T (R) v M (S)

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 04 July 2008
• Neutral Citation: [2008] IEHC 212
• Court: High Court
• Date: 04 July 2008

[2008] IEHC 212

THE HIGH COURT

[No.25HLC/2007]

T (R) v M (S)

FAMILY LAW

IN THE MATTER OF THE CHILDREN ABDUCTION

AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

AND IN THE MATTER OF THE HAGUE CONVENTION

AND IN THE MATTER OF COUNCIL REGULATION 2201/2003

AND IN THE MATTER OF H. T. T. AND N. R. T.

BETWEEN/

R.T.

APPLICANT

AND

S.M.

RESPONDENT

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

EEC REG 2201/2003

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(b)

S (A) v S (P) (CHILD ABDUCTION) 1998 2 IR 244 2003 FAM LJ 21

K (R) v K (J) 2000 2 IR 416 2003 FAM LJ 30

FRIEDRICH v FRIEDRICH 1996 78 F 3D 1060

O'D (N) v B (P) (ORSE O'D) UNREP QUIRKE 31.7.1998 1999 20 6313 1998 IEHC 134

MIN FOR JUSTICE, EX PARTE M (E) v M (J) 2003 3 IR 178

S (A) v H (E) & H (M) 1999 4 IR 504 1998 30 12003

DIRECTOR GENERAL DEPARTMENT OF HUMAN SERVICES v RSP 2003 FAM CA 623 2003 FLC 93

FAMILY LAW

Child abduction

Application for order to return children - Conflict of evidence - Appropriate venue for resolution of dispute as to matters of fact touching on custody - Psychological evidence of reduced cognitive ability of child - No psychological evidence of risk to children arising from applicant father - Applicant for return of children of limited financial means - Stay - Whether return of children would expose them to physical or psychological harm or place them in an intolerable situation - Whether appropriate to attempt to resolve conflicts of evidence in this jurisdiction - AS v PS (Child Abduction) [1998] 2 IR 244, RK v. JK (Child Abduction: Acquiescence) [2000] 2 IR 416, Fredrick v Fredrick (1996) 78 F 3d 1060, O'D v PB (Unrep, Quirke J, 31/7/1998), Minister for Justice (EM) v JM [2003] 3 IR 178, A.S. v. E.H. (Child Abduction) (Wrongful removal) [1999] 4 IR 504 and Director General, Department of Families v. RSP (2003) FLC 93 considered - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Hague Convention on Civil Aspects of International Child Abduction, Art 13(b) - Return of children ordered subject to conditions so as to ensure their welfare (2007/25HLC - MacMenamin J - 4/7/2008) [2008] IEHC 212

T(R) v M(S)

Facts The applicant sought a declaration that the respondent wrongfully removed their two children from the place of their habitual residence into the jurisdiction of the Courts of Ireland within the meaning of article 3 of the Hague Convention. The applicant also sought an order pursuant to article 12 of the Convention for the return of their children to the place of their habitual residence, namely the Australian State of Queensland. The applicant and the respondent had two children together. The respondent traveled to Ireland with the two children from Queensland, Australia. The respondent made numerous allegations against the applicant, which he denied. Those allegations included allegations of abuse and ill treatment. A previous court order was made restraining the respondent from removing the children from the jurisdiction and also stating that the only objection to the order for the return of the children that might be pursued at full hearing was the respondent's defence of grave risk that the return of the children would expose the children to physical and psychological harm or otherwise place the children in an intolerable situation within the meaning of Article 13(b) of the Hague Convention.

Held by MacMenamin J. in granting the application but placing a stay on the order: That this court could not make any finding on the allegations made by the respondent as there was a stark and unresolved conflict as to fact. Prima facie, those matters should be resolved in Queensland, subject to the respondent's objection that to return the children to Queensland would expose them to a grave risk of psychological harm or an intolerable situation. The test for establishing 'grave risk' was an extremely high one. The purpose of the Hague Convention was clear; it was that issues of custody and access should be determined in the place of habitual residence save in very exceptional circumstances. There were well developed protective mechanisms within Queensland to determine those issues. The evidence adduced by the respondent regarding 'grave risk' did not approach the required level. There was no sufficient basis for a claim that article 13(b) applied in these circumstances. There was no independent psychological evidence to support the respondent's claims regarding the children. It was appropriate to place a stay on the order for the return of the children in the company of their mother to Queensland, pending full compliance by the applicant with certain undertakings and the resolution of issues regarding accommodation and maintenance. The injunction against the respondent restraining the removal of the children out of this jurisdiction was continued.

Reporter: L.O.S.

1 1. The applicant was born in Ethiopia but is now an Australian citizen. He moved to Australia in early adolescence. He is now in his early twenties. The respondent is an Australian national and an Irish citizen. The parties commenced a relationship while in their mid teens in 1998. They have resided together in Queensland since the year 2000. There are two children of the relationship namely, H. T. T. born in 2001, and N. R. T. born in 2004. The said children will attain the age of 16 years in 2017, and in 2020, respectively. I will refer to the elder child as T. and the younger child as Ra. T. was born in Brisbane. Ra. was born in Ireland when the parties were here previously on a twelve month working holiday, between 2003 and 2004. The place of habitual residence of both children has been with their parents in Queensland. The applicant as father and respondent as mother both have parental responsibility rights for the said children pursuant to the laws of Australia. The applicant seeks an order directing the return of the children to Queensland pursuant to the Hague Convention and Council Regulation 2201/2003.

2 2. The case comes before the courts arising from the following immediate averments as to fact.

3 3. In or about December, 2006 the respondent's grandmother who lived in Ireland fell ill. On 17 ^th December, 2006, the respondent and the children left the family home in Australia for Dublin on a visit on the understanding they would return to Australia on the 8 ^th January, 2007.

4 4. On 31 ^st December, 2006, the applicant phoned the respondent to enquire as to their wellbeing. The respondent said that she was not returning to reside in Queensland and that she intended to retain custody of the two children in Ireland with her.

5 5. Since the 8 ^th January, 2007, the applicant says that he has made numerous efforts to contact the respondent and the children. Since that date there has been limited contact. The applicant says this is as a result of the respondent's lack of co-operation.

6 6. Early in 2007 the applicant learned from the respondent's Australian employers that she had terminated her employment in Queensland without notice. He says that he learned from the respondent's brother S., (who resided in Brisbane) that she intended to travel to Iran in the future. Why she would wish to do so is unclear. The issue did not arise in cross-examination.

7 7. On the 14 ^th March, 2007, the applicant completed a questionnaire for the purpose of seeking the assistance of the central authority in Ireland. On the 29 ^thAugust, 2007, application was made before this court (Hanna J.) seeking an order directing the respondent to surrender her passport to the court and restraining her from removing the children from the jurisdiction. That order remains in being. It was reaffirmed at the conclusion of this hearing. On 25 ^th October, 2007, the children's passports were returned to the respondents' solicitor who has undertaken to retain them pending the determination of the proceedings.

8 8. The matter came before Finlay Geoghegan J. for directions on the 20 ^thFebruary, 2008. The respondent was granted liberty to serve and file a notice of cross examination on the applicant's affidavit. A similar order was made as against the respondent. It was ordered that a psychologist's report be admitted in evidence. This is referred to below.

9 9. On the 28 ^th April, 2008, Finlay Geoghegan J. directed that the only objection to the order for return of the children which might be pursued at the full hearing was the respondent's defence of grave risk "that the return of the children would expose the children to physical and psychological harm or otherwise place the children in an intolerable situation" within the meaning of Article 13(b) (of the Hague/Luxembourg Convention). It was ordered that the respondent's case be presented first and that the cross examination of the respondent be during her own case and that the cross examination of the applicant be during the presentation of the applicant's case. Arrangements were made for the latter cross examination to be carried out by video link with Brisbane.

Conflicts in Evidence

10 10. In reply to affidavits filed by and on behalf of the applicant, the first affidavit sworn by the respondent consisted of some seventy five paragraphs. It dealt with a very wide range of matters arising from the total relationship between the parties. Only part of it deals with the issue which is necessary for the court to address. An exchange of very lengthy affidavits followed. The respondent was not then represented by her present legal advisors.

11 11. I would observe that affidavits in these applications should be confined only to matters which relate to the issues which are, or might reasonably be anticipated to fall within the scope of such hearing. The probable consequence of "widening" the issues (which occurred in this...