Y v Y [2005] TOSC 24; FD YY 2004 (27 June 2005)

IN THE SUPREME COURT OF TONGA
FAMILY JURISDICTION
NUKU’ALOFA REGISTRY

FD YY/04

Y v Y

HEARING IN CHAMBERS AT NUKU’ALOFA
BEFORE CHIEF JUSTICE WEBSTER ON 27 JUNE 2005

Counsel: Applicants: Mr Niu
Respondents: In person
Guardian ad Litem: Ms Fukofuka (Solicitor-General)

This action was raised by the Applicants in December 2004, seeking the return to them in Australia of their children A, a boy aged 7, and B, a girl aged 6. Since late 2003/early 2004 the children have been in Tonga with their paternal grandparents, the Respondents.

This was the hearing of an application by the Applicants (made on 21 June) for an immediate order for the return of the children to Tonga, in terms of Re H (infants) [1965] 3 All ER 906 (ChD); [1966] 1 All ER 886 (CA) without the Court holding a full hearing into the action (see also Halsbury’s Laws (4th Ed) Vol 5(2) para 1007).

I heard oral submissions for both parties and the Guardian ad Litem in support of the written documents, which included affidavits and other documents. With the agreement of the parties I also spoke to the 2 children individually in the presence of the Counsel for the Guardian ad Litem (but outwith the presence of Counsel for their parents and the grandparents) to ascertain their wishes on returning to their parents in Australia.

I also had the benefit of an up-to-date report dated 23 May 2005 on the parents and their home circumstances from the International Social Service, Australian Branch [ISS] in Melbourne. Only since receiving this report has it been feasible to hold this hearing.

It was common ground that the Hague Convention on the Civil Aspects of International Child Abduction is not applicable as Tonga is not a party: see Gorce v Miller [2003] TOSC 50. Although the ISS report referred to the Convention on the Rights of the Child, which has been ratified by both Tonga and Australia, there were no submissions that it is part of the domestic law of Tonga and I do not understand that to be the case.

It is clear from Re H in the Court of Appeal that in such circumstances the Court has jurisdiction to make a full inquiry, if it wishes, into the merits of all the matters in dispute, but is not bound to do so if it is satisfied that the children will come to no harm if it sends them back to their original country. In a later case the same judge (Cross J) held that in general the court should remit the child to the jurisdiction of the court from which he came, unless satisfied beyond reasonable doubt that to do so would inflict serious harm on the child, but there may be special circumstances which oblige the court to decide that the child should be kept in the receiving country: Re E (an infant) [1967] 1 All ER 329 (ChD). However that case referred to the situation where the child had been removed in defiance of an order from the original court and I do not think it is applicable in this case.

I have therefore at this stage not made a full inquiry into the facts and this decision only reflects in general the undisputed facts necessary to reach it.

It was not disputed that in a case such as this the welfare of the children is the paramount consideration for the Court, but it is not the only consideration.

In this case I did not understand it to be disputed that the parents in Australia now wish the children to be returned to Australia, so that in effect they remain in Tonga against the wishes of the parents. But, although it is a factor in the general picture, it is not crucial in this case whether or not the children were "kidnapped", and on the material before me I would not at present find that they were forcibly removed to Tonga.

As mentioned above, I saw the children in private as part of this hearing. The boy A was very fluent and expressed a wish to return to see their parents, also to play with his little brother and to visit his aunts and uncles. When asked how he thought the Respondents would feel if that happened, he thought they would be sad, but then added that “maybe they will just come to Australia and then we can go and visit and stay with them and sleep there”. The girl B, who is only 6, said very little, but did indicate that she would like to go back to Australia. I therefore construed the children’s wishes as being in favour of returning to Australia, but at the same time they said nothing to indicate that they were against being with their grandparents in Tonga. In any event it is difficult to attach great weight to the views of children of that young age, as they may be based on passing considerations without any real idea of the long-term situation.

The male applicant and his parents the Respondents are all Tongan citizens. The female applicant is an Australian citizen. The 2 children A and B were born in Australia and are Australian citizens with Australian passports, but under section 2(b) of the Nationality Act (Cap 59) are also deemed to be Tongan subjects as persons born abroad of a Tongan father who was born in Tonga.

The Applicants have one other child, a boy C now aged 4, who was due to be escorted to Tonga and delivered to the care of the respondent grandparents in May 2004, but that did not proceed. In an authorisation dated 4 May 2004 signed by both Applicants, they stated "C and his siblings will stay with their grandparents until we make future arrangements for their return to us in Australia". That document was witnessed by the Applicants’ GP, who stated that she was satisfied that [the Applicants] understood and agreed with that authorisation.

The male applicant has what can best be described as a formidable criminal record in Australia, with convictions for unlawful assault, recklessly causing injury, making a threat to kill, aggravated burglary, intentionally causing injury and criminal damage over a period from 1997 to 2003. In 2003 he served 3 months of a 6 month sentence of imprisonment, which he says has changed him. He says that he has only one outstanding case at present, for driving without a licence, which is due to be heard in August, but there was no independent verification of that position. Although married to an Australian citizen, he has not achieved permanent resident status in Australia and advised the ISS that he is there on a Criminal Justice Visa. He is unemployed but cares for his wife and receives a weekly Parenting Allowance of approximately $400 (reduced from around $600 since the children A and B came to Tonga).

The female applicant suffers from bipolar affective disorder, for which she is on regular treatment. In a report to ISS dated 17 May 2005, Dr R, Senior Psychiatry Registrar, stated that it was difficult for him to be certain about the prognosis for the female applicant, as current knowledge about the illness indicated that it is a long-lasting illness with relapses in the context of stress or non-compliance with medication, which could happen even when medication is taken regularly. Stress and drug use can complicate the course of illness and often precipitate a relapse. Dr R said that her ability to care for herself and her child can be significantly impaired if she becomes unwell, when she can be a significant risk to her child. Dr R noted that her husband is the primary carer and she showed a dependence on him in performing every day activities like going to the shops and attending appointments, but her recent reviews at the clinic showed that she is well settled and her current mental state is stable. She is also unemployed but receives a weekly Disability Allowance of approximately $210.

The female applicant had a relapse in early February and was admitted as a voluntary patient to a psychiatric unit for a week, during which time her husband had cared for the youngest child C.

The Respondents alleged that in the past the Applicants had alcohol and drug problems. Although this was not specifically established, neither was it specifically denied. The female applicant told ISS that she does not drink, but the male applicant said that although in the past he went out at weekends drinking with friends, he now does not drink on a regular basis. Neither applicant appears to have any drug-related convictions. The female applicant was diagnosed with hepatitis C around 1996.

The GP for the parents and the family reported to ISS that the children were always clean and well-dressed when they attended her surgery and always appear to be well taken care of by their parents. The family attend regularly for medical appointments and the children are up to date with their immunisations. The GP was amazed how well the female applicant was managing, given her mental health issues and believes the family required every assistance to ensure that the children were returned to their care.

The Principal of the school which A attended in 2003 told ISS that no concerns were raised regarding his physical presentation and that he had been well presented, well fed and nurtured. However when concerns about his disruptive behaviour in class had been raised with the Applicants, his teacher had felt threatened and intimidated by the male applicant and they had removed him from the school (though the male applicant denied that).

However it appears that those reports from both these sources related to periods when the grandparents were on hand to supervise the care of the children.

In effect it appears that the Respondents, the grandparents, have been on hand to care for or supervise the care of the children for most of their lives, apart from a short period of a few months when the boy A was taken to New Zealand before he came to Tonga.

One difference between this case and the cases referred to above as authority is that, at the time the children were brought to Tonga and at present, the children were not understood to be subject to any order by a court in Australia, so that if the children are returned to Australia they will not immediately be under the jurisdiction of eg the Family Court in Australia. But, although the Department of Human Services (Child Protection) has no current involvement with the children or their brother C, there had been 3 past notifications to them in December 2000, April 2003 and May 2003 raising concerns about the children's well-being due to parental health concerns and/or the absence of one parent. The Family Court/Children's Court had made one order, an interim accommodation order, which expired when that Court granted the Department's application to withdraw the protection application - the male respondent, the grandfather, said that had been in 2000 and the application had been withdrawn when the Respondents, who at that time lived in Australia very close to the parents, had undertaken to supervise the care of the children. Otherwise the children might have been given to foster parents.

Against all that background the ISS report, while noting that the male applicant’s reported behaviour was a barrier which had the potential to impact on the level of parenting offered to the children, concluded that the Applicants appeared to be providing adequate care for the youngest child C and that the elder children A and B would not be at risk of significant harm were they to be returned to the care of their parents. Its assessment was that the current separation was not necessary for the best interests of A and B. Among the recommendations in the report were that the Applicants should be made aware of support services to assist the children and the family as a whole; and that ISS should be informed if the children are returned so that at least 1 follow-up visit would be made.

Affidavits made this month by the maternal grandparents from South Australia and the maternal grandmother’s sister, also from South Australia, have been presented to the Court. They state that if the male applicant is sentenced to imprisonment or deported to Tonga they are prepared and willing, and undertake, to take the female applicant and the 3 children into their care and look after them. That is rather different from the female applicant’s statutory declaration in 2002 that her own family had failed to play the same role as the male applicant’s family, which was supported by the male respondent’s submissions. However, I am prepared to accept that matters may now have moved on and to take these undertakings at face value as a possible avenue for care of the children in Australia if things take a turn for the worse.

It is a well recognised principle that, other things being equal and if at all possible, children are best to be with their natural parents and with their siblings. I accept the submission for the Guardian ad Litem that it is a long time from late 2003/early 2004 - around 18 months - for young children of 6 and 7 to be separated from their natural parents and their young brother.

I also believe that stability, both day-to-day and long-term, is an important factor in the lives of children.

The male respondent submitted that the Applicants were not normal parents and that the Respondents had thought of keeping the children until they reached high school age and were more able to take care of themselves. But while that is a valid point of view, I feel that would be an unnecessarily long separation for the children from their parents. On the other hand, although the Respondents had lived in Australia and for 20 years and have only been back in Tonga for a year and a half, the male respondent did not completely rule out the possibility of returning to Australia if circumstances.

Mr Niu made submissions about Australian courts being a more convenient forum for settling any disputes about custody of the children, as otherwise many people would have to come to Tonga to give evidence. That may be so, but equally a hearing in an Australian court is likely to be inconvenient for the Respondents. In any event Halsbury indicates that the concept of forum conveniens has no place in the wardship jurisdiction: Vol 5(2) para 1007.

The applicable test is therefore the best interests of the children, but the Court can order the return of the children to their original country of residence without a full inquiry into the facts if it is satisfied on the balance of probabilities that the children would come to no harm if it does so.

In this case I find that it is in the best interests of the children A and B to be re-united now with their parents the Applicants and their younger brother C. This is in principle desirable. Their home has been with their parents throughout their lives up until 18 months ago, they are Australian citizens, and their home and schooling has been in Australia until 18 months ago. Both are still very young and they wish to go back to their parents. I hope this will give them more stability in their lives by stopping the confrontational situation, where their parents are fighting their grandparents for the custody, with the children caught in the middle.

I consider it would be against the basic principle of the children's welfare being paramount to refuse this application by their parents, as it is not realistic or reasonable to consider depriving the children of life with their parents and younger brother - and that is the way the Court has to look at it - up to high school age, as envisaged by the grandparents.

I take this view even although it is clear from the reports by the Guardian ad Litem that the children are well settled and happy with their grandparents in Tonga and are being well cared for and provided with a good education here.

There are certainly factors indicating that the children might be at risk on return to Australia: their father's convictions for violence, including imprisonment; and their mother's mental health condition. I have considered these anxiously, but weighing up all the factors I have come to the conclusion that there is no objective evidence that the children or their younger brother have actually suffered violence or harm, even although 5 years ago they came under the Family Court/Children's Court in Melbourne. Both the family GP and A’s school said the children appeared well cared for. There has been no evidence that the youngest child C has suffered any harm, even in the last 18 months in the absence of his grandparents the Respondents here in Tonga. There is a positive recommendation from the ISS social worker who has seen the parents within the last few months.

Therefore provided appropriate safeguards are put in place, I have considered the issue long and hard and I am satisfied on the balance of probabilities that the children are unlikely to come to actual harm with their parents in Australia. I do not consider that all these circumstances amount to special circumstances for ordering the retention of the children in Tonga. I therefore find that it is not necessary at this stage to hold a full inquiry and that in principle I should order the return of the children to their parents the Applicants in Australia.

But as I explained during the hearing I want my order to be supplemented if possible with a request to the Family Court in Melbourne to take up again the case of the children in view of their return; and with a request to the ISS and/or DHS in Melbourne to carry out at least one follow-up visit at an appropriate time. I also believe that the procedure for the children’s return needs to be planned carefully to avoid any confrontation between the parties and to ensure that the children are returned safely to Melbourne.

I have made my decision now so that, if either party wishes to appeal it, they can do so within the next week in time for the forthcoming Court of Appeal Session from 11 to 22 July. For that reason I consider it will be appropriate that my order does not come into effect until around 22 July or after.

These matters can be discussed and finalised once I have given this decision.

In this respect I have doubts about the suggestion in the application that the female applicant should come by herself to Tonga to collect the children. Given the information about her mental health in the ISS report, I would be concerned whether she could cope with such a mission in the absence of her husband, especially as she may suffer a relapse under stress. Perhaps her mother or aunt may be able to accompany her.

I have to add that this decision is in no way a criticism of the Respondent grandparents. On the contrary, it appears that they have acted with a great sense of responsibility and have devoted an enormous amount of time and effort to assisting the Applicants in the upbringing of the children A and B over the last 7 years. It does not appear that the grandparents’ contribution is properly appreciated by the Applicants, but it appears to me that in reality the Applicants owe the Respondents a deep debt of gratitude for all that. I believe the children are attached to their paternal grandparents and there is no objection to my adding an order for reasonable access to the Respondents to A and B by mutual arrangement with the Applicants.

R M Webster
Chief Justice