STATE CENTRAL AUTHORITY & MOK

[2009] FamCA 1366

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & MOK [2009] FamCA 1366

FAMILY LAW – CHILD ABDUCTION – Hague Convention

APPLICANT: Director-General of the Department of Human Services as State Central Authority

RESPONDENT: Ms Mok

FILE NUMBER: SYC 3613 / of 2009

DATE DELIVERED: 30 October 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: STEVENSON J

HEARING DATE: 4 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE APPLICANT: Director-General of the Department of Human Services

COUNSEL FOR THE RESPONDENT: Ms Shea

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW

Orders

On the written undertakings of the father given to the Court as follows:

• I will not seek to enforce any existing order made by a US Court in relation to the custody of [A] born on […] February 1996 and [Y] born on […] July 1998, (‘the children’).

• I will allow the children to continue to live with the mother except during periods of contact with me as agreed between the parties.

• I will make the former matrimonial home available for the exclusive use of [Ms Mok C] and the children upon their return to the US.

• I will make available one family motor vehicle for the exclusive use of [Ms Mok C] and the children upon their return to the US.

1. That the applicant and the respondent make such arrangements as are necessary to ensure the return of

   A born … February 1996 and

   Y born … July 1998 (‘the children’)

   to the USA within 21 days of the date of these orders.

2. That the respondent provide to the applicant a copy of the tickets and flight itinerary for travel to the USA at least 7 working days before the date of departure.

3. That the Registrar release any passports and tickets held by the Court in the name of the respondent and the children to the respondent’s solicitor forthwith.

4. That the orders made by the Court on 24 June 2009 be varied to allow the children, and the respondent if she so chooses, to leave the Commonwealth of Australia and travel to the USA for the purpose of giving effect to these orders and the Australian Federal Police do give effect to the said variation.

Notation

The mother referred to herself as “[C Mok]” in her affidavits but I have no doubt that the father’s undertakings are intended to apply to her.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3613 / of 2009

STATE CENTRAL AUTHORITY

Applicant

And

MS MOK

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. This is an application by the Director-General of the Department of Human Services, New South Wales, in her capacity as State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The applicant sought orders for the return of the children

   A born … February 1996 (13) and

   Y born … July 1998 (11) (‘the children’)

   to the United States of America (‘the USA’).  The requesting parent is the children’s father, Mr Mok.  Their mother, Ms Mok, resisted the application.

2. It was conceded on behalf of the mother that no elements arise under Regulations 16(1) and/or (2) which stand in the way of an order for the return of the children to the USA.  It was also conceded that the father had rights of custody and was exercising, or would have exercised, those rights at all relevant times for the purposes of Regulation 16(1A)(c) and (e).

3. The mother resisted the application on two suggested grounds:

   1.        The children were habitually resident in Australia at the time when she retained them in this country, because of an agreement between the parents that they would live with her in Sydney for a trial period of at least 12 months.  If the children were habitually resident in Australia pursuant to such an agreement, there can be no “wrongful retention” for the purposes of Regulation 16(1A).

   2.        If the retention of the children in Australia by the mother is found to be “wrongful”, the court should exercise its discretion not to order a return because there is a grave risk that they will be exposed to physical or psychological harm or otherwise placed in an intolerable situation, within the meaning of Regulation 16(3)(b).

The Evidence and Witnesses

1. The applicant relied on the following affidavits:

   1.affidavit of Jeevani Korathota (solicitor) affirmed on 19 June 2009 attaching an affidavit sworn by the father on 17 June 2009

   2.affidavit of Robyn Young (solicitor) affirmed on 9 July 2009 attaching an affidavit of Daniel S Williams (father’s attorney) sworn on 30 June 2009

   3.affidavit of Paloma Sessions affirmed on 9 July 2009 attaching email from Mr Ek (solicitor then instructed by the mother) and an affidavit sworn by Daniel S Williams on 30 June 2009

   4.affidavit of Robyn Young (solicitor) affirmed on 18 August 2009 attaching affidavit of the father sworn on 14 August 2009

   5.affidavit of Robyn Young (solicitor) affirmed 2 September 2009 attaching affidavit of the father sworn on 28 August 2009.

2. Several documents were attached to the application, including material filed in the Superior Court of California.  These documents and the affidavits of the father and Mr Williams are admissible pursuant to Regulation 29 (2).  This Regulation provides that any document, attached to or given in support of an application under Regulation 14, is admissible as evidence of the facts stated in that application. 

3. The mother relied on the following affidavits:

   1.affidavits of the mother sworn on 10 August 2009 and 28 August 2009

   2.affidavit of Dr R (psychiatrist) sworn on 19 August 2009, annexing her report dated 19 August 2009

4. The father was cross-examined by telephone from the United States.  The mother and Dr R gave oral evidence.  

5. I had the benefit of a report dated 7 August 2009 prepared by Family Consultant, Ms F, who interviewed the children.  The Family Consultant was not required for cross-examination.

Background

1. The father and mother are aged 46 and 43 respectively.  They were both born in Cambodia and met in a refugee camp in that country in 1982.

2. The father and his family moved from Cambodia to the United States in 1983.  He has obtained American citizenship.  The mother and her family moved to New Zealand from Cambodia in 1983.

3. In February 1993 the parents were married in New Zealand.  They went through another ceremony of marriage in California in March 1993 and have since lived in California.

4. The mother’s family moved to Australia in 1995 and settled in the western suburbs of Sydney.  Between 1994 and 2007 the mother made approximately 9 visits to Australia.  The maternal grandmother cared for A in Australia for 6 to 7 months in 1998/1999.

5. The mother alleged that she felt unhappy and isolated in the United States from about 1994.  She claimed that she felt chronically depressed from that time and that she contemplated suicide on one occasion in 2000.  She told no-one that she was experiencing these feelings of self-harm and never sought medical treatment for her depression.

6. In March 2008 the mother applied for New Zealand passports for the children, which were issued on 19 April 2008.  The father maintained that he was not informed by the mother that she had applied for these passports.

7. The mother alleged that, in September 2008, she and the father agreed that the children would live with her in Australia on a trial basis for approximately 12 months.  The father strongly denied that there was any such agreement.

8. On about 17 November 2008 the mother purchased return tickets for herself and the children to Australia.  They travelled from the USA to Sydney on 16 December 2008.  Their return flight to the USA was booked for 8 January 2009, as appeared in an itinerary which the mother provided to the father before their departure.  The mother and children did not take this flight and stayed in Australia.

9. On 16 December 2008 the mother caused $80,000 to be transferred to an account of either her sister or brother-in-law in Sydney.  The father maintained that there was no discussion with him before the transfer of these funds.

10. On 18 December 2008 the parents had a telephone conversation.  There was some dispute about what was said but the father was left with no doubt that the mother would not return to the USA with the children.  On 4 or 5 January 2009 he commenced proceedings in the Superior Court of California for divorce and parenting orders. 

11. On 6 January 2009 the Californian court ordered that the father have sole legal and physical custody of the children.  It was further ordered that the mother return the children to California within 30 days of service upon her of the orders.  Further, there was a declaration that the USA is the habitual place of residence of the children.  The mother was served with a copy of a summons and these orders on 12 January 2009.

12. On 26 March 2009 the mother filed an application for parenting orders in the Federal Magistrates Court.  On 18 March 2009 the father signed an application for return of the children to the USA.  These proceedings commenced by an application filed by the Central Authority on 19 June 2009. 

13. In July/August 2009 the children were interviewed by Family Consultant Ms F, who prepared a report dated 7 August 2009.  As noted, Ms F was not required for cross-examination.

14. On 12 August 2009 the mother attended upon a psychiatrist, Dr R.  She prepared a report dated 19 August 2009 and gave oral evidence.

15. On 9 September 2009 the father gave the following written undertakings to this court: 

    “I will not seek to enforce any existing order made by a US Court in relation to the custody of [A] born on […] February 1996 and [Y] born on […] July 1998, (‘the children’).

    I will allow the children to continue to live with the mother except during periods of contact with me as agreed between the parties.

    I will make the former matrimonial home available for the exclusive use of [the mother] and the children upon their return to the US.

    I will make available one family motor vehicle for the exclusive use of [the mother] and the children upon their return to the US.

Was There a Wrongful Retention of the Children in Australia by the Mother?

1. The mother claimed that she and the father reached an agreement prior to her departure with the children on 18 December 2008.  She alleged that he agreed that she and the children would live in Australia for a trial period of 12 months.  The father strongly denied that there had ever been such an agreement.  In particular, he said firmly in his oral evidence:  “Completely, absolutely no that I finally said ‘you and the boys can go’ after she cried and begged for 2 hours”.

2. The father said that the mother “put an itinerary on the kitchen table in November 2008”.  A copy of the itinerary was annexed to the mother’s affidavit sworn on 10 August 2009 and clearly showed that return flights were booked on 8 January 2009.  The father said that he did not know that the return tickets were “open”. 

3. I have difficulty in accepting that the booking of return flights on 8 January 2009 is consistent with the mother’s evidence of an agreement for a trial period of 12 months in Australia.  The father’s unchallenged evidence was that the children were due to resume school on 5 January 2009.  This fact could well have been significant in the selection of the date of the return flights.

4. In cross-examination the mother said:  “we agreed that we would try to stay here for 12 months and see how we go”.  She conceded that the children “did not know about discussions, arguments about living in Australia”.  She also said:  “I don’t know whether they knew there was a prospect that they might stay for 12 months – they may have heard our arguments”. 

5. It is clear from the children’s interviews with the Family Consultant that they had no idea that there was any prospect that they may stay in Australia beyond their Christmas holiday trip.  Ms F reported:

   “[A] was a little confused about when and his mother and brother had arrived in Australia (he said November 2008), but said that his mother had told him and his brother ‘after a month’ that they would be staying.  He thought that the reason for this was that his mother does not like the USA.  He does not know why.”

6. In relation to Y, Ms F reported:

   “[Y] said that when his family had lived together there had been ‘yelling and shouting’, but not hitting, between his mother and father.  When his mother told him and his brother, just before school started at the beginning of this year, that they would not be returning to the USA after their holiday in Australia, he had been ‘speechless’.  He did not know what to think.  He is still ‘unsure’.”

7. I have great difficulty in accepting that the children would have been completely unaware that they would not return to the USA, if their parents had in fact reached the agreement alleged by the mother.  In my view it is significant that A was 2 months short of his 13^th birthday and Y was 11½ when they travelled to Australia on 18 December 2008.  They had lived in California for the whole of their lives. 

8. It seems inconceivable to me that the children’s parents would have made such a crucial, life-altering decision without consulting them in any way whatsoever.  Their complete ignorance of any prospect at all that they may remain in Australia seems to me to be highly inconsistent with the agreement alleged by the mother.

9. The father’s conduct in January 2009 is inconsistent with the agreement alleged by the mother.  As noted, he said that the children were due to return to school in the USA on 5 January 2009.  After he was told by the mother that she would not return the children he consulted a lawyer, Mr Daniel Williams, who filed an application in a Californian court on 5 January 2009.  Mr Williams acted expeditiously and obtained the orders and declaration, to which I have referred, on 8 January 2009.  The father and his lawyer also acted expeditiously to cause these proceedings to be initiated in Australia. 

10. The mother placed reliance on letters which she allegedly wrote to her brother, D, on 9 September 2008 and 12 October 2008.  She annexed to her affidavit of 10 August 2008, copies of these letters and the envelopes in which they were supposedly forwarded to her brother in Australia. 

11. The original letters and envelopes were tendered in evidence (exhibit 2).  In the letter dated 9 September 2008 the mother wrote, inter alia: 

    “He has no problems about me taking the kids and allow us to live in Australia for 12 months, he wants us to reunion with our families and see how I settle down there”. 

    She then wrote: 

    “Not sure what is going to happen to my future but for now it is okay, and you never know what is in [the father’s] mind tomorrow.”

12. In the letter dated 12 October 2008 the mother wrote:

    “Last night after a long talk (here is the good news) [the father] changes his mind that we should go and live there definitely.  Also he suggested that we should go to Aussie during school break because he is not sure about his job.  I told him that he could join us later and he asked me about the school for the kids, can you find out about the school over there?”

13. Accepting the contents of these letters at face value, it is clear that any agreement reached between the mother and the father in September 2008 ceased to exist at some time between 9 September 2008 and 12 October 2008.  The second letter referred to the father’s “changing his mind that we should go and live there definitely”.  It may have been that the mother made it clear to the father that she wished for the family to live in Australia.  In my view, however, these letters do not establish that she left the USA with the children on 18 December 2008, having reached agreement with the father that they would remain in Australia for a trial period of 12 months.

14. In an Answer which the mother swore on 10 August 2009 she stated:

    “The father [Mr Mok] consented to, and subsequently acquiesced in, the children [A] born […] February 1996 and [Y] born […] July 1998, being removed from Australia.”

    In an Amended Answer filed on 28 august 2009 the mother swore:

    “The father, [Mr Mok], consented to the children [A], born […] February 1996, and [Y], born […] July 1998, being removed to and retained in Australia for a period of at least 12 months.”

15. These two propositions are significantly at odds.  In the first Answer the mother swore that the father acquiesced in the children’s remaining in Australia for an indefinite period after their arrival.  The evidence clearly does not support this contention.  The allegation of an agreement for a trial period of 12 months did not feature at all in the first Answer.

16. For these reasons, I find on the balance of probabilities that there was no agreement between the mother and the father that she and the children would remain in Australia for a trial period of 12 months.  I am satisfied that there was no such agreement when the mother left the USA with the children on 18 December 2008, nor on 8 January 2009 when she failed to return with them in accordance with the travel itinerary.  I thus find that the children were habitually resident in the USA at all times after their arrival in Australia on 18 December 2008. 

17. It is well established that, as a general rule, one parent cannot unilaterally change the place of habitual residence of a child.  In LK and Director-General, Department of Community Services [2009] HCA 9 the High Court said:

    “…..when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child.  When parents are living together, young children will have the same habitual residence as their parents.  No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence.  The assent of the other parent (or a court order) would be necessary.  But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty must be acknowledged.”

18. It follows that I find, on the balance of probabilities, that the children were wrongfully retained in Australia by the mother on 8 January 2009.  I am thus obliged to order the return of the children to the USA, unless I am persuaded by the mother that she has established one of the exceptions in Regulation 16 and, further, that I should exercise my discretion against such an order.

The Regulation 16 Exceptions

1. Regulation 16(3) provides:

   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

   (a)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

   (b)       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.

   The mother relied on the “grave risk” exception provided in Regulation 16(3)(b).

Grave Risk

1. In the Outline of Submissions submitted on behalf of the mother, her lawyer wrote:

   “In the event that the court finds there was a wrongful retention, then the mother submits that the court should exercise discretion to refuse to make a return order pursuant to Reg.13(3)(b). [This reference should have been to Regulation 16(3)(b).]

   The mother submits that there is a grave risk that an order for return would expose the children to psychological harm or otherwise place the children in an intolerable situation.  That risk arises from: 

   a. the likelihood that the mother will suffer a serious deterioration in her mental health which is likely to have an adverse impact on her functioning and capacity to parent, and

   b.         the risk of suicide by the mother (affidavit of Dr [R] 19/8/09).”

2. At the outset of this discussion I indicate that I have considerable sympathy for the mother, who suffered traumatic experiences as a child in Cambodia under the Pol Pot regime.  In her report Dr R described the mother’s childhood history as follows:

   “Her traumatic experiences during the Pol Pot regime, when, from the age of 10 to 14, she was separated from her family, lost her family home and middle class lifestyle, was forced to work hard labour while inadequately fed and had a near death experience from illness because the supervising adult displayed no care.”

3. In her notes (exhibit 5) Dr R referred to a time when the mother’s father became suicidal, because of the family’s treatment by the Pol Pot regime.  The mother was only 10 years old when she witnessed these events.  In her oral evidence Dr R said:

   “It is very shocking for a 10 year old to see that your father thinks that dying is a solution.  But then their mother said they had to fight for life, so she would know that you can fight through adversity.”

4. I accept that the mother has been psychologically damaged by her childhood experiences in Cambodia.  I accept the accuracy of Dr R’s diagnosis of “major depression, which historically has been present for many years, most severely while she lived in the USA”.   

5. Dr R was of the view that the mother will be at risk of suicide if the children are returned to the USA and she remains in Australia.  In part, this opinion was based on “her past history of suicidal ideation”.   Dr R noted, however, that these feelings were “not acted upon as she remained mindful of the need to take care of her children”. 

6. In her affidavit the mother said that she contemplated suicide on one occasion in 2000.  As noted, she told no-one of these feelings and sought no medical treatment at the time.  She said that she spoke to her family doctor about suicidal feelings in approximately 2005 but indicated that she did not want medication or for there to be any record of this conversation.

7. In her affidavit the mother said that she felt “unhappy in my marriage to the father”, “depressed” and “isolated” from 1994.  She conceded, however, that she could function properly as a mother despite her unhappiness, depression and sense of isolation.  In her affidavit she said:

   “During the marriage I was the primary carer of the children and I attended to most of the practical needs of the family.  I did all the housework and cooking.  I shopped for food and clothing.  I fed the children and put them to sleep.  I bathed them and changed their clothes.  I took the children to the doctor for their immunisations and any time they were sick.  The father never accompanied me when I took the children to the doctor.”

   Further, the mother was able to travel to Cambodia with her sister to pursue a real estate investment opportunity in 2007 or 2008. 

8. On the mother’s own evidence, therefore, there was one occasion only approximately 9 years ago when she experienced suicidal feelings in the United States.  She spoke to a doctor about suicidal ideation only once, some 5 years after the sole occasion when she contemplated ending her life.  She declined to take medication in 2005, if indeed her family doctor offered that option.  She was able to cope with the role of homemaker and parent and, in fact, she stated in her affidavit that she received little assistance from the father with the care of the children and the household tasks.

9. The notes of the Area Health Service (exhibit 4) might at first glance suggest recent suicidal ideation on the part of the mother.  In a consultation on 30 July 2009 she apparently reported “thinking of suicide, talks about life not worth living for, but says she is safe, no confidence, dreams of seeing herself hanging from a rope in dreams”.  Significantly, however, the notes of this consultation conclude “client…denied any current thoughts of self harm or harm of others”.

10. These considerations lead me to the view that Dr R took an exaggerated view of “Ms [Mok’s] past history of suicidal ideation”.  I am far from indifferent to the mother’s emotional pain but, in my view, the evidence fails to establish that she has a “history of suicidal ideation”.  I accept that she has had long-term feelings of depression, unhappiness and isolation but these difficulties do not equate to a “history of suicidal ideation”.  It thus seems to me that a fundamental basis for Dr R’s opinion, as to the risk of suicide, does not stand the test of scrutiny. 

11. It should be remembered that the mother will have the support of her family, if she is in Australia and the children return to the USA.  There is no reason to suppose that she would live independently of her parents or lose close contact with her siblings.

12. Dr R’s report addressed also her opinion as to the consequences for the mother, if she and the children return to the USA.  She was of the view that:

    “[the mother’s] depression and anxiety would relapse to previous marked levels of distress and dysfunction.  [The mother] is vulnerable to a relapse for several reasons –

    (i) her traumatic experiences during the Pol Pot regime

    (ii) her husband’s longstanding failure to assist her to manage the separation from her family.  He and his family fail to be emotionally supportive, leaving [the mother] chronically emotionally isolated and alienated in the US, thus repeating the trauma of her youth. 

    (iii) Her husband’s recent betrayal of her trust by initially supporting the family’s relocation to Sydney and then taking legal action to force her to return and divorce her.  [The mother] again faces the prospect of loss of family home, as well as separation from her children.  I have significant concerns these could be overwhelming experiences for [the mother].”

13. In her oral evidence Dr R described the mother’s reaction during the consultation when she raised the prospect of her returning to the USA.  She said: 

    “There was a complete collapse, howls, a look of terror, like Munch’s painting ‘The Scream’, she completely crumpled in.  This presentation certainly affected me – I would  think that she was a pretty good actress and pretty calculating person to put on that show – it certainly convinced me.”

14. Dr R was asked about the extent to which therapy and medication might assist the mother to cope with her situation, while waiting for the Californian court to reach a determination.  She said: 

    “In a short-term situation I am not sure whether treatment and medication would alleviate her symptoms.  I think her anxiety would be quite enormous but she could be well drugged up to manage that period of waiting for the US court, going through that process and not knowing what the outcome will be.  It  would take a stronger medication.”

15. Dr R also said:

    “Until resolution you are dealing with a highly anxious, depressed person who imagines the worse scenario because that is what depressed people do.”

    She said that the mother would be “a vulnerable woman who is away from her most significant psychosocial support”, if she returns to the USA.

16. It is significant that the evidence was that the Californian court could determine competing applications for parenting orders within approximately 1 month.  The situation which Dr R predicted for the mother would thus be of short duration.  Dr R did not address the impact on the mother’s psychological well-being of a decision that the children must remain in the USA.  No doubt that issue would be canvassed in the proceedings in California.

17. With respect to Dr R it seems to me that she based her opinions in part on historical considerations of dubious accuracy, when she addressed the likely outcome for the mother of a return to the USA.  I refer here to her assumptions that the father and his family have been emotionally unsupportive and that he “betray[ed] her trust” by reneging on an agreement for a 12 month trial period in Australia.  It is unsurprising that Dr R accepted all that the mother told her, as she had only her version of events.

18. I do not accept that the father actually displayed “a longstanding failure to assist [the mother] to manage the separation from her family.”  She travelled to Australia 9 times between 1994 and 2007 and again in December 2008.  The maternal grandmother travelled to the United States and collected A after Y’s birth in 1998, then cared for him in Australia for 6 to 7 months.  As noted, the mother and her sister travelled together to Cambodia in 2007 or 2008.  It would seem that there is frequent communication by telephone, letter and email between the mother and her family in Australia.  There was no suggestion that the father ever attempted to curtail the mother’s contact with her family or to limit her visits to Australia. 

19. The mother’s own evidence was that her sister V encouraged her to remain in the marriage, after she told her of an argument with the father in August 2008.  She said that her sister telephoned her and stated:  “You had better think about it and try to work your marriage out.  You should try to keep your family together.  It is not easy on your own.”  It would be surprising if the mother’s sister encouraged her to attempt to save a marriage to a man who had been chronically unsupportive and unsympathetic to her separation from her family. 

20. I do not accept the accuracy of Dr R’s assumption:  “Her husband’s recent betrayal of her trust by initially supporting the family’s relocation to Sydney and then taking legal action to force her to return and divorce her.”  As I have found, I am not satisfied there was any agreement between the parents for the mother and the children to remain in Australia for a trial period of 12 months.  Rather, I have concluded that the mother failed to honour the parties’ agreement and return with the children on 8 January 2009, as the father had been led to expect.

21. I have referred to the undertakings which the father offered on 3 September 2009.  These undertakings suggest to me that the father is sympathetic to the position in which the mother will find herself, if she returns to the USA.  It seems to me that he has voluntarily taken steps to ease her situation to a significant degree.

22. Although the mother said that she drew no comfort from these undertakings, it must be that these arrangements will make her life easier if she returns to the United States.  Dr R said:  “Of course, accommodation, money and a car are important.  Yes I agree that all of this will ease her position if she returns to the United States for a hearing.”

23. The father made it clear in his oral evidence that the mother at no stage told him of the level of her unhappiness in the USA.  He said, further, that he did not know that she felt “isolated” or that she “missed her family”.  It may well be that he lacked insight and sensitivity, in failing to appreciate her emotional state.  Nonetheless, he is now fully aware of what she claims is the depth of her unhappiness. 

24. These considerations lead me to find, on the balance of probabilities, that the mother failed to establish that “there is a grave risk that the return of the children under the Convention would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation”.  In any event, it seems to me that there are weighty considerations which militate against the discretion to refuse to make an order for the return of the children to the USA. 

25. At one point the mother was prepared to allow A to return to the United States.  In her affidavit she said that, in about June 2009 he said to her:  “Mum I want to go back to the States”.  When she next spoke to the father on the telephone she said to him:  “[A] wants to go back to the USA.  Will you sign a paper so if [A] is not happy he can come back to Australia.”  Dr R was unaware of these facts until she gave her oral evidence.

26. The mother maintained that A subsequently told her “Dad’s creepy.  I am scared of him.  I have changed my mind”.  This alleged remark sits uncomfortably with what A told the Family Consultant, who reported:  “it seems that he had thought that his father did not care about him so much but now realises that he does”.  A said nothing to the Family Consultant which would suggest that he has any fear of his father.

27. A told the Family Consultant “it is okay here…a little bit.  I want to stay…I miss my dad.”  Ms F reported that A said:  “I want to stay” but not, in her assessment, “with any strength of conviction”.  He failed to give any clear reasons why he may wish to stay in Australia. 

28. The Family Consultant reported with regard to Y: 

    “[Y] was tearful a few times throughout the interview, particularly when he was talking about what he misses in the USA.  He misses his friends, his cousins and his dad.  He said that when he feels sad he does not talk to anyone but watches TV to take his mind off it.”

29. The Family Consultant’s conclusions were as follows:

    “Both [A] and [Y] exhibited symptoms of loss.  Both are feeling sad.” 

    “Neither boy feels strongly about wanting to remain in Australia nor strongly objects to being returned to the USA.”

30. It thus seems to me that the mother acted unilaterally to remove the children from a lifelong situation in which they were settled and happy.  A indicated in June 2009 that he wanted to return to the USA and, at least for a time, the mother was prepared to allow him to do so.

31. As noted, the father has proffered undertakings which will ease the mother’s situation in the USA, for the short period until the Californian court reaches a determination.  For these reasons, I would exercise my discretion against refusal to make an order for return of the children to the USA.

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              30 October 2009