High court case – R v R

The background of the case is as follows: In 2013, the parties separated. At the time they were living in Western Australia and had three children. On October 2014, the mother applied to the Australian Family Court for an interim violence restraining order against the father. On being served the father filed a notice of defence. In January 2015, both parties were present in a court in Western Australia. The father raised an issue of contact with the children. The Magistrate attempted to reach an agreement from both parties with no success. There was to be a hearing regarding the restraining order proceedings in April 2015. In February 2015, the mother and the children left Australia for New Zealand. The father found out about this in March 2015 from a third party, when on attempting to serve proceedings it was found that the Mother and children had left for New Zealand. In July 2015, the father filed an application with the Family Court in Timaru seeking the return of the children to Australia under the terms of the Hague Convention and the associated provisions of the Care of Children Act 2004. On the 30th of September, Judge Turner in the Family Court released a decision that the mother had wrongfully removed the children from Australia and made orders under the Convention provisions of the Care of Children Act, for their return to that country.

The mother sought to appeal that decision in this case.

The parties and their claims

In this case there are three main parties that were involved in the appeal on deciding whether the children should be returned back to Australia. They are: the mother, the father and their oldest child – W. The crux of the mother’s argument against the children’s return to Australia was on the grounds that there would be serious risk that children’s return:

• Would expose the children to physical or psychological harm; or
• Would otherwise place the children in an intolerable situation

As Judge Turner summarised, the mother’s case was:

“…She specifically alleges that she and the children, (W) in particular, were subjected to physical and psychological abuse by the father….In discussions with lawyer for the children and myself, (W) referred to his father hitting him with a baseball bat, tasering him and breaking his arm”.

Details of original judgment

The Judge, although concerned about the seriousness of the allegations concluded that the mother had not established, on balance, that the children would be exposed to a grave risk of harm or an intolerable situation if they were returned to Australia. In reaching that decision he referred to a number of matters listed below:

• The father’s denial of the allegations;
• Although the mother had obtained interim violence restraining orders, none of them had proceeded to a hearing where a Judge had determined the accuracy of the allegations;
• There was no material to substantiate her claims, such as school records to explain W’s absence or an x-ray to establish his claimed broken arm;
• The fact that Australia has a number of social services and agencies in place to protect both the mother and the children;
• No evidence that the father has a criminal record or that he has ever been arrested or charged over the incidents the mother has alleged against him.

Do the children’s views matter?

The mother put forward that the children themselves objected to being returned and had each attained an age and degree of maturity at which it was appropriate to take their views into account. That it was appropriate to give weight to the children’s views.

Referring to authority the Judge said that there is a four-step process involved regarding taking the children’s views into account. They are:

• Does the child object to return? If so;
• Has the child obtained an age and maturity at which it is appropriate to give weight to the child’s views
• What weight should be given to the child’s views? And;
• How should the residual statutory discretion be exercised?

As with all legal tests, it must be taken into account the particular individual, environment and circumstances. The Judge followed this process and stated that:

• Each of the three children had expressed a clear objection to returning to Australia.
• He then considered particular information relating to each child, including what he had learnt from his own discussions with each of them and decided, with respect of each child individually that that they were not of an age and maturity that it would be appropriate to take that child’s views into account.
• He concluded that little weight could be given to their respective objections.

The test of maturity

This is not based on a number. In other words there is no “magic number” or age that children have to be before they are considered to be mature in the eyes of the court and therefore their opinion will carry more weight. It is based on very careful assessment of the child in question. How they interact with their peers, at home, in school and how they handle the questions being put to them by court officials and/or government agencies.

Grave risk vs Risk

This case contained within it very serious allegations against the father, particularly by the oldest child W. It was maintained that because the abuse allegations were so severe that the grave risk threshold was met and therefore the children should not be allowed to return to Australia. In particular the allegations were that W claimed that his father tasered him and broke his arm and on a separate occasion whacked him over the legs with a wooden baseball bat. That on numerous occasions W had seen his father assault his mother as well as his fellow siblings. W claimed that on the occasion where his father broke his arm he did not allow him to seek medical treatment, instead he ordered a make shift cast online and made him stay at home from school. Although the Judge remarked that these allegations were indeed serious, he noted that the evidence was too inconsistent to determine whether there was a grave risk. In particular, school records were checked regarding W’s absence and it was found that he had hardly any unexplained absences at all. Also, when interviewed further regarding the taser W would talk about being tasered but not about his arm being broken. It was very difficult to determine whether he was recalling the incident or being coaxed by those around him. The father also denied even owning a taser and denied allegations of tasering W. As Nation J stated in his judgment the issue in this case is whether or not the children should be returned to Australia, not whether they should be returned to Australia to be in the care of their father.

Judgment on grave risk defence

As stated by Butler-Sloss LJ in the English Court of Appeal:

“If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied on by every mother of a young child who removed him from out of the jurisdiction and refused to return. It would drive a coach and four through the Convention…nor should the mother, by her own actions, succeed in preventing the return of the child who should be living in his own country and deny him contact with his other parent”.

Opinion

The grave risk defence threshold is extremely high and therefore difficult to prove and succeed in. The Hague Convention is an international Treaty and it is weighted very heavily by the Courts when deciding whether or not a child should be returned back to their residing country. This is because countries in the Hague Convention have authorities in place to protect children and as such it should be up to the courts of the country where the children reside to decide whether or not there is a grave risk in living with the parent alleged of the abuse.

Conclusion

The Hague Convention was upheld with the appeal being dismissed and the original order that the children be returned to Australia remain.

If you are in a situation similar to the above case, or you feel that this could potentially happen to your children then please contact us at Jeremy Sutton Barrister. We have experience in these cases and we will talk to you about your concerns. Contact us today for an initial consultation.