Colak & Viduka

FAMILY COURT OF AUSTRALIA

COLAK & VIDUKA

[2016] FamCAFC 79

FAMILY LAW – APPEAL – CHILDREN – Child abduction – Where the Department of Family and Community Services filed an application seeking the return of the children to Croatia – Whether a party has standing to appeal if not a party to the original proceedings – Where the children object to returning – Where those views are genuinely held –Where there is a risk of self-harm or suicide if the children are returned – Whether the children’s views were influenced by the mother – Whether the mother can rely on views that she may have influenced – Whether the primary judge erred in assessing the children’s age and maturity – Whether the emotional immaturity of the children was sufficiently taken into account –Where the children have attained an age and degree of maturity at which it is appropriate to take account of their views – Whether the primary judge should have imposed conditions on the children’s return – Appeal dismissed.

Convention on the Civil Aspects of International Child Abduction
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)

De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640
DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401
Gronow v Gronow (1979) 144 CLR 513

Harris & Harris (2010) FLC 93-454
HZ v State Central Authority (2006) 35 Fam LR 489
Norbis v Norbis (1986) 161 CLR 513
Re C (A Minor) (Abduction) [1989] 1 FLR 403
Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277
Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716
Re S (A Minor) (Abduction: Custody Rights) [1993] Fam 242
Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192
W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211

APPELLANT:

Mr Colak

RESPONDENT:

Ms Viduka

FILE NUMBER:

SYC

2170

2015

APPEAL NUMBER:

145

2015

DATE DELIVERED:

16 May 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Aldridge & Cronin JJ

HEARING DATE:

11 December 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 August 2015

LOWER COURT MNC:

[2015] FamCA 640

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Lloyd SC

SOLICITOR FOR THE APPELLANT:

Blanchfield Nicholls Partners

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs of the appeal as agreed, or in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Colak & Viduka has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 145 of 2015
File Number: SYC 2170 of 2015

Mr Colak

Appellant

and

Ms Viduka

Respondent

REASONS FOR JUDGMENT

Introduction

The Department of Family and Community Services (“the Central Authority”) sought the return of the two children of Ms Viduka (“the mother”) and Mr Colak (“the father”) to Croatia under reg 16 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the regulations”). The regulations give effect to Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”).
The child B (“B”) was born in Australia in 2001 and the child C (“C”) was born in Australia in 2003. The children were aged 13 and 12 respectively at the time of the hearing.
There is no doubt that in October 2014 the mother wrongfully removed the children from Croatia, where they were habitually resident, in breach of the father’s rights of custody. However, the mother opposed the return of the children on the basis that there were grounds to refuse a return order and that the court should exercise the discretion not to make an order that the children be returned. In particular, the mother asserted that both children were of such an age and maturity that their strong objections to returning to Croatia should be considered and also asserted that both children were at a grave risk of self-harm if they were to be returned. In doing so the mother relied upon reg 16(3)(b) and (c) of the regulations.
That regulation provides:
Obligation to make a return order
…
(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
…
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(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;
…
Watts J found that regulation 16(3)(c) had been satisfied in respect of both children and regulation 16(3)(b) had been satisfied in respect of the elder child. His Honour then determined, in the exercise of his discretion under the regulations, not to order the return of the children to Croatia.
It is from that decision the father now appeals. Although he was not a party to the proceedings before the primary judge he has a right of appeal as he is a person affected by the orders: Harris & Harris (2010) FLC 93-454 at 85,161.
The mother opposed the appeal. The Central Authority was not a party to the appeal and did not appear.

Background

The father was born in Australia in 1970. The mother was born in Croatia in 1966. She migrated to Australia in 1990.
The parties met in 1997, commenced to live together in 1998 and married in 1999.
In 2006 the family moved to Croatia when the children were four and three respectively. The primary judge found that the parties separated there in June 2014.
As we have said the mother and the children travelled to Australia in October 2014 without the knowledge or consent of the father. They have remained here since that time.
In April 2015 the Central Authority filed an application seeking the return of the children to Croatia.

The appeal

The Notice of Appeal filed 1 September 2015 contained six grounds. In the document headed “Appellant’s Grounds of Appeal and Submissions”, filed on 13 November 2015, senior counsel for the father sought to amend the grounds of appeal and to rely instead on the grounds contained in that Summary in lieu of the grounds in the Notice of Appeal. The mother did not oppose that course and addressed the proposed amended grounds of appeal in her written submissions. Accordingly, leave was granted to the appellant father to amend the Notice of Appeal to reflect the grounds as set out in the father’s document headed “Appellant’s Grounds of Appeal and Submissions”.

Ground 1 - For the purpose of engaging Regulations 16(3)(i)(ii) and (iii) [sic] of the Abduction Regulations, His Honour was wrong in concluding, as he did, that he should accept the objections of the two children in circumstances where, on balance, those objections were the product of the mother’s inappropriate conduct

There are essentially four aspects to the father’s challenge under this ground as developed in the father’s submissions. The first is that the primary judge ought to have found that the children’s objections were inappropriately held because of their immaturity and should be given little weight. The second is that, as the children’s views were held as a result of the mother’s conduct, she should not be allowed to rely on them. It was then submitted that the primary judge did not properly analyse and take into account the evidence as to the suicidal ideation of B. Finally, it was submitted that the primary judge erred because he relied substantially upon the ages of the children rather than their age and their “degree of maturity”.
In oral submissions particular emphasis was placed on the conduct of the mother.
It is now necessary to turn to the reasons of the primary judge who commenced by noting that “…there is no question in this case that both children object to being returned to Croatia and that those objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes” (at [54]). The father accepted that finding and did not appeal against it.
The primary judge then said:
55.The children are almost 14 and 12 and a half years of age. They are of a chronological age for their views to ordinarily be taken into account. However, under the Abduction Regulations, in order for their views to be taken into account, those views need to be expressed with a degree of maturity that allows that to happen. The Central Authority argues that, in this case, the children’s expressed objections should not be taken into account given that the children’s views are enmeshed with their mother’s views and their objections are emotionally immature. As set out above, the father asserts that the children are “parroting” the mother’s views.
The primary judge summarised the views that B had expressed to the family consultant, who had been appointed by the Court to interview the children and to report on their views, as follows:
58.The family consultant discussed with [B] the possibility that the court might determine he has to return to Croatia to decide parenting arrangements there. [B] was observed by the family consultant to become particularly agitated and adamant that this not occur. He told the family consultant “I want to stay here, the Court has to be here” and “If I go back to Croatia, I have a harbour [meaning Sydney Harbour] that I could jump in, I would rather jump onto this Harbour bridge and kill myself rather than go back to Croatia”. At another point during the interview, [B] indicated he would kill himself if required to return to Croatia and said “I am not going to exist anymore”. When the family consultant attempted to further discuss [B’s] suicidal thoughts he said these were his own “private” business, and did not want to talk about such feelings.
59.[B] expressed the view that his father “is always lying”, and that he had “just scary memories” of his father. He said that he no longer wants his father in his life and spoke negatively about the current telephone communication. He said his father is always laughing at him during the calls and telling him he is going back to Croatia. [B] said that in Croatia his father was never interested in him, his activities or school work. [B] indicated an awareness that his father has a “lady friend”.
60.[B] indicated to the family consultant that he is afraid of his father and presented the picture of his father as being an aggressive and physically abusive person. [B] said the father kicked him in the bum with his leg “hundreds of times” so [B] would fly across the house. He also said that the father stuck his head in a plate causing him to have ketchup on his face if he was full and did not eat his food. The father would stick his middle finger up at [B], and one occasion the father got so angry he took a big kitchen knife and cut up [B]’s Batman suit. Also, [B] indicated that when he was in hospital in Croatia, his father visited him only once and threw a pizza at a wall because it was the wrong pizza. [B] told the family consultant that his father punched him on the arm, in the stomach and slapped him on the head.
As to C the primary judge said at [62] – [65]:
62.[C] also advised the family consultant that she does not want to live with her father and provided numerous reasons for this without prompting. Her complaints included her father beating her with a bamboo stick because she had broken a towel holder in the bathroom, her father showing her the middle finger, always yelling and throwing things such as food and furniture, yelling and calling her mother names such as “whore, slut and cow and more than that”, grabbing her mother’s shoulder and “shaking her and telling her bad things”, always kicking [B] in the back and sometimes [C] in the back, and sticking [B’s] and her head in a plate when they were full and did not eat. [C] said she and [B] were afraid of her father and would hide under the bed during incidents of abusive behaviour. [C] also said the windows were kept closed in the home in Croatia so neighbours could not hear the father’s allegedly abusive behaviour.
63.[C] held the same view as [B] that the father was not interested and did not care about things like school or activities. [C] also was aware the father “has got other women” because she had seen her father practicing “lovers words on the internet”.
64.[C] started to cry when discussing the possibility of being required to return to Croatia. She told the family consultant “if I go there and live there, I will kill myself, I don’t want to live with him”. She told the family consultant she would run away if required to return to Croatia and live with her father. However, she said she would not run away if she were living with her mother in Croatia.
65.[C] expressed the view that she does not want to live in Croatia because “it is not [her] country, [she has] nothing there”, and “it doesn’t feel like [her] home”. [C] said that in Croatia she has nothing and that she has bad memories of Croatia. [C] indicated there was nothing about Croatia which she missed and spoke negatively about telephone communication with her father. [C] told the family consultant “Dad doesn’t really want us to come back, he will sell us for one cent”.
The primary judge then expressed the following views about that evidence.
The primary judge noted the opinion of the family consultant that the children were “strident and firm in their views and each gave lengthy, and possibly plausible, accounts of the reasons for their objection”. His Honour referred to the family consultant’s concern that if there was no substance to the children’s allegations about the father then their objections “would need to be viewed within the context of them being unhealthily aligned with their mother, or of them being extremely worried about being separated from her” (at [67]).
After referring to the family consultant’s opinion that the children’s comments as to suicide or running away if they were returned to Croatia were of “considerable concern”, his Honour said:
69.The family consultant records that given the complex dynamics in this family, and the psychologically impossible situation in which the children have currently been placed, it is difficult to comment on whether or not the children are of sufficient maturity, particularly emotional maturity, to fully appreciate and consider the ramifications, particularly in the long term, of the decisions that need to be made around whether they should be returned to Croatia.
The mother relied on two reports of Dr L, who is a psychologist. The mother and the children had been referred to him by the children’s school psychologist and family doctor for help in dealing with stress arising from the family law matter. Dr L saw the mother and the children together and individually on a number of occasions between February 2015 and June 2015. He was not required for cross-examination. The primary judge referred to his evidence as follows:
72.Dr [L] concludes by recording that the mother and children gave a psychologically plausible account of their circumstances. He opined that the children freely and openly expressed their preference to remain in Australia. He recorded that they expressed the same preferences whether their mother was present in the room or not. He said that the children were very anxious about the prospect of having to return to Croatia and their relationship with their father was strained.
73.He ultimately concluded that if the children were returned, “their psychological health would deteriorate markedly”.
74.Dr [L’s] second report was written after two more sessions with the children. He recorded the children’s enthusiasm about transferring from the intensive English language school to a main stream school and recorded that the children continued to exhibit distress when discussing concerns about leaving their comfortable life in Australia and the prospect of returning to Croatia against their will. He states “They told me that they still dreaded talking to their father because he made comments that made them upset”. Again, Dr [L] concluded, “Their psychological health would most likely deteriorate markedly if they returned to Croatia, particularly if they had to return without their mother”.
75.Dr [L] does not record any expression of suicidal ideation by either child in the ten interviews he has had with them.
Counsel for the father noted that although B had indicated suicidal ideations to the family report writer, when he subsequently saw Dr L there was no such suggestion. It was thus submitted that the primary judge should not have placed weight on the child’s statements in the family report.
It was submitted by the Central Authority that the mother had “…inappropriately and unhealthily involved the children in the parental conflict…” (at [76]). The mother shared with the children text and Viber messages that she had sent to the father. The primary judge noted that the family consultant agreed that this was an example of enmeshment and failing to protect the children from adult concerns. His Honour continued:
78.The family consultant said that it was likely that the children were caught in a conflict of loyalties. It is understandable that they felt loyalty to a parent who was most distressed and it is likely the children had become unnecessarily and overly burdened by issues in the intimate adult parent relationship.
79.In that context it would not be surprising that in order for the children to survive; they exaggerated stories and even became histrionic. That does not mean that there may not be some element of truth in what they were saying, but it is likely that what they were saying is unreliable.
An example of such unreliability is that the primary judge found that the children’s description of their schooling was inconsistent with the independent evidence from the school about their performance and attitudes to their school in Croatia.
The mother’s case was that the children’s objections “are solidly based in fact” (at [81]). The primary judge discussed the evidence of the father’s behaviour during the marriage and made the following finding:
87.There is no doubt that the children observed parental conflict from time to time in the household. I do not accept the father’s evidence that he did not physically discipline the children at times. I do find however that the children have exaggerated the father’s behaviour.
88.The voluminous evidence I have from the SMS and Viber messages between the parties however as at August 2014 evidence the fact that the mother was still deeply in love with the father and that she continued to want him to be a father to the children within the family unit. I do not accept that the mother’s descriptions of the father’s behaviour which have largely been adopted by the children, represent an accurate history of what happened in the household over an eight year period…
His Honour concluded:
91.The children are very protective of the mother. It is likely that the children know the mother is now saying that she believes that she might be arrested and imprisoned if she returns to Croatia.
92.Both [B] and [C] are intellectually mature children. They were both performing well at their school in Croatia and have satisfactorily transitioned into mainstream schooling in Australia through intensive English language school, notwithstanding that they had Croatian as their first language since they were very young.
93.There is no question that the children’s expressed objections are genuinely held.
94.Because of the enmeshment with their mother’s views, the children’s emotional maturity has been compromised. The intensity with which the children are expressing their views is a function of that emotional immaturity. The mother has involved the children in the adult conflict and before coming to Australia, used the children in an attempt to get the father to come back to her. The children are entrenched on the mother’s side of the adult conflict.

It was submitted by counsel for the father that the primary judge, having made these findings, should have found that the emotional maturity of the children was compromised by the mother. Further, the father submitted that in posing the following question the wrong test was applied. The primary judge said:
95.The question arises as to whether it is appropriate to take into account the genuine objections of an intellectually mature boy who is almost 14 years old and an intellectually mature girl who is aged 12 and a half years old when their emotional maturity has been significantly compromised.
96.At their ages, I reluctantly conclude it would be unrealistic not to do so. Accordingly, I find that the condition in Regulation 16(3)(c)(iii) of the Abduction Regulations is satisfied (and consequently the conditions of Regulation 16(3)(c) are satisfied) and I have a discretion to refuse to make a return order on that basis.
Finally, in his Honour’s conclusions as to grave risk he said:
128.…His enmeshment with his mother’s views and his emotional immaturity mean that there is an unacceptable risk that he might do something dramatic without any proper thought. Given the severity of the possible outcome of him attempting to harm himself, that unacceptable risk can properly be described as “grave”. Accordingly, in relation to [B], I find that the conditions of Regulation 16(3)(b) are satisfied.

Was the maturity of the children sufficient for their objections to be taken into account?

The first submission of the father was that the primary judge should have found that the children’s views were inappropriately held because their views were enmeshed with the mother’s. The submission continued that this enmeshment, when coupled with the primary judge’s finding that the mother’s and children’s evidence about the conduct of the father was unreliable, required the primary judge to make a finding of “chronic immaturity” arising from the conduct of the mother. This submission encompasses the first two aspects of this ground that we noted at the outset.
It can immediately be seen that the primary judge concluded that the children’s “emotional maturity” had been significantly compromised. Whether that is the same as “chronic immaturity” is a moot point. Essentially, the finding contended for by the Central Authority was made by the primary judge. His Honour also found that this emotional immaturity had led the children to make unreliable statements about their father and their life in Croatia.
Thus, the primary judge made substantially the same factual findings on this aspect of the matter as those now contended for by the father.
As his Honour had found that the children’s objections were strongly held and went beyond the mere expression of a preference or ordinary wish, the task before him was to consider the weight that should be given to the finding of emotional immaturity.
In doing so, his Honour took into account the children’s age, intellectual maturity and emotional immaturity to conclude, on balance, that account should be taken of their views.
Thus the submission of the father is that the finding as to the emotional immaturity of the children should have carried the day and led to the rejection of the children’s views.
The authorities establish that the determination of a child’s objection and the appropriateness of taking account of his or her views is very much a matter for a primary judge. In Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242, the court said at 250-251:
The questions whether: (i) a child objects to being returned; and (ii) has attained an age and degree of maturity at which it is appropriate to take account of its views, are questions of fact which are peculiarly within the province of the trial judge...
In Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 Ward LJ said at 204:
If one is being pedantic, then whilst the question of whether the child objects to being returned is truly a matter of fact, as is the establishment of her age, it is more by an exercise of judgment, rather than by finding a fact, that the court proceeds to establish the degree of maturity at which it is appropriate to take account of the child’s views. If and insofar as this is an appeal against a value judgment, then the court will be slow to interfere unless it was satisfied that the judge was plainly wrong.
In the same case Sedley LJ said at 222:
… But there comes a point at which, for better or for worse, an intelligent and articulate child’s views, whatever their genesis, have to be taken for what they are – and the views of G, who at 11 is perceptibly both intelligent and articulate, are now made disturbingly apparent by the letter she wrote to her mother on 1 February 2000, about 4 weeks after the abduction to England.
Finally we refer to the well-known passage in Gronow v Gronow (1979) 144 CLR 513 at 519, where Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge…
We are not satisfied that the primary judge erred in evaluating the children’s age and maturity. The children’s emotional immaturity was an important matter to take into account, which the primary judge did, weighing it against their age and intellectual maturity. The finding that the children’s ages and degrees of maturity were such that it was appropriate to take into account their views was open to his Honour on the evidence.

Should the mother be allowed to rely on the children’s objections?

The second aspect of this ground was that the mother ought not be allowed to rely upon the evidence as to the children’s objections because those objections were inappropriately held only as a result of the mother’s conduct.
In making that submission the father relied on the following words of Butler-Sloss LJ in Re C (A Minor) (Abduction) [1989] 1 FLR 403 at 410:
… I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parents who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent. …
In Re C the court was concerned with an allegation that there was a grave risk to the child of physical or psychological harm if the child was returned. This harm, it was said, would arise if the child was being separated from the mother, as the mother would not return with the child. Thus the risk of psychological harm relied upon was in fact created by the mother’s refusal to return with the child and not the return itself. The present case is somewhat different in that the children do not wish to return to Croatia, whether or not the mother also returns.
In Re S. the court said at 251-252:
The scheme of the Hague Convention is that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they have been wrongfully removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return. That discretion must be exercised in the context of the approach of the Hague Convention: see In re A. (Minors) (Abduction: Custody Rights) [1992] Fam. 106, 122E per Lord Donaldson of Lymington M.R.
Thus, if the court should come to the conclusion that the child’s views have been influenced by some other person, for example the abducting parent, or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views. Any other approach would be to drive a coach and horses through the primary scheme of the Hague Convention. Thus in Layfield v. Layfield (unreported), 6 December 1991, in the Family Court of Australia, Bell J. ordered an 11-year-old girl to be returned to the United Kingdom because he found that, although she was of an age and degree of maturity for her wishes to be taken into account, he believed that those wishes were not to remain in Australia per se, but to remain with her mother who had wrongfully removed the girl from the United Kingdom to Australia. On the other hand, where the court finds that the child or children have valid reasons for their objections to being returned, then it may refuse to order the return.
We observe that in this case the children said to both the family consultant and Dr L that they did not wish to return to Croatia or to spend time with their father – this was not expressed as a desire to be with the mother wherever she may be, although they clearly preferred to live with her.
The primary judge found that the children were enmeshed with their mother’s views and that she had involved the children in the adult conflict.
As the above authorities establish the conduct of the mother in so shaping the children’s views is a relevant factor; it is however but one factor to be taken into account. This was explained by Ward LJ in Re T as follows at 212 - 213:
The exercise of discretion
That there is a discretion is plain from the Article itself which provides that notwithstanding the provisions of Art 12 which require in mandatory terms that the child wrongfully abducted be returned, the court ‘may also refuse to order the return’ if there is a valid objection by the child. In Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 at 734, Millett LJ said, and this seems to be with the agreement of Sir Ralph Gibson:
‘It is to be observed that, if a child is not of an age and degree of maturity which makes it appropriate to take his views into account, he must be returned despite his objections and without any further inquiry whether his return is in his best interests. If, on the other hand, he is of sufficient age and maturity for his views to be taken into account, the Convention clearly envisages that he will not be returned against his wishes, unless there are countervailing factors which require his wishes to be overridden.’
I am inclined to agree with that observation and it may not be necessary to express a definitive conclusion about it. In this case the only factors which are to be placed in the balance against return are:
(1) The spirit and purpose of the Convention which is to leave it to the courts of habitual residence to resolve the parental dispute. As the forum conveniens, the claim for Spain to resolve the children’s future is overwhelming.
(2)The abducting parent should not be permitted to create the situation which makes it possible to raise an Art 13 defence. That is not this case. The father’s decision not to return to Spain has undoubtedly compounded G’s unhappiness and he is rightly censured for this. It may have strengthened G’s resolve, but even without it the foundation for her objection remains firm.
In the last analysis, the balance is between allowing the girl her Art 13 defence or enforcing the spirit of the Convention despite the Art 13 defence. In my judgment, the demands of comity, convenience and even the welfare of the child in having her future decided in the court of her habitual residence, do not override the respect which should be paid to her wishes in this particular case. Looking at her case in isolation and without reference to T’s, I would not order her return.
The primary judge’s unchallenged finding is that the children’s views were genuinely held. The family consultant said: “I mean, for whatever – rightly or wrongly, I mean, the children intensely hold their views.” (Transcript, 23 July 2015, p 83 l 38).
As Re T points out, at some stage the children’s objections, if they are genuinely, strongly and maturely held, must be given considerable weight. The Full Court did so in Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277 at 80,707 – 80,708:
56. Ultimately it is unnecessary for us in this case to further comment upon the argument. In our view the evidence is now overwhelming that the child objects to being returned to the United States. Whether that is because of the absence of his primary caregiver or is based upon real or imagined memories of life in the United States as compared to life in Australia, it is clear that the child's objections are firm and have been rationally explained by him.
Thus, although there was evidence that the mother has, by her conduct, influenced the children’s views, we do not consider that such influence was determinative of the matter. It was, of course, a relevant and important consideration which the primary judge took into account. His Honour’s conclusion was one that was open to him on the evidence.
This aspect of the ground does not succeed.

Was there incorrect analysis of the evidence of self-harm?

We turn now to the father’s contention that the primary judge did not properly analyse the reports of the family consultant and Dr L. The submission is that because B did not raise the issue of suicide with Dr L, after having mentioned it to the family consultant who advised B to take up the issue with Dr L, the primary judge should have concluded that what B told the family consultant was simply parroting the mother. Insofar as the submission relates to this ground it appears to be in support of the contention that the children are not expressing their own views.
The primary judge made the following finding about B:
128.…The family consultant remained concerned, as am I, about [B’s] suicidal ideation. The family consultant could not exclude [B’s] risk of self-harm. He expressed very strong and adamant feelings to the family consultant about self-harm if a return order was made. When the family consultant attempted to talk to him about what he had said he closed off and would not talk about it. The family consultant could not exclude what [B] might do if he was placed in a situation that he found intolerable. [B] is intellectually capable, at his age, of devising and carrying out a plan to harm himself. His enmeshment with his mother’s views and his emotional immaturity mean that there is an unacceptable risk that he might do something dramatic without any proper thought. Given the severity of the possible outcome of him attempting to harm himself, that unacceptable risk can properly be described as “grave”. Accordingly, in relation to [B], I find that the conditions of Regulation 16(3)(b) are satisfied.
The logic of the father’s submission does not flow. There may be many reasons why B did not raise this matter with Dr L. Indeed, when the family consultant tried to pursue B’s suicidal thoughts with him, B told her that he did not want to talk about it any further. The family consultant did not suggest that B’s thoughts should be discounted. On the contrary, she described them as serious.
As counsel for the mother submitted, simply because the child did not refer to suicide during his sessions with Dr L does not reduce the very real risk as referred to in the family report.
The primary judge was entitled to accept the family consultant’s evidence, which he did.
This aspect of this ground has not been established.

Was the age of the children given too much weight?

Finally it was submitted that the primary judge gave too much weight to the children’s ages. It is to be immediately observed that the Convention only applies to children who are under the age of sixteen. Thus in terms of the Convention, B, at least, is of a relatively mature age. Children as young as seven and a half and six years have been held, by majority, to be mature enough to have their views taken into account: Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716. Of course, it all depends on the facts in any particular case.
The primary judge started from the position that the age of the children was such that their views would ordinarily be taken into account. We agree that this was an appropriate starting point given their ages.
The primary judge then took into account the emotional and intellectual maturity of the children along with their ages in reaching the conclusion referred to earlier. There was no error in that approach.
As none of the father’s challenges has been made out this ground does not succeed.

Ground 2 - That His Honour was wrong in concluding, as he did, that there was a grave risk that the return of the child [B] under the Convention, would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation

The father’s submission is that the evidence of B’s suicidal thoughts, as expressed to the family consultant, was not sufficient in the light of all the evidence, to establish that a return to Croatia would expose B to grave risks, or place him in an intolerable situation.
The finding of the primary judge as to B’s suicidal thoughts has already been set out. It was based upon the evidence of the family consultant, whose report included the following:
10.When discussion occurred with [B] about the possibility that the Court might determine that he has to return to Croatia so that his parenting arrangements could be decided there, [B] was observed to become particularly agitated and adamant that this not occur. For example, [B] said “I want to stay here, the Court [meaning the decision about his care] has to be here”, “if I go back to Croatia, I have a harbour [meaning Sydney Harbour] that I could jump in, I would rather jump into this Harbour bridge and kill myself rather than go back to Croatia”. At another time during his interview, [B] said that, if he were to be required to return to Croatia, he would kill himself and “I am not going to exist anymore”. Further attempts were made to talk to [B] about his comments about killing himself but he said that, apart from going to the Harbour, this was his own “private” business and, therefore, he did not want to talk about such feelings with the family consultant. [B] was encouraged to discuss such concerning thoughts with his psychologist, Dr [L].
…
27.It is assessed that the strength of feelings associated with [B’s] and [C’s] objections to being returned to Croatia are more than the mere expression of a preference or of an ordinary wish. [B], on a number of occasions, reiterated that he would kill himself rather than return to Croatia. Of particular concern, [B] seems to have given some thought to how he might go about doing this. …
In her oral evidence the family consultant said:
[FAMILY CONSULTANT]: … I can’t exclude that [B] isn’t a risk of self-harm. He was – his strength of feeling about that was he was very strong and adamant about that. When I did attempt to talk to him more about it, he closed off and he wouldn’t talk about it. I can’t exclude what’s – what he may do if he’s placed in a situation that’s even – that is intolerable. And that may be a factor that the court might need to consider – whether a psychiatric – some sort of – I don’t know whether the psychologist has commented on that, but that may be a factor that needs to be considered. [...] Now, the difficulty is I can’t say whether they will or they won’t do the things they’re threatening to do, but it’s serious when young people are saying that, and they’re in a position where they’re being required to say that, which is why I did assess that their – their views were beyond a usual wish, because I’ve seen thousands of children in the family law context and I haven’t seen – it’s unusual for children to be that extreme. So there is a risk.
[HIS HONOUR]: The views that they expressed: did you assess them as genuine views? ---Yes, I did. I ---
So they could be views that are the product of enmeshment, but still genuinely held? ---They are genuinely held, your Honour. And ---
So if genuinely held, what risk am I putting to them psychologically if I make an order against genuinely held views? Is it a grave risk to their psychological wellbeing? Is it putting them in a – is there a grave risk that I’m exposing them to an intolerable situation, psychologically? ---It is a – it is – it is potentially a grave risk, your Honour. I would assess that it is – it’s definitely a risk. Grave risk? I would say it is a grave risk, because – and particularly at their ages, and they would be being placed in an intolerable – an emotionally intolerable situation where – now that grave risk could be – the degree of that grave – this is where it – this is difficult to answer, your Honour. The degree of that risk would be depending on how the father handled it. And the degree in which he was sensitive and aware. And this is where it’s quite difficult to actually ---
Well, you can’t comment on that. You haven’t met him. You haven’t seen him with the children? ---No. And that – I – I think that’s a factor in also considering whether there’s a grave risk or not.
All right. Thank you. Is there anything arising out of any of the questions I’ve just asked?
…
MS WARD: … one question.
HIS HONOUR: Yes, Ms Barnett.
MS BARNETT: Is it your assessment that if the mother went with the children that the risk would be ameliorated? ---Yes.
And it would no longer then be a grave risk? ---It would still be a risk and, you know, [B] is particularly at an age where he’s – he may still dig his heels in. He has been placed in a situation where he still may object. But certainly, if the mother went and was – the children knew that this is what had to happen, and she’s going to support them in the best ways possible, that it – then it would definitely reduce the risk.
(Transcript, 23 July 2015, pp.81-82)

As we have said Dr L did not record that B said anything to him about suicidal thoughts. The parties agreed that Dr L would have recorded it had it been said.
In his second report Dr L said:
The children continue to exhibit distress when discussing concerns about leaving their comfortable life in Australia and the prospect of returning to Croatia against their will.
…
Their psychological health would most likely deteriorate markedly if they returned to Croatia, particularly if they had to return without their mother.
This report does not support the father’s submission that no grave risk will arise from a return to Croatia. The report does not say that the return of the mother will ameliorate any risk to the child – rather, it says that the children’s psychological health would “deteriorate markedly”, but particularly if they were to return without their mother. Thus, there was a risk remaining even if the mother returned with the children.
Neither of these matters required the primary judge to reject the evidence of the family consultant or to find that the risk of suicide was not real.
The consequences of even attempted self-harm by B are serious. The primary judge took into account the intensity of B’s views, his enmeshment with his mother and his emotional immaturity to find that B “…might do something dramatic without any proper thought” (at [128]).
As his Honour said, the possibility of self-harm and suicide leads to an unacceptable risk that can properly be described as “grave”.
The father submitted that merely because a risk of suicide cannot be excluded, this does not mean a child would be exposed to a grave risk of harm. However, as senior counsel for the father observed, it does depend on the evidence. We consider that there was sufficient evidence before the primary judge to support his Honour’s findings.
We are not satisfied that the primary judge erred and this ground does not succeed.

Ground 3 - That His Honour failed to properly analyse his own findings when exercising his discretion

The father submitted:
His Honour concluded the Family Consultant opined that the risk to the children would not be grave if their mother returned with them (AB 1, page 36, line 140). His Honour had already concluded he would reject the mother’s evidence that she would not return if an order were made for the return of the children. His Honour then considered [B] was at grave risk because of his expressed suicidal ideation. His Honour did not at this point, analyse sufficiently his findings in relation to the mother’s conduct, the fact that the child had not made any suggestion of suicide to Dr [L], notwithstanding the number of sessions he had with him and failed to adequately explore the imposition of appropriate conditions.
It will be observed that we have already dealt with most of these submissions in the discussion of grounds 1 and 2. All that remains is the submission that the primary judge failed to explore the imposition of conditions.
A difficulty is that the Central Authority did not recommend to the primary judge a return subject to conditions, nor did the Authority identify any appropriate conditions that could be imposed on such a return.
The father did not point to any conditions the primary judge should have considered or imposed. Instead the challenge was limited to the suggestion that the primary judge erred by not exploring the issue of conditions whatever they might have been. Such a submission is hardly compelling.
Once a ground under reg 16(3) has been established the court has a discretion as to what orders should be made. Of this discretion Gaudron, Gummow & Hayne JJ said in DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401 at 417:
40. So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return ... would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
(emphasis per the original)
The primary judge said:
142.I have considered whether or not imposing conditions requiring [B] to have psychological assistance prior to his removal but I have no evidence that such assistance would be either timely or effective. I have no confidence that any condition I could impose would be sufficient to ameliorate the risk to [B].
In undertaking that discussion the primary judge bore in mind the list of considerations suggested by Waite J in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 at 219 as cited with approval by the Full Court in HZ v State Central Authority (2006) 35 FamLR 489 at 502.
Thus the primary judge expressly considered imposing conditions but found that the evidence did not support that course. The father on appeal did not point to any such evidence or to any evidence that indicated that any particular condition would ameliorate the risk of harm to B.
It is well established that an appellant who seeks to challenge a discretionary decision faces a high bar: Norbis v Norbis (1986) 161 CLR 513.
We are not satisfied that there was any error in the approach of the primary judge to the exercise of his discretion. The findings made by him were open to his Honour on the evidence.
Accordingly we are not satisfied that this ground succeeds.
As none of the grounds of appeal have been established, the appeal will be dismissed.

Costs

The appellant accepted that if the appeal was to be dismissed he should bear the mother’s costs of the appeal. That is an appropriate order in all of the circumstances.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Aldridge & Cronin JJ) delivered on 16 May 2016.

Associate:

Date: 16 May 2016

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