Department of Communities and Justice and Sieger

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES AND JUSTICE & SIEGER

[2020] FamCA 88

FAMILY LAW – CHILD ABDUCTION – Where the mother concedes child brought to Australia in contravention of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) in that prior to her removal France was her habitual place of residence – Where the child’s father who remains in France had rights of custody with the mother in respect of the child – Where the mother raises a defence of grave risk of harm to the child upon her return to France – Mother’s defence not successful and child ordered to be returned to France forthwith.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

C v C (Minor: Abduction: Rights of custody abroad) [1989] 2 All ER 465
De L v Director General, NSW Department of Community Services & Anor (1996) 187 CLR 640
Department of Family and Community Services & Vicelic [2015] FamCA 640
DP v Commonwealth Central Authority [2001] HCA 39
DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401
Gsponer v Director General, Department of Community Services (Victoria) [1988] 94 FLR 164
Harris & Harris (2010) FamCAFC 221
Murray v Director of Family Service ACT (1993) 116 FLR 164
Secretary, Attorney-General’s Department & Bega [2017] FamCAFC 183

APPLICANT:

Department of Communities and Justice

RESPONDENT:

Ms Sieger

FILE NUMBER:

SYC

5216

2019

DATE DELIVERED:

20 February 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

20 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Barnett

SOLICITOR FOR THE APPLICANT:

DCJ Legal

COUNSEL FOR THE RESPONDENT:

Ms McMahon

SOLICITOR FOR THE RESPONDENT:

Lees Luke Family Law

Orders

The mother’s application that the child remain in Australia is dismissed.
The applicant and respondent, Ms Sieger born … 1981, make such arrangements as are necessary to ensure the return of the said child X born … 2011 (female) to France forthwith and for the purposes of giving effect to this Order:
(a)       The child leave the Commonwealth of Australia as soon as practicable and no later than 9 March 2020;
(b)       Pending the said child X born … 2011 (female) returning to France, the respondent mother, Ms Sieger continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from the Commonwealth of Australia; and
(c)       Pending the return of the said child X born … 2011 (female) to France, the respondent mother continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child from the premises where the mother and child are currently residing namely, B Street, D Town New South Wales.
Leave is granted to the parties to relist this matter upon application to my Associate in Chambers if there are any issues in relation to the implementation of these Orders.

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 DCJ & Sieger 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 SYDNEY

FILE NUMBER: SYC 5216 of 2019

Department of Communities and Justice

Applicant

And

Ms Sieger

Respondent

REASONS FOR JUDGMENT

The matter of Sieger is an application under the Hague Convention Treaty ratified into law in Australia pursuant to the Family Law (Child Abduction Convention) Regulations 1986 regarding the International Abduction of Children. The application is for the return of the child from Australia to France where she was taken by her mother and is brought by the Central Authority. The Central Authority seeks the parties’ child, X, born in 2011, be returned to France.
Dr Martha Barnett of Counsel acted for the Central Authority and Ms McMahon of Counsel acted for the mother.
The material read was as follows:
a)For the Central Authority:
i)Affidavit of Ms C, 15 November 2019;
ii)Affidavit of Ms C, 7 August 2019; and
iii)Form 2 application under the Family Law (Child Abduction Convention) Regulations 1986 filed August 2019.
b)For the mother:
i)Form 2A, a response, to the central authorities application filed 14 November 2019;
ii)Affidavit of Ms E Sieger, filed 14 November 2019;
iii)Affidavit of Mr F Sieger, filed 14 November 2019; and
iv)Affidavit and Response of the mother, Ms Sieger, sworn 1 November 2019 and amended 14 November 2019.
c)Written submissions by both parties’ Counsel.
The mother and father were cross-examined.

Short Case Outline

The father was born in 1979, the mother in 1981, they met in 2008 and commenced a relationship in 2008 in France.
X was born in 2011.
In October 2016 the parents separate.
On 17 October 2016, the mother filed a criminal complaint against the father for a sexual act involving the child. All disclosures, in relation to these allegations, had been made to the maternal grandmother and not the mother.
In December 2016, this complaint is dismissed.
In November 2016, the father commences spending time with the child for one day each second weekend.
On 22 December 2016, the mother commences proceedings in the French Family Court.
On 12 January 2017, the child discloses to her psychiatrist, Ms J, that her father told her to put a spoon in her vagina that the paternal grandmother wiped up the blood with a blue and red towel and took her to a doctor.
The mother makes a second criminal complaint against the father to police in relation to these disclosures and in March 2017, this complaint is dismissed.
In May 2017, a hearing takes place in the French Family Court where the mother seeks joint parental authority, normal place of residence be the mother’s, visitation and dwelling rights for the father in a neutral place and child support.
In his response the father agreed to joint parental authority, the child’s normal place of residence to be the mother’s, he sought extended visitation rights and agreed to pay 100 Euro per month in child support.
On 22 June 2017, there is a determination by the French Family Court. A psychologist is appointed to carry out a social investigation, the parents to have joint parental authority, the normal place of residence be the mother’s, usual visitation rights for the father and the father pay 100 Euro a month in child support.
On 3 February 2018, the social report is filed recommending the Orders of 22 June 2017 remain. In the report is it is recorded that the child said she had lied to the maternal grandmother and had said:
I lied and that’s the truth.
There is a third criminal complaint made by the mother in relation to the child namely that that the paternal grandmother had hit the child on her knees causing bruising and some unspecified allegations of further sexual abuse of the child by the father.
On 9 October 2018, psychologist, Ms K, prepares a report raising concerns of psychological abuse of the child due to the parent’s acrimonious relationship and behaviours and recommending that the child be isolated from the psychological influence of her parents.
On 19 November 2018 the mother did not attend mediation with the father.
The mother says the Judge ordered the parents to mediate and if they failed to do so, the child would be placed with social services and the father confirms this occurred in the Judge’s chambers and in the presence of the child and that the child was distressed.
28 December 2018 is the last time the father saw the child.
On 31 December 2018, the child is removed from France and brought to Australia by the mother and the maternal grandparents follow her or are with her at the time she leaves France.
The mother and grandparents came to Australia without notifying the father or the Court and have sold their properties in France.
On 11 January 2019, the City H Court of Appeal Juvenile Division ordered the child be prohibited from leaving France but she had left 12 days previously.
On 7 February 2019, a child protection hearing at the City H Court of Appeal, orders the child to be placed in the care of social services with the father to have right of visitation and accommodation with rights of the mother to be reserved.
On 22 February 2019, the City H Court of Appeal ordered the father have exclusive parental authority and fixes the child’s habitual residence at the home of the father.
The father is summoned to a criminal investigation into the child’s international abduction and he becomes a plaintiff in the hearing on 5 April 2019. The father seeks by application on 14 November 2019, that the child live between her parents, that he does not want the mother arrested when she returns to France and the parents have joint custody.

Evidence

The return of the child to France is contested by the mother on the following basis.
The respondent mother asserts the facts will establish an exception to the regulations for the return of the child, under the Family Law (Child Abduction Convention) Regulations 1986 (Cth), which exception is provided for under section 111B of the Family Law Act 1975 (Cth) in that to return the child would expose her to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation being a defence to a return under regulation 16(3)(b) of the Convention.
The respondent does not challenge the applicability of the Abduction Convention and there is no dispute that section 16(1A) of the Family Law (Child Abduction Convention) Regulations 1986, subregulation (1) is satisfied and that the child’s removal, or retention in, Australia was wrongful as:
(a) the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; namely France and
(c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d) the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child’s removal or retention, the person, institution or other body was:.
(i) actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
All the prerequisites to conclude that the removal of the child and retention of the child was unlawful have been met and the mother concedes same.
The current situation of the father in France is that he has an employment contract with L Company, which commenced on 5 November 2019 for an indefinite period of time. He is a qualified worker for maintenance of buildings and a qualified administrative employee.
He has rented an apartment at M Street, N Town, a one-bedroom apartment that only he lives at. The lease commenced on 15 January 2020 for the duration of a year. The father has no criminal convictions and the two charges brought against him arising from the mother’s complaints have been dismissed.
The current situation of the mother in Australia is that she lives with her parents in a town in the southern part of New South Wales called D Town.
The Convention is a system of bilateral agreements which require countries to return children to habitual residence should the threshold requirements be met. Properly with matters concerning children there is a defence to a child returning to their place of habitual residence and these defences are not to meet. The defence pleaded by the mother is that to return the child to France is a grave risk of harm to the child, physically and/or psychological, and such return would otherwise place the child in an intolerable situation.
The evidence to support the mother’s submission of a grave risk of harm to the child in her returning to France is contained in her Affidavit, the annexures to her Affidavit and her parent’s Affidavits. There is no objective evidence per se of this grave risk of harm other than this material and what the mother submits I should take from the Court judgments, reports and police records of the proceedings, complaints and allegations that have been dealt with in France as referred to in the chronology.
The report of Ms K, a psychologist appointed by the French Courts who raised concerns about the psychological abuse of the child, said of the mother:
That her emotional state proved it impossible for the mother to give weight to a truth different from that to which she clings and she was struggling to get off her personal feelings and her needs and to perceive and take into account that of others.
The grave risk of harm defence that the mother raises is one under Regulation 16(3) which states:
A Court may refuse to make an order under subregulation (1) or (2) if the person opposing return establishes that, (b), there is a grave risk that the return of the child, under the Convention, would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
It is clear, well understood and settled law, as long ago as in DP v Commonwealth Central Authority[1], that a determination under the Convention was not a best interest test but a grave risk defence. His Honour Gleeson J, at 401, said as follows:
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.
[1]DP v Commonwealth Central Authority [2001] HCA 39.
The mother asserts the exposure to harm falls into the following categories:
a)The alleged sexual assault on the child and possible future risk of sexual abuse/assault of the child by the father;
b)Physical abuse by the grandmother of the child;
c)The alleged family violence of the father to the mother, witnessed by the child and violence of the paternal grandmother and members of her family to the mother and her family witnessed by the child;
d)The lack of police intervention for the protection of the child;
e)Exposure of the child by the father to inappropriate written material;
f)The father’s drug-taking; and
g)The circumstances that will occur upon the child’s return to France namely the mother asserts the child will be placed in foster care and the mother arrested and/or placed in her father’s care.
The risk to the child must be analysed separately from the risk to the mother or the mother or the father. Support for that ratio is in the decision of Harris & Harris.[2]
[2]Harris & Harris (2010) FamCAFC 221 at 144.
I must now carefully analyse the mother’s separate areas of grave risk of harm the child upon her return to France.
The first question for me is what is the mother’s evidence of a possible risk of sexual harm in the future to the child from the father?
Going to the mother’s Affidavit of 1 November, the mother’s allegations of the child’s risk of sexual abuse from the father commenced at paragraph 30 of her Affidavit. The evidence is based upon what the maternal grandmother told the mother the child said to her which is confirmed in the grandmother’s Affidavit:
On 17 October 2016, my mother, [Ms E Sieger], called me. [X] was with her. My mother said words to the effect, “[X] just told me that [the father] had put chocolate on his penis, tasted it, said it’s good and asked [X] to put Smarties on his penis. [X] then said his penis was stinking and he pissed on his feet. He took her dummy, put it on his penis, full of chocolate, licked it and said it was too delicious.” She then said that dad said not to tell mum.
That complaint was made to police and was dismissed after an investigation. Despite this the mother says:
I believed my daughter. I still do.
The second sexual abuse allegation commences at paragraph 47:
[X] was seeing a [Ms J], psychologist. She made a disclosure about her father’s behaviour. In particular, that he asked [X], “Come. We are going to do something in the toilet.” [X] said [the father] had told her to drop her trousers and put a spoon in her vagina. She described bleeding and pain and her grandmother, [Ms G], coming to the toilet and scolding [the father]. [X] said [Ms G] wiped up the blood with a blue and purple towel and took her to the doctor.
The report of Ms J is marked at exhibit M5 in the mother’s Affidavit. This report says as follows:
I wish to report the situation a concern involving the child, [X]. The child is being seen for psychotherapy support at the request of her mother since 12 November 2016 for complaints of refusing to go and sleep at her father’s house for sleeping problems, weekly care. The matters of concern seem to have taken place, according to [X], on the weekend of 3 and 4 December at the home of her grandmother, [Ms G]. This is how [X] described the facts to me in a consultation on 12 January.
I note in passing these disclosures are reported to Ms J five weeks after the event:
Daddy called her and said, “Come on, we’re going to do something in the toilet.” He was next to the toilet and asked her to pull down her trousers and to stroke herself with a spoon that he placed in her hand. She said no but he caught her by the arm and told her to put the spoon in her zezette – childish word for vulva – then to stroke herself.
It hurt, then it bled, the blood ran out her zezette down her leg. It was her grandmother, [Ms G], who wiped up the blood with a blue and purple towel with little red spots on it and she scolded daddy. There was also blood on her trousers so she got changed. She went to a doctor, a female doctor, in [Mr G’s] ([X’s] paternal grandfather) … car. There was her parental grandmother, [Ms G], and her aunt [Ms O] with her. The doctor examined her. Grandpa waited outside. Daddy watched the football with [Ms P] after this.
I wish to add that [X] does not want to go and sleep at her father’s place because she is scared but she is willing to see him if her mother is there.
The mother alleges that, “the child had impact trauma and bruising in her vulva area but after an investigation the police took no action against [the father]”.
This disclosure was not reported by Ms J in the first-hand, that is, what did the child say, but was reported in the words of Ms J. It was allegedly reported by a child five to six weeks after the event in circumstances where the child was taken to a doctor immediately after the event by the alleged abusers and examined. This seems an inconceivable thing for a parent who has just sexually abused a child to do.
The child has made no specific disclosures of this nature to her mother, only third parties.
I accept that the child was examined by a doctor some weeks after the event but the child made disclosures five weeks after the event and the mother’s claim that the child had impact trauma and bruising, was not taken to the authorities by her at all at the time the mother allegedly observed these injuries on her child. Further no such observation was made by the doctor who examined the child at the very time.
Secondly, this little girl has said, at page 92 of the translated police investigation documents, that she lied about the complaints and had been playing with a girl in her class who recounted some sexualised comments.

The two allegations the mother raises of sexual abuse of her child, at the hands of the father, is not accepted by me and as such I do not find there is a grave risk of this child being sexually abused by her father in the future if the child is returned to France and this finding is supported by the actions of authorities in France both at the police level and the court level and those who have investigated both complaints and dismissed them.
Ms K gives the most cogent explanation of this behaviour when she came to the conclusion that the child is a victim of psychological abuse due to the parental conflict. It is clear that this was a correct position she took and could be the, or part of the basis for the child’s alleged disclosures.
The matters have been properly investigated by competent police authorities, competent psychologists, no disclosure was made to the mother directly, the first series of disclosures was made to the maternal grandmother who has a clear negative view of the father, as is apparent from her Affidavit. The second complaint was made five/six weeks after the event to a psychologist and was not in the child’s words.
I accept not all the documents from the French proceedings are before this Court in my determination of a grave risk of harm. There is no appeal judgment, some referrals to the medical/legal unit and the juvenile squad, which may have been important in this matter are not before me. My obligation is to make a decision based on the evidence before me and on the evidence filed by the mother I do not see a risk of sexual abuse has been made out and thus this allegation does not support a finding of a grave risk of harm.
Looking at the chronology and from a reading of the mother’s Affidavit, it is clear she was very unhappy with the interim outcome of the Family Court giving the father unsupervised time after his time had been supervised following the mother’s allegation of the paternal grandmother causing bruising to the child and very upset with the decision by police not to prosecute the father on two occasions or the paternal grandmother for abuse of the child.
The mother was extremely unhappy with the analysis of Ms K. The mother has said she did not feel she was believed, that she did not think her daughter was being believed and that she believes her daughter.
It is clear the French authorities took these complaints seriously, carried out a proper judicial investigation, both as to the sexual abuse complaints and the child’s behaviour, a physical examination was carried out on the child, and statements were taken. On these facts I could not make a finding that the French authorities are unable or unwilling to protect the child as the mother alleges.
As their Honours said in Murray v Director of Family Services ACT[3]:
It would be presumptuous and offensive in the extreme, for a Court in this country to conclude that the wife and children are not capable of being protected by the New Zealand Courts or that relevant New Zealand authorities would not enforce protection orders which are made by the Courts.
[3]Murray v Director of Family Service ACT (1993) 116 FLR 164.
The mother makes a third complaint of sexual abuse at paragraph 58 of her Affidavit as follows. On 29 May 2017 the after school director, at the pre-school she attends, wanted to see her. The child had made the following disclosures: that her parental grandmother, had she would cut out her tongue, that her grandmother put clothes all over her and that she could not breathe, that she said she would:
Put me in a dungeon. I was crying. Daddy came and said I have to listen.
These allegations have little relevance to alleged risk of sexual abuse rather the mother’s allegation that the child is at risk of physical harm from her paternal grandmother an issue which has been investigated by authorities and in the court. Given that the allegations of the grandmother bruising the child’s legs led to the father spending supervised time with the child until the full psychological assessment was made available and the interim hearing determined there was no risk of physical harm to the child from the paternal family the mother cannot properly submit the French authorities are unable to protect the child they clearly are. Again this is a decision the mother did not accept.
The mother went on to say that the child had made several disclosures at school about her father touching her in a sexual way. There was no specifics with these allegations and I will have no regard to this evidence of the mother.
Further, the mother said the child told staff at the hospital that her father touched her breast. Made her lie down on him and he moved her right and left and he said to her:
It is a sign of friendship. I will explain to you at the age of puberty.
The mother said [X] did not know what “puberty” meant.
No evidence was tendered by the mother of independent nature, a report from hospital, a note or any other documentary evidence which one might have thought would have been available given the mother said the child made these disclosures at a hospital and at her school, to support these vague allegations and I cannot accept this evidence as being cogent.
There needs to be clear and compelling evidence provided by the mother to establish this defence as is opined in the decision of Bega & The Secretary Attorney-General’s Department Commonwealth Central Authority[4] as follows:
66. To satisfy reg 16(3)(b)’s requirements, the Court requires “some clear and compelling evidence”. To this end, the Court in DP[5] emphasised that:
… It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of grave risk to the child of exposure to physical or psychological harm on return.
[4]Secretary, Attorney-General’s Department & Bega [2017] FamCAFC 183 at 66.
[5] DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401.
The psychological harm to the child on return is the continuation of the parent’s dispute and the non-acceptance by the mother of decisions that have been made by the French authorities after their investigation and decisions by competent courts. These concerns do not fall into the category of grave risk of harm on the evidence filed.
I accept the position in Bega[6] as followed by her Honour Justice Carew where in the matter before her Honour the mother had asserted there was a risk of criminal proceedings being brought against her if she returned to the Netherlands and that the children would go into the care of their father which she asserted of itself constituted a grave risk of harm. As her Honour opined and found the authorities in the Netherlands had the capacity and willingness to make appropriate arrangements for the protection of the children and so too do I find in relation to the capacity of the French authorities to make appropriate arrangements for and act to protect the child.
[6] Above, note 4.
The second grave risk of harm is the alleged family violence against the mother and members of her family and the lack of police involvement for her protection from the paternal family and father.
The mother says she has been subjected to verbal abuse, physical aggression, family violence and denigration by the father and his family, threats from the father and his friends and physical violence from the paternal grandmother to the child.
The mother has taken certain allegations to the police in France and has made complaints. The mother has engaged with the French criminal proceedings and made several complaints to the police, commencing at City H, had solicitors in proceedings, had two substantial reports dealing with her allegations and the larger family dynamics prepared. But nowhere in those reports does the mother tell the police, or any person in authority, about the father’s alleged physical violence against her this allegation is only in her Affidavit in these proceedings.
The mother said to the police in her statement on 1 March 2017 found at page 28 of her statement in M-8 of the mother’s annexures – that the father had never been physically violent towards her or the child.
The mother says, at paragraph 14 of her Affidavit, the father said to her in February 2012:
I will take our daughter and no one will be able to stop me.
He took no such action, however, the mother did. That his mother rang her the next day and said:
If you leave [the father], we will take [X] away from you and you will never see her again.
The father’s family took no such action only the mother and her family took such action.
The mother made a statement to police on 10 February 2012 as found at M1 of her annexures that she was separating from her husband that the reality is she did not and she maintained her relationship with him.
The mother says at paragraph 26 of her Affidavit:
He would regularly abuse me and become physically abusive. He would do it with a cushion so as to leave no marks. He told me if I told the police he would do worse to [X].
I do not accept this evidence. The mother has made many reports to many people in authority post-separation and that was her opportunity to make these concerning allegations and she did not.
It is clear this little girl has been in the middle of a nasty dispute between her parents. The mother says at paragraph 52 of her Affidavit that on March 2017, she, her parents, the father and his mother had an altercation at the school. The mother has not tendered any police statements in relation to that incident. The mother does not attach or annex a copy of the police statement of herself or her mother of this particular incident and I am unable to verify what she told the police on that occasion and without that objective evidence I do not accept that the mother says as is it is disputed by the father.
When one reads the reports of allegations made by the mother in her report to police on 1 March 2017 when asked about violence in the relationship she says:
He hasn’t been violent directly with me.
This contemporaneous statement made to authorities in France on 1 March 2017 is inconsistent with her Affidavit evidence.
At paragraph 63 of her Affidavit the mother describes an appalling incident at the father’s house when she went to collect the child on 9 June 2017.
The mother says the father’s sister gestured her finger across her throat, like when you cut someone’s throat, and said:
I’m going to kill you one day.
The paternal grandfather pushed her hard and she screamed. The father’s brother, Mr Q pushed the maternal grandmother. She was dragged her about 40 metres, picked up and thrown to the ground, her hair was pulled out, the father lifted her off the ground and X was present at this altercation.
The mother annexes the police report and a medical report at M7 and M8 of this appalling incident as described by the mother. Yet there is no severe physical bruising to the mother noted on the medical certificate. What is noted is a laceration to the palm of her left hand, a laceration on the right knee, a laceration on the left instep and, no other wounds. I do not accept these minimal injuries would have occurred had the mother been subjected to the behaviour she described. I accept there was a nasty altercation and all the adults involved should be ashamed given they behaved in this fashion in front of the child. The mother said that due to this assault she could not work for two months but the medical certificate of the assault does not describe why she could not work or that she was in it physical pain or sustained physical injury.
The mother spoke to her doctor about this assault on 21 June 2017 having allegedly been assaulted on 9 June 2017 and it was noted at that consultation by her doctor she was able to walk and she had some lacerations. One may wonder why her symptoms became worse from when she initially said she was assaulted on 9 June 2017 to when she saw her doctor on 21 June 2017. I do not accept the mother’s version of events that she was so badly assaulted on this occasion she could not work for two weeks or that she was assaulted to the level she asserts. I accept the mother was physically injured and that this is unacceptable.
The mother is most unhappy that the police would not reopen the investigations, despite her complaints, and that on 19 November 2017 Orders were made that the child was to live with her but spend time unsupervised with her father. I do not accept the mother’s allegation in her Affidavit that she was scared of making complaints about the father’s treatment of her during the relationship.
I do not accept her allegation she did not speak to Ms K about the father’s violent behaviour towards her because her daughter was present. The reality is that there were periods of time in the child not was not present with the mother and Ms K and she had ample opportunity to tell this expert what she now asks me to accept she experienced at the hands of the father and his family during the relationship.
At the first police interview, on 17 October 2016, the child was not present and in some of her interviews with Ms K the child was not present because they were conducted at lunchtime. The child was not present when the mother was interviewed by police on any occasion and she had ample opportunity to make her complaints at those times to the appropriate authorities.
Contrary to what the mother asks I accept the police did investigate the allegations made by the mother and they found further action was not warranted and the mother is simply unhappy with their decision.
The two social science reports prepared in relation to this family are comprehensive and thorough.
The first called a social survey was conducted by Ms R which included this lady visiting the homes of the parents. The child was interviewed and her relationships with her parents were examined. There were other interviews conducted namely at the child’s school, with her doctor, her psychologist and the paternal and maternal grandmothers. It is a comprehensive report and it analyses the family dynamics and concludes correctly this child is in the middle of a highly conflicted parental separation.
Ms K’s psychologist report is a comprehensive document. The parties attended over a period of months with Ms K at lunchtime for a period of one hour each two weeks. This is a comprehensive report analysing the family dynamics and the concerns raised by the mother.
The French authorities have taken this matter seriously. The police have investigated the mother’s complaints and taken statements from her and all those involved in her allegations. There has been two comprehensive social reports in relation to the family dynamics where the maternal and paternal grandmothers were also interviewed and the French authorities have acted appropriately and accordingly to address the concerns raised by the mother.
The Courts in France are seized of this matter, they have taken significant steps to investigate them, and the matter was still ongoing in France when the mother removed the child from that country.
The complaints about the father all occur in France and the mother has been well able to access the authorities to assist her to resolve these issues.
There is an underlying assumption that a cosignatory in a Hague Convention matter has the capacity to adequately protect a child. This was explained in Gsponer v The Director General Department of Community Services[7] and it has been echoed by the High Court[8]:
The regulation, the objects of the Convention, to settle issues of jurisdiction between the contracting States by favouring the forum which has been the habitual residence of the child. The underlying premise is that once the forum is located in this way, each contracting State has faith in the domestic law of the other contracting States to deal in a proper fashion with matters relating to the custody of children under the age of 16.
[7]Gsponer v Director General, Department of Community Services (Victoria) [1988] 94 FLR 164.
[8]De L v Director General, NSW Department of Community Services & Anor (1996) 187 CLR 640 at 658.
There is an assumption that the best place for a child’s determination of where they are to live is their habitual place of residence prior to the wrongful removal and given I have found the authorities in France have taken all steps that are required of any jurisdiction to investigate these issues it is wrong for the mother to say that the French Courts and authorities have not protected the child.
As I have previously noted and specifically at paragraphs 82 and 83 of the mother’s Affidavit she reports that on 9 April 2018 the mother saw 15 bruises on the child sustained by her after a weekend with the father alleged to have been caused by the paternal grandmother. The mother reported these concerns to the court. M17 is the decision of the Court after this reporting and the decision was to limit the child’s time to supervised time. Only after the more in-depth investigation, involving the two social survey reports were received and a further hearing ensued was the father’s time again unsupervised.
Similarly the police investigated these allegations and on 19 July 2018 determined not take any action and no criminal charges laid against the paternal grandmother, a decision the mother was unhappy with.
Thus, on the mother’s own evidence, the Courts and the authorities have acted when the mother raised allegations. What is at the heart of her complaint is that she does not agree with is the outcome of these investigations and steps taken after investigation .
There is no doubt that, in the relationship, the father behaved in an aggressive manner at times. He threw his phone, threw his phone at a table and acted aggressively at other times. When the mother reported this behaviour to the police in her statement of 1 March 2017 she alleged he is using drugs, smoking a joint and said this was not the first time he had done this. Importantly she says:
He was violent in relation to himself. He would break his telephone in a rage, he would be listless and not answer my questions.
Did he do other extravagant things?
No. Apart from breaking his telephone I would go to bed early with [X]. She often slept with me.
That is not the description that the mother now seeks to provide to this Court of a father and husband who perpetrated significant violence against her in front of their daughter.
The father’s evidence in relation to this behaviour in oral cross-examination was not accepting of the impact of such behaviour on his wife and child and his insight into the consequence of such behaviour was poor and limited. However, the mother has the burden of proof to establish the defence and her own evidence before me is inconsistent with that given to the police in March 2017 as set out in paragraph 104.
However, the mother must accept that she has never told police prior to separation or around the time of separation that the father was a violent to her or the child and the evidence is to the contrary.
I have no doubt the father has behaved poorly at times, that he has smashed his phone and that this is inappropriate behaviour by an adult. This is the height the mother’s evidence reached in relation to the father’s violent behaviour in the past from a reading of her Affidavit, her oral cross-examination and the documents tendered by the authority and at times herself. This behaviour does not constitute a grave risk of harm to a child upon her return to France
On the evidence I do not find the child is at risk of grave harm from any conduct of her father or the paternal family in her returning to France due to the inability of the authorities to protect the child or act to protect her.

The inability of the mother to accept decisions of the French authorities does not ground a grave risk of harm to her child in being returned to France.
The difficulty for the mother is succinctly set out by her at paragraph 99 of her Affidavit where she says of Ms K’s report:
The report by [Ms K] refers to [X] being in immediate danger due to the psychological impact of the proceedings on her and the violence she has witnessed.
However, the report seemed to side with [the father], making him out to be the victim and a vulnerable person. I felt like I was being viewed negatively because of the past allegations made, which were unable to be substantiated, even though [X] made disclosures to other people. I felt I was not being believed and, more importantly, [X] was not being believed.
I do not accept the mother’s allegations of risk to the child from exposure to inappropriate materials and the father’s drug-taking. It is not a proper basis for a defence. It would be a relevant matter in a parenting matter but does not constitute a grave risk of harm.
The father’s apartment is appropriate and proper for the child to live in and there is no grave risk of harm in the child returning to France and spending time with her father in the apartment he has now leased as was submitted by the mother.
The grandmother’s and grandfather’s Affidavits are of no assistance to me in this matter at all given their clear bias against the father and naturally wishing to support their daughter’s case.
The mother’s evidence is a retrying of a parenting matter which has already been determined by the French authorities and that is not the test I am tasked to apply.
The mother’s final defence is that upon the child’s return to France she is at grave risk of harm from the circumstances that will apply upon her return, and that she, the child will be placed in an intolerable situation.
The mother alleges she cannot and would not mediate with the father as she was afraid of him due to his violence to her and that one judge had made an order that the child was to be placed in foster care due to the parent’s inability to mediate. Thus she says the consequences of staying in France was X being removed from her care and put into the care of the French care authorities, strangers to the child an intolerable situation and a grave risk of harm to the child and therefore, she fled.
What are the circumstances of the child’s return to France that support the mother’s assertion of a grave risk of harm?
The mother’s alleged incapacity to mediate with the father cannot be a grave risk of harm to the child. The report the mother relies upon to support this allegation is brief in the extreme. It merely says she is not a clinical state to attend this type of interview with her ex-partner. There is no basis for how that diagnosis has been arrived at, the facts recounted to the author of the report to support their diagnosis, their expert training and experience to arrive at such a diagnosis, whether there is a way by which the mother can retrieve her functioning and the length of time any retrieval will take. I could not rely upon this report to make a finding that the mother cannot mediate with the father.
In a mediation she will be protected, with her lawyer in a formal setting and this factor coupled with her statement to police in March 2017 that he was only violent to himself, for example, throwing his phone and not in any other fashion towards her or the child it is now difficult for me to accept she has such a fear of him that she cannot mediate.
The final argument of the mother is that she will be arrested and the child placed in foster care upon her return to France and this is a grave risk of harm to her child.
I accept the submission by the Central Authority that there is only a remote possibility of this child being removed from her mother or her mother being incarcerated upon her return to France for the following.
The father seeks joint parental authority for the child , that the child’s residence be shared between he and the mother and school holidays shared. That is his position. His position was sent to the Family Court Judge of City H in writing and a similar document in writing was sent to the tribunal at City H on 14 November 2019, both letters being sent on the same date. He said in that correspondence he does not wish for the mother to be arrested and he said in cross-examination that was the last thing he wanted to happen.
There is no clear evidence that there are criminal proceedings on foot in relation to the mother’s arrest, there is no notice of arrest, there is no warrant for arrest or notice she is to be arrested. Merely, the proper commencement of the investigation of facts surrounding the mother’s international abduction of this child. The father has taken all appropriate steps to ensure this child is not removed from her mother’s care abruptly upon her return to France.
Most importantly, this situation is of the mother’s own making.
Orders were made were made on 22 June 2017 that the parties exercise joint parental authority. Part of that authority is that parents have to agree on overseas travel. The mother now uses the argument, that there is a prospect, perhaps, of a criminal charge and arrest of her and the child being removed from her care to foster care, to establish a grave risk of harm upon she and the child’s return to France when she is the author of this possibility.
In the House of Lords, Butler-Sloss LJ noted[9]:
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. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent.
[9]C v C (Minor: Abduction: Rights of custody abroad) [1989] 2 All ER 465 at 471.
There is no legal impediment to the mother’s return to France, she does not indicate she could not return. The mother chose to sell her apartment in France, she made a calculated and planned decision and knew exactly what she was doing when she made these momentous decisions. The mother was not fleeing in fear of her life or that of her child she just simply did not like the decision the French Courts had made nor the decisions the police made not to commence criminal charges against the father and the paternal grandmother.
The mother has created this situation where she wrongfully removed a child, while family law proceedings in a competent signatory jurisdiction to the Hague Convention were ongoing and in circumstances where there was an order for joint parental authority and that the father had rights of time with the child. To not order the return of this child would be to flout the intention and underpinning of the Convention and make a mockery of case law surrounding decisions where children have not been returned because of a grave risk of harm.
Justice Watts determined there was a grave risk of harm to a child returning to Croatia in the matter of Department of Family and Community Services v Viduka[10]. This matter went on appeal and the Full Court supported his Honour’s decision.
[10]Department of Family and Community Services & Viduka [2015] FamCA 640.
In that matter his Honour rejected the mother’s arguments of physical violence, threats of harm, that she was at risk of harm from the father’s behaviour and the children were also at risk.
The mother in that case, as part of her defence, referred to the history of family violence she says was perpetrated against her by the father. His Honour did not accept what the mother said about the father’s aggression. He accepted, as I do in this case, that the parents had a high conflict relationship and he did not accept her evidence and did not find her a witness of truth.
He found that the mother’s allegations were exaggerated and there was no grave risk to the children that if they were returned to the father, he would abuse them. His Honour had the benefit of a Family Report in his matter. I too have had the benefit of two Family Reports prepared by the French authorities in which they clearly set out that it is the parents’ high conflict relationship which is the risk of harm to the child, not the conduct of either one of the parents by way of physical or sexual or other abuse.
His Honour referred to the decision of Gsponer v Director-General Department of Community Services[11] at paragraph 98 of his judgment which reads as follows:
In our view the three categories are to be read separately and, to that extent, we agree with the submissions of senior counsel for the wife. However, it needs to be emphasised that there must be a “grave risk” of the occurrence of one or more of such events. Further, it is impossible to ignore the existence of the words “or otherwise.” The consequence of those words is to link the quality which each of the first two categories must have to the emphatic words which describe the third category (“an intolerable situation”). That is, it is not the grave risk of any physical or psychological harm which would satisfy the first two aspects of this subparagraph. The physical or psychological harm in question must be of a substantial or weighty kind.
[11] Above, note 7.
The grave risk of harm his Honour found in his decision was that Marco, aged 14, had expressed suicidal ideation if he was forced to return to Croatia and importantly the family consultant could not exclude Marco’s risk of self-harm in that eventuality. Marco had expressed very strong and adamant feelings to the family consultant about self-harm if a return order was made. When the family consultant attempted to talk to him about what he had said, he closed off, and would not talk about it. The family consultant could not exclude what Marco might do if he was placed in a situation that he found intolerable. Marco was intellectually capable at his age of devising and carrying out a plan to harm himself. His enmeshment with his mother’s views and his emotional immaturity meant that there is an unacceptable risk that he might do something dramatic without any proper thought.
His Honour found that, given the severity of the possible outcome of Marco attempting to harm himself that this was an unacceptable risk and could properly be described as a grave risk of harm. His Honour determined that the conditions of regulation’s 16(3)(b) were satisfied on the mother’s defence was made out.
There is no such grave risk of harm here to this child as His Honour found in his decision.
The risk of sexual abuse to this child has been investigated twice by police and no action has been taken. The alleged physical harm to this child from her grandmother has been investigated and no further action is against the grandmother were taken. Importantly the French Court took protective action on this allegation of physical risk and ordered the fathers’ time be supervised until a family report was prepared and a further hearing conducted. The mother did not allege that the father was physically abusive to her or the child in her interview with police on 1 March 2017 and these allegations only surfaced once she had determined to leave France and filed her Affidavit in these proceedings.
The mother clearly planned her move from France and effectively sought to put to the court a fait de complete having vacated her job, sold her property and her parents joining in with her and selling their property in France thus submitting she has nowhere to live in France upon her return or any income to support herself or child.
The psychological reports, prepared in-depth by the French authorities, in relation to the family law proceedings, indicate the risk of psychological harm is her parents’ high level of conflict and acrimonious relationship.
The mother has created the circumstances where there is a dim prospect of her being arrested and the child removed from her care upon her return to France and the father has taken all actions he can to ensure this does not occur, said orally he did not want this occur, has written to the Family Court and the criminal courts saying he does not want the mother arrested and orders have been made for he and the mother to share the care of the child and share parental responsibility.
I do not see, on this evidence, that there is a grave risk of harm, psychologically or physically, to the child or any other circumstance upon her return that would warrant me not enforcing the clear intent of the regulations which is that a child’s care and welfare and determination of where she should live is to be determined in the child’s place of habitual residence prior to the wrongful removal. Given that the mother has conceded she wrongfully removed the child from France, the child must be returned to France forthwith and as soon as is possible and I will so order.
I do not find the defence of grave risk of harm has been made out. The mother’s application contained in her response is dismissed and the child is to be returned to France as soon as is possible.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 20 February 2020.

Associate:

Date: 20 February 2020

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established