at the time of the retention.  It seems to me that the following provisions of the Spanish Civil Code would suggest that he had a right to veto the mother’s removal of the child from Spain:

   ·    Article 154 provides that children are placed under the authority of his/her parents

   ·    parental authority expressly includes “keeping them in their company”

   ·    the authority of parents is “exerted by both”

   No order of a court in any country has disturbed this codified position.

8. I am satisfied that the father had parental authority for the child immediately prior to the retention.  Consequently, among his “duties and facilities” was the right to “keep [the child] in [his] company”.  In my opinion, this aspect of his parental authority amounts to “a right of veto” as described in authorities such as Wenceslas.  Clearly, the father never consented to the child leaving “his company” other than for the very limited purpose of a defined holiday period in Australia.  It is plain that he would have exercised his right to “[keep] [the child] in [his] company” but for the retention.  For these reasons, I am satisfied that, immediately prior to 8 October 2008, the father had rights of custody which he would have exercised if the child had not been retained.

Is the child settled in his new environment?

1. This issue must be considered because the application for return was filed on 13 January 2010, that is, fifteen months after the retention.  I have referred to the reasons for this delay and again note that no blame can be attributed to the father.

2. The child is now four years old and he has lived in Australia for approximately two years.  Initially he and his mother lived with the maternal grandparents in

   
   

   Adelaide and then moved into their own accommodation in September 2009.  They see the maternal grandparents and other family members approximately once per week. 

3. The child spends two and a half days per week at Kindergarten.  The Family Consultant spoke to staff at the kindergarten who described him as:  “one of the youngest children here…..one of the most mature…..the most well adjusted…..stays on tasks….polite…..responsive…..has developed friends already with twin boys…..advanced social skills”.

4. In her affidavit sworn on 12 May 2010 the mother described the child’s friendships with cousins and children at his kindergarten and her church.  She said that he has swimming lessons each week and enjoys attending a park and beach close to their home.

5. The Family Consultant reported:

   “[the child] is well settled in his new environment in Australia with his mother and extended maternal family.  [The child’s] remarkable progress at kindergarten, his confidence and calm self-assurance and his seeming ease in relating to others and making friends and involving himself in activities and interactions in a variety of settings such as kindergarten, church crèche, swimming classes and play group is testament to [the mother’s] capability and competence as a single parent.”

6. I take this opinion into account as an expert assessment of the child’s current emotional stability and comfort in his environment in Australia.  The view of the Family Consultant is not determinative of the question whether he is “settled in his new environment” for the purposes of Regulation 16(2).  That issue is for me to determine, on the basis of all of the evidence.

7. In her first report the Family Consultant noted:

   “[the child] spoke fondly and with enthusiasm of his Friday mornings at kindergarten where he said that he had already made a number of friends.”

   She further observed:

   “Observations of [the child] with his mother and later with his mother and the maternal grandparents revealed warm and loving interactions consistent with secure attachments.  [The child] was observed to relate affectionately to his maternal grandparents and to be responsive to his mother’s gentle guidance.  He seemed to take pleasure in engaging with each of the adults who appeared to reciprocate in kind.  There was an overall sense of a contented and well cared for child…..”

8. In her second report the Family Consultant offered these opinions:

   “Staff at the kindergarten further report that [the child] seems very secure about his origins and openly identifies in group activities on this topic that whilst he claims to have no memories of living overseas, he informs others that he was born in Scotland and then moved to Spain before living in Australia.  In other group activities [the child] seemed both excited and proud to display to his preschool group, his skill of counting to 20 in Spanish as well as responding informatively to enquiries about the pronunciation and meaning of his Basque name.  Kindergarten staff reported that [the child] has never demonstrated any appearance of sadness or sense of loss in regard to the physical absence of his father from his life.  Indeed, staff report that [the child] speaks in a very matter of fact fashion of talking to his father each week on Skype as if this was a most natural means of keeping in touch with an absent parent…..”

9. The Family Consultant expressed strong concerns about the consequences for the child of a return to Spain.  She opined:

   “It is implicit that an order for return of [the child] to Spain would represent a profound physical and emotional disruption for him with concomitant negative outcomes at a time when he would appear to be well settled in his new environment.”

   She was not shaken in this evidence during cross-examination.

10. The child has lived in Australia continuously since he was two years old.  He is now a little over four years of age.  The unshaken evidence of the mother was, effectively, that he is a happy child with a stable life.  The evidence of the Family Consultant indicated that he has adjusted to very limited interaction with his father.  Her expert evidence further suggests that the child would suffer adverse psychological consequences, if he is returned to Spain.  These considerations persuade me that he is “settled in his new environment” for the purposes of Regulation 16(2).

11. There has been controversy as to whether there remains a discretion to order a return, when the court is satisfied that a child is “settled in his or her new environment”.  It is not necessary for me to express a view on that question, as I would exercise discretion against an order for return in the present circumstances.

12. I would decline to exercise discretion to order the return of the child to Spain for the reasons which led me to conclude that he is “settled in his new environment”.   I also have regard to the reality that passage of time has frustrated the objects of the Convention.  These objects are:

    “a.       to secure the prompt return of children wrongfully removed to or retained in any Contracting State;      and

    b.        to ensure that rights of custody and of access are effectively respected in the other Contracting States.”

    Obviously, it is impossible for a “prompt” return of the child to Spain to be achieved, when two years have elapsed since the retention.  I fully appreciate that the delay was in no way the fault of the father.

Grave Risk

1. In Director-General, Department of Community Services v Timms (2008) FLC 93-376 the Full Court said at pp 82, 653 – 82,654:

   “49.  The proper interpretation of reg 16(3) has been settled by the majority judgment of the High Court in the cases of DP v Central Authority;  JLM v Director-General, NSW Department of Community Services… where Gaudron, Gummow and Hayne JJ said:  so far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that ‘there is a grave risk that [his or her] return…..would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’.  If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened.  There may be many matters that bear upon the exercise of that discretion.  In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established.  Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry.  If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.

   50.  In the same judgment the majority dismissed the proposition that reg 16(3)(b) and 16(3)(d) are to be narrowly construed:

   Narrow construction?

   In the judgment of the Full Court…..[e]xactly what is meant by saying the reg 16(3)(b) is to be narrowly construed is not self-evident.  On its face reg 16(3)(b) presents no difficult question of construction and is not ambiguous.  The burden of proof is plainly imposed on the person who opposes return.  What must be established is clearly identified:  that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in ‘an intolerable situation’.  That requires some prediction, based on the evidence, of what may happen if the child is returned.  In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child.  The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.

   Necessarily there will seldom be any certainty about the prediction.  It is essential, however, to observe that certainty is not required:  what is required is persuasion that there is a risk which warrants the qualitative description ‘grave’.  Leaving aside the reference to ‘intolerable situation’, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.

   Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence.  The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.

   These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a ‘narrow’ rather than a ‘broad’ construction.  There is, in these circumstances, no evident choice to be made between a ‘narrow’ and ‘broad’ construction of the regulation.  If that is what is meant by saying that it is to be given a ‘narrow construction’ it must be rejected.  The exception is to be given the meaning its words require.

   That is not to say, however, that reg 16(3)(b) will find frequent application.  It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety.  That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence.  Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.”

2. The mother maintained that a “grave risk” exists largely on the basis of the evidence of the Family Consultant.  As noted,  Ms C misconceived her task when she compiled her first report.  She embarked upon an assessment of what arrangements would be in the child’s best interests.  An obvious flaw in this process was that she had only telephone and email communication with the father, with no opportunity to observe his interaction with the child.  She was openly critical of him and made a firm recommendation that the child remain in Australia.  For those reasons I attach significantly greater weight to her second report, where she specifically addressed the issues of whether the child is settled in his new environment and whether there is a grave risk that his return to Spain would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

1. Otherwise, the mother maintained in her affidavit of 11 February 2010 that a “grave risk” exists for the following reasons:

   ·    The child has never spent significant periods out of her care

   ·    The child speaks only English and knows but a few words of Spanish and Basque

   ·    children in Spain commence their formal education at two years of age, so the child would be required to start school immediately although he his unable to speak Spanish

   ·    she could obtain only a three month tourist visa and would be unable to work or obtain social security benefits in Spain

   ·    she cannot afford an air fare to Spain or accommodation

   ·    she has no friends or family in Spain

   ·    she is afraid of the father because he frequently shouted at her in anger

2. The father took issue with a number of these assertions.  In particular, he denied that he directed verbal violence at the mother.  He described himself to the Family Consultant as “passionate” and disputed that he was verbally abusive or intimidating towards the mother.

3. There was no evidence as to the situation with the mother’s visa or social security benefits in Spain, although it was always open to her to tender such material. Similarly, there was no evidence as to the age when children commence their formal education in Spain.

4. It should be observed that a number of these alleged difficulties could have been addressed by way of conditions on an order for return.  For example, the father could have been invited to make voluntary arrangements for the support of the mother and the child, in the event that they return to Spain.  The mother made no such application or proposal.

5. The mother relied heavily on the reports of the Family Consultant in support of her contention that the defence of “grave risk” has been established.  As noted I place much greater weight on the second report, as the Family Consultant’s first assessment was based on a misapprehension as to her task.

6. In her second report the Family Consultant said: 

   “In his response to the writer’s earlier report, [the father] acknowledged the incident referred to by the mother in terms of it being ‘nasty’.  However, [the father] denied that [the mother’s] lived experience of him could be interpreted by her as being ‘terrified’ of him.  Instead [the father] described himself in terms of being ‘passionate’ rather than frighteningly verbally abusive and intimidating as [the mother] alleges.  Whilst this is a matter for evidence, should [the mother’s] claims be true, the grim reality of her circumstances should [the child] be ordered to return to Spain would be of concern and may well be viewed in terms of exposing both [the mother] and [the child] to some kind of ‘intolerable situation’.  Certainly, at the very least, [the mother] will be in a very disempowered position in circumstances wherein neither she nor [the child] speak fluent Spanish and in circumstances wherein she is likely to face great financial hardship if she cannot obtain adequate maintenance from the father or support from her relatives or some other means of income.

   If the qualitative description of ‘grave risk’ is not limited to harm that will actually occur but also extends to the risk that an order for a child’s return will expose that child to future harm, then the above considerations might be viewed as rising to the level of presenting ‘a grave risk of harm’ or effectively, that [the child] is likely to be exposed to an intolerable situation should he be required to return to Spain.  Certainly such a return would without doubt represent a significant physical and emotional upheaval which may well result in serious disruption to [the child’s] developmental trajectory.”

7. I accept that life could well be difficult for the mother if she returns to Spain.  I do not accept that her difficulties would create a “grave risk…that a return would expose [the child] to physical or psychological harm or otherwise place [him] in an intolerable situation”.  There was no evidence that the mother has made any attempt to ameliorate her own potential situation in Spain, for example, by seeking financial assistance from the father.

8. The mother did not give evidence that she would permit the child to return alone to Spain.  The submissions on her behalf, as to the existence of a “grave risk” are predicated on an assumption that she and the child would both live in Spain.  I am entitled to assume that the Spanish legal system would operate to put in place arrangements which are in the best interests of the child, in these circumstances.

9. The competing contentions as to verbal violence and intimidating behaviour are untested.  It seemed to me that there were disputes between the mother and the father, which probably escalated with her increasing unhappiness in Spain.  Of course, she and the father would be living apart if she returns to Spain, as their marriage is at an end.  I am not persuaded that future disputes and discord between his parents would place the child at “grave risk” or “in an intolerable situation”. 

10. Overall, I am not satisfied that the mother has discharged her onus of establishing that a return of the child would expose him to a grave risk of harm or otherwise place him in an intolerable situation.  None of the reasons which she advanced, taken individually or collectively, satisfy the test as set out in Director-General, Department of Community Services v Timms.

Acquiescence

1. The only evidence that would even suggest that the father acquiesced in the mother’s retaining the child in Australia was her contention that he assured her that he would not invoke the Convention to secure the child’s return to Spain.  The father denied having given any such assurance.  His prompt resort to the Spanish legal system seems to me to be strong support for his denial.

2. It is abundantly clear that the father did not acquiesce to the mother’s retaining the child in Australia.  As outlined above he took all steps which he could, in an expeditious manner, to secure the child’s return to Spain from the time of the retention.

Conclusion

1. I thus find substance in the mother’s contention that then child is settled in his new environment, which means that I am at liberty to decline to order a return since the application was filed more than one year after the retention.  As already indicated, I am comfortably persuaded that there are factors which militate against an order for return.  Otherwise, it is my view that there is no substance to the bases upon which the mother resisted the application.  I will thus dismiss the application of the Central Authority for an order for the return of the child to Spain.        

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              22 July 2010