State Central Authority and Wolfe - [2010] FamCA 1226

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & WOLFE

[2010] FamCA 1226

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Child’s objections – Grave risk of return

APPLICANT:

Director-General
Department of Human Services as State Central Authority

RESPONDENT:

Ms Wolfe

FILE NUMBER:

SYC

5918

2010

DATE DELIVERED:

24 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

5 & 29 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tockar

SOLICITOR FOR THE APPLICANT:

Crown-Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Boyle

SOLICITOR FOR THE RESPONDENT:

Adams & Partners

Orders

That the Director-General, Department of Human Services, Community Services (‘the applicant’) and the respondent mother make such arrangements as are necessary to cause the return of the children:
R born … March 1995 and
A born … December 1998
to New Zealand, on conditions which will be determined upon the filing and service of further affidavit evidence by the parties.
That the parties file and serve all affidavit evidence upon which they intend to rely in respect of the formulation of such conditions no later than 4:00pm on 15 January 2011.
That the proceedings be relisted before Stevenson J for determination of such conditions as soon as possible after 15 January 2011.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5918 of 2010

DIRECTOR-GENERAL, DEPARTMENT OF HUMAN SERVICES AS STATE CENTRAL AUTHORITY

Applicant

And

MS WOLFE

Respondent

REASONS FOR JUDGMENT

the proceedings

On 17 September 2010 the Director-General, Department of Human Services (NSW) in her capacity as State Central Authority (‘the Central Authority’) filed an application under the Family Law (Child Abduction Convention) Regulations 1986 (‘the Regulations’) seeking orders for the return of two children to New Zealand. These children are:
R born in March 1995 (15) and
A born in December 1998 (11).
The respondent is the children’s mother, Ms Wolfe. She resisted the application on two grounds:
(1) that the children object to being returned to New Zealand and
(2) that a return to New Zealand would expose them to grave risk of physical or psychological harm or otherwise place them in an intolerable situation.
The mother conceded that the children were habitually resident in New Zealand when she brought them to Australia on 1 July 2010 and that this removal was “wrongful” for the purposes of the Regulations. She also conceded that the father was exercising rights of custody at the time of this wrongful removal. The issue is thus whether the mother has made out any defence pursuant to Regulation 16 (3) such that the court, in the exercise of its discretion, should decline to make an order for the return of the children to New Zealand.

Background

The father of the children, Mr Wolfe, was born in New Zealand in 1962 and is now 48 years old. The mother was born in 1967 in Australia and is now 43 years old.
The parents married in New Zealand in March 1994 and separated in 2003. In addition to R and A they have a third child, C, who was born in July 1993 and is now 17 years old. C lives with the father in New Zealand.
After the parents separated all three children lived with the father between 2003 and 2007, save for a period of about six months when C lived with the mother. Otherwise, the children had little contact with the mother during this period of four years.
In 2007 the mother moved to T in New Zealand, where the father and children lived. She took them to live with her at O, which is about one hour distant from T.
The mother applied for parenting orders in the Family Court of New Zealand (‘the court’) in 2007. In the course of these proceedings she made serious allegations against the father, including:
·that he physically and sexually assaulted A
·that he physically abused R
·that he was physically and psychologically abusive to her and stalked her
·that he was psychologically and verbally abusive to both children
In April 2008 C, who was then 14 years old, moved to Sydney and lived with a maternal aunt. Her behaviour had been very problematic and this move was apparently made with the support of child protection authorities in New Zealand. A few months later she attempted suicide and then returned to live with the father in New Zealand.
On 18 April 2008 the court made a temporary protection order against the father in relation to R and A. The mother sought that this order be made final but, on 29 May 2008, the court refused this application and discharged the temporary order. Both children were represented by their appointed lawyer, Mr John Alan Douglas.
In discharging the temporary protection order her Honour Judge Somerville commented inter alia:
·police had completed a criminal investigation of the allegations of physical and sexual abuse of A by the father and had closed the case.
·R and A were having no contact with the father and expressed a wish not to see him.
·the mother alleged that R told her that he heard the father and a friend discussing contract killings and that he had seen this person bring guns and knives to his home. Her Honour found these contentions to be “not credible”.
·C sent a text message to the mother on the day that she left Australia which stated “Dad just said that when this is over he will win and get you killed by someone. That is what he told me. XOX love you Mum”.
·the mother acknowledged that C made unreliable reports of various incidents.
Her Honour’s findings were:
“…I consider that what has happened is that the mother has become frightened because she has taken on board [C’s] text and then she has also conveyed her fear to her son, and he is now looking for a situation where he would be able to confirm her fears. This is an unfortunate situation for [R], indeed, if that has happened as a result of the mother’s fear.
The mother’s fear may be real in her head, but it is not one that I can place any credibility on, and in my view I consider that making an order just to allay this fear which has no foundation, is not the purpose of this Act. It will be necessary for [R] to be reassured that his father is not going to be in a position where he is going to put his son in any danger or any threatening situation, or indeed the mother, in a threatening situation, and I am not sure how that can be dealt with in the context of this hearing”.
Her Honour made this request of the children’s lawyer: “In the meantime I would like Mr Douglas to talk to the children about the outcome of this hearing and to reassure them that they are in no danger from their father or a hit man, so they can get on with their lives without that fear hanging over their heads…”.
On 29 July 2009 interim orders were made that R and A live with the mother and have contact with the father each alternate Sunday between 11:00am and 12:30pm. Her Honour Judge Somerville found: “I consider that the children are not at risk if they have a relationship with their father which involves them having contact with him.” Her Honour said that her intention was that: “this will build up gradually whereby the children can trust both parents to protect them from their ongoing conflict and their own issues”.
In the course of her judgment her Honour Judge Somerville found, inter alia:
·on the balance of probabilities, the father used inappropriate physical force against the children but that he had been placed in an extremely stressful situation of caring for the children without input from the mother
·“the alignment of the children has changed so dramatically that there can be no reliability placed on their evidence”
·the mother “probably has been coaching the children advertently or inadvertently by her attitude to the father”
Following these orders A had some contact with the father but R did not see him at all, other than that he attended some changeovers. The intention of the court was that there be a review of these arrangements after six months.
By the end of 2009 contact between the father and A had ceased. The proceedings were again before the court in January 2010, when the father sought to pursue contact and review the care arrangements.
In October 2009 the mother met Mr P in a bar and started a casual relationship with him. She now alleges that he is a very dangerous man who is affiliated with drug dealing and violent motorcycle gangs. She claims that he raped, threatened and stalked her over the next nine months.
On 1 March 2010 the children’s lawyer visited them in the mother’s home and prepared a report dated 4 March 2010. In his affidavit Mr Douglas deposed that the mother made no mention whatsoever of any threat or risk from Mr P during this meeting.
On 1 April 2010 the children’s lawyer reported on a meeting which he attended with the mother and representatives of various child welfare agencies. He stated: “in counsel’s view [the mother] frustrates [the father’s] attempts to have contact insisting that contact still be limited to each second Saturday from 11:00am until 12:30pm with [N] or [C] present. [The mother] fails to appreciate that the order also stated that contact may be at any other time arranged and agreed to by the parents and suitable to the parents and children”. Apparently the mother made no mention of any threat or risk from Mr P during this meeting.
On 13 June 2010 the mother made a report to police concerning Mr P. Three days later, the court made directions for the filing of further evidence and appointed a psychologist to assess the children’s views. The proceedings were then adjourned to 18 August 2010. The father complied with all of these directions but the mother took no action at all.
In June 2010 the mother took the children to live in a refuge, prior to their departure for Australia on 1 July 2010. She alleged that she contacted the children’s lawyer prior to leaving New Zealand to inform him that she was “scared for my life and the children’s lives” and “to ensure that everyone would be aware why the children and I had suddenly disappeared from our ordinary lives”. Mr Douglas, however, deposed that she simply left him a message to say that she was at a refuge. He said that he was unable to obtain any further information.
The mother alleged that refuge workers told her that they could not protect her and suggested that she go to Australia. She claimed that one staff member arranged for the Australian Consulate to issue passports urgently and delivered her and the children to the airport. There was no affidavit evidence from this person or any other refuge worker.

The Relevant Law

Australia and New Zealand 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.
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 Evidence and Witnesses

The Central Authority relied on the following:
1.1      Affidavit affirmed by Jane Selwood (solicitor) on 17 September 2010 [p.6] and filed under cover of the Form 2 Application [pp.1-62];
1.2      Affidavit sworn by Kathryn Mary Lellman (Barrister and Solicitor of the High Court of New Zealand) on 19 August 2010 [pp.21-29] and filed under cover of the Form 2 Application;
1.3      Affidavit sworn by the father on 18 August 2010 [pp.31-62] and filed under cover of the Form 2 Application;
1.4      Further affidavit sworn by Jane Selwood (solicitor) on 1 November 2010 and filed on 2 November 2010 and attaching the following further affidavits:
1.4.1        second affidavit of the father, sworn on 29 October 2010;
1.4.2        affidavit of John Alan Douglas (Barrister and Solicitor of the High Court of New Zealand), sworn on 1 November 2010;
1.4.3        second affidavit of Kathryn Mary Lellman, sworn on 1 November 2010.

It should be noted that the annexures to the Application are admissible pursuant to Regulation 29(2). This Regulation 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.”
The respondent mother filed an Answer on 22 October 2010. She relied on her affidavit affirmed on the same date.
The proceedings were listed for trial on 5 November 2010. On that date the mother sought an adjournment so as to issue a subpoena to obtain documents relevant to Mr P’s criminal antecedents in New Zealand. After some debate her counsel conceded that the provisions of the Trans-Tasman Proceedings Act 2010 prevented her from doing so.
The parties then agreed to approach the International Network Judge for Australia, her Honour Justice Bennett, with a request for assistance from her New Zealand counterpart, Chief Judge Boshier. An email communication, in terms agreed by the parties, was duly forwarded from my chambers to those of her Honour Justice Bennett.
The response was set out in an email to the parties from my Associate dated 22 November 2010. This response read: “Unfortunately Chief Judge Boshier is unable to be of assistance unless Mr [P] provides his written consent to the release of the information” (exhibit 1).
I had the benefit of a report dated 1 November 2010 from Family Consultant Ms F, who interviewed the children. This report addressed the issue of whether the children object to returning to New Zealand. Ms F also gave very helpful oral evidence.
I admitted into evidence, over the objection of counsel for the mother, a letter dated 26 November 2010 from the Manager of the New South Wales office of an organisation known as International Social Service Australia. I indicated clearly that I did so only for the purpose of gaining some idea of assistance which might be available to the children if the outcome of these proceedings is an order that they return to New Zealand. As I said, at that time, I was mindful of the prospect of placing conditions on a return order.

The Children’s Objections

The mother alleged that R has said to her, since his arrival in Australia:
“I would rather be dead than go back to New Zealand.
I don’t want to go back to New Zealand, it is so safe here.
I am terrified to go back to New Zealand because what if [Mr P] sees me? He is dangerous and he will come after me.
[Mr P] knows everyone, he will know where to find me cause he knows how to get to my friends.”
The mother maintained that A has said to her, since her arrival in Australia:
“I love school, I love all the stuff I can do here.
I don’t want to go back to New Zealand, everything’s better and safer here.
I am too scared to talk about it (referring to threats and violence of [Mr P] and abuse by her father).”
The Family Consultant described the children as “cooperative and presenting pleasant demeanours”. In oral evidence she said that she “found [R] calm and thoughtful, at least as mature as his years”.
In relation to R, the Family Consultant reported:
“[R] (15 years, 7 months) does object to being returned to New Zealand. He says that he likes living in Australia because there are ‘more opportunities’ here and a large maternal family network which he says he likes interacting with and which is quite supportive’. He said that he knew his mother’s intention was that she, he and [A] would stay in Australia ‘forever’ when they came here in July 2010 and that he wanted this because he thought he could have a ‘normal life’ here. At the same time, [R] acknowledged that it had been hard at first leaving friends in New Zealand. When asked what he would do if the judge decided he should return to New Zealand, [R] said, ‘It would be hard. I don’t think I could’.”
The Family Consultant talked to R about Mr P. She reported:
“[R] was asked about the man, [Mr P], about whom his mother has written at length in her affidavit, because she alleges that [R] was significantly involved by this person in discussions about violence and criminal activities. [R] did not expound at length but said that ‘[Mr P] told me scary things’ and that he ([Mr P]) knew ‘gangs and people in New Zealand’.”
In cross-examination by counsel for the mother the Family Consultant said:
“I agree that [R] expects his wishes to be respected, as his father has not tried to enforce contact.
My impression was that he had not given a lot of thought to the prospect of orders forcing him on to a plane because he has not contemplated that it could or would happen.
My assessment is that he would object strongly to being put on a plane.”
In cross-examination by counsel for the Central Authority, however, the Family Consultant agreed:
“Yes I concluded that [R’s] objection is no stronger than an expression of view.”
In her report the Family Consultant stated in relation to A:
“[A] (11 years 10 months) said that she ‘would not like it’ if she had to go back to New Zealand. She likes it in Australia, has made friends in her new school and enjoys the time she spends with the extended maternal family. She also noted that her mother is happier here, ‘not as stressed’.”
The Family Consultant’s assessment of the proper weight to be given to A’s views was:
“[A’s] maturity is also commensurate with her age – that is, she does not fully comprehend the reasons behind her mother’s decision to come to Australia nor her wish not to return to New Zealand but she is dependent upon her mother such that she would not question whether she would do as her mother planned for her. While it would appear that there are problems with [A’s] relationship with her father, it does not seem that these problems are the reason for her mother deciding to leave New Zealand. [A’s] maturity is such that little weight ought to be put on her wishes.”
When asked about Mr P, A told the Family Consultant that her mother had talked to her about “a dangerous man”. Significantly, however, A told the Family Consultant that she had not met Mr P.
In Re F (Hague Convention: Child’s Objections) 2007 36 FamLR 83 at p197 the Full Court (Bryant CJ, Kay and Boland JJ) considered various authorities and writings on the “objection” defence. Their Honours said:
“There has been considerable discussion in the cases in the texts on precisely what it is that the child objects to. The relevant regulation talks about the child objecting to ‘being returned’. Several of the cases have endeavoured to read down that phrase to mean effectively being returned to the country of habitual residence for the purposes of enabling that country to determine where and with whom the child should reside. The view was expressed by the Full Court (Barblett DCJ, Ellis and Lindenmayer JJ) in Director General of Department of Community Services and Crowe (1966) 21 Fam LR 159; (1996) FLC 92-717 and reaffirmed in De L v Director General, New South Wales Department of Community Services (1997) 21 Fam LR 413 at 426; (1997) FLC 92-737 at 83-939 that the objection was an objection to being returned to the country of the child’s habitual residence and not to living with a particular parent. The court went on in De L to say:
‘However, as was pointed out by Balcome LJ in Re R (Child Abduction: Acquiescence) (1995) 1 FLR 716, there may be cases ‘where the two factors are so inevitably and inextricably linked that they cannot be separated’.
… We would not suggest that children must articulate that they object to being returned to the country of their habitual residence for the purpose of enabling the courts of that country to resolve the merits of any dispute as to where and with whom they should live in order to come within the provisions of reg 16(3)(c). That is not the language of children and the court should not expect them to formulate and articulate their objection, if they had objected in the relevant sense, in that manner. The court must have regard to the whole of the evidence and determine, no matter how the children articulate their views, whether the children object in the relevant sense.
In Agee and Agee (2000) 27 Fam LR 140; (2000) FLC 93-055; [2000] FamCA 1251 a differently constituted Full Court (Finn, Holden and Guest JJ) questioned whether it was appropriate to place any gloss upon the words ‘objects to being returned’ to import the words ‘so that the courts of that country may resolve the merits of any dispute as to where and with whom the child should live’.”
I have little difficulty in finding that A does not object to being returned to New Zealand for the purpose of the Regulations. I am satisfied that her statements to the Family Consultant and to the mother do not “show a strength of feeling beyond the mere expression of a preference or of ordinary wishes”. I have noted the Family Consultant’s assessment that A’s level of maturity is such that little weight should be placed on her wishes. This evidence was unchallenged.
It seems significant to me that A commented to the Family Consultant that her mother is happier and “not as stressed’ in Australia. For this reason I treat with considerable caution her statements to the mother that she does not want to return to New Zealand. It could very well be that she is making these statements to please her mother.
The situation is far more problematic with regard to R. On one hand, the Family Consultant gave evidence that he expressed a firm wish to remain in Australia and that he has not contemplated that there could or would be orders forcing him to return to New Zealand. On the other hand, the Family Consultant specifically said that she concluded that his “objection is no stronger than an expression of view”.
I am mindful of certain findings of her Honour Judge Somerville in determining whether R’s objection “goes beyond the mere expression of a preference or of ordinary wishes”. In 2009, her Honour found that the mother “probably has been coaching the children advertently or inadvertently by her attitude to the father”. It is highly probable that she has done the same in relation to Mr P, as her affidavit clearly indicates that she has discussed him with the children. I refer to A’s interview with the Family Consultant and the comments of the children contained in the mother’s affidavit.
Her Honour Judge Somerville also found that “the alignment of the children has changed so dramatically that there can be no reliability placed on their evidence”. In the past, R has been strongly aligned with his father. In her reasons of 29 July 2009 her Honour Judge Somerville said: “by the time Mr [M] (a court appointed psychologist) became involved [R] had moved from being totally aligned with his father and regarding him as his hero to only after a short period of some months becoming totally aligned with his mother saying that he hated his father”.
The Family Consultant’s assessment of R’s statements to her, and these changing alignments, lead me to find that his objection to returning to New Zealand does not go beyond the mere expression of a preference or of ordinary wishes. If I am wrong in this conclusion, I would exercise my discretion in favour of an order for return, for reasons which I set out below. The terms of Regulation 16(3) make it clear that there is a discretion to refuse to make a return order, once the opposing party establishes one of the defences set out therein. It is not mandatory to refuse to make a return order in those circumstances.

Grave Risk

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.”
The mother alleged that Mr P made very serious threats to her safety between October 2009 and June 2010. These allegations are set out fully in her affidavit and, for present purposes, it is sufficient to refer to some examples:
“11.     [Mr P] first attended my home unannounced one day and I was very shocked as I had not told him where I live nor had I invited him. I allowed him to come in as I was shocked and scared of how he may react if I said no and I did not want to cause a scene with the children home. I thought it would be better just to be civil and calm. When he came in he appeared to be under the influence of drugs as he was pale and staring off into space. He started talking about his time in gaol and I said words to the effect ‘please don’t talk about this in front of the kids’. [Mr P] became angry and verbally abusive so I sent the children to their rooms to try to protect them from this talk. I then asked him to leave but he refused. He then said to me words to the effect ‘I sell drugs in [O], [T], Auckland and [H] and I am linked with the […], […] and […] gangs. I work for the sergeant-of-arms, being the third in charge, selling drugs for the gangs. He then said to me further words to the effect ‘a lady called […] that lives in [O] supplies me drugs.
12.      [Mr P’s] attitude then changed again and he started to make threats towards me and the children. He said to me words to the effect ‘if you tell anyone or go to the police I will carve you up’. He continued to threaten me with violence and refused to leave. In response to my further request for him to leave [Mr P] became angrier and said words to the effect ‘I am gonna have you watched by the boys in the [gang]’ and ‘you don’t need your friends, I’m the only one you need. You belong to me and you need to trust me and do as you are told’. I replied with words to the effect ‘I am not your woman and if you are going to keep doing all these things I don’t want anything to do with you. I don’t want to be involved with gangs or drugs and it is not good for my kids to be around any of it’. [Mr P] then left.
13.      A few days later I met up with some friends at a local tavern for a chat. [Mr P] was also there and he approached me and said words to the effect ‘if you don’t leave with me I am gonna stab you in front of your friends’. I did not leave with him.
14.      Some time after the above incident, [Mr P] attended my home late at night. He appeared to be under the influence of drugs as he was behaving strangely and seemed spaced out. I was terrified but thought I had no choice but to let him in as I was scared of what he would do to me and the kids if I didn’t. [Mr P] then forcibly had sex with me and in doing so he was incredibly rough and very violent forcing me to do what he wanted and caused me pain. I told my friend […] about this incident the next day.”
In her affidavit the mother also made these allegations of threats, violence and intimidation directed at her and the children by Mr P:
“[Mr P] made several threats and acted in a violent and intimidating manner to me and the kids over the time I knew him including:
(i)Saying words to me to the effect ‘I’ve got people watching you and you don’t even know it. Watch yourself or ill come in and knife you up in front of your friends if you don’t watch who you’re talking to’.
(ii)Describing his criminal convictions to [R], and also me, and also discussing how had stabbed people, used and sold drugs, shot someone through the chest just missing their heart, stabbed in a guy in the back and backside over and over again.
(iii)Describing to me how he had young nieces when he was out (meaning out of jail) who would bring girls home from school and he would ‘sexually fuck them up’.
(iv)Saying to [R] and I words to the effect ‘Don’t even bother calling the Police, you’re wasting your fucking time cause I’m armed offenders’.
(v)Describing affiliations with gang member in numerous towns throughout New Zealand.
(vi)Describing how he beat his ex partner and had a history of assaulting women.
(vii)Describing how his nephew (who lived across the road from me) and friend supply methamphetamine, including to him, and describing how his sister supplied him with prescription drugs such as valium as she was a nurse.
(viii)Warning me that his nephew lives just across the road from me.
(ix)Coming to a bar I was at and offering me drugs.
(x)Telling [R] ‘I dragged her [an ex girlfriend] along the road and smashed her head into the kerb’.
(xi)When I said ‘I don’t want you at my place’ replying by saying ‘you’re fucked in the head, I’m gonna track [Ms S] down and chuck her in the boot’.
(xii)Repeatedly saying words to the effect ‘If the police get me I’ve got people who’ll come after you and fuck you up’.
(xiii)Repeatedly saying ‘I will knife you up’.
(xiv)During a conversation with [Mr P] was telling [R] about how he had stabbed people, telling [R] that he used to go out with a woman called [Ms S] and saying words to the effect ‘I’m gonna shove my hand up her cunt, cut her up and shove her into the boot of my car cause she ripped me off money’. He informed us also that this money was his rent money of $200.
(xv)Telling [R] and I that people on the news who had been found cut up and shoved into the boot of a car and other violent events had that done to them by people he knew.”

Primarily, the mother alleged that a return to New Zealand would place the children at grave risk because of Mr P. She also suggested that A would be at grave risk of physical and sexual abuse at the hands of the father. She also seemed to suggest that R would be at grave risk of physical abuse by the father.
The mother sought to resurrect allegations that the father sexually abused A. More accurately, she now asserts as established fact that the father has in the past sexually abused the child.
The allegations of sexual abuse were fully canvassed in the reasons of her Honour Judge Somerville of 29 July 2009, when there was a finding that contact with the father would not place the children at risk. Her Honour expressed a clear intention that the contact regime should be gradually increased but this aspiration was thwarted by the mother’s wrongful removal of the children from New Zealand. The mother’s regurgitation of the sexual abuse allegations in these proceedings seems to me to be nothing more than opportunism.
In 2009 her Honour Judge Somerville refused the mother’s application for a final protection order against the father in respect of R and A. Her Honour did so after fully canvassing the allegations against the father which the mother now seeks to resurrect.
I find that a return to New Zealand would not expose either R or A to any grave risk associated with or caused by the father. I am mindful of the fact that there are current proceedings in the Family Court of New Zealand; that the children have an appointed lawyer and so any issues involving the father could be addressed quickly.
As to risk associated with or caused by Mr P, it should be observed that there was nothing to corroborate the mother’s dramatic allegations. It was suggested that the fact that experienced refuge workers saw fit to orchestrate the removal of the mother and the children from New Zealand of itself establishes the extent of the risk posed to them by Mr P and his associates. The fact is, however, that there was no affidavit evidence from any of these people as to their qualifications, experience or what the mother told them. There was no explanation for the mother’s failure to adduce this highly relevant evidence, so the inference must be that it would not have assisted her case. There is no evidentiary value to the letters, purportedly from refuge workers, annexed to the mother’s affidavit.
It seems significant to me that the mother portrayed in her affidavit that A was directly exposed to Mr P’s threats, violence and intimidation. She deposed:
“Whilst [A] was present for less of [Mr P’s] violent conversations and threats than [R], she was still present for a lot. [Mr P] would talk to her about gaol and running rackets, referring to drugs and violence, in and out of gaol. She would respond by going to her room, shutting the door and doing arts to try to hide from him and not be scared. She was however in her room when he was making loud threats to kill me and I think she would have heard some of these threats.”
The uncontroverted evidence of the Family Consultant, however, was that A told her that she never met Mr P. I can only conclude that the mother exaggerated or invented her evidence of A’s exposure to Mr P. Significantly, she swore her affidavit before the Family Consultant released her report.
It would be reasonable to expect that the mother would have told the children’s lawyer of the risk posed to her and the children by Mr P during the meeting on 1 March 2010. It might also be reasonable to expect that she would have raised these serious concerns in the meeting on 15 March 2010, with the children’s lawyer and representatives of various agencies charged with the protection of children. She did not do so on either occasion and offered no explanation. In my view, this failure to present her concerns casts doubt on her credibility.
The mother is clearly well versed in making serious allegations against other people. As noted, her Honour Judge Somerville found “not credible” her allegations of a dangerous man attending the father’s home while carrying weapons. Her Honour specifically requested the children’s lawyer to tell them that they were at no risk from their father or a “hit man”. The mother alleged that the father stalked and threatened her and she now makes a similar case in relation to Mr P.
I consider that it would be offensive for this court to suggest in any way that the New Zealand legal system would fail properly to protect the mother and the children if they return to that country. There was evidence from Ms Kathryn Mary Lellman, a barrister and solicitor of the High Court of New Zealand of twenty years’ standing. Ms Lellman swore an affidavit on 1 November 2010, in which she described the provisions and operation of the Domestic Violence Act 1995 (NZ). She concluded that the mother could obtain a protection order against Mr P, pursuant to this legislation. There was no challenge to Ms Lellman’s opinion.
It is clear that the mother is fully aware of this procedure, as she obtained a temporary protection order against the father. She applied unsuccessfully for a final protection order.
For these reasons I am not satisfied that the children would be placed at grave risk of physical or psychological harm in an intolerable situation because of Mr P or his alleged associates, if they return to New Zealand. The mother bore the onus of proof of these matters but her case consisted only of uncorroborated allegations. As noted, her evidence of A’s exposure to Mr P directly conflicted with what the child told the Family Consultant.
The mother maintained that she will not accompany the children to New Zealand, in the event that there is an order for their return. In part, she relied on her own refusal to establish that a return of the children would place them in an intolerable situation.
It is well established that, ordinarily, the objects of the Convention should not be frustrated by a parent’s refusal to return with children to their country of habitual residence. The classic formulation of this principle is that of Butler-Sloss LJ in C v C (Minor : Abduction : Rights of custody abroad) [1989] 2 All ER 465 at 471 in these terms:
“The convention does not require the court in this country to consider the welfare of the child as paramount, but only to be satisfied as to the grave risk of harm. I am not satisfied that the child would be placed in an intolerable situation if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of refusing the application under the convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is the parent to create the psychological situation, and then rely on it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied on by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent.”
The mother’s next submission on grave risk or intolerable situation assumed that R would remain in Australia with her and that A would return alone to New Zealand. This assumption does not accord with my findings as to whether he objects to returning to New Zealand and my view as to the appropriate exercise of discretion, if the mother succeeded in establishing that defence.
The mother asserted that A would return to “unknown circumstances”, thus she would be placed at grave risk or in an intolerable situation. A number of observations need to be made about this assertion.
Firstly, it is precisely because the mother refuses to return to New Zealand with her that A may face “unknown circumstances”. If the mother were to return, she has the security of orders of the Family Court of New Zealand, which was in the process of further consideration of parenting arrangements when she wrongfully removed the children. She has ready access to the New Zealand legal system to obtain whatever orders are necessary to protect her from Mr P. The children have their own lawyer, who is entirely familiar with the proceedings. The mother thus relies on a situation which she has created in her attempt to make out this argument.
Secondly, it would be presumptuous of me to assume that the New Zealand legal system and child protection authorities would be incapable of making proper arrangements for A’s care. I do not countenance making this assumption.
Thirdly, I indicated at the end of the trial that I would entertain an application for the imposition of conditions upon an order for return. I intend to take up that option.
Fourthly, I intend to exercise my discretion in favour of an order for the return of R as well as A. She would thus have the support of her older brother.

The Exercise of Discretion in relation to R

I have found that R does not object to returning to New Zealand for the purposes of the Regulations. I will now set out the reasons why I would exercise my discretion in favour of an order for his return, in the event that I am mistaken in reaching that conclusion.
I have referred to the unfinished litigation in New Zealand and to the fact that the children have a lawyer who knows them and is entirely familiar with the proceedings. It is clear from her reasons to date that her Honour Judge Somerville is carefully considering R’s situation in the progression of the proceedings. For example, her Honour interviewed each child in 2009 and ordered a social science report in respect of both of them. In other words, R’s role in the dynamics of the family has been an integral part of her Honour’s reasoning.
The Family Consultant considered the nature of the relationship between R and A and the consequences of separating them. In her report she wrote:
“While the siblings do not talk to each other about their family’s troubles, they appear to have concern and affection for each other. Sibling relationships in families which have been confronted with significant problems have the potential to be sustaining throughout life. Given the fractures which already exist in this family, any thought of separating [R] and [A] at this stage would need to be approached with considerable caution”.
In her oral evidence the Family Consultant said: “my assessment of the strength of the sibling relationship was more hypothetical”. She added, however: “[R’s] decision to attend some changeovers suggests a sibling closeness”. It seems to me that R assumed a supportive and protective role in relation to his little sister on these occasions.
All of these considerations lead me to the conclusion that discretion should be exercised in favour of an order for return of both children, even if I were satisfied that R “objected” for the purposes of the Regulations. It would have been preferable if the Central Authority had presented evidence of proposed arrangements for the children on their return to New Zealand. I will, however, invite such further evidence and formulate conditions on the return order before the children depart from Australia. In any event, it may be that the mother will elect to return with them when she discovers that her threat to stay in Australia has not worked to her advantage.
I should note finally the mother’s submission that it is in some way significant that R is only three months short of attaining the age when the Convention no longer applies to him. I have taken his age and maturity into account in determining whether he “objects” for the purposes of the Regulations. The fact of the matter is, however, that he is presently subject to the operation of the Convention.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 24 December 2010.

Associate:

Date: 24 December 2010