Tarritt & Director General of the Commonwealth Services 2008  FamCAFC 34

Parents had a daughter aged 11 years at the time of the hearing.  The mother left the daughter in the care of her father who lived in the USA.  The parents disputed care of the daughter and a USA court in 2004 found that the father was a devoted parent.  The parents agreed that the daughter travel to Australia to live with the mother for one year, but the mother withheld the daughter from the care of the father at the end of that time.  The daughter said that she did not want to return to live with her father as an older brother in the father’s house had a severe behaviour problem that impacted on her.   The father appealed an order that allowed the child to remain in Australia (sibling separation).

A family consultant conducted two assessments of the daughter’s capacity to decide.  The first assessment found that the daughter preferred to live with her mother as she went out more, and the father often left her to watch TV whereas the mother helped her with homework.   The consultant considered that the child’s thinking was expressed in black/white terms with no ambivalence.  The consultant concluded that the daughter was then not old enough to understand the complexities of the situation, and did not show decision making capacity.

A second assessment of the child’s ability to make her own decisions was conducted when the child was aged almost 11 years and was analysed against three criteria: recognition of grave risks, the child attaining an age and maturity to decide, and whether the child’s objection showed a strength of feeling that was more than a mere expression of preference.   No grave risks were identified.  The consultant considered that the daughter now showed autonomous thoughts and strong feelings despite experiencing pressure from both parents, and showed desperation to remain with her mother.  The consultant considered that the daughter was not able to anticipate possible regrets over her decision.

The appeal court accepted that the girl had sufficient capacity to decide and dismissed the application to return the child to her father.