BEGA & SECRETARY, ATTORNEY‑GENERAL’S DEPARTMENT AS COMMONWEALTH CENTRAL AUTHORITY - [2017] FamCAFC 183

FAMILY COURT OF AUSTRALIA

BEGA & SECRETARY, ATTORNEY‑GENERAL’S DEPARTMENT AS COMMONWEALTH CENTRAL AUTHORITY

[2017] FamCAFC 183

FAMILY LAW – APPEAL – HAGUE CONVENTION – orders made for the return of the children to the Netherlands – where the mother had sole rights of custody at the date of removal – where the father was granted rights of custody after the children were retained in Australia and pursuant to orders made in a Dutch court – where the primary judge found that the children were habitually resident in the Netherlands at the date of wrongful retention – where the primary judge found that there was no grave risk arising from the children’s return to the Netherlands – where no error could be discerned from the primary judge’s approach – appeal dismissed.

FAMILY LAW – COSTS – where no order for costs was sought by the Central Authority – order made that the parties bear their own costs of and incidental to the appeal.

Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 4, 16(1A), 16(3), 16(3)(b), 16(5), 26, 29(5), 29(6)

Director General of the Department of Community Services & Timms (Aka Black) (2008) FLC 93-376
DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401
Harris & Harris (2010) FLC 93-454
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Murray v Director, Family Services (ACT) (1993) 116 FLR 321
Punter v Secretary for Justice [2007] 1 NZLR 40
Secretary, Department of Family and Community Services & Padwa (2016) FLC 93‑701

APPELLANT:

Ms Bega

RESPONDENT:

Secretary, Attorney‑General’s Department as Commonwealth Central Authority

FILE NUMBER:

BRC

10973

2016

APPEAL NUMBER:

2017

DATE DELIVERED:

1 September 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Murphy & Kent JJ

HEARING DATE:

24 August 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 July 2017

LOWER COURT MNC:

[2017] FamCA 506

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Wilson QC

SOLICITOR FOR THE APPELLANT:

D A Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Berger

SOLICITOR FOR THE RESPONDENT:

Australian Government Solicitor

Orders

The Application in an Appeal to adduce further evidence filed on 7 August 2017 be allowed.
The appeal be dismissed.
Order 1 of the orders made by the Honourable Justice Carew on 5 July 2017 be varied by deleting the words “within 28 days of the date of this Order” and substituting the words “on or before 4:00 pm on 29 September 2017”.
The Department of Communities, Child Safety and Disability Services is requested to forthwith notify the Jeugdbescherming Regio City J (“the JBRA”) of this Order and the reasons for judgment of the Honourable Full Court and request them to consider whether any legal or other steps should be taken in the Netherlands pending return of the children.
The respondent is to forthwith serve a sealed copy of this Order on the Australian Federal Police.
Each party shall bear their own costs of and incidental to this appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 28 of 2017
File Number: BRC 10973 of 2016

Ms Bega

Appellant

And

Secretary, Attorney-General’s Department as Commonwealth Central Authority

Respondent

REASONS FOR JUDGMENT

B and C had lived all of their lives in the Netherlands until 23 June 2016 when they left that country and travelled with their mother to Australia, arriving on 25 June 2016. At that time the children were aged nearly nine and five respectively.[1] Neither the children nor either of their parents had any prior connection with Australia.
[1] B was born in 2007 and C in 2011.
On 2 March 2017, the Central Authority[2] filed an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) on behalf of the children’s father seeking the return of the children to the Netherlands.
[2]In this case, the Director-General, Department of Communities, Child Safety and Disability Services,
Queensland.
On 5 July 2017, Carew J made that order together with ancillary orders facilitating the children’s return to the Netherlands. The mother appeals those orders.

Events Informing the Issues at Trial and on Appeal

Subsequent to the separation of the children’s parents on 1 November 2013, a significant amount of litigation ensued in the Netherlands. That litigation contained, it seems, a plethora of allegations and counter-allegations including an assertion by each parent that the other intended to remove the children from the Netherlands.
It seems the father did not see the children from about December 2013 until about April 2014. For a short period from the latter date, the father spent fortnightly supervised time with the children founded, apparently, in the mother’s assertion that he intended to remove the children to India. Following September 2014, the father had “FaceTime” contact with both children. That contact ceased with B in February 2015 and with C in August 2015. By the time of the proceedings before Carew J, the father had not had contact with either child for nearly two years.
On 13 January 2016 the following orders were made by the “[City P] District Court”:
The court:
3.1Terminates joint custody over the [children] … and determines that the [mother] … will be given sole custody over them.
3.2 Declares this decree provisionally enforceable;
3.3 Dismisses all other applications.
Some five months earlier, on 6 August 2015, the same court had made an order by which the children were “placed under the supervision of the certified institution Jeugdbescherning [sic] Regio City J (Youth Protection City J Region) [“the JBRA”] from 6 August 2015 to 6 August 2016”.[3] In late January 2016 the mother appealed unsuccessfully against the 6 August supervision order.
[3]Reasons for Judgment, City O District Court, Full bench division, 24 November 2016 (forming part
of the Central Authority’s Form 2) (as per original); primary judge’s Reasons, [25]. On 21 July 2016, that order was extended to 6 August 2017 – Reasons Full Bench; primary judge’s Reasons, [45].
There was an absence of direct evidence before her Honour as to the rights, duties or responsibilities devolving to the JBRA by reason of the order in its favour, but the reasons of the Full bench division of the City O District Court which were before the primary judge contain the following statements relevant to that issue:
The measure imposing a care and supervision order leads to a limitation of the parental authority of the parent charged with custody. The authority of the parent is now exercised under the supervision, and with the help and support, of the certified institution. In order for this measure to be enforceable the parent charged with custody must consult the family supervisor about important decisions regarding the care and upbringing of the minors – to the extent that aspects of the care and upbringing targeted by the care and supervision order are involved – and follow any (written) instructions from the family supervisor. This means among other things that the certified institution may give an instruction regarding the place of residence of the minors. By means of this provision regarding the power to give written instructions, the legislator has given the certified institution the authority to infringe parental custody and, if an instruction concerning the place of residence of the minors is involved, to this extent to make a decision on the matter instead of the parent with custody.[4]
[4] Reasons for Judgment, City O District Court, Full bench division, 24 November 2016, p 4.
The father appealed the order made on 13 January 2016 granting the mother “sole custody” of the children. The father’s application for an interim order to “suspend” the “sole custody” order was dismissed by the City J Court of Appeal on 26 April 2016.[5] During those proceedings, the father raised his concerns that the mother was a flight risk.
[5] Reasons for Judgment, City J Law Court, 26 April 2016.
On 29 July 2016, about a month after the mother and children arrived in Australia, the City P District Court “suspended” the operation of the 13 January 2016 order and ordered that “for the time being the [children], until determined otherwise, would be entrusted to the [father] and the [mother was] ordered to surrender them to the [father]”.[6]
[6] Reasons for Judgment, City O District Court, Full bench division, 24 November 2016, p 2.
On 3 August 2016, the father applied to the District Court in City O “for a change of parental custody … in such a manner that that [sic] the husband would be charged with sole parental custody of [the children]”. On 20 October 2016 the mother “was ordered to do everything necessary and lend her full cooperation to ensure that the [children] would be placed in the custody of the [father] within one week of the date of that judgement [sic]”.[7]
[7] Ibid.
On 29 August 2016, the father sought to have the Dutch Central Authority take action on his behalf seeking return of the children to the Netherlands. On 2 September 2016, the Central Authority refused. The father appealed that decision. On 24 November 2016, the “[City O] District Court – Full bench division” made orders and gave reasons requiring the Central Authority to do so. A Form 2 was filed in the Family Court of Australia by the local Central Authority on 2 March 2017.
On 6 December 2016, the City J Court of Appeal delivered judgment in the father’s appeal against the sole custody order in favour of the mother. The court’s order and reasons for judgment formed part of the Central Authority’s Form 2 application before her Honour. The appeal court decided that, “[i]n order to ensure that the children are returned, the court of appeal should decide that the [father] has had joint custody of the children from the very beginning” and that “the contested court order should be set aside and the [mother’s] request that she be granted sole custody of the children be as yet rejected, as argued by the [father]”.[8]
[8] Reasons for Judgment, City J Court of Appeal, 6 December 2016, [4.4].
The Court of Appeal also held:[9]
… Under these circumstances, the court of appeal considers a termination of the joint custody not to be in the children's best interests. The contested court order will therefore be set aside and the [mother’s] originating application to be granted sole custody of the children will be rejected. The court of appeal considers that, as a result of this decision, the [father’s] joint custody should be deemed never to have been terminated.
[9]Ibid, [4.9].
Under the heading “Decision”, the Court of Appeal said it “reverses the court order being appealed” and “rejects the [mother’s] originating application” and “declares this court order to have immediate effect”.

The Central Authority’s Case Before the Primary Judge

It was uncontroversial before the primary judge and this Court that the children were habitually resident in the Netherlands immediately before their removal from that country by their mother.
The Form 2 application filed by the Central Authority on behalf of the father asserted both wrongful removal and wrongful retention. The case for the former was based on the asserted retrospective effect of the 6 December order just referred to. However, that claim was subsidiary to the primary thrust of the Central Authority’s case which asserted wrongful retention from 29 July 2016.[10]
[10]A further alternative claim was based on wrongful retention on 6 December 2016 and will be referred
to briefly later in these reasons.
It was not contended by the Central Authority that the father had “rights of custody” as at 23 or 25 June 2016, it being apparently accepted that the order of 13 January precluded any such contention. The issue of whether the JBRA might have had rights of custody as defined in the Regulations[11] as at the date the children were removed from the Netherlands was not raised before her Honour nor was it otherwise the subject of argument before this Court.
[11] reg 4.
As a consequence of those matters, the uncontroversial parameters for the issues before the primary judge relevant to this appeal were:
·The children were habitually resident in the Netherlands immediately before their departure from that country on 23 June 2016;
·By reason of the order of a Dutch court on 29 July 2016, the father had rights of custody on and from that date;[12]
·The children were retained by the mother in Australia on (and after) that date;[13]
·The father would have exercised his rights of custody but for the retention of the children in Australia.[14]
[12] reg 16(1A) (c) and (d). It was not entirely clear whether that issue was conceded before the
primary judge but Queens Counsel for the mother (who did not represent her at trial) conceded before this Court that “if it wasn’t then, it is now”.
[13] reg 16(1A), (c) and (d).
[14] reg 16(1A)(e). This is implicit from the arguments that were, and were not, advanced below –
including in particular, as the mother’s counsel acknowledges that there was no reliance upon reg 16 (3)(a)(i) at trial (and nor, in any event, is there any such contention to the contrary in the grounds of appeal).
Accordingly, insofar as it is relevant to the issues raised on this appeal, her Honour’s determination of whether the children were wrongfully retained in Australia on 29 July 2016 depended entirely upon a determination of the question as to whether the children were habitually resident in the Netherlands immediately before that date.[15]
[15] reg 16(1A)(b).
The mother asserted before her Honour that the Central Authority could not establish that the children were so habitually resident but, if it could, her Honour’s discretion to not order return of the children was enlivened because there was “a grave risk” that their return would “expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation”.[16]
[16]reg 16(3)(b), noting that reg 16(5) provides that the court is not precluded from making a return order
only because that was established.
Her Honour determined that the children were habitually resident in the Netherlands immediately before 29 July 2016 and that the mother had not established “grave risk”. (Her Honour also found in the alternative that the children were habitually resident in the Netherlands on 6 December 2016, to which brief reference will later be made, and on two other later dates, neither of which are relevant to any issue on this appeal).

The Asserted Errors

The Notice of Appeal contains 11 grounds which, with their various sub‑paragraphs of particulars, extend over some nine typed pages. With respect, we had some difficulty in isolating the particular errors there asserted to have been made by her Honour.
With helpful clarity, Mr Wilson QC (who drew neither the grounds of appeal nor the written outline of argument on behalf of the mother) condensed the mother’s challenges into three essential grounds. Objection was taken to what was in substance an application for leave to amend the Notice of Appeal. For reasons given ex tempore during the hearing we rejected the mother’s request to agitate one of these three mooted grounds. As a consequence, the mother’s appeal was based on two grounds.
First, it was asserted that her Honour erred in finding that habitual residence in the Netherlands immediately before 29 July 2016 was established. It is contended that her Honour applied the wrong principle in reaching that conclusion, in particular by apprehending that the relevant question was whether habitual residence in Australia was established and (perhaps as a result of that) took into account irrelevant considerations or failed to take account of relevant considerations in forming the conclusion that founded the orders.
Secondly, it was contended that her Honour erred by failing to find that reg 16(3)(b) was established and failed to exercise properly the discretion which was thereby engaged by reason of failing to take account of relevant considerations.

Habitual Residence

The Mother’s Argument

The mother’s case that her Honour erred in finding that the children were habitually resident in the Netherlands immediately before 29 July 2016 can be broadly formulated as follows.
The 13 January 2016 order for sole custody in favour of the mother afforded her an untrammelled right to remove the children to Australia without consultation with the father (or, for that matter, the JBRA). That being so, it is contended that the mother was the only person who had “parental authority” (as the bundle of rights and responsibilities with respect to children is termed in the Dutch Civil Code) and, as such, her intention in respect of the children’s habitual place of residence was the overwhelming – but not the exclusive or determinative – consideration in determining the children’s place of habitual residence such that, as and from 25 June 2016, Australia became that place.
Echoing what was said by the High Court in LK v Director-General, Department of Community Services,[17] it was argued that, given the ages of the children their habitual residence should not be seen as distinct from the mother’s habitual residence and she had effectively determined that their habitual residence in the Netherlands ceased when they boarded the plane to Australia.
[17](2009) 237 CLR 582 (“LK”), 594 [27]: “The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing”.
The argument purports to accept that, following the decision of the High Court in LK, above, the question of habitual residence is to be answered by reference to a broad factual inquiry of relevant matters from the children’s perspective and that the mother’s intention is not per se determinative of the question.[18] It is contended that the factors just referred to, while not of themselves determinative, are powerfully important and they combine with other factors so as to point decisively to the children having abandoned their habitual residence in the Netherlands.
[18] See LK, above, 599 [44].
The other factors include: the limited role given to the father by Dutch court orders during the protracted litigation between the parties; the fact that ordered time with the children had been supervised for a period from about April 2014 until September 2014;[19] that electronic communication with both children had ceased by August 2015; that, consequently, the father had not had contact with the children for about two years; and that the mother, as the children’s sole custodian, had made plans for Australia to be their permanent home including the obtaining of entry visas, and a work visa and employment for herself which all pointed to the abandonment of habitual residence in the Netherlands.
[19]Her Honour at [24] found that the relevant date was June 2014 which appears to have been the date confirmed by the husband during his cross-examination. However, the Dutch Court on 6 December 2016 noted that “there [had] not been access between the father and the children since September 2014”. The difference is not material to any finding relating to issues on the appeal.

The mother’s argument proceeds that, taken together, those matters constitute the essential relevant elements of the broad factual inquiry by which the question needed to be answered.
That being so, the argument continues, because the children had abandoned habitual residence in the Netherlands, it is irrelevant when the father acquired rights of custody subsequent to their removal to Australia. That is equally true, the argument runs, whether rights of custody vested in the father on 29 July 2016 or on any other subsequent date (for example as a result of the Dutch order of 6 December 2016) because on none of those dates could the Central Authority establish that the children were habitually resident in the Netherlands.

The Primary Judge’s Reasons

Her Honour’s reasons follow the scheme of reg 16. Her Honour posed for herself the question, “was the removal to or retention in Australia wrongful within the meaning of Regulation 16(1A)” and thereafter dealt with each of the elements relevant to that Regulation.
In doing so, her Honour referred to the decision of this Court in Secretary, Department of Family and Community Services & Padwa[20] where the decision of the High Court in LK, above, was referred to at some length. Her Honour was plainly cognisant of the principles emerging from the latter and what was said by this Court in the former as to the application of those principles.
[20] (2016) FLC 93-701 (“Padwa”).
At [67] of the reasons, her Honour lists 27 factors said to be “relevant to the determination of the children’s habitual residence”. The mother contends that some of those sub-paragraphs point to her Honour apprehending the test as being whether the children had established habitual residence in Australia. For example, it is said that stated factors such as “[t]he absence of any prior connection with Australia” or “[t]he physical presence of the mother and children in Australia since 25 June 2016” or “[t]he children’s attendance at school in Australia from 18 July 2016”[21] and other factors to similar effect evidence a misapprehension of the question necessary to be answered.
[21] Reasons [67] (d); (f) and (j) respectively.
Without more, we agree that findings such as those referred to in argument by counsel on behalf of the mother might signal the possibility of error.
Yet other factors enumerated by her Honour are asserted by counsel on behalf of the mother to be wholly irrelevant to the question which her Honour had to answer and/or are pejorative statements made in moral judgment of the mother’s actions as distinct from the legal question necessary to be answered. Examples include her Honour referring to: “[d]ue to their sudden departure the children were unable to say goodbye to their living environment, school, family and friends in a healthy way”;[22] “[t]he finding by the [City J] Court of Appeal on 6 December 2016 that by suddenly removing the children from their trusted environment the mother ‘has not put the children’s best interests first [and it] would appear she mainly acted out of self-interest’”; “[t]he mother’s change of name for herself and the children in an attempt to avoid detection” and “[t]he presence of the mother’s partner in Australia living with her and the children and his departure on 25 December 2016”.[23]
[22] Quoted from the Judgment of the City J Court of Appeal on 6 December 2016, [4.8] (as per
original).
[23] Reasons [67] (b); (c); (g) and (i) (emphasis in original).
Again, we agree that, taken in isolation, findings such as those referred to in argument by counsel on behalf of the mother signal the possibility of error.

Is There Appealable Error?

Ultimately, we are not persuaded that her Honour erred in the manner asserted by the mother.
First, the findings referred to in argument on behalf of the mother must be seen in the context of the cases that were advanced before her Honour and, in particular, that of the mother.
The mother’s case at trial, as outlined, included the following:[24]
[24]         Case Outline of the mother filed 1 June 2017.
1.        The basis of the [mother’s] resistance to the application:
…
b.the habitual residence of the children became Australia upon their arrival;
…
HABITUAL RESIDENCE
…
4.        It is contended by the [mother] that:
a.The children’s habitual residence became Australia when they arrived in the country;
…
c.On the continuum of dates proposed by the [Central Authority] the children are habitually resident in Australia.
Thus, while the Regulations required her Honour to pose and answer the question in the manner earlier outlined, it was also necessary (or at the very least highly desirable) for her Honour to make findings in respect of the habitual residence case agitated by the mother. Her Honour did so in our view by positing factors potentially relevant to that question by comparison with, and in some cases as the obverse of, those potentially relevant to addressing the question required by the Regulations.
That view is reinforced by the fact that, while factors of the type to which we have referred were enumerated within [67] of the reasons, her Honour thereafter considered specifically, and rejected, contentions by the mother that the children were well settled in Australia (at [68]) before considering matters which were directed specifically to the question of whether “immediately before 29 July 2016 the children habitually resided in the Netherlands” (at [69]).
Taken together, we consider that her Honour made sufficient findings relevant to the broad factual inquiry which her Honour was bound to conduct so as to answer the relevant question required by the Regulations and to properly found the conclusion reached.
As her Honour’s findings indicate, her inquiry encompassed factors which the argument on behalf of the mother seeks to ignore. In our view, the circumstances relevant to answering the question of habitual residence were not confined to those for which the mother contends but, rather, also included the broader context of the lengthy proceedings concerning the children in the Netherlands which were ongoing in that country, including an appeal, ultimately successful, against the very order said to found the mother’s unilateral right to decide the children’s country of residence.
So, too, those circumstances included the continuing role of the JBRA. The mother contends that the Central Authority did not put before her Honour evidence (including in particular expert evidence) of the precise nature and extent of that body’s rights and powers including in particular whether those rights and powers impacted on decisions made by a parent with “sole custody”. However, the Central Authority’s Form 2 annexed a copy of the reasons for decision of the Full bench division of the City O District Court, a relevant extract of which is earlier quoted by us. Her Honour was entitled to take judicial notice of the same.[25] Furthermore, the mother’s former lawyer in the Netherlands deposed to the powers of the JBRA including that, “[f]or example, if the supervisor gives a binding instruction, the parent with custody must follow this instruction”.[26]
[25] reg 29(5) and (6).
[26] Affidavit Ms L, sworn 20 April 2017, [20]; Transcript, 31 May 2017, p 161 ln 40 ff.
The issue of the powers of the JBRA was, of course, not determinative of the question of the habitual residence of the children immediately before 29 July but in our view her Honour was perfectly entitled to examine the state of the proceedings in the Netherlands, including the involvement of a statutory body charged with protecting the children’s interests. Her Honour was also entitled to take into account the father’s position with respect to the children in proceedings already undertaken and pending in the Netherlands.
Her Honour was not in our view determining whether the children were habitually resident in Australia (which would have been erroneous) but, rather, comparing, from the children’s perspective, a broad range of factual matters pertaining to their position in the Netherlands with those pertaining in Australia. In setting out her findings at [68] and [69] of the reasons, her Honour was in effect heeding what the High Court said in LK, above, at [23] and [27]:
… First, application of the expression “habitual residence” permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.
...
When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
Also important to the arguments in the instant case, the High Court went on to say in LK, above, at [45]:
Moreover, the approach described in [Punter[27]] accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents’ subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a “degree of settled purpose from the child's perspective”, the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in [Punter], which should be followed.
(Emphasis as per original; footnotes omitted)
[27] Punter v Secretary for Justice [2007] 1 NZLR 40.
“All of the circumstances of the case” here included not only the history of the Dutch proceedings and the children’s position within them (including what the JBRA had to say about that in light of the longstanding litigation of the parents) but also the position of the children within their environment in the Netherlands, where they had lived all of their lives, juxtaposed to their position in Australia where they had lived for not quite five weeks as at 29 July 2016.
We are not persuaded that her Honour erred in finding that, immediately before 29 July 2016, the children’s habitual residence was the Netherlands.

The Central Authority’s Alternative Cases

As has been seen, the Central Authority contended in the alternative to the argument just referred to that the children were habitually resident in the Netherlands immediately before 6 December 2016.
This challenge was only faintly pressed because of the, with respect, proper focus on 29 July 2016 as the determinative date. Effectively the mother’s counsel conceded, with respect properly as it seems to us, that if we considered that her Honour did not err in respect of the finding of habitual residence on 29 July, it was not necessary for her Honour to consider habitual residence on the later date and no error relevant to that finding can be reasonably asserted.
It also follows that if her Honour did not err in finding habitual residence on 29 July, she did not err in finding that it was not necessary for her to decide if the 6 December 2016 order had retrospective effect so as to give the father rights of custody immediately before the children’s removal from the Netherlands so as to render that removal wrongful under the Regulations.[28]

Grave Risk

[28] Reasons, [82].

The Mother’s Argument

The mother contended before the primary judge that, in the event that the court found the children were wrongfully retained contrary to the Regulations, return of the children involved the “grave risk” that they would be exposed to “physical or psychological harm or otherwise … [placed] in an intolerable situation” within the meaning of reg 16(3)(b). The mother bore the onus of establishing this contention.
The matters the mother says gave rise to a “grave risk” are the alleged incidents of domestic violence perpetrated by the husband; the asserted significant prospect of criminal proceedings against her upon her return to the Netherlands; the impact of the children being placed in the care of the father or foster care upon their return; and the risk that the father would relocate with the children to India.

The Primary Judge’s Reasons

Before considering the evidence relevant to the enquiry of whether there was a grave risk, her Honour had regard to the principles outlined by the High Court in DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services.[29] The important passages of that decision as quoted by her Honour are at 417 – 418 of the majority judgment.
[29] (2001) 206 CLR 401 (“DP”).
Having had regard to the evidence put forward by the mother, her Honour concluded that the mother had not satisfied the requirements of reg 16(3)(b). In so concluding her Honour had regard to the following:
a)“[T]hat there is significant support in the Netherlands for victims of domestic violence. The history of the proceedings in the Netherlands between the father and mother persuade me that legal measures can be put in place quickly to provide protection for mother should she so require and that the police provide rapid response to complaint” [106];
b)“[T]he prospect of criminal proceedings being brought against the mother seem somewhat remote” [108];
c)“[T]he prospect of the mother not returning [is] remote” [111];
d)“[T]he court and authorities in the Netherlands have the capacity and willingness (given their past involvement) to make appropriate arrangements relating to the children’s placement” [118];
e)“The JBRA retain supervision of the children pursuant to an order of the court in the Netherlands” [118]; and
f)The father has a significant connection to the Netherlands such that her Honour was “not satisfied that the father is a flight risk” [127].
Consequently her Honour determined that the circumstances were not such as to make it necessary to exercise what is frequently termed the “residual discretion”.
On appeal, the mother contends that reg 16(3)(b) was clearly satisfied on the evidence and therefore the conclusions of her Honour cannot be sustained. It was argued before this Court that her Honour did not properly have regard to matters relevant to consideration of reg 16(3)(b) and that her Honour’s reasons instead informed reg 16(5), which provides that satisfaction of an exception within reg 16(3) does not necessarily preclude an order for return.
Further, the mother contended that even if the exception had not been satisfied, her Honour had prevented the mother from putting relevant evidence before the court by, in particular, improperly “curtailing” the cross-examination of a psychologist who had, for the purposes of the proceedings below, prepared a Regulation 26 Family Report. In addition, reliance was placed upon what her Honour said of that report as part of what was said at [59] – [60] of the reasons:
I observe that the material relied upon by the respondent was extensive and contained a good deal of evidence that was irrelevant to any question to be determined in these proceedings. That observation can likewise be made of much of the cross-examination of witnesses in the case. A report had been prepared by a psychologist (although why that was so, remains uncertain in my mind) and he was cross-examined to little effect or purpose.
I take this opportunity to remind parties to an application of this type that the evidence relied upon should have a greater focus on issues that are relevant to a determination under the Convention. It is not a hearing on the merits of a parenting application.

Is there Appealable Error?

Counsel for the mother conceded before this Court that “the bar is high” when considering what circumstances enliven reg 16(3)(b). That concession is, with respect, appropriate.
In Murray v Director, Family Services (ACT), Nicholson CJ and Fogarty J with whom Finn J agreed observed:[30]
It would be presumptuous and offensive in the extreme, for a court in this country to conclude that the wife and the children are not capable of being protected by the [foreign court] or that relevant … authorities would not enforce protection orders which are made by the courts.
In our view and in accordance with the views expressed by this Court in Gsponer’s case, the circumstances in which reg 16(3) comes into operation should be largely confined to situations where such protections are not available. Similar views have been expressed by the courts of other countries …
[30] (1993) 116 FLR 321, 341.
More recently, the High Court in DP, above, examined whether the return of a child to Greece fell within the “grave risk” exception provided for in reg 16(3)(b). Gaudron, Gummow and Hayne JJ, held:[31]
… On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child. …
(Emphasis in original)
[31]DP, above, 417 – 418 [41].
What is also evident is that to satisfy reg 16(3)(b)’s requirements, the court requires “some clear and compelling evidence”.[32] To this end, the Court in DP emphasised that:[33]
… It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of grave risk to the child of exposure to physical or psychological harm on return.
(Emphasis added)
[32] DP, above, 418 [43].
[33] DP, above, 418 [45].
The mother contends that the “clear and compelling evidence” before her Honour arises from a myriad of court events prior to 23 June 2016 which demonstrated repeatedly that “contact between the father and the children [was] not in the interests of the children”.[34] By various court orders, the father: had no physical time with the children since September 2014; no electronic communication with either child since August 2015; had numerous applications for contact rejected by the Dutch courts; had a restraining order issued against him; and, ultimately the Dutch courts gave the mother sole custody. It is said that, this presents a “compelling” picture of psychological harm or the children being placed in an intolerable situation if they were to be returned.
[34] Reasons for Judgment, 14 March 2016, City P Court, [4.3].

The same is said of concerns raised by the mother regarding potential events occurring on the children’s return, particularly given that: the District Court of City O on 8 February 2017 “ordered that custody of the children be solely exercised by the father”;[35] the JBRA supervision orders apparently expired on 6 August 2017; and that the mother (and children) may be exposed to considerable litigation in seeking to re-establish access or custody. It is said that, given the children have not had any contact with their father for about two years, placing them into his care upon their return will give rise to an “otherwise intolerable situation” within the meaning of the Regulations. Two reports, one prepared by a psychologist and the other by the Queensland Department of Communities, Child Safety and Disability Services (“the Department”) are said to provide evidence of this.
[35] Reasons, [58].
The first point to be made is that her Honour was not required to predict what might occur in the Netherlands in a vacuum. Her Honour had evidence before her that:
·The courts in the Netherlands had long been seized of determining the best interests of these children;
·Three agencies in the Netherlands, including the JBRA the duties and powers of which her Honour was aware, had been involved in serving the children’s best interests;
·The courts in the Netherlands had previously engaged the JBRA in seeking to monitor the children’s best interests and had already once extended their one year term;[36]
·The Dutch courts had made an order in favour of the father.
[36]Counsel for the mother accepted that the Dutch Civil Code permitted one year extensions up to a total of five years.
Her Honour found at [118], “the court and authorities in the Netherlands have the capacity and the willingness (given their past involvement) to make appropriate arrangements” for the children. Her Honour did not fail to consider the matters referred to by the mother outlined above. In fact, in considering the impact of “the children [being] placed into the immediate care of the father” her Honour had specific reference to the fact that they had “not spent any time with him since 2014” and “expressed fear of him” [118].
Her Honour also gave considerable weight to the fact that at the time of the proceedings before her, “[t]he JBRA retain[ed] supervision of the children”[37] and that “if the development of the child is in danger … an application can be made by JBRA to … place the child[ren] in foster care [which] can be done within a couple of hours of request” (emphasis added).[38] Although it appears that those supervision orders have now expired, the JBRA has had reliable and enduring involvement with the parties and their children and has “consistently indicated an intention to promote the children’s relationship with both parents”.[39] Further, her Honour made an order that the JBRA be notified of the reasons for judgment and requested that the authority “consider whether any legal or other steps should be taken in the Netherlands” (and we intend to make a similar order in respect of our orders and reasons).
[37]Reasons, [118].
[38]Reasons, [120].
[39] Reasons, [121].
Counsel for the mother also contended that her Honour failed to give adequate weight to the findings of the two reports previously mentioned.
Firstly, the report prepared by the Department in or about September 2016 stated that the children would be:
… at significant risk of emotional harm … if they [were] forcibly removed from the care of their mother in Australia, returned to Holland and either placed in Foster care or the care of their father who they have not lived with in a significant period of time
…
This process would be very upsetting for [the children] and they will not understand what is happening and they could be scared and frightened … Child Safety is worried that if [the children] are returned to the care of their father that they will be exposed to his behaviour of threatening, stalking, and talking negatively about their mother. That he will not allowed [sic] her to see her children, or that he will take them to India and their mother will not have any access to them. This will cause [the children] to be sad, upset and scared.
Her Honour had specific regard to this report in the reasons and “[accepted] that the children are likely to be scared, sad and upset if removed from their mother’s care”.[40] However, in considering whether to return the children, and as noted in DP quoted above,[41] the Regulations intend to refer to more than the usual course of “disruption, uncertainty and anxiety” that is evident in cases such as the present.
[40]Reasons, [115].
[41]See also the discussion in Harris & Harris (2010) FLC 93-454, 85,186 [142]; Director General of the Department of Community Services & Timms (Aka Black) (2008) FLC 93-376, 82,651 [39] – [42].
That is by no means to underplay that factor; rather, it is to place it within a spectrum on which sits the specified grave risk or intolerable situation. The report in itself offered no more than some further context in which her Honour could make any relevant “prediction” of what may happen on the children’s return. Her Honour weighed this evidence against the evidence that authorities in the Netherlands were ready and willing to provide support, which, we again emphasise, was not confined to proceedings in, and orders by, a court but extended to multiple outside agencies.
Additionally, the mother contends that her Honour did not have proper regard to the Family Report prepared pursuant to reg 26. In that respect, reference is made, for example, to [59] of the reasons, where her Honour said that it was “uncertain” why that report had been obtained. We are somewhat puzzled by that comment; grave risk was in issue; reg 26 expressly provides for the obtaining of a report and the statement by the High Court in DP, above, pertains.
Be that as it may, when viewed in the context of the discussion of this evidence commencing at [116], we can see no error in her Honour’s overall approach. It is apparent from that evidence (and the cross-examination of the psychologist)[42] that placing the children in long term foster care, or in the father’s sole care upon their return, may well be “upsetting and traumatic” for the children. Further the report as quoted by her Honour noted that “[the children] would in all likelihood suffer enormous grief at not being able to live with their mother”. However, when reading the transcript it is clear that many of these conclusions are qualified by the obvious caveat that much will depend on exactly what happens upon the children’s return. For example, the transcript contains the following cross-examination of the report writer:
[Counsel for the mother]: If we could just go back to that scenario, can I ask you to comment upon the impact emotionally and psychologically of such a scenario unfolding for the two children?---I would – I would have to go back and refer to what your colleague said before. It would depend on what is put in place beforehand and the range of – a range of circumstances. So for – if, for example, it were to just come out of the blue, I imagine it would be highly traumatic for B in particular, and – and then C would perceive his sister’s anxiety and he would also be quite traumatised by that. But, you know, there might be a range of interventions that could occur beforehand that might mitigate that as well.
From whom, to do what?---Well, yes. I don’t know who the authority is who would do it. I suppose it would be child safety. But somebody would need to – to work with the kids and explain to them that a decision has been made that their father is not a man to be feared and ..... matter that might have to occur over a period of time, for the children to be convinced of it. I don’t know that a one-off sit-down with the children would achieve that. I mean, the person they trust is their mother and there’s an assumption that they’re going to accept – or there might be an – yes. You would have to be careful of an assumption that they’re just going to accept being told that their father is not – not a threat to them.
[42] Transcript, 1 June 2017, commencing at p 225.
Her Honour’s finding, based squarely on what had occurred in past proceedings and multi-agency involvement with the parents and children as part of those proceedings, is that support would very likely be available to the children upon their return. That finding was open to her Honour.
The mother contends additionally that, if she did not satisfy her onus, it is only because she “was deprived of the ability to produce and to have the Court consider such evidence by the curtailment of the cross examination of [the psychologist]”.[43] We think it fair to say that cross-examination of the report writer was somewhat curtailed. That is unfortunate given the mother’s right to attempt to establish the onus she bore with respect to grave risk. However, when reference is had to the whole of the transcript, viewed in the light of the contents of the expert’s report, we are not persuaded that any such curtailment produced any material procedural unfairness or adversely impacted the receipt of evidence that would have further illuminated the relevant issue or otherwise impacted adversely on her Honour’s consideration of the issue and her conclusions.
[43]Appellant’s Outline of Argument, 9 August 2017, paragraph 19.
Finally, the challenge to her Honour’s finding that the prospect of criminal proceedings in the Netherlands is remote was only faintly pressed. Counsel for the Central Authority pointed to what could be said by the mother if there was a criminal prosecution of her: a person with a “sole custody” order who asserted a right to take the children to Australia; historically, the primary carer of relatively young children; and no prior convictions. In addition, the only evidence suggesting potential imprisonment of the mother consisted of speculative opinion without any apparently firm factual foundation.
We are not persuaded that her Honour erred in finding that reg 16(3)(b) was not made out.

Conclusion

The appeal should be dismissed.

Application in an appeal

It should formally be recorded that the mother filed an Application in an Appeal on 7 August 2017 seeking to adduce further evidence. That evidence consisted of orders made by the City J Law Court on 26 April 2016. The Central Authority neither objected nor consented to that application.
Accordingly, as indicated during the course of the hearing, we will formally make an order allowing that application.

Costs and Other Orders

In the event of this appeal being unsuccessful, the Central Authority sought no order for costs against the appellant mother. Consequently an order will be made that each party bear their own costs of and incidental to the appeal.
It was effectively agreed that, in the event that the appeal was dismissed, 28 days from the date of these orders should be permitted to facilitate return of the children. Her Honour’s order will be varied accordingly.
For reasons we think will be clear from what we have said, we consider that the JBRA should be appraised of these orders and reasons and we will include in our orders a request to the Central Authority mirroring paragraph 9 of her Honour’s orders. We will similarly include an order that the Australia Federal Police be provided with a copy of our orders.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Kent JJ) delivered on 1 September 2017.

Associate:

Date: 1 September 2017