EN | FR | ES

Recherche de décisions

Nouvelle recherche

AFFAIRE

Télécharger le texte complet EN

Nom de l'affaire

J.M.B. and Ors & Secretary, Attorney-General's Department [2006] FamCA 59, (2006) FLC 252; (2006) 35 Fam LR 401

Référence INCADAT

HC/E/AU 871

Juridiction

Pays

Australie

Nom

Full Court of the Family Court of Australia at Melbourne (Australie)

Degré

Deuxième Instance

États concernés

État requérant

Nouvelle-Zélande

État requis

Australie

Décision

Date

16 February 2006

Statut

Définitif

Motifs

Risque grave - art. 13(1)(b)

Décision

-

Article(s) de la Convention visé(s)

13(1)(b) 13(2)

Article(s) de la Convention visé(s) par le dispositif

13(1)(b)

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

Publiée dans

-

INCADAT commentaire

Exceptions au retour

Risque grave de danger
Jurisprudence australienne et néo-zélandaise

RÉSUMÉ

Résumé disponible en EN | FR

Facts

The application related to a child born in 1997. He was raised in New Zealand. The parents were separated. In March 2000 a New Zealand District Court ordered that the child reside with the mother and have regular contact with the father. Neither parent was to remove the child out of the jurisdiction without the agreement of the other. In 2001 the parents agreed that the child would live with the father and have contact with the mother.

The mother had regular contact, but during 2005 this was limited to telephone contact. In June 2005 the father asked to take the child to Tasmania (Australia) as he had contracted a terminal disease and he wished to return to his home country. The mother agreed.

On 11 July the father died in Tasmania. Prior to and following the father's death the child was cared for by the paternal grandparents and a paternal aunt. The mother petitioned for the return of the child. On 4 November the Family Court of Australia ordered the return of the child. The paternal grandparents and aunt appealed.

Ruling

Appeal allowed and case remitted to the Family Court of Australia for adjudication; the trial judge had erred in rejecting the Article 13(1)(b) exception without paying sufficient regard to the expert evidence on the matter.

Grounds

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

The trial judge concluded there was a risk that the return of the child would expose the child to psychological harm and place him in an intolerable situation. The trial judge ruled though that such risks could only be 'grave' if: 1. There was no procedure by which the respondents could seek appropriate orders from New Zealand to guard against that risk; or 2. The respondents were unable to, or would not seek those orders in New Zealand; or 3. The mother was unlikely to abide by those orders which might be made. He found that none of those conditions had been established. The Full Court noted that in the leading Australian judgment DP v. Commonwealth Central Authority; JLM v. Director-General NSW Department of Community Services [2001] HCA 39 [INCADAT cite: HC/E/AU 347], the majority of the High Court panel did not refer to the three matters to which the trial Judge referred as relevant to the assessment of the gravity of the relevant risks. Following the position adopted by the High Court majority, the Full Court held that to give Article 13(1)(b), as implemented into Australian law, the meaning its words required, would seem, in cases involving risk of psychological harm, to focus attention on the evidence relative to the risk itself, or, in the present case, the existence of psychological risk having been found, the gravity of the risk. That would appear to involve an assessment of the evidence, with particular reference to the child, of the risk itself. That being so it was therefore difficult to see how any of the matters referred to by the trial Judge would reduce, or impact upon, the gravity of the risk in this case. The Full Court accepted there was force in the submission that on the trial judge's test it would be difficult to see how Article 13(1)(b) could ever be made out in a case concerning psychological, but not physical harm. The Full Court held that where the exercise of judicial discretion was concerned, the matters highlighted by the trial judge could be relevant to the issue of “grave risk” in cases involving the risk of physical harm. However the Court expressed doubt as to whether those matters could properly impact upon the trial Judge’s determination of the gravity of the psychological risk which he found to be inherent in the child returning to New Zealand. Without deciding the matter the Court suggested that to impose on the present appellants the onus of establishing the three matters to which the trial judge referred, or any of them, may have been to adopt an impermissibly narrow interpretation of the provision and to fail to give the meaning its words required to the exception. The Full Court did not reach a final view view on the matter for it decided and allowed the appeal on the basis that the trial judge had failed to give sufficient weight to the expert evidence in reaching his findings.

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].