State Central Authority & Usinov
[2008] FamCA 257
•17 April 2008
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & USTINOV | [2008] FamCA 257 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – children brought to Australia from Bulgaria by father – whether children habitually resident in Bulgaria prior to removal – father contended residence in Bulgaria only temporary – shared intention of parties – whether mother had “rights of custody” and exercising such rights – objections of children aged 7 and 9 – findings of Family Consultant – consideration of age and maturity level of children – objection of children beyond mere expression of preference or ordinary wishes – appropriate to take account of children’s view – whether grave risk to children if returned – provisions of reg 16(3)(b) not established – removal wrongful – not appropriate to exercise discretion to refuse to order return – Order: children to be returned – father to be given opportunity to arrange for children to attend psychologist prior to return. | |
| Family Law Act 1975 (Cth) s 111B Family Law (Child Abduction Convention) Regulations 1986 Reg 16(1), 16(1A) & 16(3) | |
| Gazi and Gazi (1993) FLC 92-341 DP v Commonwealth Central Authority; JLM v Director- General, NSW Department of Community Services (2001) FLC 93-081 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Mr Ustinov |
| FILE NUMBER: | ADC | 4796 | of | 2007 |
| DATE DELIVERED: | 17 April 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 27 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Olsson |
| SOLICITOR FOR THE APPLICANT: | Crown Solicitor's Office |
| COUNSEL FOR THE RESPONDENT: | Mr McQuade |
| SOLICITOR FOR THE RESPONDENT: | Lempriere Abbott McLeod |
Orders
That the question of the orders to be made is adjourned to Tuesday 22 April 2008 at 9.15 am before The Honourable Justice Dawe for final orders.
That the existing orders do continue during the period of the adjournment.
IT IS NOTED that publication of this judgment under the pseudonym State Central Authority v Ustinov is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4796 of 2007
| State Central Authority |
Applicant
And
| Mr Ustinov |
Respondent
REASONS FOR JUDGMENT
Introduction
Upon application filed on the 7 September 2007 the Commissioner of Police, South Australia as the State Central Authority applied for orders pursuant to the Family Law (Child Abduction Convention) Regulations 1986 seeking the return of the two children A born on the … September 1998 and M born on the … May 2000 to the Republic of Bulgaria forthwith.
The respondent to the proceedings was the father of the children Mr Ustinov. The children are the children of the father and the mother Mrs Ustinov. The application under the Convention is brought at the request of the mother who now resides in Bulgaria.
Documents and Hearing
Since the initial application was filed by the Central Authority, further documents have been filed including affidavits on behalf of the Central Authority to which are annexed various documents from Bulgaria, affidavits of the father and his witnesses.
Following the interim orders made in November 2007 by Judicial Registrar Forbes the children, the father and paternal grandmother were interviewed and a report prepared by Mr R, a Regulation 7 Family Consultant. His report is annexed to an affidavit and is dated 6 February 2008.
At the final hearing before me on the 27 February 2008 the Central Authority was represented by Ms Olsson of counsel. Mr McQuade of counsel represented the father.
It was agreed at the final hearing that a determination should be made based on the papers without hearing oral evidence save and except that the Family Consultant, Mr R, was called to give oral evidence and was cross-examined by each counsel.
This was consistent with the purpose of the Convention and Regulations which suggest a summary procedure for the speedy resolution of this type of application (see Gazi and Gazi (1993) FLC 92-341 and Panayotides and Panayotides (1997) FLC 92-733). In the latter case the Full Court referred with approval to observations of Justice Jordan, the trial Judge, and at 83,897 quoted him:
"The first thing to observe is that there is much conflict in the evidence. These are summary proceedings and issues must be determined on the papers. This often presents the Court with difficulties. It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see, Re F (1992) 1 FLR 548). As was submitted by counsel for the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.”
Background and Summary of Facts
The father was born in December 1954 in the Republic of Bulgaria. The mother was born in May 1969 in the Republic of Bulgaria.
In September 1981 the father travelled from Bulgaria to Austria where he obtained political asylum and later residency status in Australia. The father arrived in Adelaide in April 1984. He became an Australian Citizen in 1985, retaining his Bulgarian Citizenship.
In September 1992 the husband travelled to Europe on holiday. The mother and father met in December 1992 in Bulgaria and started living together in Bulgaria towards the end of December 1992.
The husband was unable to return to Australia due to the bankruptcy of the airline on which he was travelling. He remained in Bulgaria and continued to live with the mother.
On the 21 May 1994 the mother and father were married in Bulgaria. On the 22 December 1994 the mother and father left Bulgaria together and moved to Australia the wife having been granted permanent residency status.
The mother and father arrived in South Australia on the 24 December 1994 and commenced residing in the home of the father’s mother at K, a suburb of Adelaide. In May 1997 the mother became an Australian Citizen. She also retained her Bulgarian Citizenship.
In or about August 1998 the parties travelled to Bulgaria in the expectation of the birth of their first child. A was born in September 1998 in Bulgaria. Shortly thereafter an Australian passport was obtained for A.
In January 1999, the mother, father and A returned to Australia where they remained living until April 2000 when the mother, father and A travelled to Bulgaria ahead of the birth of their next child M who was born in May 2000 in Bulgaria. The family returned to Australia in September 2000.
The family remained living in Australia until early 2005, apart from an overseas holiday for about four months in 2002.
Whilst the family was living in Australia they purchased a three-bedroom unit in C, a suburb of Adelaide. The father was employed. After attending English classes, the mother also obtained employment in 1997. The mother and father purchased the unit next to their unit for the father’s mother to occupy.
In early 2004 the mother and father purchased a garage near the father’s mother’s apartment in Bulgaria. In June 2004 they also purchased an apartment in Bulgaria using the mother’s mother as Power of Attorney.
The units in Adelaide were sold. The family left Australia with all of their belongings in February 2005.
The father asserts that in 2005 the intention was to move to Bulgaria “for about two years” and not permanently.
Following a short visit to Hawaii, Canada and the United States the family arrived in Bulgaria on the 6 March 2005.
The father says in his affidavit filed on the 12 October 2007, paragraph 43:
“In the winter of 2005/2006 [the mother] and I started buying land and houses in Bulgaria with the intention of selling them in the summer.”
After a short time living with the mother’s mother in Bulgaria the family moved into the apartment in Bulgaria which they had purchased when living in Australia.
The affidavits of each of the mother and father referred to incidents which occurred between the mother, father and the father’s mother at this time in Bulgaria. There is considerable dispute about these incidents, with the mother blaming the father and his mother for the incidents and the father blaming the mother.
On the contradictory sworn evidence of the mother, father and other material before the Court it is not possible to draw a conclusion as to who is telling the truth about these incidents.
The father also alleges that the mother was abusive towards the children, yelling at them, hitting and beating them. The mother denies having hurt either her son or daughter.
The material filed by each of the mother and father however indicates that there was a serious incident in November 2006. The police were called to the home. Subsequently “civil violence” proceedings were commenced by the mother in Bulgaria asking the Court to make a protection order. This was refused in April 2007.
The mother and father separated in about April 2007 when the father took the children to reside with him at his mother’s home in Bulgaria. The father says in paragraph 64 of his first affidavit:
“I continued to take the children to our home on the weekend to see [the mother]. I had to basically force them to go. The situation was becoming unbearable we had no money left.”
The mother disagrees with this. In her responding affidavit she says:
“I disagree. [The father] was limiting the time I had together with my children. Not every weekend they were home. I was calling [the father’s] mobile number and from time to time was able to talk to the children. We had everything we needed at home and I did not see the reason why [the father] should keep [A] and [M] away from home. I did not agree that I had to provide any money to [the child] and his mother.”
In his affidavit filed on the 31 January 2008 the father says in his chronology on page 5/6:
“April 2007 The parties separated. Thereafter the arrangements for the children were as follows. During the week the children lived with the husband in the home of the husband’s mother. At weekends the husband and the children returned to the former matrimonial home. At no time from April 2007 did the wife have the sole care of the children.”
In paragraphs 74 (l) of his affidavit filed on the 31 January 2008 the father says:
“After 5 April the children and I were going back and forth to my mother’s and our place.”
In sub-paragraph (o) he states:
“In her statement [the mother] a few times suggests that I took the children to my mother’s place without her consent, which is not true.”
Although there is some dispute as to the frequency of the time the children spent with the mother after April 2007, the father describes staying with the children at his mother’s home during the week and staying with the children at the matrimonial home with the mother and the children on the weekends. The father’s mother’s affidavit also refers to this arrangement. In paragraph 21 of the father’s mother’s affidavit she says:
“In the last two months before leaving for Australia [the father] and the children were staying at my place from Monday to Friday and [the father] was taking them to see their mother on the weekends except when the children were sick.”
On the 27 June 2007 the father, his mother and the two children left Bulgaria travelling to Australia via Greece and Turkey. This was done without the knowledge or consent of the mother.
The father and children arrived in Adelaide on the 3 July 2007.
It was not until the 7 July 2007 that the father told the mother that he and the children were in Adelaide, Australia.
The father, his mother and the two children are now living in Y, a suburb of Adelaide. The children attend a local school.
On the 10 July 2007 the mother made application to the Ministry of Justice of the Republic of Bulgaria seeking the return of the children from Australia under the provisions of the Hague Convention.
By letter, which appears to be dated 27 July 2007, the Minister of Justice of Bulgaria forwarded the appropriate documents and requested that the Commonwealth Attorney-General’s Department seek the return of the children. The Commissioner of Police, South Australia as the State Central Authority thereafter commenced the proceedings which were filed in this Court in the Adelaide Registry on the 7 September 2007.
At the first return date on the 10 October 2007 His Honour Justice Burr made certain orders, including an injunction restraining the father from removing the children from South Australia, placing the children’s names on the Airport Watch List and requiring the delivery up of the passports of the father and the children.
In November 2007 when the matter came on before Judicial Registrar Forbes, an order was made that the children be interviewed by Mr R and that a report be prepared dealing with the matters referred to in the Regulations.
Mr R visited the father’s home on the 19 and 27 January 2008 where he interviewed the children. The first interview was carried out with the aid of a Bulgarian interpreter. He also interviewed the father and paternal grandmother on each occasion.
Mr R’s report is dated 6 February 2008.
At the conclusion of the final hearing before me on the 27 February 2008 I reserved judgment.
The Law
The Hague Convention on the Civil Aspects of International Child Abduction sets out certain objects and principles. The Family Law (Child Abduction Convention) Regulations set out the provisions to be applied when an application is made to return children from Australia to another Convention country. Bulgaria is a Convention country.
The most relevant provision of the Regulations, is Reg 16 which states:
“(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 hi 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.”
Findings on Issues
The application for the return of the children was made within the prescribed one year. Both of the children are under 16.
Habitual Residence
The children resided in Bulgaria immediately before their removal from that Convention country. Counsel for the Central Authority submitted that the children’s habitual residence prior to their removal was Bulgaria.
The father in his papers maintained that he was a permanent resident of Australia and had only moved to Bulgaria for approximately two years. In final submissions counsel for the father did not concede that the children were habitually resident in Bulgaria immediately before their removal, but made no significant submissions.
The Convention and regulations refer to “habitual residence”.
The habitual residence of the children whose parents live together is that of the parents. The authorities indicate that neither parent can change the habitual residence of the children without the consent of the other.
The evidence indicates that the children were resident in Australia prior to their move to Bulgaria in early 2005. The mother, father and children then moved from Australia to Bulgaria. They sold the real estate they owned in South Australia and moved all of their belongings to Bulgaria. In Bulgaria they purchased real estate, the children attended school, the mother obtained employment. Prior to the separation of the parties in April 2007 the mother, father and children resided together as a family.
The father maintained that the family were residing in Bulgaria only as a temporary arrangement for about two years.
The concept of “habitually resident” was considered in Cooper and Casey (1995) FLC 92-575. At page 81,695, Nicholson CJ, as he then was, quoted with approval the passage from Re B (Minors) (Abduction) (No 2) (1993) 1 FLR 993 at page 995:
“1.The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.
2.Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or of long duration.
All that the law requires for a `settled purpose' is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.
3.Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention. The House of Lords in Re J, sub nom C v S (above) refrained, no doubt advisedly, from giving any indication as to what an `appreciable period' would be. Logic would suggest that provided the purpose was settled, the period of habitation need not be long. Certainly in Re F (above) the Court of Appeal approved a judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country.'' (My underlining)
It is not possible for one parent to unilaterally determine the habitual residence of the child (see State Central Authority v McCall (1995) FLC 92-552).
In Re B (Minors) (Abduction) (No 2) (1993) 1 FLR 993 (which was quoted with approval by Nicholson CJ in Cooper & Casey (1995) FLC 92-575) it was said:
“All that the law requires for a "settled purpose" is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.'
I am satisfied that the mother and father had a shared intention to live in Bulgaria and that there was sufficient degree of continuity about their residence in Bulgaria to describe it as “settled”.
I am not satisfied that the residence was merely temporary.
I am satisfied that the evidence establishes that the mother and father were habitually resident in Bulgaria immediately prior to the removal of the children. I am therefore satisfied that the children were habitually resident in Bulgaria immediately before their removal from Bulgaria.
Rights of Custody
Regulation 16(1A)(c) requires a determination about whether the mother had “rights of custody” in relation to the children under the laws of Bulgaria immediately before their removal to Australia.
Sub-paragraph (d) also requires that the children’s removal to Australia was in breach of those rights of custody.
The Central Authority must satisfy the Court that the mother had rights of custody in Bulgaria.
The Bulgarian Identity Documents Act, Article 76 is provided in a letter from the Minister of Justice Bulgaria. The relevant portions of which are:
“The following may be prohibited from leaving the country and may not be issued passports and passport substitutes or may be ordered to surrender the passports and passport substitutes issued thereto:
…
9.… any persons who have not attained the age of 14 years and any persons who have attained the age of 14 years but have not attained the age of 18 years and any interdicts, where the parents, tutors and curators thereof have not granted consent to foreign travel of the said persons.”
The difficulty with Article 76 of the Bulgarian Identity Documents Act is the interpretation of the words in “may be”. There was no application specifically made to the Bulgarian Courts or the Authorities to require the father to surrender the passports, nor was there a specific order prohibiting him from taking the children from Bulgaria.
Article 43 of the Foreigners in the Republic of Bulgaria Act was also attached to the application. The relevant portions of that Article are as follows:
“Article 43
(3)A foreigner under 18 years of age who is the holder of a Bulgarian citizenship as well shall be banned from leaving the Republic of Bulgaria where one of the parents is a Bulgarian citizen who has not given a written permission for his travel abroad.”
In this case the mother is a Bulgarian citizen who had not given written permission for the children to travel abroad. The difficulty however is that the documents do not explain the definition of a “foreigner”. The translation requires this sub-section to be applied to a person who is a “foreigner” but who is also a Bulgarian citizen. The children were both born in Bulgaria. However I am not satisfied that the Central Authority has established that the children were “foreigners” within the meaning of the Bulgarian provisions.
Attached to the Initiating Application (document 1) is a translation in English of the letter from the Minister of Justice in Bulgaria which refers to Article 72 of the Family Code of the Republic of Bulgaria which provides:
“The parental rights and obligations shall be exercised by both parents jointly and severally.”
Annexed to the application are the specific sections of the Family Code in particular Article 68 to Article 78 inclusive. Under the heading “Place of Residence of the Child” is Article 71 which states as follows:
“Article 71
(1)A child who is still underage shall live with his/her parents unless there are compelling reasons for the child to live elsewhere. In the case of failure to comply with this obligation, the parents may request the local court at the place of their residence, after hearing the child if over ten years of age, to issue an order for his or her return to the parents. The order may be appealed before the president of the regional court, but the appeal does not stop the enforcement thereof. The order shall be executed administratively.
(2)In the cases where the parents do not live together and are unable to reach an agreement as to which one of them the child will live with, the dispute shall be resolved by the regional court at the place of residence of the child after the court has heard the child if he or she has completed ten years of age. The decision of the court may be appealed in accordance with the general rules.”
Under the heading of “Discharge of Parental Rights and Obligations” is Article 72 which states:
“Article 72
Parental rights and obligations shall be discharged by both parents jointly and separately. In the case of disagreement between them the dispute shall be resolved by the local court after hearing the parents, and where necessary also the child. The decision may be appealed in accordance with the general rules.”
It is common ground that there were no proceedings between the mother and the father in Bulgaria, other than the proceedings commenced by the mother for a protection order which was unsuccessful.
The legal opinion provided (with translation and annexed to the affidavit of Ms Olsson filed on the 22 February 2008) deals with the question of the mother’s rights of custody and her exercise of these rights.
The expert opinion is provided by the attorney representing the mother in Bulgaria. It refers specifically to Article 68 (1); Article 71 (1) and Article 72.
Part of that opinion contains the following statements:
“The most essential characteristic of the parental rights is the unity between rights and obligations. E.g., there is no allocation between both parents of who shall be responsible for what, and both of them have to raise, bring up, control, represent, encourage, etc., their underage and under the age of majority children.
…
It is not allowed one of the parents to make a unilateral decision on how the children shall be raised and brought up, where they shall live and get education, who shall take care of them and prepare them for life.
When there is an argument between the parents regarding the implementation of their rights and obligations, competent to rule shall be the respective district court.” (My underlining).
I am satisfied therefore that the mother had rights of custody immediately prior to the children’s removal from Bulgaria.
Counsel for the father emphasised the requirement that the Court must find that not only did the mother have rights of custody but that she was actually exercising the rights of custody (either jointly or alone) as required by Regulation 16(1A) (e) (i) at the time of the children’s removal.
On behalf of the father it was asserted that the mother was not exercising her rights.
The children were residing with the father and his mother Monday to Friday and living with the mother and father on weekends.
The father maintained that the mother was not exercising her rights of custody because she had not taken any proceedings to enforce those rights. He also asserted that there was no evidence to indicate that the parties had made a joint decision that the children would live with the father and visit the mother on weekends.
I am not satisfied that it is necessary to establish that the mother had brought proceedings to enforce her rights before she could be described as “exercising those rights”. The law of Bulgaria provided that decisions about the residence of the children should be made by both parents and if they are unable to agree then an appropriate Court is to make the decision.
The mother was also exercising her rights of custody to the extent that immediately prior to their removal the children were living with the mother on some weekends.
I am satisfied that the evidence establishes that the mother had rights of custody under the Bulgarian law and was exercising those rights immediately prior to their removal.
Rights of Veto
As previously indicated there are difficulties in relation to the application of the provisions of the Bulgarian legislation dealing with Bulgarian Identity Documents Act (Article 76) and the Foreigners in the Republic of Bulgaria Act (Article 43). However, in view of the interpretation I have made of the provisions of the Family Code it is unnecessary to decide whether the mother had the right of veto which would establish rights of custody.
Discretion to refuse to order the return of the children
Regulation16(3)(c) provides that the Court may refuse to order the return of the children if the father, being the person opposing the return, establishes that:
“(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; “
A is nine and M is seven. They were interviewed on two occasions by Mr R, a Family Consultant. Mr R gave evidence and was cross-examined at the hearing before me.
His report is annexed to his affidavit filed on the 7 February 2008.
Under the heading “First Interview with the Children” the Family Consultant says:
“17.However, they remained guarded and formal in their interaction with the writer, recounting events, conditions and attitudes unemotionally as a team supporting and extending each others responses.
18.It was established that they had issues about Bulgarian everyday living conditions, their school experiences and their relationships with their parents.”
In the section headed “Second Interview with the Children” the Family Consultant sets out the children’s comments about the general living conditions and schools in Bulgaria and comments about the poor relationship between their parents and allegations that their mother had hit them.
He describes the children’s wishes about their residence in Australia as uncompromising and gives quotations from the children’s comments. At paragraphs 25 and 26 he states:
“25. Their reactions to being ordered to return to Bulgaria:
‘We will cry and scream for help …we will not leave Australia for anything.’
26.If their father returns with them:
‘It would help a little bit but we want to stay in Australia’.”
Under the heading “Clinical Evaluation” Mr R said inter alia:
“27.The two children’s relatively unemotional demeanor (sic) during the two interviews can be to some extend (sic) explained by the more than six months since the events and feelings happened in Bulgaria.
28.However, when the subject of forced return was broached they became animated and forceful in their determination to resist.
29.Total rejection of the mother and subsequent total favouring of the father and paternal grandmother is a phenomenon the writer has encountered many times when children are subjected to chronic stresses by their parent’s separation behaviour, usually around ten years of age as a survival mechanism in an attempt to simply impossibly demanding emotional situations.
30.Once this solution is in place it is very difficult to modify, requiring therapy and, above all else, radical changes in the parent’s relationship and behaviour.
31.During the last six months the two children here experienced the difference between life in Bulgaria and Australia, thus leading credibility to their stated choice to remain living in Australia.
32.Equally, their ability to provide detailed rather than general statements of events and attitudes suggest that for the most part the statements are their own rather than from some undue influence.”
Dealing specifically with provisions of Regulations 16, Mr R concluded his report in relation to their objections. The report states:
“34.The two children’s objections to being returned to Bulgaria on the one hand and to their mother on the other, generated feelings well beyond the mere expressions of preferences or ordinary wishes.
35.Although only nine and seven years of chronological age, these children like many others subjected to the stresses of their parents marriage breakdown, have acquired a sophistication beyond children in intact relationships and as such should be given at least twelve to eighteen months of maturity on top of their chronological age regarding their expressed objections.”
However, he also said at paragraph 39:
“39.The two children’s earlier decision to favour their father, the Respondent, and totally reject their mother and their experience of living in Australia for the last six months as a result of the father’s arbitrary action of leaving Bulgaria most certainly would have enhanced the Respondents general influence.
40.Yet during the interview they used language and logical argument appropriate for their age, consistently over two interview periods with and without an interpreter.
41.This would suggest that their expressed knowledge and opinions are largely of their own understanding rather than any undue influence from the Respondent.” (My underlining).
During his oral evidence, Mr R, substantially maintained most of the opinions expressed in his written report. During cross-examination by Ms Olsson, he confirmed that nothing had been volunteered by the children. When it was put to him that there had been no spontaneity and their responses had been flat he replied “very much so”. He maintained however that he thought the children were genuine and not coached.
He said the children were blaming their mother for everything in the second interview. When asked by Ms Olsson whether their attitude of support for their father and remaining in Australia was more of a “survival mechanism” than their genuine wishes, he said that it was “probably both”.
When cross-examined by Mr McQuade, Mr R confirmed that the children’s objections went beyond mere preference and that they had maturity which made it appropriate to take account of their views.
Mr R maintained that the children’s presentation indicated to him that they were more mature and sophisticated than their ages 7 and 9 would normally indicate.
The report and oral evidence of Mr R establish that the children object to being returned to Bulgaria and to their mother and that these feelings go beyond the mere expression of preference or ordinary wishes.
Mr R also maintained that:
“Although only nine and seven years of chronological age, these children like many others subjected to the stresses of their parents marriage breakdown, have acquired a sophistication beyond children in intact relationships and as such should be given at least twelve to eighteen months of maturity on top of their chronological age regarding their expressed objections.”
Whilst the children are therefore only nine and seven years, they present as more mature.
In S v S (Child Abduction) (Child’s Views) [1992] 2 FLR 492 the Judge at first instance concluded that a nine year old girl was of sufficient maturity taking into account the evidence of a duty court welfare officer who had interviewed the child and the assessment that the child’s mental age was about 12.
In another case Re R (Child Abduction) [1995] 1 FLR 716 the same English Judge reviewed the English authorities and found only a small number of cases where a child under nine was not returned because of the child’s objections.
In the Australian decisions various views have also been expressed.
In Director General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785, His Honour Justice Lindenmayer considered that a nine year old child was of sufficient age and maturity for the Court to take into account his views, but found that such view was “certainly not decisive”.
In Director General Department of Community Services v M and C (1998) FLC 92-829 the application related to the return of two children aged eleven and nine to Poland. The Full Court confirmed that it was appropriate for the trial Judge to take into account the children’s objections. The Full Court said at paragraph 105:
“The fact that both children were intelligent for their age obviously was relevant to the assessment of whether their objections were formed with insight and should be given weight.”
They also referred to the Judge’s finding that:
“Their objections to returning to Poland are their own independent views which they have stated with full knowledge of both the effect and the consequences of having expressed them.”
(Paragraph 108).In Agee and Agee (2000) FLC 93-055 the Full Court agreed with the trial Judge’s approach in relation to the objections of a nine year old child. The trial Judge had found that despite the child’s youthful age, he possessed a sufficient degree of maturity to have his views taken into account.
In J & The Police Commissioner of SA and Children’s Representative (2001) FamCA 384 (unreported decision) Her Honour Justice Murray, in reviewing orders made by Judicial Registrar Forbes, took into account the evidence of the Family Report Writer that the nine year old child did not have the maturity to understand the circumstances of the proceedings in New Zealand or the ability to understand the complexities of the matter. Her Honour also found that it was not appropriate to take into account the objection of an 11 year old child because she found those views had been influenced by the mother and grandmother.
In his paper in the Australian Journal of Family Law, His Honour Justice Kay (as he then was) discussed the question of the age at which a child’s views should be considered (see The Hague Convention - order or chaos? (2005) 19 Australian Journal Family Law 245 at 274). He concluded:
“Therefore it seems there is no settled agreement among courts internationally or even within courts domestically, as to the age at which a child’s wishes should be taken into account.”
It is therefore apparent that there is no set age at which the views of children must be taken into account. The assessment is based on each individual child and the individual circumstances. In particular the cases indicated that there are circumstances in which a nine year old may be of sufficient maturity and there are other circumstances where another nine year old would not be.
The Court has a discretion to exercise even if satisfied that the child’s objections fall into the categories set out in the Regulations. The circumstances surrounding the children’s departure from the Convention country and their reasons expressed as the foundation of the objection may be matters relevant to the exercise of discretion.
In the Family Consultant’s report he refers to the children having “issues about Bulgarian everyday living conditions, school experiences and their relationship with their parents.” (Paragraph 18).
These are described in some detail in paragraphs 21, et seq, including comments indicating the children did not like the living conditions in Bulgaria (dogs on streets bite people…people do not have houses…lived in rooms with grey mould on walls sometimes black…people angry and yelling at each other). M also complained about his treatment at school alleging a teacher hit him and difficulties with other children in the Bulgarian schools. A gave examples which included having observed an altercation between her parents, the police being called and alleging that her mother did not love them, hit them and “once chocked (sic) us one in each hand” (paragraph 23). The mother has denied hurting the children. The mother claims the father has influenced the children to turn against her.
The expression of these views by the children should be taken in the context that they have been residing with their father in Australia with limited contact with their mother since late June, early July 2007. Mr R conceded that the attitude adopted by the children may be in part explained by a “survival mechanism”.
I am satisfied that the children’s objections are of sufficient strength that they are beyond mere preference or ordinary wish. I take into account the evidence of the Family Consultant that they have reached an age and maturity which makes it appropriate to take account of their views. However this is not to say that the views they have expressed should determine the outcome of the proceedings.
Grave Risk
Regulation 16(3)(b) states:
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
…
(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;
The documents filed in the proceedings indicate that the mother has made allegations of violence and abuse against the father. The father has also made serious allegations of violent behaviour by the mother towards him, the children and between the mother and the paternal grandmother.
The hearing before me on the documents and the oral evidence of the Family Consultant did not permit a decision to be made as to the truth of the allegations made by each of the mother and father. The father also referred to allegations that M had been “slapped” by his teacher and his ears had been “pulled”.
One of the annexures to the documents provided to this Court was the determination by the Bulgarian Court to dismiss the mother’s application for a Protection Order. In dismissing the application for Protection Order, the decision included findings that:
“There were evident complicated, strained and probably unbearable relationships between the petitioner and her husband.” (Page 6 of the Decision)
“As a result of the bad atmosphere in the family, considering the relations between parents and the difficulty in communication, both children have become witnesses of the verbal aggression between them which reflected negatively on the children’s psychical and emotional state. Strong adherence of the siblings to their father had been noticed.” (Paragraph 7 of the Decision)
At page 10 of his report, the Family Consultant Mr R, says at paragraph 36:
“There is certainly a grave risk of psychological harm to the two children should they be returned to Bulgaria without therapeutic intervention in Australia rather than any treatment in Bulgaria after their return.”
During his oral evidence however it became obvious that he considered a substantial part of the risk was the possible psychological harm that the children would suffer if they were forcibly returned to Bulgaria to the care of their mother. He was then directed to consider that the children be ordered to return to Bulgaria but on the basis they could remain in the care of the father if he chose to travel with them.
When asked if the risk to the children would be reduced if the father played a role in returning the children to Bulgaria, he said “yes, it certainly would”.
Mr R continued to emphasise that the children did not want to return to their previous school in Bulgaria and that they disliked the whole environment in Bulgaria. He was concerned that it would be necessary to use force to arrange for the return of the children to Bulgaria, unless there was a therapeutic intervention preferably involving both the mother and father.
The oral evidence of Mr R indicated that his initial assessment was based on the premise that the children would be returning to the care of their mother, rather than to Bulgaria. His evidence indicated that if the children returned to Bulgaria with their father, his concerns would be much reduced.
I am satisfied that the oral evidence of the Family Consultant was that the emotional or psychological risk for the children would be reduced if they travelled with their father to Bulgaria and would also be reduced if the children were given the benefit of short term intensive therapy about their return. The oral evidence of the Family Consultant therefore reduced the risk from grave, although it was not a risk that was entirely removed.
The Court did not have the benefit of any evidence from the father or mother to indicate whether they would be willing to participate in the recommended therapy.
In affidavit material filed by the father he expressed concern about the mother’s appearances in television programmes and articles in the Bulgarian press. He expressed concern that this might influence his capacity to have a fair hearing in Bulgaria. Aside from expressing this concern the father did not produce evidence to show that the Judiciary in Bulgaria would be influenced by such television programmes or newspaper reports.
The father also expressed concern that he may be arrested for breaching Bulgarian law because he removed the children from Bulgaria without the mother’s consent. He maintained however that at the time he did this, using their Australian passports, he believed he was entitled to do so.
Neither of these factors (the publicity undertaken by the mother, nor the risk of possible criminal proceedings against the father) establish a grave risk to the children.
Nor do these factors carry significant weight in the exercise of the Court’s discretion not to order the return of the children.
The father presented a case which alleged that there was grave risk to the children if they were returned into the care of the mother in Bulgaria.
However he did not establish that the children would suffer grave risk if returned in his care and by him to Bulgaria (where the Courts could determine the living arrangements for the children following the appropriate Bulgarian legal procedures).
Mr McQuade for the father submitted that even if I did not find there was a grave risk to the children, nonetheless I should take into account the Family Consultant’s evidence that the children would be upset if ordered to return and their relationship with their mother would be harder to restore. In particular, Mr McQuade emphasised the need to take into account the dual factors of the children’s objection and the existence of some risk, even if not grave, of psychological harm if the children returned to Bulgaria.
The High Court considered the question of grave risk in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081. Justices Gaudron, Gummow and Hayne said at paragraph 45:
“45.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.”
I am not satisfied that the father has established that there is a grave risk that the return of the children to Bulgaria would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
In DP v Commonwealth Central Authority (Supra) the High Court considered conditions which might be placed upon the order for the return of the child which will allow the discretion to be properly exercised, notwithstanding that a case of grave risk might otherwise have been established. (Paragraph 40).
Counsel for the father submitted that this Court cannot order the father to attend therapy with the children. In any event this Court may grant the father time to participate with the children in some form of therapy before their return to Bulgaria.
Counsel for the Central Authority submitted that it would be appropriate for the Court to recommend, rather than order, therapy, but to bear in mind the philosophy behind the Convention is for the children to be returned to the Convention country expeditiously.
Summary and Conclusions
There are significant factual issues in dispute between the mother and father (such as the conditions in which the children resided in Bulgaria, their treatment at school, the violence between the mother and father and who was responsible for it and violence between the mother and paternal grandmother and who was responsible for it). Those matters will need to be determined by the appropriate authority before a final decision is made about the permanent living arrangements for the children.
I am satisfied that the Central Authority has established that the children were habitually resident in Bulgaria before their removal. Bulgaria is a Convention country and each child is under 16.
The Central Authority has established that the children’s mother had rights of custody according to the law of Bulgaria immediately before the children’s removal and that she was exercising those rights of custody.
The children’s removal from Bulgaria was in breach of the mother’s rights of custody.
The application for the return of the children was made within one year of their removal.
The Central Authority has therefore established that the children’s removal from Bulgaria was wrongful.
Regulation 16(3) gives the Court a discretion to refuse to make an order if one of the conditions is established by the person opposing the return. In this particular case the father has established that the children object to being returned, that their objection shows a strength of feeling beyond the mere expression of a preference of ordinary wishes and that the children have attained an age and a degree of maturity at which it is appropriate to take account of their views.
The father has not established that there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place the children in an intolerable situation.
The Regulation clearly provides that the Court may still order the return of the children notwithstanding that one of the conditions in Regulation 16(3) has been established. The discretion is clearly indicated by the use of the word “may” and by the specific provisions of sub-regulation (5).
The children are aged nine and seven and have been in the care of their father ever since they left Bulgaria in late June 2007. Whilst the children’s wishes should be taken into account, their wishes need to be considered in the context of this particular case and not necessarily given decisive weight.
The father is in a position to ensure that their return to Bulgaria can be undertaken in a way (with his support and encouragement) that the children will not suffer any long term effects and any short term difficulties can be overcome.
Taking into account the particular factors in this case and notwithstanding the objections of the children, it is not appropriate to exercise the discretion to refuse to order the return of the children. The order should be made for the return of the children to Bulgaria.
The father will be given an opportunity to arrange for the return of the children in his company and a brief time to take the children to a suitable qualified child psychologist of his choosing to assist him in reducing the psychological impact of the return to Bulgaria.
If the father is unable to or unwilling to take the children to therapy and to make arrangements for the children to return to Bulgaria in his care, then appropriate orders should be made to ensure that the children are nonetheless returned. Suitable notice should be given to the Bulgarian authorities to request the protection of the children and prompt resolution of any dispute between the parents concerning the care of the children in Bulgaria.
I will hear the parties’ submission on the form of the following proposed orders:
I certify that the preceding one hundred and fifty one (151)) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 17 April 2008
Key Legal Topics
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Family Law
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Statutory Interpretation
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Jurisdiction
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Procedural Fairness
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Standing
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Statutory Construction
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