CASE

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Case Name

Harris v. Harris [2010] FamCAFC 221, (2010) FLC 93-454

INCADAT reference

HC/E/AU 1119

Court

Country

AUSTRALIA

Name

Family Court of Australia

Level

Appellate Court

Judge(s)
Bryant CJ, Finn and Boland JJ.

States involved

Requesting State

NORWAY

Requested State

AUSTRALIA

Decision

Date

5 November 2010

Status

Final

Grounds

Grave Risk - Art. 13(1)(b) | Undertakings | Role of the Central Authorities - Arts 6 - 10 | Procedural Matters

Order

Appeal dismissed, return refused

HC article(s) Considered

13(1)(b)

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to
Beazley v. McBarron [2009] NZHC 37; C. v. C. (Minor: Abduction: Rights of Custody) [1989] 2 All ER 465; C.D.J. v. V.A.J. (1998) 197 CLR 172; Central Authority v. Houwert [2007] ZASCA 88; [2007] SCA 88 (RSA); De L. v. Director-General, New South Wales Department of Community Services (1996) 187 CLR 640; De Lewinski and Legal Aid Commission of New South Wales v. Director-General, New South Wales Department of Community Services (1997) (1997) FLC 92-737; Department of Community Services & Frampton (2007) FLC 93-340; Director-General NSW Department of Community Services & JLM (2001) FLC 93-090; D.P. v. Commonwealth Central Authority (2001) 206 CLR 401; Laing v. Central Authority (1999) 151 FLR 416; 24 Fam LR 555; (1999) FLC 92-849; McDonald & Director-General, Department of Community Services (NSW) (2006) FLC 93-297; Murray v. Director of Family Services ACT (1993) FLC 92-416; M.W. v. Director-General, Dept of Community Services (2008) 39 Fam LR 1; Panayotides v. Panayotides (1997) FLC 92-733; Pennello v. Pennello [2003] ZASCA 147; [2004] 1 All SA 32 (SCA); Quarmby & Anor v. Director-General, Department of Community Services (NSW) (2005) 34 Fam LR 8; Re F. (A Minor: Abduction: Rights of Custody Abroad) (1995) 3 All ER 641; Re F. (Hague Convention: Child's Objections) (2006) FLC 93-277; T.B. v. J.B. (Abduction: grave risk of harm) [2001] 2 FLR 515; Warren v. Coombes (1979) 142 CLR 531; Zafiropoulos & The Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264.

INCADAT comment

Exceptions to Return

Grave Risk of Harm
Australian and New Zealand Case Law
Economic Factors

Implementation & Application Issues

Measures to Facilitate the Return of Children
Undertakings

SUMMARY

Summary available in EN | FR

Facts

The application concerned a child born in 2007 in Norway to an Australian mother and a Norwegian father. The parents had married in Australia in November 2006 and moved to Norway in December 2006. Except for holidays in Australia, this is where they lived until the child's removal in November 2008.

The marriage was characterised by domestic violence. On 27 November 2008 the mother left Norway with the child without the father's knowledge and travelled to Australia. The father applied for the return of the child on 19 March 2009.

Ruling

Removal wrongful and return refused; Article 13(1)(b) had been proved to the standard required under the Convention.

Grounds

Grave Risk - Art. 13(1)(b)

The mother alleged various incidents of physical and verbal abuse commencing in February 2006. These included being punched in the face, jabbed in the eye, pushed against a wall and strangled. As a result of the father's violence, she broke her arm twice and experienced haematoma on her arm and around her eye. During a telephone conversation in December 2008 the father threatened to kill the mother, the child and her parents.

The Court accepted the trial judge's findings of abuse except for the mother's allegation that the father attempted to strangle her. This was based on hearsay evidence from a worker at the crisis centre which the mother attended. The trial judge was wrong to attach "reasonable weight" to this unsworn statement. However, the inclusion of this incident in the trial judge's findings of fact did not undermine her overall conclusion that the father had verbally and physically abused the mother.

The Court criticised the trial judge for conflating the risk of psychological harm and the risk of physical harm to the child. The trial judge had rejected the mother's allegation that the father had physically harmed the child but determined that violence against the mother in earshot of the child was sufficient to cause a grave risk of psychological harm. Her conclusion that returning the child to Norway would expose him to a grave risk of physical and psychological harm was therefore unsafe.

Notwithstanding the Court's concerns, it accepted the trial judge's finding that returning the child to Norway would place him in an intolerable situation. The mother would be in a financially precarious position in Norway. She would not be entitled to social security benefits and any earnings based on her past employment would be unlikely to meet the shortfall between her housing and other costs and the child support provided by the father.

Furthermore, she would be without emotional support, isolated and fearful of the father's violence following his threat to kill her. In addition, the Court regarded the decision of the State Central Authority not to appeal as persuasive. As the child was dependent on the mother for all his needs, a return to Norway would place him in an intolerable situation.

Undertakings

The Court accepted the conclusion of the trial judge that no undertakings would be sufficient to mitigate the vulnerability and financial hardship of the mother and thus prevent the child being placed in an intolerable situation on his return to Norway.

Role of the Central Authorities - Arts 6 - 10

Australia was the only Contracting State where the Central Authority applied as the applicant. Hence the father was not a party to the proceedings at first instance, the application being made by the Central Authority. However, the Central Authority declined to appeal against the decision. As a result, the father brought the appeal in his own name.

Procedural Matters

The father alleged that he had been denied procedural fairness before the trial judge because, without his knowledge or consent, the proceedings had been conducted 'on the papers' and without any cross-examination.

The Court accepted that the father had received initially misleading and perhaps deficient information from the Commonwealth Central Authority but was not satisfied that the advice received, taken as a whole, denied him procedural fairness. An e-mail from the Central Authority's counsel clarified what otherwise might have been misleading.

There was no obligation on a trial judge to go beyond the case presented by the father and to require evidence that he was aware that, if independently represented, he may instruct counsel to seek cross-examination of the party opposing return.

Counsel for the Central Authority made it clear in an e-mail to the father that the case would be conducted "on the papers" and that cross-examination of the mother was unlikely to cause her to depart from her evidence. The decision not to cross-examine the evidence of the parents was made by both counsels and could have been overruled by the trial judge, had she thought it essential.

Authors of the summary: Jamie Yule & Peter McEleavy

INCADAT comment

Australian and New Zealand Case Law

Australia
In Australia a very strict approach was adopted initially with regard to Article 13(1) b), see:

Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT cite: HC/E/AU @294@];

Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT cite: HC/E/AU @293@].

However, following the judgment of the High Court in the joint appeals:

D.P. v. Commonwealth Central Authority; J.L.M. v. Director-General, New South Wales Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081), [INCADAT cite HC/E/AU @346@, @347@], where a literal interpretation of the exception was advocated, greater attention has now been focused on the risk to the child and the post return situation. 

In the context of a primary carer abducting parent refusing to return to the child's State of habitual residence, see:

Director General, Department of Families v. R.S.P. [2003] FamCA 623, [INCADAT cite HC/E/AU @544@].

With regard to a child facing a grave risk of psychological harm see:

J.M.B. and Ors & Secretary, Attorney-General's Department [2006] FamCA 59, [INCADAT cite HC/E/AU 871].

For recent examples of cases where the grave risk of harm exception was rejected see:

H.Z. v. State Central Authority [2006] FamCA 466, [INCADAT cite HC/E/AU 876];

State Central Authority v. Keenan [2004] FamCA 724, [INCADAT cite HC/E/AU @782@].

New Zealand
Appellate authority initially indicated that the change in emphasis adopted in Australia with regard to Article 13(1) b) would be followed in New Zealand also, see:

El Sayed v. Secretary for Justice, [2003] 1 NZLR 349, [INCADAT cite: HC/E/NZ 495].

However, in the more recent decision: K.S. v. L.S. [2003] 3 NZLR 837 [INCADAT cite: HC/E/NZ 770] the High Court of New Zealand (Auckland) has affirmed, albeit obiter, that the binding interpretation in New Zealand remained the strict interpretation given by the Court of Appeal in:

Anderson v. Central Authority for New Zealand [1996] 2 NZLR 517 (CA), [INCADAT cite: HC/E/NZ 90].

Economic Factors

Article 13(1)(b) and Economic Factors

There are many examples, from a broad range of Contracting States, where courts have declined to uphold the Article 13(1)(b) exception where it has been argued that the taking parent (and hence the children) would be placed in a difficult financial situation were a return order to be made.

Australia
Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT Reference: HC/E/AU 293]

The fact that the mother could not accompany the child to England for financial reasons or otherwise was no reason for non-compliance with the clear obligation that rests upon the Australian courts under the terms of the Convention.

Canada
Y.D. v. J.B. [1996] R.D.F. 753 (Que. C.A.) [INCADAT Reference: HC/E/CA 369]

Financial weakness was not a valid reason for refusing to return a child. The Court stated: "The signatories to the Convention did not have in mind the protection of children of well-off parents only, leaving exposed and incapable of applying for the return of a wrongfully removed child the parent without wealth whose child was so abducted."

France
CA Lyon, 19 septembre 2011, No de RG 11/02919 [INCADAT Reference: HC/E/FR 1168]

The existence of more favourable living conditions in France could not be taken into consideration.

Germany
7 UF 39/99, Oberlandesgericht Bamberg [INCADAT Reference: HC/E/DE 821]

New Zealand
K.M.A. v. Secretary for Justice [2007] NZFLR 891 [INCADAT Reference: HC/E/NZ 1118]

Financial hardship was not proven on the facts; moreover, the Court of Appeal considered it most unlikely that the Australian authorities would not provide some form of special financial and legal assistance, if required.

United Kingdom - England and Wales
In early case law, the Court of Appeal repeatedly rejected arguments that economic factors could justify finding the existence of an intolerable situation for the purposes of Article 13(1)(b).

Re A. (Minors) (Abduction: Custody Rights) [1992] Fam 106 [INCADAT Reference: HC/E/UKe 48]

In this case, the court decided that dependency on State benefits cannot be said in itself to constitute an intolerable situation.

B. v. B. (Abduction: Custody Rights) [1993] Fam 32, [1993] 2 All ER 144, [1993] 1 FLR 238, [1993] Fam Law 198 [INCADAT Reference: HC/E/UKe 10]

In this case, it was said that inadequate housing / financial circumstances did not prevent return.

Re M. (Abduction: Undertakings) [1995] 1 FLR 1021 [INCADAT Reference: HC/E/UKe 20]

The Court suggested that the exception might be established were young children to be left homeless, and without recourse to State benefits. However, to be dependent on Israeli State benefits, or English State benefits, could not be said to constitute an intolerable situation.

United Kingdom - Scotland
Starr v. Starr, 1999 SLT 335 [INCADAT Reference: HC/E/UKs 195]

IGR, Petitioner [2011] CSOH 208  [INCADAT Reference: HC/E/UKs 1154]

Switzerland
5A_285/2007/frs, IIe Cour de droit civil, arrêt du TF du 16 août 2007 [INCADAT Reference: HC/E/CH 955]

Zimbabwe
Secretary For Justice v. Parker 1999 (2) ZLR 400 (H) [INCADAT Reference: HC/E/ZW 340]

There are some examples where courts have placed emphasis on the financial circumstances (or accommodation arrangements) that a child / abductor would face, in deciding whether or not to make a return order:

Australia
Harris v. Harris [2010] FamCAFC 221 [INCADAT Reference: HC/E/AU 1119]

The financially precarious position in which the mother would find herself were a return order to be made was a relevant consideration in the making of a non-return order.

France
CA Paris, 13 avril 2012, No de RG 12/0617 [INCADAT Reference : HC/E/FR 1189]

In this case, inadequate housing was a relevant factor in the consideration of a non-return order.

Netherlands
De directie Preventie, optredend voor zichzelf en namens Y (de vader /the father) against X (de moeder/ the mother) (7 February 2001, ELRO nr.AA9851 Zaaknr:813-H-00) [INCADAT Reference: HC/E/NL 314]

In this case, financial circumstances were a relevant factor in the consideration of a non-return order.

United Kingdom - Scotland
C. v. C. 2003 S.L.T. 793 [INCADAT Reference : HC/E/UKs 998]

An example where financial circumstances did lead to a non-return order being made.

A, Petitioner [2011] CSOH 215, 2012 S.L.T. 370 [INCADAT Reference: HC/E/UKs 1153]

In this case, adequate accommodation and financial support were relevant factors in the consideration of a non-return order.

European Court of Human Rights (ECrtHR)
Šneersone and Kampanella v. Italy (Application No 14737/09) [INCADAT Reference: HC/E/ 1152]

The ECrtHR, in finding that there had been a breach of Article 8 of the European Convention on Human Rights (ECHR) in the return of a child from Latvia to Italy, noted that the Italian courts exercising their powers under the Brussels IIa Regulation, had overlooked the fact that it was not financially viable for the mother to return with the child: she spoke no Italian and was virtually unemployable.

(Author: Peter McEleavy, April 2013)

Undertakings

Preparation of INCADAT case law analysis in progress.