T -v- M: High CourtJudgment delivered by Mr Justice John MacMenamin on July 4th, 2008
Judgment
Two children abducted from Australia to Ireland by their mother should return, but not until a number of conditions were met by the applicant father.
Background
This was a case taken under the Hague Convention on child abduction. The applicant is an Australian citizen, who was born in Ethiopia. The respondent is also an Australian citizen, born in Australia of Irish parents.
The couple met in school and entered a relationship when they were 14. Both came from unstable and insecure backgrounds. They began living together in 2000, when they were 16.
The father worked in a factory and the mother first in an office and later in childcare. They had their first child in 2001, when they were 17.
In 2003 they visited Ireland on a working holiday, where their second child was born. In 2004 they returned to Australia.
The mother claimed that the father was actually two years older than stated on his birth certificate, but his mother had entered a later date of birth so that he was eligible to come to Australia with her as a dependent child, under the age of 14. The court made no finding on this issue.
She also claimed that, as she entered the relationship at a young age, the applicant had obtained psychological domination over her, and became violent towards her when she became pregnant. She said he was very possessive and controlling.
In December 2006 the mother's grandmother, who lived in Ireland, fell ill. The mother left Australia with the children to visit her and, during a telephone call to the father on December 31st, said she did not intend to return.
In March 2007 he began proceedings under the Hague Convention to have the children returned.
In August 2007 the mother was ordered to surrender her passport, which she did, and not remove the children from the jurisdiction.
In April 2008 Ms Justice Mary Finlay Geoghegan said the only objection to the order for the return of the children was the mother's defence that the children would be exposed to "physical or psychological harm or otherwise (be placed) in an intolerable situation".
Arrangements were made for the applicant father to be cross-examined in Brisbane via video-link.
Lengthy affidavits were filed detailing various allegations against the father.
Mr Justice MacMenamin said many of these related to issues concerning custody, access or maintenance that fell to be determined in another court.
He stressed that these issues would, if established, have a bearing on the welfare of the children.
They included allegations that the father had been a heroin addict; had been arrested for drug-dealing and possession, violence and vandalism; had habitually handled weapons, including guns; had assaulted a police officer; had been diagnosed as suffering from mental illness; was paranoid; had trained dogs to attack; had denied paternity of the children; and had intimidated, sexually assaulted and otherwise abused the mother, threatening to kill her.
It has also been alleged that he had been abusive, both verbally and physically, towards the children.
These allegations were denied by the father. Evidence relating to the allegations from a number of witnesses who knew the parties was also heard.
A psychologist's report on the mother was produced to the court. It detailed her description of the violence and abuse to which she said she and the children were subjected.
The psychologist commented that she appeared to have had very little emotional support available to her, as her mother returned to live in Ireland when she was 16, leaving her behind in Australia with a new baby.
He said she was afraid to return to Australia because she was afraid she would fall back under the control of the applicant.
The psychologist, Eamon Butler, stated in his report: "The impact of the alleged behaviour on her and her sons clearly suggested that he (the applicant) is an extremely dangerous man whose violence is most likely to continue and, if allowed to do so, would have long-term and possibly fatal consequences for her and the children."
Mr Justice MacMenamin said these views did not represent those of the court. He added that Mr Butler did not appear to have spoken to the children as to their attitude to their father.
Patricia English, a consultant psychologist, examined the older child. She said he had problems with memorisation, concentration and aspects of speech and spatial awareness. Overall results indicated that he was functioning within the mild general learning disability range of cognitive ability.
Ms English did not report on the children's attitude to their father.
The applicant gave evidence relating to undertakings to be given to the court in the event of the children returning to Australia.
On the issue of the financial support that would be available to support the mother and children while awaiting the outcome of proceedings in Australia, he said he was in the business of importing and exporting between Australia and Africa.
He said he was trying to export medicines to China and electronics to Africa.
Mr Justice MacMenamin commented: "While one must be guarded and tentative at this stage, I was unable to form the view that the applicant was engaged in an established business yielding anything like a significant income, or sufficient in itself to support the respondent and the children (even temporarily) in Brisbane, pending a court hearing there."
Decision
Turning to the sole legal issue to be tried, the question of "grave risk" to the children, Mr Justice MacMenamin said the test for grave risk was an extremely high one. In the leading case, AS v PS , the Supreme Court had ordered children to be returned to the jurisdiction of England and Wales even though there was an issue that the father had abused one of them. The purpose of the Hague Convention was to have such issues tried by the courts in the children's place of habitual residence.
There was only one answer to the question as to where the issues that required to be answered so urgently could be dealt with, and that was in the state of Queensland.
While important issues had been raised, no psychological or psychiatric evidence on the key issue of the extent of risk to the children in the context of their father has been addressed, he said. "This omission is surprising in that the welfare of the children is to be a prime consideration."
No corroborating evidence of the mother's allegations from doctors or the Australian police was brought forward.
There was no evidence that the Australian courts would not be able to offer the children the protection required. In all these circumstances he said he had to accede to the application for the children's return, but would have regard to the well-established principles as to undertakings relating to conduct, welfare and support. He said he had formed the strong impression that the applicant had not given sufficient thought to the financial arrangements that would have to be in place for the respondent and the children if she returned to Australia.
He therefore granted a declaration that the respondent had wrongfully removed the children from their place of habitual residence, and an order for their return.
However, he put a stay on this order until there was full compliance from the applicant with his undertakings on paying the air fares of the children; evidence of a timetable of proceedings before the Queensland courts; evidence of suitable accommodation for the mother and children; evidence that she would receive adequate support either from the applicant or the Child Support Agency; and undertakings that he would not molest or disturb the mother or children in any way pending the Australian proceedings.
The full judgment is on www.courts.ie.
Áine Shannon BL, instructed by Seán Cregan, Law Centre, Gardiner Street, for the applicant; Suzanne Boylan BL, instructed by Dundon Callanan, Limerick, for the respondent