Department of Child Safety, Youth & Women & Comar

[2020] FamCA 505

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH & WOMEN & COMAR AND ANOR [2020] FamCA 505

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the State Central Authority has applied for a return order for three children removed from Colombia and retained in Australia by the mother – Where the matter has been remitted by the Full Court for rehearing following an appeal by the father – Where the father was granted leave to intervene in the proceedings – Whether the children were habitually resident in Colombia prior to their retention in Australia – Whether the mother has established an exception under reg 16(3) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) such that the Court should refuse to make a return order because to do so would expose the children to physical or psychological harm or place the children in an intolerable situation – Whether the mother has established that two of the children object to return – Where the Court finds that the children were habitually resident in Colombia immediately prior to their retention in Australia – Where the mother has failed to establish an exception – Where a return order is made.

Family Law (Children Abduction Convention) Regulations 1986 (Cth)

A.C. v P.C. (Abduction: Settlement) [2005] 2 HKC
De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640
De Lewinski v Director-General, NSW Department of Community Services (1997) FLC 92-737
Department of Child Safety, Youth and Women & Comar [2020] FamCA 463
DP v Commonwealth Central Authority (2001) 206 CLR 401
LK v Director General, Department of Community Services (2009) 237 CLR 582
MW v Director-General, Department of Community Services (2008) 39 Fam LR 1
Punter v Secretary for Justice [2007] 1 NZLR 40
Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478
Re C (A Minor) (Abduction) [1989] 2 All ER 465
Re W [2018] EWCA Civ 664

APPLICANT: Director General, Department of Child Safety, Youth & Women

RESPONDENT: Ms Comar

INTERVENOR: Mr Comar

FILE NUMBER: BRC 6714 of 2019

DATE DELIVERED: 23 June 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 10 – 11 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shoebridge

SOLICITOR FOR THE APPLICANT: McInnes Wilson Lawyers

COUNSEL FOR THE RESPONDENT: Dr Brasch QC

SOLICITOR FOR THE RESPONDENT: Frampton Legal

COUNSEL FOR THE INTERVENOR: Mr North SC

SOLICITOR FOR THE INTERVENOR: Barry Nilsson Lawyers

Order

1. All previous orders be discharged.

2. The children X born … 2009, Y born … 2012, and Z born … 2017 (“the children”) be returned to Columbia.

3. Pending the children returning to Columbia, MS COMAR (“the mother”) continue to be restrained and an injunction hereby issues restraining her from removing or attempting to remove the children from the Commonwealth of Australia.

4. Pending the children returning to Columbia, the mother be restrained and an injunction hereby issues restraining her from changing the children’s usual day to day residence from the premises where she and the children are currently residing at GG Street, N Town in the State of Queensland.

5. The Commissioner of the Australian Federal Police place the names of the mother and the children on the Family Law Watchlist at all international departure points in Australia.

6. To give effect to paragraph 2 herein:

   (a)       The father and the mother (with the assistance of the Director-General, Department of Child Safety, Youth and Women) shall forthwith do all acts and things necessary to obtain a new passport for the child X born … 2009. The father will be responsible for the renewal cost of the passport with the Australian Passport Office. Once it has issued, the new passport for X will be held by Ms AA of the Department of Child Safety, Youth and Women (together with the other children’s passports) until the release all passports to the father, in accordance with subparagraph (6)(e) herein, in order to travel to Columbia; 

   (b)       Upon the re-issue of X’s passport the father is to forthwith make any application necessary to secure appropriate visas for each of the children  sufficient to guarantee that they will have the right to enter Colombia;

   (c)       The father produce written evidence of visas for the children and permission for the father to fly between Colombia and Australia to both the mother and to the Department of Child Safety, Youth and Women prior to the children commencing travel to Colombia;

   (d)       The names of the children and the mother be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Child Safety, Youth and Women advising of the travel arrangements made for the children to return to Columbia from 12.00am on the date nominated for the said travel in the letter;

   (e)       Ms AA of the Department of Child Safety, Youth and Women or her nominee be at liberty to release all current passports relating to the children for the purpose of the children's return to Columbia and release the mother’s passport to her (or her nominee) upon request.

7. The father is to accompany the children on any flight between Australia and Colombia.

8. The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to this Order.

9. The applicant be at liberty to apply on short notice to seek any further orders necessary to allow the father or officers of the Department of Child Safety, Youth and Women to make such arrangements as are necessary to facilitate and ensure the return of the children in accordance with this Order and pursuant to the Central Authority’s obligation under Regulation 20 of the Family Law (Children Abduction Convention) Regulations 1986 (Cth).

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 Department of Child Safety, Youth and Women & Comar and Anor 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

Director General, Department of Child Safety, Youth & Women 

Applicant

And

Ms Comar

Respondent

And

Mr Comar

Intervenor

REASONS FOR JUDGMENT

1. These proceedings concern an application for a return order[1] pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Regulations provide the legislative framework pursuant to which Australia meets its obligations as a contracting State to the Convention on the Civil Aspects of International Child Abduction (“the Convention”).[2] 

   [1] As defined in regulation 2 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

   [2] [1987] ATS 2.

2. This is not a hearing on the merits of a ‘custody or access’ case (to use the terminology in the Convention), but a hearing to determine the appropriate response to Australia’s obligations under the Convention. The best interests of the child are not the paramount consideration.[3]

   [3] De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 at 658.

3. It is alleged in this case that the children, X (born … 2009), Y (born … 2012), and Z (born … 2017) were wrongfully retained in Australia on 15 January 2019 by Ms Comar (“the mother”) and should be returned to their habitual place of residence immediately prior to the wrongful retention i.e. Colombia.

4. This is the second hearing of this application. The first hearing resulted in a refusal to make a return order. A successful appeal by the father thereafter followed and the matter was remitted for rehearing.  This rehearing occurred in the midst of COVID-19 restrictions via the web based platform, Microsoft Teams.

5. For the reasons which follow the application for a return order will be granted.

The Convention

1. Before turning to the particular facts of this case it is useful to reflect upon the purpose of the Convention. It is to ensure the prompt return of children who have been wrongfully removed from or retained in a convention country and to enable any dispute relating to the parenting of the children to be determined by the children’s country of habitual residence immediately prior to the wrongful removal or retention.[4] “But the construction of the Regulations cannot proceed from a premise that they are designed to achieve return of children to the place of their habitual residence for the purpose of the courts of that jurisdiction conducting some hearing into what will be in that child's best interests.”[5]

   [4]  De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 at 648-649.

   [5]DP v Commonwealth Central Authority(2001) 206 CLR 401 at 417 (“DP”).

2. The Regulations are intended to be construed:

   (a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and

   (b)recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and

   (c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.[6]

   [6] Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16(1A).

3. If an application for a return order is made within one year[7] after the removal or retention of a child and the removal or retention was wrongful within the meaning of the regulations, the Court must, subject to certain exceptions, return the child to the convention country which was the child’s habitual residence immediately before the wrongful removal or retention (reg 16(1) of the Regulations). Even where one of the exceptions under reg 16(3) is established, the Court retains a residual discretion to nevertheless make a return order (reg 16(5)).

   [7] If the application is filed more than one year after the day on which the child was first removed to, or retained in Australia the return order will still be made if certain conditions are established.

4. The responsible Central Authority (defined in reg 2 of the Regulations) or Article 3 applicant (defined in reg 2) must satisfy the Court that the child’s removal to or retention in Australia was wrongful (reg 16(1)(c)). The removal or retention will be wrongful if the Court is satisfied of the following:

   a)The child was under 16 years of age; and

   b)The child habitually resided in a convention country immediately before their 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 their 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 children’s retention the person, institution or other body was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights had the children not been removed or retained.

5. The person opposing the return bears the onus of establishing one of the exceptions set out in reg 16(3) of the Regulations.[8]

   [8] Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16(3); DP (n 5) at 408, [9], 416–417, [39]–[41].

The summary nature of the hearing

1. Proceedings pursuant to the Hague Convention are intended to be summary in nature because the merits of the parenting case are not being determined but, rather whether or not Australia’s obligations under the Convention are engaged.

2. In view of the limited purpose of the enquiry it is not generally to be expected that witnesses will be cross-examined however, there will inevitably be cases where fulfilling the requirement of reg 15(2) of the Regulations for a “proper consideration of each matter” requires the granting of leave to cross-examine a witness. As the High Court of Australia observed in MW v Director-General, Department of Community Services:[9]

   [9] (2008) 39 Fam LR 1 at 13–14, [46]–[50].

   46.Cross-examination in interlocutory applications generally is not to be encouraged. But an application for a return order under reg 16 of the Regulations is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in In re M (Children) (Abduction: Rights of Custody). The oral evidence in that Convention application was heard over two days.

   47.Regulation 15(2) obliged the Family Court, "so far as practicable", to give to the application by the Authority "such priority" as would "ensure that [it was] dealt with as quickly as a proper consideration of each matter relating to the application allows". If within 42 days of its filing the application had not been determined, the Authority would have been empowered by reg 15(4) to seek from the Registrar a written statement of the reasons for the absence of a determination. Regulation 15 reflects the exhortation in Art 11 of the Convention that "judicial or administrative authorities" act "expeditiously" in these matters and the reference in Art 7 to "the prompt return of children".

   48.The judicial or administrative authorities which decide return applications in some Convention countries may not, under their legal systems, have the obligations to provide the measure of procedural fairness and to give reasons which generally apply in common law systems and which were observed here by the Family Court. Thus, in this country, the requirement of promptitude can be an onerous one.

   49.Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another. The references to "summary procedure" and to the dealing with applications on affidavit evidence and "in a summary manner" by the Full Court in In Marriage of Gazi are apt to mislead. This is particularly true of the statement in that case:

   "The primary purpose of the Convention, the relevant legislation and regulations is to provide a summary procedure for the resolution of the proceedings and, where appropriate, a speedy return to the country of their habitual residence of children who are wrongly removed or retained in another country in breach of rights of custody or access [sic] (see Convention, Arts 7 and 11, Family Law (Child Abduction Convention) Regulations, reg 19(1)). Accordingly, whilst there may be cases in which it is appropriate to allow cross-examination of deponents of affidavits, such cases would be rare. The majority of proceedings for the return of children, pursuant to the Convention, should be dealt with in a summary manner and cross-examination of deponents of affidavits would not be appropriate".

   50.The danger in reading such remarks too literally (and without regard to the circumstances of each particular case) is apparent in situations such as that considered in the United States by the Court of Appeals for the Third Circuit in In re Application of Adan. An application by the father for the return of his child to Argentina was resisted on the grounds that he had not established his custody rights under the law of Argentina and there was grave risk there of harm to the child. After considering the cursory treatment by the United States District Court of the application, the Court of Appeals said:

   "Although the Convention seeks to facilitate the prompt return of wrongfully removed children to their country of habitual residence, it does not condone deciding that a child is another country's problem and dumping her there, and nor do we."

   No criticism of that degree is directed to the conduct of the present case, but In re Application of Adan provides a caution against inadequate, albeit prompt, disposition of return applications.

   (footnotes omitted)

3. In the present case, the mother and father were both cross-examined during the first hearing in September 2019 and parts of the transcript of that cross-examination were tendered in the case before me. Additionally, leave was granted for cross-examination of the mother’s psychiatrist, the two older children’s counsellors, and the family consultant who prepared a report pursuant to reg 26 of the Regulations to assess:

   a)Whether the children object to being returned to Columbia;

   b)Whether any objection by the children to being returned to Colombia shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and the apparent context underlying any expressed wishes; and

   c)Whether the children have attained an age and degree of maturity at which it is appropriate to take account of the children’s views.

4. An application by the mother on the second day of the hearing to adjourn the proceedings in order to obtain an updated report from the family consultant in relation to the older two children’s objections to return was dismissed and I indicated I would provide reasons at a later time. My reasons for that decision are as follows:

   a)The lateness of the application and the absence of any explanation for the delay in seeking to update the report;

   b)The already significant delay in finalising the matter;

   c)The absence of evidence of how long any adjournment would need to be;

   d)The inevitable further delay if the adjournment was granted;

   e)Evidence relating to the children’s objections is contained in the evidence of the mother and their counsellors;

   f)The mother’s opportunity to obtain specific evidence on that issue from the children’s counsellors, who each provided contemporary reports and were cross-examined; and

   g)The ability of the mother to cross-examine the family consultant about her report.  

Background

1. In this case, the Director-General, Department of Child Safety, Youth and Women (Qld) (“the State Central Authority”) commenced proceedings by filing an application on 12 June 2019 and it is not in contention that the application was filed within one year of the alleged wrongful retention in Australia.

2. The application was initially heard over two days in September 2019 and on 6 December 2019 another Justice of this Court refused to make a return order. The State Central Authority elected not to appeal but Mr Comar (“the father”) was granted leave to appeal and was successful. On 24 April 2020, the matter was remitted for re-hearing. The father was subsequently granted leave to intervene in these proceedings.[10]

   [10]Department of Child Safety, Youth and Women & Comar [2020] FamCA 463.

3. The matter was first mentioned before me on 7 May 2020 with the intention of listing the matter for rehearing on 19 May 2020. A combination of factors raised by the parties resulted in the matter not being able to proceed on that date and, accordingly, it was listed for a three day hearing commencing 10 June 2020. The hearing finished on the second day and but for the unavailability of a witness the matter would have concluded in one day.  

1. The mother and father were both born in Australia and are Australian citizens. The children (apart from the youngest child) have lived the majority of their lives outside Australia.

2. The father has not returned to Australia since the children left Colombia with the mother on 17 December 2018. Unfortunately, the parents were unable to reach agreement about the circumstances of the father’s proposed visit to Australia for the purposes of spending time with the children in January 2020 and the children’s ongoing communication with the father has been problematic, with the mother asserting to Ms U, a family consultant, that after an unsuccessful attempt at mediation she was advised in April 2019 to cease the father’s communication with the children. It is unclear if the mother ever acted on that alleged advice but the communication that has occurred appears to have been unsatisfactory in that not all of the children regularly participate. The mother says the father communicates with the children most Fridays and at other times with X but that Y does not often engage in the Friday phone calls. It seems that both parents have at times been responsible for exposing the children to their ongoing conflict. 

3. The mother is 37 years of age and a full time mother, although she is a qualified healthcare professional. The father is 40 years of age and an engineering professional. As a consequence of the father’s employment, the parents and the children (particularly the older two) have lived in various parts of Australia and for the most part in other countries including Country E, Country G and Colombia. Each of the children were born in Australia.

4. Since March 2018, the father has been working as a manager for a company in Colombia. The mother and children joined the father in Colombia on 27 July 2018. Prior to their move to Colombia, the mother and Y returned to Australia from Country G in April 2017 in preparation for the child Z’s birth on … 2017. The child, X, remained in Country G with the father in order to finish her school term and then joined the mother in Australia.  The family had lived in Country G since 2012 and the father commuted between Australia and Country G from about July 2017 until sometime in early 2018.

5. The parents commenced their relationship in 2004 and married in 2010. They separated in March 2019 after the mother returned to Australia with the children on 17 December 2018 for what was intended to be a month’s holiday.

6. The mother and children currently live in rental accommodation in N Town, Queensland. The maternal grandparents live close by.

7. It is common ground that the mother has struggled over the years with depression and anxiety.

8. The mother insists that she will not return to Colombia even if a return order is made, nor will she travel there to participate in any parenting proceedings nor even to visit the children.

9. On 12 March 2020, the Ministry of Health and Social Protection, Colombia, “declared a health emergency due to Coronaviris COVID-19 until 30 May 2020 and adopted health measures in order to prevent and control the spread of the Coronavirus COVID-19 in the national territory and mitigate its effects”. All borders are currently closed. Children are not to attend school until possibly August 2020 and most establishments, e.g. recreational, commercial, entertainment etc, are closed.

10. The situation in Australia is similar although restrictions within Australia have significantly lifted.

11. The children are the holders of Colombian Migrant Resident Visas which may have expired as a result of the children being absent from Colombia for more than 6 months. However, as the father has not been notified to that effect, it is (according to advice he has received) “presumed that [the visas] are in force and their expiration terms are suspended.”

12. Permission for the father to fly from Colombia to Australia and return with the children will be subject to “permission being granted by the Colombian Foreign Ministry or Consulate since they are the entities in charge of giving viability to humanitarian flights”.

13. On 19 May 2020, the Colombian authorities extended the ban on international flights until 31 August 2020 subject to humanitarian exemptions. Article 1 of Resolution 1032 of 2020, “establishes the protocol for the return and entry of Colombian citizens and foreign permanent residents in Colombia, who are abroad and wish to return to the country.” The resolution covers the family of the former such as children “after evaluation by the consulate”.

14. According to information provided on the Australian Smartraveller website, Australian citizens who are ordinarily resident in Australia cannot leave Australia due to COVID-19 restrictions unless an exemption applies, e.g. travel for compassionate or humanitarian grounds may be permitted. It is expected that flights will be difficult to find. Australians returning to Australia will be required to undertake mandatory quarantine for 14 days.

15. The father’s request for exemption from Australia’s travel restrictions to depart Australia with the children (made on 7 May 2020) is unable to be progressed because he is required to be present in Australia at the time of submission.

16. Parenting proceedings were commenced in Australia by the paternal grandmother in 2019 naming both parents as respondents but are currently in abeyance pending the outcome of these proceedings.

17. Parenting proceedings cannot be commenced in Colombia until the children are present in that country.  

Issues

1. On 19 May 2020, when this matter was set down for hearing, and with the assistance of the parties, the following issues were identified as requiring determination:

   a)Whether the children habitually resided in Colombia immediately before their retention in Australia and in particular:

   i)The circumstances involved in the mother and children relocating to Colombia; and

   ii)Whether or not the children were settled in Colombia;

   b)Whether the children’s retention in Australia was in breach of the father’s rights of custody;

   c)Whether, pursuant to reg 16(3)(b) of the Regulations, there is a grave risk that the return of the children under the Convention would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation by reason of any of the following:

   i)Possible criminal sanctions against the mother if she returns to Colombia;

   ii)The impact on the mother’s mental health if, contrary to her stated intention not to return, she returns to Colombia;

   iii)Whether the father’s place of abode is safe or more akin to a war zone;

   iv)Whether the mother would be able to participate in any parenting proceedings in Colombia;

   v)The ability of the mother to obtain a fair hearing and/or a child focused, best interests inquiry in Colombia;

   vi)The impact of the COVID-19 pandemic.

   d)Whether, pursuant to reg 16(3)(c) of the Regulations, each of the following applies:

   i)The children X and Y object to being returned:

   ii)The said children’s objections shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and

   iii)The said children have attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views.

2. At the hearing before me, the mother made a number of concessions, namely:

   i)The father had rights of custody in Colombia and was exercising his rights of custody immediately prior to the removal to and retention in Australia;

   ii)The relevant date for assessment of the children’s habitual residence is immediately prior to their retention in Australia on 15 January 2019;

   iii)A grave risk of physical harm cannot be established;

   iv)Participation in parenting proceedings in Colombia is available to the mother (subject to COVID-19 special arrangements) if proceedings are commenced and if she chooses to be involved; and

   v)A fair hearing involving a child focussed and best interests inquiry is available in Colombia.

3. The mother reiterated that she would not return to Colombia, even temporarily, under any circumstances. 

4. I have included in my assessment an additional issue that developed during the hearing namely, the impact on the children if they return to Colombia without the mother and, as a sub-issue, whether the mother should be able to rely on an exception, the circumstances of which she has created.

5. I now turn to consider the remaining issues in dispute.

Did the children habitually reside in Colombia immediately before their retention in Australia on 15 January 2019?

1. The mother argues that the short period of residence in Colombia by the children between 27 July 2018 and 17 December 2018 “did not displace” what was “no doubt” their habitual residence in Australia where they had resided since July 2017. While conceding that “one can lose habitual residence in a day” in certain circumstances “[t]he acquisition of habitual residence usually involves time and a process of settling” and “the children were still in the process of settling into what was a very different environment to anything they had experienced before, but soon thereafter resumed life in the familiar environment of Australia”. An alternative argument raised by the mother that “if Colombia became the children’s habitual residence … the children lost that habitual residence sometime after returning to Australia” was abandoned.  

2. A determination of the habitual residence of the children immediately before their retention in Australia on 15 January 2019 involves what has been described as a “broad factual inquiry” that takes 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 the living and schooling arrangements, and cultural, social and economic integration. … settled purpose (and with young children the settled purpose of the parents) it is important but not necessarily decisive. It should not of itself override … the underlying reality of the connection between the child and a particular state.”[11]

   [11] Punter v Secretary for Justice [2007] 1 NZLR 40 (“Punter”) adopted by the High Court of Australia in LK v Director General, Department of Community Services (2009) 237 CLR 582 at 599, [44].

3. When considering the term ‘habitual residence’ in LK v Director General, Department of Community Services,[12] the High Court of Australia (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) said:

   [12] (2009) 237 CLR 582 at 592–596, 600.

   23. … 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.

   …

   25. … it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities". Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.

   …

   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.

   28. … 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.

   …

   34. … 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 … 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. And 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.

   …

   45. Moreover, the approach described in [Punter][13] 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" (emphasis added), 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.

   …

   (footnotes omitted)

   [13]Punter (n 11).

4. In the current case, prior to their move to Colombia the parents had been living apart, although their marriage remained intact. In April 2017, prior to the child Z’s birth on … 2017, the mother returned to Australia from Country G where the parents and their two children had been living for five years. The father remained living in Country G, initially with the child X until she completed school term, and thereafter on his own. The father travelled back and forth between Australia and Country G, usually spending a week in Australia with the family each four or five weeks.  

5. In October 2017, the father, mother and baby Z travelled to Colombia after the father had been offered a job there. The purpose of the trip was to inspect CC Compound, the gated community in DD Town where they would be living in Colombia if the father accepted the position. The job offer was attractive because it offered the opportunity for the family to be together, although it meant a drop in income.

6. The father accepted the job offer in February 2018 after the mother became suspicious about a message she had seen on the father’s phone from a woman in Country G. The father says the mother instructed him to take the position. The mother disputes this. In any event, the mother conceded during cross-examination that she agreed to move to Colombia with the intention of living there. The father signed a contract in February 2018 for an indefinite term and moved to Colombia on 30 March 2018 with the intention of preparing for the arrival of the mother and children.

7. Renovations were undertaken to the home the family were to occupy in CC Compound and a beach house was purchased which also required renovation. The father contends that the beach house was a condition of the mother’s agreement to move to Colombia. The mother disputes all knowledge of the beach house until she arrived in Colombia. The family’s furniture and pets were transported from Australia to Colombia. The mother initially denied all knowledge of the removal of the family’s furniture but ultimately conceded that she did know. The mother and three children arrived in Colombia on 27 July 2018. In a Facebook post by the mother on 29 July 2018 the mother states “Leaving for Our (sic) new home early tomorrow from Bogota”.

8. CC Compound is described as a town compromising 700 families most of whom work for the same company as the father. It contains an international school, H school, which the children, X and Y, attended during the period August to December 2018. CC Compound is fully self-contained with facilities such as swimming pools, parks, shopping centre, bowling alley, church and hospital. There are security guards at the entrance gate to the compound. In one of the mother’s Facebook posts she describes it as “a very nice little community”.  

9. H school is an international bi-lingual (English/Spanish) school that caters for children from nursery to grade 12. School hours are from 7.15am to 3.30pm with a one to two hour break at lunch time when the children eat at home with their families. The total number of enrolments at the school is currently 429, 421 of whom are Colombian, 5 who are Colombian with dual nationality, and 3 who are from the USA. Of the school student population, 369 of the children reside in CC Compound and 60 live in neighbouring communities. There are 107 faculty members comprising 77 teachers/academic administrators, 15 co-teachers and 15 trainers/musicians. Most of the faculty are Colombian while 17 are from various countries. The school provides a vast array of extracurricular activities including various sports and music. There are also tutoring and counselling services available.

10. Upon arriving in Colombia, the children X and Y commenced at H school and also became involved in swimming, tennis, soccer, chess and dance. The mother posted on her Facebook page on 14 August 2018 a photograph of X and Y smiling with the caption “So glad you are enjoying your new school”. X befriended a little girl, EE, who lived across the road from the family. EE and her family had previously lived in Australia for 7 years prior to moving to Colombia and EE’s mother taught English at H school. Another friend, FF lived diagonally opposite. Y also made friends and attended ‘play dates’ at other children’s homes and they also came to the family home. The children achieved impressive marks at school. Both children learned Spanish and the parents joked about Y receiving a higher mark in Spanish than he did in English. The father annexes various photographs of the children happily playing with their friends and attending school with English signs in the background and one with Y holding a school award in English.

1. X and Y spent most weekends at the family beach house in City V either with the whole family together or with the father individually or together. Extensive renovations were undertaken to the beach house to meet the family’s needs. The mother posted on her Facebook page in December 2018 a reference to “final stage of completing the renovation on our house in City V”.

2. The day after the mother and children arrived in Colombia steps were taken to obtain resident visas for each member of the family. There were delays associated with sourcing original documents but migrant resident visas ultimately issued on about 7 December 2018. The mother and father had a commitment/remarriage ceremony in November 2018 apparently to assist with the process of visas.

3. During the period the mother was living in Colombia she communicated in writing with the paternal grandmother. On one occasion she said: (as per original)

   I’m not throwing in the towel it’s just everything has changed the kids have no appreciation for what I do for them. [The father] is great. I’m thinking I’ll just start working again here in Colombia again for a few days a week.

   Have a nanny come in to take care of Z so I can have a break get out of the house. I may be able to work as an (sic) assistant here.

4. While the mother did experience challenges in Colombia which she shared with the paternal grandmother from time to time (see above), I do not find that those challenges negated the joint intention of the parents to move to and live in Colombia for an indefinite period, nor the extent to which the mother became involved in Colombian life consistent with that intention. She socialised with people in the community, travelled with the children and her driver around the area, visited other towns and regularly spent time at the beach house. She also planned to obtain employment and arrange for the youngest child to go to day care. She also agreed to the engagement of a housekeeper and tutor.  

Conclusion on habitual residence

1. The evidence satisfies me that the children were habitually resident in Colombia immediately prior to 15 January 2019. The matters of particular significance in coming to this conclusion when undertaking a “broad factual inquiry” are my findings as follows:

   a)The parents travelled to Colombia together in October/November 2017 to assess the feasibility of them relocating;

   b)The parents agreed to relocate to Colombia and intended to make Colombia their home for what was anticipated would be an indefinite period;

   c)Consistent with the joint intention to move to Colombia, the father signed an employment contract in February 2018 for an indefinite term and relocated on 30 March 2018 to prepare for the family’s arrival;

   d)Notwithstanding remaining in Australia for a period of almost 4 months after the father’s departure, the mother, consistent with the agreement, left Australia with the children to move to Colombia on 27 July 2018;

   e)As the parents were living together in Colombia and the children were all very young the intentions of the parents are a significant factor;

   f)In the proceedings, the mother sought to play down both the intention to settle in Colombia and the circumstances of the family’s stay in Colombia, e.g. she denied all knowledge of the furniture being relocated but ultimately conceded she did know and she said that guards at CC Compound carried military style weapons which she later conceded was inaccurate and intended by her to create a really negative view of CC Compound. The consequence of this finding is that I place less weight on her evidence generally where it conflicts with the father’s;

   g)The parents purchased property in Colombia and undertook renovations at considerable personal cost and I do not accept that this was done without the mother’s knowledge;

   h)The parents transported all of their belongings including the family pets to Colombia;

   i)The mother spoke of moving to “our new home”;

   j)Upon arriving, the parents commenced the process of obtaining resident visas and did obtain resident visas for themselves and the children;

   k)The children commenced school and engaged in a variety of extracurricular activities;

   l)The children made friends and became part of the community in which they lived e.g. playing with neighbours and attending birthday parties;

   m)The children were learning Spanish and achieving well in all of their subjects at school;

   n)The children enjoyed weekends and holidays at the family beach house in City V;

   o)The mother spoke of plans to obtain employment as a veterinary assistant three days per week;

   p)The parents employed a housekeeper to assist with household duties;

   q)The parents employed a tutor to assist the children with their school work;

   r)There was a “degree of settled purpose from the child's perspective”;

   s)When the mother and children left Colombia on 17 December 2018 it was intended to be for a one month holiday and they took only their summer clothes and empty suitcases with which to bring items from Australia back with them; and

   t)The two older children have lived the majority of their lives outside Australia.

2. As a consequence of finding that the children were habitually resident immediately prior to their retention in Australia on 15 January 2019, and as all other requirements of reg 16(1) have been satisfied, I find that the children’s retention in Australia after 15 January 2019 was wrongful.

Has the mother established that there is a grave risk that the return of the children under the Convention would expose the children to psychological harm or otherwise place the children in an intolerable situation by reason of any of the following?

• Possible criminal sanctions against the mother if she returns to Colombia

• The impact on the mother’s mental health if, contrary to her stated intention not to return, she returns to Colombia

• Whether the father’s place of abode is safe or more akin to a war zone

• The impact of the COVID-19 pandemic

• The impact on the children if they return to Colombia without the mother

1. When considering whether or not the mother has established a ‘grave risk that the return under the convention would expose the children to psychological harm or otherwise place the children in an intolerable situation’, I am mindful of statements made by the plurality in the High Court of Australia in DP[14] as follows:

   [14]DP(n 5) at 414, 417- 418 per Gaudron, Gummow and Hayne JJ.

   33. The content of those exceptions [including reg 16(3)(b)] must be understood against the other provisions of the Regulations which … make plain that there may be an order for return with no expectation that there will be any judicial process in the country to which the child will be returned in which any question about what is in the best interests of the child will be raised or addressed. Often enough, of course, there will be proceedings pending or anticipated in the country to which an order for return is sought. … If, on return of the child, there will be a court hearing that will decide what arrangements for custody of and access to the child will be in that child's best interests, an Australian court, exercising a discretion under the Regulations, will no doubt take that into account. But the construction of the Regulations cannot proceed from a premise that they are designed to achieve return of children to the place of their habitual residence for the purpose of the courts of that jurisdiction conducting some hearing into what will be in that child's best interests. …

   …

   41. ... On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.

   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.

   43. Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.

   44. These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.

   45. That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.

   …

   (footnotes omitted and emphasis added)

2. I turn now to consider the particular matters relied upon by the mother that are said to establish the regulatory exception.

Possible criminal sanctions against the mother if she returns to Colombia

1. The mother adamantly insists that she will not return to Colombia under any circumstances. The mother nevertheless submits that I would place little weight on the evidence of the legal expert relied upon by the father because he describes himself as a “family and business lawyer”.

2. Mr HH is a lawyer in Colombia, who has practised family law since 1982 including in international child abduction cases. Mr HH provides evidence with reference to the relevant Colombian codes and statutes that, while criminal charges against the mother are possible, since 1994 when Colombia “adhered” to the Hague Convention, the Colombian Authority “will not initiate criminal procedures with the Criminal Prosecutor’s Office against the parent who arbitrarily exerted parental rights … when [they] return to Colombia willingly as a result of court orders to return children to Colombia”. While the father could file charges, the Colombian Authority is “not interested in initiating these cases because its primary function is protecting the minors not prosecuting parents”. Even if charges were brought against the mother and she was convicted and sentenced to a term of imprisonment, any prison sentence in such circumstances is automatically suspended pursuant to Colombian law (Article 63, modified by Law 1709/2014, article 29 of the Criminal Procedure Code).

3. Mr HH’s evidence was not challenged.

4. On the basis of his evidence I find that the risk of criminal sanctions are no more than a remote possibility. In making this finding I also accept the father’s evidence that he would not take any action to cause any charges to be brought against the mother.

The impact on the mother’s mental health if, contrary to her stated intention not to return, she returns to Colombia

1. As the mother insists she will not be returning to Colombia, the impact on the mother’s mental health if she returned to Colombia was not a matter about which the mother focussed in submissions. Rather, the mother’s submissions focussed on resisting the argument by the father that the mother cannot benefit from creating the situation on which she then relies to resist a return order. I will consider that issue separately.

Whether the father’s place of abode is safe or more akin to a war zone

1. The fact that the family lived in a gated compound in Colombia gives some indication that there are safety concerns in the area. I note that prior to the COVID-19 pandemic, the official advice from the Australian Government, published on the Smartraveller website, was for Australians in Colombia to exercise a “high degree of caution”.

2. However, the father is employed by a large company who has established a large compound with security in place. The family had the assistance of a driver but it seems they can drive if they have a licence recognised in Colombia. While living in Colombia, the family regularly left the compound to travel to their beach house, about two hours away, and also travelled to K Town. The mother and children (without the father) also travelled with their driver outside the compound including to their beach house.

3. Neither of the parents report any security or safety issue while they lived there.

4. While a high degree of caution may be good advice, I am not satisfied that either CC Compound or K Town are unsafe or “akin to a war zone” such as to create a grave risk within the meaning of reg 16(3)(b).

The impact of the COVID-19 pandemic

1. There was some discussion during submissions about how, if at all, the impact of the COVID-19 pandemic was relevant to the assessment of risk. The mother did not rely on any health risk. The State Central Authority and the father submit that the COVID-19 pandemic is not relevant to risk but rather its relevance is limited to what, if any, conditions might be included if a return order is made. The mother submits that impacts of the COVID-19 pandemic such as the uncertainty surrounding when or if the children can be returned are relevant to the assessment of ‘intolerable situation’.

2. The mother also raised a more general submission about the impact of the time that has now passed since proceedings first commenced and argues that the rationale for the operation of the Convention, i.e. a prompt return of children to their habitual residence, cannot be achieved in this case. It is argued that as international borders are closed (because of the COVID-19 pandemic) “the very underpinning of the Hague Convention is the free flow in international boarders (sic), such an underpinning is herein frustrated. The Court ought not approach this matter on the usual basis that this cold pursuit can result in hot returns of the children. We simply do not know”.

3. Further, the mother submits that the uncertainty surrounding whether or not the children can return only exacerbates the problem such that the return of the children under the Convention will place the children in an intolerable situation because it has been so long since they have seen their father and they will be removed from their primary attachment figure. The mother invited the Court “to consider their settled nature as part of the assessment of Reg 16(3)(b) intolerable situation consideration and residual discretion. Indeed, for Z, rightly or wrongly, she can have little memory of her father”. There is of course no general “residual discretion”. The only discretion arises when an exception is established and the discretion that arises is to order a return despite the exception (reg 16(3) and (5)).

4. Reliance was placed by the mother upon a first instance decision in Hong Kong. In A.C. v P.C. (Abduction: Settlement)(“A.C. v P.C.)[15] Hartman J said:

   As Thorpe LJ has commented in Re C (Abduction : Grave Risk of Physical or Psychological harm) [1999] 2 FLR 478, the mechanisms of the Convention are ‘intended to be a hot pursuit remedy’.

   But, to use the same language, what happens when the hot pursuit turns cold? Surely a point of transition must be reached when the Convention’s objective of prompt return by way of summary proceedings loses its rationale and when to order the return of a child, notwithstanding any moral culpability on the part of the abducting parent, becomes fundamentally disruptive and (almost as bleak) a fundamentally artificial process.

   [15]A.C. v P.C. (Abduction: Settlement) [2005] 2 HKC (“A.C. v P.C.”)

5. The facts of the case in A.C. v P.C.[16] involved a wrongful removal from Australia in 1999. The children were initially taken to China (a non-convention country) and in 2002 to Hong Kong (a convention country) but they did not come to the attention of the Hong Kong authorities until April 2004 whereupon an application for a return order was made. As the application for return was brought more than 12 months after the wrongful removal, the return of the child to Australia could be resisted under the Convention if it could be established that the children were settled in their new environment (equivalent to reg 16(2) of the Regulations). The trial judge was satisfied that the children were settled in Hong Kong where they had lived since 2002 and refused the return order. It was in that context that the obiter comment relied upon by the mother in this case was made.

   [16] Ibid.

6. In the case quoted by Hartman J (above), namely Re C (Abduction),[17] a return order was made despite ten months having passed since the child was wrongfully removed and Thorpe LJ’s comments about the remedy under the Convention being a “hot pursuit” were not made in the context of supporting an expansion of the circumstances establishing an exception but rather urging the courts to ensure the prompt listing of these matters. Butler-Sloss LJ, with whom Thorpe LJ was in “complete agreement” observed:[18]

   The circumstances of this case provide a good example of how easily problems which arise in many child abduction cases caused by the actions of the abducting parent can be demonstrated by that parent to come within Art 13(b) and thereby frustrate a return under Art 12.

   [17] Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478 per Butler-Sloss, Thorpe, Mummery LJJ.

   [18] Ibid at 484.

7. I am not persuaded by the mother’s arguments that delay or uncertainty can of themselves establish an exception under reg 16(3)(b) in this case. A plain reading of reg 16(3)(b) establishes that the ‘intolerable situation’ relates to the “return of the child under the Convention” not to the circumstances prior to the return. I am fortified in that view by the comments made by the plurality in DP[19] where it was said:

   65. … while it may be right to say that return is to a country, not a place or a person, the application of reg 16(3)(b) requires consideration of what are said to be the consequences of that return.

   [emphasis added] 

   [19]DP (n 5) at 423.

The impact on the children if they return without the mother

1. The reality for these children is that they have lived apart from father since 17 December 2018. Z was only 17 months old at the time. X was 9 and Y 6. The children have not spent any time with the father since their departure from Colombia although they communicate with him most Fridays via Skype or Whatsapp with varying degrees of success and the father communicates at other times with X. Returning to Colombia without their mother will no doubt be difficult for these children but to reiterate what the High Court of Australia said in DP:

   …It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.[20] 

   [20] Ibid 418, [45].

1. The question for me is whether or not the mother has established that any difficulties the children will face upon return would expose them to a grave risk within the meaning of reg 16(3)(b).

2. In the context of that assessment I note that if the mother elects not to return to Colombia the father proposes the following:

   a)He will apply for permission to fly to Australia under the humanitarian provisions and remain in quarantine for 14 days if required by local restrictions in Australia;

   b)He will apply for permission for the children to leave Australia as soon as he arrives in Australia (a requirement of the Australian authorities) and will apply through the Colombian Consulate for permission to take the children to Colombia on humanitarian grounds supported by a return order made by this Court;

   c)He will obtain assistance from JJ Services to ensure the children’s visas are current and will renew X’s passport;

   d)He will accompany the children on flights from Australia to Colombia where they will settle either in the house known to the children in CC Compound or the apartment in K Town (the father’s preference is return to CC Compound but it seems he remains open to K Town if considered by the mother or the Court to be more appropriate);

   e)If they return to CC Compound the children will return to H school or if they stay in K Town the father has made enquiries with KK school and the LL school where there are vacancies for the children. The children will attend interviews if they go to school in K Town. From the information obtained by the father, either school in K Town appears suitable;

   f)Z could commence kindergarten/nursery upon turning 3 years either in CC Compound or K Town;

   g)The father would implement a daily routine for the children which he sets out in considerable detail and which would involve him being the major carer for the children while receiving practical assistance from Ms MM, the housekeeper the father has retained since employing her in November 2018, and he will reengage the children’s previous tutor, Ms NN, to provide tutoring each evening as required and to assist in transportation to extracurricular activities;

   h)The father has secured the support of his employer to continue to work from home with flexible working hours to fit around the needs of the children;

   i)The father has obtained recommendations for two English speaking child psychologists for the children, Ms OO and Ms PP, but proposes that he and the mother confer about an appropriate psychologist for the children;

   j)The father proposes that the children communicate with the mother via video conferencing not less than twice per week and he would pay for the mother to visit Colombia 4 times per year and will meet the costs of airfares and accommodation for the mother;

   k)Additionally, the father would ensure that the mother receives regular photographs of the children together with updates on their education, health and activities and ensure that the mother has authority to contact the children’s schools and medical professionals at her discretion.

3. In the time since leaving Colombia the children have experienced quite a degree of upheaval as noted earlier in these reasons. X and Y have received counselling which commenced about 10 months after they returned to Australia. The counselling seems to have arisen in the context of these proceedings. Initially, X and Y both consulted with Ms QQ and subsequently, X consulted with Ms RR.

4. Ms QQ is a social worker and accredited mental health social worker. She obtained her formal qualifications in 2008 and has worked in a combination of government and not-for-profit organisations as a mental health clinician, as a domestic violence support worker, and as a foster care support worker. Ms QQ has been in private practice since 2016 and works with children, adolescents, and adults.

5. Ms QQ saw X and Y on 6 occasions commencing on 17 September 2019. She last saw X on 24 March 2020 and Y on 7 April 2020.

6. According to Ms QQ:

   At their initial appointment X and Y presented as children responding normally to their current situation. X presented as anxious particularly when discussing Colombia and the chance they might have to return. Y presented as very reliant on X and while a lot of the adult issues were above him he was aware that there was something going on. This resulted in behavioural issues such as defiance, emotional outbursts and clinginess.

7. Ms QQ says that she saw a “dramatic improvement in X after one court case which ruled that the children would remain with their Mother”. X said she was “frustrated” when Ms QQ last saw her because “court was still going and won’t stop”. Ms QQ was informed by the mother that X was lashing out at home and was easily irritated.

8. During her last session with Y, Ms QQ said he expressed that he was happy he did not have to go to Colombia. Ms QQ stated that she had “real concerns” for the children’s mental wellbeing if they returned to Colombia and she believes that this would “create a very significant attachment rupture between them and their primary caregiver (mother) which will have ramifications well into their adult years”. She said that both children became “visibly distressed when discussing the possibility of leaving their mother”. Both children expressed their dislike of Colombia describing it as “scary” and that they did not speak Spanish, had to live in a compound because it was dangerous, they did not have friends there and they disliked their school.

9. Ms QQ also opined:

   If their mother was ordered to accompany them I fear they will still experience the same rupture as their mother's mental wellbeing would be compromised. She has stated that she does not have any supports in Colombia or work prospects which was her original reason for returning to Australia.

10. As Ms QQ candidly conceded, she had not, nor would she given her professional qualifications lie in social work, purport to carry out a mental state examination or diagnosis or make a prognosis of the mother. Ms QQ concentrated her efforts on creating an opportunity for X and Y to have a safe place to express themselves.  

11. In Ms QQ view, if the children return to Colombia with or without the mother they will require psychological support.

12. Ms RR obtained a Bachelor of Arts, Honours (Psychology) in 1998 and was employed as a psychologist in disability services from 2004 to 2014 and has been in private practice since 2013. Ms RR first saw X on 14 April 2020 in the company of her mother. Ms RR does not formally make a diagnosis but refers to the mother having “scored” X as having an Anxiety Disorder with subtypes of Somatic Anxiety, Generalised Anxiety, Separation Anxiety and Social Anxiety and X having “scored” herself as having an Anxiety Disorder with a subtype of Separation Anxiety. At the time of her report, dated 25 May 2020, she had seen X three times and proposed to see her a further three times and possibly longer after review by her General Medical Practitioner. Ms RR says that it is hoped that by the end of the course of treatment, X may have gained the skills to help her cope with anxiety.

13. In Ms RR’s view:

    If X was to return to Colombia accompanied by her mother, her separation anxiety would not be a concern, but her other anxiety symptoms may be exacerbated.

    If X was to return to Colombia to live with her father and her mother was to remain in Australia, her separation anxiety would be exacerbated and she would, in all probability, experience trauma caused by severance of her attachment bonds to her mother. I have formed the opinion that attachment bonds to her father have always been tenuous. X has also disclosed that she experienced bullying within the education system when she previously lived in Colombia and experienced ostracism because she cannot speak the Spanish language.

    X would require ongoing support by either a psychiatrist or a psychologist were she to be returned to Colombia either with her mother or with her mother remaining in Australia because of the severity of her anxiety.

14. Ms RR’s report is unsatisfactory on a number of levels. Despite not setting out any of her own observations or even a description of what particular information she was provided by the mother and the child, Ms RR says she began treating X for an Anxiety Disorder. While expressing an opinion that the child’s “other” anxiety symptoms “may” be exacerbated by a return to Colombia she does not say what they are or why they may be exacerbated. Ms RR does not explain why a return to Colombia without her mother would “sever” the attachment bonds with her mother given that the father proposes an ongoing relationship. Rather extraordinarily Ms RR purports to express an opinion about the nature of X’s relationship with the father, namely, that it has “always been tenuous” without setting out the basis for that opinion and in circumstances where she has never met the father or observed the father and child together.

15. The children also saw a family consultant, Ms U in the context of assessing the older children’s objection to return to Colombia, which is discussed in detail below, but as Ms U also offers her opinion on the children generally, it is important to consider her evidence when assessing risk.

16. Ms U obtained a Bachelor of Social Work in 2005 and Master of Social Work in 2007. She has experience in family violence counselling and child protection investigation and has been in private practice as a social worker since 2013 and became a family consultant in 2017 with the Federal Circuit Court of Australia.

17. Ms U conducted interviews with the children on 16 July 2019 and obtained information from the mother and from affidavit material that was provided to her.

18. The mother described X as a happy child who had met all her developmental milestones. The mother said that Y is also meeting his developmental milestones and that since returning to Australia Y had received “high and very high achievements” in his school work and reported an improvement in Y’s educational achievements. I note that in Y’s school report from Colombia he achieved ‘above average’ or ‘excellent’ in all subjects save English and Social Studies for which he received an ‘average’ mark. He received a grade of ‘above average’ for Spanish. X received ‘above average’ for all her subjects save Science for which she received a grade of ‘excellent’ and Spanish for which she received an ‘average’ grade. The mother claimed that Y has “no connection to his father”.

19. Ms U did not speak with the father. The father’s evidence is that he had a close and loving relationship with the children when they lived together in Colombia and that up until recently, when he spoke with X she would say she missed him and ask after her pet cat and her toys and Z was always in the background yelling “Daddy, Daddy, Daddy”. The father says that on 18 May 2020, during a video call with X, she asked him a number of questions including:

    Why are you seeking full custody of us?

    Why haven’t you tried to visit us?

    Why haven’t you sent us any money?

    Why is granny seeking full custody of us?[21]

    Why did granny kidnap Z?

    The father says that at some stage after that he heard the maternal grandmother say:

    That’s enough to show you, your father doesn’t give a shit about you.

    [21] The father says this is a reference to his mother having filed an application in Australia seeking to spend time with the children.

20. At the time of interview with Ms U, X was 9 years and 11 months old and presented as “a mature and articulate child”. X had absolutely nothing positive to say about her time living in Colombia, e.g. she hated everything about school, no one spoke English, she had no friends and she recounted seeing guards with guns. Likewise, she had absolutely nothing positive to say about her father stating “he is not a good dad” and that he “didn’t really care” about her. She said she worried about the current situation because of the “stress it has put on mum”.  Despite this, X said she would like her father to come and spend time with them. If she had to return to Colombia X said she would be “really unhappy. I wouldn’t go. I would just scream and scream and scream”. She spoke about how much she would miss her mother and “scared I would never see her again”. She said she “would be so sad and I would just cry and cry and cry”. Even if her mother returned to Colombia she said “I wouldn’t want to go back. I hate it there. I don’t trust dad and I don’t want to hear them fighting all the time”. X worried that if she returned to Colombia she would be “unhappy” and “stressed all my life. I don’t want to go back. I wouldn’t know what to do”.

21. Y was 6 years and 9 months[22] at time of his interview with Ms U and presented as a “delightful, chatty child”. Y said it was not good living in Colombia. “There was rubbish everywhere and the ocean had plastic bags in it.” Unlike X, he did recount a happy memory about Colombia involving the beach and red and blue tents where people brought them food. When asked to recall what it was like living in Columbia, Y recalled a time when they were on holidays in City V and his father playing with him in the swimming pool at the apartment. He spoke of being “scared” and that when they went to the beach with their driver there were guards with guns. He also spoke about feeling scared the paternal grandmother “is going to come and take us back to dad in Colombia and I don’t want to go”. He said school in Colombia “wasn’t good. They don’t have big playgrounds and the teachers are mean and smack us”. Y spoke about only having one friend in Colombia and that he was “bullied” and “sometimes the other kids would kick and hit me. They didn’t like me”. (The mother conceded during cross-examination that Y had never complained in Colombia of being bullied at school). Y said if he was to return to Colombia “I would want mum to come. I would be sad if I went without mum”.

    [22] Ms U incorrectly records the child’s age as 5 years and 9 months.

22. In Ms U’s view:

    59. …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 depend on the quality of their relationships and supports in Colombia to assist X and Y process their emotions and experiences.

23. During cross-examination of Ms U by Queen’s Counsel for the mother, she was taken to various parts of the reports of Ms QQ’s and Ms RR’s and asked if she agreed with observations made by them and whether opinions expressed by them were consistent with her own. In particular Ms RR said:

    a)When she saw the children they were responding normally to their current situation. X presented as anxious, particularly around discussion of Colombia and the chance they might have to return;

    b)There was a dramatic improvement in X after one court case which ruled the children could remain with the mother (it is not clear to me how Ms U was able to agree with this observation made by Ms QQ when Ms U only saw the children on 19 July 2019 i.e. prior to the court case);

    c)X presented as frustrated;

    d)Y was happy he did not have to go to Colombia (again it is not clear how Ms U can agree with Ms QQ’s opinion when it seemingly related to the outcome of the court case);

    e)She would have real concerns about X’s and Y’s mental wellbeing if the court were to decide they return to Colombia;

    f)She has concerns that a removal to Colombia will create a very significant attachment rupture between their primary caregiver, i.e. their mother, which will have ramifications well into their adult years;

    g)The children expressed their dislike of life in Colombia describing it as scary, they had to live in a compound because it is dangerous, they did not have friends and they disliked school;

    h)The children would require psychological support if they returned to Colombia with or without their mother;

    i)On the day of interview the children displayed some anxiety;

    j)X was highly emotional when discussing Colombia;

    k)X would, in all possibility, experience trauma caused by the severance of her attachment bonds to her mother;

    l)X would require ongoing support by either a psychiatrist or psychologist were she to return to Colombia with or without her mother because of the severity of her anxiety;

    m)A return to Colombia without the mother would be emotionally challenging for the children and would harm their overall wellbeing;

    n)There would need to be a considerable amount of work and scaffolding around these children to try and avoid those problems for them.

24. Ms U also opined that the “biggest risk” for the children relates to the level of fear the children displayed about living in the compound and in Colombia.

25. When cross-examined by Senior Counsel for the father, Ms U gave the following evidence:

    a)In relation to her opinion that the children’s ability to “emotionally cope” being a “high-risk factor” Ms U explained that the high risk she was referring to related to “where they live; their not feeling safe; their safety/security is compromised; … their schooling experience; their social isolation; their unhappiness at being in Colombia”;

    b)She agreed that the risk could be mitigated depending upon a number of things. “It would be the involvement of their father. It would be the right psychological support. It would be the right support at school. It would be … their social interactions with their peers … there’s a range of factors…”;

    c)She agreed that her concerns for the children could be ameliorated and perhaps even overcome if there are sufficient, appropriate supports available to them and that those supports would be multifactorial and of cumulative benefit. Later in her evidence Ms U seemed less confident about this concession, qualifying her opinion to it being “possible”;

    d)Ms U said that it was not just about relationships but how to mitigate their safety. She said that the children told her they live in a compound with men with guns around them. (This comment by the children bears a remarkable similarity to the comment made by the mother and later corrected by her with an acknowledgment that she had said that in order to make Colombia sound really bad. Evidence from the father’s employer confirms that that guards at the compound did not carry any firearms);

    e)Ms U opined that going back to H school would increase the children’s anxiety because their attendance at that school had caused them some anxiety, fear and issues where they were socially isolated and not comfortable and not feeling safe (this evidence is contradicted to varying degrees by both parents);

    f)Ms U accepted as truthful the children’s descriptions of their life in Colombia;

    g)She agreed that if the children’s experiences in Colombia were not as negative as they describe, and if they had consciously or unconsciously become advocates for their mother’s preference not to return it could possibly call into question the reliability of their objections.

26. I am in no doubt that the return of the children to Colombia without their mother will expose the children to a risk of psychological harm and will be challenging for them. This may be particularly so for the youngest child. The more difficult question is whether or not the risk “warrants the qualitative description ‘grave’”.

27. The mother refuses to return to Colombia for any purpose. The father argues that as a consequence, any risk of harm to the children is a creation of the mother’s actions and to refuse to make a return order in those circumstances would “drive a coach and four through the Convention”. This quote is a reference to an English case Re C (A Minor) (Abduction)[23] where Butler-Sloss LJ said:

    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 upon 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 upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. …

    [23][1989] 2 All ER at 471.

1. In that case the mother had wrongfully removed a 6 year old child from Australia to England and was initially successful in establishing, among other things, that if the child were returned to Australia he would face a grave risk of psychological harm or otherwise be placed in an intolerable situation because he would be separated from his primary carer. The mother refused to return to Australia. On appeal, the decision at first instance was overturned and a return order was made.

2. The mother in the current case argues that her reasons for not returning are not of her own making because she suffers from a mental illness. Reliance is placed by the mother upon the plurality in DP where it was said at 427:

   80. In so far as these grounds are intended to invite attention to the exercise of discretion, as failures to take account of material considerations, they will have to be dealt with by the Full Court. 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.

   (footnotes and emphasis included in mother’s submissions)

3. The factual circumstances in DP involved a finding by the primary judge that the mother was suffering from a major depressive disorder and that there was a “very serious risk or high risk of suicide by the mother in the event of an order being made requiring the child who is 3 years of age, to be returned”.[24] The High Court of Australia held that the Full Court of the Family Court erred in finding that reg 16(3)(b) was not engaged, i.e. that a finding of grave risk of psychological harm to the child was not open, and remitted the matter to the Full Court to consider the discretion, given by reg 16(5) of the Regulations, namely, whether notwithstanding the establishment of an exception, a return order should nevertheless be made.[25]

   [24]DP (n 5) at 437, [117].

   [25] Ibid at 424, [68].

4. In the present case, according to the father, the mother’s “mental health issues have always been at the forefront of our relationship”. Although the mother studied and worked as healthcare professional prior to having children, the father says “her mental health issues made this very difficult for her” and “[s]ince 2009, when we started having children, [the mother’s] mental health has been getting progressively worse resulting in extreme anxiety, aggression and more recently paranoia”. The mother rejects the father’s view that her mental health issues were always at the forefront of their relationship and says that the reason she ceased working related to a work issue and also that the father said she did not need to work as they were starting a family.

5. The mother says that she was diagnosed with “anxiety and depression” in 2012 and has been “under the treatment of doctors” since that time. The father contends that the mother “has been receiving counselling prior to their meeting in 2004.”

6. The father says that “[o]ver the years, we have seen many doctors regarding [the mother’s] mental health. The symptoms of [the mother’s] illness include … general anxiety, difficultly concentrating on tasks, becomes very easily overwhelmed, difficulty caring for the children”.

7. In January 2018 the mother was hospitalised after she allegedly threatened self-harm with a kitchen knife and police were called to the house. The mother provides a different account of this incident but agrees she was transported to hospital by police where she remained for a night. This incident seems to correspond with the mother finding a message on the father’s phone which is referred to above. The mother subsequently sought treatment and remained in hospital for about four weeks. The two older children stayed with the paternal grandmother and the father (although it seems the father returned to Country G at some point to finalise his resignation) while the youngest child, then six months old, remained with the mother in hospital.

8. According to the father, despite the mother having established a support network in Colombia, “[h]er constant mental health issues made it a real issue for her to cope long term with the Children or to concentrate for any length of time on tasks at hand”. The father says that after the mother’s departure from Colombia with the children on 17 December 2018, he found out that the mother had “quite a lot of conversation” with the paternal grandmother “discussing the issues that [the mother] was having coping with the Children in Colombia.” In November 2018, the mother agreed to the engagement of a housekeeper, Ms MM, and the father says that there was improvement after the mother accepted outside help with household tasks. Indeed, this seems to be supported by the mother’s communication with the paternal grandmother wherein she said she was planning to obtain employment in Colombia. It also coincides with the mother consulting a psychiatrist, Dr J, in K Town, although the mother says she was not comfortable with her. The mother saw Dr J on one occasion, namely, 23 November 2018 but was unable to attend the next appointment on 14 December 2018.

9. Upon the mother’s return to Australia in December 2018, she and the children lived with the paternal grandmother in M Town, New South Wales until 26 January 2019. The mother then obtained rental accommodation for herself and the children in S Town, New South Wales. On 20 February 2019 the children returned to live with the paternal grandmother when the mother was admitted to the L Hospital in South-East Queensland. The mother sought admission to undergo a six week treatment program for depression but after a falling out between the mother and paternal grandmother the mother discharged herself from hospital and resumed care of the children. The mother then formed an association with a male neighbour from whom she gained support and it was around this time, in March 2019, that the mother and father separated.

10. The father refers to the mother’s “deteriorating mental health … erratic … behaviour and paranoia towards [him]” during this time. Annexed to the father’s affidavit are text messages from the mother to him around this time in which the mother said, among other things, “I’ve been fighting continuously (sic) headaches and tiredness plus anxiety and becoming a little unstable on my feet. … I’d rather not have depression, anxiety and post traumatic stress disorder. … Sadly these disorders are crippling”.

11. The mother readmitted herself to L hospital in South-East Queensland on 29 April 2019. The mother organised for the children to move to live with her parents in N Town (about 7 hours’ drive from South East Queensland).

12. On or about 20 May 2019, the mother transferred to O Hospital in P Town (about 2 ½ hours’ drive from N Town) to be closer to the children. The mother remained an inpatient at O Hospital until on or about 4 June 2019 when she joined the children at her parent’s home in N Town. While in hospital, the mother received Transcranial Magnetic Stimulation (“TMS”) which is a non-invasive treatment for depression.

13. The mother’s treating psychiatrist, Dr T, provided a report (dated 15 August 2019) and a letter in response to a particular question (dated 19 August 2019) and was cross-examined. I accept his evidence that he has treated the mother for a major depressive illness and that she also has some features of chronic PTSD. Indeed, this evidence was not challenged. In his report he opined that the mother had made a good recovery from her major depression which he considered to be in remission. Nevertheless he opined “[t]his 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”. In his opinion, the mother’s prognosis was “essentially good” but noted that “[m]ajor depressive illness if left untreated run a relapsing and remitting course”.

14. Dr T has continued to treat the mother and has seen her on 13 occasions “so once every 3 to 4 weeks” since her discharge from O Hospital on or about 4 June 2019, the most recent consultations being by telephone because of COVID-19 restrictions. He opined that “she needs careful monitoring of her depression”. In his view a return to Colombia would be devastating for the mother who “would be removed from support systems in Australia (e.g. Parents and friends)...”. Dr T accepted that support for the mother could continue by web based means, e.g. ZOOM, although it was “not the same as face to face contact”. He also accepted that “theoretically” the mother could continue to consult him via a web based platform. He could only speculate about the availability of appropriate medical care for the mother in Colombia if she chose to return.

15. As noted above, when the mother lived in Colombia she consulted a psychiatrist in K Town (an hour’s free charter flight from CC Compound) but was dissatisfied with her level of English. The father provides evidence of recommendations he has received for a number of English speaking psychiatrists whom the mother could consult if she returned to Colombia. They are located in K Town, a large town in which the father has secured alternate accommodation should the mother elect to return to Colombia and object to living in CC Compound. The mother accepts that there are 20 hospitals in K Town and included in one of the recommendations the husband has received is a psychiatric hospital recommended by the US Embassy. It seems inconceivable that the mother could not access appropriate psychiatric care in Colombia should she require it.

16. The mother has historically accepted treatment from a number of doctors in a number of countries when she has previously lived overseas. She has also consulted a number of different doctors in Australia. Her current treating psychiatrist agreed to provide his records should the mother request him to do so. The mother currently consults her psychiatrist via telephone because of the COVID-19 restrictions. There is no evidence that such an arrangement or a web based platform could not continue if the mother elected to return to Colombia, at least until she found a suitable psychiatrist.

17. If the mother elects to return to Colombia the father proposes the following:

    a)He would pay for her flights to Colombia on a date suitable to her;

    b)He would assist with any required visa process and has already retained a consultant from JJ Services;

    c)He would provide a three bedroom apartment in K Town if the mother chose not to return to CC Compound and has already secured a property in which he is currently residing;

    d)He would provide the mother with AUD$2,000 per month (which he says is twice the Colombian average wage) until the parenting proceedings in Colombia are finalised (which Mr HH says would be within 6 months);

    e)He would purchase a suitable car for the mother;

    f)He would arrange transport for the children to and from school whether they are in his care or the mother’s;

    g)He would pay for two return flights a year for the mother to visit Australia or two return flights for a member of her family to visit Colombia;

    h)He would assist the mother to find an appropriate psychiatrist and/or psychologist in K Town or any other place chosen by the mother;

    i)He would assist the mother to resume Spanish classes and to find employment if she wished;

    j)He would assist the mother to meet reasonable legal fees to ensure she is independently represented in negotiations about parenting matters and any Court proceedings.

18. Having regard to the father’s income, it appears he has the capacity to meet his proposed financial obligations.

19. The mother could continue consultations with Dr T until she obtained a local psychiatrist with whom she was content.

20. In my view, the circumstances of this case are vastly different to those in DP.[26] The mother is not suffering from a major depressive disorder. She is in remission and her prognosis is good. While she does have reactive depression and anxiety, it seems this condition will remain until the parenting proceedings are finalised, i.e. whether or not she remains in Australia or returns to Colombia. The reasonableness or legitimacy of the mother’s opposition to returning must be questioned when considering that her refusal to return is not just to live there but even to visit the children if they return there.

    [26]DP (n 5).

21. The mother also relied upon Re W[27] (Court of Appeal UK) and in particular the following:

    57. Putting it simply but, in my view, starkly, if the children were to be returned to the USA without the mother, the court would be enforcing their separation from their primary carer for an indeterminate period of time. It would be indeterminate because the court has no information as to when or how the mother and the children would be together again. These children, aged 5 and 3, would be leaving their lifelong main carer without anyone being able to tell them when they will see her again. In my view it is not difficult to describe that situation, in the circumstances of this case, as one which they should not be expected to tolerate. I acknowledge that the current situation has been caused by the mother's actions, and that she was herself responsible for severing the children from their father but, as referred to above, the court's focus must be on the children's situation and not the source of the risk.

    [emphasis included in submissions]

    [27] [2018] EWCA Civ 664 per Moylan and Jackson LJJ (“Re W”).

22. As acknowledged by the mother, Re W[28] did not involve a case where the mother was refusing to return with the children. The difficulty arose in that case because of the inability of the mother to obtain a visa to enter the requesting State, i.e. it was a matter outside her control. The mother suggests that she may not be able to obtain a visa to Colombia but that is far from clear on the evidence.

    [28] Ibid.

23. In any event, I have come to the conclusion that the mother has not established there is a grave risk that the return of the children under the Convention would expose the children to psychological harm or otherwise place the children in an intolerable situation. Matters of particular significance are as follows:

    a)The children would be returning to Colombia, in all likelihood to live with their father, a parent who loves them and with whom they have experience of being cared for, particularly the older two children;

    b)The children have maintained a connection with the father by video communication which, while less than satisfactory on occasions, establishes that X misses her father and even Z recognises her father;

    c)The children have coped, it seems, remarkably well despite being apart from their father and on several occasions from their mother (while she has been in hospital);

    d)The children have also coped remarkably well, it seems, despite being cared for by various family members in circumstances where their familiarity with some of the family members was limited or interrupted;

    e)Ms RR (the psychologist) expresses hope that X may gain the necessary skills to cope with her anxiety after a few more sessions;

    f)Much of the children’s anxiety appears to relate to misinformation received either consciously or unconsciously from the mother about safety issues in Colombia;

    g)Over the years, the children have endured many changes in their living arrangements, cultures experienced, schools attended, and interruptions to relationships with various family members. Despite all of this, the children have been described as happy and delightful (although with some frustration and anxiety) and meeting all of their developmental milestones. This would seem to suggest a degree of resilience;

    h)While the opinions of Ms QQ, Ms RR, and Ms U raise legitimate concerns about the impact for the children, including long term impacts, of being removed from their mother’s care and in particular the impact on their attachment to her (and this is perhaps even more acute for Z), and while I accept the risks are real, I am not persuaded that the risks are “grave” because I consider that the risks can be ameliorated if not overcome by the day to day care the father will provide for the children and the various other supports he proposes, including psychological support;

    i)The father’s proposals to assist the children adjust to the return are extensive and impressive and include the children having regular and frequent communication with the mother and, if the mother chooses, regular face to face time with them.

Whether, pursuant to reg. 16 (3)(c) of the Family Law (Child Abduction) Regulations 1986, each of the following applies

• The children X and Y object to being returned

• The said children’s objections shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes

• The said children have attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views

1. Evidence relating to the older two children’s objection to returning can be found in the mother’s and father’s evidence to a limited extent and also in the reports of Ms QQ and Ms RR.

2. The mother says the following in her 2019 affidavit:

   72. [in 2019]…Y has said, in a very adamant manner, “I don't want to go back to Colombia.” X has said, again most adamantly, “I really don't want to go back to Colombia”.

   And in her 2020 affidavit:

   21. Since swearing my first Affidavit, X has said to me on numerous occasions, “I don’t want to go back to Colombia. I hate it there.” She also tells me, “I would love Daddy to come and visit but I don't want to go back to Colombia.” Y says to me, “I want to stay in Australia with you Mummy.”

   22(c).[Y and X] were expressing concerns that they might have to go back to Colombia.

3. The father says in his affidavit filed 26 May 2020:

   96. During the past year, it has been unclear who has been sending messages to me from this account (whether it is [Ms Comar], X or a member of [Ms Comar's] family), Almost all of the communication received from "X" (the name that appears on 'WhatsApp") since March 2019 has related to adult issues and some containing words to the effect of:

   …

   (b) "Hating Colombia";

   …

1. The evidence relating to the children’s objections as reported by Ms QQ and Ms RR are set out in [80] – [83] and [87] (above) and will not be repeated.

2. As already noted, X and Y were interviewed on 16 July 2019 by a family consultant, Ms  U, for the purposes of ascertaining the following:

   a)Whether the children object to being returned to Columbia;

   b)Whether any objection by the children to being returned to Colombia shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and the apparent context underlying any expressed wishes; and

   c)Whether the children have attained an age and degree of maturity at which it is appropriate to take account of the children’s views.

3. The details of the children’s statements and presentation to Ms U are set out at [94] – [96] (above) but in summary:

   a)X had absolutely nothing positive to say about her time living in Colombia e.g. she hated everything about school, no one spoke English, she had no friends and she recounted seeing guards with guns;

   b)If she had to return to Colombia X said she would be “really unhappy. I wouldn’t go. I would just scream and scream and scream.” She spoke about how much she would miss her mother and “scared I would never see her again.” She said she “would be so sad and I would just cry and cry and cry.” Even if her mother returned to Colombia she said “I wouldn’t want to go back. I hate it there. I don’t trust dad and I don’t want to hear them fighting all the time”. X worried that if she returned to Colombia she would be “unhappy” and “stressed all my life. I don’t want to go back. I wouldn’t know what to do”;

   c)Y said it was not good living in Colombia. “There was rubbish everywhere and the ocean had plastic bags in it”. Unlike X, he did recount a happy memory about Colombia involving the beach and red and blue tents where people brought them food. He spoke of being “scared” and that when they went to the beach with their driver there were guards with guns;

   d)He also spoke about feeling scared the paternal grandmother “is going to come and take us back to dad in Colombia and I don’t want to go”;

   e)He said school in Colombia “wasn’t good. They don’t have big playgrounds and the teachers are mean and smack us.” Y spoke about only having one friend in Colombia and that he was “bullied” and “sometimes the other kids would kick and hit me. They didn’t like me”. He said if he was to return to Colombia “I would want mum to come. I would be sad if I went without mum”;

   f)The children said there were men with guns guarding the compound.

1. At the time of interview with Ms U, X was 9 years and 11 months old and presented as “a mature and articulate child”.  Y was 6 years and 9 months old.  

2. In Ms U’s opinion, the children are “demonstrating a clear and strong objection to returning to Colombia” and “the children’s objection reflects a strong sense of feeling, beyond the mere expression of a preference”.

3. As to the maturity of the children, Ms U opined that “[c]hildren at this stage can think logically about problems, however tend to focus on the ‘here and now’, as opposed to having the capacity to engage in abstract thinking, complex or hypothetical thinking”. Notwithstanding what Ms U describes as the “expected limits in overall maturity for this developmental stage, particularly the children’s capacity to understand broader and more complex issues relating to this matter and limited ability to engage in longer term planning and contemplation” she suggests that “some weight be placed” on the children’s wishes.

4. In my view, the statements made by these young children reflect two things. Firstly, a wish not to return without their mother and secondly, an adoption by them of what they know to be their mother’s opposition to returning to Colombia. Throughout their interview with Ms U the children reference wanting to stay with their mother and their description of life in Colombia does not reflect the reality of the situation, i.e. contrary to the reports of the children, people did speak English, the children did have friends, neither parent has any recollection of Y being bullied at school, the guards at the compound did not carry guns, and they did attend birthday parties etc. The children repeated statements made by the mother which she acknowledged were incorrect and intended by her paint a very poor picture of Colombia.

5. Accordingly, I am not satisfied that the children’s objection is to being returned as such[29] but rather, represent a strong preference to do what they believe their mother wants, namely, to remain in Australia. Their misstatements about life in Colombia demonstrate a lack of maturity and because of their ages, developmental stages and limitations on their capacity to understand broader and more complex issues it is not appropriate to take account of their views.

   [29]De Lewinski v Director-General, NSW Department of Community Services (1997) FLC 92-737 at 83,939.

Conclusion

1. The facts of this case present a stark example of the tensions created by the application of the Regulations and the ‘best interests’ approach to the welfare of children. Although dissenting on the outcome of the appeal in DP, Kirby J’s observations are, with respect, worthy of repetition:[30]

   131.This analysis requires decision-makers to face up to what will necessarily, on many occasions, be an unpleasant obligation where there may be a suspicion that the child's best interests, viewed purely as a custody determination, might suggest the child's retention within the jurisdiction, although the proper operation of the Regulations, implementing the Convention, requires an order of removal. This is inescapable in the structure of the Regulations (and of the Convention), in the language chosen to express their objectives and in the principal focus which the law places upon responding to conduct which the international community, and municipal lawmakers (including in Australia), have agreed to resist.

   [30]DP (n 5) at 442.

2. The children in this case were habitually resident in Colombia immediately prior to their retention in Australia. Their retention in Australia was wrongful and in circumstances where the mother has failed to establish an exception, a return order will be made.

3. As there are a number of matters that have to be attended to prior to the children’s departure from Australia, and a degree of uncertainty about whether or not the children will be able to leave Australia or enter Colombia because of the COVID-19 pandemic restrictions, the State Central Authority proposes that the return order automatically lapse after 4 months. The father opposes the imposition of an arbitrary time limit for the following reasons:

   a)A self-executing order should only be made in exceptional circumstances;[31]

   b)The proposed order to provide for discharge in the event that the return has not occurred within a specified time, could not be varied, as a return order is a final order;

   c)This would lead to an inability to extend or alter the period because of some presently unforeseen event, even though it might be just to do so;

   d)The order is unnecessary because all parties can apply under reg 19A to discharge the return order on grounds including “since the order was made, circumstances have arisen that make it impracticable for the order to be carried out” or “exceptional circumstances exist that justify the return order being discharged”.

   [31] Senior Counsel for the father cited K.G.K. Constructions Pty Ltd v East Coast Earthmoving Pty Ltd (1985) Qd R 13 at 16, 17 and 19 to support this proposition.

4. I am not persuaded that a self-executing order is appropriate. It seems to me that if circumstances subsequently arise that would support the discharge of the return order an application can be made pursuant to reg 19A.

5. I will however provide the State Central Authority with liberty to apply in relation to any additional orders that may be required to give effect to the return order.

6. Lastly, while the father included in the order sought by him the following:

   (5)That the father will provide the mother a written undertaking that he will not pursue any criminal prosecution in Columbia or any other jurisdiction with respect to the mother’s wrongful removal of the children from Columbia.

   (6)That in the event the mother decides to return to live in Columbia, the father will assist the mother to arrange her flight to Columbia and meet the cost of that flight.

   I do not propose to include those paragraphs because the mother insists she will not return and accordingly she did not seek the inclusion of any conditions. If the mother were to change her mind I would expect the father to agree to not only the conditions he proposes above but also the other provisions he offered in the event the mother returns to Colombia.

I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 June 2020

Associate: 

Date:  23 June 2020