Department of Child Safety, Youth and Women and Comar - [2019] FamCA 909

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & COMAR

[2019] FamCA 909

FAMILY LAW – CHILD ABDUCTION – Hague Convention Application – wrongful retention of children in Australia – whether children habitually resident in Columbia – where mother failed to establish that the father had consented to or acquiesced in children remaining in Australia – whether the two oldest children’s objection to return should be taken into account – where grave risk of psychological harm and an intolerable situation is established – Application for return dismissed.

Family Law (Child Abduction Convention) Regulations 1986 (Cth) r 16

Punter v Secretary for Justice [2007] 1 NZLR 40
LK v Director-General, Department of Community Services (2009) 237 CLR 582
AR v RN (Habitual Residence) [2015] UKSC 35
Re B (A Child) [2016] UKSC 4
Director-General Department of Child Safety & S (2005) FLC 93-249
Wenceslas & The Department of Community Services [2007] FamCA 398
Re: K (Abduction: Consent) (1997) 2 FLR 212
Jones & Dunkel (1959) 101 CLR 298
DP v Commonwealth Central Authority: JLM v Director General, Department of Community Services (2001) 206 CLR 401
Wolford & Attorney Generals Department (2014) FamCAFC 197
Re E (Children) (Abduction: Custody Appeal) (2011) UKSC 27
C v C (minor: abduction: rights of custody) [1989]
Director-General Department of Families & RSP

APPLICANT:

Department of Child Safety, Youth and Women

RESPONDENT:

Ms Comar

FILE NUMBER:

BRC

6714

2019

DATE DELIVERED:

6 December 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

13 and 19 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Shoebridge

SOLICITOR FOR THE APPLICANT:

McInnes Wilson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr M Green

SOLICITOR FOR THE RESPONDENT:

Frampton Legal

Orders

That the Application filed 12 June 2019 be dismissed
That the proceedings be adjourned to a date to be fixed to consider any consequential orders that arise from the Application being dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6714 of 2019

Department of Child Safety, Youth and Women

Applicant

And

Ms Comar

Respondent

REASONS FOR JUDGMENT

Introduction

On 12 June 2019, the Director-General, Department of Child Safety, Youth and Women, as State Central Authority (“SCA”), filed an Application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking the return of the children X (born in 2009), Y (born in 2012) and Z (born in 2017) to Columbia.
The Regulations give expression to Australia’s obligations under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction which entered into force between Australia and Colombia. The Respondent to the Application is Ms Comar (aged 36 years). The father, Mr Comar (aged 40 years) is the requesting parent and gave evidence in support of the SCA’s application.
It is alleged that whilst living in Columbia the mother brought the children to Australia on 17 December 2018 for a defined period, ending around 15 January 2019, after which she failed to return the children to Columbia. It is alleged that the children were “wrongfully retained” by the mother in Australia, within the meaning of Regulation 16(1A) of the Regulations. The mother opposes the return of the children on various bases, one of which goes to a fundamental requirement of the application and others which, if made out by the mother, would give me a discretion to refuse to return the children (or some of them) to Columbia. Both parents swore Affidavits in support of their position, the mother opposing the children’s return. The parents were the subject of cross-examination, the father by telephone, he being in Colombia.

Contextual background

The following historical chronology is not controversial. Statements of fact hereafter shall be construed as findings of fact.
Both parents were born in Australia and are Australian citizens, who commenced cohabitation in 2004 and were married in Country B in 2010. The children’s paternal and maternal grandparents reside in Australia.
The father works in the mining industry and to accommodate a number of his career opportunities, the couple between November 2004 and February 2009 lived in C Town, Perth, Brisbane and D Town before returning to Brisbane in February 2009, before the birth of X later in 2009.
In late 2011/early 2012 the parties and X moved to Melbourne during which time the mother was diagnosed with anxiety and received medical support. In May 2012, the family moved to Country E where they remained until September 2012. It seems at around the time of the return to Australia, in September 2012, the father had received a job offer in Country G, which he accepted.
Y was born in 2012 in Australia, and shortly after his birth the mother and the two children joined the father in Country G where they remained, for over four years, until approximately 30 April 2017 when the mother (who was heavily pregnant) and Y returned to Australia for the birth of Z which occurred later in 2017.
X returned to Australia at the end of May 2017, whilst the father continued to work in Country G. Accordingly, the children returned to Australia when X was 7 years and 11 months old and Y was 4 years and 5 months old.
As will be discussed in more detail later in these Reasons, the father’s employment in Colombia began in March 2018, in accordance with a contract of employment he signed in February 2018. The decision to take up the employment had been preceded by the father, the mother and the baby Z travelling to Colombia in November 2017, to make enquiries about the position and other practical issues such as accommodation, schooling and the like. After this short trip, the mother and Z returned to Australia where the two older children were then in the care of relations, whilst the father returned to Country G where he was still employed.
It is not in dispute that in January 2018, the mother suffered a deterioration in her mental health and after overnight admission in a local hospital, she was admitted to a specialist mental health facility (F Hospital) where she remained for a number of weeks.
Shortly prior to 30 March 2018, the father left Australia to begin his contract of employment in Colombia. The mother and the three children left Australia to join the father in Colombia on or about 26 July 2018, to allow the older children to begin school in Colombia, where they were enrolled shortly after arrival in Colombia. By the time the children departed Australia in late July, 2018, X had been living in Australia for a little over a year, Y for about 14 months and Z for the first year of her life.
The mother and the children remained in Columbia from 26 July 2018 until 17 December 2018 when the father agreed to the mother and children visiting Australia until 15 January 2019.
The family’s time in Columbia, some five and a half months, is the period during which a number of disputed factual issues are said to have occurred or not occurred. These are best explored through the matrix of the relevant statutory principles the Court is obliged to apply.
It is not in dispute that the mother and the three children have remained in Australia since 17 December 2018. They had been in Australia for less than one month when the mother stated that the children would not be returned. By the time the father lodged his request to the Columbian Central Authority to activate the procedures under the 1980 Convention, on 26 March 2019, the children had been in Australia for three months.
The final hearing of this matter commenced on 13 September 2019 (for one day), with oral and written submissions delivered on 19 September 2019. The Court has been greatly assisted in this difficult matter by the experienced Counsel who appeared before the Court – Mr Shoebridge for the Applicant and Mr Green for the mother. Neither could have said or done more to advance their case than they did.

Regulations

The legislative framework within which this application is to be determined is set out in the Regulations.
Sub-regulation 16(1) of the Regulations provides:
“If:
(a) an application for a return order for a child is made; and
(b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.”
Sub-regulation 16(1A) describes what is wrongful. It provides:
“For subregulation (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.”

The criteria under sub-regulation 16(1A) are threshold elements of the wrongful removal or a wrongful retention. If I am satisfied of these jurisdictional facts, I am mandated to return the children to Columbia unless the mother can bring the children (or some of them) within one of the exceptions to return (which I will discuss shortly).
The Applicant SCA bears the onus of proving the jurisdictional facts. Here, the contentious threshold issue is whether the children were habitually resident in Columbia immediately prior to the mother’s alleged wrongful retention of them in Australia on or before 15 January 2019. If I am not satisfied that the children were habitually resident in Columbia immediately prior to 15 January 2019, being the date on which it is alleged that the children were wrongfully retained by the mother, the return application must fail.
Sub-regulation 16(3) sets out the exceptions to mandatory return. It provides:
“A court may refuse to make an order under subregulation (1) or (2) 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.”
Here the Respondent mother alleges that:
a)the father consented to or subsequently acquiesced to the children staying in Australia;
b)the return of the children to Columbia will expose them to a grave risk to psychological harm because the mother has a mental illness which precludes Columbia being an emotionally safe place for her to return to live and, if the children are required to be returned without her, they will be separated from their primary carer and be placed in the care of strangers whilst the father works and be emotionally bereft; and
c)the older children, X (10 years) and Y (7 years) object to returning to Columbia to an extent that is stronger than a mere preference not to return and each is old and mature enough to have their objection taken into account.
The Respondent mother bears the onus of proving that an exception to return applies. I must assess each child individually vis a vis each exception alleged by the mother.
If I am satisfied that an exception to return applies in relation to a child, I have a discretion to refuse to return that child to Columbia. I will discuss below what informs the exercise of that discretion. Suffice it is to say that the mother contends that I can be satisfied that the each child is covered by at least one exception and that I should exercise my discretion to refuse to return the children to Columbia. The Applicant SCA disputes the application of any exception but, if I find contrary to that submission, says with one qualification, that I should decline to exercise my discretion in favour of the children (or any of them) remaining in Australia. The qualification is that, if I find that the Regulation 16(3)(c) exception is made out in relation to the two older children and I exercise my discretion to refuse to return them to Columbia, the Applicant SCA does not seek the return of Z to Columbia alone.
I propose to deal with the evidence about exceptions to return within the matrix of the statutory requirements.

Habitual residence

The Applicant SCA bears the onus of establishing that the children were “habitually resident” in Colombia. The Applicant submits that the evidence would lead to the “inevitable conclusion that the children were habitually resident in Columbia prior to the date of retention” (paragraph 25).
The mother contends (see paragraph 2) that:
a)the children lived in Colombia from 27 or 28 July 2018 to 17 December 2018 but never became habitually resident in Columbia; or
b)if the children became habitually resident in Colombia, the children lost that habitual residence before the father sought the return of the children to Colombia.
In relation to the assumption by the children of Australia as their place of habitual residence, the mother contends that the children were habitually resident in Australia immediately before her retention of them after communicating to the father her decision to do so, between 25 December 2018 and 1 January 2019. In short, that the habitual residence of the children changed between their arrival (17 December 2018) and 25 December 2018 and 1 January 2019 which is the period within which the mother repudiated the agreement to return the children to Columbia on 15 January 2019.
By reference to Punter v Secretary for Justice [2007] 1 NZLR 40, Counsel for the Applicant submits this broad inquiry should, where relevant, canvass some significant factors, namely:
a)the settled purpose and with young children, the settled purpose of the parents;
b)the actual and intended length of stay in a State;
c)the purpose of the stay;
d)the strength of ties to the state and to any other State (both in the past and currently); and
e)the degree of assimilation into the State, including any living and schooling arrangements and cultural, social and economic integration.
It is accepted the process identified by the High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) requires a “broad factual inquiry” into the “connection between the child and a particular state”.
Subsequently, in 2015, in AR v RN (Habitual Residence) [2015] UKSC 35 at [16], Lord Reed who delivered the judgment for the Supreme Court, noted:
“It is… the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.”
In Re B (A Child) [2016] UKSC 4, the United Kingdom Supreme Court considered the circumstances and point at which habitual residence was lost. Lord Wilson, with whom Lady Hale and Lord Toulson agreed, held that the subject children did not lose their habitual residence immediately upon removal from the jurisdiction, even where there was a settled intention that they would no longer live there. Their Honours’ reasoning was that children lose their habitual residence when they achieve the required degree of disengagement from the jurisdiction. Lord Wilson stated:
“[45] I conclude that the modern concept of habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed [the child]. The concept operates in the expectation that, when a child gains a new habitual residence, he loses this old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration (or better, disengagement) from it.
[46] … The identification of a child’s habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him:
1. The deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state
2. The greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree, and
3. Were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement.”
Lord Wilson described the necessary process as follows:
“[54] This should be a composite consideration of all the circumstances in the new environment and as a mirror image, in the old environment in order to determine whether habitual residence has shifted from the latter to the former.”
I make the following findings in respect of the contentious and non-contentious issues, including as to the issue of habitual residence, applying the crucial standard of proof, namely:
a)the family unit had spent most of the children’s lives before 17 December 2018 residing outside of Australia, the mother returning for the purpose of giving birth to the children Y (2012) and Z (2017);
b)the husband’s decision to take up a contract of employment in Colombia was one made jointly by the parents and in circumstances where the desire for the mother and the three children to live in Colombia whist the father was employed, was well understood by the mother and accepted, and acted upon, by her;
c)the mother’s support for the move to Colombia was with some reluctance, but this was at least partly due to the recent birth of Z and the mother’s underlying anxieties which were a feature of her personality;
d)the trip in November 2017 to Colombia by the father, the mother and baby Z was for the purpose of assessing living arrangements for the family for an indefinite but, necessarily, permanent future time. I am satisfied that the father would not have committed to the terms of the contract (signed by him on 2 February 2018), if the mother and children (then living in Australia) were not going to join him. I do not suggest that moving the family to Colombia was an easy decision, however the nature of the father’s work opportunities has seen the family live, work and attend school overseas;
e)the mother’s medical treatment in Australia in February and March 2018 primarily at the F Hospital in Brisbane for depression and anxiety sensibly required the father to remain in Australia until the mother was discharged – with the father leaving Australia on or about 30 March 2018 to travel to Colombia;
f)the mother says that she was unaware that the father’s contract was for an “indefinite term” (as the terms of the Employment Contract so describe), although she anticipated the family would be living in Colombia “for some time” but was not sure for how long. It follows that the mother did not consider when she arrived in Columbia in July 2018, that the family would be moving again any time soon or that Columbia was a transitory location;
g)the mother had a period of almost four months, whilst continuing to live in Australia with the three children, to exhibit her alleged reluctance to live in Colombia by simply not leaving. She chose however, in my view entirely consistent with the joint and common purpose planned by the father and mother, to leave Australia on 27 July 2018. Arrangements were made for items of furniture and the family pets to be transported after the mother and children left Australia. The departure from Australia was to all intents and purposes effected in the context of establishing a life in Columbia. The mother conceded in cross-examination that “physically speaking” the father could not force her to leave Australia in July 2018, as she did. She said she felt if she did not get on the plane in July 2018 she “would be failing the father again”. In this context, I find that it is likely that, upon arriving in Columbia, the older children, considered that Columbia would be their home for the foreseeable future and commenced to integrate into life there;
h)entirely consistent with the common intention to live in Colombia for “some time”:
i)the parents enrolled the school aged children, X and Y in a school close to the gated community in which they lived. The school called H School provided education for the children from early August 2018 until the school term ended around the time the mother left Colombia with the children on 17 December 2018;
ii)the parents had to undertake further visa requirements to permit continued residence in Colombia which they did and prior to the mother’s departure from Colombia the necessary visas issued. The mother and father travelled to the capital Bogota on 15 November 2018 to complete formal visa requirements, including some form of “commitment” or “remarriage” process. The parents and children’s visas, permitting continued residency in Colombia, all issued by 7 December 2018;
iii)the father arranged and took a number of legal steps to acquire two adjoining properties at a coastal town called City V some two hours commute from where the family were to live, to provide (post-renovation) a suitable location for regular holidays or weekends as a family. The father asserts, and I accept, that the costs of entering into these property arrangements did put an additional financial strain on the family income, but the purpose again was consistent with providing opportunities to assimilate into the culture and Country they were living in;
iv)the mother, with some insight into her need to find some medical support for her ongoing management of her mental health challenges, identified with the father, Dr J (who was practicing in a town some two hours away called K Town) for ongoing therapy; and
v)the school aged children, on the available evidence settled well into their new school. A number of expat families (some of who also lived in the gated community) chose for their children to attend the same school. Although some adjustment to a new school and environment was to be expected, the children were progressing well at the school before they left for the Australian holiday. After returning to Australia, and within the context of living back in Australia for seven months, I note that the children X and Y told the Family Consultant they were not happy at school. This different perception now does not mean they were not trying to integrate at the time they were living in Columbia.

I am satisfied that the Applicant has established that the three children were habitually resident in Colombia prior to their removal, for a holiday with the father’s consent, on 17 December 2018. For completeness I find that the children were settled and had integrated into life in Columbia at the time they left Colombia and, at the time, had no basis to expect that they would not return to Colombia and their father after the holiday, which holiday was agreed to conclude on 15 January 2019.
The mother claims she was unhappy and had not “settled” in Colombia and, therefore, Z had not become habitually resident in Columbia. I accept that it is unrealistic to speak of Z having integrated into life in Columbia. Z was being breastfed (not being weaned until February 2019 when the mother entered into L Hospital Mental Health Unit), and her habitual residency is largely aligned with her mother’s. Parental intention is significant when identifying habitual residence for a child who is so young and who necessarily lacks the capacity to integrate into a community or to experience life independently of her parents. I accept the submission of the Applicant SCA that the fact that the mother was “unhappy” does not equate with her having failed to integrate into life in Columbia. The mother was doing the best she could to support the common family purpose of residing in Colombia.
In the alternative, the mother contends that if Colombia became the children’s habitual place of residence, the children lost that habitual residence sometime after returning to Australia and at least from 8 March 2019, when the mother asserts the marital relationship ended as the father indicated to her that he would not return to Australia as she had asked him to do. The foundation for such contention require a consideration of the arguments about “wrongful retention” (which I deal with next), however I do not accept that the facts in this case demonstrate “parallels with the facts in LK” (wife’s submissions at paragraph 18). In LK the mother and children left Israel with the father’s knowledge that she would return if she and the husband were reconciled. In the current case, at the time the mother left Columbia with the children, the parents were still a committed couple co-parenting their children.
The mother’s contention concerning habitual residence of the children as at 8 March 2019 is, with respect, irrelevant. Regulation 16(1A)(b), by which a removal or retention is adjudged to be wrongful directs itself to the habitual residence of the child immediately before the removal or retention. In this case, the retention occurred on a repudiatory basis between 25 December 2018 and 1 January 2019 and was perfected when the mother failed to return the children to Columbia on 15 January 2019. I find that the mother wrongfully retained the children in Australia on 15 January 2019.
If I am wrong as to the date of the wrongful retention being 15 January 2019, and it is the later date of 8 March 2019 averred to be by the mother, I do not accept that the children acquired habitual residence in Australia by 8 March 2019 or by the time the father requested that a return application under the 1980 Convention be initiated. The living arrangements for the children in Australia since December 2018 have been far from settled, living initially with the paternal grandmother in M Town (17 December 2018 to 26 January 2019); then in rented accommodation in S Town (26 January 2019 to 20 February 2019) before the children returned to the care of the paternal grandmother in M Town when the mother was admitted to the L Hospital. In late March 2019/early April 2019, after the mother was voluntarily discharged from L Hospital, she collected the children from the paternal grandmother and took them to the home of the maternal grandparents who live in N Town, Central Queensland. The mother then returned to L Hospital, finally discharged on 10 May 2019 before commencing treatment as an in-patient at the O Hospital in P Town from 20 May 2019 to 6 June 2019. A combination of these movements, shaped by the mother’s mental health treatment, demonstrates the inability of the mother to facilitate re-integration of the children into life Australia unilaterally. The peripatetic lifestyle of the mother and children in Australia is to be contrasted with the settled arrangements for the children’s schooling and residence, and holiday house in Columbia.

Conclusion as to wrongful retention

I am comfortably satisfied that the children had not established a habitual residence or a settled residence in Australia prior to either 15 January 2019 (when the children were to return to Columbia) or even by 8 March 2019, (the date adopted by the mother in her submissions).
Prior to the children’s departure from Colombia I am satisfied the father was exercising the conceded rights of custody (jointly with the mother), in Colombia. This includes the right to support the mother taking the children for a holiday to Australia. The father’s rights were not vitiated when the children left Columbia because he gave his consent for the holiday in Australia. The rights were breached, however, when the mother failed to return the children as the parents had agreed (and the father reasonably expected).

Consent or acquiescence

Despite their “distinct” difference, I chose to deal with the assertion by the mother (upon whom the onus lies), that the father either consented or acquiesced to the children being removed or retained in Australia, together because of some overlapping of the evidence and required findings on that evidence. If I find that the father did either, I have a discretion to refuse to return the children to Columbia.
The father submits that there was an agreement with the mother before she left on 17 December 2018, that the children were to accompany their mother to Australia for the Christmas holidays and were due to return on 15 January 2019. As indicated above, I accept his evidence on this point and elaborate below as to why I do so.
The mother raises a number of contextual issues, analysed below, which go to what she claims was the consent or acquiescence of the father to the children remaining in Australia. What is clear however, as the mother conceded in cross-examination, is that she never expressed to the father before she left Colombia that she was not coming back. Furthermore she said the father expected, when she left, that she would be returning to Colombia with the children which the father deposes was his belief when the mother left Colombia.
Within this clear understanding on the evidence, the Court is asked to consider a range of text messages and assertions which are said to either cause the understanding at 17 December 2018 to be “uncertain” or to amount to the father consenting or acquiescing – issues which arise from the facts of this case, in consideration of the discretionary grounds for refusing to make a return order (Regulation 16(3)(a)(ii)).
The findings I make are:
a)the mother (at paragraph 22 of her submissions) contends that it was the mother’s “desire to return with all three children to Australia” but that she left the “decision largely to the father and followed his lead”. My impression from all the evidence is that it was more likely than not, that when the mother left with the children on 17 December 2018, she had decided she would not be returning to Colombia. However, she gave no hint to the father this was her intention because she feared, I find reasonably, that if the mother had communicated this clearly to the father he would have taken steps to prevent the children leaving Columbia;
b)the discussions about schooling at Q School and the mother receiving treatment, prior to her leaving, should be construed within a context that the mother had an initial plan that she had not shared with the father. In my view, the actions of the father before the mother and children left Colombia do not constitute “consent”. I accept that authority demonstrates that “consent must be real. It must be positive and it must be real” (see Wenceslas (supra) at [262] adopting the comments of Hale J in Re: K (Abduction: Consent) (1997) 2 FLR 212) that there may be circumstances in which consent can be inferred by conduct.
c)the mother contends, to support her case (in the absence of any clear consent by the father) that:
i)an incomplete copy of text communications passing between the father and the mother between 12 September 2018 and 8 June 2019, save for a critical period between January 2019 and March 2019, which the mother tried to recover from Telstra but despite efforts has been unable to do so, infer consent;
ii)the text messages cover numerous topics including exchanges (I infer whilst the father was away working and the mother was primarily caring for the children in Colombia) that exhibit come tensions in the relationship. It is neither necessary nor possible to analyse so many exchanges to find a consistent theme. At times the exchanges appear disjointed and have images “omitted”. There are gaps, for example:
·Without any context, at 00.52.06 on 28 November 2018 the mother writes:
“Why are you threatening to send me back to Australia without the kids when I’ve done nothing wrong. You had a go at me for having the kitchen and lounge room tidy already. I would be happy to stay here with you for Christmas in City V since we are tight on money at the moment. The kids and I can go back in the school summer break next year.”
There is no response other than at 00.58.41 from the father of:
“Fine, take all the kids. You are driving me nuts.”
I construe this exchange as reflective of a dispute about the costs of the family travelling to Australia for holidays – not a suggestion the father agreed to the children returning to Australia permanently.
·The mother suggested she would enquire about “working as [a professional] after the Christmas break in the […] here” (sent at 01.21.48 on 28 November 2018.
·Without context, on 8 December 2018 the mother sends a text to the father:
“1^st Terms at Q School 2019 starts back the 29 January”
Whilst there are other texts by the mother about school in Australia for the first term of 2019 (including a suggestion that the paternal grandmother enrol them), there are no responses from the father that could amount, in my view, to a consent that the children remain in Australia permanently and go to school at Q School.
iii)the purchase by the father, six days before departure of one way tickets to Australia and three days after the mother says discussions about Q School had taken place is relevant. However, the mother acknowledged the father told her he did not have the funds available to purchase return tickets. The father gave similar evidence and said after he was paid on or about 24 December 2019, he intended to purchase the tickets for the return leg. I accept his evidence. As events transpired, between 25 December 2018 and 1 January 2019, the mother said she made the firm decision she would not return to Colombia with the children and communicated her decision to the father.
d)whilst I accept the father was actually aware that the mother was desirous of living in Australia and that she had some personal concerns about medical support in Columbia, the father’s actions in encouraging the mother to seek treatment whilst in Australia was consistent with the father seeking to support the mother getting treatment, and was not an expression that his children could live permanently in Australia whilst he had an indefinite contract for employment in Colombia;
e)the father did provide financial support to the mother but to do otherwise would have shown an almost callous disregard for the best interests of his children who were, at times, in the care of the mother or paternal grandmother, when the mother was hospitalised. This was a very difficult and fluid position, however I am satisfied the father’s actions in providing some financial support should not be construed as acquiescing to her continued retention of the children in Australia permanently;
f)both the mother and the Applicant SCA could have called the paternal grandmother to give evidence – either voluntarily (by Affidavit) or, if necessary, by subpoena . I am satisfied that, at least prior to the mother returning to Australia on 17 December 2018, and for a period thereafter the paternal grandmother had a good relationship with the mother and provided her with support. I am satisfied at one stage, it was contemplated that the paternal grandmother would actually travel to Colombia for the Christmas school holidays in 2018, but then the parents decided to support the children accompanying the mother to Australia for the holidays;
g)the mother claims a number of heartfelt discussions with the paternal grandmother after arrival. The father says he kept his mother “in the loop” of developing events. Both counsel allude to the absence of evidence by the paternal grandmother and the possible application of the principles in Jones & Dunkel (1959) 101 CLR 298 (see, for example, the mother’s submissions at paragraph 39). However. the most critical assertion involving the paternal grandmother is the mother’s claim that she saw a text to the paternal grandmother from the father after she returned to Australia in which she alleges the father clearly stated that the mother could remain in Australia with the children. The father denies ever sending such a text message. Of all the facts asserted concerning the paternal grandmother, and in circumstances where the mother heavily relied upon the alleged text message, the failure of the mother (who is of course currently in Australia) to make any apparent attempt to adduce evidence from the paternal grandmother, could allow an inference to be drawn that the paternal grandmother could not give evidence that supports her case. However where the father has no need to prove a negative, the better approach is to find, as I do, that the mother has failed to discharge the evidentiary onus establishing any such text message was sent to the paternal grandmother by the father;
h)not surprisingly, after the mother communicated to the father her decision not to return, a number of discussions took place between the parents. The mother pleaded for the father to return as well to Australia, but he indicated he would not do so. The father, aware of Z’s young age, suggested the two older children return. The mother, she says being sarcastic and not genuine, indicated by text message on 21 February 2019, an intention to return the older children to the father. When the father made it clear that he was not returning to Australia at this time, the mother regarded the relationship as finished. She said this was around 8 March 2019;
i)the father is criticised for not commencing Hague Applications more quickly. The father signed the request to the Columbian Central Authority on 26 March 2019. It was both sensible and proper that the parents explore the prospects of reaching some agreed position before the father, as he became aware from discussions with his brother of his right to do so, launched applications through the Central Authority in Colombia; and
j)at paragraph 38 of the mother’s submissions the mother contends that “any theory that the mother brought the children to Australia with an intention of returning to Colombia with them, but later decided not to return because of a developing interest in Mr R doesn’t survive an examination of the timeline”. In my view, Mr R had little to do with the mother’s decision to remain in Australia. That decision, as I have set out earlier, was formed (but not communicated) before the mother left Colombia but certainly was communicated between 25 December 2018 and 1 January 2019, before Mr R met the mother for the first time in Australia. I am not satisfied that any fleeting relationship between the mother and Mr R (who lived in the S Town area) has continued.
I am not satisfied that the father consented to the children remaining in Australia permanently nor did he acquiesce in their retention in Australia.

Grave risk

The mother who opposes the return of the children, bears the onus of establishing, so as to enliven the Court’s discretion under Regulation 16(3)(b) that:
“There is a grave risk that the return of the children under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.
It bears repeating that in this case there are three children at quite different developmental stages – now aged ten years, seven years and two years. The youngest child Z was twelve months of age when the mother and her siblings joined the father in Colombia and then only spent less than five months in Colombia. She had a limited opportunity to develop her bond with the father before she left in December 2018, and clearly no opportunity since then. As a result, the assessment of risk has a different potential consequence for Z than it may have for the older, school-age children.
The High Court in DP v Commonwealth Central Authority: JLM v Director General, Department of Community Services (2001) 206 CLR 401 (“DP & JLM”) considered the operation of this exception and the statements of the plurality (Gaudron, Gummow and Hayne JJ) at [33] to [45] provided guidance. Numerous trial Judges and, on occasion, the Full Court of the Family Court has had cause to apply the principles enunciated in DP & JLM to various fact scenarios that “The exception is to be given the meaning its words require” (at [44]) and “that requires some prediction, based on the evidence, of what may happen if the child is returned” (at [41]).
In Wolford & Attorney Generals Department (2014) FamCAFC 197 at [57] and observing that the primary Judge had relied on Re E (Children) (Abduction: Custody Appeal) (2011) UKSC 27 at [33], the Full Court said:
“… the primary Judge correctly proceeded on the basis that the predicted risk ‘…must have reached such a level of seriousness as to be characterised as 'grave'’, and, from the same passage that although the word ‘grave’ characterises the risk rather than harm, ‘there is in ordinary language a link between the two.’”
In this case, the mother says if the children are ordered to return she will not herself return to Colombia because:
a)she has a fear of going back there; and
b)she believes she will not be able to receive the necessary mental health support for her condition.
The mother, in her Affidavit sworn 15 August 2019, at paragraphs 81 to 91, explained her concerns about returning to Colombia and said, at paragraph 92 that:
“92. I am fearful about returning to Colombia and struggle with that idea. However, I also cannot consider allowing my children to return to Colombia without me.”
However, when cross-examined on 13 September 2019, the mother’s equivocation has become more robust when she stated that if “the Court orders the children to return to Colombia, I will not go back”.
At paragraph 43 of the submissions of the Applicant SCA, it is contended that:
“43. The mother invites the Court to accept that she will not travel to Colombia if the children return. In relation to that:
a) Given the issues of credit in relation to the mother’s evidence generally, the Court might have some doubt about the mother’s evidence on the issue; and
b) In any event, the Court would accept that if the children return the father is ready, willing and able to look after them.”
The difficulty with the above submission is that I would not be relying solely on the mother’s evidence and, accordingly, even negative assessments of her credibility will be far from determinative. The evidence of the mother’s treating psychiatrist (set out below) is more persuasive about her intent and the consequences for her if she was to return.

The mother submits at paragraph 78, based on the Court accepting that the mother will not return even if the children are ordered to return, that:
“The evidence suggests the following prediction. The children will return to Colombia without their mother. The father will take them to live in the compound where they previously lived. The compound is within a zone which DFAT had classified in the ‘do not travel’ category. The father will be working fulltime and will employ/re-employ a tutor for the children who may assist them with their Spanish and with logistics of drop-offs and collections. The father, who had never been the primary carer of the children, would have limited ability to emotionally support the children. The children would struggle to cope emotionally, and it is submitted there is a grave risk they would suffer psychological harm.”
Courts, including our own, have been disinclined to allow the taking parent to defeat a return application by refusing to return with the child. As Butler Sloss LJ observed in C v C (minor: abduction: rights of custody) [1989] WLR 654 that:
“The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him. The convention does not require the court in this country to consider the welfare of the child as paramount, but only to be satisfied as to the grave risk of harm. 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 on it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied on 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.
There are examples however, where separation from a primary carer is viewed differently, when the primary carer says, and is found, to be unable to return with the children by reason is his/her incapacity.
In Director-General Department of Families & RSP (unreported, Family Court of Australia – delivered 14 January 2003), Warnick J was confronted with a factual finding that, although he did not accept that the mother could not return to United States of America, it was necessary to consider “the risk of the mother committing suicide if the child is returned to the USA”, when considering Regulation 16(3)(b).
In reaching his conclusion that on the evidence in that case the exception prescribed by Regulation 16(3)(b) was established, his Honour said:
“78. On the evidence, I accept that there is a grave risk that if S is returned to the USA the mother will suicide.
79. I accept the evidence (particularly that of [Ms B]) of the harm for [S] which might follow a suicide by the mother. I find that there is grave risk of psychological harm.
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.
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.”
His Honour relied on a “clear and unchallenged” medical opinion provided by the mother’s psychiatrist and further referred to the discussion by Gaudron, Gummow and Hayne JJ in DP & JLM, at page 88,390 where their Honours said:
“It is as well to say, however, that they are grounds which appear to ignore the fundamental fact found by the primary judge (and not thereafter disputed) that the mother is ill. To say that she is the originator of the source of the risk of harm appears to take no account of the fact that the mother is not in command of her situation and it betrays a complete lack of any understanding of the major depressive illness from which she suffers.”
These comments were made when considering grounds of appeal that the primary Judge had given undue weight to the threat made by the mother that she would commit suicide and the second was that the Judge gave no or insufficient weight to the fact that the mother was the originator of the source of the grave risk of psychological harm. Here, there is no articulated risk of suicide. The mother’s mental health is compromised. She suffers from a major depressive illness with features of a chronic Post Traumatic Stress Disorder. She is currently doing well in Australia and her condition is in remission. The contentious issue is whether the mother’s refusal to accompany the children back to Columbia is based on an incapacity which she cannot control, to wit, her mental health, or is she constructing a grave risk, by refusing to accompany the children back to Columbia, if the children are ordered to return.
I note an Appeal against the decision of Warnick J was dismissed by the Full Court (Ellis, Finn and May JJ) who further held, at [44] that:
“We accept that there may well be cases where the imposition of conditions upon which the return is to occur will be a proper exercise of the discretion, notwithstanding that a case of grave risk might otherwise have been established.”
I return to a discussion about conditions to return later in these Reasons.
Based on the evidence, and considering the principles to be applied and cases advanced, I make the following findings generally in respect of the mother’s mental health:
a)The unchallenged evidence of the mother’s treating psychiatrist, Dr T, which I accept (see Exhibit 2), is in response to a number of specific questions raised by the mother’s solicitors as follows:
“(a)The health matters for which you are treating Ms Comar;
I have treated Ms Comar for a major depressive illness and she fulfils DSM-V criteria for the same. She also has some features of a chronic Post Traumatic Stress Disorder.
(b) Ms Comar’s current condition;
When last reviewed on 18 July 2019 she has made a good recovery from her major depression, which I consider in remission. This is not to say that she is not reactively depressed and anxious about the outcome of the custody battle for the sole care of her children.
(c) Ms Comar’s prognosis;
I would see her prognosis as essentially good. Major depressive illness if left untreated run a relapsing and remitting course. She will continue under my care and her depression will be monitored and treated. She was transferred to my care in P Town where she has been treated by finishing a course of TMS (Trans Cranial Stimulation), which had been started in L Hospital. She was admitted on 20 May 2019 and discharged on 4 June 2019.
If she moves out of the area I would transfer my records to her new Psychiatrist. I do feel she needs careful monitoring of her depression.
(d) The likely effect on Ms Comar’s capacity to provide the children, two of whom are resistant to returning to Colombia, with the necessary positive support and care, were she to return to Colombia if the children were required by the Court to return;
I feel if she returned to Colombia this would have devastating effect on her. She is a caring and capable mother, but she would be removed from support systems in Australia (e.g. parents and friends) and she reports abuse in Country G when she was dependant on the father of the children.
(e) Would Ms Comar require any psychiatric or psychological support in Colombia to allow her to provide the necessary parenting support to her three children and if so, what treatment or support would be required?
It is very difficult to comment on mental health services in Colombia. Her husband is a mining engineer and logically may be absent if he housed them in the capital or large cities or towns. He has been shown to not consistently care for her or the children based on her history.
I think Australia, with Specialist mental health services and her parents support, would logically be the preferred option.
In my observation of her interacting with her daughter Z in my interviews with her on 18 June 2019, she impresses as a considerate and caring mother with clearly the children’s welfare as her paramount concern.”
b)Although Dr T, in a further Report dated the 19 August 2019, offered a “logical” opinion on how the two older children will struggle “emotionally if required to go to Colombia”, he had not interviewed the children and further, the additional Report seemed to be founded on the mother returning to Colombia. I can give that additional report little weight;
c)I accept that the mother’s mental health challenges have been of a long standing nature with recent hospitalisations both before she travelled to Colombia and since returning to Australia. I do not accept treatment is unavailable in Colombia or that the language difficulties are insurmountable. The mother did not prioritise the seeking of treatment in Colombia when there and only attended one appointment on 24 November 2018 – less than one month prior to travelling to Australia; and
d)Nonetheless, it is clear that the mother’s mental health functioning can relapse and that she feels, as does, Dr T, that being isolated from her support in Australia is likely to have a “devastating effect on her”.
Although the mother did exaggerate about some aspects of the lifestyle and surroundings in Colombia as she admitted, and that causes some concerns about her credibility, so far as her mental health is concerned I assess her as vulnerable to relapse if she returns to Columbia. She only left intensive treatment as an inpatient in Australia on 4 June 2019. Her subjective views of the risks in Colombia to her, and her children, are I assess on the evidence genuinely held by her.
Objectively, I do not assess that the children are at a grave risk, if returned to Colombia, of being exposed to physical harm. The risks are no different than those assessed by the parents when the children arrived in July 2018 and the gated community where they were residing is secure. Although the car used had laminated windows and some security authorities and Police carry guns, the mother’s claim that it was unsafe to get out of the car when driving from home to the beachside holiday property they are renovating, was not established. I preferred the father’s evidence in that regard – including the ability to take comfort stops on the way which required leaving the car to do so. The school the children would return to did not create any risks, grave or otherwise, outside of normal educational institutions with occasionally bullying being experienced.
The mother contends that Z will also face a grave risk of psychological harm if she was ordered to be returned alone (because the Court determined X and Y would not return based on their objections). The Applicant SCA indicated that, if X and Y were not ordered to return, the SCA would not seek the return of Z alone.
I accept that the statutory test to be applied is not a “best interests consideration” as might be undertaken when assessing two separate competing residence proposals. There is no evidence offered, if the children return, how the Colombian Court system might process competing applications for residence or a formal relocation application by the mother to return to Australia. The mother gives no evidence about her intentions, if formed in that respect, essentially I infer because her case is based on her not returning to Columbia. It is to be remembered that the parents’ marital relationship is over and so even if the mother did, contrary to her current expressed intentions, return to Colombia with the children as a result of the Courts orders, she would need to find suitable accommodation and a way to pay for it. No evidence for how this could be achieved for this now separated couple was offered to the Court, with the father being the sole current source of income.
However, I have reached a conclusion that if the children are returned to Colombia, there is a grave risk they would be exposed to psychological harm because:
a)the father works full-time and it seems from the text messages, at times away from the home. He would, I infer, be able to find support for the children in the home and before and after school if he were not available. However, such support has not been identified by the father as being provided by anyone well known to X, Y or Z;
b)if the father was not working and more available, I do not share the mother’s fears that the father would not cope with the care of the three children although it is likely he has a different parenting style;
c)the father does not assert, if the children return to Columbia and the mother does not, that he will terminate his employment and choose to remain as their full-time carer in Columbia. Even if that were his intention, there is no evidence of his ability to continue to remain in Columbia and not work for the company as he does now;
d)for the children, but for Z in particular, adjustment to the, at best, primary care of the father or, at worst, care by a stranger until the father returns from work (even if childcare for Z commences), does pose in my view grave risks that children will be exposed to psychological harm and that could have long-term consequences for them. In this regard, the opinions of the Report writer, Ms U are also relevant and apt.
e)I am aware that the mother cannot succeed by being the “originator” of the grave risk she now seeks to rely upon. Clearly, if the mother’s mental health challenges were of recent origin or in particular found to be “invented” to assist in this case, that would be a telling finding likely not to support the exercise of the discretion not to require the three children to return to their habitual residence of Colombia. However the long history of the mother’s mental health challenges, well known to the father and at times empathetically supported, satisfy me that the mother’s alleged vulnerabilities are genuine and that, despite her best endeavours, the move by her to Colombia was at the time a “bridge too far”;
f)I find that, if the mother did return to live in Columbia, there would be a likely adverse effect on her parenting where she has separated from the father and would not have the familiar support of her family and Australian mental health practitioners. The only evidence of an identified and qualified therapist/psychiatrist is in the town of K Town which is some travel distance away from the gated community the family were living in;
g)although the father, I acknowledge, has provided some financial support for the mother and the children in Australia whilst these proceedings have been on foot, the minute of orders contended for by the Applicant SCA do not seek any orders as to what should occur when the children, if accompanied by the mother, are ordered to return. The father could have set out, in his self-prepared Affidavit, arrangements that could be made (and funded) for the children and the mother to reside in Columbia. No undertakings as to such matters are offered by the father similar, for example, to those contemplated by Butler Sloss LJ observed in C v C (supra) at [470], for example:
i)allowing the children to remain in the primary care of the mother pending any determination of a Columbian Court;
ii)providing the mother with access to safe transport;
iii)provide or facilitate the mother and children having secure furnished accommodation within convenient distance of the school they were attending;
iv)provide financial support for reasonable living expenses, education expenses and medical expenses; and
v)ensure the current level of private health insurance is maintained.
There is no evidence that these types of “conditions”, if imposed and sustainable, would in any event alleviate the grave risk I have found would exist.
h)considering that the father asserted his income in Columbia was so stretched (no doubt exacerbated by the ongoing costs of renovating the holiday homes) that he was not able to afford return airline tickets until his next pay was received, there is an uncertainty as to the father’s capacity to meet the expenses of two separate households in Columbia. In my assessment, such uncertainties are only likely to exacerbate the mother’s underlying medical vulnerability should she return to Columbia with the children;
i)the father’s evidence gives no indication that he believes the marriage as an intact couple in Columbia, after the events of the last 12 months, is achievable. The mother’s evidence is that the marriage is at an end; and
j)Ms U, at paragraph 59 of her report, opined that:
“Ms Comar is concerned X and Y would not cope emotionally with returning to Columbia. She believes the children would be impacted significantly. In the writer’s opinion even with appropriate support the children would experience adjustment issues and their ability to emotionally cope is a high risk factor. The mitigation of this risk would be dependent on the quality of their relationships and supports in Columbia to assist X and Y process their emotions and experiences.”
I accept her opinion.
On the basis of these findings I am satisfied that the mother has established the exception to the return of all three children to Columbia prescribed by Regulation 16(3)(b). That is, I am satisfied:
a)that the mother suffers from incapacity due to her mental health and there are legitimate and compelling reasons relating to her mental health for her to refuse to return to Columbia with the children. In short, she is not constructing the intolerable situation upon which she relies;
b)that if the children are returned to Columbia without the mother, the father will do all in his power to care for them adequately but:
i)the children will be separated from the parent who has, as between herself and the father, been their primary carer; and
ii)there is no detail or indication of by whom and how the children’s day-to-day needs will be met, for example, by what constellation of hired help. There is no suggestion that the father will cease to be employed to become a stay at home parent
and that there a grave risk that children will be exposed to psychological harm, and their return would place the children in an intolerable situation.

Where the child objects to being returned

During the case management of these proceedings, I ordered the preparation of a Regulation 26 report by a Family Consultant to seek to independently capture any objection the children X and Y had in respect of returning to Colombia.
On 16 July 2019, Social Worker Ms U interviewed the children and her Report dated 16 July 2019 was tendered and marked as Exhibit 4. Ms U was not the subject of cross-examination. The mother brought the children to the interviews in Brisbane and provided some context to the report writer (paragraphs 2 to 9) after which the following opinions and views were recorded:

X

a)She presented as a mature and articulate child who became emotional at times when discussing her views about living in Colombia (paragraph 10). She stated negatives about attending school in Colombia (“I didn’t like anything about it. I hated it.”) and described her experiences in Australia positively, saying she felt “way, way, way safer” (paragraphs 13 and 14) describing “seeing the guards with guns”;
b)She confessed she has not had any recent contact with the father and said she did not “trust” him anymore as he was trying to “get me to go back to a place I really hate” (paragraph 16); and
c)X when asked where she considered home replied “Australia is my home. This is where I was born, where I feel safe and happy” and expressed, to the point of tears, how unhappy she would be to return to Colombia. It is clear that X expressed views based on an understanding that her mother would not return with her to Colombia, saying “I don’t want to leave her. I would be scared I would never see her again” (paragraph 20).

Y

a)Considering Y was 5 years, 9 months old at the time of interview, his reflection on school in Colombia as “it wasn’t good. They don’t have big playgrounds and the teachers are mean and smack us”, demonstrated his young focus (paragraph 35);
b)At paragraph 40, Y said he would change his father wanting him and his sisters returning to live in Colombia saying, “I would change Dad wanting to only come to Australia for a holiday and that he doesn’t want us to live in Colombia anymore.”; and
c)When asked what would happen if he was to return to Colombia to live with his father, Y said “I would want mum to come. I would be sad if I went without mum…” (paragraph 43).

Ms U opined that both X and Y “are demonstrating a clear and strong objection to returning to Colombia” (paragraph 51), and that the children’s objection “reflects a strong sense of feeling, beyond a mere expression of a preference” (paragraph 57).
I accept however the report writers view that the children’s objection “is additionally associated with anticipated losses if they were to return to Colombia” (paragraph 58) and the loss for both children would be significantly greater if the mother did not return to Colombia with the children.
In my assessment it is clear the children, before the interviews took place, were aware the mother had indicated (I infer in some manner to them) that she would not return with them to Colombia. This is likely to have significantly influenced their views as expressed, and whilst they expressed other concerns about Colombia (and in particular X appeared with “significant resentment towards the father, specifically blaming him for the current situation”), I find that the mother’s decision not to return was a major influence on the views expressed by the children. I do not find specifically that the mother “coached” the children, but her distress about having to return to Colombia would, I find, have been obvious to, and absorbed by, the children.
In these circumstances the caution raised by the report writer at paragraph 70 that:
“Given the children’s young ages, the writer is also of the opinion both children are too young to fully comprehend the broader implications and complex situation and that partial weighting be placed on their views and wishes.”
is noted.
The age of Y and his lack of maturity and understanding of this complex situation would persuade me that it would not be appropriate “to take account of his views”. X was assessed as a “mature and articulate” 9 year old girl whose objection showed a strength of feeling beyond the mere expression of a preference. Of course, X’s objection is strongly influenced by her mother’s expressed (to her) intention not to return. I am satisfied that to a lesser degree, her objection rests on her somewhat immature attribution of total blame towards the father. The reason for the mother’s refusal to return is her vulnerable mental health status, a condition of which I am satisfied that X would have some comprehension given the mother’s admission to hospital for treatment. In these circumstances, I would not discount the weight to be attributed to X’s objection to returning to Columbia by virtue of the objection being referrable in no small part to the mother’s refusal to accompany them. The mother’s decision not to return is as much a reality for X as it is for anyone else.
I do regard the objections of the two oldest children as deserving of weight but I do not regard them as qualifying as objections to return in the sense of the Regulations. The mother’s case in this respect fails.

Residual discretion

Having found that the return of the children to Columbia would expose them to a grave risk of psychological harm, by virtue of being separated from the mother, and otherwise place them in an intolerable situation, I have a discretion to refuse to return the children. This discretion requires the Court to balance the nature and severity of the risk identified in the case against the purpose and policy of the 1980 Convention as reflected in the Regulations. The best interests of the children can, and does, inform the exercise of my discretion.
I have sought to demonstrate, by these Reasons, that I have carefully analysed the evidence before concluding the exception under Regulation 16(3)(b) has been established. I was directed to the dissenting reasons of Kirby J in DP & JLM at [139] that in practice, it would be less likely that the residual discretion to order a return would be exercised where the grave risk exception (Regulation 16(3)(b)) had been established than to refuse an order where a child of sufficient maturity objected to being returned.
At paragraphs 102 to 108 of the mother’s written submissions, it is contended that:
“102. The Court should not exercise the residual discretion (r. 16(5)) to order the return of the children for the following reasons.
103. The children will be without their mother, their primary caregiver since birth.
104. Proceedings for parenting orders are already on-foot in Australia, having been commenced by the paternal grandmother (BRC3458/2019) on 26 March 2019. The mother has engaged in those proceedings having filed a Response and a supporting affidavit. There are no proceedings on-foot before the Courts in Columbia. There is no evidence of what form proceedings in Columbia would take, nor how long they would take, nor their cost. It seems likely that the mother’s mental health will be an issue, as part of a best interests enquiry and the majority of witnesses on this issue reside in Australia. The paternal grandmother who as mentioned, has commenced proceedings under Part VIII, also resides in Australia. It is likely that a best interests enquiry can be undertaken more thoroughly by Australian Courts where the majority of the likely witnesses reside. Australia would be the more appropriate forum from this perspective.
105. The advice on travel to Columbia issued by DFAT sets out a number of matters regarding safety concerns for those travelling to Columbia, let alone those who would be living there. The father resides in an area that DFAT recommends do not travel to.
106. X and Y oppose returning.
107. The mother’s mental health has improved under treatment here in Australia and she has the support of her parents.
108. Against these factors, the Court will need to weigh the underlying purpose, intent and objects of the Convention. It is submitted that in this case, this factor doesn’t outweigh the other factors. The family’s connection with Columbia dates from March 2018 in the father’s care, and July 2018 in the case of the mother and the children. The harm that often is assumed to come from ‘uprooting’ children from a place with which they have a connection, and taking them somewhere else, is minimal if it exists at all, in this case. There are no reasons why it would be preferable for a best interests enquiry to occur in Columbia as opposed to Australia. The parties have deep links to Australia. The words of the Peter Allen song are apposite to this family ‘…no matter how far or how wide I roam I still call Australia home.’”
I accept that submission. I am not satisfied that there are safeguards in place which obviate the grave risk and the intolerable situation the children would face on return to Columbia. I will exercise my discretion to refuse return.

Conclusion

The Court will order that the Application filed 12 June 2019 be dismissed, effectively meaning the children, X, Y and Z are not required to return to Columbia.
It seems to me that Orders 1, 2, 3, 4 and 5 of the Orders made 26 June 2019 should be discharged, however as I received no submissions in respect of such discharge, or for any other consequential orders arising from the dismissal of the Application, I am prepared to adjourn the matter to allow discussions and/or submissions to be made.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 6 December 2019.

Associate:

Date: 6 December 2019