FAMILY LAW ACT 1976
IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. BR 5717 of 2002
BETWEEN: DIRECTOR GENERAL
DEPARTMENT OF FAMILIES
Applicant
AND: PATEL
RUPAL SUNIL
Respondent
BEFORE THE HONOURABLE JUSTICE WARNICK
REASONS FOR JUDGMENT
Dates of Hearing: 2 December 2002
Date of Judgment: 14 January 2003
Appearances: Mr. Green of Counsel, instructed by Crown
Law, appeared on behalf of the Applicant
Mr. North of Senior of Counsel, Instructed
by Robert Downey Lawyers, appeared on
behalf of the Respondent
1. On 5 December 2000 a daughter Shivani, was born to Sunil
Raman Patel and Rupal Sunil Patel, at Pennsylvania in the United
States of America (USA). The father is a USA citizen, the mother
an Australian citizen. They married in the USA on 12 April 1997,
but marital difficulties arose within a relatively short time.
2. On 18 September 2002 the mother secretively removed
Shivani from the marital residence and brought her to Australia.
3. The father promptly invoked the assistance of authorities
to secure the return of the child to the USA and the application
which now requires determination was brought on 9 October 2002 by
the Director-General, Department of Families as State Central
authority under the Family Law (Child Abduction Convention)
Regulations (the Regulations).
4. There is no contest that the prerequisites for an order
for return have been made out, and it is only necessary to record
them. In those circumstances, the mother’s resistance to an
order for return rests on the contention that one of the
exceptions to an otherwise mandatory return is established,
namely that:
“there is a grave risk that the return of the child
to the country which he or she habitually resided
immediately before the removal or retention would
expose the child to physical or psychological harm
or otherwise place the child in an intolerable
situation . . .”
(Regulation 16(3)(b))
Prerequisites for an order for return
5. By virtue of regulation 16(2) the Court must refuse to
make an order for the return of a child if it is satisfied of
certain matters. In the mother’s Answer filed 25 October 2002, it
is stated:
“2. The Respondent admits:
(i) that the child, Shivani Sunil Patel was born
5 December, 2000;
(ii) that the habitual residence of the child
immediately prior to the removal of the child
was the United States of America, a convention
country;
(iii) that the Respondent Mother and the child
are residing at 209 Voyager Circuit, Bridgeman
Downs in the state of Queensland,
3. Respondent denies that the child was wrongfully
removed or retained from the United States of
America.
4. The Respondent admits:
(i) that Sunil Raman Patel is the natural father
of the said child;
(ii) that he resides at 841 Belmont Drive,
Hackerstown, New Jersey in the United Sates of
America;
(iii) that he and the Respondent lived
together at that address, it being their marital
home, together with the said child, until 18
September, 2002;
(iv) that she removed the said child from the
family residence without Mr. Patel’s knowledge
or consent.
5. . . .
6. The Respondent admits that Mr. Patel, as father
of the said child, was exercising rights of
custody when the child was removed from the
United States of America.”
6. During the hearing the denial contained in paragraph 3 was
effectively withdrawn.
7. All the concession above are consistent with the evidence
of the father and mother and, as to rights of custody, the
evidence of Mark Gruber, attorney at law in the USA, and in
particular paragraphs 5 and 6 of his affidavit filed 26 November
2002. Further on this point; it was submitted that the law of the
USA, as discussed by the Supreme Court of that country in _T_r_o_x_a_l_l
_v_._ _G_r_a_n_v_i_l_l_e 530 US 57 recognised the right of parents to bring
up their children and that right included the right to care for
the person of the child and to determine the place of residence
of the child.
8. On the concessions and the evidence I am satisfied that
none of the matters which would prevent the making of an order
for return, referred to in s 16(2), exist.
The claimed exception
9. The particulars of the contention of the mother are set
out in the answer filed 25 October 2002 as follows:
“(i) the Respondent’s state of physical and
mental health is such that she must stay in
Australia where she has the physical, emotional and
financial support of her immediate family; she is
simply unable to return to the Untied States of
America;
(ii) the Respondent has been the primary giver of
child care to the child in her life to date;
(iii) there is a grave risk of the Respondent
committing suicide should she be separated from the
said child;
(iv) the unavailability of the Respondent to
continue to provide primary care to the child,
however that may occur, would expose the child to
serious psychological harm;
(v) the father of the child would necessarily be
reliant upon his parents for assistance in
physically caring for the child and placing the
child in the care of the father’s parents, for any
period of time, would expose the child to serious
risk of physical or psychological harm.”
A. Evidence-the mother’s case
10. The mother is 31 years of age. She was born in Fiji on 12
April 1971. She is now an Australian citizen.
11. In November 1996, the mother left Australia intending to
travel overseas for about 1 year. In December 1996 she met the
husband in the USA. Within a short time arrangements were made to
marry. The mother moved into the residence of the husband’s
parents. The relationship between her and her respective
parents-in-law developed poorly.
12. The father and mother married in a civil ceremony on 12
April 1997. The father at that time was away from the family
home studying medicine. The parties still did not cohabit as
they had not been through a Hindu wedding ceremony which was
fixed for 24 May 1998, although the mother visited the father
from time to time.
13. After she obtained her work permit the mother commenced
work as as accountant on 12 October 1998. At the end of that
month the father moved back to live with the mother at his
parent’s home. After some 9 months, during which the father did
not work, he announced that he did not wish to continue with
medical studies. Thereafter he pursued an information technology
course while financially supported by the mother.
14. In around March 2000 the mother fell pregnant with the
child. In October 2000 the mother’s parents went to the USA to be
present for the child’s birth. They stayed with the father’s
parents, also.
15. As previously seen, Shivani was born on 5 December 2000.
The mother gradually developed depression which was diagnosed as
post natal depression. She was proscribed anti-depressants. The
mother’s parents left the United States 13 February 2001.
16. The father completed the course and found employment in
April 2001.
17. On 18 April 2001 the mother first experienced shooting
pains to the left side of bar head. At about this time the
father and mother moved to New Jersey for the husband to take up
his new employment and to reside with his cousin. Soon after
moving to Now Jersey the mother started to feel dizzy, she could
not turn her head. The mother had a number of attendances on a
medical practitioner. No answer to her problems was found. She
was in constant pain in the left side of her bead. Eventually
after a CAT SCAN it was found that the mother had arterio-venus
malfunction (AVM).
18. The mother’s parents returned to the USA to support the
mother during the medical investigations and hospitalisation
which followed. The mother’s mother stayed in the USA for about 3
months.
19. In March 2002 the mother’s sister visited her in the USA
for 3 1/2 weeks. On 4 April 2002 the mother and Shivani left the
USA for Australia. On 12 June 2002 the mother and her parents
returned with Shivani to the USA. The mother had further medical
appointments in the USA.
20. The mother’s material establishes (in excessive detail)
that, from her perspective, during the years since marriage, the
relationship between herself and the father was breaking down.
She perceived slights and animosity towards her from the father’s
parents and a lack of support generally from the father in
relation to her difficulties with his parents, care of Shivani,
financially and. in respect of her ill-health.
21. Presumably the relevance of all this material is to
establish that the father and his family would not be carers who
could provide for Shivani an environment which protected her from
physical or psychological harm if Shivani was returned to the
USA.
22. By late July 2002 the mother had told the father that she
wished to get a divorce and she consulted a solicitor. The
mother’s parents left the USA on 4 August 2000.
23. The mother deposes that it was soon after she saw a
solicitor that she began to have dreams about “losing” Shivani.
These dreams included the mother jumping from a bridge. She says
she told the father about these dreams. He asked her if that was
what she would do and she said it was.
24. Subsequently the parties had some concealing and that
concluded on 26 August 2002.
25. The mother decided that she wanted to return to Australia
and decide about her future. She says she knew that if she asked
the father for permission to acme to Australia with Shivani to
think about the future, he would refuse. She decided not to tell
him and asked her sister to book return tickets.
26. When she left, the mother left a note for the father
saying that she had taken a vacation with Shivani and would talk
to him soon. She left New Jersey on 18 September and arrived in
Brisbane, Australia on 20 September 2002.
27. The father filed an application under the Hague Convention
in the USA an 19 September 2001.
28. Over the next couple of weeks there were some discussions
between the father and mother in which the mother raised the
prospect of him coming to Australia and resuming their
relationship.
29. The application by the Australian Department was served on
the mother upon her attendance at the Department on 8 October
2002.
30. The wife says she cannot return to America because her
health is poor and, she needs the support of her family. She
says she has been feeling very weak and unwell and under
continual stress.
31. She says that since arriving in Brisbane she has been very
dependent upon her family. Her daily routine consists mainly of
looking after herself with help from her parents. She has no
money. Her parents are financially supporting her and Shivani.
32. The mother says she would have no means of financially
supporting Shivani and herself if she were to return to the USA.
Although she has a Greencard US work permit she has no idea of
her current immigration status in respect of the United States.
Neither her mother nor her sister are in a position to be able to
go back to the USA with her for any length of time. She says she
does net wish to again change medical practitioners by leaving
those with whom she has established contact in Australia. She
deposes:
“I cannot and will not now go back to the US. I
cannot even contemplate the thought of not having
Shivani with me and not being able to see her: Since
she was born, she was all I had in the US except for
the times my own family members came over end stayed
with us. I cannot even begin to think of how she
will be without me given how attached she is to me.
I just cannot.”
33. The mother also filed an affidavit by her sister, Jigisha,
in which her sister deals with her observations while she was in
the United States with her mother, father end Shivani. She also
deposed that she had observed the mother’s deterioration in moods
since her arrival in Australia in September 2002. She said:
One day I asked her what she would do if Shivani was
taken away from her and she told me, and my parents,
that she could not live without Shivani. I kept
asking her what she meant by this and she eventually
said to me that she would kill herself if Shivani
was sent back to the USA.
34. This passage was not objected to. Jigisha Patel explains
that it was those conversations which resulted in arrangements
being made far the mother to see a doctor who referred her to Dr.
Klug, a psychiatrist.
35. The mother’s mother, Manjulaben Suresh Patel also made an
affidavit. She deposed that, to keep a close eye on the mother,
she ever sleeps in the same bed as her.
36. Dr. Bartholemew Klug is a consultant psychiatrist. He has
been seeing the mother since 9 October 2002. In his affidavit ho
said:
“I am very concerned about Mrs. Patel and truly and
honestly believe that her threats of suicide must be
taken seriously, she being a real suicide risk if
her young child is forced to return to the United
States of America.”
37. Dr. Klug records that the presenting problems of the
mother were depression and suicidality. The mother told him that
the basic problem underlying her depression was the breakdown of
her marriage and a dispute over the custody of her daughter
Shivani. The mother stated to Dr. Klug that her daughter was her
only purpose in life. She said she would “jump off the bridge”
if she had to hand her daughter back to the father to be looked
alter by her mother-in-law.
38. Dr. Klug concluded that the mother’s mood was severely
depressed and her expressed thought content included a suicidal
ideation with a clearly stated intent to take her own life if she
had to hand her daughter back to the father. On the other hand,
she expressed no delusions and gave no indication of suffering
from hallucinations or any other psychotic phenomena. She was in
a clear state of consciousness with intact cognitive functions
and an estimated average level of intellectual ability.
39. Dr. Klug diagnosed the mother as suffering Major
Depressive Disorder.
40. Klug had seen the mother on five occasions prior to his
report.
41. Christopher Staples, neurologist, first saw the another in
April 2002 and last on 5 October 2002. Dr. Staples recorded that
from 24 April the mother had recurrent seizures with neurological
deficit. However, she had stabilised in early June before she
returned to the United States. When Dr. Staples saw the mother
on her return on 5 October 2002 he said there had been some
progression of a neurological deficit since he last saw her in
early June. He concluded that as a consequence of the treatment
of the AVM she has radiation narcosis producing neurological
deficit with significant sensory loss on the right and
significant seizure disorder with recurrent motion seizures
affecting the right limbs. He said:
“Because of her seizures and neurological deficit
she requires close support and supervision from
either family or friends, as well as ongoing medical
support. She told me that family support was not
available in the United States where she had no
family other than her estranged husband.
As to the prognosis, it is impossible to say. I hope
that her neurological deficit has stabilised and
with time will improve. Similarly, hopefully her
seizures will remain reasonably controlled.
However, it is possible that both the neurological
deficit and seizures will worsen and it may be some
years before we know the exact level of deficit and
disability.”
42. The mother deposed that she last saw Dr. Staples on 23
November 2002. She last saw Dr. Klug on Thursday, 21 November
2002 but she also had appointments for times not long after those
dates. She said that during the course of the recent appointment
with Dr. Klug, after many conversations she had with him, she
promised him that she would admit herself to hospital under his
care for 15 days in the event that the result of the case was
that Shivani would be sent back to the USA.
43. Denise Britton, a psychologist, saw the mother and Shivani
at the request of the mother’s legal representative. Ms Britton
had been forwarded most, if not all, the extensive affidavit
material filed in this matter. Her report dated 29 November 2002
discloses that she “observed” the mother and Shivani over a
period of approximately one hour on 28 November 2002. She
expressly says “I did not interview Mrs Patel”. Ms Britton
recorded her instructions as seeking:
” . . . an opinion as to whether or not Shivani
`would he exposed’ to a grave risk of physical
harm, psychological harm or some other intolerable
situation’ if required, as a result of a Hague
Convention hearing, to return to that United Slates
of America.”
44. She said:
“I shall focus on the likelihood of her being
exposed to a grave risk of psychological harm as a
result of such action.”
45. Ms Britton opined that Shivani was securely attached to
her mother. Shivani presented as socially competent. The mother
interacted appropriately with Shivani.
46. From a reading of the documents Ms Britton, concluded
(rightly or wrongly) that the mother had been Shivani’s one
Constant care giving figure throughout Shivani’s life and that
there were times when the mother had primary and at times sole
responsibility for Shivani’s care.
47. After discussing the content of medical reports she had
read, Ms Britton expressed the view that:
” . . . it would be inhumane to force Mrs Patel to
return to the United States in her current physical
and mental condition, whether or not she was charged
with the care of Shivani. It is reasonable for her
to expect to be able to rehabilitate in the
environment provided by her parents, if this is what
she desires. ”
48. Of course, this is not an application seeking the return
of the mother to the USA.
49. Ms Britton then turned to consider the short term effect
on Shivani should she be returned to the United Slates without
her mother. She said:
“It is my opinion that should Shivani be returned to
the United States without her mother, especially
since she has had no contact at all with her father
for over two months and has been in constant contact
with her mother at her maternal grandparents home,
she would experience a sense of loss over the
disappearance of her mother and would be at risk of
suffering in the short to medium, as, well as
possibly the long term, as a result of feeling of
abandoned (sic.). She would not, at this stage of
her life, have the cognitive capacity to understand
explanations to her as to why she was separated from
her mother.”
50. Ms Britton then went on to discus the long term affects on
Shivani should she be returned to the United States without her
mother. These related mainly to personality traits and disorders
of a dependent nature arising from the sense of abandonment that
Shivani might feel.
51. In relation to the risk of the mother suiciding if Shivani
is removed from her care Ms Britton said:
“The ramifications of this would obviously be
devastating long term for Shivani, in that she world
grow, up without any access to the biological
mother.”
52. Then, observing that it would be unlikely (if Shivani was
returned to the USA) that Shivani would have any contact with her
mother’s side of the family, Ms Britton said:
“Such a situation is not desirable in that it would
not foster a healthy sense of self, personal
identity formation being fundamental to the
development of well integrated personality.”
53. Ms Britton then addressed a further potential consequence
if the mother committed suicide. She said:
” . . . Shivani would be burdened with a not well
understood phenomenon which is that suicide tends to
`run in families.’ Although there are biological
factors such as genetic predisposition to depression
which might play a part, it is also thought that in
some way the knowledge that a parent has suicided
can be tantamount to suicide being preserved to a
vulnerable individual as a viable option for solving
intractable problem situations. The ramifications
of this are obvious.”
Evidence – the father’s case
54. The father deposes that he has not replied at length to
the mother’s affidavit because he hen been advised that the
proceedings are summary in nature but that in fact he disagrees
with most of the assertions against him in her affidavit. He than
proceeds to provide excessive detail in opposition to a number of
the mother’s claims.
55. The father was born in India and moved to the USA when he
was one year old. He is now 33 years old. He is a USA citizen,
He deposes that he is still willing to try and save the marriage.
He declares than if the mother comes to the USA the home is still
open to her. He says that if reconciliation is effected he will
support the wife financially, emotionally and physically. He says
that he will hire outside assistance for the mother if necessary.
56. The father also deposes that if the mother is unwilling to
reconcile and so chooses, he will agree to move out of the home
so that she and Shivani can live there until the marital issues
are resolved through the USA court systems. He will continue to
pay the rent and provide money for food and other expenses. He
says that he is willing to pay spousal and child support pending
the resolution of their financial affairs. He also agrees to
advance money from joint funds that she will need for counsel’s
fees for divorce and/or custody proceedings.
57. The order that the father obtained is exhibit B to his
affidavit. He says that it provides for him and the mother to
have joint legal custody of Shivani upon her return to the United
Slate and for an immediate custody hearing.
58. The father says that if Shivani is returned to the United
Stares without the mother, he will do everything he can to ensure
that the mother maintains a close relationship with Shivani. He
will permit phone calls as often as they both would like. He will
send pictures and videos of Shivani via e-mail and mail. He will
also, he says, welcome Rupal into his home and allow her to spend
time with Shivani whenever she choose to visit the United States.
59. The father says he is prepared to be Shivani’s primary
care giver. He says he was home and not in employment for the
first 5 months of Shivani’s life and took an active role in her
care.
60. He details his involvement at some length. He says that
during the first few months of Shivani’s life Rupal was not the
primary carer because there were so many including the mother’s
parents and his own parents who shared the responsibility.
61. The father says that though he will need to work during
the daytime he has flexible hours and can work from home if
necessary. He however will use a day carer to care for Shivani
while he is at work. Shivani will be in care from 9.00 am until
6.30 p.m..
62. The father says that the mother’s seizure (from which, he
asserts she will always suffer) as well as mood disorder and
depression, make bar a danger to Shivani if a seizure occurs
while she is performing an activity such as driving or cooking.
He says it does not appear that the mother will ever be able to
care for Shivani without assistance.
63. The father further says that the Mother’s parents have
various health problems which would make them unable to render
much assistance to the mother in caring or Shivani in the long
term.
64. As to the mother’s case relating to the risk of her
suicide, the father says mother emailed him a number of times
between 26 September and 17 October 2002, in which communications
she conveyed changing thoughts about her returning to the United
States or not. However, she did not state that she was suicidal,
severely depressed or that her health was failing.
65. On the other hand the father himself asserts that the
mother had emotional highs and lows throughout the marriage and
that her moods varied greatly. He stated that her instability of
her moods was caused by her conditions and the medications she
was on. Occasionally, she would threaten to kill herself. The
father never took these statements as serious threats and he does
not believe that the mother will carry out threats to harm
herself.
66. Also relied upon by the Applicant Director-General was an
affidavit of Pragna Patel, the wife of Jayesh Patel, the father’s
cousin, Pragna Patel deposed to father’s involvement with Shivani
both in playing with her and attending to tasks involved in her
care.
67. Pushpa Patel, the mother-in-law of the father’s brother,
Kumal Patel, the father`s brother, Sanal Patel, Karnal’s wife,
Runanial Patal who had acted as mediator, Chema Arvin, a cousin
of the father, Dahiben Patel, the husband’s maternal grandmother,
and Bhari Patel, the father’s mother, all filed affidavits going
to such matters as the relationships between the father and
Shivani, and between him parents and Shivani, the character of
his parents, and the moodiness, temper and unreasonable behaviour
of the mother.
C. Discussion
68. I do not accept that the mother _c_o_u_l_d_ _n_o_t return to the
USA. The frequency with which her family has traveled to the
United States to spend long periods of time with her, the
mother’s return to Australia in April 2002 and return to the USA
before again leaving the United States on 13 September 2002,
indicate financial and physical capacity to move between the two
countries, notwithstanding her illness.
69. Whether, if Shivani is returned to the USA, the mother
will herself is more speculative, depending as it does entirely
upon the mother’s degree of determination to remain in Australia
(and leaving aside the risk of suicide).
70. However, I do not accept that it is more probable than not
that in those circumstances she would remain in Australia but,
even if I thought that she would, I would not find that would
produce a situation which would expose Shivani to a risk of the
degree required under regulation 16(3)(6) or place Shivani in an
intolerable situation.
7I. It seems that the excessive and detailed description
provided by the mother and her witnesses of her life in the USA
with the father and his family was designed to show firstly, that
the mother was the primary carer of the child and that secondly
that the father and his family could not provide appropriate care
of Shivani.
72. It is clear from the mother’s material that there was a
great deal of dissatisfaction on her part with the father and his
family and, from her point of view, numerous slights, insults and
shortcomings from them and in them. Within the mother’s evidence
is a real sense of pettiness and exaggeration. I would not accept
the contention that the father and/or his family could not
adequately care for Shivani. It may well that the mother is
entitled to the description of the primary carer, but a great
deal of Shivani’s care even on her case has been in the presence
of the father’s family and the father.
73. Concerns about the lack of contact (such as voiced by Ms.
Britton) between Shivani and the father in recent times since the
removal of the child from the USA might be met by arranging for
her contact between the father and the child in Australia over a
period of time preceding the return of he child with the father
to the USA.
74. Though no doubt some distress for Shivani upon removal
from the mother might be anticipated, I do not find that this
gives rise to a grave risk of harm to her, or place her in an
intolerable situation. The mother may well follow her to the USA.
75. As Justices Gaudron, Gummow and Hayne said in _D_P_ _v_ _C_e_n_t_r_a_l
_A_u_t_h_o_r_i_t_y_;_ _D_e_p_a_r_t_m_e_n_t_ _o_f_ _C_o_m_m_u_n_i_t_y_ _S_e_r_v_i_c_e_s (2001) FLC 93-081, at
88,390:
“. . . It is well-nigh inevitable that a child,
taken from one country to another without the
agreement of one parent, will suffer disruption,
uncertainty and anxiety. That disruption,
uncertainty and anxiety will recur, and may well be
magnified by having to return to the country of
habitual residence. Regulation 16(3)(b) and Art
13(b) of the Convention intend to refer to more than
this kind of result when they speak of a grave risk
to the child of exposure to physical or
psychological harm on return.”
76. That leaves for consideration the risk of the mother
committing suicide if the child is returned to the USA.
77. In _D_P_ _v_ _J (supra) in the judgment earlier referred to,
their Honours said:
“41. “. . .On its face reg 16(3)(b) presents no
difficult questions of constriction and is not
ambiguous. The burden of proof is plainly imposed
on the person who opposes return. What must be
established is clearly identified; that there is
grave risk that the return of the child would expose
the child to certain types of harm or otherwise
place the child in “an intolerable situation.” That
requires some prediction, based on the evidence, of
what may happen if the child is returned. In a case
where the person opposing return raises the
exception, a court cannot avoid making that
prediction by repeating than it is not for the
courts of the country to which or in which a child
has been removed or retained to inquire into the
best interests of the child. The exception requires
courts to make the kind of inquiry and prediction
that will inevitably involve some consideration of
the interests of the child
42. Necessarily there will seldom be any
certainty about the prediction. It is essential,
however, to observe that certainty is not required,
what is required is persuasion that there is a risk
which warrants the qualitative description “grave”.
Leaving aside the reference to “intolerable
situation”, and confining attention to harm, the
risk that is relevant is not limited to harm, the
risk that will actually occur, it extends to a risk
that the return would expose the child to harm.
43. Because what is to be established is a grave
risk of exposure to future harm, it may well be true
to say that a court will not be persuaded of that
without some clear and compelling evidence. The bare
assertion, by the person opposing return, of fears
for the child may well not be sufficient to persuade
the court that there is a real risk of exposure to
harm.
44. These considerations, however, do not
warrant a conclusion that reg 16(3)(b) is to be
given a “narrow” rather than a “broad” construction.
There is, in these circumstances, no evidence choice
to be made between a regulation, if that is what is
meant by saying that it is to be given a “narrow
constriction” it must be rejected, exception is to
be given the meaning its words require.”
78. On the evidence, I accept that there is a grave risk that
if Shivani is returned the mother will suicide.
79. I accept the evidence (particularly that of Mrs Britton)
of the harm for Shivani which might follow a suicide by the
mother. I find that there is gave risk of psychological harm.
80. I do not reach reach these findings without disquiet.
Courts will understandably have a real concern about the
disingenuous adoption of stances designed to achieve the purposes
of abductors in resisting orders for the return of children. But
the response to this concern cannot be to disregard evidence, but
rather to scrutinize it with great care.
81. In this case there is a history of depression and mood
changes in the mother. She demonstrated an intense need for the
comfort and support of her family. She has suffered dramatic and
no doubt traumatic health difficulties. She threatened suicide
when cobabiting with the father.
82. Her consultation with Dr. Klug are apparently for the
purpose of treatment, not evidence gathering. His medical opinion
of the risk is clear and unchallenged.
83. The risk in my vies is little alleviated by the
arrangement that he mother will enter hospital under Dr. Klug’s
supervision if Shivani is sent back to the USA. Though this is
clearly an arrangement to mitigate the prospects of the mother
taking her own life, there is nothing from which I can gauge any
reduction in risk thereby achieved. The same applies to the
prospect of detention of the mother under the Mental Health
legislation.
84. In the course of their submissions counsel referred to a
number of cases but I think it unnecessary to refer to other than
that already cited. One of the two matters the subject of the
judgment in that case is (disturbingly) similar in its facts to
the facts here. In _J_L_M the primary judge found that a very
serious or high risk of the mother committing suicide if an order
was made requiring the return of a child to Mexico constituted a
give risk of psychological harm to the child. The Full Court of
the Family Court overturned that decision. The majority of the
High Court considered that the Full Count was wrong in holding
that there had been no evidence before the trial judge which
warranted the conclusion he reached.
85. At page 88,395, Gaudron, Gummow and Hayne discussed two
grounds of appeal before the Full Court which had, in view of the
conclusions it reached, not been considered by it. One of these
grounds was that the primary judge had given undue weight to the
threat made by the mother that she would commit suicide and the
second was that the judge gave no or insufficient weight to the
fact that the mother was the originator of the source of the
grave risk of psychological harm. In respect of these grounds,
their Honours said:
“It is as well to say, however, that they are
grounds which appear to ignore the fundamental fact
found by the primary judge (and not thereafter
disputed) that the mother is ill. To say that she
is the originator of the source of the risk of harm
appears to, take no account of fact that the mother
is not in command of her situation and it betrays a
complete lack of any understanding of the major
depressive illness from which she suffers.”
Residual Discretion
86. I accept that notwithstanding the findings made, I might
still order a return of Shivani to the USA. However, in view of
those findings, I see no factor which would render such an order
appropriate.
Terms of Order
87. In the circumstances, the application of The Director
General should be dismissed.
Orders
1. That the application of the Director General, Department
of Families, filed 8 October 2002 be dismissed.