T. -v -M., [2008] IEHC 212 (2008)

Docket Number:2007 25 HLC
Judge:Mac Menamin J.









JUDGMENT of Mr. Justice John MacMenamin delivered the 4th day of July 2008.

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

  3. In or about December, 2006 the respondent's grandmother who lived in Ireland fell ill. On 17th 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 8th January, 2007.

  4. On 31st 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. Since the 8th 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. 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. On the 14th March, 2007, the applicant completed a questionnaire for the purpose of seeking the assistance of the central authority in Ireland. On the 29th August, 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 25th 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. The matter came before Finlay Geoghegan J. for directions on the 20th February, 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. On the 28th 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. 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. 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 case) was a tendency to address extraneous issues under the guise of "credibility", which issues properly fell to be determined in full or interlocutory custody, access or maintenance proceedings. This observation applies a fortiori to the cross examination.

  12. The evidential remit of the court is clearly identified under the Hague/Luxembourg Convention and the Council Regulation. The cross examination was largely (but not completely) a process of assertion or denial on both sides. It was of little assistance in advancing the case of either party save in one area, that of undertakings. This is dealt with later in the judgment.

  13. I would not wish these observations to be interpreted as meaning that the affidavit sworn by the respondent did not raise issues which, if established, could be of critical importance to the welfare of the children. These included averments that: (a) the applicant had been arrested for drug dealing and possession, violence and vandalism; (b) had habitually carried weapons including guns; (c) assaulted a police officer; (d) had been a heroin addict; (e) had been diagnosed as suffering from mild schizophrenia and drug addiction; (f) had family connections, now in Queensland who were engaged in 'black magic'; (g) was paranoid; (h) had trained dogs to attack on command; (i) had denied paternity of the children; (j) intimidated the respondent and verbally abused her; (k) admitted that he had shot a man; (l) sexually assaulted the respondent on a regular basis (on one occasion with a gun) threatening to kill her.

  14. Specifically with regard to the children it was alleged that the respondent had ill treated them, rowed with the applicant in their presence, and subjected them to an over harsh disciplinary regime. This was said to be particularly so in relation to the older child, T. It was alleged the applicant had in the past verbally abused him, locked him in his room, and mistreated him. In cross examination the applicant denied that he had engaged in such inappropriate conduct. He accepted from time to time having physically disciplined the children.

  15. The applicant avers that he was born on the 19th June, 1984, in Ethiopia. An issue arises as to his birthdate.

    Matters not in dispute

  16. The parties first met at high school in Brisbane in 1998. They began a relationship at the young age of fourteen years. Both came from unstable and insecure backgrounds. They continued attending high school until the year 1999. In the year 2000 they began residing together in a de facto relationship. They were aged sixteen years at that time. The applicant then worked in a factory. The respondent undertook an apprenticeship in an office. She then worked in childcare. They lived in a suburb of Brisbane. When in 2003 the applicant, the respondent and their first child T. travelled to Ireland for a working holiday, the applicant worked here as a federal security officer and the respondent as an administrator.

  17. In 2004, Ra., the second child was born in the Rotunda Hospital in Dublin. He is an Australian citizen by descent. In December, 2004 the parties returned to Brisbane with the intention that the applicant would pursue a career with the Royal Australian Airforce. This project did not succeed. He undertook an apprenticeship as a boilermaker.

    Name and age of the applicant

  18. The respondent states that the applicant was actually born R. G. in Ethiopia on the 28th June 1982 and not on the 19th June 1984. If true, he would be twenty six years of age. She states that, (in circumstances unexplained) the applicant's mother changed his name and forward-dated his date of birth to "R. T." born on the 19th June 1984 in order to qualify for Australian citizenship. She says that when the applicant arrived in Australia in August 1995 he was thirteen years of age which would have exceeded the age limit for him to be put on an application form for citizenship if his original date of birth had been correctly made out. She says an arrangement was made for a birth certificate setting out a later date of birth. No details are provided as to the arrangements, or whether it was officially sanctioned or if it occurred, its consequences. This court is not in a position to make any finding on this point.

  19. The respondent is an Australian citizen of Irish parents. Both her parents are natives of Co. Tipperary. Her parents separated when she was aged four. Her father now lives in the Philippines where he is remarried. Her mother lives in Dublin. She has a maternal half-brother, who is Australian, whom she has never met. Her paternal brother S. is said to live in Australia. Her youngest paternal half brother, Ti. lives in the Philippines. She has met him only on...

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