Wolford & Attorney-General's Department
[2014] FamCAFC 197
•10 October 2014
FAMILY COURT OF AUSTRALIA
| WOLFORD & ATTORNEY-GENERAL'S DEPARTMENT (CTH) | [2014] FamCAFC 197 |
| FAMILY LAW – APPEAL – CHILD ABDUCTION – Where the primary judge ordered the return of two children wrongfully removed from the United Kingdom – Where the appellant submitted that the primary judge gave insufficient weight to the evidence of a psychologist which adverted to her mental health and the negative psychological effect on the children should they be returned to the UK – Where the appellant submitted that the primary judge erred in not finding that a “grave risk” of harm defence was established – Where the primary judge found that “some” adverse psychological consequences would flow to the children and “some depression and anxiety would be suffered by the mother – Where the primary judge’s quantification of the risk as “some” properly reflects the gravity, risk and nature of the harm – Whether the undertakings accepted by the primary judge were insufficient – Where the undertakings are adequate – Appeal dismissed. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth): R 16 |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Wolford |
| RESPONDENT: | Secretary, Attorney-General's Department (Cth) |
| FILE NUMBER: | SYC | 1648 | of | 2014 |
| APPEAL NUMBER: | EA | 98 | of | 2014 |
| DATE DELIVERED: | 10 October 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ryan & Murphy JJ |
| HEARING DATE: | 22 August 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 June 2014 28 July 2014 |
| LOWER COURT MNC: | [2014] FamCA 445 [2014] FamCA 610 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lloyd SC with Ms Hartstein |
| SOLICITOR FOR THE APPELLANT: | Harris Friedman |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Legal Services Unit, Department of Family and Community Services |
Orders
The appellant mother’s application to adduce further evidence in the appeal be granted.
The appeal against the orders of Johnston J made on 28 July 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wolford & Attorney-General’s Department (Cth) has been approved by the Chief Justice 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 98 of 2014
File Number: SYC 1648 of 2014
| Ms Wolford |
Appellant
And
| Secretary, Attorney-General's Department (Cth) |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 5 August 2014 Ms Wolford (“the mother”) appeals against orders made by Johnston J on 28 July 2014 which require her to make arrangements to return her two children to the United Kingdom (England). On the mother’s application his Honour granted a stay of the order for return pending determination of this appeal. An application brought by the mother to adduce further evidence in the appeal must also be considered.
The proceedings before his Honour were brought by the Secretary of the Commonwealth Attorney-General’s Department as the Commonwealth Central Authority (“the Central Authority”) under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the regulations”). The regulations give effect to Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”). The Abduction Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting states; the aim being to serve the interests of all children by deterring their wrongful abduction or retention and restoring them to their place of habitual residence, but also to serve the interests of the individual child by making certain assumptions about what will be in that child’s best interest. These assumptions can be rebutted by the establishment of one or other of the defences contained in the regulations (In Re E (Children) (Abduction: Custody Appeal) [2011] 4 All ER 517 at 525).
The children the subject of the proceedings are C and T. They and their parents are dual citizens of Australia and the United Kingdom. Mr Wolford (“the father”) is not a party to the proceedings
Both children were born in the United Kingdom where they lived with the mother and their father until their parents’ separation in late 2013. At separation C was two years of age and T was just two weeks of age.
On 24 December 2013, the mother surreptitiously removed the children from the United Kingdom and brought them to Australia. The father requested the United Kingdom Central Authority apply to the Central Authority for steps to be taken in Australia to secure the children’s return. He asserted that the children had been wrongly removed by the mother from the United Kingdom to Australia and that by operation of the regulations a return order should be made.
The primary judge found the conditions for return prescribed in the regulations were satisfied. Thus unless one of the defences contained in the regulations was established, his Honour was obliged to make orders for the children’s return. In her defence, the mother argued that the father consented to the children being removed to Australia (reg 16(3)(a)(ii)) and that if they were returned to the United Kingdom the children would be exposed to a grave risk of psychological harm (reg 16(3)(b)). Although his Honour was satisfied there is a risk to the children of adverse psychological consequences he was not satisfied that the risk was sufficient to establish a reg 16(3)(b) “grave risk” defence. Undertakings by the father and the mother were accepted by
his Honour which in any event further ameliorated the risk to the children that did exist. The mother failed to establish that the father gave his consent to the removal of the children.
Central to the mother’s appeal is the manner in which his Honour considered the “grave risk” defence and his acceptance of undertakings from the father which underpin the return order. No challenge is raised in relation to the rejection of the mother’s reg 16(3)(a)(ii) “consent” defence.
The Central Authority resists the appeal and seeks to uphold the orders. There is no opposition to the mother’s application to adduce further evidence.
Background facts
To give context to this appeal it is necessary to provide some background facts which are predominately taken from the primary judge’s reasons.
The mother was born in Australia in 1973.
The father was also born in Australia in 1973.
Having commenced their relationship in late 2006, from early 2007 the mother and father began to live together in England. They returned to Australia, where both have family, in January 2008, and they lived there until March 2009 when they returned to live in England. England remained their home until the mother removed the children in December 2013.
Following C’s birth, the mother began to experience symptoms of depression. She began to take a low dose anti-depressant, which she took for about five months, and commenced counselling.
The mother brought C to Australia for four weeks in early 2012. While in Australia the mother attended counselling.
Having taken maternity leave from her position as a personal assistant, in September 2012 the mother returned to work on a part time basis. While she was at work C was in child care.
In late 2012 the mother and father were married in England.
During 2013 the relationship between the mother and father became increasingly strained and there were many verbal arguments between them.
In late 2013 the mother recommenced taking anti-depressant medication.
T was born in England in November 2013. Unfortunately there was an argument between the parents in relation to which there is a dispute about whether the father threw a suitcase at the mother (her version) or put it on the ground (his version).
By late November 2013 the mother and father were of the view their marriage had broken down. The mother and father separated on about
28 November 2013 at which time the mother told the father she wanted to return to Australia with the children. Discussions followed without there being agreement that the mother could remove the children.
On 11 December 2013 the mother went to a police station to complain about the father. Because she made no (nor does she now) allegation of physical mistreatment, police could not act on her complaint and she was advised to contact the Family Justice Centre. The mother did so and told them that for the past seven years she had been emotionally abused by the father.
In the meantime, agreement was reached that the father would see the children on Christmas Day 2013. What the father did not know was that without his consent, the mother obtained a passport for T and on
24 December 2013 accompanied by her mother, she departed the United Kingdom with the children for Australia. The mother advised the father on
26 December 2013 that she and the children were in Australia where they have been ever since.
Since returning to Australia the mother has received medical treatment and counselling for her depression.
The application by the Central Authority for the return of the children to the United Kingdom was filed in this court on 20 March 2014. Various orders were made on 26 March 2014 including injunctions which prevent the children being removed from Australia pending completion of the proceedings.
The hearing of the application by the Central Authority commenced before the primary judge on 23 May 2014 with the Central Authority and the mother each represented by counsel. The hearing was undertaken without any of the witnesses being cross examined and the primary judge reserved his decision.
The primary judge published his reasons on 25 June 2014 in which his Honour indicated that orders for the children’s return to the United Kingdom would be made. However, a return order was not made at that time and the proceedings were adjourned to take submissions about what conditions should be attached to the mooted return order. The order made on 25 June 2014 was as follows:
That these proceedings be adjourned to 9:30 am on 2 July 2014 for submissions about conditions to be included in an order for return of [the children] to England forthwith pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). (original emphasis)
The hearing resumed on 2 July 2014 when the primary judge was advised the parties were unable to agree on conditions or the form of undertaking to be given by the father. The matter was further adjourned until 9 July 2014.
On 9 July 2014 there continued to be disagreement about the adequacy of undertakings proffered by the father and the nature of the conditions sought by the mother. In light of his Honour’s intimation that the father’s proposed undertakings were inadequate, the Central Authority sought and obtained a further adjournment. The proceedings were adjourned until
28 July 2014 “for the making of conditions of return of the children” with the following matters noted by his Honour on the record:
(1)That in my view, the father has failed to provide an appropriate set of undertakings, particularly in relation to provision of accommodation and day to day support for the mother and children.
(2)That I reluctantly propose to adjourn these proceedings on one further occasion only to provide the father with yet another opportunity to present appropriate undertakings particularly in relation to accommodation and financial support.
(3)That in the event that appropriate undertakings are not able to be provided on the next occasion, I propose to dismiss the Central Authority’s Application.
(4)That whatever accommodation is to be offered to the mother shall be on condition that she is free to have exclusive use and occupancy of such accommodation and to be permitted to accommodate a support person such as a relative or a friend.
When the hearing resumed on 28 July 2014 the primary judge accepted undertakings proffered by the Central Authority from the father. The undertakings were not made as reg 15(1)(c) “conditions” of the return order, but they were that the father:
1.Move out of [his] current accommodation for 6 weeks to enable [the mother] and the children to reside in the accommodation on their return to England for a period of one month. Or
In the alternative, to pay for the deposit (up to £1800) and rent for one month (up to £1200).
2.I will pay £3000 into the trust account for [the mother’s] solicitor in advance of her return to England on the condition that it is to for the purpose of [the mother] to pay for the rental deposit and one month of rental in England.
3.The above payments are on the basis that [the mother] has exclusive occupancy of the rental premises. She is free to have living with her whomsoever she wishes.
4.Pay maintenance to [the mother] £1000 for the first month. I undertake to deposit this into a British bank account in the name of [the mother] two days before her date of arrival in England or in the alternative into my solicitor’s trust account in England. I will instruct my solicitor to release these funds to [the mother] within 48 hours of her arrival in England.
5.Discuss the payment of further maintenance to [the mother] after one month, dependent on other payments I am already making to her at the time. I will also discuss this with [the mother] in mediation on her return to England.
6.Pay for and engage in mediation with [the mother] during which both financial and parenting issues will be discussed and negotiated.
7.One month after [the mother’s] arrival in England pay some of the child care costs concerning the children at an amount to be agreed during mediation.
8.On a without admissions basis, to not denigrate [the mother] in any way to the children or anyone else.
9.Pay for the airline tickets for [the mother] and the children to return to England.
10.Discuss arrangements with [the mother] for her to share the family car. This can be discussed in mediation.
With those undertakings in place, pursuant to reg 15(1)(a) orders were made for the children’s return as was a series of related implementation orders. These are the orders which are the subject of this appeal. It is appropriate we now set out those that are relevant:
1.That orders are made in accordance with the Minute of Order filed in Court today signed by Johnston J and placed with the Court papers as set out hereunder:-
Upon the undertakings of the father comprising Annexure A to these Orders being given:
1. That the applicant and respondent mother [the mother] make such arrangements as are necessary to ensure the return of the subject children described below to England and Wales by 11 August 2014:
[C] (born …)
[T] (born …).
Or
in the event of any appeals, within 2 weeks of the conclusion of all appeals.
2.The legal representative for the Australian Central Authority is to make arrangements to give the passports concerning the children to the parent travelling with the children be it the respondent mother or in the alternative to the father [the father].
3.Paragraphs 1.1, 1.2 and 1.3 of the orders of 26 March 2014 be varied to allow the children to leave the Commonwealth of Australia for the purpose of giving effect to paragraph 1 of the order above and that the Australian Federal Police give effect to the variation.
4.That the Registrar of the Family Court of Australia release forthwith all passports concerning the children to the legal representative for the Australian Central Authority.
5.Following the departure of the children from the Commonwealth of Australia and their arrival in England, the Australian Federal Police are to remove the names of the subject children from the PASS Alert (Watch-List) system in operation at all Australian International arrival and departure points as soon as practicable.
6.Following the departure of the children from the jurisdiction of the Commonwealth of Australia to England in accordance with paragraph 1 of the order above, all other orders made by the court in relation to this matter be discharged.
…Undertakings were also obtained from the mother and which for completeness we now set out. The mother undertook to:
1.Promptly disclose to [the father] my address at which I reside in with the children.
2.When in England reside at a reasonable distance (no more than 15 miles) from where [the father] lives.
3.Inform [the father] in advance with details of the rental and deposit amounts, of any proposed rental accommodation I wish to take up during my first month in England that [the father] is paying for. I undertake to inform [the father] of these details before committing to any lease.
4.Not remove, transfer, sell or destroy any of the furniture or belongings when I reside in [the father’s] home or any other accommodation paid for by [the father].
5.Engage in mediation with [the father] on my return to England about parenting and financial issues.
6.Engage in discussions concerning the use of the family car on the basis that I reside within a reasonable distance (no more than 15 miles) to [the father] and on the understanding that he will need the vehicle for employment and for contact with the children.
4.That the Court notes that the respondent mother undertakes to file and serve a Notice of Appeal together with a draft appeal index not later than 4 August 2014 and to order the transcript on an urgent basis.
5.That in these circumstances the respondent mother is given leave to make an oral application for a stay of the orders made today.
6.That the orders made today are stayed pending completion of the proposed appeal hearing, to be listed for hearing on the next available date before the Full Court, on the following conditions:
6.1 That the respondent mother prosecute her appeal expeditiously including the filing of the appeal and relevant documents in accordance with the orders made today; and
6.2Complying promptly with all directions made by the Appeals Registrar. …
The grounds of appeal
By her Notice of Appeal the mother seeks that the orders made on 28 July 2014 be set aside and the application of the Central Authority filed on 20 March 2014 be dismissed.
The grounds of appeal assert error by the primary judge in:
1.Holding in effect that “grave risk of harm” meant “risk of grave harm”.
2.Finding that there was no grave risk of harm when it was found:
(a) that the mother being stressed and anxious would be likely to have some negative effect on the children, and
(b) the return of the children to England would be likely to have some adverse psychological consequences for them because of the likely effect on them of living with a mother who will be likely to suffer from some depression, anxiety and stress.
3.Failing to give any or sufficient weight to the evidence of
[the psychologist] as to the psychological effect on the children of an order for their return.4.Finding that a grave risk of harm at least partly caused by the mother’s lack of family support in England could be sufficiently ameliorated by conditions.
5.Finding that there may be a grave risk of harm, which would be at the margin of what the law requires and then not finding that the mother had established a grave risk of harm.
6.Finding against the evidence and the weight of the evidence that the mother has been able to manage her depression and anxiety in Australia by medication and counselling, and therefore her depression, stress and anxiety will be able to be managed in England by medication and counselling.
7.Accepting the evidence of [Ms E][the psychologist] that if the mother was removed from her family and support network she would be at high risk of escalated symptoms of stress, depression and anxiety and yet found, contrary to that evidence, that the mother could manage her depression and anxiety in England by medication and counselling.
8.Finding in the absence of evidence that the mother could manage her depression, anxiety and stress in England by medication and counselling because she would not be living in the same house as the father and would not have the same level of contact as previously.
9.Finding that if there was a grave risk of harm then it could be ameliorated by conditions on the return of the children and in then not imposing conditions which were sufficient to ameliorate the grave risk of harm.
10.Accepting undertakings from the father which do not provide for the easy return of the children to England nor for their necessities until the court of habitual residence can become seized of proceedings brought in that jurisdiction.
11.Accepting undertakings from the father which included indefinite promises of possible payment for the mother and children which did not have to be met before the return was to take place.
The grounds can be distilled into three discreet topics; namely, error in relation to the “grave risk” defence, the treatment of Ms E’s evidence and the adequacy of undertakings from the father. Although little was said in relation to those grounds which relate to the evidence given by Ms E, because of the importance of her evidence to many of the grounds of appeal we think the most convenient manner to address the mother’s appeal is to consider those grounds which concern her evidence first and the remaining topics in order.
Ms E’s evidence
By grounds 3, 6, 7 and 8 various challenges are made to the weight which
his Honour gave to Ms E’s evidence, particularly in relation to the psychological effect on the children of an order for their return and findings to the effect the mother would be able to manage symptoms of stress, depression and anxiety even if she returned to the United Kingdom.
Ms E is a psychologist to whom the mother was referred by her general practitioner to assist with management of what he said were symptoms of reactive depression and anxiety. So that it is clear, the primary judge said the evidence adduced from the general practitioner should be treated cautiously and did not accept, as the doctor opined, that the mother suffered reactive depression or an anxiety adjustment disorder. No challenge is raised in relation to his Honour’s treatment of the general practitioner’s evidence.
So as to provide context to the psychologist’s evidence it is useful to identify the basis on which the “grave risk” defence was mounted. As the primary judge explained, the mother said the father emotionally abused their son by using him against her, denigrated her in the child’s presence (saying “you are a terrible mother”) and made unreasonable demands for the child’s affection. According to the mother, the father showed no interest in their baby daughter, which she said was itself emotionally abusive.
She claimed he was controlling of her and called her names such as “crazy”, “insecure”, “too soft”, “highly emotional”, “stupid”, “you’ve got problems” and said things like “tell your mother not to tell me how to parent my child before I explode”. Against this background she said she would become extremely stressed and anxious if she was required to return, which, because she is the children’s primary carer and they are so young would have a deleterious effect on them.
Because of its importance to these grounds, it is helpful if we set out the passages from the psychologist’s report which provide the foundation for
his Honour’s findings. The psychologist explained she first met the mother on 3 March 2014 and by the time she completed her (first) report dated
7 May 2014 she had seen the mother eight times. It is not suggested his Honour misstated the psychologist’s evidence.
At [79] of his reasons (delivered 25 June 2014) the primary judge identified what he described as being relevant passages from her report. These are set out below.
From my discussions with [the mother] I have concluded that returning to the UK would be detrimental to her well-being and would place [the mother] in an intolerable situation as she has no wish to recommence a close relationship with her husband. She is fearful of becoming “trapped” and isolated again, now with two children. She is concerned that her husband will continue to verbally put her down, play ‘mind games’ and emotionally manipulate and intimidate her as he has done in the past repeatedly in front of [C]. [The mother] is also concerned about his lack of consideration of the children’s developmental needs and the impact of his behaviour on them. [The mother] is convinced that, based on past experience, he will use the children as pawns in his control over her.
In my opinion it would potentially have harmful effects on [the mother] and both children if she has to return to her marital home in the UK, which at least initially seems to be her only option. Due to the young age of both children, especially [T], it is also not an option to separate them from their mother without causing psychological harm. The associated stress of going through a divorce is likely to escalate the already highly strained relationship. Neither partner has immediate family support in the UK and the children would be at increased risk of sustaining psychological and emotional harm.
[The mother] is still in the post-natal period and at high risk of escalated symptoms of stress, depression and anxiety if she is removed from her family and support network. [The mother] fears that she could not withstand the demoralising impact of again having to have close contact with her husband. It is important to consider that parental stress has an impact on the children and that everything possible should be done to create a stable, consistent and emotionally supportive environment and life-style. For [C] it could be extremely unsettling and stressful to move again and to start again in a new childcare facility. He and [T] have over the past months become familiar and close to their grandmother, uncles and cousins. Their paternal grandparents also live near [the mother].
The primary judge then analysed the evidence so as to make some prediction about what might happen if the children returned to England. In so doing, he set the scene for his analysis of the psychologist’s evidence and whether the factual assumptions which under-pin her opinions accord with the facts and predictions for the situation if the children and mother return to England.
His Honour was satisfied that in England the mother would not live with the father. Reference was made to evidence that in the event the mother decided against staying with her sister and she rejected the father’s offer to vacate what was the family home for up to six weeks he would then provide her with financial assistance so that she could rent her own accommodation and pay her rent for 6 weeks. The mother’s allegations, which his Honour summarised as “… a long history of verbal, emotional and psychological abuse” by the father was then mentioned as was the fact that her allegations were denied by the father.
Evidence from the maternal grandmother corroborated some of the mother’s evidence; namely that the father spoke to the mother in an angry and abusive voice and that she heard him belittle and criticise her. When the mother and C stayed with the maternal grandmother in March 2012 the maternal grandmother said the mother was constantly nervous and anxious and clearly sad and depressed. According to the maternal grandmother, in the presence of the children (presumably late 2013) she heard the father consistently say to the mother that she was a bad mother and that C had begun to say to his mother “you are not a good mummy.” Because this evidence, and the father’s denials, was not tested, the primary judge was unable to make findings about where the truth lay. Thus, he decided it was appropriate to predict the mother and the children’s situation if they returned to England, on the basis that on those matters the mother and maternal grandmother’s evidence was reliable.
As to the mother, the primary judge accepted she would probably be “ … distressed, angry, frustrated, depressed and probably anxious about having been required to return to England against her very strong wish not to return” [97]. She would almost certainly commence proceedings in the United Kingdom for permission to return to Australia with the children. This latter prediction was based upon her having commenced proceedings of that type in Australia.
It was pointed out that the mother could, if she had serious concerns about the father’s behaviour, apply for protective orders in the United Kingdom including orders that the children spend time with the father under supervision. However, given the nature of the mother’s allegations at [99] his Honour was by necessary implication at least, satisfied that the father’s mode of address to the mother and in the children’s presence would be in accordance with the undertakings which he gave.
His Honour then distinguished the circumstances that would exist in the United Kingdom compared with those postulated by the psychologist. As his Honour correctly pointed out, the psychologist expressed her opinion on the basis that the mother and children would return to live with the father in the marital home which it was clear would not be the case. That particular stressor having been removed his Honour next addressed the risk of the mother being stressed, depressed and anxious. Unlike the psychologist, the primary judge turned his mind to the type of assistance the mother had received in the past and of which she could and would avail herself in the future. Namely, and we observe it is uncontentious, she had previously obtained medical assistance (Dr R) and medication and counselling (Ms S) in the United Kingdom and in Australia to assist her manage her symptoms.
We agree with the submission by senior counsel for the mother that his Honour would appear to have accepted the psychologist’s evidence “… that parental stress has an impact on the children” and that in England the mother would be stressed and anxious. It is also clear that based on the psychologist’s evidence, his Honour was satisfied that the return of the children to England would be likely to have some adverse psychological consequences for them because of the probable effect on them of living with a mother likely to suffer some depression, anxiety and stress.
As we will discuss more fully when we consider ground 2, the psychologist did not say that in the mother’s care in England there was a risk the children would be exposed to psychological harm. In this regard the only clear prediction from the psychologist of them being harmed in this fashion was if they were to be separated from the mother, which it is common ground would not happen.
There can be no doubt, indeed there is no complaint raised in the appeal, that his Honour was satisfied that the psychologist’s report is predicated upon an interplay of facts, including some which are pivotal to her report, but which were not established. For example, that the mother and children would live in the matrimonial home with the father, and that neither the mother nor the father has immediate family support in the UK. We observe it is uncontentious that the mother has family in the United Kingdom, namely, her grandmother, a sister and cousins. As we see it, the mother’s position in England could be better summarised as her not having her preferred family or preferred support network. There was no reference to these people in the psychologist’s report or to the fact that the mother had lived in England, where she had friends, for seven years prior to her removing the children.
In our view the primary judge gave close attention to the evidence adduced from the psychologist and to the weight it should carry. We discern no error of the type raised by ground 3.
It is not correct, to say, as is asserted in ground 6, that the psychologist said or his Honour accepted that the mother “would” suffer escalated symptoms of stress, depression and anxiety if she returned to England. Although we have already referred to this portion of the psychologist’s report, it bears repeating that she said “[the mother] is still in the post-natal period and at high risk of escalated symptoms of stress, depression and anxiety if she is removed from her family and support network” (at [79]). This opinion follows immediately after that part of her report where she demonstrates that this opinion is expressed on the basis that the mother’s only option was to return to her marital home with the father. Nonetheless, his Honour quite properly took into account the type of assistance which would be available to the mother in England but which the psychologist either ignored or overlooked.
Grounds 7 and 8 in essence merely repeat the mother’s complaint that
his Honour gave insufficient weight to the psychologist’s opinion and undue reliance on the availability of assistance for her in the United Kingdom. It is difficult to succeed on weight challenges, and we can see no error in the weight his Honour determined to attach to the psychologist’s opinion concerning the effect of a return order on the mother and children.
The various challenges raised by these grounds are not made out.
Grave risk to the child
By Grounds 1, 2, 5 and 9 it is argued that the primary judge misstated the test applicable to a reg 16(3)(b) “grave risk” defence and, on the basis of various findings of fact that were made his Honour erred in not finding that this defence was established.
The first question to be answered is did the primary judge misstate the test? Having earlier set out reg 16, at [55] the primary judge correctly summarised reg 16(3)(b) as requiring the mother to establish “ … there is a grave risk that the return of the children under the Convention would expose them to physical or psychological harm or otherwise place them in an intolerable situation.”
His Honour then made findings in relation to the evidence relevant to this defence before reference was made at [80] and [82] to the authorities on its meaning and operation. In particular, his Honour referred to DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401 which is a decision by the High Court of Australia and In Re E(Children) (Abduction: Custody Appeal) which is a decision of the Supreme Court of the United Kingdom.
From DP v Commonwealth Central Authority the primary judge extracted passages which explain that a “grave risk” defence requires the court to make some prediction of what may happen if the child is returned. At [42] the plurality in DP v Commonwealth Central Authority said:
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. (emphasis in original)
As to what might constitute a grave risk of exposure to future harm, specific reference was made by his Honour to DP v Commonwealth Central Authority at [45] which is set out below.
That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
Reliant on In Re E at [33] the primary judge correctly proceeded on the basis that the predicted risk “… must have reached such a level of seriousness as to be characterised as ‘grave,’” and, from the same passage that although the word “grave” characterises the risk rather than the harm, “there is in ordinary language a link between the two.” It is useful that we now set out in full that paragraph and the following paragraph of In Re E:
[33] Second, the risk to the child must be 'grave'. It is not enough, as it is in other contexts such as asylum, that the risk be 'real'. It must have reached such a level of seriousness as to be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as 'grave' while a higher level of risk might be required for other less serious forms of harm.
[34] Third, the words 'physical or psychological harm' are not qualified. However, they do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation' (our emphasis). As was said in Re D [2007] 1 All ER 783 at [52], ' "Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate" '. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. [Mr R] accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.
His Honour relied on both DP v Commonwealth Central Authority and In Re E at [34] to make the point that although the words in reg 16(3)(b) “physical or psychological harm” are not qualified they gain colour from the words “or otherwise” placed “in an intolerable situation.”
The primary judge then turned his attention to the children’s circumstances if they were returned to England with the mother. Various possibilities were discussed and, in the light of undertakings proffered by the father, how those undertakings might impact upon their circumstances. As has already been referred to, whereas the mother’s psychologist proceeded on the assumption that the mother and children would live with the father, as a consequence of undertakings from him, the primary judge was satisfied the mother and children would live independently from the father. Nonetheless, and primarily on the basis of the psychologist’s evidence, his Honour was satisfied that even in these circumstances the children would be in the primary care of a “stressed and anxious” mother and that this “would be likely to have some negative effect on the children.” [104]. However, it was likely the mother could avail herself of counselling and medication for depression and anxiety.
On this basis, the primary judge made findings concerning the “grave risk” defence as follows:
105.I accept that on the basis of the evidence before the Court in these proceedings the required return of these children to England would be likely to have some adverse psychological consequences for them because of the likely effect on them of living with a mother who will be likely to suffer from some depression, anxiety and stress. I do not regard any such effect to constitute a grave risk of harm as required by sub-regulation 16(3)(b) of the Regulations. This is because, in my view, conditions will be able to be imposed on the parents to assist the mother and afford protection to the children. These would be in accordance with the undertakings the father has indicated he would be prepared to offer, the undertakings I have referred to and also a condition which would require the mother to make an appropriate application to the English courts as soon as possible for appropriate relief. In the event that the mother might require financial assistance for legal representation for the purpose of such proceedings the mother can address this Court on this matter.
106.In my view, in all the circumstances, the mother has not established the “grave risk” exception in sub-regulation 16(3)(b) of the Regulations.
It is the mother’s contention that in [105] the primary judge in effect determined that the words “grave risk of harm” meant “risk of grave harm”. The use of the words “in effect” are important and reveal that the challenge contained in ground 1 relies on what is said to be the basis of [105] rather than any clear misstatement by the primary judge in his reasons for judgment.
What his Honour actually said was there would probably be “
some adverse psychological consequences” for the children if they were returned to England but that that did not “constitute a grave risk of harm as required by
sub-regulation 16(3)(b)…”. His Honour determined this issue by reference to both the gravity of the risk and whether “some adverse psychological consequences” equated to “psychological harm”. As we will shortly explain, his Honour was correct when he remained unpersuaded there was a grave risk of future harm. It can also be seen that having identified the level of risk and the potential adverse psychological consequences the primary judge then considered how those factors might be further ameliorated through the acceptance of undertakings and the imposition of conditions. In our view, it is apparent from [105] and the passages which immediately precede it that
his Honour undertook an orthodox application of the principles which emerge from DP v Commonwealth Authority and In Re E concerning the construction and application of the ‘grave risk” defence. It follows that this challenge is not made out.By ground 2 it is said that as a consequence of various findings the primary judge fell into error by not coming to the conclusion that there was a risk of the children being exposed to a grave risk of psychological harm. The findings which it is submitted compelled this finding are:
·the mother being stressed and anxious would be likely to have some negative effect on the children [104],
and
·the return of the children to England would be likely to have some adverse psychological consequences for them because of the likely effect on them of living with a mother who will be likely to suffer from some depression, anxiety and stress [105].
We agree with senior counsel for the mother that the primary judge referred at [101] to evidence given by the psychologist which he found was to the effect that if the mother was removed from her family and support network in Australia and she returned to England she would be at high risk of escalated symptoms of stress, depression and anxiety, but his Honour did not go on and find there is a high risk of escalated symptoms of that type. Rather, having analysed at [102] – [104] the circumstances which the mother would face in the United Kingdom, his Honour found the risk was of “some” adverse psychological consequences for the children and “some” depression anxiety and stress suffered by the mother.
In our view, the use of the word “some” properly reflects the gravity of the risk and the nature of “harm” established by the evidence and as found by
his Honour. We cannot agree that the evidence established or that the findings which his Honour made and which underlay this ground compelled a conclusion that the risk to which the children would be exposed on return warranted the quantitative description “grave”.
The focus of ground 5 is on [107] of his Honour’s reasons. There his Honour signalled the approach he would have adopted if his conclusion about the “grave risk” defence was erroneous and, based on the findings which he made, he should have found the risk to be grave. His Honour said:
But if I am wrong about this, then in my view, the “grave risk” could only be at the margin of what the law requires. I would therefore regard it as appropriate to exercise the discretion to order the return of the children to England on the basis of the conditions referred to above.
The argument advanced by senior counsel for the mother is it is not possible to know what his Honour meant by the words “the grave risk could only be at the margin of what the law requires”. In our view, it can be seen in [107] that
his Honour was open to the (highly unlikely) possibility that a differently constituted court might be satisfied that the probability of “some adverse psychological consequences” for the children amounted to a “grave risk”. However, having regard to the elements from which the risk was constructed, he would impose conditions which would reduce the risk to a level lower than one which is grave. These observations at [107] are mere surplusage and do not establish error.
Grounds 1, 2 and 5 have not been established. Senior counsel for the mother conceded that in in the event these challenges failed to find favour, ground 9 must also fail. We agree.
The father’s undertakings
The remaining grounds concern the form and adequacy of the undertakings which the primary judge accepted from the father. Those undertakings have been set out earlier in these reasons. In broad terms the father undertook to:
·provide the mother with occupation of the family home for one month or one month’s rent of up to £1,200 and up to £1,800 by way of rental deposit;
·pay £3,000 to the mother’s solicitor’s trust account in advance of the mother’s return for the purpose of meeting her rental expenses referred to above;
·pay £1,000 maintenance for the first month following the mother’s return, which payment is to be paid into the mother’s solicitor’s account two days prior to her arrival;
·pay for the mother and children’s airline tickets to return;
·pay for and engage in mediation;
·pay child support commencing one month after the children’s return, with the amount to be agreed during mediation;
·discuss shared use of the family car; and
·without admissions, not denigrate the mother.
These undertakings need to be considered in light of evidence provided by
Ms A, who is a solicitor of the Supreme Court of England and Wales, and his Honour’s findings on this topic which are to be found in his reasons published on 28 July 2014, in particular paragraphs [4] – [13]. It can be seen that at [8] Ms A’s evidence that as a returning citizen of the United Kingdom, the mother is eligible to apply for income support, was accepted. As to the particulars of the income support, this would be no more than £400 to £500 per month but, this would also trigger her entitlement to, for example, full housing benefits and make it easier for her to apply for legal aid. In addition, the mother could apply for child support to be paid by the father, which would be likely to be in the vicinity of £650 per month.
At [9], the primary judge appeared to accept Ms A’s evidence as to the availability and nature of housing assistance which, we observe “… can be paid to cover all eligible rent … i.e. rent that the local authority considers is reasonable for her family.” In addition, the mother could apply for accommodation provided by her local authority.
Reference was then made to the evidence concerning the availability of legal aid for the mother in the United Kingdom, and in respect of which it was submitted by the mother that it was far from certain that she would receive any aid. The evidence before his Honour concerning the availability of legal aid was that the mother would need to satisfy a means and merit test to be eligible. In order to meet the merits test, she would need to provide evidence:
·of having obtained an injunction (in relation to domestic violence) in the past two years in relation to [the father’s] behaviour;
·of the police having charged [the father] with harassment or in relation to an offence of violence against [the mother] in the past two years or there is an investigation;
·from a doctor or health professional that [the mother] presented as having suffered health problems as a result of domestic violence or harassment; or
·from an agency that assists victims of domestic violence confirming that [the mother] has presented to them as suffering from the impact of domestic violence.
As the transcript of the proceedings before the primary judge establishes, counsel for the mother argued that the mother was unable to meet these conditions and as a consequence, it was incumbent upon the father to place her in funds so that she could commence proceedings in the United Kingdom. Although his Honour did not specifically rule on this argument, he was satisfied that a return order could be made without the imposition of such a condition.
In McDonald and Director General, Department of Community Services NSW (2006) FLC 93-297 the Full Court addressed the role and application of undertakings and conditions made pursuant to reg 15(1)(c) on an application for a return order. In McDonald the Full Court cited Re M. (Abduction: Undertakings) [1995] 1 FLR 1021 at 1025 where Butler-Sloss LJ explained the role of undertakings. Butler-Sloss LJ said at [27]:
It is perhaps helpful to remind those engaged in Hague Convention applications about the position of undertakings or conditions attached to an Art 12 order to return. Such requirements are to make the return of the children easier and to provide for their necessities, such as a roof over the head, adequate maintenance, etc, until, and only until, the court of habitual residence can become seized of the proceedings brought in that jurisdiction.
We should observe that unlike McDonald or DP v Commonwealth Central Authority, this is not a case where a grave risk of harm was otherwise established. It follows that in making it easier for children in their place of habitual residence, undertakings or conditions should not be imposed which are unnecessary or, rather than give effect to the Abduction Convention, undermine it. We do not accept that it was incumbent on his Honour to require that the father pay the mother’s legal expenses in relation to proceedings she would want to commence on her return. In this regard our approach accords with McDonald. In our view and in light of Ms A’s evidence in particular, his Honour was quite correct to be satisfied that the father’s undertakings are adequate.
Ground 11 challenges the form of undertakings, and complains that the obligations that the father said he would meet “included indefinite promises of possible payment” which he was not obliged to fulfil before the mother and children return to the United Kingdom. As the undertakings themselves make clear, the payment of money is required prior to the mother’s arrival in the United Kingdom. That in turn is reliant upon the return order and the father paying for the mother and children’s flights. There is nothing to which we have been taken which would suggest that the primary judge erred in accepting undertakings from the father or that there was evidence before him that somehow the father’s integrity was impugned and he could not be relied on to do what he said he would.
These grounds have not been established.
The application to adduce further evidence
The evidence sought to be introduced by the mother is a recent (third) report from the mother’s psychologist dated 18 August 2014. It is her evidence that the mother has continued to attend on her and that the mother has been increasingly preoccupied with the fear of being unable to cope should she have to return to the United Kingdom. The psychologist says she has observed a noticeable decline in the mother’s emotional state and that, following the last court hearing (when the return order was made) the mother has increased her medication to help deal with depression, stress and anxiety. She opines that “it may be detrimental to place [the mother] under any further stress” and that moving the mother away from her support network “ … to face a life full of uncertainty on her own is considered a significant risk factor to both, mother and children.” It is her opinion that the father should consider moving to Australia with that arrangement being best for the family.
We have no difficulty accepting that because of the order for the children’s return to the United Kingdom, the mother now feels more depressed, stressed and anxious. However, this evidence is of a similar type to that previously considered by his Honour. Had objection been taken to it, then consistent with the conditions for the admissibility on appeal of evidence of this type as set out in CDJ v VAJ (1998) 197 CLR 172, the evidence would not have been admitted. That being said, in the absence of objection we have admitted and considered this evidence. It does not create a basis for us to intervene in the outcome delivered below.
Conclusion and costs
The mother has failed to establish error by the primary judge and the appeal will be dismissed.
The Central Authority does not seek an order for costs.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ryan & Murphy JJ) delivered on 10 October 2014.
Associate:
Date: 10 October 2014
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