WOLFE & DIRECTOR-GENERAL, DEPARTMENT OF HUMAN SERVICES
[2011] FamCAFC 42
•4 March 2011
FAMILY COURT OF AUSTRALIA
| WOLFE & DIRECTOR-GENERAL, DEPARTMENT OF HUMAN SERVICES | [2011] FamCAFC 42 |
| FAMILY LAW - APPEAL – CHILD ABDUCTION – HAGUE CONVENTION – whether the children objected to return within the purposes of Regulation 16(3)(c) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – whether the children would be placed at grave risk of physical or psychological harm or otherwise place them in an intolerable situation if they were returned to New Zealand – whether the trail Judge erred in her discretion in ordering a return of the children to New Zealand – no appealable error established – appeal dismissed. FAMILY LAW - COSTS – no order as for costs in relation to the appeal. |
| Convention on Civil Aspects of International Child Abduction Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| APPELLANT: | Ms Wolfe |
| RESPONDENT: | Director-General, Department of Human Services |
| FILE NUMBER: | SYC | 5918 | of | 2010 |
| APPEAL NUMBER: | EA | 12 | of | 2011 |
| DATE DELIVERED: | 4 March 2011 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn and May JJ |
| HEARING DATE: | 25 February 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 December 2010 |
| LOWER COURT MNC: | [2010] FamCA 1226 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self-represented litigant |
| COUNSEL FOR THE RESPONDENT: | Mr Tockar |
| SOLICITOR FOR THE RESPONDENT: | Legal Services Unit NSW Department of Human Services Community Services |
Orders
The appeal against the order of the Honourable Justice Stevenson made on 24 December 2010 be dismissed.
There be no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Wolfe & Director-General, Department of Human Services is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 12 of 2011
File Number: SYC 5918 of 2010
| Ms Wolfe |
Appellant
And
| Director-General, Department of Human Services |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the mother of two children against an order made by Stevenson J on 24 December 2010 for the return of the children to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). Those Regulations are made pursuant to s 111B of the Family Law Act 1975 (Cth) (“the Act”) to give effect to Australia’s obligation under the Convention on Civil Aspects of International Child Abduction (“the Hague Convention”).
The order was made on the application of the Director-General of the New South Wales Department of Human Services in her capacity as the State Central Authority under the Regulations.
The children who are to be returned to New Zealand pursuant to the order are a boy, R, born in March 1995, and a girl, A, born in December 1998.
Factual and procedural background
The mother was born in Australia in 1967. She married the father of the subject children in New Zealand in March 1994. The father had been born in New Zealand. At the time of their marriage the couple already had one child, C, who was born in July 1993 and lived with the father in New Zealand at the time of the proceedings before Stevenson J. As mentioned earlier, the two subject children, R and A, were born in 1995 and 1998 respectively.
The parents separated in 2003 with the three children remaining living with the father for the next four years until 2007. They had little contact with the mother during this four year period (although the child, C, lived with her for about six months).
In 2007 the mother took the children to live with her, and commenced parenting proceedings in the New Zealand Family Court. In the course of those proceedings she made allegations that the father had physically and psychologically abused both R and A, that he had sexually abused A, and that he had physically and psychologically abused the mother herself.
On 18 April 2008 a temporary parenting protection order was made against the father, but this was subsequently discharged on 29 May 2008. By this time the two children were represented by a lawyer, Mr D.
On 6-7 July 2009 Somerville J heard proceedings between the parties, in which the father, having apparently agreed that the children live with the mother, sought contact with the children.
On 29 July 2009 Somerville J delivered a reserved judgment in which she concluded that the children “… are not at risk if they have a relationship with their father which involves them having contact with him”. Her Honour made interim parenting orders to be reviewed in six months, whereby the mother would have day to day care of R and A and the father would have contact every second weekend for one and a half hours.
Following those orders, A had some contact with the father but R did not. However, by the end of 2009 contact between A and the father had ceased.
In January 2010 the father recommenced proceedings for contact and for a review of the care arrangements. On, or about, 16 June 2010 the New Zealand Family Court made directions for the filing of further evidence and for an assessment of the children’s views by a psychologist, with the proceedings being adjourned until 18 August 2010.
Meanwhile in October 2009 the mother had met a Mr KR and started a casual relationship with him. However, on 13 June 2010 she made a report to the police concerning Mr KR, apparently alleging violent and harassing behaviour by him towards her.
Towards the end of June 2010, the mother took the children to a refuge prior to leaving for Australia with them on 1 July 2010 (that is, while the parenting proceedings were still pending in New Zealand). The mother claims that the refuge workers had told her that they could not protect her and that she should go to Australia.
On 18 August 2010 the parenting proceedings in the New Zealand Family Court were further adjourned to permit the father to make an application through the relevant New Zealand authority for the return of the two children to New Zealand pursuant to the Hague Convention. That application was duly made, and as a result on 17 September 2010 an application was filed by the Director-General of the New South Wales Department of Human Services as the New South Wales State Central Authority under the Regulations for the return of the two children to New Zealand.
On 22 October 2010 the mother filed an answer to the State Central Authority’s application. The mother’s only “defence” to the application was as follows:
1.Pursuant to regulation 16(3) of the Family Law (Child Abduction Convention) Regulations 1986 this Honourable Court ought to exercise its discretion and refuse to order the return of the [A] born … December 1998 and [R] born … March 1995 (“the children”) to New Zealand.
2.Pursuant to regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 there is a grave risk that the return of the children under the Hague Convention would expose the children to physical harm, psychological harm and otherwise place the children in an intolerable situation.
3.Pursuant to regulation 16(3)(c) of the Family Law (Child Abduction Convention) Regulations 1986 the children object with strength of feeling beyond mere expression of a preference or ordinary wishes, to being returned and have each attained an age and degree of maturity which it is appropriate to take into account their views.
In her affidavit filed (also on 22 October 2010) in support of her answer the mother recorded the history of her relationship with Mr KR and described instances of violent and other anti-social behaviour on his part towards her and towards other persons. She also alleged that both the children and herself would face “physical and psychological harm” should they return to New Zealand because of matters relating to Mr KR, and that the children did not want to return to New Zealand because of their concerns about Mr KR.
The Central Authority’s application was listed before Stevenson J for hearing on 5 November 2010. For reasons not presently relevant, the proceedings had to be adjourned until 29 November 2010, when they were heard.
Prior to that hearing a report dated 1 November 2010 from a Family Consultant, Ms F was prepared. The report was directed to the issue of whether the children objected to a return to New Zealand.
On 24 December 2010 Stevenson J made orders for the return of the two children to New Zealand and delivered reasons for those orders.
It is important to record that while the mother was represented by Counsel before Stevenson J, she has apparently been unable to obtain legal representation for the purposes of the appeal. She has had to prepare her original and amended notices of appeal and she represented herself at the hearing of the appeal.
Stevenson J’s reasons for ordering the return of the children to New Zealand
At the commencement of her reasons her Honour explained that the mother conceded that the children were habitually resident in New Zealand when she bought them to Australia on 1 July 2010; that their removal was “wrongful” for purposes of the Regulations; and that the father was exercising right of custody at the time of this wrongful removal. Thus, as also explained by her Honour, the issue in this case was whether the mother had made out any defence pursuant to Regulation 16(3) such that the Court in the exercise of its discretion should decline to make an order for the return of the children to New Zealand.
Her Honour further explained that the discretionary grounds on which the mother resisted the application for the return of the children were first, that the children objected to being returned to New Zealand, and secondly, that return to New Zealand would expose them to grave risk of physical or psychological harm or otherwise place them in an intolerable situation.
We observe at this point that her Honour’s explanation of the mother’s concessions and of the limited discretionary issues arising in this case were clearly correct given the content of the mother’s filed answer to the application (which we have referred to above). We also note that the transcript of the hearing before her Honour also reveals that nothing was put by the mother’s Counsel to her Honour which would render erroneous her Honour’s explanation of the mother’s case.
It may however, be useful in this context if we set out the terms of Regulation 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.
After also setting out the provisions of Regulation 16 and the factual and procedural history of the case, her Honour referred to the evidence from the mother and from the Family Consultant as well as to relevant case law in relation to the issue of the children’s objections.
In relation to A, her Honour noted that A had told the Family Consultant that she had not meet Mr KR. Her Honour then concluded:
45.I have little difficulty in finding that [A] does not object to being returned to New Zealand for the purpose of the Regulations. I am satisfied that her statements to the Family Consultant and to the mother do not “show a strength of feeling beyond the mere expression of a preference or of ordinary wishes”. I have noted the Family Consultant’s assessment that [A’s] level of maturity is such that little weight should be placed on her wishes. This evidence was unchallenged.
46.It seems significant to me that [A] commented to the Family Consultant that her mother is happier and “not as stressed’ in Australia. For this reason I treat with considerable caution her statements to the mother that she does not want to return to New Zealand. It could very well be that she is making these statements to please her mother.
Her Honour then observed that the situation with regard to R “is far more problematic”, and she went on to refer to the Family Consultant’s evidence and also Somerville J’s findings concerning R’s views and also the changes in the children’s alignment with either parent. Her Honour’s conclusion in view of such evidence and findings was that R’s “… objection to returning to New Zealand does not go beyond the mere expression of a preference or of ordinary wishes”. However, her Honour then went on to say that if she was wrong in that conclusion, she would nevertheless exercise her discretion to make an order for return for reasons which she would later set out.
Then under the heading “Grave Risk” her Honour set out some examples of the affidavit evidence which the mother had given concerning alleged threats by Mr KR to her and the children. Her Honour explained that primarily the mother’s case was that return of the children to New Zealand would place them at grave risk from Mr KR, but that the mother had also suggested that A would be at grave risk of physical or sexual abuse from the father and that the mother seemed to suggest that R would be at grave risk of physical abuse from the father.
Her Honour then continued in relation to the alleged risk to the children from the father:
56. The allegations of sexual abuse were fully canvassed in the reasons of her Honour Judge Somerville of 29 July 2009, when there was a finding that contact with the father would not place the children at risk. Her Honour expressed a clear intention that the contact regime should be gradually increased but this aspiration was thwarted by the mother’s wrongful removal of the children from New Zealand. The mother’s regurgitation of the sexual abuse allegations in these proceedings seems to me to be nothing more than opportunism.
57. In 2009 her Honour Judge Somerville refused the mother’s application for a final protection order against the father in respect of [R] and [A]. Her Honour did so after fully canvassing the allegations against the father which the mother now seeks to resurrect.
58. I find that a return to New Zealand would not expose either [R] or [A] to any grave risk associated with or caused by the father. I am mindful of the fact that there are current proceedings in the Family Court of New Zealand; that the children have an appointed lawyer and so any issues involving the father could be addressed quickly.
Her Honour then returned to the issue of risk associated with Mr KR observing “… that there was nothing to corroborate the mother’s dramatic allegations”. In the course of then discussing the lack of corroboration, her Honour again referred to the fact that A had told the Family Consultant that she had never met Mr KR. Her Honour also noted that the mother had not raised concerns with the children’s New Zealand lawyer concerning Mr KR; her Honour observed that “… this failure to present her concerns casts doubt on her credibility”.
Having then referred to the capacity of the New Zealand legal system to protect the mother and the children if they returned to that country, her Honour concluded:
66.For these reasons I am not satisfied that the children would be placed at grave risk of physical or psychological harm in an intolerable situation because of [Mr KR] or his alleged associates, if they return to New Zealand. The mother bore the onus of proof of these matters but her case consisted only of uncorroborated allegations. As noted, her evidence of [A’s] exposure to [Mr KR] directly conflicted with what the child told the Family Consultant.
Next her Honour considered the mother’s claim that she would not accompany the children to New Zealand in the event that there was to be an order for their return, noting that “[i]n part, she relied on her own refusal to establish that a return of the children would place them in an intolerable situation”. Her Honour disposed of this aspect of the mother’s case by saying, correctly, in our view, that “[i]t is well established that, ordinarily, the objects of the Convention should not be frustrated by a parent’s refusal to return with children to their country of habitual residence”.
Her Honour then turned to the mother’s next submission on grave risk or intolerable situation which assumed that R would remain in Australia with the mother and that A would return alone to New Zealand and that A would return to “unknown circumstances” and thus be placed at grave risk or in an intolerable situation. Her Honour then made the following observations about these assertions by the mother:
71.Firstly, it is precisely because the mother refuses to return to New Zealand with her that [A] may face “unknown circumstances”. If the mother were to return, she has the security of orders of the Family Court of New Zealand, which was in the process of further consideration of parenting arrangements when she wrongfully removed the children. She has ready access to the New Zealand legal system to obtain whatever orders are necessary to protect her from [Mr KR]. The children have their own lawyer, who is entirely familiar with the proceedings. The mother thus relies on a situation which she has created in her attempt to make out this argument.
72.Secondly, it would be presumptuous of me to assume that the New Zealand legal system and child protection authorities would be incapable of making proper arrangements for [A’s] care. I do not countenance making this assumption.
73.Thirdly, I indicated at the end of the trial that I would entertain an application for the imposition of conditions upon an order for return. I intend to take up that option.
74.Fourthly, I intend to exercise my discretion in favour of an order for the return of [R] as well as [A]. She would thus have the support of her older brother.
Finally under the heading “The Exercise of Discretion in relation [R]”, her Honour set out in the following paragraphs the reasons why even if she was mistaken in concluding that R did not “object” (for the purposes of the Regulations) to returning to New Zealand, she would nevertheless exercise her discretion in favour of an order for return:
76.I have referred to the unfinished litigation in New Zealand and to the fact that the children have a lawyer who knows them and is entirely familiar with the proceedings. It is clear from her reasons to date that her Honour Judge Somerville is carefully considering [R’s] situation in the progression of the proceedings. For example, her Honour interviewed each child in 2009 and ordered a social science report in respect of both of them. In other words, [R’s] role in the dynamics of the family has been an integral part of her Honour’s reasoning.
77.The Family Consultant considered the nature of the relationship between [R] and [A] and the consequences of separating them. In her report she wrote:
“While the siblings do not talk to each other about their family’s troubles, they appear to have concern and affection for each other. Sibling relationships in families which have been confronted with significant problems have the potential to be sustaining throughout life. Given the fractures which already exist in this family, any thought of separating [R] and [A] at this stage would need to be approached with considerable caution”.
78.In her oral evidence the Family Consultant said: “my assessment of the strength of the sibling relationship was more hypothetical”. She added, however: “[R’s] decision to attend some changeovers suggests a sibling closeness”. It seems to me that [R] assumed a supportive and protective role in relation to his little sister on these occasions.
…
80. I should note finally the mother’s submission that it is in some way significant that [R] is only three months short of attaining the age when the Convention no longer applies to him. I have taken his age and maturity into account in determining whether he “objects” for the purposes of the Regulations. The fact of the matter is, however, that he is presently subject to the operation of the Convention. (original emphasis)
The appellant mother’s complaints:
In her further amended notice of appeal filed on 21 February 2011, the mother set out the following as her grounds of appeal:
1.Where Judge J. Stevenson turned to leave the court room she looked at the court clerk and said, that was an easy days work. I feel this decision was wrong. I was devastated as [sic] my sister.
Pg1(2)Children at risk of physical psychological or other abuse by father copy [Mr M] Report already filed on 24.2.2010.
Then in the “Orders sought” section of the amended notice of appeal, she set out eleven references to various pages and paragraphs of Stevenson J’s reasons for judgment.
The mother did not file the required summary of argument in advance of the hearing of the appeal. It was therefore necessary for Counsel for the respondent State Central Authority in his summary of argument to endeavour to anticipate what the mother’s submissions in support of her appeal might be. Counsel did this by reference not only to the two stated grounds of appeal set out above, but also to the material to be found in the eleven passages of Stevenson J’s reasons to which references appeared in the “Orders sought” section of the mother’s amended notice of appeal.
At the hearing of the appeal after giving the mother some time to re-read the 16 page summary of argument prepared by Counsel for the respondent and after considerable discussion between the mother and ourselves and an invitation to her to adopt the arguments which Counsel for the respondent had postulated she might be pursuing, she confirmed that the only complaints which she wished to raise on the appeal were contained in the two matters contained in the “Grounds of appeal” section of her amended notice of appeal. However, we understood that she was prepared to rely on the formulation of those complaints as contained in the following paragraphs of the summary of argument of Counsel for the respondent:
6. Did her Honour Justice Stevenson fail to bring an impartial and unprejudiced mind to the resolution of the questions that she was required to decide? That this may be an issue appears from the first Ground of Appeal at p. 3 of the Notice of Appeal.
7.Did her Honour err in failing to hold that there was a grave risk that the return to New Zealand of the children, [R], born … March 1995, and [A], born … December 1998, would expose them to physical or psychological harm from their father or otherwise place them in an intolerable situation? That this may be an issue appears from the second Ground of Appeal at p. 3 of the Notice of Appeal.
8.Did her Honour err in failing to have regard to a Report by [Mr M] (psychologist) which the Appellant claims was filed on 24 February 2010? That this may be an issue appears from the second Ground of Appeal at p. 3 of the Notice of Appeal.
We will now address the complaints raised in those paragraphs. It is unnecessary that we concern ourselves with any of the other anticipated complaints which were contained in the summary of argument prepared by Counsel for the respondent.
Alleged remarks made by the trial Judge at conclusion of the hearing
There is nothing on the transcript of the hearing before her Honour which would indicate that she made the remarks alleged in the first of the mother’s grounds of appeal, set out in her amended notice of appeal. Nor is there any other evidence to support this claim as indeed the mother conceded before us. It is therefore unnecessary that we consider this issue further.
Alleged failure to have regard to a report by a psychologist, Mr M
It is also unnecessary that we consider in any depth the complaint that her Honour did not have regard to a report prepared by a psychologist Mr M (which was apparently prepared in September 2008 for the New Zealand proceedings). This is because it became clear at the hearing of the appeal that this report was not before Stevenson J in the proceedings for the order for the return of the children (although it was apparently before her Honour when she heard an application to stay her order for the return of the children). Furthermore, as the report is over two years old it is difficult to see of what relevance it could be. This issue was not addressed by the mother.
Alleged error in the failure to find grave risk, exposure to harm or intolerable situation for the children
We understand the mother’s oral submissions at the hearing of the appeal to be addressed principally to her Honour’s failure to find that there would be, in the language of Regulation 16(3)(b) “… 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 …”.
Unfortunately it has to be said that the mother’s submissions were not directed to this complaint in any reasoned or even comprehensible way. To the extent that her submissions could be understood they were largely directed to the reasons why she had left New Zealand, some of which, it appeared to us, had not been raised before Stevenson J.
In her submissions the mother was critical of Somerville J. Indeed she contended that her Honour’s interim decision was wrong. However, it is significant to note in this context that the mother did concede that she had left New Zealand before the parenting proceedings there were completed.
It is also significant to note that while the mother’s case before Stevenson J in relation to her grave risk defence was primarily directed to the threat posed to herself and the children by Mr KR, her submissions before us largely focused on the risk posed to herself and the children by their father.
Overall nothing that the mother put to us was able to persuade us that her Honour had erred in concluding that the defence to an order for return contained in Regulation 16(3)(b) had been made out.
Conclusion
It is, however, important given the mother’s self-represented status, that we satisfy ourselves as to the correctness of the order for the children to be returned to New Zealand against the background that the only defences raised by the mother to the making of that order were as provided in Regulation 16(3)(b) and (c).
So far as the child A is concerned we are satisfied that the evidence supported her Honour’s finding that A did not “object” for purposes of the Regulations to being returned to New Zealand. We are also satisfied that her Honour was entitled to rely on Somerville J’s finding that A was not at risk from her father, and on the unsatisfactory state of the mother’s evidence to find that A was not at risk from Mr KR.
So far as R was concerned, the same considerations as supported the conclusion that A was not at risk from the father and Mr KR, apply to him. As to the issue that R may have “objected” within the meaning of the Regulations to being returned to New Zealand, her Honour ultimately relied on the discretion which she had under Regulation 16(3) to support the order for his return. We are satisfied that her exercise of that discretion was appropriate.
In conclusion it is important to emphasise that in this particular case, there were parenting proceedings pending in the country from which these children had been “wrongfully” removed. It was clearly appropriate that they be returned to that country for the determination of those proceedings particularly given the confidence which her Honour had, and which we share, that they can be protected in that country.
We would thus dismiss the appeal.
Costs of the appeal
In the event that the appeal was dismissed Counsel for the State Central Authority sought an order for costs against the mother. However, having regard particularly to the mother’s financial position we are not persuaded that there would be any justification for a costs order against her.
I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and May JJ) delivered on 4 March 2011.
Associate:
Date: 4 March 2011
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