Tarritt & Director-General, Department of Community Services
[2008] FamCAFC 34
•27 March 2008
FAMILY COURT OF AUSTRALIA
| TARRITT & DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES | [2008] FamCAFC 34 |
| FAMILY LAW - APPEAL – HAGUE CONVENTION – Whether the trial judge erred in making orders for the return of the child to Iowa - Child’s objections – Regulation 16(3)(c) - Whether the trial judge erred in finding that the child’s objections did not show a strength of feeling beyond the mere expression of a preference or of ordinary wishes - Whether the trial judge erred in failing to find that there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation FAMILY LAW – EVIDENCE - FURTHER EVIDENCE ON APPEAL – Family report in relation to child’s objections FAMILY LAW - APPEAL – allowed. Re-exercise of discretion based on further evidence of child’s objections FAMILY LAW - COSTS – no order as to costs |
| Family Law Act 1975 (Cth) De L v Director-General of Community Services and Anor (1996) FLC 92-706 |
| APPELLANT: | Ms Tarritt |
| RESPONDENT: | Director-General, Department of Community Services for New South Wales |
| FILE NUMBER: | SYC | 6193 | of | 2007 |
| APPEAL NUMBER: | EA | 141 | of | 2007 |
| DATE DELIVERED: | 27 March 2008 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Finn and May JJ |
| HEARING DATE: | 5 February 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 November 2007 |
| LOWER COURT MNC: | [2007] FamCA 1400 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Anderson |
| SOLICITOR FOR THE APPELLANT: | Caldecott & Williams Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Tockar |
| SOLICITOR FOR THE RESPONDENT: | Department of Community Services |
Orders
That the appeal be allowed.
That the orders made by the Honourable Justice Cronin on 20 November 2007 be discharged.
That the application of the Central Authority for the return of the child is dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Tarritt & Director-General, Department of Community Services is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 141 of 2007
File Number: SYC 6193 of 2007
| Ms Tarritt |
Appellant
And
| Director-General, Department of Community Services for New South Wales |
Respondent
REASONS FOR JUDGMENT
BRYANT CJ & MAY J
Introduction
This is an appeal by the mother against orders made by Cronin J on 20 November 2007 requiring the return of an 11 year old girl to Iowa in the United States of America.
The orders were made pursuant to the Family Law (Child Abduction Convention) Regulations1986 (Cth) (“the Regulations”) and on the application of the Director-General of the New South Wales Department of Community Services (Director-General) as the State Central Authority under the Regulations. The Regulations are made under s 111B of the Family Law Act 1975 (Cth) and give effect to Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
The essence of the mother’s appeal is that there is a grave risk to the child if she is returned and that the child objects to being returned. In support of this submission the mother filed an application to adduce further evidence, being recently prepared affidavits from the appellant and her husband, Mr Tarritt. An affidavit from the father, Mr H attached to the affidavit of the solicitor for the Department of Community Services, is also to be included in the further evidence.
The appellant asked to include a report dated 31 January 2008 by a family consultant. This report was prepared as a result of an order made by Cronin J on 24 December 2007 when the order providing for the return of the child was stayed. The introduction of all this evidence in the appeal was not opposed and we allowed it to be adduced.
In the appeal the mother seeks orders discharging the orders of Cronin J which would allow her to retain the child in Australia.
On 13 July 2007, prior to the date the mother was obliged to return the child, the mother filed an application in this court for parenting orders. The application was adjourned several times and was ultimately dismissed on 30 November 2007. Presumably, the mother did not pursue the parenting application because the Director-General had filed the Hague Convention application on 3 September 2007.
Background
The essential facts of the case are not the subject of controversy.
The parents separated in the year 2000. They had two children during their relationship, the child, born October 1996, and her brother, born October 1990. In 2001 the mother, with her second husband Mr Tarritt, left the United States to live in New Zealand. She has a further three children from this relationship. They later moved to Australia.
The child had been in the care of her father in the United States since separation. In 2006 an arrangement was made between the parents for the child to travel to Australia and stay with her mother until 1 August 2007. The child arrived in Australia on 3 June 2006. The mother failed to return her to her father’s care on
1 August 2007.
10. As recounted in the judgment of Cronin J:
4.It was not disputed that [the child] was habitually resident in the United States of America before [the child] came to Australia in June 2006 nor that before [the child] came to Australia, her father was exercising rights of custody. The case was primarily about whether there was a “defence” provided under Regulation 16(3) of the Regulations. Without that, it is clear that there is a mandate for the prompt return of [the child] to the United States of America. Because the issue was about those defences, the mother proceeded to present her case first. Her defences were fourfold:
(a) there is a grave risk that the return would place the child in an intolerable situation;
(b) the child objects to being returned;
(c)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and
(d)the child has attained an age, and a degree of maturity, at which it is appropriate to take into account her views.
…
9.The history of the litigation in America appears to have been heavily fought but the only hearing which I propose to deal with was that resulting in a judgment in July 2004 of Judge Carla Schemmel of the 5th Judicial District of Iowa.
10.The judgment indicates that both parties were represented by lawyers and the children were represented by their attorney and guardian ad litem. The children’s attorney made recommendations about the children being with their mother. The judge rejected that. The judge found the father had devoted his time and attention to the children. The judgment speaks glowingly of him as a parent. The judge referred to the evidence of counsellors, case manager, teachers and school staff not to mention a therapist who all spoke of the father as responsive and devoted to his children.
11.The problem then and now still alleged by the mother is that [the child] is at risk with her brother […]. In 2004 the judge rejected that referring to the apparent conflict in the house as “bickering and rough-housing” as would be anticipated as normal and expected between siblings. Any concerns about [the child’s] safety were rejected.
12.Most of the focus of the discretionary defences in the hearing before me, centred around [the child’s] brother […]. Rough-house or bickering through Judge Schemmel may have viewed it, it would be fair to conclude that [the brother] was a troubled young man. He clearly had no relationship with his mother.
13.By February 2006, [the brother] was described by his child psychiatrist as a boy with a history of behavioural problems. At that time, the psychiatrist recommended long term residential treatment. He was given therapy and anti-depressant medication. He was diagnosed as having a personality disorder with narcissistic, anti-social and borderline features. It was predicted he would get into serious trouble. The psychiatrist thought the father and son relationship had deteriorated. During this same time, [the child] lived in the household of her father.
14.By August 2006, [the brother] was placed with [a youth facility] in a residential program. This arose out of delinquent acts. At that time, the father’s rights to [the brother] were terminated.
15.Just prior to this residential program, discussions took place between the father and mother. The mother was then living in Australia. The father described [the child] as having a relationship with her mother from afar in the sense of her mother being a fantasy down a phone line. Documents show that the father thought a different regime for [the child] would be good but he insisted that the arrangement for a year with the mother be documented formally through the courts. The evidence is that the mother was reluctant about the formality. Despite that, the consent order to which I referred in paragraph 6 was then made and [the child] came to Australia for the discrete period until 1 August 2007.
…
20.By June 2007, [the brother] graduated successfully from the [youth facility] and was released. He “learned and demonstrated his ability to make thoughtful and helpful choices whilst also considering their effects on himself and his family”. It was recommended he remain at home with continued support. That report was sent to both parents upon [the brother’s] release and through her counsel, the mother acknowledged having received it yet did not seem to have appeared in her material before this Court. Quite the contrary, the picture painted of [the brother] was bleak.
…
24.There can be little doubt that [the child] does object to a return to America but in reality, that should be read as an objection to returning to her father. She gave a number of explanations. She was critical of her father’s care of her. I have to take into account that she has not been in her father’s care for over a year. She criticised her father for keeping her but that also has to be seen in the context of the extraordinary litigation that has gone on over the preceding years. To have any weight, that sort of comment would have to be seen in the context of what the judge in Iowa said about the father’s care.
25.[The child] was critical of her brother […] saying that she was scared of him, had spoken to him since his release from “kids’ goal” and believed he would bully her. That may be consistent with the sort of behaviour that [the brother] was engaged in over the years before 2006 but the litigation in America still has to be seen as having a complimentary outcome for the father. There was also a criticism of the father’s partner by [the child].
26.I draw some comfort from the statement of the father that he wanted [the child] to have [sic] relationship with her mother in 2006 and that he acknowledged she was then having problems. I am very conscious in respect of those issues that I am not deciding a parenting case but rather determining whether the forum for that determination should be America or Australia.
27.When I turn to the second of the two issues considered by the family consultant, her evidence which I accept, is that [the child] feels it necessary to portray her father negatively because otherwise, her mother might reject her and/or she might not be allowed to remain in Australia. The family consultant however said that [the child] was not mature enough to understand the complexities of the situation but that her wishes ought appropriately be given some weight.
…
41.In respect of the question of grave risk, all counsel referred me to the High Court decision in De L v Director-General of New South Wales Department of Community Services (1996) 187 CLR 640; (1996) 20 FamLR 390; (1996) FLC 92-706. That court said that those words have no special meaning. Kirby J although dissenting, described the situation as meaning “intolerable, extreme and compelling”. In this case, I could not find the return to [the child] to be in that category. (emphasis added)
42.Mr Anderson said that [the child’s] objection was firm and rationally based. The family consultant referred to the fact that [the child] was doing well at school and critical of the father as I have set out above. Notwithstanding the absence from her father and therefore being under the influence of her mother, could I say that the objection was firm and rationally based? In this case, I am satisfied that [the child] does not understand the complexities of the family dynamics to which she would be returning notwithstanding her firmly held views.
43.Strength of feeling beyond the mere expression of a preference or ordinary wishes was another defence raised. To a very great degree, this subjective determination must be guided by the same principles as that set out in the previous paragraph. I could not be satisfied that [the child’s] views are more than her preference. The family consultant described those views as [the child] feeling happier in Australia because she “goes to a lot of places and learns a lot of things whereas when she lived with her father he locked himself away in his room with his girlfriend, […] and just turned the TV on for [the child] to keep her occupied”. [The child] was of the view that things were a lot better with her mother in Australia. She gave as an example that her mother helped her with her homework whereas her father did not.
…
45.Again, I am conscious that these are the words of an eleven year old child who does not understand the historical and more importantly, the current complexities of either of the families with whom she would be living. The strength of her preference is therefore not something that would persuade me as being strong.
46.Accordingly, I find:
(a)the retention of [the child] in Australia was wrongful;
(b)the application for return of [the child] has been made within appropriate time;
(c)the father was exercising his rights of custody when the retention of [the child] occurred;
(d)there is not a grave risk that the return of [the child] would expose her to physical or psychological harm or otherwise place her in an intolerable situation; and
(e)of the principles in Regulation 16(3)(c), only her objection applies.
The Legal Framework
11. Although the mother concedes that the child was habitually a resident of United States of America, it was her position that she was not obliged to return the child due to the “defences” provided under reg 16(3) of the Regulations.
12. Regulation 16(3) provides that:
A court may refuse to make an order under subregulation (1) if a person opposing return establishes that:
…
(b) there is a grave risk that the return of the child to the country in which he or she habitually resided immediately before the removal or retention 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; …
13. It is clear that the court may refuse to make orders returning the child. The decision is discretionary. Regulation 16(5) provides:
(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.
14. In the High Court decision in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081, Gaudron, Gummow and Hayne JJ observed in relation to the meaning of reg 16(3)(b) – grave risk:
41.… On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in ''an intolerable situation''. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
42. Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description ''grave''. Leaving aside the reference to ''intolerable situation'', and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43. Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence [cf Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR(UK) 1145 at 1154 .] . The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44. These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a ''narrow'' rather than a ''broad'' construction. There is, in these circumstances, no evident choice to be made between a ''narrow'' and ''broad'' construction of the regulation. If that is what is meant by saying that it is to be given a ''narrow construction'' it must be rejected. The exception is to be given the meaning its words require.
15. In relation to the issue of the child’s objection, a case that bears some similarities to the present is In Re F (Hague Convention: Child’s Objections) (2006) FLC
93-277. The essential facts of that matter were that in August 2003, with the consent of the father, [the child] born […] July 1994 came to Australia from the United States with his mother for the purpose of a six week visit. When the child was not returned as agreed the father made application to the United States Central Authority for assistance under the Convention. An application was filed. On 24 August 2004 the mother and the State Central Authority consented to orders that provided that the Central Authority was to make such arrangements as were necessary for the return of the child to the United States as soon as practicable. The mother was unable to travel to the United States until mid October.
16. There were delays in returning the child. Ultimately, when the father said he would come to Australia, the child said that he would not return with him. The trial judge on 28 April 2006 ordered that the child be returned. That order was made nearly three years after the child was brought to Australia.
17. Prior to the orders of the trial judge two reports were prepared. In those the child expressed a wish to stay in Australia and threatened to protest if he was taken away.
18. After the orders were made by the trial judge the boy refused to board the plane to America on two occasions. The second involved the use of some force by the Australian Federal Police. Further orders were made, including an order that the child attend a psychologist for the purpose of a report. That evidence was admitted on the appeal.
19. The decision In Re F (supra) involved numerous arguments and difficulties. However for the purpose of this appeal it is only necessary to refer to part of the judgment. Of interest, reference was made to discussions in other appeals in this Court as to precisely what it is the child objects to. It was found that:
56.Ultimately it is unnecessary for us in this case to further comment upon the argument. In our view the evidence is now overwhelming that the child objects to being returned to the United States. Whether that is because of the absence of his primary caregiver or is based upon real or imagined memories of life in the United States as compared to life in Australia, it is clear that the child’s objections are firm and have been rationally explained by him.
57.Because of the introduction of the further evidence, we find it unnecessary to deal with the grounds of appeal that assert error on behalf of the trial judge. The case that we are examining now is a different case to the case that the trial judge dealt with. Events have taken a much more dramatic course. The child has now experienced the execution of a warrant that resulted in his being placed into foster care, two trips to the airport with attempts to have him board the plane, including some mild force being applied, and several sessions of counselling in an endeavour to have him change his view. All of these events have proven unsuccessful. The evidence before us inextricably draws us to the conclusion that the requirements of Regulation 16(3) have been met and that the mother has clearly established that F objects to being returned to the United States, his objection shows a strength of feeling beyond a mere expression of a preference or an ordinary wish and that he has attained an age and degree of maturity at which it is appropriate to take account of his views.
58.In their monograph entitled “The Hague Convention on International Child Abduction”, Paul Beaumont and Peter McEleavy, (Oxford University Press, 1999) note at page 178:
“Sixteen was taken as the outer limit for the scope of the Convention because it was agreed that persons over that age had a mind of their own which could be ignored neither by their parents nor the State. For those slightly younger a discretion was required to avoid forcible repatriations, which it was envisaged could have had a detrimental effect on the public perception of the Treaty.”
20. Regulation 16(3)(c) requires “a strength of feeling beyond the mere expression of a preference or ordinary wishes.” In De L v Director-General of New South Wales Department of Community Services (1996) 187 CLR 640 at p 655, after setting out Article 13 of the Convention and highlighting the second last paragraph of that Article which is as follows:
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said:
In this setting there is no particular reason why reg 16(3)(c) should be construed by any strict or narrow reading of a phrase expressed in broad English terms, such as "the child objects to being returned". The term is "objects". No form of words has been employed which would supply, as a relevant criterion, the expression of a wish or preference or of vehement opposition. No "additional gloss" is to be supplied. (footnote deleted)
Further Evidence
21. As we have already mentioned the mother filed an application to adduce further evidence pursuant to section 93A(2) of the Family Law Act 1975 (Cth). Upon hearing the application the Full Court granted, by consent, the inclusion of further affidavit evidence from the mother, her husband Mr Tarritt and the father.
22. Leave was also given to include the evidence of a family report of the family consultant, dated 31 January 2008. This report was prepared pursuant to the orders made by Cronin J on 24 December 2007 and is of undeniable significance.
23. The Director-General also filed an application to adduce further evidence. This was in reply to the evidence before the trial judge as to the law of Iowa referred to in paragraph 31 of the judgment. The affidavit of Michael Burdette, an attorney licensed to practice in Iowa and the lawyer for the father in the proceedings in that state, reveals a different opinion. We also gave leave for that evidence to be included in the appeal.
The Family Reports
24. As the questions of grave risk and the child’s objection to being returned were crucial to the hearing and decision of the trial judge, and remain so on appeal, it is necessary to set out the content of the two family reports in some detail.
25. The reasons for judgment correctly placed significant emphasis on the first report dated 10 October 2007. In addition, to appreciate the significance of the second report dated 31 January 2008, it is necessary to set out parts of the content of the first report.
The 2007 Family Report
26. This report was prepared after an interview with the child on 3 October 2007.
27. The family consultant noted that:
4.[The child] does object to being returned to the United States but in her mind living in the United States and living with her father are synonymous and her objection relates to her being returned to live with him.
…
6.[The child] says that she feels happier in Australia because she goes to a lot of places and learns a lot of things whereas when she lived with her father he locked himself away in his room with his girlfriend, […] and just turned the TV on for [the child] to keep her occupied. She said that her mother thinks she is doing a lot better (at school) since she came to Australia and [the child] agrees. She says this is because her mother helps her with her homework whereas he “Dad: did not.
7.There were two main themes in the reasons [the child] gave for not wanting to return to the United States (ie her father). One theme was in relation to her father: “It didn’t look like he [her father] cared about me”; “Dad is really mean to me sometimes”, “[the father’s girlfriend] wanted me away. She gives me dirty looks when dad isn’t looking. She calls my mum names-swear words”; “Dad blew smoke in my face from cigarettes”; “When I’d want my mum and I’d cry a lot, Dad would call me ‘baby’ and slam the door on me”.
…
9.The other theme was in relation to her brother […]: “My brother used to abuse me”; “I was scared of my brother”; “He came out of a sort of kids’ gaol about a month ago. I asked him on the phone if he’d hit me if I came back and he said no. But I don’t believe him”; “He’d bully me and call me names and Dad didn’t do anything”.
10. Along with objecting to returning to her father, [the child] wishes to remain living with her mother, step-father and little brothers. She said that when it was nearing the time she was supposed to return to the United States, when she would see planes flying overhead, she would feel sick because she did not want to go. If she had to go back, she said, she would be “very sad”, would want her “Mum” and would “cry a lot”.
11.Notwithstanding that she does not want to return to the United States, [the child] said that she would like to see her father and [her brother] “once a year”. She would like her step-father to accompany her on the flights to and from the United States as he has apparently done before.
28. In relation to the consultant’s advice to the Court regarding whether [the child] was of an appropriate age and/or maturity to take into account her wishes, her opinion was:
13.[The child] presents as a serious and intense young girl. She has an extreme position against her father which allows little room for the usual ambivalence felt by children for their parents, even when they are estranged from them. She has convinced herself that her father is to blame for the fact that she has not lived with her mother for a number of years and is resentful of this. It was evident that [the child] has aligned herself strongly with her mother and the most likely reason for this is that she has a strong longing to be with her mother after having been separated from her for a long time. She perhaps feels at some level that, unless she portrays her father in a totally negative light, either her mother may reject her and/or she might not be allowed to remain in Australia. It is a positive that she is able to say that she would like to see her father and her brother, albeit only once per year.
14.[The child] is not mature enough to be able to understand the complexities of her past or current family situation or the reasons the adults might be doing and saying certain things. She is still at an age when her thinking is rather black and white and behaviour is either good or bad. She would not be able to anticipate that she might later feel sad and guilty about the things she has said about her father and older brother in order to achieve what she and her mother want to have happen. At the same time, she [sic] been apart from her father (and brother) and has had the experience of living in Australia with her mother for some time now and so her expressed wishes have some foundation in reality. In my view, [the child] is of an age and maturity at which it would be appropriate that her wishes be given some, but not significant, weight. (emphasis added)
The 2008 Family Report
29. The report was prepared after the family consultant considered the court documents filed up to and including the reasons for judgment, emails between the parents, step-father and child and an interview with the child on 23 January 2008.
30. The family consultant identified that:
3.[The child] (aged almost 11 years) told me that she still wants to remain in Australia and that her reasons for this are “the same” as those she gave to me when I interviewed her previously. She did, however, make a point of telling me that her father had recently threatened her on the phone that he would come and make her get onto a plane despite her not wanting to and that this had made her feel “unsafe”.
4.It was evident that [the child] had a number of things she wanted to make sure she told me. Some of these were the same things she had spoken of last time and some were new. She told me that since the order had been made for her return to the USA she had been feeling very “stressed” and that her mother had taken her to see a counsellor […] to help her “get less stressed”. She added that her stress had taken the form of her “throwing chairs around” and “getting stomach aches”. When I asked her how she would feel and what she would do if she had to go back, [the child] said, “Last time I felt like I wanted to kill myself”. When asked further about this she said, “It was just a feeling of wanting to be dead. I would feel the same again.” She added that she would “start crying a lot” because she “really want[s] to stay”.
5.[The child] told me that when she lived with her father she was “shutting down” and thinks it is unfair that, now that she is “better”, he wants her back. She explained that “shutting down” means that she was not doing schoolwork, could not concentrate and wanted to see her “Mum”.
31. The family consultant concluded that (emphasis added):
8.[The child] has a strongly held wish to remain with her mother in Australia. She is very much invested in an outcome which will allow this to happen and seems to be becoming more emotional and almost desperate about this. She was at pains to make a case for why she should not have to go back to the USA. Some of the words she used were quite adult and the same as those used by her mother in Court documents as were some of the examples and descriptions she gave. It seems clear that [the child] and her mother have had discussions about the situation and its long history and that this is exacerbating [the child’s] anxiety.
9.This is not to say, however, that [the child] does not have a view and feelings of her own and reasons for them. As I wrote in my last report, the fact that she still wishes to see her father (albeit minimally) and maintain phone contact with him, as long as she is not subjected to what she feels as pressure from him, is a positive sign, as it demonstrates that she has the capacity to maintain some autonomous thought and feeling, despite pressures being brought to bear upon her by both of her parents. Many children in [the child’s] position find that the only way they can manage such pressure is to (unconsciously) form an alignment with one parent at the total exclusion of the other. [The child] has, at this point in time at least, managed to resist the extreme of that psychologically unhealthy stance.
10.The continuing entrenchment of positions and the delay in resolution of litigation and [the child’s] involvement in both of those has led to an increase in her stridency of expressed opinion and her emotional vulnerability. My view is that, while her maturity is still such that normally her views should be given some, but not significant weight, her increasing resistance is such that there would be considerable negative impact on her should she be made to return to her father in the USA.
32. In relation to the first report, his Honour accepted the family consultant’s conclusion. For the reasons he gave (we think correctly), the objection in terms of the Regulations had not been made out. In coming to this conclusion, we refer again to those parts of the first report which have been highlighted in this judgment and his Honour’s reasons.
33. In our view the second report demonstrates a change in the nature and strength of the expression of the child’s objections such that it is appropriate that her views should be taken into account. The writer had already indicated her view that the child’s age and degree of maturity were such that it was appropriate to take into account her wishes. It can be seen in the second report that the strength of the child’s feelings had changed and the impact on the child of a forced return against her wishes has become a matter of concern. We refer in particular to the report where the family consultant said in paragraph 8 that the child “seems to be becoming more emotional and almost desperate about this”.
34. The evidence of the child’s objection contained in the second report supports a conclusion that each limb of reg 16(3)(c) has been made out.
The Appellant’s Other Grounds
35. The five grounds of appeal (containing the essence of the submissions) are:
1. That His Honour Justice Cronin erred in failing to properly consider and then not to hold that there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Instead, His Honour erred at law by requiring evidence which showed that the grave risk of exposure to harm of a nature was “intolerable, extreme and compelling.” His Honour ought to have held that there is a grave risk that the return would expose the child to “physical or psychological harm or otherwise place the child in an intolerable situation” that was evidenced by the father’s admission that the child was “shutting down” prior to departing Iowa and escaping the father’s harmful domestic environment.
2. That His Honour Justice Cronin erred in failing to apply the evidence of the legal expert Michael B Oliver, Attorney at Law, as to the foreign law, and fell into error by attempting to interpret and make his own findings concerning the foreign law. The effect of the evidence as to foreign law (which was uncontested) was that Iowa would now be an inconvenient forum to hear any custody application regarding [the child], and the uncontested evidence was also that the mother had been advised and believed that the Iowa law provided that the relevant Iowa Court did not presently have jurisdiction, (and that is why she commenced proceedings in Australia).
3.That His Honour erred at law in finding that “if this Court, recognising its obligations under the Hague Convention, refuses or declines to exercise jurisdiction under the Act in respect of a parenting matter, then there is no impediment for the court in Iowa to deal with the matter.” Paragraph [37], Judgment 19/11/2007.
4.That His Honour Justice Cronin erred in the exercise of his discretion to refuse an order for return by failing to properly have any or any adequate regard to
(a)the comparative suitability of the Australian forum to determine the child’s future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c) the consequences of the retention, the objection, and the risk to the child of physical or psychological harm;
(d)the situation which would await the parent and the child if compelled to return;
(e)the anticipated emotional and psychological effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount) is not conducive to advancing the child’s best interests;
(f)the purpose and underlying philosophy of the Hague Convention would not be at risk of frustration if an order for return were to be refused, when that event is contemplated in an appropriate matter [sic] by the Convention and the regulations;
(g)the best interests of the child are not given appropriate weight by ordering the child’s return to Iowa;
(h)His Honour Justice Cronin erred in holding that the objection of [the child] to return to Iowa was not “strong” when the evidence of the Family Consultant was that she had taken an “extreme position” and should be given weight.
5.That His Honour Justice Cronin erred in the exercise of his discretion by making an order for return of the child to the United States by placing too much weight upon the fact of retention, and too little weight upon relevant discretionary factors, the fact of her length of residence in Australia, and the reasons for the child being sent to Australia to be with her mother for a lengthy period in the first instance.
36. In view of our ultimate decision especially having regard to the further evidence admitted on appeal it is not necessary to deal with the grounds in detail other than for one matter. The essence of the first ground is that by relying on the dissenting judgment of Kirby J in DP & Commonwealth Central Authority (supra) to which we have already made mention, the trial judge misdirected himself as to the proper test.
37. We think there is force in this argument especially as his Honour found that evidence in relation to the child did not fall into “that category”, apparently referring to Kirby J’s definition.
38. It is, however, our view that the various contentions in relation to grave risk are matters more for evidence in relation to where the child should ultimately live and the time that she should spend with each of her parents and the other members of the household rather than going to the issue contained in reg 16(3)(b). Apart from the question of the proper test to be applied we are of the opinion that, on the evidence before his Honour, he came to the correct conclusion in relation to grave risk. It is the child’s objection, especially in the light of the further report, which became the focus of the appeal.
Exercise of discretion
39. Notwithstanding that the three matters in reg 16(3)(c) have been established there remains the discretion to make or not make the order to return.
40. As to how we should consider the exercise of discretion, we again make reference to De L v Director-General of Community Services and Anor (supra) at p.661:
…However, it is to be noted that, if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return. The regulations are silent as to the matters to be taken into account in the exercise of that discretion and the discretion is therefore, unconfined except insofar as the subject matter and the scope and purpose of the [regulations] enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
41. In this case the child arrived in Australia on 3 June 2006. It was intended that she return to America on 1 August 2007. The length of time the child has lived in Australia as a result of an agreement between the parents is not an insignificant fact in this matter. Baroness Hale said In Re M (FC) & Anor (FC) (Children) (FC) [2007] UKHL 55:
42.In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the Contracting States and respect for one another's judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the Contracting States.
43.My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para 32 above, save for the word "overriding" if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.
44.That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.
…
46.In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of Article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.
42. While appreciating the spirit and purpose of the Convention and the arrangements between the parents formalised by a court order, it is our view that these matters must be balanced against other significant factors in this case. These include the strongly expressed wishes of the child and the grave concerns arising from the nature of the feelings expressed by the child contained in the most recent report. It is the family consultant’s opinion that the child is of an age and maturity, and that her views should be given some weight.
43. In the circumstances which have arisen since the judgment and taking into account the opinion of the family consultant we conclude that the objection in terms of reg 16(3)(c) is made out and we would also exercise our discretion to refuse to make the order returning the child.
44. Accordingly the application of the Director-General should be dismissed.
Costs
45. Having regard to the reasons for judgment allowing the further evidence on the appeal and the emphasis that we have placed on the second report we are of the opinion that there should be no order as to costs.
FINN J
46. This appeal by the mother of an 11 year old child against orders made on
20 November 2007 by Cronin J which required the return of the child to the United States of America pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”), can, and should, be allowed, in my opinion, on the basis of certain further evidence which was admitted by consent at the hearing of the appeal.
47. The facts of this case are set out in some detail in the joint judgment of the Chief Justice and May J, and I need not repeat them. It is sufficient to say that, as Cronin J explained in paragraph 4 of his reasons for judgment in relation to his orders of 20 November 2007, the case before him “was primarily about whether there was a ‘defence’ provided under Regulation 16(3) of the Regulations”.
48. It will be useful at this point before referring to the “defences” raised before his Honour by the child’s mother in opposition to the application by the State Central Authority for an order for the return of the child to the United States, to set out in its entirety Regulation 16 (with relevant emphasis added):
16.(1) If:
(a)an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2)If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
The reasons of Cronin J and the first report by the family consultant
49. As Cronin J also explained in paragraph 4 of his reasons, it was not disputed that the child was habitually resident in the United States before coming to Australia in June 2006, nor that her father was exercising rights of custody in the United States; rather the mother raised the following four defences to the application for the child’s return:
(a)there is a grave risk that the return would place the child in an intolerable situation;
(b) the child objects to being returned;
(c)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and
(d)the child has attained an age, and a degree of maturity, at which it is appropriate to take into account her views.
50. It will thus be seen that before his Honour the mother relied in opposition to the application for the return of the child, on the matters contained in paragraphs (b) and (c)(i), (ii) and (iii) of sub-regulation 16(3).
51. His Honour ultimately concluded in paragraph 46 of his reasons that:
(d)there is not a grave risk that the return of [the child] would expose her to physical or psychological harm or otherwise place her in an intolerable situation; and
(e) of the principles in Regulation 16(3)(c), only her objection applies.
52. His reasons for reaching these conclusions were as follows:
40.Counsel for the mother also argued that returning [the child] to her father exposed her to a grave risk of psychological harm because of the environment into which she would going [sic] included [the child’s brother] as well as the father’s new partner.
41.In respect of the question of grave risk, all counsel referred me to the High Court decision in De L v Director-General of New South Wales Department of Community Services (1996) 187 CLR 640; (1996) 20 FamLR 390; (1996) FLC 92-706. That court said that those words have no special meaning. Kirby J although dissenting, described the situation as meaning “intolerable, extreme and compelling”. In this case, I could not find the return to [the child] to be in that category.
42.Mr Anderson [counsel for the mother] said that [the child’s] objection was firm and rationally based. The family consultant referred to the fact that [the child] was doing well at school and critical of the father as I have set out above. Notwithstanding the absence from her father and therefore being under the influence of her mother, could I say that the objection was firm and rationally based? In this case, I am satisfied that [the child] does not understand the complexities of the family dynamics to which she would be returning notwithstanding her firmly held views.
43.Strength of feeling beyond the mere expression of a preference or ordinary wishes was another defence raised. To a very great degree, this subjective determination must be guided by the same principles as that set out in the previous paragraph. I could not be satisfied that [the child’s] views are more than her preference. The family consultant described those views as [the child] feeling happier in Australia because she “goes to a lot of places and learns a lot of things whereas when she lived with her father he locked himself away in his room with his girlfriend, […] and just turned the TV on for [the child] to keep her occupied”. [The child] was of the view that things were a lot better with her mother in Australia. She gave as an example that her mother helped her with her homework whereas her father did not.
44.[The child] viewed the situation as her father not caring about her and sometimes being mean to her.
45.Again, I am conscious that these are the words of an eleven year old child who does not understand the historical and more importantly, the current complexities of either of the families with whom she would be living. The strength of her preference is therefore not something that would persuade me as being strong.
53. Earlier in his reasons, his Honour had explained the circumstances in which the family consultant (counsellor) had come to prepare the report which was before him when he heard the application for the child’s return, and also the matters which were the subject of that report:
23.On 12 September 2007, Judicial Registrar Loughnan made an order under s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”) for a family report to be prepared. It was prepared by [the] family consultant […] in anticipation of this hearing. Two issues were addressed. They were:
(a)the question of whether [the child] objected to being returned to America; and
(b)whether [the child] had attained an age and maturity at which it was appropriate to take into account her wishes.
54. His Honour then can be seen as making his own findings in relation to the two matters which were the subject of the family consultant’s report, on the basis of the observations contained in that report:
24.There can be little doubt that [the child] does object to a return to America but in reality, that should be read as an objection to returning to her father. She gave a number of explanations. She was critical of her father’s care of her. I have to take into account that she has not been in her father’s care for over a year. She criticised her father for keeping her but that also has to be seen in the context of the extraordinary litigation that has gone on over the preceding years. To have any weight, that sort of comment would have to be seen in the context of what the judge in Iowa said about the father’s care.
25.[The child] was critical of her brother […] saying that she was scared of him, had spoken to him since his release from “kids’ gaol” and believed he would bully her. That may be consistent with the sort of behaviour that [the brother] was engaged in over the years before 2006 but the litigation in America still has to be seen as having a complimentary outcome for the father. There was also a criticism of the father’s partner by [the child].
26.I draw some comfort from the statement of the father that he wanted [the child] to have relationship with her mother in 2006 and that he acknowledged she was then having problems. I am very conscious in respect of those issues that I am not deciding a parenting case but rather determining whether the forum for that determination should be America or Australia.
27.When I turn to the second of the two issues considered by the family consultant, her evidence which I accept, is that [the child] feels it necessary to portray her father negatively because otherwise, her mother might reject her and/or she might not be allowed to remain in Australia. The family consultant said that the positive sign was that [the child] wanted to see her father and [her brother] albeit on a limited basis. The family consultant however said that [the child] was not mature enough to understand the complexities of the situation but that her wishes ought appropriately be given some weight.
28.Without the evidence being fully tested and the parties being in a position to be interviewed along with [the child], it is difficult to do more than accept at face value just what the family consultant says.
The second report by the family consultant
55. On 24 December 2007 and following the filing of this appeal, Cronin J stayed his order for the return of the child. At the same time he made the following order for the preparation of a further report by the family consultant:
2.That pursuant to s 62G of the Family Law Act 1975 (Cth) a report be prepared as a matter of urgency concerning the impact on the child … of her resistance to being returned to the United States of America in the company of her father pursuant to any order of the Court.
56. I note in passing that his Honour’s original order for the return of the child to the United States made on 20 November 2007 did not provide for the child to return in the company of her father, but only that the Central Authority “make such arrangements as are necessary to ensure the return of the child … forthwith in the company of such person and upon such conditions as may be necessary …”.
57. We were not provided with the transcript of the hearing before his Honour on 24 December 2007, nor with a copy of any reasons which he may have given for making the order for the preparation of a further report by the family consultant. However, it would seem likely that the further report was ordered because of the child’s reaction to his Honour’s original order for her return; that reaction is recorded in affidavits from her mother and step-father (both sworn and filed on 3 December 2007), which were admitted by consent as further evidence at the hearing of the appeal.
58. The family consultant interviewed the child on 23 January 2008 and prepared a further report, which stated that its purpose was to address “[t]he impact on the child of her resistance to being returned to the United States of America in the company of her father pursuant to any order of the Court”.
59. The family consultant’s second report was also admitted by consent as further evidence during the hearing of the appeal. The contents of the report are sufficiently serious to warrant being quoted virtually in their entirety, and are as follows:
3.[The child] (aged almost 11 years) told me that she still wants to remain in Australia and that her reasons for this are “the same” as those she gave to me when I interviewed her previously. She did, however, make a point of telling me that her father had recently threatened her on the phone that he would come and make her get onto a plane despite her not wanting to and that this had made her feel “unsafe”.
4.It was evident that [the child] had a number of things she wanted to make sure she told me. Some of these were the same things she had spoken of last time and some were new. She told me that since the order had been made for her return to the USA she had been feeling very “stressed” and that her mother had taken her to see a counsellor […] to help her “get less stressed”. She added that her stress had taken the form of her “throwing chairs around” and “getting stomach aches”. When I asked her how she would feel and what she would do if she did have to go back, [the child] said, “Last time I felt like I wanted to kill myself”. When asked further about this she said, “It was just a feeling of wanting to be dead. I would feel the same again”. She added that she would “start crying a lot” because she “really want[s] to stay”.
5.[The child] told me that when she lived with her father she was “shutting down” and thinks it is unfair that, now that she is “better”, he wants her back. She explained that “shutting down” means that she was not doing schoolwork, could not concentrate and wanted to see her “Mum”.
6.When asked whether she would ever want to see her father, [the child] confirmed the view she had expressed previously that she would, but only “if he won’t keep me there (ie in the USA)”. She added that phone conversations with him are “OK when they’re nice”.
…
8.[The child] has a strongly held wish to remain with her mother in Australia. She is very much invested in an outcome which will allow this to happen and seems to be becoming more emotional and almost desperate about this. She was at pains to make a case for why she should not have to go back to the USA. Some of the words she used were quite adult and the same as those used by her mother in Court documents as were some of the examples and descriptions she gave. It seems clear that [the child] and her mother have had discussions about the situation and its long history and that this is exacerbating [the child’s] anxiety.
9.This is not to say, however, that [the child] does not have a view and feelings of her own and reasons for those. As I wrote in my last report, the fact that she still wishes to see her father (albeit minimally) and maintain phone contact with him, as long as she is not subjected to what she feels as pressure from him, is a positive sign, as it demonstrates that she has the capacity to maintain some autonomous thought and feeling, despite pressures being brought to bear upon her by both of her parents. Many children in [the child’s] position find that the only way they can manage such pressure is to (unconsciously) form an alignment with one parent at the total exclusion of the other. [The child] has, at this point in time at least, managed to resist the extreme of that psychologically unhealthy stance.
10.The continuing entrenchment of positions and the delay in resolution of litigation and [the child’s] involvement in both of those has led to an increase in her stridency of expressed opinion and her emotional vulnerability. My view is that, while her maturity is still such that normally her views should be given some, but not significant weight, her increasing resistance is such that there would be considerable negative impact on her should she be made to return to her father in the USA.
The matters required to be established under Regulation 16(3)(c)
60. It is clear from the decision of the High Court majority in CDJ v VAJ (1998) 197 CLR 127; (1998) FLC 92-828 that further evidence which concerns events occurring after the hearing before the trial judge can be admitted on an appeal in order to establish that the order under appeal (although not necessarily erroneous at the time when it was made) has been rendered erroneous by those subsequent events, and that where the further evidence is not in dispute, the Full Court is able to evaluate it and take it into account in determining the appeal without the necessity for a new trial (See: the majority decision in Genish-Grant v Director-General, Department of Community Services (2002) FLC 93-111 [21], and In Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277 [51]).
61. As I have already said, the family consultant’s second report was admitted by consent, and I did not understand any part of its contents to be disputed on behalf of the respondent Central Authority. Rather the submissions on behalf of the respondent, as I apprehended them, were that the content of the report would not establish the three matters required to be established under sub-paragraphs (i), (ii) and (iii) of paragraph (c) of sub-regulation 16(3), but that even if those matters were established, the discretion to make an order for the return of the child should not be exercised.
62. In support of these submissions, counsel for the respondent Central Authority relied particularly on the short period of time between the child’s interviews with the family consultant in October 2007 and January 2008 and on the unlikely possibility that the child could have matured to such an extent in that short period that it would have become necessary to take account of her views, and also on the strong possibility that the mother had influenced the child.
63. In order to consider these matters relied on by the respondent Central Authority, it is necessary to have regard not only to the contents of the second report, which I have already largely set out, but also to the conclusions reached by the family consultant in her first report, which were as follows:
13.[The child] presents as a serious and intense young girl. She has taken an extreme position against her father which allows little room for the usual ambivalence felt by children for their parents, even when they are estranged from them. She has convinced herself that her father is to blame for the fact that she has not lived with her mother for a number of years and is resentful of this. It was evidence that [the child] has aligned herself strongly with her mother and the most likely reason for this is that she has a strong longing to be with her mother after having been separated from her for a long time. She perhaps feels at some level that, unless she portrays her father in a totally negative light, either her mother may reject her and/ or she might not be allowed to remain in Australia. It is a positive that she is able to say that she would like to see her father and brother, albeit only once per year.
14.[The child] is not mature enough to be able to understand the complexities of her past or current family situation or the reasons the adults might be doing and saying certain things. She is still at an age when her thinking is rather black and white and behaviour is either good or bad. She would not be able to anticipate that she might later feel sad and guilty about the things she has said about her father and older brother in order to achieve what she and her mother want to have happen. At the same time, she been [sic] apart from her father (and brother) and has had the experience of living in Australia with her mother for some time now and so her expressed wishes have some foundation in reality. In my view, [the child] is of an age and maturity at which it would be appropriate that her wishes be given some, but not significant, weight.
64. It will thus be seen that in relation to the issue of the child’s age and degree of maturity “at which it is appropriate to take account of his or her views”, the family consultant in her first report expressed the view that the child “is of an age and maturity at which it would be appropriate that her wishes be given some, but not significant, weight”.
65. A careful reading paragraph 10 of the family consultant’s second report reveals that, while what she had said in her first report about the weight to be given to the child’s views given her age and level of maturity might be the normal approach, the child’s “increasing resistance” was “such that there would be a considerable negative impact should she be made to return to her father in the USA”.
66. In my view, what the consultant was saying is that while normally the child’s views would only be given some but not significant weight because of her age and degree of maturity, her resistance to returning to her father in the United States is now so strong that it would have a considerable negative impact on her if she was forced to return. In other words, the child’s views should be given great weight because of the strength of her objections, regardless of her age or maturity. Thus the issue of any increase in the child’s maturity between the two interviews with the family consultant, which was a matter relied on by the Central Authority, becomes, in effect, irrelevant in light of the family consultant’s latest report.
67. The second matter relied on by the Central Authority, being the impact of the mother’s influence on the child’s views, was clearly recognised by the family consultant in paragraph 8 of her second report. However, she went on to conclude, for the reasons which she gave in paragraph 9, that the child “has the capacity to maintain some autonomous thought and feeling”.
68. In my opinion therefore the three requirements identified in reg 16(3)(c) are established on the basis of the evidence contained in paragraphs 8, 9 and 10 of the family consultant’s second report.
69. First, that the child objects to being returned to the United States is established by the family consultant’s observation that she “was at pains to make a case for why she should not have to go back to the USA”.
70. Secondly, the requirement that the child’s objection should show a strength of feeling beyond the mere expression of a preference of ordinary wishes, is established by the consultant’s observations that the child “is very much invested in an outcome” which will allow her to remain with her mother in Australia and that she “seems to be becoming more emotional and almost desperate about this” (paragraph 8 of the second report). The consultant has also identified “an increase in her stridency of expressed opinion and her emotional vulnerability” (paragraph 10 of the second report).
71. I have already discussed in the context of the respondent’s submissions, the third matter, being whether it is appropriate to take account of the child’s views given her age and maturity. No more need be said about that matter other than to conclude that that test can be said to be fulfilled in the circumstances of this case.
The discretion in relation to the order for return
72. I come then to consider whether notwithstanding that the three matters referred to in reg 16(3)(c) have been established, the issue of the discretion to make, or not to make, the order for return (or in this case, to permit, or not to permit, the order for return to stand).
73. In support of an exercise of the discretion in favour of an order for return, counsel for the Central Authority sought to rely on certain passages in paragraphs 38 and 39 of the opinion of Baroness Hale of Richmond in In Re M (FC) and Anor (FC) (Children) (FC) [2007] UKHL 55. The dispute in that case involved, in her Ladyship’s words (at paragraph 9), “the scope and application of the exceptions to the duty to return” children under the Hague Convention on the Civil Aspects of International Child Abduction, and “in particular the proper approach to the exercise of the discretion once one or more of those exceptions are established”.
74. More relevant, in my view, to the present case than are the passages on which counsel for the Central Authority sought to rely, are paragraphs 43, 44 and 46 of Baroness Hale’s opinion, which I will shortly set out, and which accord with the following passage from the High Court majority in De L v Director-General of Community Services and Anor (1996) 187 CLR 640 at 661; (1996) FLC 92-706 at 83,456:
… However, it is to be noted that, if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child’s return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the “discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]” enable it to be said that a particular consideration is extraneous [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
75. The passages in Baroness Hale’s opinion in In Re M (FC) are as follows:
43.My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para 32 above, save for the word "overriding" if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.
44.That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.
…
46.In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.
76. I have already discussed the issues, referred to by her Ladyship, of the weight to be given to the child’s views in this case on account of matters other than her age and maturity. I have also referred to the issue of parental influence, at least to the extent that the family consultant was able to assess it in paragraph 9 of her second report.
77. Clearly any decision to exercise the discretion not to return the child in this case must be approached with great caution given that the child was in her father’s care pursuant to court orders made in the United States after what Cronin J described as “significant litigation”, and given also that she came to Australia pursuant to court orders in America and was retained by her mother in Australia in contravention of those orders. These are obviously grave considerations.
78. But also grave are the concerns regarding the child’s welfare which emerge from the family consultant’s second report, being that the child is becoming “more emotional and almost desperate”; that there has been “an increase in her stridency of expressed opinion and her emotional vulnerability”; and “that there would be considerable negative impact on her should she be made to return to her father in the USA”. I draw attention also to the statements by the child recorded in paragraph 4 of the family consultant’s second report and set out at paragraph 59 above.
Conclusion
79. When it is remembered that this child, at 11, is of an age at which she can, if she was so minded, take matters into her own hands, the concerns regarding her welfare which support the conclusion that she should not be returned to her father in the United States must, in my opinion, outweigh those other grave considerations which would support an order for return.
80. Accordingly, I would, albeit with considerable reluctance, discharge Cronin J’s order for the return of the child and dismiss the application of the Central Authority for her return.
81. Given the conclusion which I have reached on the basis of the further evidence contained in the Family Consultant’s second report, it is unnecessary to consider the grounds of appeal.
82. I would make no order in relation to costs.
I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 27 March 2008
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Appeal
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Admissibility of Evidence
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Costs
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