State Central Authority and Khosla
[2017] FamCA 1020
•14 December 2017
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & KHOSLA | [2017] FamCA 1020 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application for the return of the child to New Zealand – Where the child was removed from New Zealand, removed to India and was then removed to and retained in Australia – Where the mother concedes that the removal of the child was wrongful – Where the child has settled in Australia – Where the child experienced an unsettled life through conflict between his parents and between his mother and extended paternal family – Whether there is a discretion to make an order for return despite the child being settled – Ordered the application is dismissed and the child should not be returned to New Zealand |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| Department of Communities, Child Safety and Disability Services & Hughes [2017] FamCA 509 Director-General, Department of Community Services & M and C (1998) FLC 92-829 State Central Authority v Ayob (1997) FLC 92-746 State Central Authority & Castillo [2015] FamCA 792 State Central Authority & Fang [2017] FamCA 533 State Central Authority & Hajjar [2010] FamCA 648 |
| APPLICANT: | Secretary to the Department of Health and Human Services STATE CENTRAL AUTHORITY |
| RESPONDENT: | Ms Khosla |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 10006 | of | 2017 |
| DATE DELIVERED: | 14 December 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 28-30 November 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wilson |
| SOLICITOR FOR THE APPLICANT: | Department of Health and Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Ms Renwick |
| SOLICITOR FOR THE RESPONDENT: | MLG Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Treyvaud |
Orders
The application for return of the child B born … 2006 “the child” filed 27 September 2017 by the State Central Authority is dismissed.
Orders 4, 5 and 6 [set out herein] of the orders made in this Court on 28 September 2017 are discharged.
4.UNTIL FURTHER ORDER, the respondent mother, her servants or agents be restrained by injunction from causing or permitting or suffering the child, B born … 2006 (male):
(a)to be removed from the Commonwealth of Australia, and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b)to be removed from the State of Victoria; or
(c)to reside at any address other than his present residential address or any other residence at which the applicant has agreed that the child reside.
5.The Australian Federal Police place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List UNTIL FURTHER ORDER of the Court.
6.The respondent mother, her servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Melbourne for safe custody any and all passports held in the name of the child or upon which the child appears and be restrained from applying for any further or other passports for the child pending further orders of this Court.
The Australian Federal Police remove the name of the child from the Airport Watch List.
The Registry manager shall, after 42 days have elapsed from the date of these orders, release to the Respondent mother the passports of herself and the child.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Khosla has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: MLC10006 of 2017
| Secretary to the Department of Health and Human Services STATE CENTRAL AUTHORITY |
Applicant
And
| Ms Khosla |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
This is an application by the State Central Authority of Victoria (“SCA”), filed on 27 September 2017, for an order for the return of a child to New Zealand from Australia.
a)The child is a boy, B. He is now 11 years and seven months.
The application is made pursuant to provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The Regulations were made to give effect to Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
The Convention entered into force for Australia on 1 January 1987. New Zealand ratified the Convention on 1 July 1992 and it has been in operation between the two countries since.
The Convention provides for such applications to be made to courts in the country to which a child is abducted.
The child was removed from a Convention country (New Zealand), removed to another country (India) and removed to and retained in Australia.
Regulation 2 interprets such a situation in this way:
Reg 2(1C) A reference in these Regulations to a child who is removed:
(a)From Australia to a convention country; or
(b)From a convention country to another convention country or to Australia;
includes a reference to the removal of the child to the convention country concerned or to Australia, as the case may be, whether or not the child is first removed to another country
Accordingly the situation of the child should be interpreted as having been removed from a convention country to Australia, having first been removed to another country.
In an application of this kind the best interests of the child are not the paramount consideration.
Return Orders
Regulation 14 permits an application for return of a child to be made. Regulation 16 contains the obligation to return and the bases for refusal.
Obligation to make a return order – Regulation 16
(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.
A wrongful removal conceded
In this application the mother concedes that the removal of the child from New Zealand was wrongful as defined in the Regulations.
a)The child was under 16.
b)He lived in a Convention country (New Zealand) immediately before the wrongful removal. He then lived in India (a non-Convention country), immediately before his retention in Australia. At all material times the Convention was in force between New Zealand and Australia.
c)The mother concedes that the father had rights of custody in relation to the child under New Zealand law. The child’s removal from New Zealand and retention in Australia is in breach of those rights of custody. Had the child not been so removed the father would have continued to exercise those rights.
The parents had separated on 30 November 2015 or thereabouts. In December 2015 the mother lived in a refuge with the child. On either 23 or 25 December 2015 the child was wrongfully removed from New Zealand.
Prior to removal no parenting orders had been made, inconsistent with the rights of custody of the father, or at all.
Should an order for return to New Zealand be made?
The application for a return order was filed more than one year after the child’s removal from New Zealand. The application was filed, approximately one year and nine months after removal.
The removal was wrongful as conceded.
The Court must make the order for return if the Court is satisfied that the person opposing the return has not established the child has settled in his or her new environment and none of the exceptions to return provided for in Regulation 16(3) are made out. If an exception to return is made out, the Court has a discretion to refuse to return the child. Here the respondent mother asserts that B is settled within the meaning of Regulation 16(2)(c) but, if she fails to satisfy me that is so, that B objects to returning to New Zealand within the meaning of Regulation 16(3) or that the return would expose B to a grave risk of harm or otherwise place him in an intolerable situation and asks me to exercise my discretion to refuse return.
The Independent Children’s Lawyer (“ICL”) appointed for the child generally supports the application of the State Central Authority for return and has proposed certain conditions to such order.[1]
[1] Exhibit 1
The application for return is opposed by the mother. In the event that she is unsuccessful, she too proposes conditions for return.
The position of the State Central Authority (SCA) and the Independent Children’s Lawyer(ICL)
The SCA submits that the mother has not established that the child is settled in Australia. The SCA is supported in this position by the ICL.
By way of legal argument the SCA asserts that if a finding is made, to the effect that the child is so settled, then the Court still has a discretion to exercise about a return order. Consistent with the overall position of the SCA, it was submitted that discretion should be exercised in favour of an order for return.
The mother bears the onus of establishing that the child is settled. If the Court is satisfied that the mother has not established that fact then an order for return must be made subject to my consideration of B’s objection, the mother’s contention of grave risk of harm and the exercise of any resultant discretion to refuse return.
Further both the SCA and the ICL contend that none of the exceptions in Regulation 16(3) are established and that, if I am satisfied that one or other of the objects to return or grave risk exception is made out, then I should decline to exercise my resultant discretion to refuse return.
Conditions for return proposed by ICL
The conditions proposed by the ICL are set below. In submissions there was a revision based on the evidence of the father and certain conditions (highlighted in grey) were withdrawn:
1. Intentionally omitted.
2.The child shall not be returned to NZ prior to the conclusion of his current school year.
3. The mother shall have 48 hours from the date of these orders to elect whether or not she will return to NZ.
4. If the mother elects to return to NZ, the following conditions shall apply before the departure of the child from Australia:
a. Written confirmation that these orders are registered in a Court of appropriate jurisdiction in NZ and that they can be enforced in that jurisdiction;
b. Written confirmation that:
i.No proceeding for enforcement of any existing order in NZ regarding the child shall be initiated; and/or
ii.Any extant proceeding for enforcement of any order in NZ regarding the child is stayed;
c. The father shall attend to the following:
i.Payment of the reasonable cost of airfares from [City E] to NZ for the mother and the child;
ii..Payment into the Trust Account of the mother’s solicitors such sum as to provide for:
1.One month’s rent for reasonable accommodation for the mother and the child; and
2.Such sum to pay for the reasonable cost of living for the mother and child for one month in clear funds to be paid by the mother’s solicitor to the mother, into a bank account nominated by the mother, such payment to be effected immediately after the mother has departed Australia bound for NZ and so as to be accessible to the mother upon her entering NZ.
5.By injunction, the Father is restrained from causing, directly or indirectly, any criminal prosecution or civil action to be taken against the mother arising out of obtaining a passport for the child or arising from the circumstances surrounding her removal of the child from NZ in December 2015.
The position of the mother
The mother submits that the Court could not be satisfied that she has not established that the child has settled in his new environment. She submits that he is so settled.
By way of legal argument the mother asserts that if I am satisfied that the child is settled, the Court’s jurisdiction under the Regulations is exhausted and there is no power (discretionary or otherwise) to make an order for return under the Regulations.
Next, the mother submits that if the court is satisfied that the child being settled is not established, then the mother can rely on two of the defences in Regulation 16(3):
16(3)(b) 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
and
16(3)(c) that the child objects to being returned with an objection that shows a strength of feeling beyond the mere expression of a preference or ordinary wish and has attained an age and degree of maturity at which it is appropriate to take account of his views.
It is clear in the regulations and conceded by all parties that if either of those two defences are established, a discretion is enlivened for the Court to exercise [a Court may] as to whether or not to make an order for the return of the child.
Conditions proposed by Mother without prejudice to her primary position to oppose return
The conditions proposed by the mother are set below:
1. Intentionally omitted.
2. The following conditions apply in relation to the order for the return of the child, being Order 1 above:
a. The Father do all such acts and things necessary to withdraw the Enforcement Proceedings and any other associated proceeding (including criminal proceeding) in respect of the Respondent Mother having the care of the Child or removing the Child from Australia;
b.The Father be restrained from further bringing Enforcement Proceedings or otherwise seeking to enforce the Parenting Order made in the Family Court at Manukau on 15 February 2017 in respect to the Child;
c.The Father will not voluntarily support any charge, punishment or committal of the Respondent Mother in respect to her removal of the Child from New Zealand or his allegation about “forging” his signature;
d. The Father undertakes to pre-pay for airline tickets for the Respondent Mother and the Child to travel from [City E] to {City P], New Zealand
e.The Father will arrange for habitable independent accommodation for the Respondent Mother and the Child for a period no less than six months and continue to meet all expenses in relation to that accommodation.
f.The Father will arrange for a mobile telephone and subscription to be available for the Respondent Mother and pay for that subscription for a period no less than six months.
Documents Relied on
A Hague Convention Report was prepared by Family Consultant Margaret Heaton dated 21 November 2017 and is before the Court.
The parties relied upon the following documents:
State Central Authority
1.Application Form 2 The Applicant Ms L, Acting General Counsel and Chief Legal Officer, Department of Health and Human Services filed 27 September 2017.
Annexed to that Application:
Annexure A - Application in Accordance with the Hague Convention;
Annexure B - Affidavit of Mr F, Barrister and Solicitor of the High Court of New Zealand with a copy of Parenting Order(s) made, subsequent to removal, in the Family Court at Town G in New Zealand annexed and marked A;
Annexure C - Affidavit of the father Mr Sandhu in Support of the Application with that affidavit annexing:
- parenting orders from New Zealand;
- Warrant to Enforce Role of Providing Day to Day Care For Child from the Family Court at Town G;
- Birth Certificate for the child.
Annexure D - formal affidavit of Ms L.
2.Affidavit of Ms T, solicitor employed by the Department of Health and Human Services filed 17 November 2017 annexing:
- “NL-1” a second affidavit of the father (in reply to the affidavit of the mother) filed 17 November 2017.
The Mother
3.Form 2A Answer and Cross Application Ms Khosla - the mother filed 6 November 2017.
Contained in the Cross Application are conditions proposed by the mother in the event that she was unsuccessful in opposing the order for return.
3.Affidavit of the Mother filed 6 November 2017.
4.Affidavit of Mr H in support of the mother filed 6 November 2017.
5.Affidavit of Mr K in support of the mother filed 6 November 2017.
The Trial
The father travelled from New Zealand to be present for the hearing. Each of the parents, the two witnesses for the mother and the Family Consultant were cross-examined. Both parents were assisted in giving evidence by an interpreter of the Punjabi language.
Cross examination was at times directed to the domestic conflict between the parties and the issues which would likely be determined in contested parenting proceedings.
Much of it had no bearing on the defined issues for determination of this application. However at times responses did illuminate the questions of what would constitute “being settled” for this particular child and the experiences which may have informed his observed strength of feeling in the expression of a view.
Background
The mother Ms Khosla is aged 33 years. The father Mr Sandhu is aged 36 years. Both parents were born in India and both are Sikhs whose first language is Punjabi. That is the language they use within the home and local community.
In 2003 the father migrated to City P, New Zealand and has lived there since with many members of his extended family within the Punjabi community in City P.
Within two years of his move to New Zealand a marriage of the mother and the father was arranged by their respective families. The mother was living in India with her family.
In April 2005 the parents married in India, having met once in the week prior.
In June 2005 the father returned to New Zealand with his new wife. The parties moved in with the father’s brother and sister in law and their three children then aged between 17 and 11. The property at Suburb Y in City P (the Suburb Y property) was owned by the father’s family.
In 2006 the subject child B, was born. Eleven months later in 2007 the second child C, was born. C was diagnosed with Autism at about age three and, from the description of the parties, is affected by the disorder such that he benefits from a special learning unit at school as he has difficulty understanding complex ideas.
Events prior to wrongful removal
From the perspective of the father, the marriage of the parents was unhappy from the outset:
Since after the marriage Ms Khosla [the mother] has been disrespectful and abusive towards my family and later our two sons. This became worse in 2010.[2]
[2] Father’s affidavit affirmed 21/08/2017, par 4
From the perspective of the mother, the marriage of the parents was “settled” at the beginning, with conflict later escalating particularly after a trip to India in 2011/early 2012. The mother struggled with difficult relationships with the father’s extended family.
On 25 December 2011 the parents and children travelled to India to visit the mother’s family. They stayed for three months. On the last evening there was an argument between the father and the maternal grandfather.
On return to New Zealand the mother alleges that the father slapped her face and pushed her to the floor. As she attempted to leave the house through the garage the father pushed her into a stationary car.
First contact with police - 2012
In 2012 the mother alleges that the father hit her in the head. The mother called the police. This appears to be the first contact by the mother with the police. The father immediately called the mother’s family in India and spoke to the mother’s brother. He then passed the telephone to the mother. The maternal uncle rebuked the mother for calling the police and directed her to tell the police to leave. When the police arrived the mother says she apologised to them and said she did not want her husband to be arrested. The police spoke with the father and gave him a warning and left.
After this event the father distanced himself from the mother and children. Around this time the father spoke to the mother of divorce and suggested she return to India without the children. The mother did not want a divorce with the consequential shame for her family and herself. She did not wish to return alone to India.
In late 2013 the father became extremely ill and was hospitalised for a month. As he improved and the mother visited him every day the marriage also subsequently improved.
On discharge the parents and children only, moved into separate accommodation (“Q Street”). That property was also owned by the paternal family. I infer that this move caused a rift between the mother and the husband’s family. They did not visit her at Q Street and she did not accompany the father and children to visit them. She rarely left the house.
From June 2015 the mother says the father stopped coming home and ceased talking to her. The father referred to the fact that the mother had telephoned his brother and said, using the father’s words in oral evidence, “You’re spoiling my life blah blah blah”. A clear picture emerged of the father having reached the end of showing any interest in the mother at all or of affording her any respect. He regarded her as a source of trouble: causing trouble for him with the police and causing trouble with his family.
On 28 June 2015 the mother asserts that the father threatened over the phone to come home and kill her.[3] The mother put the children in the car and drove to the home of a mutual friend. The father arrived soon after and is described as being angry and yelling. The mother called the police who attended and put in place a safety order in favour of the children and the mother against the father for a period of three days. The safety order is annexed to the affidavit of the mother.[4]
[3] Mother’s affidavit filed 6/11/2017, par 48
[4] Mother’s affidavit filed 6/11/2017, annexure HK 1
The safety order expired at 9.26 pm on 1 July 2015. The father agrees that at 9.30 pm on that evening he attended at the home and took the younger child C home with him. On the next day the father attended the home with his nephew and removed the subject child B from the care of the mother.
In his second affidavit and in his oral evidence the father globally denied any abusive conduct whatsoever towards the mother, the children or anyone else. He went so far as to say that he had not, in relation to the mother or the children, sworn, become angry, used physical force (including slapping), yelled or been violent in any way, “I have never done anything wrong in my life.” Such blanket denial and the assertion of a blameless life was inherently improbable and adversely affected the credit of the father. It is entirely inconsistent with at least fifteen visits by the police to the parties’ household between 2012 and 2015 and the mother removing herself to refuges on two occasions.
When the proposition was put that the mother was scared of him the father both smiling and laughing said, “Never, she’s not scared”.
Further there is evidence that on many occasions the mother expressed the intention to kill herself and twice she jumped out the window of the family home. Once from a ground floor window, once from an upper floor window. The evidence of the father about that was dismissive and indifferent. He did not respond when asked whether the mother had hurt herself jumping from the second floor window.
Q: Did you know she was going to jump?
A: No, she just did it.
Q: What did you do?
A: I went with my nephew and got her, put medicine on her foot. She was always going to say ‘I am going to harm myself, I am going to kill myself.
Q: What did you do to help her?
A: What can I do? I say don’t do it, stop doing it. She’s not a child, she’s mature enough not to do that.
When asked whether the mother must have been upset to jump out of the window the answer was, “I don’t know if she was upset or not. She was so angry she could have done anything. She was violent enough to kill”.
The father asserted more than once that the mother was violent although he did not assert that she had ever actually hurt anyone.
The father denied owning a gun. The evidence does not support a finding that he does own a gun. However there was a picture on the father’s Facebook page of the younger child with an air rifle.[5] The father agreed the gun was owned by his neighbour and was a gun that he had often handled and used. It is not unreasonable to infer that the mother believed that the gun was his.
[5] Exhibit 6
The father spoke in derogatory terms about the mother throughout. He regularly repeated that she was a liar.
Q: Her allegations of violence are all lies?
A: Yes.
On 29 August 2015 the mother returned home. The car of the father’s nephew was in the driveway. She alleges that the nephew both yelled at her and pushed her. The mother contacted the police who attended removed the nephew from the property and issued a Trespass Notice to him. The nephew was apparently held at the police station over the weekend.
The mother asserts that the father reacted angrily:
[Mr Sandhu] was furious that [Z] [the nephew] had been taken by the police. He yelled at me and threatened to kill me. I could see in his face and body language that he was angry. His hands were clenched in a fist and he had anger in his eyes. He said words to the effect of, “now it is time for revenge”. I was terrified of [Mr Sandhu] and his family and what they would do.[6]
[6] Mother’s affidavit filed 6/11/2017, par 58
The mother put the children in the car and drove away eventually staying at a women’s refuge for one week. At first she used a credit card provided by the father to purchase groceries but within two days, the father concedes, he had cancelled it.
Whilst in the refuge the mother received several calls from her parents in India who were upset that she had separated from her husband and was living outside the home. They directed her to return to the father. The mother complied and returned to the Q Street property with the children.[7]
[7] Exhibit 3
On 27 November 2015 the mother alleges that the father was physically violent towards her. Her father in law had been questioning her about suspected misconduct. The mother alleges that the father slapped her repeatedly to the head and face stating, “I will kill you” and, “Why don’t you go and die somewhere”.[8]
I tried to escape by pushing him out of the way of the door. I wanted to get away from him however he was too big and he pushed me to the bed where he took a pillow and held it over my face trying to smother me. When on the bed I used my hands and arms to try and push him to the side. When I eventually pushed him off he used an open palm to hit me on my ear. I cried in pain and pulled away from him. He left me in the bedroom and he returned to his father.[9]
[8] Mother’s affidavit filed 6/11/2017, par 65
[9] Mother’s affidavit filed 6/11/2017, par 66
The mother says she did not call police for fear that the father would try to kill her. On the following day the mother attended a General Practitioner. Photographs of a bruised ear and a copy of the medical record from the health care centre are annexed to her affidavit.
The father was asked about that injury. He denied, as he did on every occasion on which violence was alleged, that there had been violence of the kind described and denied that the photographs revealed injury.
The father then removed the children and went to live in the Suburb Y property with his brother. The mother remained living alone at the Q Street property.
On 30 November 2015 the mother attended uninvited at the home of the father’s brother. She left with the younger child having been unable to sight the older one. The mother asserts an angry scene followed later that evening when the father came to the Q Street property and forced his way in.
She locked herself into the master bedroom with the father, to use her words, yelling, “Today I am going to kill you and don’t you dare call the police”. The mother did call the police and the police arrived. The father’s family advised that the Q Street property was owned by them and that the mother was no longer permitted to live there. The mother was issued with a Trespass Notice.[10]
[10] Mother’s affidavit filed 6/11/2017, annexure HK 4
The mother was at that point, homeless.
The mother was able to stay short term with a distant relative of the father’s. She then attempted to stay at the women’s refuge however they were unable to accommodate C’s special needs.
The mother at that point had nowhere to live and no money. She returned C to the care of his father.
Four or five days later the mother asked the father’s family to let her see the children. She went to the home. The older child B was present, greeted her warmly and agreed that he wanted to go with her. They left together.
C remained in the care of his father.
Thereafter the mother and the older child lived for one month at a mission refuge and the mother relied on social security payments during that period.
On 23 December 2015 the mother travelled to India with the older child B. She bought a ticket on the day that B’s visa became available. She drew on accrued funds in a bank account paid as a special needs government benefit for her younger son. She was contrite in the witness box for having done so.
Events after wrongful removal - in India
In India, from December 2015 until May 2017, the mother and B lived with the maternal grandparents.
The mother’s brother contacted the father and told him that the mother and B were living in the home of the maternal grandparents. The father concedes that he became aware on 1 January 2016 that the mother and child had left for India.
The child B attended school in India.
The father said in his affidavit[11] affirmed in August 2017 that he had not seen or otherwise been in contact with the mother or the child since December 2015. On his own oral evidence that is incorrect. There were five or six telephone calls between the father and the child and several telephone calls directly between the two children. A family friend personally delivered a gift for the child from the father.
[11] Father’s affidavit affirmed 21/08/2017, par 9
There was at least one conversation between the parties.[12]
[12] Exhibits 4and 5
The mother at first maintained contact with the younger child C through his school. In March 2016 the father directed the school, and the particular classroom teacher, to not allow this to happen. Contact ceased.
On an unidentified date in 2016 the father applied to the Family Court in City P for parenting orders.
By 2 December 2016 a relevant order had been made.[13]
[13] Exhibit 2
Family Court documents including orders, directions and information were sent to India for service on the mother. At least by 16 January 2017 those documents were served on the mother.
On 17 February 2017 final orders were made in the Family Court in City P. The orders provided for the father to have day to day care, and exclusive responsibility for living arrangements, for both children to age 16.
On the same day a warrant issued to enforce the role of the father providing day to day care of B.
The mother was reminded by her family of the shame that she had brought to them by separating from her husband.[14]
[14] Mother’s affidavit filed 6/11/2017, par 88
At the suggestion of her brother the mother decided to leave India to travel to City E and stay with her brother’s good friend, Mr H aged 34.
Events after wrongful removal in Australia
On 3 May 2017 the mother and B arrived in Australia and were met at the airport by Mr H. They began living with him, his wife and two year old son.
The child began attending X School at Town J and is now just finishing Year 6.
After about 3 months Mr H and his family travelled to India. Arrangements were made through Mr H for the mother to stay with another family close by in the area. This is Mr K aged 44, his wife and their three children aged 14, eight and two.
There was a two week transition period for the mother and the child with another family until the second residential arrangement began.
By about August 2017 the mother obtained full time casual employment as a packer.
Should an order for return be made?
Can the Court be satisfied that the mother has not established that the child is settled in his new environment?
The mother asserts that B enjoys his school and enjoys activities around the city including the Sikh temple in the local area. She said he sleeps well, has made friends at school who he is fond of, he is doing well at school socially and academically, that she has been told by his teachers that they are fond of him and that he is polite in class.
The Family Consultant in her oral evidence noted that the child had spoken to her very positively about school, that he had good friends there and liked his teacher. He was keenly anticipating starting Year 7 next year within the same school but at a different campus. She noted that he liked all his subjects, particularly English, was not keen on homework but was positive about school generally.
The Family Consultant was clear to say that the child believed he would stay in his current school and progress to Year 7. It is apparent that he is unaware of the possibility of being returned to New Zealand.
The mother also referred to the child being part of the Punjabi community in their local area at Town J and the friends they have made with people in the area. The child attends religious events and also enjoys local festivals, for example, trick or treating for Halloween.
The mother had, prior to marriage, been undertaking a teaching degree in India. Her studies ended when she married. Her evidence is that she had always hoped to study and to work, particularly work, and that the achievement of having full-time work, although casual, has been a very significant factor for her and a benefit for the child.
I also take into account evidence from the two families with whom the mother and child have stayed in Australia.
Mr H has known the mother for fifteen years. He is a close friend of her brother and she clearly has a family feeling about him. When B had his first day at school Mr H and his wife went with the mother and child as well. Mr H has behaved sensitively around the child:
I never asked him about New Zealand, didn’t want to disturb him on family issues. I don’t talk to him about his father. I haven’t lived with him so I don’t know what has happened.
He allowed the child to talk, and B did so, about his younger brother who he described as “having some issues”. Mr H considered that he could see that the child missed his brother.
In his affidavit Mr H observed that the child had “become more confident since he has been in Australia, he appears healthy and relaxed…”
After the mother and child moved to the K household contact was maintained between themselves and the household of Mr H, “Yes she comes to visit most days to see my wife”. He also referred to the mother “having real friends now, four or five, more now that she is working. She is starting to be comfortable.” Those words, “She is starting to be comfortable” resonate with the evidence of Mr K.
B has established a close bond with the K family and refers to the mother of that family as “Aunty” regarding her as his mother’s sister. The two families all eat dinner together at night. B enjoys spending time with the K children. They go swimming together and play in the park.
Mr K described the share arrangement as working well, “They love to live with us. These children get along.” He also quoted what B had said to him, “I love Australia, I love school”.
B explained to Mr K that in Australia he has a better life, more multicultural and no racism in Australia like (there is) in New Zealand. (The child had been teased at school over the distinctive Sikh manner of arranging his hair).
Mr K impressed as a charming, kindly, family minded man who has been of great assistance to the child and the mother in feeling secure and comfortable. He was clear to say that mother and son were “welcome to stay with us as part of our family as long as they like”.[15]
[15] Affidavit of Mr K filed 6/11/2017, par 13
The child and the mother maintain contact with the H family with Mr H being an important man in the child’s life. I note also that Mr H in oral evidence responded to a question from the Independent Children’s Lawyer, “Would you say she [the mother] has support here in Australia?” His answer revealed to some extent the progress that the mother has made in Australia:
She has started to feel a little bit more comfortable. That’s what I can see. She was very, first day she comes, she was a little bit nervous. She was panicked. She don’t talk much. She always sit down and cry. But now the more she’s going out she’s getting a little bit more comfortable.
I infer that the mother was fragile and sad but has settled and gained confidence in the two households but also in Australia. Given the evidence of the Family Consultant that the child’s close relationship with his mother is his greatest source of security, her settling in and finding work in Australia would assist his quick assimilation into his new environment and impact favourably on his own sense of being settled.
Conclusion on whether B is settled
The decision of the Full Court of the Family Court in Director-General, Department of Community Services & M and C (1998) FLC 92-829 is authority for the position that the word “settled” should be given its ordinary and natural meaning “the test and the only test to be applied, is whether the children have settled in their new environment”. That test is to be applied either at the time of the application being made or at the time of the trial.
I have taken into account all of the evidence including that given at the trial in November 2017 of the settling process outlined above which began from first arrival in May 2017. I note that there is no evidence that the child has ever asked to return to New Zealand and there is evidence of a wish not to return to New Zealand which in this context is part of my conclusion that he is well settled in his new environment, Australia.
Taking all the evidence into account I conclude that at the time of trial, although only seven months had passed since the child arrived in Australia with his mother, the child has settled in his new environment. I am supported in this conclusion by two things.
First, it has been the experience of this child most of his life, apart from when he was living in a women’s refuge, to live with extended family, either his own family, paternal in New Zealand and maternal in India, or with the family of close friends, as has happened in Australia. It is a familiar way to live for him.
Although he and the mother are boarding, I accept that they are included in all aspects of family life and activities. They are treated as family members. It is important to the mother that she makes a financial contribution.
Second, the child has at least, since 2012, experienced an unsettled life, through conflict between his parents and between his mother and extended paternal family which has led to disruptions to his living arrangements and angry confrontations.
It has also lead to police intervention many times in New Zealand with subsequent recriminations within the family. He has probably been exposed to family violence.
In India he was old enough to be conscious that his grandparents, no matter how much they loved him, felt shamed by the mother’s conduct.
By contrast, for seven months he has lived in an environment of respect and affection and peace. He has been able to relax and enjoy his new life.
He appears to have relished the opportunity to settle into a school, make friends and to celebrate with his mother: her obtaining a job, income and independence which even at 11 years he knows she wanted.[16]
[16] Hague Convention Report, par 19
Counsel for the SCA submitted that the child must be unsettled in Australia living with strangers. I take a different view. I find that B has embraced life in Australia.
The evidence is the mother and child are welcome to remain even in the situation where the mother lost her job and could not continue to contribute to living expenses in the household as she does now. The child has a close and friendly relationship with the older children in the household. The mother for the first time has work and sufficient income to meet her own expenses and those of the child. There is a secure continuity about the mother’s life and B’s life in Australia. The mother has made friendships and her emotional state has improved and more than anything, the child loves his school and is looking forward to the transition to high school on a different campus.
Accordingly I cannot be satisfied that the mother has failed to establish that the child has settled in his new environment
Is there a discretion remaining to be exercised?
I will now turn to the issue, which was argued, of whether or not there is power to make an order for return despite the child being settled.
In the decision of State Central Authority v Ayob (1997) FLC 92-746, a decision of his Honour Justice Kay, His Honour said this: “If it is suggested that within the four walls of the Hague Convention there is room for discretion in respect of a child who has met the criteria of being more than one year away from the wrongful retention or removal and now settled in its new environment, then in my view there is no such room”.
With respect I agree.
The Convention recognises the principle that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is unexceptionally the child’s country of habitual residence.[17]
[17] Family Law (Child Abduction Convention) Regulations 1986 (Cth) r 1A(2)(b)
The purpose of the regulations is to implement the convention with a spirit of reciprocity and mutual respect between relevant authorities in convention countries.
There is a period of one year for what is sometimes called “hot pursuit” of an abducted child. The Convention explicitly provides for consideration by a Court that, after that period of one year, the child might have settled in the new environment and imposes the test referred to in the regulation. If the Court is satisfied that the person opposing the return (usually the abducting parent) has not established that the child has settled then an order for return is mandatory.
Logically if the child has settled in a new environment, there is a concomitant reduction in the significance and juridical propriety of a parenting dispute being resolved in the child’s original country of habitual residence. In my view the word “ordinarily” in the phrase “appropriate forum…is ordinarily the child’s country of habitual residence” is consistent with the Convention ceasing to operate in relation to a child who has been out of its former place of habitual residence for more than one year and having become settled in another contracting state. It does not preclude the child’s return under another head of jurisdiction, such as a parenting order, for which the child’s best interests are usually a precondition and a full consideration of facts is required. It is related exclusively to the purpose of the Convention.
Subsequent decisions State Central Authority & Hajjar [2010] FamCA 648; State Central Authority & Castillo [2015] FamCA 792; and State Central Authority & Fang [2017] FamCA 533 were cited. All those authorities support the proposition that the power of the Court under the Regulations is exhausted if there is a finding that the child has settled in a new environment.
I was taken to a contrary decision in the matter of Department of Communities, Child Safety and Disability Services & Hughes [2017] FamCA 509. In that matter, involving the application for the return of a fifteen year old child to South America, Her Honour Justice Hogan found that, on the balance of probabilities, the child was settled in Australia but concluded that a mandatory order for return would be made.[18] The matter proceeded on the basis that the Court does retain the discretion to make an order for the return of a child even if a finding has been made that the child is settled. The apparent basis for this conclusion is a reference to Regulations 14 and 15 of the Regulations, specifically Regulation 15(1)(a)
[18] Department of Communities, Child Safety and Disability Services & Hughes [2017] FamCA 509, 61
The circumstances of a return order are comprehensively set out in Regulation 16. Regulation 15 repeats the power of a court to make a return order as well as other orders the Court considers appropriate and conditions. I respectfully disagree with the conclusion that Regulation 15 has bearing on, or creates, residual discretion in respect of Regulation 16(2)(c).
Once 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 make an order for return subject only to the defences and exceptions in Regulation 16(3). In my view if the Court is not so satisfied, that is the end of the matter.
I will now refer to the defences, which on my analysis, do not come into play.
Defences
Had I not been satisfied that the child was settled, and the defences raised had been considered, I should say that the objects to return defence raised under Regulation 16(3)(c) had considerable force for these reasons.
The child did object to being returned to New Zealand. His objections showed to the Family Consultant strength of feeling beyond the mere expression of preference or ordinary wish.[19] Although eleven and a half years old the child was assessed by the Family Reporter to have a degree of maturity such that it was appropriate to take account of his views.[20] He was reported to present as a “well-grown, pre-pubescent boy, articulate, able to express his thoughts, views and feelings competently and with confidence”.[21]
[19] Hague Convention Report, pars 47-49
[20] Hague Convention Report, pars 50-51
[21] Hague Convention Report, par 11
He spoke with clarity and detail about life in New Zealand.[22] In terms of his own treatment by his father he spoke of being yelled at, slapped and compared in a harshly negative way with others.
[22] Hague Convention Report, par 14
He recalled mistreatment in New Zealand of his mother by his father with some feeling.[23] He was pessimistic about returning to New Zealand in the context he feared, which was of parental reconciliation “even if we went back he would do it all again. The abuse, the arguments for no reason, the swearing, the slapping”.[24]
[23] Hague Convention Report, par 15
[24] Hague Convention Report, par 17
The child did not want to see his father but a brief observation was undertaken for the purposes of the report. It was an angry confrontation with the child rejecting the father and the gift he offered.[25] The father himself responded in an increasingly angry way, which in the view of the Family Consultant, “Escalated rather than diffused the situation.” The Family Consultant brought the observation to an end on the basis of that reaction by the father.
[25] Hague Convention Report, par 21
After the observation the child was observed “to be somewhat overwhelmed by the intensity of his own emotions”.[26] The Family Consultant considered those emotions were anger and rage, not observably fear. I raised with the Family Consultant that the child had referred to his father as “scary”, but the Family Consultant considered that was an objective view, rather than something he felt himself. I take that to mean that the child considered that the father was scary to others.
[26] Hague Convention Report, par 22
Significantly in my view, the Family Consultant discussed with the father the allegations that he had subjected the child to verbal, physical and emotional abuse and examples were shared with him. The father neither confirmed nor disputed the abusive nature of those alleged events involving the child.
In the view of the Family Consultant the child expressed strong objections about returning to New Zealand based on his own experience of his father’s behaviour and also his exposure to family violence. He reported witnessing his father attempting to smother the mother with the pillow once and on another occasion threatened to stab her with a knife. The child said he intervened and begged his father not to hurt his mother. I note that the mother referred to the smothering incident in her affidavit, although not to any incident involving a knife. That disparity does not persuade me either way as to the truth of the incidents but is inconsistent with the child being actively coached.
The “intensity and the persistence of the child’s emotions” strongly suggested to the Family Consultant that the strength of his feelings went beyond a mere expression of preference or ordinary wishes. At eleven and a half years the child was assessed to have the cognitive ability to distinguish between, “behaviour that is nurturing and loving” and behaviour that is “abusive and controlling”. A strong moral sense about right and wrong was assessed to be developing.[27] Further his ability to manage “overwhelming emotions” after seeing his father (after two years apart) suggested to the Family Consultant a level of maturity beyond his years.[28]
[27] Hague Convention Report, par 52
[28] Hague Convention Report, par 53
The Family Consultant recommended that his views be taken into account. In her oral evidence the Family Consultant expressed the view that the child did not draw a distinction between New Zealand and his father, that is, between people and place. He was worried that his mother might want to go back and thought perhaps she did want to go back but in his own view, “we shouldn’t go back.” The Family Consultant was very clear to say that she thought the child’s feelings and views were shaped by his own lived experiences although she could not exclude the possibility of the mother’s negativity towards the father.
The Family Consultant also repeated her concern identified in the report, that the father had not diffused the situation in her rooms. Rather he responded in anger to his son’s confronting language and behaviour. He is reported to have said these words, “So you don’t need your father, fine, we’ll see what will happen”. The Family Consultant referred to this being said in a threatening way. She interpreted the situation as the father communicating to the child, “You are angry with me and there are going to be consequences”.
Grave risk /Intolerable situation
I am not satisfied that there was sufficient evidence in respect of grave risk. It would only be in fully contested parenting proceedings that a Court could safely come to a conclusion about the events that had taken place during the course of the parties’ marriage and the capacity of each parent.
I consider there would be some risk of psychological harm to the child if returned, even if orders were made and registered that restrained execution of the outstanding warrant and kept the child with his mother until an application could be made to the Family Court in New Zealand.
I am supported in this view by the attitude of the father to the mother.
Although he did so willingly, the father is bitter about having had to give up his business and provide full time care for his younger son after the mother left for India. It puts him in a weakened financial position. He regards the mother as having “kicked herself out” of the younger child’s life.
It was apparent that the conditions proposed by the ICL and the mother being that the current New Zealand Family Law orders not be enforced and the warrant for the return of B not be executed that the father had no appetite for cooperation with such conditions.
Q:B coming back to New Zealand with immediate removal by warrant would not be good?
A: I accept that it’s not good for her to have taken him to the airport.
Nor was the father willing to provide financial support for the mother immediately on return even if he could organise funds. He said in very clear terms that he would pay anything and do anything he could for his son but the mother could look after herself.
The ICL withdrew the condition about the payment by the father of some money for support for the mother if the child was returned. It was proper to do so. The father either cannot, because of his changed financial circumstances, or will not, make such a contribution to the initial support of the mother in New Zealand or both.
The father has made a statement to the police in New Zealand accusing the mother of having stolen from him, valuable property, including jewellery.
That is not to say that the father would refuse to comply with conditions imposed by the Court. In my assessment he would do everything he could to achieve the return to him and his family of B. His rejection of the mother however appears complete.
It would be a very difficult return for the child, but not such that would put him in an intolerable situation. His return would be warmly welcomed by the paternal family. I am confident that consistently with our Full Court’s discussion of conditions in Arthur & Secretary of Family & Community Services and Anor,[29] I could have crafted a set of safe harbour orders which would have ameliorated some of the inevitable disruption and distress of B’s return to New Zealand.
[29] [2017] Fam CA 111
Discretion to refuse return
Upon being satisfied that B objects to return within the meaning of Regulation 16(3)(c), I would have a discretion to refuse return. Our Regulations and the Convention itself are silent on the matters which inform the exercise of the discretion to refuse to return a child once an exception is made out. However, B’s best interest would clearly be a relevant consideration for me as would the matters discussed in SCA v Zafiropoulou [2006] FamCA 254. This is a decision of Her Honour Justice Bennett considering the objection to return of a child aged almost eight years.
I am inclined to the view that, on the facts of this case, I would have exercised my discretion to refuse return.
Orders
An order for dismissal of the application, based on the child being settled, is made accordingly.
I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 14 December 2017.
Associate:
Date: 14 December 2017
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