ATTORNEY-GENERAL’S DEPARTMENT & MCGAFFEY

FAMILY COURT OF AUSTRALIA

ATTORNEY-GENERAL’S DEPARTMENT & MCGAFFEY

[2015] FamCA 722

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where the application was made more than 12 months after the alleged wrongful removal – Where the child has autism – Where the child objected to being returned but the family consultant opined that he was not mature enough for his views to be taken into account – Where it was found that given the special circumstances of the child his attachment with the mother was very relevant – Where the mother was settled and had better financial and medical supports in Australia – Where there was evidence that autistic children do not respond well to change of routine – Where the child is now settled in his new environment –Where the Court considered exercising a discretion to return the child notwithstanding being satisfied the child is settled – Where the Court declined to make a return order.

Family Law (Child Abduction Convention) Regulations 1986 (Cth), regs 14, 15 16

De L v Director General NSW Department of Community Services (1996) 187 CLR 640

Department of Family and Community Services & Raho [2013] FamCA 530

Director-General, Department of Community Services v M and C (1998) FLC 92-828

Director General, Department of Families, Youth and Community Care v Moore (1999) FLC 92-841

Director-General, Department of Family, Youth and Community Care & Thorpe (1997) 141 FLR 44

SCA & CR (2005) FLC 93-243

Secretary, Attorney- General’s Department v TS (2000) 161 FLR 392

State Central Authority v Ayob (1997) FLC 92 – 746

State Central Authority & Hajjar (2010) Fam CA 648

Townsend & Director-General, Department of Families, Youth & Community (1999) FLC 92-842

APPLICANT:

Secretary, Attorney General’s Department

RESPONDENT:

Ms McGaffey

FILE NUMBER:

SYC

1981

2015

DATE DELIVERED:

28 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

26 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Barnett

SOLICITOR FOR THE APPLICANT:

Australian Government Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Giacomo

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

Orders

The application filed 30 March 2015 is dismissed.
That the passports for both the respondent and the child be released to the respondent by the Registry Manager.
That Paragraph 1 of Exhibit A to the order of this court dated 1 April 2015, placing B (a male) born … 2004 on the Airport Watch List, is hereby discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Attorney General’s Department & McGaffey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1981/2015

Secretary, Attorney General’s Department

Applicant

And

Ms McGaffey

Respondent

REASONS FOR JUDGMENT

Introduction

By the application filed 30 March 2015, the applicant, as delegate of the Commonwealth Central Authority (“the applicant”), applies for an order for the return of B (“the child”) (a male) born in 2004 to the United States of America (“USA”). The application is made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Ms McGaffey (hereafter referred to as “the mother”), opposes such an order on the basis that the application had not been filed by the applicant within a period of 12 months from the alleged date of wrongful removal and the child is now settled in his new environment. She also opposes the order sought by the applicant on the basis that the child objects to being returned.
In the summary of argument tendered by the mother on 25 June 2015 the mother concedes the following matters:
a.     The applicant is an eligible applicant.
b.     B was under the age of 16 years at the time the application was made.
c.     Prior to the child’s removal to Australia, he was habitually resident in the USA.
d.     At the time of removal, the father had rights of custody which were being exercised.
The case has been conducted by the mother on the basis that there is no challenge to the assertion by the applicant that the removal of the child from the USA to Australia was “wrongful” within the meaning of Regulation 16(1A).
There is no issue that the applicant did not file the application, currently under consideration, within 12 months of the date of removal or retention. That being the case this matter falls for consideration under Regulation 16(2)(b) and (c). It is the mother’s case that the child is settled in his new environment and that the evidence provided by her, when coupled with the evidence of the family consultant, is sufficient to satisfy the Court of that matter.
Should that ground not be established to the satisfaction of the Court on the mother’s case, she then opposes the return order on the basis of Regulation 16(3)(c). Her case is that the child objects to being returned to the USA and that the Court would be satisfied that all of the sub-paragraphs of the aforementioned Regulation require the application to be dismissed.
Each of the legal representatives for the parties addressed the controversy of whether discretion exists in the Court to make a return order in the event that the Court is satisfied that the child is established in his new environment. I now turn to consider the background facts in this case, many of which are not controversial.

Background Facts

The facts set out herein, which are derived from the mother’s evidence, I have accepted for the purpose of this determination. I do so in circumstances where it does not present as incredible and there is no apparent inconsistency or any other aspect of the mother’s conduct which suggests the Court ought take a cautionary approach to her evidence. Her evidence was not tested by cross-examination in this hearing. I make no suggestion that it should have been.
The mother, Ms McGaffey, is 46 years of age. The father, Mr McGaffey, is 41 years of age.
In 1998, the mother and father married. The subject child, the child, was born in 2004 in State C, USA. The parties separated in 2004, following the father being deployed overseas as part of an armed force. They were divorced in September 2005.
In 2005 and 2006, the parties reached an agreement in relation to parenting, which was approved by a State C District Court in the USA. The order made by the State C District Court included the parties having joint care, custody and control of the child. The mother was to have primary custody and the father to have secondary custody and spend time with the child pursuant to a specific schedule of visitation.
It is common ground that in about 2007, the child was diagnosed as a high-functioning autistic child. Because of that condition, the child received special assistance from therapists and other support services. In September 2011, the mother commenced home-schooling the child; however, in January 2012, he attended a conventional school, although being titled “school of creative arts”.
In October 2013, orders were made in a court in State E. Orders were also made in relation to child support. In December 2013, the father filed an application in the State E Court to prevent the “abduction of the child”.
On 6 December 2013, the mother left USA with the child and commenced residing in Canberra, ACT Australia. She resided there until April 2014. In December 2013, the mother sent a text message to the father’s then partner advising that she was in Australia and that she had “return tickets for 3 months’ time (just in case we didn’t like it, but I doubt that!)”.
In December 2013, the father provided authorisation for the Australian Central Authority to act on his behalf.
On 8 January 2014, the mother sent an email to the father in which she said that “we will not be returning the USA until February” and notified the father of her address in the ACT.
On 15 January 2014, the father made an application for the return of the child under the Hague Convention on Civil Aspects of International Child Abduction 1980 (“the Convention”). It seems that something further was required on the father’s part before action could be commenced by the Central Authority in Australia and he completed that in about November 2014.
In April 2014, the mother and the child moved to D Town, NSW Australia. There the mother enrolled the child in the D Town Primary School.
In November 2014, the father was in a position to move on his request for the Central Authority to return the child to the USA. He swore an affidavit at that time. On 19 November 2014, the father sent his application for the return of the child to the USA State Department.
In January 2015, the mother commenced home schooling the child on a full time basis. On 30 March 2015, the application for the return of the child was filed.
As stated earlier, there is no issue between the parties that the application for the return of the child was filed more than 12 months after the removal of the child from the USA. This is not a case of wrongful retention, given that at no time did the father ever consent to the removal of the child from the USA.
The evidence to support the mother’s contention that the child is settled in his new environment must be found in her evidence, or the family consultant’s report, given that there is no concession on the part of the applicant to that effect. So far as the family consultant’s report is concerned, the conclusions reached by the family consultant may be seen as clouded by the particular circumstance of the child, namely that he is a high functioning autistic child. That observation is set out here because the cross-examination of the family consultant significantly related to the difference in the demeanour and manner of response which she observed in the child (as recorded in her report) and that which might reasonably be expected to be observed in a child who was not diagnosed as being a high-functioning autistic child. I will refer to the evidence in relation to that aspect later in these reasons.
Turning then to the mother’s evidence which addresses the question of whether the child is settled in his new environment.
The mother’s evidence establishes to my satisfaction the following facts. The mother was born in Singapore in 1968. Between 1989 and 1991, she travelled in Australia. She then travelled to the United Kingdom where she met and married her first husband. In 1993, she and her first husband moved to R Town, Australia, and in 1998 she was divorced. The mother met the father in Darwin, Australia in August 1998 and they were married in that year in the USA. They separated in September 2004 and divorced a year later. the child is the only child of that relationship.
The mother’s evidence is that she did not wish to live permanently in the USA and that the father had acknowledged her view and assured her that when he retired from the defence force in two years’ time, they would move to Australia.
B was born in 2004. Approximately five days later, the father was deployed overseas. During 2004, the father would return home from deployment, sometimes only for a few days. In September 2004, the father told the mother that he no longer wished to be married to her. In November 2004, the father ceased occupying the same home as the mother and the child, and the parties were separated. In October 2005, the mother and the child moved to State E, where they lived until March 2012.
In August 2006, the father was posted to State F. This was a considerable distance from where the mother lived.
In 2008, the child commenced attending pre-school. In 2009, he changed schools. In September 2011, the child left school and commenced home schooling with the mother. That continued until January 2012. In January 2012, the child was enrolled in a third school titled a school of creative arts.
In December 2013, the mother and the child left the USA and travelled to Australia.
The mother reported that the child had difficulty making friends in all three schools he had attended. He was not good at making eye-contact and lacked social skills and displayed other traits associated with his autism. He was bullied and made fun of by other children. He would often return home from school distressed and claiming other children were being mean to him. In 2012, the mother endeavoured to engage the child in a martial arts class; however, there was an altercation between the child and the teacher and also with another student, so the mother withdrew him from that class.
The mother set out a history of litigation between her and the father in the USA between December 2004 and June 2013.
In her affidavit the mother set out evidence of extreme domestic violence perpetrated upon her by the father, the most extreme example being that he held a hand gun against her body and threatened her. There were also said to be many sexual assaults upon her by the father during their relationship. The mother said she was very frightened of the father.
The mother set out a history of the contact/visits which occurred between the father and the child whilst they resided in the USA. The time spent by the father with the child was limited and infrequent. In August 2006, there were orders in place which provided for the father to spend time with the child. The mother says that the father did not always exercise the time provided by the orders. From the date of those orders, though, the father had overnight time with the child. In December 2006, the child had a week with his paternal grandmother and saw his father during that time. In August 2007, the father was to spend four weeks with the child pursuant to the orders. The visit lasted two weeks only. There was another visit in November 2007, August 2008, September 2008, and October and December that year. There were four visits in 2009, four in 2010 (although these visits tended to be for multiple days), three in 2011 and four in 2012. On one of those visits in January 2012, the father provided a gun to the child as a Christmas present.
In 2013, the child was resistant to spending time with his father. In August and October 2013, the child spent time with his father. There was another week in November 2013 when the child spent time with his father; however, he was resistant to that time. After that trip, the child was very resistant to spending time with his father.
The mother and the child arrived in Australia on 6 December 2013 and moved to stay with friends in Canberra. In April 2014 the mother and the child moved from Canberra to D Town, NSW. The mother obtained a six month lease on a two bedroom apartment. The mother and the child still reside in that apartment.
The mother is in receipt of a Centrelink carer’s allowance as she has full time caring responsibilities for the child. She also receives Family Tax Benefits A and B and assistance for isolated child support. The application for the isolated child support was supported by Dr G (“Dr G”), the child’s GP. In contrast to her financial circumstances in Australia, the mother said that from her experience in the USA the only welfare she was able to receive was a $200 food stamp per month provision. The mother has now lost her immigration status and would need to reapply for a green card if she was to return to the USA. If the mother was to return to the USA, she would need to seek employment (assuming she could work on the visa which permitted her entrance to the country) and would be unable to home school the child.
The mother outlined significant differences in cost for her living in Australia as opposed to the USA. In particular, she referred to the medications required for the child and her limited income earning capacity in the USA.
The mother said that the father has threatened to institute criminal charges against her for abduction if she were to return to the USA.
B is currently having his medical conditions attended to under supervision of a paediatrician and a GP in Australia. The mother annexed to her affidavit a letter dated 6 March 2015 from Dr H, a specialist paediatrician, to Dr G, the child’s GP. This letter identifies a number of medical conditions suffered by the child. Dr H records that on an earlier consultation, she had recommended occupational therapy, physiotherapy, and psychology input for the child. the child had been seeing a practitioner in relation to those matters.
Dr H recorded that the child does have difficulties with fine motor skills and his balance. He is also soiling, generally five days out of seven. The wetting still continues however it has stopped during the day time.
Annexed and marked “M” to the affidavit of the mother is a letter signed by Dr G. She first had contact with the child in June 2014. She recorded that he has been diagnosed with autism (high-functioning). She also recorded that the child is seeing a paediatrician six-monthly and has also seen a continence advisor and a child psychologist. He is awaiting further occupational therapy.
Dr G opined of the child that “He appears to be thriving”. She recorded that:
[B] has settled in well to his life at I Town. He is enjoying the homeschooling and particularly the extra work in the areas which he enjoys (particularly mathematics and science). He and his mother are quite involved in the [local] Church and much of their social life revolves around the church and its activities. They attend church every Sunday. the child does a ‘kid’s church’ activity every second Friday evening and has a lot of friends (boys and girls) aged 9-12. They do bible studies, followed by a fun activity and a meal. the child has about 5 friends who come over to play and these play dates are reciprocated.
[B] has started drama classes weekly at [J Town]. He loves this. He is also doing regular piano lessons and enjoying them. He is keen to re-commence martial arts lessons and is talking about trying soccer.
Dr G concluded that “[B] appears happy and settled and his mother has a good understanding of his autism and his mental and physical health care needs. We continue to work on his continence issues and physical therapies.”
The mother recorded in her affidavit that the child was attending K School whilst in Canberra. She said he does not have very good social skills because of his autism. He also wets himself and soiled himself at school on a regular basis. The mother believed those circumstances contributed to him being bullied at school by other children.
When the mother and the child moved to D Town, the mother enrolled him at D Town Primary School. the child was again bullied due to his incontinence issues. Whilst he attended that school, the frequency of his soiling and wetting increased. The mother had a number of contacts from the school between April 2014 and November 2014 about the child. The mother said that because of the child’s autism, he does not cope well with transitioning between different tasks. She gave the example of a report from one of the child’s teachers who described him as “having a meltdown”. The mother had also received reports from the child’s school teachers advising that the child had run from the classroom if the noise from the classroom became too loud.
In November 2014, the mother made enquiries of the Board of Studies, Teaching and Educational Standards NSW about home schooling for the child. On 16 January 2015, the mother received approval for home schooling for the child.
Since that time, the mother has established a routine where the child works for between two to four hours per day on school work.
The mother also set out details of the daily routine she has created for the child in her affidavit.
At paragraph 152 of her affidavit, the mother set out the weekly routine she has instituted for the child. She has integrated everyday activities with educational instruction.

The mother said that the child has made friends with a number of children in the neighbourhood and through church and through the home schooling community. She named his best friend as L (aged nine) and she set out details of six other children with whom he has friendships. She also set out details of “strong male role models” with whom the child has contact.
On Friday afternoons, the mother takes the child to “home education meet-ups”. These will usually take place at a beach if the weather permits. The mother and the child will be attending the end of year camp at M Camp, N Town. This is a camp for Home Schooling group children and their parents.
Until April 2015, the child was participating in swimming lessons. He is now able to swim 50 metres. In the summer time, the mother said she will enrol him in surfing lessons and sailing lessons. the child has piano lessons outside the home once a fortnight. He also attends drama class outside the home once a week. The mother reported that the child very much enjoys this class. Otherwise, the mother engages the child in attending a local golf range, on bike riding or riding scooters in the local park. The mother proposed to enrol the child in martial arts in the next school term. the child has also told the mother he would like to take up soccer.
On occasions, the mother has taken the child to the local library, where the librarian holds art classes for children.
The mother and the child are members of the local Church and enjoy “a lot of social events” through that entity. There are also social events associated with the child’s drama class.
The mother has been able to establish a social circle of friends in the area where she lives at D Town. She said that she has taken advantage of counselling to assist her with recovering from domestic violence. She has also engaged the services of a psychiatrist and has attended upon her GP. She sought assistance from Dr O, psychiatrist, with her ADHD diagnosis.
Since moving to Australia, the mother has been able to repair her relationship with her parents, which had been strained while she was in a relationship with the father. She speaks with her parents once a week. Her parents visited her in April 2015. They are currently living in the UK, but may move to live in Australia.
To the extent it is relevant to find I am satisfied the mother is now very settled in the P Town area. I will discuss this matter and the impact upon the child of that circumstance later in these reasons.
On 10 June 2015, Ms Q, the family consultant, signed her report prepared for this hearing. That report became her evidence in chief when she was required for cross-examination.
The report was prepared to address, inter alia, whether, in the opinion of the family consultant, there is evidence that the child has settled into his new environment.
The family consultant recorded the information provided in the mother’s affidavit that the child was diagnosed in 2007 as a high functioning autistic, and that he suffers from primary enuresis and constipation/soiling. She also noted what the mother had said about the child’s integration into his current physical environment.
The family consultant recorded that:
[B] (aged 11 years and 5 months) presented as an engaging, talkative, intelligent child with a great sense of humour and wide-ranging interests in the world. He has an animated manner and from his facial expressions it was usually obvious what emotion he was wanting to convey. Some minor behavioural traits of Autism were noticeable but certainly the child is in the high functioning range.
The family consultant also reported:
[B] launched straight into saying that he is playing “AFL in a local team” and that he hopes to play cricket also. He said he has friends in the area in which he lives and mentioned names of two. He said that he meets up, usually on Fridays, with other children who are, like himself, home schooled although when asked, he said he forgets their names and has not seen them outside the group. the child added that he would be going to Canberra for the weekend with his mother and that he has “a truckload of friends” there from when he lived in Canberra when he and his mother first arrived in Australia. In contrast to this, the child said that he had “no friends” in the USA.
The family consultant recorded that the child said he likes being home schooled. He was able to provide her with a number of reasons. He described his home life with his mother and their routine. He said in relation to school that he had “a lot of problems” and “it’s been quite hard”. He gave the family consultant examples of being “blamed on” by children at school. He told the family consultant that his father had tried to put him in school.
Although the child asserted he had family in Australia “much more than in the US” he said he does not know them. He made negative statements about his family in the USA, saying that his grandmother never calls and that his father never calls.
The family consultant opined that the child was very keen to give the impression he was happy and settled in Australia and that he misses nothing and no one from the USA. He used facial expressions (sometimes quite extreme) to emphasise his statements. The family consultant recorded that the only ambivalence displayed by the child about loss from the USA was when questioned about pets he had there.
The family consultant opined that the child gives the impression of being settled in his new environment and said that he is. He gave her a number of reasons why he feels this way. The family consultant opined that it would not be unusual for a child (or indeed anyone) to move from where they are used to living to an unknown place, leaving behind familiar things and people, without feeling some degree of uneasiness and ambivalence if not loss and grief. She considered that the child’s absolutism about his old and his new lives suggest that he is, perhaps unconsciously, repressing what would be normal and expected feelings of loss in relation to what he has left behind. This may be an effective coping mechanism for the moment, but it is not a psychologically healthy mechanism in the longer term.
The family consultant then addressed the question of whether the child objects to being returned to the USA. She recorded that he does object to being returned to the USA. She recorded that he could not think of anything good about the USA. She then set out negative statements which he made. These included very negative statements about his father. He was also dismissive of his paternal grandmother.
The family consultant concluded:
[B’s] objections to returning to the USA do demonstrate a strength of feeling beyond the mere expression of a preference or of ordinary wishes, but the strength seems to derive more from a wish to convince the person he is talking to than from an inner strength of feeling of not wanting to return. The impression gained is that the child has been told, or at the least, has overheard his mother enumerating, a lot of negative things about life in the USA, his father and his paternal grandmother, and that he felt a need to repeat and even embellish them.
The family consultant further concluded that the child, overall, presented as not mature enough such that his views in relation to objecting to the USA ought to be taken into account. The family consultant said he was polarised in his position. People in countries were either all bad or all good. The family consultant said “Being able to acknowledge ambivalence and convey nuances is an indication of maturity and the child did not do so.”
The family consultant was required for cross-examination.
The family consultant was asked whether she had formed the view that the child was somewhat settled, but not completely settled in his new environment. She said “No. The child tried very hard to convince me that he was settled. He gave examples but I was not totally convinced that those examples were evidence of being settled.” The family consultant confirmed that she had been concerned the child had been influenced by his mother’s view. She said “his mother’s views, attitudes, and feelings are very important to him.”
The family consultant said that she had not had any difficulty accepting what the child had said about his difficult experiences at school, and generally about his life in Australia, because of the way he was when he spoke of those matters. His disposition and his emphasis was more heartfelt, she thought.
The family consultant was asked whether she thought the child’s connection with Canberra was greater than to where he is now. She said no and considered that his statements about Canberra were just hyperbole.
The family consultant was cross-examined by the mother’s counsel. She was taken to DSM-V, and therein to the diagnostic criteria for autism. The diagnostic criteria were read to the family consultant and she said she accepted those were the criteria. It was consistent with her experience with dealing with autistic children. She said she observed aspects of those criteria with the child. She acknowledged that the extreme facial expression used by the child was not inconsistent with the criteria. She acknowledged it is possible that the gestures she observed in him were part of his autism. She also observed that this was so of his exaggerated gestures. She acknowledged that it may have been that he was experiencing difficulty matching his facial expression to the content of his statements. She did not think that she would entirely attribute his exaggerated gestures to autism.
In relation to the family consultant’s statement that she thought the child was trying to convince her of his views, she said that most children in her experience did this. She said he was not relentless in putting forward his views. She emphasised that what she had said in her evidence did not mean she thought he wasn’t being genuine. She said “I think it is highly likely he expressed his genuine wishes.” She agreed that it is usual that children in the circumstances in which the child finds himself would take on the views of the parent with whom they live. She agreed that this does not mean they are not genuinely held views.
The family consultant was questioned about her statements that the child had not expressed any sense of loss for his life in the USA. She said that “it is normal that children of this age would not talk to me about matters of loss.”
The family consultant was asked “was it your opinion that the child was well settled in Australia?” and replied “from what I could assess, yes.”
The family consultant was then asked about the child and the possibility of his return to the USA. She agreed that if the child returned to the USA and was to live with his father in Texas that would be a significant change for him. She further agreed that autistic children like routine and a return to the USA with his father would be a monumental change for him.
Oral evidence was also provided by Dr G. She detailed the dates upon which she had seen the child, which are seven in all, ranging from 19 June 2014 to 30 April 2015. She said that she had not seen the child alone and that his attendances had been predominantly to do with his autism. She said the child had presented as well settled in his current environment. She observed that he had always been happy when she saw him for consultations.

Submissions

The Applicant

The applicant relied on their written submissions provided by their counsel.
In addition, counsel for the applicant made the following further oral submissions. It was submitted the child has not been in the one place in the time that he has been in Australia. Accordingly, the child has had to adjust twice to changes relating to significant aspects of his life. This included the child’s enrolment in school until November 2014. It was not until January 2015 that the mother became qualified to conduct home schooling. It was submitted that a change of school must have been destabilising on the child, albeit that it may have been in his best interest. The applicant noted that when the child was pressed about friend by the family consultant he was only able to name two and could not name others from his home school environment and other social activities.
It was submitted that being settled involves the entirety of the environment.
It was not put that the child has to be found to be settled in every aspect of his life, but rather, that he was settled overall. This included schooling, housing, relationship and family and friends.
The applicant submitted that having regard to all those matters, the Court would conclude that the child is not settled.
The applicant also submitted that the Court needs to have regard to social integration within the surrounding society. the child’s engagement in extra-curricular activities has not been wholly consistent. His involvement with AFL is only recent. It was submitted that the Court needs to find that as at the date of the trial, the child is settled. There have been a number of upheavals since he has been in Australia; however, he lives in an insular environment.
It was submitted that the “settlement” required to be considered relates to the child’s local environment in Australia, and the conclusion that sending him back to the USA would be unsettling. It was submitted that this was very much akin to a case involving a very young child with principal attachments to a person and if that person will return with the child, then the settled situation will remain with no adverse consequence to the return.
The applicant then addressed the evidence of the family consultant. It was submitted that because of the conclusions about the weight to be given to the child’s views in relation to his objection to return to the USA the Court would give little weight to his stated views in relation to his being settled in Australia.
In relation to the oral evidence of Dr G, it was submitted that her evidence should not be given as much weight as that of the family consultant. It was submitted that the report of Dr G contained in her letter annexed to the mother’s affidavit is based on self-reporting by the mother.
The applicant submitted that even if the Court was to find that the child is settled in Australia, there remains a discretion to return him to the USA notwithstanding. The applicant submitted that in relation to that discretion, the Court would take into account the following matters:
·   There are orders made in the USA;
·   The mother lied to the father, saying that she was on holiday in Australia;
·   The mother has not enabled the father to have any contact with the child;
·   The child was denied contacted with the father’s family;
·   The child is in home schooling here;
·   The mother would return to the USA with the child;
·   The mother has home schooled in the USA;
·   The mother’s parents own a house in the USA, and the she and the child have lived there for a number of years before coming to Australia.

Mother’s submissions on “settled”

The mother submitted that the determination of whether a child is settled does not rely on a determination of the child’s maturity. It arises from general objective assessment of all the relevant evidence.
The mother gave significant evidence about the child’s current circumstances, which, it was submitted, would satisfy the Court that he is settled. She and the child have resided in D Town for 13 months. He has been home-schooled since January 2015. This is progressing well. Extensive detail of his routine since January 2015 has been set out by the mother. There is nothing to suggest that the child is not thriving in that environment.
B has told the family consultant he likes home schooling. He was able to express reasons for his preference.
B was also able to indicate his activities in a manner that was consistent with the evidence of the mother. He plays AFL and was proposing to play cricket in the summer. These are both team sports and require integration with other children. He attends drama classes and church activities on a weekly basis. These have been ongoing for 12 months. He has friends in the area where he lives. He integrates with other children who are home schooled. He has impressed Dr G as being happy and settled. She has seen him on seven occasions since he has been in his current environment.
Dr G says the mother has a good understanding of the child’s autism. The family consultant in her oral evidence considered the child was well settled, from what she could assess. It was submitted that all the evidence, both stated by the child himself and objectively assessed, would lead the Court to the conclusion that the child is happy in his current environment and settled.
It was submitted that although the family consultant reported that she thought the child was attempting to convince her of his case, she also said this was normal for children of his age group.
It was submitted it is clear that the mother is settled in her current environment and as she is the significant carer for the child, this is an important piece of evidence to consider objectively.
The proposition was put that objectively assessed the evidence establishes the mother is clearly in a far better financial and emotional state living where she does now than where she was living in the USA.
It was submitted that if the Court concludes the child is settled, then there is no discretion in the Court to return the child. Reference to the decision of Justice Kay in State Central Authority v Ayob (1997) FLC 92 – 746 (“Ayob’s case”) was made.
If, contrary to submission, the Court was to conclude there is discretion to return the child to the USA even if he is found to be now settled in Australia, then the mother would urge the Court to exercise its discretion in a manner where no return order is made.

Cases where the word “settled” has been considered

Regulation 16(2) provides that if an application for the return of a child is made more than one year after the day on which the child was removed to, or retained in Australia, and the Court is satisfied the respondent has not established the child is settled in his/her new environment, the Court must (subject to Regulation 16(3)) make the order for return.
It is apparent from the text of Regulation 16(2)(c) that the burden of establishing that the child is settled in his new environment rests upon the respondent mother, being the person opposing the return of the child. In Secretary, Attorney- General’s Department v TS (2000) 161 FLR 392 (“AG’s Department v TS”) , Nicholson CJ stated at paragraph 110:
It also seems clear that the onus lies on the mother to establish the proposition that the child is settled in his new environment. I do not regard this as a particularly heavy onus but simply the establishment of an issue of fact determined on the balance of probabilities.
As to the interpretation of “settled”, this term should be given its ordinary, rather than a restrictive, meaning. In De L v Director General NSW Department of Community Services (1996) 187 CLR 640 at 655-the High Court outlined that is no reason why Regulation 16(3)(c) should be construed strictly (“De L’s case”). The High Court stated that No “additional gloss” is to be supplied on a phrase that is expressed within the Regulation in broad English terms.
In Director-General, Department of Community Services v M and C (1998) FLC 92-828 (“M and C”) the Full Court, referring to the observations of the High Court in De L’s case, stated that “The test, and the only test to be applied, is whether the children have settled in their new environment.” The Full Court stated that as so far as previous Australian or English authorities imposed further requirements, these were not representative of the law in Australia pursuant to the Regulations:
88. It was put by Ms Hartstein that the statement of principle by Bracewell J in Re N, approved by the Full Court in Graziano's case, meant that in considering whether children are settled within the meaning of the Regulations, it is necessary to look not only at the past and the present situation, but also into the future. She said that if this were done it would not be possible to find that the children were settled in Australia because of their uncertain immigration status. She in fact went further and submitted that it was probable that the children would be required to leave Australia and that this meant that the grandmother had failed to discharge the onus upon her of establishing that the children were settled in Australia.
89. In that case her Ladyship said at 417-418 that the word ``settled'' should be given its ordinary natural meaning. She said that it involved both a physical element of being established in a community and an environment and also an emotional constituent denoting security and stability. She then referred to the decision of Purchas LJ in Re S (A Minor) (Abduction) (1991) 2 FLR 1 and then continued:—
``He (Purchas LJ) then referred to a `long term settled position' required under the article, and that is wholly consistent with the approach of the President in M v M and at first instance in Re S. The phrase `long term' was not defined, but I find that it is the opposite of `transient'; it requires a demonstration of a projection into the future, that the present position imports stability when looking at the future, and is permanent insofar as anything in life can be said to be permanent.''
90. Apart from Graziano, this passage was also cited with approval by Moss J in Director General, Department of Community Services (Central Authority) v Apostolakis (1996) FLC ¶ 92-718 at 83,650-83,651; 21 Fam LR 1 at 8.
91. In our opinion this statement does not represent the law so far as the Australian Regulations are concerned. As the majority of the High Court pointed out in De L's case it is the Regulations that must be applied. Nowhere in the Regulations are the words ``long term'' to be found and there is in our view no warrant for importing them. The test, and the only test to be applied, is whether the children have settled in their new environment. That test is to be applied either at the time of the application being made or at the time of trial. It is unnecessary to consider which date is the relevant one in the context of this case, given the short period between the two dates.

The Full Court in Director General, Department of Families, Youth and Community Care v Moore (1999) FLC 92-841 also stated, at paragraph 68, that “we agree with the statement of the Full Court in M and C that the only test to be applied…is whether the child has settled in his or her new environment.”
It is also evident from the authorities that a child can be considered as “settled” in a new environment within the meaning of the Regulations even where that child is experiencing severe problems. In M and C the Full Court outlined:
62. We regard the suggestion that because the children still needed counselling they were therefore not settled to be similarly untenable. These children and AM in particular had been severely abused by persons that they were entitled to trust. It is obvious that they will need counselling and assistance to overcome the effects of this abuse and will probably do so for many years wherever it is that they live. In our opinion it is wrong to suggest that this means that they cannot be settled into their new environment within the meaning of the Regulations. A person can be settled into an environment and still experience severe problems. Indeed it may well be that to remove them from that environment may well exacerbate such problems, as his Honour in fact found in this case.

Does the Court have the discretion to make a return order if the child is settled in his new environment?

One of the matters which is said to possibly be considered in the exercise of discretion is the fact that no prompt return of the child can be made. the child has been in Australia now for one year and eight months. The delay on the father’s part is not explained. The delay on the father’s part has enabled the child to become settled.
Regulation 14(1)(a)(i) provides that if a child is removed from a convention country to, or retained in, Australia, the Central Authority may apply for a return order for the child. The application before the Court is made pursuant to Regulation 14 of the Regulations.
Regulation 15(1) provides that, in relation to an application made under Regulation 14, the Court may make any order of a kind mentioned in Regulation 14 and any other order that the Court considers to be appropriate to give effect to the Convention.
Regulation 16(2) provides that where an application for a return order is made more than one year after the day which the child was first removed to, or retained in, Australia and the Court is satisfied the respondent has not established the child is settled in his/her new environment, the Court must (subject to Regulation 16(3)) make the order for return.
It is not disputed that the application before the Court was filed more than one year after the child was removed from the United States. Accordingly, Regulation 16(2) is applicable to these proceedings.
Regulation 16(3) provides that a court may refuse to make a return order if the respondent establishes various matters including that:
(c)    each of the following applies:
(i)    the child objects to being returned;
(ii)    the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)   the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views;
Regulation 16(5) provides that the Court is not precluded from making a return order for the child only because a matter mentioned in Regulation 16(3) is established by a person opposing return.
The question for determination is whether, where the Court is satisfied that the child is settled in his/her new environment AND the matters set out in Regulation 16(3) are not established, the Court nevertheless retains a discretion to make a return order despite the wording of regulation 16(2).
There are conflicting authorities on this issue and the Full Court has expressly declined to express a definitive view (see Townsend & Director-General, Department of Families, Youth & Community (1999) FLC 92-842, Director-General, Department of Families, Youth and Community Care & Moore (1999) FLC 92-841 and Director-General, Department of Community Services v M and C and the Child Representative (1998) FLC 92-829).
In Ayob’s case, a decision relied upon by the mother, his Honour Justice Kay opined in obiter dicta that despite some English authorities to the contrary, there is no discretion, within the provisions of the Convention, for a Court to order the return of a child who has been wrongfully retained/removed for more than one year and is now settled in his/her new environment:
I digress for a moment to say that whilst there is some suggestion in some English cases that a finding of "settled in a new environment" still leaves a discretion in the Court to order the return of a child, I must respectfully disagree with those views. If those views are simply saying that by operation of common law or local statute law, as distinct from Hague Convention law, the Court has jurisdiction to order the return of a child, then there is no dispute between myself and the other learned judges. If, however, it is suggested that within the four walls of the Hague Convention there is room for discretion in respect of a child who has met the criteria of being more than one year away from the wrongful retention or removal and now settled in its new environment, then in my view there is no such room. In my view, the Convention and the Regulations have no further application in respect of such a child.
It is suggested in Re N (Minors)(Abduction) (1991) 1 FLR 413 at 417, by Bracewell J, that there is a discretion under Article 18 as to whether or not a child should be ordered to be returned even if it is demonstrated that the child has settled in a new environment. Her Lordship said:
So the position under the Convention, so far as this case is concerned, is that it is mandatory to return the children even though more than one year has expired since their abduction, unless it is demonstrated that the children are now settled in their new environment. In the event of the court being so satisfied, then a discretion arises under art. 18 as to whether or not to order the return of the children.
Similar observations were made by Purchas LJ in Re S (A minor)(Abduction) (1991) 2 FLR 1 at 25.
Article 18 of the Convention states:
The provisions of this chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.
In my view, Article 18 does no more than indicate that the Convention makes up part of the law of a country exercising Convention powers and that it does not seek to codify the entire law relating to dealings with children about whom it is argued there are jurisdictional questions or about whom it is argued their welfare requires them to be taken to another country. In my view, if I concluded that this was a Hague child who had been wrongfully removed or retained, and that more than one year had passed prior to application being made, and I was satisfied the child was settled in her new environment, that would be the end of the matter under the Hague Convention and under the Regulations.
There is no application before this Court seeking the exercise of Family Law Act jurisdiction, or cross-vested common law jurisdiction, seeking the return of the child to the United States.
Kay J’s comments in Ayob’s case were referred to by the Full Court in M and C. While not determining the issue, their Honours Nicholson CJ, Holden and Dessau JJ observed that they were not necessarily persuaded of the correctness of Kay J’s view:
95.Before leaving this aspect of the appeal, we think it is necessary to draw attention to the obiter view taken by Kay J in Ayob’s case as to whether in a case where one year has elapsed since the child’s wrongful removal (or retention) and the filing of an application pursuant to the Hague Convention, a finding under reg 16(1) that a child is settled in a new environment, still leaves a discretion in the Court to order the return of a child.
96.At 84,072, his Honour respectfully differed from the approaches of Bracewell J in Re N at 417 and Purchas LJ in Re S (A Minor) (Abduction) (1991) 2 FLR 1 at 25 to the extent that those cases “within the four walls of the Hague Convention there is room for discretion in respect of a child who has met the criteria of being more than one year away from the wrongful retention or removal and now settled in its new environment…”. Although that set of circumstances was not found to be the case before his Honour, he said that had such facts been the case “that would be the end of the matter under the Hague Convention and under the Regulations.” In his Honour’s view, the matter would fall to be decided under common law or other statute.
97.While the factual aspects of the children’s being “settled” was subject to a good deal of argument in this case, the consequences in respect of discretion under the Regulations was not. We therefore do not propose to deal with that issue which should await full legal argument.
98. We should say however, that we are not necessarily persuaded that Kay J’s view is correct.
Kay J, however, when revisiting the same issue in the case of SCA & CR (2005) FLC 93-243 (“SCA & CR”) confirmed his position that the Regulations provide no source of power to enable a court to make a return order in these circumstances, notwithstanding the doubts expressed by the Full Court. This decision is relied upon by the mother.
Similarly, in State Central Authority & Hajjar (2010) Fam CA 648 (“Hajjar”), also relied upon by the mother, her Honour Bennett J determined that having found the children to be settled in Australia there was no discretion (residual, resulting or otherwise), nor was there any power within the Regulations, to order a return of the children to the United Kingdom. Her Honour commented, at paragraph 200, that she was “comfortably satisfied” that Kay J’s decisions in Ayob’s case and SCA & CR were correct in so far as they related to children removed to or retained in Australia.
I concur with the views of Bennett J and Kay J that the source of power behind the exercise the Court's discretion to order a return, if one exists, must be found within the Regulations rather than by recourse to the text of the Convention itself. As I have previously outlined in Department of Family and Community Services & Raho [2013] FamCA 530 (“Raho”), it is the Regulations which govern and restrict the operation of the Convention under the Australian law. Therefore, while there are various English authorities which support the view that a discretion does remain with the Court to order a return even where the child is settled in their new environment (see Cannon v Cannon [2004] EWCA CIV 1330, Re N (Minors)(Abduction) (1991) 1 FLR 413, 417; Re S (a minor)(Abduction) (1991) 2 FLR 1, 25 (UK)) this Court must determine the application before it pursuant to the Regulations and these authorities are of limited assistance.
I diverge from Ayob’s case, SCA & CR and Hajjar, however, in relation to the findings therein that, in circumstances where application has been filed more than one year after the child’s removal and the child is now settled in his/her new environment, the Court retains no discretion to order a return pursuant to the Regulations.
In Raho, I referred to the decision of his Honour Lindenmayer J in Director-General, Department of Family, Youth and Community Care & Thorpe (1997) 141 FLR 44 (“Thorpe”) and specifically to the submissions made by the applicant in that case, set out at paragraph 3.32 of Thorpe as follows:
77.      This issue remains the subject of a [sic.] conflicting Australian authority, but is [sic.] submitted that there remains a discretion to order the return of the child.
78.      Moss J. in the case of Director-General, Department of Community Services -v- Apostolakis (1996) FLC 92-718, having found that in the circumstances of that case the children were settled in a new environment and [sic.] went on to state:-
‘28. The consequence of that finding is only that I am no longer bound to order the return of these children but rather I have a judicial discretion whether or not to do so, which must be exercised in the context of the policy of the Convention referred to above: see in Re A [1992] FAM 106, per Lord Donaldson MR at 122...’ (My emphasis)
79.      However, in State Central Authority -v- Ayob (1997) FLC 92-746, Kay J stated when considering the same question:-
‘I digress for a moment to say that whilst there is some suggestion in some English cases that a finding of “settled in a new environment” still leaves a discretion in the Court to order the return of a child, I must respectively [sic.] disagree with those views.’ [His Honour then goes on to consider two English decisions, where the Convention itself is the law, which support a discretion to return the child even where it has been found to be settled in a new environment based upon the provisions of Article 18 of the Convention] ‘In my view, if I concluded that this was a Hague child who had been wrongfully removed or retained, and that more than one year had passed prior to application being made, and I was satisfied that the child was settled in her environment, that would be the end of the matter under the Hague Convention and under the Regulations.’ (My emphasis)
80. Whilst referring to the Regulations in the closing stages of the above quotation, His Honour does not analyse the specific wording of Regulation 16(1)(b).
81.      Read as one continuous sentence, Regulation 16(1)(b) reads:-
‘Subject to sub-regulations (2) and (3); on application under regulation 14, a court must make an order for the return of the child: if on [sic.] the day on which the application was filed is at least one year after the day on which the child was.. first retained in, Australia unless the Court is satisfied that the child is settled in his or her new environment’
82.      The word ‘unless’ is clearly meant to qualify the word ‘must’. It follows clearly and without ambiguity, that the plain meaning of the section is that the Court no longer must order the return of the child if it is satisfied the child is settled in its new environment.
83.      The power to make an order for the return of the child is found in Regulation 15(1), not Regulation 16 (quoted at paragraph 8 above). That section empowers the Court ‘if the Court is satisfied it is desirable to do so’ to make orders of the type set out in Regulation 14 (which includes an order for the return of the child).
84.      Where the Court has found that a child is settled in his or her new environment, then it is clear that the mandatory requirement to order the return set out in Regulation 16(1) is inapplicable. However, it does not take away the power of the Court to order the return of the child granted in Regulation 15 which is unfettered by any finding that the child is settled in Australia, although it is accepted it would remain a factor to be considered.
85.      In order for a finding of settlement in a new environment to end the matter, further words would need to have been added to Regulation 16(1)(b) to the effect that the Court must not order the return of the child when there is a finding that the child is settled in his or her new environment.
86. Given that the wording of the Regulations is clear and unambiguous, it is submitted it is not necessary to have to refer to the Convention to assist in its interpretation or meaning.
Having accepted those submissions, Lindenmayer J found that the Court retained a discretion to order a return notwithstanding the finding that the child was settled in his new environment.
I agree with the submissions outlined above, namely, that while a finding that a child has settled in his or her new environment means that there is no longer any obligation for the Court to make a return order pursuant to Regulation 16(2)(b), the Court may nevertheless choose to make the order in the exercise of its wide discretion pursuant to Regulation 15(1).

Determination

I agree with the submission of the mother that the Court determines whether a child is settled for the purposes of Regulation 16(2)(c) by objectively assessing all of the relevant evidence. One part of that evidence is the views of the child. Further, as stated by CJ Nicholson in AG’s Department v TS the onus of establishing the child is settled lies upon the respondent; however, it is not “a particularly heavy onus but simply the establishment of an issue of fact determined on the balance of probabilities.”
There is nothing in the Regulations to assist in determining what the Court needs to be satisfied of in order to find the child is settled in his/her environment. There is no requirement for the child to have been in one residence or in one community or location for a particular length of time. Thus the initial accommodation which the mother had for the child in Canberra, which then changed in April 2014, does not mean the child cannot now be settled in his current environment at P Town.
This case is made more difficult by the accepted diagnosis of the child that he is a high functioning autistic child. That diagnosis has made it difficult for the family consultant to attribute real meaning to his words and actions as she witnessed them. The family consultant said she had experience in speaking with children who had been diagnosed with this condition; however, that merely equipped her to have a better chance of understanding exactly what the child was really conveying to her in the interview she conducted with him.
In my view a much broader view of the evidence is required than just a concentration upon the observations and opinions of the family consultant. In this case, given the clearly high dependence the child has on his mother, her particular circumstances become very relevant. I consider it an important matter to determine, in this case, whether the mother is settled in her new environment. I am satisfied that she is so settled. In this case I am satisfied that if she is settled then it is probable that the child is settled as well.
The special circumstances of children who are the subject of an application under the Regulations, and the subject of the Court having to determine if they are “settled” in this country, was addressed by the Full Court in M and C as set out earlier in these reasons. I have also had to consider at first instance a case where children with behavioural problems and psychological problems were settled in this country (see Raho). In that case I addressed the difficulty faced by a trial judge in determining if a child was settled in his or her new environment within Australia, where the child may not be emotionally settled in any environment in which he/she may be housed. In Raho the evidence from a medical practitioner was that one of the subject children suffered “hearing impairment ADHD (medicated); Learning Difficulties; Post traumatic stress disorder secondary to a natural disaster in New Zealand”. The subject children had lived with their mother in Christchurch during a series of severe earthquakes which the mother said rendered their house uninhabitable.
In Raho I determined that the following matters needed to be considered in order to determine if the children in that case were “settled” in their new environment.
·Are the children apparently content in their current environment (an objective observation)?
·What are the children’s subjective views of their current circumstances?
·What weight might the Court give to the children’s stated views?
·Has the mother established a stable physical and financial environment for the children?
·To what extent are the children embedded in their current community (school, supports, friends, extracurricular activities)?
·The nature and circumstances of each child which may impact upon an assessment of whether the child is “settled”.

In the subject case similar types of considerations inform the determination of whether the child is settled in his environment.
There are many pieces of evidence in this case which satisfy me that the child is settled in Australia with his mother. Those include the following:
·The mother has been living in the one location/area for more than a year.
·B and the mother are involved in community activities including church, home schooling, sporting and educational activities.
·The mother has established and used medical and psychological services for herself and for the child in the P Town area.
·The mother has re-established her relationship with her parents.
·Both the mother and the child present to Dr G as “happy”.
·Both Dr G and the family consultant concluded from their interaction with the child that he is settled.
·The mother is financially more stable and able to afford living in Australia than that she experienced in the USA. In particular, she has access to proportionally greater government support benefits than that available to her in the USA. She has greater access to medical services in Australia than would be available to her were she to return to the USA.
·The mother is more content in Australia than in the USA and therefore better able to parent the child.
·Both the child and the mother do not wish to return to the USA. However, the family consultant has cautioned against significant weight being given to the child’s views.
·B is a high functioning autistic child. The family consultant confirms that autistic children do not respond well to a change of routine.
In cases of this nature where the subject child has a special aspect to his character or make up which makes it difficult for him to operate successfully within any society or environment in which he may be placed, the Court is reminded by the words of the Full Court in M and C that “a person can be settled…and still experience severe problems”.
So it is in the present case. I find that the child is settled in his current environment notwithstanding that he suffers a considerable handicap arising from his autism.

Discretion

Assuming I am correct in my determination that there remains discretion pursuant to Regulation 15(1) to order a return of the child to the USA even though I find the mother has satisfied me that he is settled now in Australia, I turn to consider those matters which I consider inform the exercise of that discretion in this case.
It is no longer possible to make a “speedy return” of the child to the USA. the child has been in Australia now for one year and eight months.
Parenting the child is clearly an intensive, challenging, and at times a difficult pursuit. He wets and soils his pants on an almost daily basis. He is highly intelligent. He has “melt downs” where he is unable to control his emotions. His view of the world is very “black and white”. When required to participate in a school environment he is the subject of taunts and bullying because of his enuresis and soiling at school. He runs from class rooms when the noise level is too high for him. He does not cope well with changes in his daily routines or physical surrounds. As a consequence of those matters, it is important for the mother to be in her best psychological condition. It is important that she is as content as she can be in her physical environment. It is important that she has supports which she can afford. In Australia she is clearly content living in the P Town area. She has available to her the services of a psychologist which she can financially afford. Her financial security is better provided by the Government support she receives in Australia compared with that she says is available to her in the USA.
Should the mother wish to do so, or should her need to be available to the child full time no longer be required, there appears to be no legal barrier to her working in Australia to earn remuneration. In the USA, this may no longer be the case as her “green card” is no longer valid. I accept she may be able to apply to renew that and there is no evidence before the Court to say she could not recover her “green card”.
The geographical distance between the residence of the father and the place where the mother and the child last resided in the USA is considerable. Consequently, frequent face to face time for the father with the child is difficult to achieve.
With modern day electronic methods of communication, visual and audio communication between Australia and the USA is available and reasonably affordable. It is therefore possible for the child and his father to communicate by a means which enables each to see and communicate with the other in an environment which unlikely to be challenging for the child.
I need to have regard to how the mother removed the child from the USA to Australia. I accept she removed the child from the USA without giving the father an opportunity to oppose such a move. I accept that the father may have agreed to the mother taking the child to Australia for a short holiday; however it is unlikely he would have consented to the permanent removal of the child from the USA.
I take into account that the mother told the father she was in Australia soon after her arrival here; however she did say she was here for a holiday, thereby indicating an intention to return. She later informed the father she would not be returning. I take into account that those circumstances may have contributed to the delay on the father’s part in initiating action which ultimately gave rise to the filing of the Application outside a period of 12 months from the wrongful removal of the child from the USA.
I have regard to the general welfare of the child (called in Australia “the best interests of the child”). In this regard I acknowledge that the child has expressed a wish to remain in Australia and thereby an objection to returning to the USA. I acknowledge the warning provided by the Court’s expert, the family consultant, to attributing weight to those stated views/objections due to the uncertainty that they genuinely represent his true view of the circumstances in which he finds himself. In so doing I have regard to the circumstance that his stated objection to returning to the USA, if it does not represent his true feelings about returning to the USA, probably represents the closeness of his attachment to his mother and his significant dependence upon her. Thus if he is really echoing his mother’s view on not wanting to return to the USA, he probably does so because of his very close relationship with her.
I have regard to the oral evidence of the family consultant where she said that should the child be returned to the USA with his father that would be a monumental change for him. I note that is not proposed in this case; however it serves to illustrate that once settled, significant change such as returning to live in the USA at this time would present the child with a change to his routine. The family consultant specifically said that children with autism liked routine.
I have regard to the need to uphold the Convention which by the application of the Regulations in a manner which provides for the expeditious return (or otherwise) of children to Convention countries, whenever there has been a wrongful removal or retention, unless the Court finds the case fits within one of the exemptions.
Having considered those matters I conclude that the weight of the matters referred to above falls to support the Court declining to order a return of the child to the USA. The matters to which I have given the most significant weight are:
·The necessity to uphold the aim of the Convention.
·The circumstances in which the child was removed from the USA.
·The inability to make a “speedy return” order.
·    That the child is now settled in Australia for the reasons provided.
·    The matters relevant to the wellbeing of the child including the necessity for the mother to have available to her adequate financial and medical supports at an affordable level so that she can provide good and effective parenting for the child.
·    The special circumstances of the child being a high functioning autistic child.
·    The ability for the father and the child to be able to communicate using modern day electronic means.
Orders will be made as set out at the commencement of these reasons.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 28 August 2015.

Associate:

Date: 28 August 2015

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established