Hays & Department of Communities and Justice [2023] FedCFamC1A 3 (16 January 2023)
This was an appeal of the primary judge’s decision made on 30 September 2022 to return the two children of the relationship to England under the Family Law (Child Abduction Convention) Regulations 1986 on September 30, 2022.
Mr. Hays was the appellant father, while the NSW Department of Communities and Justice (DCJ) and the Independent Children's Lawyer opposed the appeal. The appeal was heard on December 14, 2022, and was ultimately dismissed for reasons to be explained below.
Background
The Australian father and UK-born mother married in 2008 and lived in England with their two children, X (born 2011) and Y (born 2014). The parents separated in 2019 and shared custody until issues arose in August 2020. In September 2020, the father initiated Family Court proceedings in England.
After multiple court orders and complications, the father unilaterally suspended the mother's time with the children in November 2021, after an incident where the youngest child ran away whilst in the mother’s care. In late 2021, the father took the children to Australia without the mother's knowledge. Upon discovering their whereabouts, the mother sought the return of the children under the Hague Convention on the Civil Aspects of International Child Abduction.
The English court ordered the return of the children to England in January 2022, but the father remained in Australia and arranged for the children to see various medical professionals. The English court made final orders in February 2022 for the children to live with the mother in England, with a transition plan pending further consideration.
The father appealed the English Family Court's decision, and a judge stayed the return order.
Some time later in Australia, DCJ filed the Hague Convention application in the Federal Circuit and Family Court of Australia in April 2022. The trial concluded in July 2022, and the judge ordered the return of the children to England on September 30, 2022.
On appeal of the judges were perplexed by the DCJ’s decision to initiate Hague Convention proceedings, as it has delayed the children's return to England for over 12 months and increased the possibility of further appeals.
The Primary Judge’s decision
The primary judge recognized that returning the children to the UK would be difficult and would require a well-thought-out plan supported by relevant professionals. However, the judge concluded that this difficulty did not equate to a grave risk of exposing the children to physical or psychological harm or placing them in an intolerable situation. The primary judge did not find "clear and compelling evidence of grave risk" and based their conclusion on the opinions of expert witnesses.
The judge emphasized that the risks could be mitigated by the involvement of the English court and G Service, as well as the support of the children's father. The primary judge found that the scaffolding provided by these parties would help protect the children from harm or intolerable situations, even if they were temporarily separated or placed in foster care. The judge was satisfied that the UK court and child protection services would be sufficient to mitigate any risks to the children.
Decision on Appeal
On Appeal the Counsel for the Father argued that the primary judge made several errors, including misjudging the risk of harm to the children and underestimating the seriousness of their concerns. The father asserted that returning the children to the UK would expose them to risks of physical and psychological harm and place them in an intolerable situation.
The court emphasized that any continuing risk to the children would be substantially the result of the father's intransigence. Parents should not be able to rely on risks of harm of their own making to resist return orders.
The Court also found that the father's argument that the mother was not exercising her rights of custody was not supported by the evidence. The father's claim that the mother's email on 5 January 2022 implied her consent and acquiescence to the father's sole determination of the children's country of residence was not sustainable. The Court agreed that the primary judge correctly noted that the mother's intention in seeking limited contact with the children was to try and repair her relationship with them, rather than relinquishing her rights of custody.
In summary, the Court was not persuaded that the primary judge erred in the ways contended by the father. Additionally, the court found no evidence to support the idea that returning the children would place them in an intolerable position.
The appeal was dismissed and the father was ordered to pay the Independent Children’s Lawyer costs in the sum of $11,682 within 28 days.
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