COMMISSIONER, WESTERN AUSTRALIA POLICE and YARDLAY

[2019] FCWA 172

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986

LOCATION: PERTH

CITATION: COMMISSIONER, WESTERN AUSTRALIA POLICE and YARDLAY [2019] FCWA 172

CORAM: SUTHERLAND CJ

HEARD: 7 AND 21 JUNE 2019 AND 22 JULY 2019

DELIVERED : 1 AUGUST 2019

FILE NO/S: PTW 2044 of 2019

BETWEEN: CHRIS JOHN DAWSON, COMMISSIONER, WESTERN AUSTRALIA POLICE

Applicant

AND

MS YARDLAY

Respondent

Catchwords:

CHILD ABDUCTION - Hague convention - Children retained in Australia from Country A - Whether children were habitually resident in Country A at the relevant date - Whether children at grave risk if returned to Country A - Case turns on its own facts

Legislation:

Family Law (Child Abduction Convention) Regulations 1986

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Eagling
Respondent	:	Mr Nicholls QC

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Bannerman Solicitors

Case(s) referred to in decision(s):

Commonwealth Central Authority (2001) 206 CLR 401

Director General of the Department of Family and Community Services v Davis (1990) FLC 92-182

Director-General, Department of Families and RSP (2003) FLC 93-152

Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011

DP v Commonwealth Central Authority (2001) 206 CLR 401

Gsponer v Director General, Dept of Community Services, Vic (1989) FLC 92-001

In re E (Children) (Abduction

Custody Appeal) [2012] 1 AC 144

LK v Director-General, Department of Community Services (2009) 237 CLR 582

Mhambrey & Wairaja [2018] FamCAFC 120

Punter v Secretary for Justice [2007] 1 NZLR 40

Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701

Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED

Introduction

1This application is brought by the Commissioner of the Western Australian Police as the responsible Central Authority (“Central Authority”), seeking an order pursuant to regulation 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 ("the Regulations") for the return to [Country A] of the children [Child A], who was born [in] 2015 and [Child B], who was born [in] 2017. The Central Authority was requested to take this action by [Mr Moretti], the children’s father (“the father”). The application is opposed by the respondent, [Ms Yardlay], the children’s mother (“the mother”).

2The trial of these proceedings (“the Hague Convention proceedings”) was heard over three days in June and July 2019.[1]

The evidence

[1] This included the mother making a successful application for leave to re-open the proceedings, necessitating the listing of the third hearing day in July 2019.

3The Central Authority relied upon the following documents:

a)The Form 2 application,[2] together with all supplementary documents annexed to that application (including but not limited to an affidavit by [a] Country A lawyer, Ms P[3]);

b)Affidavits by the following deponents: the father;[4] Ms P;[5] the paternal grandmother [Ms R] and the paternal grandfather [Mr Moretti Snr];[6]

c)The Family Report prepared by [the FCWA] Family Consultant.[7]

[2] The Form 2 application was filed on 11 March 2019.

[3] Ms P’s first affidavit was sworn on 27 February 2019.

[4] The father’s affidavits were filed on 10 May 2019 and 19 July 2019.

[5] Ms P’s further affidavits were filed on 10 May 2019 and 19 July 2019.

[6] The paternal grandparents’ affidavits were filed on 16 May 2019.

[7] The report was dated 4 June 2019.

4The mother relied upon the following documents:

a)The Form 2A application;[8]

b)Affidavits by the following deponents: the mother;[9] [a] Country A lawyer, [Mr B];[10] the mother’s Australian psychiatrist, [Dr J];[11] and the mother’s Australian psychologist, [Ms M].[12]

[8] The Form 2A application was filed on 12 April 2019.

[9] The mother’s affidavits were filed on 12 April 2019 and 12 July 2019.

[10] Mr B’s affidavits were filed on 12 April 2019 and 12 July 2019.

[11] Dr J’s affidavits were filed on 12 April 2019 and 12 July 2019.

[12] Ms M’s affidavit was filed on 12 April 2019.

5The father, the mother, Dr J and Ms M were all cross‑examined.[13] The remaining witnesses were not cross-examined and accordingly I accept their evidence as being unchallenged.

[13] This included the mother, the father and Dr J being cross-examined a second time, on the third day of the trial, in relation to new matters for which leave to reopen had been granted.

6I formed the view that both the mother and the father struggled to give their evidence in a balanced manner: both tended to exaggerate the positives of their respective cases and minimise the negatives. For example, I am satisfied that both parties continually exaggerated and/or overstated the extent of any agreements reached between them as to whether the family would live permanently in Australia and/or Country A. In particular, I am satisfied that much of the mother’s evidence in this respect was more “wishful thinking” on her behalf, rather than having any basis in reality.

7I am satisfied that Dr J and Ms M were both professional and helpful in giving their evidence, albeit at times Dr J appeared unwilling to make appropriate concessions, instead advocating for the mother. I considered that the reliability of some of their conclusions was diminished by the following matters: Firstly, both Dr J and Ms M were the mother’s treating clinicians. As such, they were reliant upon the mother’s narrative of events and, for the most part, appeared not to “reality check”, for example, by also speaking to the father or observing the children with the parents. Secondly, I am satisfied that the mother’s narratives to Dr J and Ms M were not always correct and that the mother again exaggerated aspects of events that might have been seen to be helpful to her narrative and minimised aspects that might have been unhelpful. For example:

a)I am satisfied that the mother exaggerated the extent of her “isolation” and lack of support in Country A, by not telling Dr J that she worked as [a librarian] at [a] Country A university, that the paternal grandparents assisted her with the care of the child(ren) when she was at work, that she regularly had meals with the paternal grandparents and conversed with them in [the language of Country A]; and telling Dr J that she did not regularly drive in Country A when, in actuality, she had her own car and regularly drove to and from work, and to the children’s activities;

b)I am satisfied that the mother exaggerated the circumstances of the father allegedly stopping her from breastfeeding Child B, removing the children from her care and her attendance at a domestic violence shelter. In particular, I am satisfied that: (1) the disputes around breastfeeding occurred after separation and at times when the children were in the care of the father pursuant to the July 2018 agreement; and (2) at the time the mother attended on the domestic violence shelter, she had already separated from the father, she and the children were staying at her friend’s home and the mother went to the shelter to obtain legal advice, not for emergency accommodation or assistance in having the children returned to her care.

c)I am satisfied that the mother misled Ms M and Dr J about her alleged difficulties in finding suitable psychological services in Country A. The mother conceded in cross-examination that she did not seek any psychological services for her mental health issues in Country A, albeit she did attend marriage counselling and attended upon her general medical practitioner from time to time.

d)I am satisfied it is likely that the mother exaggerated the nature and extent of the father’s alleged family violence towards her, whilst minimising her own violent and aggressive behaviour towards the father at times when she became emotionally dysregulated.

The background facts

8The mother (an Australian citizen) and the father (a Country A citizen) met in 2009 whilst the mother was on holiday in Country A and formed a relationship. In July 2009, the father then travelled to Western Australia and spent a month with the mother. In July 2009, the mother resigned her employment and travelled back to Country A with the father. The mother and the father became engaged in Country A in October 2009. In January 2010, they returned to Western Australia and then travelled back to Country A on 31 March 2010. The mother and the father married in Country A [in mid] 2010.

9I am satisfied that prior to and after their marriage, the mother and the father had discussions about where they would live. Although I am satisfied that the mother agreed to try living in Country A, I am not satisfied that the father ever agreed to live in Australia. Within a short period of time after their marriage, the mother and the father experienced relationship difficulties, including as a result of the mother being unhappy at living in Country A and uncertain about her future with the father. In [late] 2011, the mother discovered that she was pregnant and subsequently terminated the pregnancy. In November the mother told the father that she wanted them to live in Australia. The father told the mother he did not wish to live in Australia and they then separated. The father continued to live in Country A. The mother returned to Western Australia in December 2011.

10I am satisfied that between December 2011 and November 2014 the mother lived in Western Australia and the father lived in Country A. During this time, the parties had some contact with each other, including:

a)In May 2012, the mother travelled to Country A for approximately two weeks to visit the father.

b)In late July 2012, the mother resigned her employment and travelled to Country A in the hope of resuming the marital relationship. The reconciliation was unsuccessful and the mother retuned to Western Australia in August or September 2012.

c)In November 2013 and again in April / May 2014, the mother and the father went on short holidays together.

11In August 2014, the mother returned to Country A and resumed her relationship with the father, albeit they did not resume living together until November 2014, at about the time they learnt that the mother was pregnant with Child A. In November 2014, the mother moved into the father’s apartment in [Province A]. I accept the father’s evidence that Province A and surrounds has a population of about one million people, including approximately 110,000 living in the city centre. [For clarity, Province A is located in Country A].

12I am satisfied that in late 2014, the mother and the father again had discussions about their future living arrangements. Although the mother maintained they reached an agreement that they would spend half the time in Australia and half the time in Country A, I am not persuaded that this was the case. I am satisfied that the mother made it clear to the father that she did not want to live permanently in Country A in the future and hoped to eventually persuade the father to her point of view. I am also satisfied that the father made it clear to the mother that he did not want to live permanently in Australia in the future and hoped to eventually persuade the mother to his point of view.

13I am satisfied that in early March 2015, the mother made enquiries and obtained information from an Australian based agency about the Hague Child Abduction Convention, how to make an application and the available defences.

14In 2015, the mother and the father travelled between Country A and Australia on a regular basis as follows:

a)They travelled to Western Australia on 1 January 2015. The father returned to Country A in February 2015 and the mother followed on 25 March 2015.

b)On 19 June 2015, they travelled to Western Australia. Child A was born in Western Australia [in] 2015. The parents and Child A travelled to Country A on 16 September 2015.

c)The parents and Child A then travelled to Western Australia on 9 December 2015 and travelled back to Country A on 26 February 2016.

15I am satisfied that from 2015 onwards, when the parents were in Country A, they lived in the father’s home in Province A. The father worked full time in his [own] business to financially support the family. The mother also worked as a librarian at [a] Country A university each year, for varying blocks of time. When the parties were in Western Australia they did not work, apart from one occasion when the mother took a very short‑term contract of employment.

16I accept the evidence of the paternal grandparents that when the mother and father reconciled in late 2014, they welcomed the mother back into their family and to life in Country A. This included regularly having meals with the mother and other extended paternal family members and friends, celebrating family events with the mother, regularly babysitting one or both children (including when the mother attended appointments, for example to the hairdresser, or went to her Country A language lessons, when the mother was working, and when she went on short holidays with her family members or friends from Australia) and regularly taking the children on various outings. I am satisfied that the paternal grandparents formed a close and loving relationship with the children.

17The mother maintained that: (1) in January 2016 the parents agreed that from the commencement of 2018, the family would live full time in Australia; (2) the mother only agreed to return to Country A in 2016 on the basis of the agreement; and (3) the father confirmed the “January 2016” agreement in an email to her on 24 June 2016. However, I am not satisfied that the mother’s assertions in this regard were the case. I accept the father’s evidence that at no time did he agree to the family permanently relocating to Australia, whether in 2018 or at any other time, and that his email was nothing more than a sarcastic response in the context of an ongoing and seemingly intractable dispute between the parents. Whilst I have no doubt the mother hoped to be able to eventually persuade the father to her point of view, I am not satisfied that she only agreed to return to Country A in 2016 on the basis of having reached an agreement with the father.

18In 2016, the parents lived in Province A for the majority of the year. The father continued to work full time in his own business. The mother acknowledged that although she was keen to return to Western Australia in mid-2016, she agreed to remain in Country A so that the father could address various difficulties in his business. The parents and Child A eventually travelled back to Western Australia on 28 October 2016. The father returned to Country A for work for approximately one week in November/December 2016 and again for a few weeks in January 2017. The parents and Child A then travelled back to Country A on 21 February 2017.

19In 2017, the parents again lived in Province A for the majority of the year. The father continued to work full time in his own business. Child B was born in Country A in 2017. I accept the mother’s evidence that she would have preferred to have returned to Western Australia for Child B’s birth, but decided to stay in Country A as she knew it was important financially to the family for the father to be able to continue to work full time in his business.

20I am satisfied that by the time of Child B’s birth, the parents’ marital relationship had significantly deteriorated. Shortly after Child B’s birth, the father [fell ill] and was hospitalised for approximately one week. In October 2017, the parties separated for a short time after they argued and the mother asked the father to leave. The parents subsequently attended marriage counselling together in Province A.

21On 30 November 2017, the family travelled to Western Australia together (with the father returning to Country A for three weeks in January 2018). Whilst they were in Australia, the parents attended further marriage counselling together. I am satisfied that the mother wanted to work on the marriage, albeit she had been suspicious for some time that the father was having an affair in Country A. The family travelled back to Country A on 24 February 2018.

22The mother maintained that in February 2018, the parents then agreed: (1) to live for six months in Country A and then for six months in Australia; and (2) the family would then live in Australia from the commencement of 2019. However, I am not satisfied that the parties reached any such agreement. Although I am satisfied that the father proposed an arrangement whereby the family lived in each of Australia and Country A for six months each year, it was clear that the father was dubious about whether the mother would commit to such an arrangement. In addition, his proposal was not on the basis that the family would then live permanently in Australia from the commencement of 2019. The mother referred to various messages and emails from the father as supporting her interpretation of events. However, I am not persuaded that these communications indicated that there was any concluded agreement between the parties, as the mother maintained.

23In May 2018, the father sent the mother an email proposing that they separate and start some discussions about how to resolve parenting and other matters consequent upon their separation. The mother responded, clearly indicating that she did not want the relationship to end.

24I am satisfied that on or about 3 July 2018, the mother formed the view that the marriage was over when: (1) she looked through the father’s mobile telephone and found messages indicating that he had been having an affair; and (2) she physically assaulted the father by grabbing his testicles. The mother then unilaterally took the children away from the family home, initially staying at a friend’s home and then staying in holiday accommodation with the maternal grandfather.

25As a result of the assault, the father suffered bleeding and was required to attend at the Emergency Department of Province A. On 8 July 2018, the mother was required to attend a police station and was “presented with charges” arising from her assault on the father. The mother maintained in cross-examination that the police informed her that it was a minor charge and that maybe nothing further would happen.

26On 9 July 2018, the mother and the children travelled to [Country B] with the maternal grandfather for a prearranged holiday. In her absence, the father became concerned about the mother’s intentions (particularly after he discovered that the mother had unilaterally purchased one way tickets for herself and the children to Australia) and urgently commenced proceedings in Country A seeking an injunction to restrain the mother from taking the children to Australia.

27On or about 20 July 2018 (after the mother and the children had returned from their Country B holiday), the parties and their respective Country A lawyers attended a meeting. I accept the mother’s evidence that she was able to converse in English with her own lawyer and she was also supported at the meeting by her father. At the meeting, the mother and the father reached an agreement (which was reduced to writing) which permitted the mother to leave for Australia with the children on 2 August 2018, for the father to effectively spend time with the children prior to their departure and when they were in Australia, and for the parties to return with the children to Country A by no later than 15 January 2019. The agreement did not specify what arrangements would be made for the children after their return to Country A in January 2019.

28I accept the evidence of the paternal grandparents that when they learnt that the father had been involved in an extra-marital affair, they were very saddened by his actions and offered their sympathy and support to the mother. However their offers of support were rejected by the mother.

29The mother and the children travelled to Western Australia on 2 August 2018. Subsequently, the father was unable to travel to Australia as planned due to financial constraints and because he suffered from a significant health issue. However, he (and the paternal grandparents) have been able to maintain telephone and/or electronic communications with the children.

30It was unclear on the evidence when the mother first sought legal advice after her return to Western Australia in August 2018. On the available evidence, I am satisfied that it was no later than 21 November 2018, when her solicitors wrote to Ms M seeking a report to use in a “forthcoming litigation regarding [the mother’s] state of health, and in particular, the state of her health in the event she was required to return to [Country A]”.

31Whilst she was in Australia, the mother sent various messages to the father indicating that she and the children would be returning to Country A in January 2019 as planned.

32However, on 20 December 2018 the mother then sent the father and his parents a letter by email informing them of her decision not to return the children to Country A in accordance with the July 2018 written agreement. In her letter, the mother said that: “the truth is, I can’t face returning to [Country A] now that [the father] and I are no longer together”.

33On 14 January 2019, the mother commenced proceedings in the Family Court of Western Australia (“the Family Court proceedings”), seeking interim orders that the father be restrained by injunction from removing the children from the mother’s care, for the children to be placed on the Family Law Watch List maintained by the Australian Federal Police, and for declarations that the children were habitually resident in Australia and not in Country A. The mother did not specify what parenting orders she sought for the children on a final basis.

34On 15 January 2019, the father filed a petition in the Court of Province A (“the [Province A] Court proceedings”), seeking a judicial separation from the mother, including orders for the children to be returned to Country A, for the father to have sole custody of the children and for the mother to be able to visit the children for two afternoons each week on a supervised basis. The father also sought orders in relation to the use and occupation of the home and for the mother to pay monthly financial support for the children. On 16 January 2019, the father also filed a complaint against the mother with the relevant Country A authorities in relation to international child abduction.

35On 19 February 2019, the Country A Central Authority applied to the Australian Central Authority seeking the repatriation of the children to Country A. On 11 March 2019, the Central Authority commenced the Hague Convention proceedings in this Court. On 11 March 2019, this Court also made orders for the mother to serve the father with the documents filed by her in the Family Court proceedings. The mother’s Family Court proceedings have otherwise be adjourned, effectively to await the outcome of the Hague Convention proceedings.

36The mother instructed her Country A solicitor, Mr B, to represent her in the Country A Court proceedings and she participated in those proceedings.

37On 4 June 2019 [the] FCWA Family Consultant provided his written report. I accept the FCWA Family Consultant’s unchallenged evidence, as contained in his report, including that:

a)The mother acknowledged that in Country A, Child A had a strong relationship / bond with the father and at times had rejected her in favour of her father. This lasted until she left Country A for Australia in August 2018. Although the mother maintained that Child A needed her for comfort, she acknowledged that the father could also comfort Child A.

b)The mother reported that Child B was very attached to her, she still breastfeeds the child and co-sleeps with her.

c)The mother readily acknowledged that the father is able to care for the children. However, she qualified this by saying that if the children are in his care, then he would put the children into day care and/or have the paternal grandparents assist. The mother also acknowledged that the father “would make good decisions for the children” in Australia or Country A.

d)The Consultant concluded that neither the mother nor the father identified that there were any risks of physical harm to the children. Rather, the risks may lie in the parties’ acrimonious and conflictual relationship and the mother’s mental / emotional health. The mother’s mental health issues were of concern and may impact on the children if the court determined they were to be returned to Country A but remain in the care of the mother. This was because the mother readily acknowledged her inability to cope emotionally if she was in Country A. The Consultant opined that this may have an impact on the children, especially Child B, who from the mother’s narrative, was quite bonded to her. Child A’s emotional impact may be to a lesser degree due to her age, memories and strong relationship with the father.

e)The Consultant reiterated that the mother acknowledged the father was able to care for the children, would make “the right decisions” for them and she did not raise concerns for the children in his care or allege issues that may put them at risk.

f)The Consultant considered that if the mother’s narrative had merit, then the children may be at risk regarding their emotional health and the mother’s emotional vulnerability in Country A would likely have an impact on the children’s emotional wellbeing and possibly their future emotional and cognitive development. On the other hand, if the father’s narrative had merit, then the children may have a secure and stable environment which may benefit them in their relationship with their mother. It may also provide for the father to mitigate possible effects of the mother’s emotional health should she decompensate.

38The trial in the Hague Convention proceedings commenced before me on 7 June 2019 and concluded with closing submissions being made on 21 June 2019. The proceedings were then reserved for judgment.

Reopening the Hague Convention proceedings

39Subsequently the mother applied for, and was granted leave, to re‑open the Hague Convention proceedings to give further evidence about three matters: An interim decision handed down in the Country A Court proceedings; the publication of a newspaper article about the family in Country A; and the possibility that an international arrest warrant had been issued for the mother in relation to charges of international kidnapping and domestic violence.

40 Country A Court proceedings: It appears that at the time the closing submissions were made, neither the counsel for the Central Authority nor the mother’s counsel were aware that on 20 June 2019 orders were made in the Country A Court proceedings, including that: the father have sole custody of the children, granting the marital home to the father and for the mother to pay a monthly contribution to the father for the children’s financial support. The Country A Court proceedings were otherwise adjourned for further hearing on 29 October 2019. The reasons for judgment recorded that: the court considered “the conduct held by [the mother] to be a serious breach of the principle of co‑parenting, since the mother has kept the children in Australia against the will of the other parent, removing them from their usual habits”; and deemed that: (1) “such conduct leads to exclude the existence, at this stage, of the requirements for shared custody, considering the fact that this institution implies the ability for parents to establish a perfect and long lasting harmony as to the choices for the education of their children” and (2) “the marital home must be granted to the father, since the mother has left the house of her own accord”.[14]

[14] Exhibit R1.

41The mother maintained that she was completely shocked and frightened following the decision of the Court of Province A and that the orders made by the court were completely unexpected. Whilst it appeared that the father was also surprised by aspects of the court orders, they were largely (but not entirely) in accordance with the father’s petition. It was also common ground that the orders were interim only, the mother had a right of appeal, the mother could also apply to vary the interim orders and the parties were also able to vary them by agreement.

42The father reiterated that in the event that the mother returned to Country A with the children, then he was prepared to:

a)Make provision for the mother to spend time with the children on a daily basis (albeit supervised).

b)Give up (at least for a reasonable period of time to enable the mother to establish herself in Country A) the child support the mother is obliged to pay him for the children.

43Although the mother maintained that she could not financially afford to appeal the interim decision or participate further in any court proceedings in Country A, her evidence in relation to this matter was less than satisfactory. During her cross-examination, the mother conceded that she was solely meeting her legal fees to her Australian lawyers and her Country A lawyers from her own savings. The mother acknowledged during her evidence on 7 June 2019 that she had already paid approximately $60,000 to her Australian lawyers. There was no evidence as to the totality of the mother’s savings or other resources available to her.

44 Newspaper article: [Sometime in] 2019, the mother also became aware of the publication of an article in a newspaper about the family, including the current Hague Convention proceedings. The father acknowledged that after the publication of the interim decision by the Court of Province A, he was approached by the newspaper and cooperated in giving an interview. The mother maintained that given that Province A was a small and very tight‑knit community, she was concerned that the article had the effect of further alienating her from the community. On the other hand, the father maintained that the newspaper was not widely read in Province A, Province A was a city [with] a large population, and the mother was not as “famous or visible” as she liked to think.

45 Alleged charges against mother / warrant for the mother’s arrest: The evidence in relation to this issue was somewhat confused. The mother maintained that she had been informed by her Country A lawyer, Mr B, that he had been contacted by the Country A police concerning an “apparent set of charges and potential arrest warrant” for the mother relating to international kidnapping and domestic violence. However, Mr B did not address the issue at all in his affidavit and the mother also acknowledged that she had not had any direct contact with the Country A police about the matter. In her cross‑examination, the mother continued to maintain that the police told her in July 2018 that the domestic violence complaint was a minor matter, that maybe nothing would happen further and that the issue was “not a priority” for her.

46I accept Ms P’s unchallenged evidence that if the mother comes back to Country A with the children of her own free will, the public prosecutor can take a positive view of her behaviour and decide not to “cultivate” the criminal proceedings. So far as Ms P was aware, as at 18 July 2019 the Country A authorities had not completed their investigations in relation to the international abduction allegation. There was no evidence before the court that a charge had been made against the mother or a warrant issued for the mother’s arrest in relation to the international abduction complaint.

47In relation to the domestic violence complaint against the mother, I accept Ms P’s unchallenged evidence that the Country A police have filed a Notice of the Conclusion of the Preliminary Investigations in relation to the mother’s physical assault on the father. Ms P was unaware if the Country A Public Prosecutor has decided to pursue an indictment or archive the case. There was no evidence before the court that an indictment had been made against the mother or a warrant issued for her arrest. I also accept Ms P’s evidence that if the mother is indicted and found guilty, then she will have a criminal record for a limited time but receive no other punishment and in particular, would not be sentenced to a term of imprisonment.

48I also accept the evidence of the father that he had given instructions to Ms P to make a submission to the Country A authorities not to pursue the international abduction charge and that he was also prepared to give instructions to Ms P to make a similar submission in relation to the domestic violence charge.

The mother’s mental health issues

49The father did not dispute that the mother has a history of depression and anxiety. However, there was significant dispute as to the likely impacts on the mother’s mental health if the children are required to return to Country A, and the potential impacts on the children from any further decline in the mother’s mental health.

50There was no evidence before the court as to what, if any, treatment the mother obtained in relation to her mental health issues prior to her return to Australia in August 2018. The mother commenced attending upon Ms M on 1 October 2018. Ms M provided a written report on 3 December 2018. The report confirmed that the mother had met with Ms M for six sessions between 1 October and 23 November 2018. Ms M provided a second written report dated 11 April 2019. In that report Ms M confirmed that she had met with the mother for a further nine sessions since her first report.

51During the initial sessions, the mother gave a family history of anxiety, depression, post-natal depression and schizophrenia. She also gave a personal history of mental health issues, including in 2004 and 2014. Ms M considered in her first report that the mother presented as experiencing symptoms of generalised anxiety disorder, panic disorder and major depressive disorder. Ms M noted in her second report some improvements in the mother’s mental health overall. However, at times of high stress related to the legal proceedings, Ms M considered the mother reverted back to a state of becoming overwhelmed and negative about the future and the prospect for her and the children leading a happy life. Ms M opined that the mother found it difficult to cope with the legal proceedings and to become extremely anxious with the uncertainty of the situation.

52In the first report, Ms M recorded that the mother told her that she was “scared” to return to Country A, as she was concerned she would feel alone and become depressed. The mother also considered that the father had been emotionally abusive to her, including her having to attend a domestic violence shelter and the father not allowing her to breastfeed and removing the children from her care. However, as I have already found, I am satisfied that the mother exaggerated these matters to Ms M.

53In the first report, Ms M reported that the mother told her that she felt suicidal at times when residing in Country A. The mother also told Ms M that she attended on a psychologist who spoke English, but she considered she did not derive the level of assistance she desired. However, as I have already indicated, the mother conceded in cross-examination that she never, in fact, sought any psychological assistance for her mental health issues in Country A. The mother’s misleading statements to Ms M in this regard, together with the mother’s tendency to exaggerate matters that she considered may benefit her case, did raise some nagging doubts in my mind about the bona fides of the mother’s claims of feeling suicidal when she was in Country A.

54Ms M opined in her first report that the mother presented as a vulnerable individual in an emotional and psychological sense. Her symptoms of anxiety and depression had been severe, but were somewhat improved through treatment and counselling. Ms M considered that given the mother’s family history, there was a strong predisposition to mental health issues ranging in severity, and at times this would require the intervention of a psychiatrist and hospitalisation in a psychiatric facility. In her cross-examination, Ms M conceded that she had no knowledge whatsoever about the mental health services available to the mother in Country A, should the mother need to access them.

55Ms M opined in her first report that if the mother was forced to return to Country A to undertake a family court process, she would experience a significant decline in her mental health which would have an impact on her physical and emotional wellbeing. Her situation would be dire and at its worst could lead to suicidal behaviour and self‑harm. In her second report, Ms M continued to consider that the mother was unlikely to cope well with having to return to Country A with the children and her mental health was likely to decline. The mother reported being uncertain about how her mental health would be managed if she had to return to Country A. However, Ms M appropriately conceded in cross-examination that her concerns about the mother’s dire situation in Country A and the possibility of suicidal and self-harming behaviour was a worst case scenario.

56I accept that the mother is adamantly opposed to having to return the children to Country A and her mental health may well decline if the children are required to return. However, I am not persuaded that Ms M’s concerns for the mother are as serious as Ms M feared for the following reasons. Firstly, although the mother maintained during her cross-examination on 22 July 2019 that in the event the children were required to return to Country A, then she would also return to Country A, I am not convinced that the mother will in fact return, particularly given her earlier contradictory evidence. It is also open to the mother to remain in Australia for the majority of the time (where she can continue to access family and professional support) and only return to Country A for the purposes of the Country A Court proceedings. Secondly, since her return to Australia in August 2018, the mother has sought treatment for her mental health issues. The mother has been prescribed anti-depressant medication and anti-anxiety medications and has engaged in counselling on a regular basis. If the mother does return to Country A with the children, then I am not persuaded that she cannot continue to access appropriate mental health treatment in Country A (or from Australia, for that matter). Thirdly, I am not persuaded that the mother’s position in Country A would be as dire as Ms M feared, particularly having regard to the fact that I am satisfied that the mother did not give Ms M an entirely accurate or balanced account of her life in Country A.

57Ms M also opined in her first report that the decline in the mother’s mental health would also have a detrimental impact on the children. In particular, Ms M referred to the mother’s assertions that she did not have a trusting, supportive network to assist in the care of the children in Country A due to being in a community that is aligned with the father.[15] Ms M considered that for the children, this will mean that they have a mother who is overwhelmed emotionally, mentally and physically by the process. If the mother was forced to return to Country A, deal with the legal proceedings and a process without fully understanding the language and not feeling supported, then such circumstances will take a toll on the mother. This could lead to the children being in a situation where their mother is unable to meet their overall needs. Ms M opined that the outcomes for the children if the mother was forced to return to Country A could be negative and far‑reaching. Short and long term consequences that could be evident for the children included: anxiety, depression, poor development and learning and behavioural issues.

[15] Given that Province A and environs has a population of approximately one million people, I consider that the mother’s / Ms M’s concerns that the “community” are aligned with the father against the mother to be considerably exaggerated.

58Ms M continued to opine in her second report that if the mother was required to return to Country A and her mental health declined, then there may be negative ramifications on her care of the children, including her ability to cope. The mother’s likely mental health decline would have a significant impact on the children’s emotional and psychological wellbeing, possibly leading to the children developing internalising or externalising behaviours, impacting on the children’s sleep, appetite, focus and concentration. It may also lead to the development of anxiety or behavioural problems.

59However, in my view, the alleged inevitable detrimental impacts on the children if they were returned to Country A were not nearly as clear‑cut as Ms M’s reports suggested. During her cross‑examination, Ms M appropriately conceded there were many factors at play in relation to the potential impacts on the children if they and the mother returned to Country A. This included: (1) whether the mother continued to take her prescribed medication whilst she was in Country A; (2) whether the mother accessed ongoing psychological counselling and/or support in Country A; (3) whether the mother received support from the paternal and/or maternal family while she was in Country A; (4) the care arrangements for the children in Country A; and (5) the children’s relationships with their father and the paternal grandparents and the ongoing support that the children received from these sources. Ms M also appropriately conceded that she was simply not in a position to comment on the level of risk to the children if they were returned to Country A as she had never met with the children or with the father.

60Dr J first met and psychiatrically assessed the mother on 14 December 2018. She provided her first report on 4 January 2019. After the initial assessment, the mother had two further appointments with Dr J in April and May 2019. Dr J provided a second written report on 5 July 2019. She then had two further appointments with the mother: on 10 July and 17 July 2019.

61In her first report, Dr J reported that the mother gave a positive family psychiatric history, indicating a vulnerability to developing a psychiatric disorder. This included family members having histories of anxiety, depression and schizophrenia. The mother also reported being traumatised and overwhelmed with guilt after terminating her pregnancy in 2011, suffering significantly disturbed mood and anxiety. She also reported being devastated by the deterioration in her marital relationship around the time of Child B’s birth. The mother told Dr J that she felt quite desperate at times and had some suicidal ideation. However, Dr J conceded in cross‑examination that the mother did not report making any plans to commit suicide, self-harming or being admitted to a psychiatric facility.

62The mother told Dr J that she sought psychological support in Country A, but such attempts had been unsuccessful. As I have earlier found, I am satisfied that the mother did not in fact seek psychological support for her mental health issues in Country A (although she did attend marriage counselling with the father for their ongoing marital issues).

63The mother told Dr J that she considered it would be detrimental to her mental health to return to Country A, and described perceiving the father as financially, psychologically and emotionally controlling and abusive on multiple occasions. She also felt isolated and unsupported in Country A. I observe again that I am satisfied that the mother did not give an entirely accurate or balanced account of these matters to Dr J.

64Dr J opined in her first report that the mother suffered from a major depressive disorder, which has included limited panic phenomena. She considered that the disorder was in partial remission in the context of treatment and appropriate psychosocial support in Australia. Dr J considered that the mother needed to continue with antidepressant medication indefinitely and also continue to receive regular psychological intervention and be monitored by Dr J on an annual basis. Dr J conceded she was unable to make any recommendations about treatment in Country A as she was not familiar with what may be publically available.

65In her first report, Dr J opined that if the mother was required to return to Country A, then it would definitely have an adverse impact on the mother’s mental health and the mother would suffer a significant deterioration in her mental health. She considered that the mother was not resilient enough to remain in Country A for an extended period at this stage. Dr J anticipated that the mother would present with increasing depressive phenomena, including a-motivation and withdrawal, and increasing anxiety and panic phenomena, including physical symptoms of these with associated avoidance. Dr J anticipated that as a result, the mother would not sleep well, would be lethargic, have difficulties with focussing on matters as she needs to, and her recall and ability to make decisions would be impaired. If the mother deteriorated significantly, then Dr J opined that the mother could re-experience thoughts that life was not worth living and suffer intrusive suicidal ideation. Dr J also opined in her first report that the decline in the mother’s mental health will impact on her ability to be as engaged with her daughters as she has been, which in turn would impact significantly on the children’s psychological and emotional wellbeing and on their development.

66However, in cross-examination, Dr J appropriately conceded that:

a)Her views were based primarily on the mother’s self‑reporting. Dr J acknowledged she had not spoken to the father, the paternal grandparents or the children. She had not made any independent enquiries as to the local environment in Country A into which the children and mother had lived and which, dependent upon the outcome of the court proceedings, they would be returning to.

b)If the children and the mother returned to Country A, then the level of deterioration in the mother’s mental health was dependent upon various factors. Further, the children’s psychological health and wellbeing was also dependent upon various factors, including the quality of the children’s relationship with their father; the nature of the other supports around the children; and the children’s own internal makeup.

67Dr J provided a second written report on 5 July 2019, in which she opined that the mother’s mental health was likely to have significantly declined to the extent that she was now suffering from a major depressive disorder and panic disorder, having regard to: (1) the interim orders made by the Court of Province A that provided for the mother to relinquish custody of the children to the father, if they were returned to Country A; and (2) the mother’s conviction that she would be living in a hostile environment in Country A. Dr J considered that if the mother was permitted to see her children in Country A, her mental state could be quite precarious, and may impact upon her ability to safely and appropriately parent the children, including by virtue of likely cognitive impairment which is often inherent in severe disorders. However, Dr J did not believe that the children would be at risk of deliberate harm by the mother.

68In her second report, Dr J expanded upon her concerns for the mother’s mental health, opining that the mother’s primary identity was that of being the children’s mother and that as a result of the interim court orders, the mother would experience a devastating void, would be unable to tolerate the experience of loss and suicidal ideation would become prominent. Dr J considered that the mother’s life “will be at risk”.

69Subsequent to her second report, Dr J met with the mother again on 10 July and 17 July 2019. She subsequently provided a “proof” to the mother’s solicitors in which inter alia she confirmed her evidence as contained in the second report.[16] In particular, she confirmed her anticipated diagnosis as set out in the second report that the mother was suffering from a major depressive disorder and panic disorder with some PTSD phenomena. Dr J reiterated that the reasons behind such negative impacts on the mother’s mental health were that the mother’s sense of identity was as “a mother”, and that if her mothering role was taken away from her, she would be an “empty vessel", and at a high risk of self-harm.

[16] Exhibit R3.

70During her second round of cross-examination on 22 July 2019:

a)Dr J re-affirmed her opinion that the mother was now suffering from a major depressive episode, as well as a panic disorder.

b)In relation to the risks posed to the children consequent upon the mother’s diagnosis, Dr J ruled out that that the mother would physically harm the children. Instead she accepted that the risks to the children consequent upon the mother’s mental health issues in the event that the children were required to return to Country A were twofold: Firstly the risks in relation to the mother’s parenting capacity being further compromised and secondly the risks in relation to the mother self-harming.

c)When it was put to Dr J that the mother had earlier conceded that she was currently struggling to cope with being a single parent and would welcome the father’s assistance and support with the children (provided that he came to Australia), Dr J maintained that it was not simply a matter of what assistance and support the mother was actually provided with in Country A. Rather it was the mother’s perception that she would be isolated and unsupported and unable to cope in Country A that was the key issue from the mother’s point of view.

d)Dr J reiterated that in reality the mother could have every practical support in Country A, but that would not be the mother’s perception of her circumstances. Dr J conceded that she knew very little about what practical supports were actually available to the mother in Country A.

e)Dr J confirmed her opinion that the mother’s life was at risk arose from the mother’s potential loss of her identity as “a mother” and as the primary carer of the two children. However, Dr J conceded that she was unaware that the orders made by the Court of Province A were interim orders only and may only be in effect for a short period of time. Dr J conceded that she could not predict whether the mother would in fact self-harm, but did consider that the risks may heighten, particularly as the mother was “very suicidal” in the past. I accept that the mother told both Ms M and Dr J that at times in Country A she had experienced some suicidal ideation. As I have already found, I have some nagging doubts about the bona fides of the mother’s claims in this regard. Even assuming the mother did experience some suicidal ideation at times, I am not satisfied that there was any cogent evidence that the mother was ever “very suicidal”.

The applicable regulations

71Pursuant to regulation 16(1) of the Regulations if:

a)an application for a return for a child is made; and

b)the application … is filed within one year after the child’s removal or retention; and

c)the responsible Central Authority … satisfies the court that the child’s removal or retention was wrongful under sub‑regulation (1A);

d)the Court must, subject to sub-regulation (3), make the order.

72Regulation 16(1A) provides that: For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:

a)the child was under 16; and

b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and

c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and

d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and

e)at the time of the child’s removal or retention, the person, institution or other body:

i)was actually exercising the rights of custody (either jointly or alone); or

ii)would have exercised those rights if the child had not been removed or retained.

73Regulation 16(3) provides that a court may refuse to make an order under sub-regulation (1) ... if a person opposing return establishes that:

a)The person, institution or other body seeking the child's return:

i)Was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

ii)Had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

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; or

d)The return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

74Regulation 16(4) provides that for the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority in the country in which the child habitually resided immediately before his or her removal or retention.

75Regulation 16(5) provides that the court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by the person opposing return.

Issues in dispute / not in dispute

76The question whether the children were habitually resident in Country A at the requisite time was in dispute. It was otherwise not in dispute and I am satisfied that:

a)The application was filed on 11 March 2019, within a year after the children’s retention in Australia.

b)Both children are under 16 years of age.

c)Country A is a convention country.

d)In the event I find that the children were habitually resident in Country A at the requisite time, then: (1) the father had rights of custody in relation to the children; (2) the children’s retention in Australia was in breach of the father’s rights of custody; and (3) the father was exercising his rights of custody prior to the retention and would still be, had not the children been retained in Australia.

77If I find that the children were habitually resident in Country A at the relevant time and accordingly, the children’s retention in Australia was wrongful, then the mother maintained that pursuant to regulation 16(3) I should refuse to make an order for the children to be returned on the basis there is a grave risk that the return of the children would expose the children to physical or psychological harm or otherwise place them in an intolerable situation.

Were the children habitually resident in Country A immediately before their retention in Australia?

78It was common ground that the Australian law relating to habitual residence for the purposes of the Convention was authoritatively settled in the High Court decision of LK v Director-General, Department of Community Services[17] ("LK").

[17] LK v Director-General, Department of Community Services (2009) 237 CLR 582.

79The High Court said at [22]:

If the term "habitual residence" is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.

80The High Court went on to observe that it would be wrong to attempt to devise some further definition of the term intended to be capable of universal application, saying at [23]:

Rather, it is sufficient for present purposes to make two points. 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.

81Against that background, the High Court said at [27] to [29]:

27.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.

Purpose and intention

28.Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.

29.First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous. The facts of this case provide one example of such circumstances. The mother left Israel on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return. In those circumstances, it is not possible to say that the mother then had a settled intention which was sufficiently described either as being an intention to reside permanently in Israel or an intention to reside permanently in Australia. Neither description would acknowledge the significance attached to the possibility of reconciliation.

82The High Court went on to consider issues which might be said to arise where it is suggested that a child is habitually resident in a particular place by virtue of a unilateral decision of a parent, saying at [34] to [35]:

34.Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

35.It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. [An] examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.

83The Full Court in Zotkiewicz & Commissioner of Police[18] observed at [74] that to find that a person is habitually resident in a place they must generally have lived there for an "appreciable period". However, what amounts to an "appreciable period" will differ from case to case, and will be dependent to some extent on the intentions of the parents.

[18] Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472.

84The Full Court in Secretary, Department of Family and Community Services & Padwa[19] ("Padwa") drew attention to what it described as the "shift away from the concentration on shared parental intention in determining habitual residence". It referred to observations made by the High Court in LK at [44] to [45] in relation to what was said by the Court of Appeal of New Zealand in Punter v Secretary for Justice[20] ("Punter"):

[19] Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701.

[20] Punter v Secretary for Justice [2007] 1 NZLR 40.

44....it is sufficient to observe that in [Punter], the effect of the decision in [SK v KP [2005] 3 NZLR 590] was described [by the plurality] as holding that the inquiry into habitual residence is "a broad factual inquiry". The plurality went on to say in [Punter]:

"Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called at [22], the underlying reality of the connection between the child and the particular state."

As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled. So understood, there is no disconformity between the approach of the New Zealand courts and the need, identified by Lord Brandon in re J, to decide the question of habitual residence "by reference to all the circumstances of any particular case" (original emphasis).

45.Moreover, the approach described in Punter 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" (original emphasis), 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.

85The Full Court in Padwa regarded the highlighting by the High Court of the words "from the child’s perspective" as being "of considerable importance". The Full Court went on to say at [38]:

In determining habitual residence the ultimate question for the trial judge is whether, immediately prior to [the date of removal], the child's presence in the relevant State had a degree of settled purpose from the child's perspective, in all the circumstances of the case, to result in the conclusion that the child was habitually resident in the [relevant State].

86In cases of wrongful retention, the ultimate question of habitual residence is to be determined by reference to the time of the alleged wrongful retention.[21] Although the above passage from Padwa is not directly applicable to a situation of wrongful retention, the passage is instructive.

[21] LK [48].

87The Full Court in Mhambrey & Wairaja[22] observed at [23] that the High Court in LK emphasised the broad factual and contextual nature of the inquiry that, ultimately, looks at the connection between the child and the particular State. This, therefore, is what must be addressed in this case.

[22] Mhambrey & Wairaja [2018] FamCAFC 120.

88Having regard to the principles set out above, I am satisfied that the children were habitually resident in Country A at the requisite time, for the following reasons:

89 Firstly, I am not satisfied that the parents ever reached an agreement that the family would permanently live in Australia, as the mother maintained; or that the family would permanently live in Country A, as the father maintained.[23]

[23] I am also not satisfied that the father tricked and/or deceived the mother into remaining in Country A, for example, by not disclosing that he was having an affair, as the mother also appeared to maintain at times during the trial.

90I am satisfied that the parents were regularly at loggerheads in relation to the mother’s desire for the family to live in Australia on the one hand, and the father’s desire for the family to live in Country A on the other. However, I am satisfied that from early 2016 onwards, the reality was that the family lived in Country A for the majority of the time and spent relatively short periods of time holidaying in Australia each year. Although the mother was keen to return to Australia for longer periods and ultimately to live permanently in Australia, she agreed to the family remaining in Country A so that the father could address various difficulties relating to his business and because it was more financially advantageous to the family if the father was able to continue to work full time in his business.

91By the time of Child B’s birth in 2017, the parents’ marital relationship had significantly deteriorated. However, I am satisfied that the mother continued to try to save the marriage, including: (1) returning to Country A with the father and the children in February 2018, even though she suspected he was having an affair; and (2) after the father emailed her in May 2018 proposing they separate and commence discussions about future arrangements, the mother responding that she wished to save the marriage. I am satisfied that the mother only finally decided that the marriage was over in July 2018, after receiving confirmation that the father was having an affair, assaulting the father, and then unilaterally leaving the family home with the children.

92 Secondly, I am satisfied that over an appreciable period of time from early 2016 onwards, the family, including the children, integrated into life in Country A. This included:

a)The family continued to live in the father’s home and the father continued to work in his own business to financially support the family;

b)The children spent frequent, regular time with members of the extended paternal family (particularly the paternal grandparents) and were involved in various recreational activities, including swimming lessons;

c)Child A attended kindergarten in Country A in 2017 and 2018;

d)The children were baptised in their local church in 2018;

e)The parents looked for a bigger home in Country A in 2017 and 2018;

f)The mother was [a] Country A resident. She worked as a librarian at [a] Country A university for varying periods of time in 2015, 2016 and 2017, and actively sought work in Country A in 2018;

g)The mother drove a motor vehicle in Country A, including to and from work;[24]

h)The mother regularly socialised with her Country A based friends and members of the extended paternal family, as well as her own Australian family members and friends when they travelled to Europe.

[24] However, I accept that the mother did not always feel comfortable driving in Country A, particularly as she did not have [a] Country A driver’s license.

93By contrast, the family’s trips to Australia, particularly from 2016 onwards, could only be regarded as holidays. The family stayed with the mother’s extended family during visits as they did not maintain a home in Australia; neither the mother nor the father sought employment or worked in Australia;[25] and Child A did not attend kindergarten in Australia. The father never applied for Australian residency and/or a Visa to work in Australia.

[25] Apart from possibly one period of approximately six weeks when the mother worked in Australia. It was unclear from the mother’s evidence in which year this occurred.

94I accept the Central Authority’s submission that the reality of Child A’s existence from early 2016 onwards, and subsequently Child B’s existence after her birth in 2017, viewed from their perspective, was that Country A was their home and Australia was where they went on holidays.

95 Thirdly, I am satisfied that the July 2018 agreement was clear in its terms that the mother was permitted to take the children to Australia only for a limited time and that the children were to be returned to Country A by no later than 15 January 2019. Although the mother complained to Dr J and Ms M that she felt coerced, pressured and desperate and/or under duress when she signed the agreement, I am not persuaded this was the case. The mother was represented by her Country A lawyer during the meeting which resulted in the agreement and the mother was also supported by her father during the meeting. The mother conceded in cross-examination that she understood the terms of the agreement, intended to abide by the agreement and only changed her mind some time in December 2018 when: “I don’t know which date specifically, but when I started to understand that there could be a chance that I could beat what he was doing with the Hague Convention”.

96In my view, the fact that the agreement did not specify the arrangements for the children following their return to Country A in January 2019 was irrelevant. This was particularly having regard to the facts that: (1) the father had commenced proceedings in Country A in 2018; (2) both parents were represented by lawyers in Country A; and (3) both parents were in a position to continue their negotiations over time.

97The mother’s return to Australia in August 2018 with the children pursuant to the July 2018 agreement and/or her subsequent unilateral decision to renege on the agreement and remain in Australia with the children did not (and could not) have the effect of changing the children’s habitual residence from Country A to Australia.[26]

Is there a grave risk that the return of the children to Country A would expose the children to physical or psychological harm or otherwise place them in an intolerable situation?

[26] LK [34].

98The mother maintained, pursuant to regulation 16(3), that I should refuse to make an order for the children to be returned to Country A on the basis that the state of her mental health meant that there was a grave risk that the return of the children would expose the children to physical or psychological harm or otherwise place them in an intolerable situation. In particular, the mother maintained that she suffered from a major depressive disorder and panic disorder. The mother’s position was that if an order was made for the children’s return to Country A, her mental health would be so detrimentally impacted that she would not be able to function adequately as a parent, she would be a “shell” as a mother, and the children’s psychological wellbeing would be compromised as a result.

99The onus of proof of this matter lays with the mother as the party opposing the return.[27]

[27] DP v Commonwealth Central Authority (2001) 206 CLR 401.

100The Full Court in Gsponer v Director General, Dept of Community Services, Vic[28] ("Gsponer") observed at 77,159 that regulation 16(3)(b) sets out three distinct situations which may lead a court to decline to return a child. These are that there is a grave risk that the return would:

a)expose the child to physical harm;

b)expose the child to psychological harm; or

c)otherwise place the child in an intolerable situation.

[28] Gsponer v Director General, Dept of Community Services, Vic (1989) FLC 92-001

101In DP v Commonwealth Central Authority,[29] the High Court considered the interpretation of regulation 16(3)(b) and concluded it should not be given a narrow construction; it should be given the meaning its words require. Gaudron, Gummow and Hayne JJ (who comprised the majority, along with Callinan J in a separate judgment) observed that:

41.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.

42.Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description "grave". Leaving aside the reference to "intolerable situation", and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.

[29] Commonwealth Central Authority (2001) 206 CLR 401.

102The majority went on to say that to satisfy the requirements of Regulation 16(3)(b), compelling and clear evidence is required, and then emphasised that:

45It 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.

103It is not sufficient merely to establish some degree of physical or psychological harm; the physical or psychological harm must be substantial and comparable to an intolerable situation.[30]

[30] Director General of the Department of Family and Community Services v Davis (1990) FLC 92-182, 78,227-8.

104In In re E (Children) (Abduction: Custody Appeal),[31] the United Kingdom Supreme Court held that what the regulation requires is that the risk to the child must be "grave" and that in considering this, there is a link between the risk and the harm, stating:

33.It is not enough that the risk…be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm.

[31] In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144.

105Australian courts should not assume that once a child is returned, the courts of the convention country are not appropriately equipped to make suitable arrangements for the child's welfare.[32] Often enough, the answer to a claim of grave risk will be that the feared harm will form a central issue in subsequent judicial proceedings in the country of return, provided that there will be judicial proceedings and the harm will be relevant to those proceedings.[33]

[32] Gsponer v Director General, Dept of Community Services, Vic (1989) FLC 92-001, 77,160.

[33] DP v Commonwealth Central Authority (2001) 206 CLR 401, 416-7; (Gaudron, Gummow & Hayne JJ).

106In Director-General, Department of Families, Youth and Community Care v Bennett,[34] the Full Court, in obiter, gave the following example of circumstances where regulation 16(3)(b) exception might be made out:

47.where a very young baby was wrongfully removed or retained in circumstances that would otherwise lead to its return being ordered, if it was being breast-fed by its “abducting” mother and her personal circumstances genuinely precluded her return with the child (eg. her medical condition or perhaps even her incarceration), then the reg 16(3)(b) exception might be made out.

[34] Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011.

107In Director-General, Department of Families and RSP,[35] the Full Court considered regulation 16(3)(b) in relation to allegations that the mother was at serious risk of committing suicide if the child was ordered to return to the United States. The trial judge accepted the psychiatric evidence that the mother’s mental health was such that her suicide was a significant and real possibility and that, should this eventuate, it would, in accordance with the psychologist’s evidence, expose the child to serious psychological harm. His Honour exercised the discretion contained in regulation not to order the return of the child and the Central Authority appealed. The Full Court dismissed the appeal, finding the trial judge was, in all the circumstances, entitled to find as he did. In relation to circumstances when suicide of a parent is raised as an grave risk, the Full Court said:

39. At the conclusion of his judgment, his Honour expressed his concerns about cases such as this where a threat of suicide is raised in resistance to an application for the return of the child, making the following observations with which we agree:

"80.I do not reach these findings without disquiet. Courts will understandably have a real concern about the disingenuous adoption of stances designed to achieve the purposes of abductors in resisting orders for the return of children. But the response to this concern cannot be to disregard evidence, but rather to scrutinise it with great care."

[35] Director-General, Department of Families and RSP .

108The Full Court dismissed the appeal as the trial judge then went on to explain why the risk in that case was sufficient to enliven the exception in regulation 16(3)(b), which was:

81.In this case there is a history of depression and mood changes in the mother. She demonstrated an intense need for the comfort and support of her family. She has suffered dramatic and no doubt traumatic health difficulties. She threatened suicide when cohabiting with the father.

82.Her consultations with Dr Klug are apparently for the purpose of treatment, not evidence gathering. His medical opinion of the risk is clear and unchallenged.

109In this case, the mother has not satisfied me of the matters contained in regulation 16(3)(b), to enliven my discretion to refuse to order the return of the children. In summary, this is for the following reasons.

110 Firstly, I am satisfied that the mother currently suffers from significant mental health issues for which she requires ongoing treatment. I am also satisfied that she will be very distressed if the children are required to return to Country A and her mental health may further decline. However, I am not persuaded on the available evidence that if the children are returned to Country A, the mother’s life will be at risk and/or she is at a high or real risk of suicide. In the event that the mother chooses to remain in Australia, then she can continue to engage with her mental health providers and receive ongoing support from her maternal family members. In the event that the mother chooses to return to Country A with the children, I am not persuaded that she will be unable to obtain appropriate mental health treatment and support. In particular, Ms P’s unchallenged evidence was that there are numerous mental health services available in Province A, including an inpatient psychiatric ward.

111 Secondly, pursuant to the interim orders made by the Court of Province A, upon the children’s arrival in Country A they will move into the father’s sole custody, at least on an interim basis. The father’s position is that he hopes that the mother will elect to return to Country A with the children and in such a case, he wishes to facilitate the mother spending regular time with the children.[36] I accept that the mother will find the children’s transition into the father’s full‑time care very distressing, her mental health may further decline and her capacity to adequately parent the children as and when they are in her care may diminish. However, the mother acknowledged that she was already struggling to cope as a single parent and would welcome the father’s ongoing assistance and support in caring for the children, but provided he was prepared to come to Australia. The mother also acknowledged to the FCWA Family Consultant that the father was able to care for the children, would make “the right decisions” for them and she did not raise concerns for the children in his care or allege any issues that may put them at risk. I am also satisfied that in addition to the father, the children will have other supports available to them in Country A, including their paternal grandparents. I accept the submissions of counsel for the Central Authority that the mother’s evidence, and that of Ms M and Dr J, as to the risk to the children if they are required to return to Country A, falls well below the threshold required by regulation 16(3).

[36] The father also appeared to suggest that in the longer term, he may be amenable to a shared custody arrangement.

112The appropriate order should be that the children be returned to Country A, as sought by the Central Authority. Although the Counsel for both parties made submissions in closing about the power of the Court to make orders for conditions to give effect to the convention pursuant to regulation 15, including "safe harbour" conditions, neither the Central Authority nor the mother identified any specific conditions in this regard.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV
Associate

1 AUGUST 2019