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CASE

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Case Name

State Central Authority, Secretary to the Department of Human Services v. Mander [2003] FamCA 1128

INCADAT reference

HC/E/AU 574

Court

Country

AUSTRALIA

Name

Family Court of Australia

Level

First Instance

Judge(s)
Kay J.

States involved

Requesting State

UNITED KINGDOM - ENGLAND AND WALES

Requested State

AUSTRALIA

Decision

Date

17 September 2003

Status

Final

Grounds

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

Order

Return refused

HC article(s) Considered

13(1)(b)

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to
Family Law (Child Abduction) Regulations 1986 (Cth), reg 16(3)(b); Re B. (A Minor) (Abduction) (1994) 2 FLR 249; Brooke v. Director-General of Community Services [2002] FamCA 259; Re H. (Abduction: Rights of Custody) (2001) FLR 374; Re W.; Re B (Child Abduction: Unmarried Father) (1998) 2 FLR 146; D.L. v. Director-General New South Wales Department of Community Services (1996) 187 CLR 640; (1996) FLC 92-706, (1996) 20 Fam LR 390; T.B. v J.B. (Abduction: Grave Risk of Harm) (2001) 2 FLR 515; 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; Murray v. Director of Family Services ACT (1993) FLC 92-416, (1993) 16 Fam LR 982; Gsponer v. Director General, Department Community Services Victoria (1989) FLC 92-001; (1988) 12 Fam LR 755; Re F. (minor: abduction: rights of custody abroad) (1995) 3 All ER 641; Re M. (Abduction: Leave to Appeal) [1999] 2 FLR 550; Pollastro v. Pollastro (1999) 171 DLR (4th) 32; Walsh v. Walsh 221 F.3d 204; W. v. W. (Child Abduction: acquiescence) [1993] 2 FLR 211; Blondin v. Dubois 19 F. 3d 240; Turner v. Fowein 253 Conn. 312 (2000); Thompson v. Thompson [1994] 3 S.C.R. 551; M. Weiner, International Child Abduction and the Escape from Domestic Violence (2000) Fordham Law Review ; M. Kaye, The Hague Convention and the Flight From Domestic Violence: how women and children are being restitutioned by coach and four, (1999) IJLPF 13 191-212; Australian Law Commission, Equality Before The Law, ALRC 69 Part IV Violence Against Women, Violence and Family Law, paragraphs 9.39 to 9.46.
Published in
http://www.hcch.net/incadat/fullcase/0574.htm

INCADAT comment

Exceptions to Return

Grave Risk of Harm
Australian and New Zealand Case Law
General Issues
Discretionary Nature of Article 13
Limited Nature of the Exceptions

SUMMARY

Summary available in EN | FR | ES

Facts

The children, a boy and a girl, were aged 6 and 2 respectively at the date of the alleged wrongful removal. They had until then spent all of their lives in England. The parents were not married. The relationship was characterised by acts of violence and periods of separation. It was subsequently accepted by the trial judge in the return proceedings that there had been a "significant amount of violence between the parties", and that for years this "sporadic violence had taken place in front of the children".

The violence was probably (though no ultimate finding was made) at the instigation of the father. On 22 October 2002 the mother took the children, together with a half sibling from an earlier relationship, to Australia. The father of the boy and girl petitioned for their return.

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 trial judge examined the factual scenarios and outcomes in several cases including Walsh, Pollastro, Re F., and Murray, and concluded that there was not the same level of violence or intensity of threats in the present case. Nevertheless there was a common sub-theme of an ongoing and chronic situation with the children living in fear and being constantly on the move without any form of security. The parent's relationship in the present case had necessitated constant court proceedings and the regular invocation of criminal sanctions. In such circumstances, and given the common substratum of facts emerging from each side’s story, a grave risk of harm arose as a result of the history of the relationship. A return to England would most likely lead to a continuation of the problems that had dogged the children during their lives in England. Having found that a grave risk of harm existed the trial judge turned to the exercise of his discretion. He noted that whilst the English legal system provided ample legal protection and the English police and social services excellent care for “battered women” the reality of life for the children was that the presence of the mother and the father in the same country at the same time would inevitably to lead to further incidents of violence. He noted that “[i]t is clear that the existence of court orders and criminal sanctions has not abated the degree of violence”, such that the Court was “satisfied of the existence of a grave risk of harm in this case”. The return of the children was therefore refused. The return of the children was therefore refused.

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].

Discretionary Nature of Article 13

The drafting of Article 13 makes clear that where one of the constituent exceptions is established to the standard required by the Convention, the making of a non-return order is not inevitable, rather the court seised of the return petition has a discretion whether or not to make a non-return order.

The most extensive recent overview of the exercise of the discretion to return in child abduction cases has come in the decision of the supreme United Kingdom jurisdiction, the House of Lords, in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT cite: HC/E/UKe 937].

In that case Baroness Hale affirmed that it would be wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which a return might be refused were themselves exceptions to the general rule. It was neither necessary nor desirable to import an additional gloss into the Convention.

The manner in which the discretion would be exercised would differ depending on the facts of the case; general policy considerations, including not only the swift return of abducted children, but also comity between Contracting States, mutual respect for judicial processes and deterrence of abductions, had to be weighed against the interests of the child in the individual case. A court would be entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. Sometimes Convention objectives would be given more weight than the other considerations and sometimes they would not.

The discretionary nature of the exceptions is seen most commonly within the context of Article 13(2) - objections of a mature child - but there are equally examples of return orders being granted notwithstanding other exceptions being established.


Consent

Australia
Kilah & Director-General, Department of Community Services [2008] FamCAFC 81 [INCADAT cite: HC/E/AU 995];

United Kingdom - England & Wales
Re D. (Abduction: Discretionary Return) [2000] 1 FLR 24 [INCADAT cite: HC/E/UKe 267].


Acquiescence

New Zealand
U. v. D. [2002] NZFLR 529 [INCADAT Cite: HC/E/NZ @472@].


Grave Risk

New Zealand
McL. v. McL., 12/04/2001, transcript, Family Court at Christchurch (New Zealand) [INCADAT Cite: HC/E/NZ @538@].

It may be noted that in the English appeal Re D. (Abduction: Rights of Custody) [2006] UKHL 51; [2007] 1 AC 619 [INCADAT cite: HC/E/ UKe @880@] Baroness Hale held that it was inconceivable that a child might be returned where a grave risk of harm was found to exist.

Limited Nature of the Exceptions

Preparation of INCADAT case law analysis in progress.