L -v- C, IESC [2008] 19 (2008)

Docket Number:65/08
Party Name:L, C
Judge:Fennelly J.

THE SUPREME COURTAppeal No. 065/2008

Fennelly J.

Kearns J.

Finnegan J.





Judgment delivered the 11th day of April 2008 by Mr Justice Fennelly.

  1. This is a Hague Convention case. The appellant removed the child, C, from Australia to Ireland in October 2005. She appeals from the judgment of the High Court (Dunne J) dated 19th December 2007 and the order dated 15th January 2008, whereby it was ordered that C "be returned to the place of his habitual residence being the jurisdiction of the Commonwealth of Australia……"

  2. Points of defence and reply were exchanged in the High Court. They are set out in the High Court judgment. The issues on the appeal have been narrowed to four:a) whether C had settled in this jurisdiction;

    1. whether or not C objects to being returned;

    2. the delay on bringing the proceedings;

    3. whether there is "grave risk" to the welfare of C, if returned.3. Dunne J delivered a comprehensive judgment. While there is dispute between the parties on a number of matters, they principally concern interpretation of facts, and the basic outline of the history of the relationship between the parties, the Australian legal proceedings and the circumstances of the removal of C by the appellant to this jurisdiction, as set out in the High Court, are not in doubt. This is not to overlook the fact that the appellant, in the Australian court, made allegations of serious sexual abuse against the respondent who has at all times strenuously denied them. Those allegations form the basis of the appellant's reliance on the "grave risk" defence under the Convention.

  3. C was born in Melbourne in the State of Victoria, Australia on 25th August 1999. The appellant is his mother; the respondent is his father. They were never married to each other. The appellant left Australia on 29th October 2005, taking C with her. She came to Ireland.

  4. The present proceedings were commenced by Special Summons on 8th March 2007. On 31st July 2007, Finlay Geoghegan J made an order for directions in relation to pleadings and the date of hearing and also, pursuant to section 47 of the Family Law Act, 1995, ordered as follows: "…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:

  5. The degree of maturity of the said Minor,

  6. Whether the said minor objects to being returned to Australia,

  7. 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.

  8. Ascertain the said minor's attitude to the circumstances in which he is now living in Ireland." 6. The same order directed that the only facts to be disclosed Dr Helen Greally for the purposes of her assessment were:"(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"."7. C had been habitually resident in Australia from the date of his birth to the date of his wrongful removal from that jurisdiction on 30th October 2005. In the High Court, the appellant disputed that the respondent had "rights of custody" over C, for the purposes of Article 5 of the Hague Convention. Dunne J, having considered evidence of Australian law and the case-law on that subject, held in favour of the respondent; she held that he had rights of custody. The appellant has not appealed that decision.

    The Facts

  9. The following history is necessary for an appraisal of each of the four specific grounds of appeal upon which the appellant relies. Ms Dervla Brown, Senior Counsel, represented the appellant; Ms Maire Whelan, Senior Counsel, represented the respondent.

  10. The appellant was born in England, but has Irish citizenship and a number of Irish relatives. The respondent is Australian. The relationship between the parties commenced in Australia in 1993. For a period of more than a year between 1993 and 1995, the parties travelled overseas. During a substantial part of that time, they resided with relatives of the appellant in County Kilkenny. They returned to Australia in 1995. They bought a house jointly. In 1998, the appellant informed the respondent that she was pregnant. C was born in 1999. In 2002, the relationship between the parties broke down and they separated. The appellant left the home which the parties owned, to live with her mother in Melbourne. I will refer later to the subsequent family law proceedings in the Australian Family Court.

  11. After the parties had separated in Australia in 2002, the respondent had access to C every week-end from Saturday morning until Sunday night and every Tuesday overnight to take him to his crèche in the morning. The parties were at first able to cooperate in the care and upbringing of C. In early 2004, difficulties arose between the parties. The respondent says this was when he formed a new relationship. In May 2004, the appellant commenced to make allegations of sexual misbehaviour by the respondent in respect of C. She complained to the police.

  12. The appellant filed an application with the Family Court of Australia. From 28th May 2004, that court heard a number of applications concerning C. The appellant strenuously contested any continued exercise of access or contact by the respondent. The court made a number of orders dealing with this issue. On 3rd March 2005, the court made an order suspending all contact between the respondent and C until further order. It also made orders providing for expert examination and reports on C. These were principally concerned with the allegations of sexual abuse.

  13. On 17th October, the case was listed before the Family Court of Australia (The Honourable Justice Mushin) for final hearing. It was adjourned to 19th October. The case was heard for eight days in October 2005. Both parties, as well as C, were represented by solicitors and counsel. The greatest controversy in the present application surrounds what happened on the last day of hearing, 28th October. According to the respondent, it became clear that the case would take further time and was adjourned, on a part-heard basis, to be continued on 7th to 9th November. The judge invited counsel to meet him in chambers "to discuss his tentative views as to what he may order with regard to C's future contact with [the respondent]." He also stated in open court that "his tentative view was for [the respondent's] contact to resume with C… albeit on a strictly supervised basis for an initial period of time." This is the respondent's account of the matter. In response to an inquiry about these proposals in open court, the appellant said that she believed that the respondent should never see C again.

  14. The appellant fundamentally disputes the respondent's account of the proceedings. She says that the judge's views were not tentative but final and that there was to be no further hearing. She has sworn on affidavit that on 28th October, the judge made his proposed order known to her lawyers, that there was no question of resuming for a full hearing on 7th November. She says that the judge indicated that he intended resuming supervised contact for a period of six months and unsupervised contact after that time. She says that she was distraught and shocked by the attitude of the judge and that, since her only concern was the safety of C, she had no other course of action open to her except to flee Australia.

  15. The dispute regarding the statements of the judge on 28th October 2005 is central to resolution of the appellant's reliance on "grave risk."

  16. On 30th October, the appellant delivered a handwritten letter to her family in Australia. She referred to the court proceedings, saying: "the writing is on the wall." She said that she had not discussed what she was going to do, as she did not wish to have any of the family implicated. She said: "C… and I are going somewhere safe." On 31st October, the appellant wrote to her solicitors in Australia, saying, among other things, that she was withdrawing her application before the Family Law Court. She said that she had understood from her barrister that the judge was "in favour of reinstating contact."

  17. On 31st October 2005, the appellant took a flight with C from Melbourne to Dubai and thence to Manchester. She did not tell anyone in advance. Nor did she disclose to the respondent, his lawyers, her own lawyers, the court or even her own family that she was doing this or where she was going. On 3rd November, her Australian lawyers wrote to the respondent's lawyers conveying a without-prejudice offer to consent to an order that the respondent not have contact with C until he attained the age of twelve years at which time the question could be reviewed. This letter did not disclose the fact that the appellant had already left Australia. The lawyers were not aware of this fact.

  18. It did not emerge until the resumed hearing in the Australian Family Court on 7th November that the appellant was no...

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