L. -v- C., [2007] IEHC 440 (2007)

Docket Number:2007 11 HLC
Party Name:L., C.
Judge:Dunne J.
 
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THE HIGH COURTFAMILY LAW[2007 No. 11 HLC]IN THE MATTER OF THE CHILD ABDUCTION AND THE CHILD ENFORCEMENT OF CUSTODY ORDERS ACT, 1991 AND IN THE MATTER OF THE HAGUE CONVENTION AND IN THE MATTER OF C. P. CBETWEENP. L.APPLICANT ANDE. C.RESPONDENT JUDGMENT delivered by Ms. Justice Dunne on the 19th day of December, 2007 The applicant in this case is the father of C., who was born in Melbourne, Australia on 25th August, 1999 and the respondent is his mother. The applicant and the respondent were never married to one another.C. was habitually resident in Melbourne, Australia from the date of his birth.Difficulties arose in the relationship between the applicant and the respondent. They separated. Subsequently, proceedings before the Family Law Courts in Melbourne in relation to the welfare of C were commenced. The applicant and the respondent were legally represented in those proceedings and C was also independently legally represented in the proceedings. The proceedings had been at hearing in Melbourne for nine days in October 2005. Following nine days of hearing the proceedings were adjourned and were due to resume on Monday 7th November, 2005. On 30th October, 2005 the respondent without the knowledge of the applicant and without leave of the court removed C from the jurisdiction of the Courts of Australia. The whereabouts of the respondent and C were not known to the applicant or to the Family Law Courts in Australia and were not made known to them by the respondent. An application was made to the Australian Central Authority seeking the return of C on 23rd November, 2005. Ultimately the whereabouts of the respondent were discovered and these proceedings commenced by special summons issued on 8th March 2007 seeking the return of C to Australia under the provisions of the Hague Convention.It appears that the applicant and the respondent enjoy joint guardianship of the minor under the laws of the requesting State.Following an order made herein by the High Court on 31st July, 2007 (Finlay Geoghegan J.) it was ordered that Dr. Helen Greally assess C and report to the High Court for the purposes of the Court exercising its discretion under Article 12 and 13 of the Hague Convention on the following issues:1. The degree of maturity of the said minor,2. Whether the said minor objects to being returned to Australia,3. If the said minor does object to being returned to Australia,(a) the grounds of such objection and in particular whether it relates to an objection to living in Australia and/or a desire to remain in Ireland or whether it relates to an objection to living with or living in the vicinity of a particular parent and/or wish to live with the other parent and(b) Whether any objections expressed have been independently formed or result from the influence of any other person including a parent.4. Ascertain the said minor's attitude to the circumstances in which he is now living in Ireland.It was further ordered that certain facts be furnished to Dr. Greally for the purpose of the said assessment. Those facts are as follows:(a) The age and date of birth of the said minor.(b) That the said minor was removed from Australia to Ireland on 30th October, 2005 during the course of court proceedings in Australia relating to custody and access of the said minor where inter alia the mother, (the respondent in these proceedings) believes that the minor had been sexually abused by the father (the applicant in these proceedings) - the father (the applicant in these proceedings) vehemently denies any such abuse.(c) The said minor whilst in Australia had been assessed as "on the autistic spectrum". It was further directed that the applicant deliver points of reply to a points of defence previously delivered by the respondent. It would be helpful to summarise the points of defence and points of reply. In the points of defence it was pleaded that:(a) The applicant did not hold or exercise "rights of custody in respect of C. on 30th October, 2005.(b) The applicant has been guilty of culpable and unconscionable delay in instituting these proceedings(c) Or that his inaction amounts to acquiescence.(d) That C. has acquired a habitual residence in Ireland is well settled here and that the proceedings were not instituted within one year of 30th October, 2005.(e) C. has attained an age and degree of maturity at which it is appropriate that his views be taken into account and that he objects to being returned for valid and cogent reasons.(f) There is a grave risk that the return of C. to Australia will expose him to physical harm and psychological harm and place him in an intolerable situation in light of the evidence of sexual abuse of the infant by the applicant and in light of the proposed order and approach of the court in Australia in his case.(g) There is a grave risk that the return of the infant to Australia will expose him to physical harm and psychological harm and place him in an intolerable situation in light of the well-founded belief of the respondent that he was sexually abused by the applicant.(h) There is a grave risk that the return of the infant to Australia will expose him to physical harm and psychological harm and place him in an intolerable situation in light of the lack of accommodation or means of support in Australia. The points of reply can be summarised as follows:1. The removal of C was wrongful and in breach of rights of custody of the applicant on 30th October, 2005.2. The applicant was exercising rights of custody and the litigation before the Family Court of Australia at Melbourne in the State of Victoria, inter alia amounted to an exercise of rights of custody.3. The respondent deliberately concealed her whereabouts and removed the minor from the jurisdiction of the Courts of Australia without leave of the Courts in the course of the trial of an action pertaining to the welfare of the minor and without notice to or leave of the applicant.4. It is denied that there was any delay. The conscious and deliberate conduct on the part of the respondent in concealing her whereabouts and the whereabouts of C placed significant obstacles in the way of the applicant proceeding with the matter.5. The applicant never acquiesced in the conduct of the respondent.6. C was at all material times habitually resident within the jurisdiction of the courts of the State of Victoria, Australia prior to his wrongful removal.7. The request for return of the minor pursuant to the Hague Convention was instituted within days of the abduction of the minor by the respondent herein. Service was rendered difficult by the concealment of the whereabouts of C and the respondent.8. It is denied that C has attained an age or degree of maturity at which it is appropriate for a court to take his views into account. It is denied that C objects to being returned to Australia for valid or cogent reasons.9. It is necessary and appropriate in the interests of the welfare of C that he be protected from the harmful effects of his wrongful removal and that he should be promptly returned to the State of Victoria.10. It is denied that there is risk, that the return of C to Australia will expose him to physical harm or to psychological harm or place him in an intolerable situation. It is further denied that there is evidence of sexual abuse of the infant by the applicant or that there is a proposed order of the courts of Australia capable of being the subject of consideration by this court. The proceedings before the Court of Australia would be re-entered on the return of the minor to the jurisdiction of the courts in Australia.11. It is denied that the return of C will expose him to physical harm or psychological harm or place him in an intolerable situation. It is denied that there is a well-founded belief on the part of the respondent that C was sexually abused by the applicant.12. It is denied that there is a lack of accommodation or means of support for C in Australia.13. It is pleaded that the court should disregard and discount the period of time spent by the minor in hiding in this jurisdiction.The grounding affidavit in this case is sworn by Miriam A. Walsh, Solicitor of Tallaght Law Centre. She confirmed that the applicant caused an application to be made to the Central Authority for the Australian Commonwealth on 23rd November, 2005 under the Hague Convention. The application was then exhibited. The Central Authority for the Commonwealth of Australia forwarded the application for the return pursuant to the Convention on 19th January, 2006. That letter noted inter alia:"I noted that Mr. L's access to C has been the subject of lengthy court proceedings in Australia. It is our understanding that during the final hearing regarding the access of C, Ms. C removed C from Australia to Ireland. Accordingly the matter has been adjourned indefinitely and no final court orders have been made in Australia regarding Mr. L's access to C." The letter went on:"I further note that in his affidavit dated 23rd November, 2005 Mr. L states that in May 2004 an allegation was lodged by Ms. C with the Victorian Department of Human Services, alleging sexual misconduct by Mr. L towards C. We further understand from discussions with Mr. L's legal representatives that these allegations of sexual misconduct were being heard by the court in the above mentioned access proceedings. The father addresses these allegations in paras. 8 - 11 of his affidavit.Under Australian law Mr. L retains parental responsibility for C. An affidavit of relevant law is attached." The affidavit of laws referred to in that letter was an affidavit of a Mr. Scott-Wilson and I will refer to that affidavit in due course.As can be seen from the affidavit of Ms. Walsh and the letter from the Australian Authorities to which I have referred reference was made to an affidavit of Mr L in the Australian proceedings which was sworn on 23rd November, 2005 after the respondent had left the jurisdiction. That...

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