State Central Authority and Raleigh

[2010] FamCA 1127

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & RALEIGH [2010] FamCA 1127

FAMILY LAW – CHILD ABDUCTION – Hague Convention proceeding – Application brought by the Director-General of Department of Communities seeking the return of the child to the father in New Zealand – Where the mother successfully applied for a temporary protection order and an interim parenting order from the Family Court in New Zealand – Where there is seeming conflict between the father’s evidence of no criminal history since prior to April 2008 and the subpoenaed material – Where the additional material to be received from New Zealand which will assist the Court – Substantive application adjourned to a date to be fixed

APPLICANT: Department of Communities (Child Safety Services) as State Central Authority

RESPONDENT: Ms Raleigh

FILE NUMBER: BRC 8147 of 2010

DATE DELIVERED: 9 December 2010
In Chambers

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 26 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hogan of Counsel appearing for the Applicant

SOLICITORS FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Green of Counsel appearing for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: Parker Family Law

Orders

1. The proceedings be adjourned for review before a Registrar on a date to be fixed. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC8147/2010

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) as State Central Authority

Applicant

And

MS RALEIGH

Respondent

REASONS FOR JUDGMENT

1. I am asked to determine an application brought by the Director-General, Department of Communities in her capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986.

2. The application seeks the return of the child, O, born in January 2010 to New Zealand.

3. The requesting party is the child’s father, Mr C born in 1986, a resident of New Zealand.

4. The Respondent to the application is the child’s mother, Ms Raleigh, born in 1989. 

5. The Respondent opposes the making of an order for the return of the child on two grounds:

   a.pursuant to Regulation 16(3)(a)(ii) the Father subsequently acquiesced in the child being retained in Australia; and

   b.pursuant to Regulation 16(3)(b) there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

6. Regulation 4 of the Child Abduction Convention Regulations is in the following terms:

   “4.For the purpose of sub regulation (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 in immediately before his or her removal or retention.”

7. The Mother came to Australia with the child on 2 May 2010 and has remained in this country since that time.

8. The Father swore an affidavit on 12 July 2010 which is annexed to the application initiating the proceedings.  In paragraph 6 of this affidavit he states:

   “6.The next time I heard from [the mother] was when she telephoned me on 13 May 2010.  She told me she was ringing from Australia, that she was not coming back.  [The mother] told me that I had to go over to her because she was not going to come back to New Zealand.  However, this places me in a difficult position as I have another daughter, [S], who lives in [New Zealand] with whom I have a lot of contact and a good relationship.  In any event I have a history of minor criminal offending which may impact on my ability to travel to Australia.  I have served a term of imprisonment for unpaid fines and for breach of community detention.”

9. The Mother filed an affidavit on 1 October 2010.

10. In that affidavit she makes serious allegations concerning the Father’s conduct during the course of their relationship with the Father behaving, at times, in a threatening and aggressive manner towards her.

11. She details daily use of cannabis by the Father.

12. Prior to her departure from New Zealand the Mother successfully applied for a temporary protection order and an interim parenting order from the Family Court in New Zealand.

13. In her affidavit the Mother provides details of threatening, abusive and obscene text messages received from the Father.

14. At paragraphs 121 to 123 the Mother deposes:

    “121.I left New Zealand because I did not feel safe for myself and [the child].

    122.[The father] associates with members of [the B Gang].  This is a well known New Zealand gang known for its anti-social and criminal activity.  [The father] himself has a criminal record.

    123.During my relationship with [the father] I observed that he does not have any respect for the law.”

15. In a response affidavit of the Father filed on 12 October 2010 at paragraph 7 he deposes:

    “7.Although we did talk occasionally about visiting Australia the Respondent knew that I could not go with her because of my criminal history and the fact that I had another daughter in [New Zealand].  As well, due to the Respondent using and parking my unwarranted car outside the [local] Police Station, I have incurred a fine of $600.  I would be unable to leave New Zealand until that fine had been paid off.  There was no discussion about a planned “move” to Australia.

16. At paragraph 21 of the same affidavit the Father says:

    “21.On the 8 October 2010 I applied for details of my criminal history, sentences and community service served to be supplied to me by the police.  I understand that this process may take 22 days.”

17. The parties were well aware the matter was set down for hearing on 26 October 2010.  It was always going to be problematical whether the Father could receive the documents within the requisite time frame.

18. Having regard to the terms of regulation 4 and the matters that must be canvassed by a Judge in determining whether a residual discretion should be exercised, it is appropriate in circumstances such as this that the Applicant Department should seek the criminal history and full particulars of such offences from the relevant Departments.

19. I had in mind to raise this aspect with Counsel for the Applicant but Counsel foreshadowed at the commencement of her submissions that she would seek an adjournment of the matter after the making of submissions so that relevant subpoenae could be issued to obtain the necessary documentation.

20. Counsel for the Mother in opposing any adjournment referred the Court to case law on this aspect.

21. It is accepted that the Mother carries the onus of establishing both acquiescence and grave risk. Counsel for the Mother drew the Court’s attention to the judgment of Callinan J in the decision DP v Commonwealth Central Authority (2001) 206 CLR 401 at 456.

22. At paragraphs 187 to 189 his Honour noted:

    “187.In any event, one of the rules of evidence is the rule in Blatch v Archer [148] - - - that all evidence is to be weighed and assessed by courts having regard to the capacities of the parties to adduce it.  Its application here would result in the imposition of a very light burden on the Appellant only.

    188.Contrary to what the primary Judge and the Full Court held, I am, with respect, of the view that the Appellant did tender sufficient evidence to “establish” in a prima facie way at least, that the removal of EL would expose him to physical or psychological harm, or place him in an intolerable situation, in the locality in which he was likely and could reasonably be expected to reside.  I would regard the unavailability of suitable treatment for Autism as involving the child in exposure to physical or psychological harm or otherwise placing him in an intolerable situation within the meaning of the regulations.

    189.The situation in this case was that the Appellant had established that her efforts to find suitable treatment in Greece had been unavailing.  Against that was evidence which the primary Judge, correctly, thought did not prove the availability of treatment in the Appellant’s own region, and an assumption only on the part of his Honour as to what would be likely to be available somewhere else in the Republic of Greece.  This could not tilt the balance to lean against the Appellant.”

23. The Respondent’s Counsel referred the Court to a judgment in this jurisdiction of Bennett J (State Central Authority v Papastavrou [2008] FamCA 1120) a decision delivered on 22 December 2008. At paragraph 99 her Honour noted:

    “99.Whilst the onus of proving grave risk of harm rests on the Respondent Mother once the contention is raised and supported by evidence, it is for the Applicant State Central Authority to meet the Respondent’s case and to do so by evidence rather than by general propositions or assumption.”

24. The Father has referred to his criminal history in his affidavit of the 12 October 2010.  In a further affidavit filed by leave on the date of hearing (26 October 2010) the Father deposes:

    “2.I have not had criminal convictions nor been involved in any criminal activity since before the birth of my older daughter, [S] two years ago.  [S] was born [in] April 2008.”

25. At paragraphs 3 to 6 of this same affidavit he deposes:

    “3.About seven years ago I was convicted of possession of and cultivation of cannabis.  At the same time I was charged with possession of weapons.  The weapons were seven Samurai swords which had been hanging up on my bedroom wall.  The police had seen the swords when carrying out a search of my home in regards to the cannabis charges.  I received a sentence of community service for these offences.

    4.About three years ago I was convicted of common assault.  I received a sentence of community service for this conviction.  The circumstances of the offending were that I was part of a group which confronted another group of men who had threatened my brother.  I struck one of the men on the chest and on his mouth.

    5.I have served other terms of community service for non-payment of fines.

    6.I did serve a prison sentence in (sic) four years ago.  This was due to my not paying my fines and then not complying with my substituted sentence of community service.

26. The Father gives the impression that his criminal record is of a relatively minor nature.  This is reinforced in paragraph 6 of his first affidavit previously quoted where he describes his record as a history of minor criminal offending.

27. The Father asserts that he may not be allowed into Australia because of his criminal record but there is no evidence that he has made any enquiries in this regard.

28. In accordance with his duty to place before the Court decided cases not only in support of his contention but those which may be interpreted as adverse to the position contended for, Counsel for the Respondent quite properly referred the Court to the 2008 decision of the High Court in the matter of MW v Director-General Departmentof Community Services [2008] HCA 12 (28 March 2008). In the majority judgment of the Court Gummow, Heydon and Crennan JJ observed (paragraphs 44, 46 and 49):

    “44.The deficiencies in the Appellant’s affidavit evidence would not have been left for textual analysis had one of several courses been followed.  Upon application, or at the initiative of the Family Court itself, the proceedings may have been adjourned for the prompt provision of more adequate affidavit evidence.  Leave may have been sought by the Authority for the cross examination of the Appellant.

    46.Cross examination in interlocutory applications generally is not to be encouraged.  But an application for a return order under regulation 16 of the regulations is a special type of proceeding.  It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country.   - - -

    49.Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another.  The references to “summary procedure” and to the dealing with the applications on affidavit evidence and in the summary manner by the Full Court in “In marriage of Gazi” are apt to mislead.”

Events Since The Hearing On 26 October 2010

1. Under cover of a letter dated 8 November 2010 from Crown Law representing the Director-General an affidavit of Ms K was forwarded to the Court.  This affidavit was sworn on the 1 November 2010.  It annexes, “the criminal conviction information held by the Ministry of Justice in New Zealand in respect of [the father] of […], New Zealand, factory worker”.

2. A number of observations need to be made about the production of the further evidence in this form:

   ·The criminal convictions report of itself simply records the nature of the offence and the relevant date and sentence.  It does not detail the factual situation such as the quantity of a particular drug and any circumstances of aggravation.

   ·As noted previously the Father swore on the 26 October 2010 that he did not have any criminal convictions nor been involved in any criminal activity since prior to the birth of his older daughter in April 2008.  His criminal history would appear to indicate that in June 2009 he was convicted of driving whilst disqualified and in March 2010 he was convicted and sentenced for possession of a needle syringe etc for cannabis.  The CRI numbers in the left hand column of the criminal convictions report would appear to indicate these offences occurred in 2009 and 2010 respectively.

3. It will be necessary to establish whether either side wishes to make further submissions in relation to the production of the criminal convictions report and the seeming conflict between the details provided and the Father’s evidence of no criminal history since prior to April 2008.

4. I mentioned at the hearing on the 26 October 2010 that in a previous matter I had dealt with the Independent Children’s Lawyer involved, Murray Bucknall, who informed the Court that the criminal history was obtained from one departmental source in New Zealand but the detailed records such as the modus operandi reports were held by another department.  I expect further enquiries will reveal whether the detailed records are held by New Zealand Police or the New Zealand Ministry of Justice.  I would be prepared to authorise the issuing of a subpoena to the relevant department so that further details of the nature of the Father’s criminal record can be produced to the Court other then the mere fact of the nature of the charge and the date of the sentence.  Of itself, this would necessitate the granting of the adjournment sought by the Applicant.

5. If sought, an order will issue in Chambers upon request from the solicitor from Crown Law for the production of such further information.  As the request will be from one government department (albeit a state government) to a department in New Zealand it may be a subpoena will not be required.

6. I do not have to particularise the provisions of the recent amendments of the legislation which allows for the reciprocal recognition of subpoenae issued between this country and New Zealand.

7. I appreciate that Counsel for the Mother opposed any adjournment for the purpose of obtaining this additional information but having regard to the nature of the matters that have to be canvassed I have formed the view that the Court may be assisted to the extent any additional information can be made available.

8. Additional material was filed by forwarding of two further letters from Crown Law on the 8 November 2010.  The first letter annexed an affidavit of the Father sworn 3 November 2010.  In that letter he details his financial position and annexes copies of his bank accounts and a handwritten statement by the landlord of his rental commitments.

9. The other letter annexed a further affidavit of Ms K.  She deposes to the fact that the New Zealand Ministry of Social Development has confirmed the Mother would be eligible for financial assistance upon her return to New Zealand in the form of a domestic purposes benefit.

10. Counsel for the Mother has not had the opportunity to determine whether further submissions should be made or further evidence presented to challenge any of this evidence received subsequent to the date of the hearing on the

    
    

    26 October 2010.

11. The legal representative for the Director-General may wish to consult with Counsel for the Mother after determining whether the police reports, police notes, sentencing remarks by Judicial Officers or other files are available and, if so, whether they would be relevant.

12. In the event that it is determined that such further information is not available or would not be of assistance the matter may be re-listed forthwith.  In the event that a subpoena or a request for the information is made the matter can be re-listed as soon as the Registrar is informed that the relevant additional material has been received from New Zealand.

13. It is somewhat unfortunate that this matter proceeded to an expedited hearing without the detailed enquiries being made of the New Zealand authorities of the material which could be made available to complete a full picture of the Father’s criminal record.

14. I note that other than a conviction for common assault some years ago there is no evidence before the Court of the Father engaging in actual violence.  I note that the common assault was in June 2008 in the New Zealand District Court which was after the birth of the father’s older child S.  I take into account that the date of the offence may have pre-dated that time. 

15. Whilst I fully appreciate that the policy is for applications of this nature to be dealt with expeditiously, having regard to the authorities to which I was referred in particular the determination of the High Court in the matter of

    
    MW v Director-General Department of Community Services

    [2008] HCA 12 (28 March 2008) it is preferable for the opportunity to be given for the additional material to be placed before the Court.

16. The order of the Court will be that the substantive application is adjourned to a date to be fixed.  The legal representative for the Applicant is to advise a Registrar of this Court when the matter is ready to be re-listed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 9 December 2010.

Associate: 

Date: 9 December 2010