STATE CENTRAL AUTHORITY & YOUNG
[2012] FamCA 563
•20 July 2012
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & YOUNG | [2012] FamCA 563 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – return proceeding following alleged wrongful removal of child from Republic of South Africa – Early identification of justiciable issues – rights of custody – objections to return by child who is 9 year old – exposure to grave risk of harm from family violence – exposure to grave risk of harm because adequate arrangements and safeguards against family violence are unable to be implemented in South Africa upon the return of the child – exposure to grave risk of harm arising from child being separated from siblings – access between child and left behind father pending determination of return application. FAMILY LAW – PRACTICE AND PROCEDURE – HAGUE CONVENTION – bifurcation of proceedings so that issue of “rights of custody” is determined as a preliminary issue – international expectations of time in which return proceedings can be determined - expeditious determination will not be achievable within 6 weeks – possible criminal prosecution and sanctions to be faced by abducting parent on return to South Africa. FAMILY LAW – PRACTICE AND PROCEDURE – HAGUE CONVENTION – role of independent children’s lawyer in, and incidental to, return proceedings – Regulation 26 report – scope of report – specification of matters to be assessed by family consultant. |
| Children’s Act 2005 (South Africa) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| Browne v Dunn (1894) 6 R 67 (HL) DP & Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) FLC 93-081 Laing v The Central Authority (1999) FLC 92-849 Murray & Director Family Services (ACT) (1993) FLC 92-416 MW v Director-General, Department of Community Services [2008] HCA 12 Re C (A Minor)(Abduction) [1989] 1 FLR 403 TB & JB (Abduction: Grave risk of harm) [2001] 2 FLR 515 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Young |
| INDEPENDENT CHILDREN’S LAWYER: | Ms C Smith |
| FILE NUMBER: | MLC | 5904 | of | 2012 |
| DATE DELIVERED: | 20 July 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 20 July 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | State Central Authority Department of Human Services |
| COUNSEL FOR THE RESPONDENT: | Mr Stanley |
| SOLICITOR FOR THE RESPONDENT: | Burrell Family Law |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
IT IS ORDERED THAT:
1.The hearing of this matter insofar as it pertains to the requesting parent’s right of custody in relation to the child D YOUNG born … March 2003 be set down for hearing before me on 8 August 2012 to commence at 4.00 pm and estimated to take 3 days (“the first hearing”).
2.The hearing insofar as it pertains to exceptions to mandatory return any discretion to refuse return that arises therefrom and any other matter such as conditions to return be set down for hearing before me to commence on 10 September 2012 estimated to take 4 days (“the second hearing”).
3.The evidence in the first hearing is evidence in the second hearing to the extent that such evidence is relevant.
Paragraph 8 of the Order made on 13 July 2012 (as to the date of the interviews for the Regulation 26 report) be discharged and in lieu thereof for the purpose of the preparation of the report a family consultant or like appropriately qualified person nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court be available to see the child D YOUNG born … March 2003 at a date, time and place nominated by the Director of Court Counselling of this Registry of the Court. The mother deliver the child to the family consultant as directed, on the nominated date and time, and thereafter, abide any reasonable requests of the family consultant.
The father be provided with an opportunity to participate in the assessment for the Regulation 26 Report which is comparable to the participation of the mother in preparation of the report and such participation by him be, at least in part, by audio-visual link.
The independent children’s lawyer be at liberty to introduce herself to the child D during the assessment process in such manner and at such time as the report writer, in her discretion, considers appropriate.
The Regulation 26 Report in relation to D YOUNG born … March 2003, pursuant to paragraph 7 of the Order made on 13 July 2012, address the following issues:-
a. Whether he objects to being returned to South Africa;
b. Whether his objection (if any) shows a strength of feeling beyond the mere expression of a mere preference or of ordinary wishes;
c. Whether the child has attained an age and degree of maturity at which it is appropriate to take account of any objection he may have.
The report also address the following further issues:-
a.The impact on the child, in terms of his medium to long term psychological health and otherwise, of being separated from his siblings in the event that the child is returned to South Africa but his siblings remain in Australia;
b.The impact on the child, in terms of his psychological health and otherwise, of being separated from the mother in the event that the child is returned to South Africa but the mother remains in Australia for whatever reason;
c.The impact on the child, in terms of his psychological health or otherwise, of being separated from the father in the event that a return is not ordered and the child is permitted to remain in Australia
d.What (if any) face to face access or electronic communication between the child and his father, Mr A, would be appropriate between now and the final hearing of this matter having regard, where appropriate, to the considerations applicable to parenting cases set out in ss60CC(2) and (3) of the Act;
e.Any other matter which relates to the care, welfare and development of the child and which the family consultant considers ought to be brought to the attention of the Court.
The Regulation 26 report be completed within three weeks of this date and be released to the parties promptly AND IT IS NOTED that the report writer will be required to be accessible to the independent children’s lawyer on the day/night of any mediation and for cross-examination at the hearing.
The applicant State Central Authority advise Ms H of Child Dispute Services, my Associate and each other party to the proceeding as soon as practicable of the following:-
a. whether the father is prepared to participate in the assessment for the Regulation 26 Report;
b. whether the father has access to and is able to operate Skype;
c. whether the father will meet the expense of an audio-visual link (not Skype) to enable him to give evidence at the first hearing and the second hearing.
IT IS DIRECTED that my reasons for decision this day be published and made available to the parties and the Director of Child Dispute Services.
IT IS FURTHER DIRECTED that my Associate commence making arrangements for the audio visual link for the purpose of the father’s evidence on 8 August 2012 at 4.00 pm estimated to take not longer than 150 minutes.
IT IS NOTED that the parties consent to me undertaking direct judicial communication with the judge designated by the Republic of South Africa to the International Hague Network of Judges to ascertain whether and what proceedings can be instituted by the mother in South Africa whilst she and the child D are still in Australia and the likely time frame in which parenting proceedings, including relocation proceedings, can be concluded.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Young has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 5904 of 2012
| State Central Authority |
Applicant
And
| Ms Young |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
This proceeding concerns the child D YOUNG (“the child”) born on in March 2003. The applicant State Central Authority seeks orders that the child be returned to the Republic of South Africa pursuant to Part 3 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The purpose of today’s listing is to define the scope of the reportable social science assessment and to fix and manage to the case for a final hearing.
The mother opposes the return of the child to South Africa.
The proceedings
This return application is pursuant to Reg. 14 and is made at the behest of the requesting parent, Mr A.
The proceedings were initiated by the applicant by an application filed on 2 July 2012. It is alleged that the mother wrongfully removed the child to Australia on 21 January 2012.
Certain orders were made ex parte on 2 July 2012 day by Young J.
On 13 July 2012 the matter was again before Young J. The respondent mother was represented by Mr Stanley, of counsel, briefed by Ms Prudence Burrell. The mother filed a response and some material but informed the court that she sought further time to file further evidence on issues to which I will come later in these reasons.
Justice Young transferred the matter to me in the expectation of it being able to be set down for final hearing in my list earlier than it could be accommodated in his Honour’s list, which it will.
It is worth mentioning that these proceedings are not proceedings to which the less adversarial trial provisions of Division 12A of Part VII of the Act apply. Accordingly, the extra powers and responsibilities conferred on the court in parenting proceedings do not apply to these proceedings. By the same token, the rules of evidence do apply together with the evidentiary provisions in Regulation 29 which provides:-
(1) This regulation applies in a proceeding in a court under regulation 14, 19A or 25 in which the applicant is a responsible Central Authority.
(2) The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, 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.
(3) An affidavit of a witness who resides outside Australia that is filed in the proceeding is admissible as evidence even if the witness does not attend the proceeding for cross‑examination.
(4) A statement contained in a document that claims:
(a) to set out or summarise evidence given in a proceeding in a court in a convention country, or before a competent authority of that country, in relation to the custody of a child and to have been signed by the person before whom the evidence was given; or
(b) to set out or summarise evidence taken in a convention country for the purpose of a proceeding under these Regulations (whether in response to a request made by the court or otherwise) and to have been signed by the person before whom the evidence was taken; or
(c) to have been received as evidence in a proceeding in a court in a convention country or before a competent authority of that country in relation to the custody of a child and to have been signed by a judge, an officer of the court or that authority;
is admissible as evidence of any fact stated in the document to the same extent as oral evidence of that fact, without proof of that person's signature or official position.
(5) The court may take judicial notice of the following matters:
(a) a law in force in a convention country;
(b) a decision of a judicial or administrative character made by a judicial or administrative authority of a convention country.
The policy behind the evidentiary provisions is to lessen the burden on the applicant of having to obtain evidence in admissible form from overseas. In my experience, the applicant State Central Authority has been prepared to make a concession to the respondent also being able to adduce evidence in this way, at least where such evidence has to come from overseas. If that is not to be the case here, the applicant should advise the other parties promptly because it may impact on the preparation of their case.
Whereas r.29(3) renders an affidavit admissible notwithstanding that the witness does not attend for cross examination, my expectation is that any witnesses outside the jurisdiction who is required for cross examination will be available for cross examination by electronic means, preferably audio visual link. If it is not possible to establish a link, that is a different issue.
The parents and the child
The father resides in a suburb of Johannesburg, the Republic of South Africa. He is 32 years old and self employed.
The respondent is Ms Young who is the child’s mother. She is 37 years old and not employed outside the home. The child is residing in her care. The respondent is currently living in X, an outer suburb of Melbourne. I am informed that the mother resides with two children from a previous relationship, T S born in June 1995 and J S born in January 1999. The mother separated from the father of her oldest children, Mr S, in 2000. According to the mother there is no issue whatsoever as to the presence of T (17 years) and J (13 years) in Australia. The child J attends school in X. It appears from the mother’s evidence that T and J have lived with her on a full time basis since 2000 and that the child D may have resided within the same household as T and J for all of his life.
The respondent mother and her children reside with the mother’s husband, Mr N, who is 31 years old, South African by birth and residing in Australia, having apparently immigrated here in 1989. The mother and her husband met in 1991, commenced a relationship in 2008 and married in Johannesburg in August 2011.
The child D is enrolled at X Primary School. I am not aware of any health or developmental concerns relating to the child. The applicant State Central Authority has not sought any specific arrangement for the child’s day to day care to be assessed by the protective arm of Department of Health and Community Services as well it could have done in the event that it, or the father, had any concerns.
Pursuant to the Order made on 13 July 2012 by Young J, the child’s interests are independently represented by Ms Caroline Smith, lawyer, of Victoria Legal Aid. Ms Smith has experience as an independent children’s lawyer in Hague abduction matters which, it is recognised, call for somewhat different and additional tasks than those required to represent a child’s interests in a parenting matter under Part VII of the Family Law Act 1975 (Cth) (“the Act”). I will deal with Ms Smith’s role later in these reasons.
As a consequence of Young J’s direction, the matter was mentioned before me on 13 July 2012. I made further injunctions by consent and ordered that a family consultant attached to the court prepare a report pursuant to Regulation 26. Whilst I had not had an opportunity to read the file, the parties agreed that a Reg. 26 report was appropriate and I was concerned to avoid delay associated with preparation of a report which was ordered subsequently. An assessment time was reserved on 25 July 2012. It transpires, however, that the court is not equipped with the technology for an audio visual link with the father. I will make an alternative order so that the manager of Child Dispute Services can outsource the report. It will still be undertaken at no cost to the parties.
It appears to be common ground that:-
a)the mother and father met in 2001;
b)the mother and father never married;
c)the father is the child’s biological father and is recognised by the mother and the child accordingly although the mother thinks that the father was not functional as a father;
d)the father is not noted on the child’s birth certificate as his biological father;
e)the father had some face to face access with the child prior to the child being removed from South Africa. The mother says that this was sporadic and unsatisfactory however she does agree that the child spent two weeks with the father in December 2011;
f)the respondent removed the child from South Africa without the father’s consent or knowledge on or about 20 January 2012;
g)the child entered Australia on 21 January 2012 and has remained here since;
h)immediately prior to the respondent’s removal of the child from South Africa, the child was habitually resident in South Africa;
i)there were no parenting orders or proceedings extant in either country at the time of the child’s removal.
The procedure applicable to Hague return applications and identification of issues for determination
The facts set out in these reasons are drawn from the material upon which the parties relied and which has been filed to date, in particular, the affidavit of the father sworn 22 February 2012[1] and the affidavit of the mother sworn 12 July 2012[2] I understand that the evidence is not complete. Where there is a fact in dispute, I am not making any finding. I am merely endeavouring to define the issues so that the case can be heard as expeditiously as possible.
[1] The father’s affidavit is annexed as pages 12 to 17 of the affidavit Ms P sworn 2 July 2012.
[2] The mother’s affidavit appears on pages 1 to 10 of the mother’s Answer and Cross Application filed on 13 July 2012.
An expeditious hearing ought to lead to an expeditious determination, but that will not occur if issues arise in the running of the case which require that the hearing be interrupted. In my experience, return applications are frequently interrupted by new issues. This may be because practitioners are not familiar with the principles. It may be because the parents are distracted. It may be due to the fact that the requesting parent, who is the repository of one half of the history, is not a party to the proceeding and is quite remote from the process. The parties should consider now the issues which appear to arise legitimately on the facts of the case so that those can be run at trial if they are to be agitated at all and the trial will stand to be disrupted only by issues which are, genuinely, unforseen.
I am fully cognizant of the expectations within our community and within other contracting states such as South Africa, that return applications should be determined within 6 weeks, based on the fact that Australia readily ratified the 1980 Convention and its specifications as to expeditious determination. However, absent some significant turnaround in the position of each party, I predict that this is a proceeding which will require a significant amount of evidence, including expert evidence, oral evidence and cross examination, as well as legal argument. The task is to undertake it all as efficiently as possible.
I am mindful of the caution, from Gummow, Haydon and Crennan JJ of the High Court in the decision of MW v Director-General, Department of Community Services [2008] HCA 12, against “inadequate, albeit prompt, disposition of return applications.” In particular their Honours’ observations at [46] to [49] that:-
[…] an application for a return order under reg 16 of the Regulations is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in In re M (Children) (Abduction: Rights of Custody). The oral evidence in that Convention application was heard over two days.
Regulation 15(2) obliged the Family Court, "so far as practicable", to give to the application by the Authority "such priority" as would "ensure that [it was] dealt with as quickly as a proper consideration of each matter relating to the application allows". If within 42 days of its filing the application had not been determined, the Authority would have been empowered by reg 15(4) to seek from the Registrar a written statement of the reasons for the absence of a determination. Regulation 15 reflects the exhortation in Art 11 of the Convention that "judicial or administrative authorities" act "expeditiously" in these matters and the reference in Art 7 to "the prompt return of children".
The judicial or administrative authorities which decide return applications in some Convention countries may not, under their legal systems, have the obligations to provide the measure of procedural fairness and to give reasons which generally apply in common law systems and which were observed here by the Family Court. Thus, in this country, the requirement of promptitude can be an onerous one.
Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another. […]
(footnotes omitted)
I will consider the most expeditious way in which the issues can be determined within our system and the scope of the Reg 26 Report. I will also deal with a request by the independent children’s lawyer for direct judicial communication between here and South Africa.
Requisite rights of custody
A removal is only wrongful if, inter alia, it occurs in a breach of a right of custody of a person or an institution, in this case the father at whose behest the application is made.
The mother does not admit that the father had the requisite “rights of custody” in relation to the child within the terms of Regulation 4.
Rights of custody is a jurisdictional issue in respect of which the applicant State Central Authority bears the onus of proof.
The rights may arise by operation of law or by reason of a judicial or administrative decision or by reason of an agreement having legal effect under a law in force in Australia or the Republic of South Africa. Relevantly, Section 21 of the South African Children’s Act 2005 (“the South African legislation”) provides as follows:-
Parental responsibilities and rights of unmarried fathers.
21. (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child –
(a) if at the time of the child’s birth he is living with the mother in a permanent life partnership; or
(b) if he, regardless of whether he has lived or is living with the mother –
(i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
(2) This section does not affect the duty of a father to contribute towards the maintenance of the child.
(3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1)(a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
(b) Any party to the mediation may have the outcome of the mediation reviewed by a court.
The application contemplated by Section 26 is an application by the father for an amendment to the child’s birth certificate to identify himself as the child’s father or to a court for an order confirming the father’s paternity of the child in the event that the mother refuses to consent to the birth certificate being amended, is incompetent, cannot be located or is deceased. The mother denies that the father made or was successful in any such application. Therefore, if the parents did not live together within the meaning of S21(1)(a) of the South African legislation, the father’s rights of custody, if they exist, will be founded on his contribution or attempted contribution to the child’s upbringing and financial support within the meaning of s 21(1)(b)(ii) and (iii). If the father is found to have made or attempted to make those contributions he will have parental responsibility.
Section 18(2) of the South African legislation provides, inter alia, that parental responsibility includes the right to care for and to maintain contact with the child. Section 18(3) of the South African legislation provides that a parent who acts as guardian of a child must give or refuse consent required by law to, inter alia, consent to the child’s departure or removal from the Republic and to the child’s application for a passport. Section 18(3) provides that, unless a competent court otherwise orders, the consent of all guardians of a child is necessary in respect of the child’s marriage, adoption, disposition of property and to the child’s departure or removal from the Republic and to the child’s application for a passport. It appears that a guardian has a “right of veto”[3] in relation to the departure of the child from the Republic of South Africa.
[3] See M.W. v. Director-General, Department of Community Services [2008] HCA 12
The father’s evidence is that he and the mother were in a stable relationship when the child was born, were residing together with the mother’s parents in their home in Johannesburg and shortly, or after the child’s birth moved to reside with his parents in another suburb of Johannesburg. The father’s evidence is that the couple remained living at his parents home “for quite a while” or for two years until “our relationship was not going very well and it was a mutual agreement between the two of us to go our separate ways. [The mother] moved out of my parent’s(sic) home and back into her parent’s(sic) home.”
The mother denies that she and the father were residing together in a permanent life partnership at the time of the child’s birth. The mother deposes that she and the father had a relationship of only eight months duration and “the father and I separated when I was approximately six months pregnant with [the child]. From that time my children and myself lived with my parents.” She deposes that the father was “denying paternity” when the child was born.
The mother denies any resumption of a relationship with the father after the child’s birth and deposes to moving out of her parents’ home, with the child, two or three weeks after the child was born because the father had threatened her in a chemist shop and she wanted “to stay elsewhere where my kids and I would be safe.”
The mother denies that “the father was involved in [the child’s] life”. She deposes that the father had one weekend with the child when the child was aged two to three years but was returned injured and that “when [the child] was about four years old the Father spent some unsupervised time with him”. The father’s evidence is to the effect that he was seeing the child perhaps daily but, in any event, very frequently and on an unsupervised basis. The father’s evidence is that he last saw the child, face to face, on 4 January 2012 after he returned the child from a two week vacation (access visit) and that he last spoke to the child by telephone on 20 January 2012. The mother agrees that the child spent two weeks with the father in December 2011. She deposes “I agreed to let [the child] go because he father’s mother, …, had said she was going to be there to look after [the child]. I later found out that was not true.”
The parents’ evidence is clearly in conflict as to the extent that the father was involved in the child’s life, particularly by provision of financial support. It does appear that the father had no involvement with the child’s school life. However the father’s evidence is, I infer, intended to convey that this lack of involvement was not his doing. He deposes, “I never knew when any of [the school] functions were held and couldn’t understand why. It was brought to my attention that [the mother] had in fact given the school false information and stated that she had “No contact with the father.”” I note that the father deposes to school file documents being annexed to his affidavit which were not annexed to the copy of Ms P’s affidavit filed with the court.
After the child’s removal, the father obtained an ex parte Order from the Honourable Judge Makgoka sitting in the South Gauteng High Court (Johannesburg) on 22 May 2012. It was declared that the father is “a co-holder of full parental responsibilities and rights pertaining [to [the child D]] together with the mother as envisaged in Section 21 read together with Section 18 of the Children’s Act 38 of 2005.” There is no indication that there was any opportunity for the mother to be heard. The only party to the proceedings evident from the head note to the Order[4] is the father and the application is described as “ex parte”.
[4] Annexure to the father’s affidavit which is annexed to the affidavit Ms P sworn 2 July 2012 [34].
The above extract is to not summarise all of the evidence upon which the mother and State Central Authority seek to rely in respect of s 21(1)(a) or s 21(a)(ii) and (iii). My intention has been to demonstrate that, even at this early stage, there is significant conflict in the evidence which it is most unlikely can be resolved by textual analysis of affidavit evidence.
A necessary element of a wrongful removal is that it is in breach of an existing right of custody. If the father did not have “rights of custody” at the time the child was removed to Australia, the application of the State Central Authority must fail.
It is also alleged by the mother that the father was not exercising his rights of custody at the time of the child’s removal and would not have done so but for the removal. If the right of custody exists, the non-exercise of it would not appear to be a particularly tenable contention[5] on the facts of the case as I understand them to be at this early stage but I have not heard the case yet.
[5] See Director General, Department of Community Services v Crowe (1996) FLC 92-717 in which the Full Court held that, notwithstanding that the left behind mother had placed the one year old child with the paternal grandparents in New Zealand when she was suffering depression and knew that they were taking the child to Australia for a holiday, she was still exercising rights of custody over the child within the meaning of the Regulations at the time of the retention of the child in Australia. Further, that the left behind mother would have continued to exercise her rights of custody but for the retention of the child by the paternal grandparents in Australia contrary to her permission. The grandparents’ retention of the child in Australia interfered with exercise by the mother of her rights of custody and therefore, there was a retention “in breach of rights of custody”.
The mother does not claim that the child was habitually resident elsewhere than South Africa at the time of his removal. If the father does have the requisite “rights of custody” then it appears that the removal of the child to Australia was “wrongful” within the meaning of r16(1A). If that is so, the mother contends that certain exceptions to mandatory return apply.
Exception to mandatory return: grave risk of physical and psychological harm (Reg 16(3)(b))
The mother contends that there is a grave risk that the return of the child under the Regulations would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation within the meaning of r 16(3)(b). From the evidence filed by the mother on 13 July 2012, the harm or intolerable situation is alleged to arise by virtue family violence perpetrated by the father against her and her older children prior to the child’s birth, against her after the child’s birth and against the child. These allegations are made in the material which the father has not yet had an opportunity to answer.
For the purposes of Australian family law, under the new definition which came into effect on 7 June 2012, “family violence” means “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”[6] The Act further sets out examples of behaviour that may constitute family violence, as including, but not limited to: (a) an assault; or (b) a sexual assault or other sexually abusive behaviour; or (c) stalking; or (d) repeated derogatory taunts; or (e) intentionally damaging or destroying property; or (f) intentionally causing death or injury to an animal; or (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or (j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.[7]
[6] Family Law Act 1975 (Cth) s 4AB (1).
[7] Family Law Act 1975 (Cth) s 4AB (2).
The Act further defines that “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”[8] The legislation further provides examples of situations that may constitute a child being exposed to family violence as including, but not limited to, the child: (a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or (b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or (c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or (d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.[9]
[8] Family Law Act 1975 (Cth) s 4AB (3).
[9] Family Law Act 1975 (Cth) s 4AB (4).
Whilst this is not a parenting proceeding under Part VII of the Act, the definition of family violence and a child exposed to family violence is expressed to be “for the purposes of this Act” so it extends to the whole of the Act including Part XIIIAA – International Conventions, International Agreements and International Enforcement and to regulations made under the Act.
Allegations of family violence similar to those of the mother are encountered frequently in the context of the grave risk of harm exception. The allegations rarely provide an exception to mandatory return because for the purposes of establishing the exception under Regulation 16(3)(b), the court will ordinarily assume that the courts of the requesting state will be capable of protecting a returning child (and the child’s returning parent). As stated in Murray & Director Family Services (ACT) (1993) FLC 92-416 at 80244, absent evidence to the contrary, for the court to do otherwise would be “presumptuous and offensive in the extreme” and would tend to thwart the principal purpose of the Hague Convention. However, where cogent evidence to the contrary is before the court, the assumption will not be made and the court will make an assessment of the extent to which protective measures can be put in place to adequately safeguard the returning child and, if applicable, the returning parent.
I note that in Murray’s case there was no evidence before the court that the New Zealand Court would be unable to offer adequate protection to the returning Mother. Indeed, there was evidence before the court that New Zealand had a system of family law and provided legal protection to persons in fear of violence in a manner similar to the system in Australia.
Exception to mandatory return: grave risk by virtue no effective enforcement of protective measures for child or for mother in South Africa (Reg 16(3)(b))
The mother further contends that the law enforcement system in force in the Republic of South Africa will not, or is incapable of, protecting her and/or the child from family violence at the hands of the father.
In relation to an incident which she alleges occurred late in her pregnancy with the child in which the father assaulted her in the presence of his mother so that the mother suffered bruising and swelling to her face and bleeding, the mother deposes[10]
5.[…]
j. After the incident I left with my parents and rushed to the police station and then to the doctor who confirmed that my unborn baby was in distress but ok. I have requested the doctor provide some evidence but the doctor has not been forthcoming. I believe the reluctance is because of fear of the Father.
k. I subsequently attended at the police station and charges were to be filed for harassment and assault.
l. The police did not pursue the charges after they “lost” evidence. Now produced and shown to me and marked “TM-4” are copies of police cases. They were not captured completely and my statements are no longer attached due to dockets going missing.
m. I believe the father may have bribed the police. Corruption in the police in South Africa (and particularly in Johannesburg) is recognized problem and so much so there is specific legislation (Prevention and Combating of Corrupt Activities Act 2004) and reporting corruption is advertised on government websites. Now produced and shown to m and marked “TM-5” is an excerpt from the Act and relevant media articles.
n. It is common knowledge that if you have money in South Africa you can make problems go away.
[10] The mother’s affidavit in her Answer and Cross Application filed on 13 July 2012 [3].
At paragraphs 36 onwards of her affidavit sworn on 13 July 2012[11] the mother deposes:-
36. While South African law recognizes domestic violence and attempts to give victims some protection, the police are often unwilling to act. It had been my experience that the police do not follow through with any action. This leads me to believe that there is not an adequate system to protect the children or me from significant harm in South Africa. I am in the process of obtaining evidence from the Court about the issues with the handling of domestic violence cases in South Africa.
37. I am extremely concerned for my safety and that of all my children if I were ordered to return to South Africa.
38. I am not aware of any proceedings that have been commenced by the Father in South Africa. I believe the Court system is slow and inept in South Africa and any proceedings in relation to the children would take a considerable time to resolve. I fear for our safety in the meantime. I am in the process of obtaining evidence from an attorney in South Africa about family law system to assist the Court.
[11] The mother’s affidavit in her Answer and Cross Application filed on 13 July 2012.
Dicta of the English courts in cases such as Re C (A Minor)(Abduction) [1989] 1 FLR 403 and TB & JB (Abduction: Grave risk of harm) [2001] 2 FLR 515 contemplate that the ordinary ‘assumption’ as to the adequacy of the requesting state’s ability to protect the returning parent/children is rebuttable. In Re C (A Minor)(Abduction) Lord Donaldson MR stated, at 413:
We have also had to consider art. 13, with its reference to 'psychological harm'. I would only add that in a situation in which it is necessary to consider operating the machinery of the Convention, some psychological harm to the child is inherent, whether the child is or is not returned. This is, I think, recognized by the words 'or otherwise place the child in an intolerable situation' which cast considerable light on the severe degree of psychological harm which the Convention has in mind. It will be the concern of the court of the State to which the child is to be returned to minimize or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done. Save in an exceptional case, our concern, i.e. the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country, Australia in this case, can resume their normal role in relation to the child.
In TB & JB (Abduction: Grave risk of harm), a case involving a mother who had wrongfully removed the children from New Zealand to England, a similar view was taken by Arden LJ at paragraphs 97-98 where she stated:
The policy of the Convention as set out above seems to me to require that the evaluation of risk is carried out on the basis that the abducting parent will take all reasonable steps to protect herself and her children and that she cannot rely on her unwillingness to do so as a factor relevant to risk. The onus would thus be on the Mother in this case to show that, even if she took all reasonable steps, she would not be adequately protected from Mr H in New Zealand.
[98] In this context, in my judgment, the court is entitled and bound to take the view in the absence of evidence to the contrary that the courts of New Zealand can make appropriate protective orders, extending if necessary to a full prohibition of any form on contact or entering the area where the family live, and can effectively punish any non-compliance. (emphasis added)
Further, Arden LJ discussed:
While I would not wish to give encouragement for any further application, I would add this. Should the Mother in this case adduce proper evidence before implementation takes place which explains to the satisfaction of the court that, contrary to the basis on which I proceed, the protection of the courts in New Zealand does not afford either in practice or theory adequate protection from Mr H to the children to be returned or to herself (assuming she continues to be their primary carer), then I for one would consider that this court has adequate jurisdiction to entertain an application for the review of the order for return. That jurisdiction would extend to requiring further undertakings from the Father that appeared to the court to be appropriate.
The issue of the competence of the appropriate authorities and the legal system in the Republic of South Africa to protect the mother and, through her, the child or the child alone will be a matter which is likely to require extensive evidence. First, primary source evidence from law enforcement agencies and, I expect, the hospital at which the mother was confined when she gave birth to the child. Second, expert evidence as to the implementation of domestic violence laws and associated laws in the Republic of South Africa.
Counsel for the mother has informed the court that the mother’s legal team have already turned their collective mind to obtaining appropriate expert evidence about the legal system in South Africa.
All parties are alive to the evidentiary challenges surrounding this issue as they are to the proposition that the evidentiary onus does not rest solely on the mother who asserts the grave risk of harm or the intolerable situation. This follows the discussions in Laing v The Central Authority (1999) FLC 92-849 and DP & Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) FLC 93-081 including, in the latter case, the following extract from the reasons of Callinan J (who agreed with the majority in allowing the taking mother’s appeal) in which his Honour makes the point, which I accept, that responsibility to adduce evidence can differ as between litigants depending on the respective capacities of the litigants to adduce evidence:-
183. I feel a sense of disquiet that the resolution of a case of this kind to which a creature of the Executive is a party (and presumably possessed, therefore, of reasonably sufficient resources to enable it to obtain and tender cogent evidence directed to the issues) might turn upon a failure of an ordinary person to discharge an onus. (In that respect, it may be noted that the Full Court was critical of the failure of the respondent to adduce more evidence than it did of the relevant Greek law of custody, parental rights and obligations.) I have already referred to the fact that the respondent, presumably in order to repair any deficiencies in this and other respects, did seek to tender evidence in the Full Court. The Full Court apparently rejected the tender because it had already decided that it could resolve the appeal without recourse to that evidence. This Court was not provided with any detailed reasons for the rejection of the tender or of the evidence sought to be tendered by the appellant, or with any other material from which those matters could be ascertained.
[…]
185. Regulation 16(2) speaks of the need for a state of satisfaction of the mind of the court hearing an application. Regulation 16(3) does throw the onus upon the person opposing the return of the child by using the word "establishes".
186. […] Despite the language of reg 16(3), the ordinary rules in relation to the onus of proof in civil litigation may not always be able to be applied in an entirely unqualified way in an application brought under the Regulations. One indication that the ordinary rules of evidence may not have the same application as they have in other civil, adversarial proceedings is that reg 26 empowers the Family Court to make orders for the provision, in such manner as the Court may direct, of a report by a counsellor or welfare officer on matters relevant to proceedings of this kind, and its reception in evidence.
187. In any event, one of the rules of evidence is the rule in Blatch v Archer and referred to recently in this Court in Vetter v Lake Macquarie City Council and Marshall v Director-General, Department of Transport, that all evidence is to be weighed and assessed by courts having regard to the capacities of the parties to adduce it. Its application here would result in the imposition of a very light burden on the appellant only. (footnotes omitted)
The majority in DP & Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services, comprising Gaudron, Gummow and Hayne JJ, observed, inter alia, that once the capacity of a state to make adequate arrangements for a returning child is raised, consideration must be given to the consequences of the mandatory return and what arrangements can, if fact, be made. Their Honours made the following comments about the process (footnotes omitted):-
65. As we have earlier pointed out, the return contemplated in this case was in circumstances where there would be a judicial determination about custody. That is not always so. Secondly, while it may be right to say that return is to a country, not a place or a person, the application of reg 16(3)(b) requires consideration of what are said to be the consequences of that return. That is essentially a question of fact which will fall for decision on the evidence that is adduced in the proceedings. No doubt it is necessary to bear in mind not only that the person opposing the return carries the onus of proof, but also the way in which the proceedings are conducted both by the person opposing return and by the Central Authority.
66. If, as was the case here, upon return of the child there will be a judicial determination of questions of custody and access, it will probably often be the case that assertions of risk of exposure to harm will not be established. But the bare fact that there will be such a judicial determination in the country of return does not mean that reg 16(3)(b) can have no operation. Cases in other jurisdictions concerning the possible return of a child to a sexually predatory or violent parent illustrate why that is so. The fact that there will be proceedings between the parties in the country of habitual residence does not relieve the Australian court of its obligation to give effect to the whole of the Regulations including, where applicable, the provisions of reg 16(3)(b).
67. The present case having been contested at trial in the way it was, it was not open to the Full Court to conclude from the findings made by the primary judge that reg 16(3)(b) was not engaged. The appellant's case at trial had been that she could not obtain the services the child needed. If the Central Authority had wished to challenge this point or had wished to adduce evidence about what facilities are available in Greece, whether in the area to which the Mother's evidence was directed in great detail, or elsewhere, it should have done so at trial. The Central Authority not having challenged the premise upon which her contention was based (that return of the child to Greece meant him returning to the area in which his Father lived) it was too late on appeal to the Full Court to attempt to do so. The Full Court's refusal of the applications to adduce further evidence appears to recognise that this was so.”
I also note that the 1980 Convention, by Article 7, refers to the information which central authorities shall take appropriate measures to obtain and , if necessary, put before the court in that they are required to:-
(d)to exchange, where desirable, information relating to the social background of the child;
(e)to provide information of a general character as to the law of their State in connection with the application of the Convention.
Exception to mandatory return: child’s objection (Reg 16(3)(c))
The mother also contends that, within the meaning of r16(3)(c), the child objects to being returned to the Republic of South Africa.
From the evidence filed by the mother on 13 July 2012, the child’s objections are raised in the following paragraph (only):-
16. […] I do not intend to return to South Africa to live. [The child] was asked on numerous occasions about our move to Australia and he was very excited. He is happy here. [The child] does not want to return to South Africa. He has said he will not go back.
Regulation 16(3)(c) provides that an application for return of a child who has been wrongfully removed or retained in Australia may be refused if the child objects to being returned and the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views.
The child D is only 9 years old. The mother’s reference to his alleged objection to return is nothing if not brief. It is unclear as to the extent to which the child’s alleged sentiment that he will not return is linked to the fact that the mother says, and may have told him, that she will not return to the South Africa so that he believes that he will have to return by himself, a very scary prospect for a child who is not yet ten years old.
Given that we have expert psychologists annexed to this court who can assess the child very soon, I do not propose to require the mother to depose to the child’s objections, or the circumstances in which they have evolved, in any more detail. Those matters should be covered by the Reg 26 report.
One purpose of the Reg 26 report will be to obtain expert opinion as to the child’s alleged objection:-
a)Whether the child does not want to return to South Africa as is alleged by the mother;
b)Whether and to what extent any objection that the child has is strongly held and (adopting the wording of the Act) shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
c)Whether and to what extent any objection by the child to return is supported by legitimate concerns and what those concerns are;
d)Whether and to what extent any legitimate concerns of the child about returning to South Africa are authentically his own.
It would be of assistance to the court, and doubtless the parties, if the family consultant could distinguish between the child’s “concerns” as they pertain to the father, to South Africa as a country or to being separated from the mother and/or his siblings or to anything else for that matter. I expect that this analysis of the child’s concerns would be a component of the consultant’s assessment of whether the child’s objection (if any) is based on legitimate concerns and whether the concerns are really the child’s concerns or are adopted sympathetically or empathetically or as part of some other dynamic.
The report will also deal with whether the child “has attained an age and a degree of maturity, at which it is appropriate to take account of his views”. In this respect, the reference to views may be broader than an objection – both terms are used Reg 16(c). However, we will await the report and any submissions that any of the parties wish to make.
The independent children’s lawyer
As mentioned earlier, Ms Smith represents the child’s interests in this case.
In parenting proceedings (which this case is not), the role of the independent children’s lawyer is to form an independent view, based on the available evidence, of what is in the best interests of the children, and then to act in what he or she perceives to be the children’s best interests (s 68L(2)). The independent children’s lawyer is required to deal impartially with the parties. The legislation requires the independent children’s lawyer to put any views expressed by the children before the court, to analyse documentary and expert evidence and reports, and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children’s lawyer is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings (s 68L(5)(d)) and to facilitate an agreed resolution of matters in issue to the extent that it is in the best interests of the children to do so (s 68L(5)(e)).
However, Hague abduction matters are not parenting matters brought under Part VII of the Act. They are brought pursuant to Regulations made to give effect to section 111B of the Act which is in Part XIIIAA - International Conventions, International Agreements and International Enforcement. The 1980 Convention is a forum selection treaty and, as such, the Regulations which implement it into Australian law do not look to the best outcome for any particular child as a pre-condition to return. The best interests, in terms of s60CC or generally, of the child is not the paramount consideration and, ultimately, may not a consideration at all.
Whilst an independent children’s lawyer in a Hague abduction matter, such as this, would operate pursuant to the best interests model, as opposed to a direct representation model, the tasks to be undertaken will be directed to a different outcome than the outcome to which an independent children’s lawyer in a parenting case would aspire.
Here, the independent children’s lawyer’s functions will vary, but may include:-
●facilitating any negotiations between the parents (where the father is not a party the proceedings before the court);
●facilitating any negotiations between the parties to the proceedings (who do not include the father);
●making arrangements for mediation;
●considering, seeking and arranging such face to face access or electronic communication between the child and the father pending the determination of the matter as will benefit the child;
●to obtain evidence such documentary and other evidence as is relevant to the proceedings particularly where it does not appear that the other parties have the capacity or inclination to do so;
●to ensure that collateral issues such as preconditions to any return are properly thought through by the parties (and the parents) well before the final hearing and are capable of being implemented for the child as beneficially as the circumstances and nature of the proceeding permit. This may involve researching whether the courts in South Africa have jurisdiction to make mirror or complimentary orders in the nature of safe harbour orders which are binding on both parents notwithstanding that the child and the mother are not within that jurisdiction and haven’t been for six or more months. It may also include requesting the assistance of Hague Network Judges for information about hearings in the Republic of South Africa and to arrange an expedited hearing or at least a timely initial listing in a court of competent jurisdiction to follow conveniently upon the return of the child;
●to investigate and lead evidence of social service supports available in South Africa with a view to the family being able to access those services immediately upon any return of the child to his habitual residence;
●in the event that the removal is found to be wrongful but one or more exceptions to mandatory return are made out, all parties including the independent children’s lawyer will be required to address the court’s exercise of the discretion to refuse to return the child to South Africa. As the helpful checklist in TB & JB (Abduction: Grave risk of harm), demonstrates, the matters which inform the exercise of discretion should be the subject of evidence and not just submissions.
Depending on the child’s intellectual capacity, it may be appropriate for Ms Smith to obtain the child’s views about return. However, where (as here) there is an allegation that the child objects to return to South Africa within the meaning of Regulation 16(3)(c), the less discussion that lawyers or authority figures have with the child for the time being the better, at least until after the expert assessment of the child has been concluded for the purpose of a Regulation 26 report.
Eventually and down the track, Ms Smith may inform the child that she will tell the court (and the parties) what he wishes to say with the necessary qualification that, in a Hague abduction case, his views cannot be given the same consideration as in parenting proceedings (s60CC(3)(a) of the Act).
Ms Smith may also, responsibly, canvass with the child the possibility that he might be returned to South Africa, contrary to what he or his mother want, and elicit his response for the purpose of informing the court in the consideration of conditions to return which could be imposed to ameliorate an alleged grave risk of harm or an alleged intolerable situation within the context of Regulation 16(3)(b) or as to stand alone conditions and/or orders under Regulation 15.
As I have indicated, the independent children’s lawyer is experienced in her role. The above discussion is for the benefit of the other parties to the proceeding and to indicate to the respective national organs (Central Authorities) what is expected of the independent children’s lawyer and how the case may unfold.
Of all of the above matters, investigating the appropriateness of mediation between the parents and access between the father and the child are likely to benefit from early attention.
Given international time zones, it appears that the most suitable time frame for electronic link ups between Australia and the Republic of South Africa is between 4.00 p.m. and 8 p.m. Melbourne time which should be 8.00 a.m. to 12 noon in the Republic of South Africa.
Ms Smith has not met the child, but proposes to do so at the time of preparation of the Reg 26 report.
Today, counsel for the independent children’s lawyer raises several matters.
First, the independent children’s lawyer submits that the emotional and psychological impact on the child of being separated from his siblings is a matter which must be assessed by the family consultant in the context of a grave risk of psychological harm flowing from the child’s return any return to South Africa in the absence of his siblings. I note that the child’s oldest sibling, his sister T, is 17 years old. The Regulations cannot operate in respect of her and, as indicated, there is no indication that there is anything irregular about J and T residing here.
The risk of psychological harm to the child by virtue of separation from his siblings, or either of them, is not part of the mother’s case as articulated in her Answer and Cross Application. However, prima facie it is a viable claim in this case and it is appropriate for the independent children’s lawyer to raise it even where the mother does not.
Second, the independent children’s lawyer requests that there be direct judicial communication between me and the Hague Network Judge located, who happens to be located in Bloemfontein, South Africa, to ascertain:-
a)the time frame within which family law proceedings can be brought on in South Africa;
b)whether the mother can commence proceedings whilst she and the child are outside the jurisdiction (still in Australia);
c)what orders for personal protection of the mother, by way of safe harbour orders would be available to the mother with the consent of the father and can be obtained prior to any return;
d)how this court and the parties can have access to the whole of the file of the hospital at which the mother was confined for the child’s birth or a facsimile of it.
The other parties to the proceedings do not oppose this course. I will note their consent and proceed accordingly. The communications will be conducted in a manner consistent with the latest publication (April 2012) by the Permanent Bureau of the Hague Conference on Private International Law entitled Emerging Guidance Regarding the Development of the International Hague Network of Judges and General Principles for Judicial Communications, Including Commonly Accepted Safeguards for Direct Judicial Communications in Specific Cases, within the Context of the International Hague Network of Judges[12].
[12] Preliminary Document No 31A for the attention of the Special Commission of June 2011 on the practical operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention (March, 2011) HccH, available at <>
Third, the independent children’s lawyer is prepared to make arrangements for such mediation or conciliation as the parents are prepared to undertake. I support any alternative dispute resolution initiative providing that any such mediation cannot delay the contested hearing.
Fourth, the independent children’s lawyer seeks that the family consultant’s report be extended to cover what (if any) communication between the child and the father would be in the child’s best interests between now and the final hearing. Neither of the other parties object to that course. It is appropriate and I will order accordingly.
Fifth, in discussion, the independent children’s lawyer agreed that the letter from the father’s solicitor, dated 25 January 2012[13] is of concern insofar as it realises the illegality of the mother’s removal of the child. In particular, the solicitor writes “To Whom It May Concern” as follows:-
We act on behalf of Mr [A], the biological father of the minor child, [D Young], who is illegally abducted from the guardianship of his father, by [Ms Young], and to our client’s knowledge, is presently in Australia.
[…]
It has only recently come to our client’s attention that the mother, [Ms Young], illegally and by relating false information to all the relevant authorities, (more particularly in regard to the fatherhood of the minor child), managed to take the minor child out of the borders of the Republic of South Africa. […]
[13] Annexure to Affidavit of Ms P [32]
Neither the 1980 Convention nor the Regulations criminalise international parental child abduction. There is a big distinction between a wrongful/removal or retention within the meaning of the 1980 Convention and an illegal removal or retention which will attract criminal penalties according to the law in one or other of the contracting states. If it is suggested that the mother’s actions constitute a crime according to South African law, the need for a trial and the possible imposition of criminal penalties upon her return are matters to which she and the independent children’s lawyer will have regard in this proceeding. As matters stand, however, the criminality of the mother’s actions is now an issue to be investigated.
The report by a Family Consultant (Reg 26)
Regulation 26 provides that in proceedings under these Regulations the court may direct a family consultant to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate[14] and the family consultant may include in a report, in addition to the matters required to be included in the report, any other matter that relates to the care, welfare or development of the child[15].
[14] Reg 26(1)(a)
[15] Reg 26(2)
The court may direct the Commonwealth Central Authority or a State Central Authority to inform a Central Authority in a convention country about a matter that relates to the welfare of the child and is included in the report[16].
[16] Reg 26(7)
A report by a family consultant made in accordance with Reg 26 may be received in evidence in any proceedings under the Regulations[17]. I will require that the family consultant be available for cross examination.
[17] Reg 26(6)
The parties agree that the scope of the report should include:-
a)The child’s alleged objections and matters incidental thereto;
b)The effect on the child of being separated from
i)his siblings in the event that he is returned to South Africa;
ii)his mother in the event that he is returned to South Africa without her or she is incarcerated upon her return to South Africa
iii)his father in the event that he remain in Australia
c)What (if any) access or communication there should be between the child and the father prior to the final hearing.
I will order accordingly.
The family consultant should make an assessment on what (if any) access the child should have with the father between now and the final determination of the matter. There is no parenting application before the court. Indeed, the father is not a party to the proceedings, he is merely a witness for the applicant State Central Authority. It would, however, be wholly artificial to ignore the relationship between the father and the child and the impact on the child of his removal to Australia. The return proceedings under the Regulations are important and much energy is devoted to getting them ready but they do not plunge the child into suspended animation. The best outcome for the child is not a pre-condition to him being returned to South Africa under the Regulations but that does not mean that his emotional and psychological needs can be ignored until the question of appropriate forum is decided.
The mother contends that the father has not been involved in the child’s life either as a hands-on father or by way of providing proper financial support. The fact is, however, that she was content for the child to have two weeks with the father immediately prior to her removal of the child to Australia. She deposes that she agreed to the time on the basis that the child would stay with the paternal grandmother but, prima facie, there appears to be an acknowledgement by the mother in the recent past of some relationship between the child and his paternal family.
Since the child’s arrival in Australia, according to the mother, he has had no communication from the father. The mother deposes that the father knows how to contact the child but has not done so. I don’t know what the child makes of this situation but I will require that the family consultant make an assessment of what is in the child’s best short term interests and report accordingly.
The family consultant’s assessment will not be determinative and will be subject to each party having an opportunity to cross examine the consultant and make submissions prior to a decision being made in this regard. The hearing time and cross examination should reflect proportionally the limited time frame within which any access is going to occur but I do want expert evidence of the child’s emotional needs.
I do not know if the father is inclined or able to come to Australia for the hearing. If he is, face to face contact may be considered. If he isn’t, then communication can be considered by electronic means including audio visually and telephone. Communication could also be by letter, card or gift.
For the purpose of the Reg 26 report, the court may make such orders, or give such further directions, as it considers appropriate in relation to the preparation of the report including to make such orders or directions in relation to the attendance on the family consultant of a party to the proceedings or of the child[18]. If a person fails to comply with any order or direction to attend, the family consultant must report the failure to the court[19].
[18] Reg 26(3)
[19] Reg 26(4)
I am satisfied that it is appropriate to procure the participation of the parents and of the child’s older siblings in the family consultant’s assessment of the child. That will require that the father be extended the same opportunity as the mother to participate in the assessment process save that his participation may be by electronic means. If a comparable opportunity to participate in the assessment process cannot be extended to the father, the matter will need to be referred back to me for directions in relation to the mother’s participation. The court will be responsible for establishing the electronic link, which should include an audio visual link, between where the family consultant is located and the father for the purpose of his participation in the assessment.
My order will require the mother to do all that she can to have her older children attend upon the family consultant. The purpose of their attendance is, principally, to assess the relationship between the child and each of them and the effect (if any) on the child being separated from them in the event that he is returned to South Africa and they (or either of them) remain here in Australia.
An opportunity must be afforded to the father to participate in the report assessment. If he declines the opportunity, the assessment will proceed without him.
Split hearing: early determination of “rights of custody”
Finally, I asked counsel to be in a position to make submissions about whether the existence of the father’s rights of custody should be determined first and separately from the other issues.
A right of custody as required under the Regulations is a jurisdictional point. It is capable of being determined as a discrete threshold issue. If the father has no right of custody, the application must fail and, absent a successful challenge on appeal, the exceptions to mandatory return asserted by the mother would not require determination.
Counsel estimate that the issue of the father’s right of custody will require some days day of hearing including cross examination of the father and his mother in South Africa. However, the hearing of all other issues which will arise if the removal is determines to have been wrongful, is estimated to take a further four or so days.
No counsel submitted that if all issues are heard together there will be any significant saving of time. Obviously, if all issues are heard together and I determine that the application is not supported by the requisite rights of custody, the parties’ cases in relation to exceptions to return and any resultant discretion to refuse return, count for nought and a significant amount of time and money will have been wasted.
If the application is bifurcated, the first part can be heard in the first week of August, 2012 and, if necessary, the second part in September 2012.
Counsel for the applicant State Central Authority submits that there should be a separate hearing. The one caveat is that, as it is expected that the father would need to give evidence in both hearings, there could be additional expense required for the father to give evidence remotely from South Africa via audio visual technology on two separate occasions. The State Central Authority suggested that the father may not have the resources to meet this cost, and that the State Central Authority was not funded to cover such expenses. The cost thus falls to be met by the court or by the mother, or failing that, an access to justice issue arises in terms of the mother not being able to test the evidence against her.
Counsel for the respondent mother submits that there should be a separate hearing.
Counsel for the independent children’s lawyer submits that there should be a separate hearing.
Regulation 15(2) provides that the court must, so far as practicable, give to an application such as this such priority as will ensure that it is dealt with as quickly as a proper consideration of each matter relating to the application allows.
I am satisfied that bifurcation of the hearing is the most appropriate way to proceed.
The first hearing will be listed on 8 August 2012. Having regard to international time zones, we will commence at 4pm (Melbourne time) which should be 8am in Johannesburg. It is agreed that the cross examination of the father, who is the applicant's witness, will be conducted at this first day, when that is concluded, we will adjourn to the following day. For the avoidance of doubt the rule of puttage in Browne v Dunn (1894) 6 R 67 (HL) applies. That is, everything that is sought to be put as part of the respondent's case and case of the independent children's lawyer which should properly be put to the father, must be put. I mention this because oftentimes, on country circuits for instance, counsel agree to dispense with the rule in order to save time, and in the knowledge of that their client/witness remains in court for the duration of the hearing, which is not the case here. In this case, I want the parties to be economical with time but not so economical that the integrity of the process is compromised. At this stage, the Court will budget on a video link being maintained for 150 minutes. If the mother or independent children's lawyer assess that either needs more than 60 minutes each, they should make that known as soon as possible, and I will hear submissions and give the matter further consideration.
Generally
For the above reasons I make the orders set out at the beginning. As far as case management is concerned the parties should not hesitate to contact my associate or Registrars Riddiford or Sikiotis in the event that there is a matter upon which they require directions in order for the case to proceed in an ordinary manner.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 20 July 2012.
Associate:
Date: 23 July 2012
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