Department of Communities and Justice & Ruiz - [2021] FamCA 98

FAMILY COURT OF AUSTRALIA
Department of Communities and Justice & Ruiz [2021] FamCA 98

File number(s): SYC6556 of 2020

Judgment of: WILLIAMS J

Date of judgment: 11 March 2021

Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from Ireland – Jurisdictional facts conceded by the mother – Consideration of regulatory exceptions (reg. 16(3)(b) and (d)) – Held return of the child to Ireland would not expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation – The return of the child to Ireland would not offend the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms – Return order made subject to conditions – Family Law Act 1975 (Cth) s 111B – Family Law (Child Abduction Convention) Regulations 1986 – reg 16 – Return Order.

Legislation:
Family Law Act 1975 (Cth) ss 90G, 111B

Family Law (Child Abduction Convention) Regulations 1986, regs 15(2), 16, 25A, 26, 29(5)

Cases cited:
C v G [2020] IECA 233

De L v Director General, NSW Department of Community Services (1996) 187 CLR 640; [1996] HCA 5

Director-General, Department of Families, Youth and Community Care v Bennett [2000] FamCA 253

DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 180 ALR 402

Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996)

Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001; [1988] FamCA 21

HZ & State Central Authority [2006] FamCA 466

McCall & McCall; State Central Authority (Applicant); Attorney General (Intervener) (1995) FLC 92-551

Re C (Abduction: Grave Risk of Physical or Psychological Harm [1999] 2 FLR 478

Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145

State Central Authority & Abdalle [2012] FamCA 1151

State Central Authority & Sigouris [2007] FamCA 250

Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65

Number of paragraphs: 185

Date of hearing: 19 & 20 January 2021

Place: Melbourne

Counsel for the Applicant: Ms Hartstein

Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice

Counsel for the Respondent: Ms Goodchild

Solicitor for the Respondent: Hague Convention Legal Practice

Counsel for the Independent Children's Lawyer: Mr Moore

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC6556 of 2020

BETWEEN:
DEPARTMENT OF COMMUNITIES AND JUSTICE

Applicant

AND:
MS RUIZ
Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

11 MARCH 2021

THE COURT ORDERS THAT:
1.Subject to compliance with paragraph 5 of these orders, the child, X born … 2016 (“the child”) be returned to Ireland pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
2.The child be returned within 14 days of the date of compliance by the father with paragraph 5 of these orders and the respondent notify the applicant of her proposed date of departure as soon as practicable upon making such arrangements and provide a copy of the tickets to the father and to the Australian Central Authority.
3.The respondent be at liberty to accompany the child to Ireland.
4.The Australian Central Authority notify the Irish Central Authority of the mother’s date of departure.
5.The return of the child to Ireland is conditional upon the requesting parent, Mr B of D Street, F Town, Ireland doing all acts and things necessary to effect the following and the following being effected:
(a)paying for economy flights for the respondent mother and the child from Kingsford Smith Airport, Sydney to FF City, Ireland, or such other Irish city as the mother may elect, with such payment to be made by the father depositing into an account nominated by the mother’s solicitor all funds required to pay for such airfares;
(b)forthwith withdrawing any complaint he has previously made to the Irish authorities about the removal of the child, and the Father provide written evidence of same to the mother forthwith upon receipt of same;
(c)the father providing a copy of his Australian medical records, in accordance with exhibit ICL 6-9 to his general practitioner within 14 days of this order, and the mother be at liberty to do so in the event the father fails to comply with this order;
(d)in the event the mother applies for a protection/barring order in an Irish Court of competent jurisdiction, within 30 days of these orders, the father consent to an interim order, as sought by the mother;
(e)the father removing himself and any other persons from the home located at D Street, F Town, Ireland and that he do all acts and things to change the locks on the property at his own expense and thereafter provide all keys to a real estate agent nominated by the mother;
(f)the father providing to the mother her Australian passport and the Australian passport of the child.

6.In the event the mother makes an application for a protection order, or parenting orders to a court of competent jurisdiction in Ireland, she be at liberty to provide to that court a copy of the father’s criminal history in Australia in accordance with exhibit ICL-12 in this proceeding and a copy of the father’s Australian medical records, which are exhibit ICL 6-9 in this proceeding.
7.Paragraph 6 of the orders made 18 September 2020 is hereby discharged and the respondent or her nominee authorised in writing is permitted to collect the child’s and the mother’s passport immediately upon receipt of a sealed copy of this order.
8.Pending the child’s departure from Australia for return to Ireland, the respondent continued to be restrained and an injunction issue, restraining her from causing or permitting or suffering the child:
(a)to be removed from the Commonwealth of Australia and in this regard all offices of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b)to apply for any further or other passport or passports for the child;
(c)to be removed from the state of New South Wales;
(d)to reside other than at her present residential address or any other residence, at which the applicant has agreed the said child may reside.

9.Paragraph 8 of these orders remain in force, until a letter from the applicant is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to Ireland AND IT IS REQUESTED that the Australian Federal Police remove the name of the child X born … 2016 from the Airport Watch List upon presentation for boarding the nominated flight to Ireland on the date nominated for the said travel.
10.A sealed copy of these orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
11.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 states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
12.Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
13.Otherwise the Application of the Department of Communities and Justice be and is hereby dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ruiz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION

This is an application by the New South Wales’ Department of Communities and Justice (“the Central Authority”) filed on 17 September 2020 seeking the return to Ireland of the child, X born in 2016, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Ms Ruiz is the mother of the child. The requesting parent, Mr B, who lives in Ireland is X’s father.
The relevant Regulations are made pursuant to s.111B of the Family Law Act 1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal of a child from his/her country of habitual residence. Both Australia and Ireland are signatories to the Convention.
Upon establishment of the pre requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1) and (1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child to his country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 Obligation to make a return order
(1)      If:
(a)an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2)      If:
(a)       an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to sub-regulation (3), make the order.
(3)A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
(a)       the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)       each of the following applies:
(i)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services [1996] HCA 5, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, Counsel for the Central Authority and Counsel for the Independent Children’s Lawyer cross-examined the mother and Counsel for the mother and Counsel for the Independent Children’s Lawyer cross-examined the father. The family consultant was cross-examined by all three Counsel.
The Central Authority asserts that the child has been wrongfully removed from Ireland, in accordance with regulations 16(1) and (1A), on the following basis:
(a)the application was made within one year of the child’s removal from Ireland;
(b)the child is under the age of 16;
(c)the child was habitually resided in Ireland, a Convention country prior to her removal on 26 November 2019;
(d)the requesting parent, the father, has rights of custody in relation to the child, which he was exercising immediately prior to the child’s removal; and
(e)the removal of the child was in breach of the father’s rights of custody.
The mother did not contest the constituent elements of the wrongful removal, as referred to in paragraph 11. She relied on the exceptions to return in regulations 16(3)(b) and 16(3)(d):
(b)there is a grave risk that the return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation; and
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
PRELIMINARY MATTERS
The trial was originally scheduled to commence on 26 November 2020. On that day Counsel for the mother sought an adjournment to obtain further evidence about the father’s mental health. After hearing submissions from all Counsel, an adjournment was granted on the basis that the requesting parent agreed to obtain a letter from his treating doctor, about his mental health. The matter was then adjourned to 19 January 2021.
The hearing was conducted electronically via Microsoft Teams, due to the COVID-19 Pandemic.
An electronic hearing enabled the father to seamlessly participate in the proceedings.
I wish to express my appreciation to all Counsel for the professional and courteous manner in which the proceedings were conducted.
BACKGROUND
In May 2012, the father and the mother met in Sydney and were married later in 2012 in Sydney.
In late December 2012, the mother and father travelled to Ireland to honeymoon. During that time, there was an altercation with the father’s former partner which resulted in both the mother and the father being arrested, although ultimately the mother was not charged.
In January 2013, the parties returned to Australia, and the mother asserted that the father became depressed, aggressive and jealous of her contact with her former partner, Mr G, Y’s father.
In April 2013, the mother attended H Hospital in relation to an injury to her elbow, which she alleged occurred on 20 December 2012, whilst overseas.
In May 2013, the mother asserts that the father attacked her for the first time, shouted at her and hit his head against the wall, prior to head-butting her and yelling at her “it’s all your fault”. He started seeing a psychologist after that incident.
On 4 September 2013, the Acute Care Team from JJ Hospital visited the father at home. The reasons for referral included suicidal ideation, self-harm, self-harm ideation, slamming his head against the wall and concussed himself. The hospital records which are exhibit ICL-8 indicate that he was then provisionally diagnosed with anxiety, agitated depression, low mood and personality vulnerabilities.
On 29 September 2013, the father presented at the Emergency Department of JJ Hospital complaining of a sudden onset the previous evening of feeling more depressed. The records indicate a recent diagnosis of bipolar.
On 13 October 2013, following an incident between the mother and the father, the father was admitted to JJ Hospital as an involuntary patient, however, two days later he became a voluntary patient. He was discharged on 28 October 2013 and continued to receive support from the Acute Community Care team until 22 January 2014.
In late October 2013, on the day the father was discharged from hospital, the mother was having a party to launch her business, and she alleges that the father lay on the grass screaming and shouting, which is denied by the father.
In August 2014, there was an incident between the parents, when each gave conflicting accounts to the police. The mother agreed to travel to hospital to be assessed by the mental health team.
In 2014, the mother alleges that she and the father had an argument whilst the father was holding a glass, which he smashed on the wall. She asserts that she held her hands up to stop him and he had a piece of glass in his hand which cut the tendon on the little finger of her right hand. In her affidavit she refers to telling the doctors that she had cut her hand with scissors.
On 31 October 2014, the mother was admitted to EE Hospital complaining of dizziness and an injury to her finger although she was discharged the same day. She advised the doctor that a week ago she “cut her right hand intentionally with a shard of glass by gripping the shard hard”.
On 13 November 2014, the mother was admitted to EE Hospital for surgery to repair the tendon on her right little finger and was discharged the following day.
The mother asserts that some time prior to May 2015 the father took an overdose of lithium although she was advised by the mental health emergency team that the father need not attend hospital because he had vomited the pills.

In May 2015, the father returned to Ireland and in August 2015 the mother and Y relocated to Ireland. Upon arrival in Ireland, the mother and father purchased a property at D Street, F Town which was registered in the mother’s sole name.
The mother alleges that the father refused to obtain medical treatment for his mental health condition between August 2015 and December 2015.
Thereafter, the parties continued to live in F Town until the mother travelled to Country Q in December 2015 with Y, prior to returning to Ireland in April 2016. In December 2015, the father visited the mother in Country Q.
X was born in 2016.
In February 2017, the mother, Y and X travelled to Sydney, prior to returning to Ireland in July 2017.
In December 2018, the mother and Y travelled to Country Q and Australia, prior to returning to Ireland on 18 January 2019. X remained in Ireland.
On 25 November 2019, the mother left Ireland with Y and X and travelled to Country Q. The father asserts that the mother advised him via text messages that she was going on holidays, prior to the mother telling him on 27 November 2019 that she was not returning to Ireland.
On 17 March 2020, the mother and two children arrived in Australia.
On 13 July 2020, the father signed his application form to request the return of X.
On 17 September 2020, the New South Wales Department of Communities and Justice filed a Form 2 Initiating Application.
The matter was originally listed for trial on 26 November 2020, however at the request of the mother was adjourned until 19 January 2021.
Evidence and Documents Relied Upon by the Parties
The Central Authority relied upon the following documents:
(a)Form 2 Application filed 17 September 2020 and documents attached to that application including;
(b)Affidavit of the father sworn 26 August 2020;
(c)Affidavit of Mr J as to applicable law;
(d)Affidavit of the father sworn 9 November 2020;
(e)Affidavit of Ms K sworn 24 November 2020;
(f)Affidavit of Ms L sworn 3 December 2020 and affidavit of Ms M sworn 4 December 2020 annexing medical reports of Dr P;
(g)documents tendered as exhibits referred to in the index of exhibits.
The respondent relied upon the following documents:
(a)Form 2A Response filed 28 October 2020;
(b)Affidavit of the mother filed 28 October 2020;
(c)Affidavit of the mother filed 12 January 2021;
(d)Affidavit of Mr G (Y’s father) filed 12 January 2021;
(e)Chronology prepared by the Independent Children’s Lawyer;
(f)Documents tendered as exhibits referred to in the index of exhibits.
The Independent Children’s Lawyer relied upon exhibits in accordance with the index of exhibits annexed to these reasons.
Regulation 26 enables the court to direct a family consultant to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate and that such a report may be received in evidence in any proceedings. In this matter a reg 26 report was ordered to address:
(a)what (if any) objections the child has to returning to the Republic of Ireland;
(b)whether any such objection of the child shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(c)whether the child has attained an age and degree of maturity, at which it is appropriate to take account of her views;
(d)assess the relationship between the child and her brother, including the impact on the child of separation of siblings;
(e)the impact of alleged domestic violence on the child
The report dated 16 November 2020 was prepared by family consultant Ms N and is in evidence.
Credibility of Witnesses
The father was cross-examined by both Counsel for the mother and the Independent Children’s Lawyer.
The mother was cross-examined by both Counsel for the Central Authority and Independent Children’s Lawyer.
Neither the father nor the mother were particularly impressive witnesses. Both sought to minimise matters adverse to their case and emphasise matters which they considered supportive of their case.
The father was generally responsive, although at times it was difficult to follow his narrative, for example the timeframe of when he stopped his medication.
On numerous occasions the mother was unable to recall events in the past, even though fairly recent. An example of this was her inability during cross-examination to recall whether she had consulted a psychologist, Dr R, which was referred to in her recently sworn affidavit. She gave multiple contradictory accounts of the circumstances of the cut to her finger. She was consistently unable to recall and could not remember when cross examined by Counsel for the State Central Authority. Examples were her responses to questions about reporting to the police an argument with a boyfriend, an argument with the father in August 2014, after which she agreed to go to JJ hospital to be assessed by the mental health team, her voluntary attendance at the hospital for a mental health assessment and that she did not remember having read that Y told the family consultant that at times she was angry and stressed and that she had no grip.
The mother was assisted by an interpreter during her cross-examination, although she admitted that she was able to speak conversational English and that her capacity to speak English had improved during her time in Australia. The text messages between the parties which are annexed to the affidavit of Ms K sworn 24 November 2020 demonstrate that the mother is obviously able to read English and has a reasonable command of written English.
The family consultant, Ms N was cross examined by all Counsel. She impressed me as a highly competent professional witness.
Regulatory Exceptions to Return
I will now address the exceptions to return raised by the mother, and will firstly address grave risk of harm and intolerable situation.
Grave risk of harm and intolerable situation reg 16(3)(b)
The mother bears the onus of proof in establishing the defences relied upon. The High Court in DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 180 ALR 402 (“DP”) said in regard to grave risk of harm and intolerable situation:
[39] … “Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that enquiry…”
[41] … “On its face reg 16(3) 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, the court cannot avoid making that prediction by repeating that it is not for the courts of the country to 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.
In DP at paragraph [130], his Honour Justice Kirby, in a dissenting judgment stated:
[130]…“Inevitably…the application of the exception provided for in reg 16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law…It should not therefore be surprising that they (the exceptions) have only been invoked successfully in comparatively rare instances”.
Further at paragraph [132], his Honour Justice Kirby considered the language used in reg 16(3)(b) and said:
[132] The adoption of the word “grave” to qualify “risk” plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not “grave”) risk of the kinds of harm contemplated.117 Similarly, the use of the word “otherwise” in reg 16(3)(b)118 indicates that the types of “physical or psychological harm” referred to must also be such as to place the child concerned in an “intolerable situation”.119 Therefore, the language in question, as well as its appearance in a provision enumerating limited exceptions to the general rule, make it clear beyond argument that orders of return will be made to uphold the principal object of the law in circumstances where, were the matter simply a custody dispute (however described), in all likelihood, on the evidence provided, the child's current arrangements would not be altered. Only a circumstance where the party resisting the order can establish, in the context presented by the ordinary rule of return, that that result would expose the child to a grave risk that was “intolerable … extreme and compelling”,120 will invite the application of the exception.
In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 at 1154, the Court of Appeal stated that:
….“There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other in tolerability which may be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence”
In State Central Authority & Sigouris [2007] FamCA 250, Bennett J said at [79]:
[79] In order for the respondent mother to make out the exception under Regulation 16(3)(b) of the Regulations (Article 13(b) of the Convention), it is necessary to establish that the risk of exposure to physical or psychological harm or the children being placed in an intolerable situation in the event of their return to Greece forthwith is not only very real but “grave”.
In Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65, Watts J at [90] made it clear that the regulations are to be interpreted according to Australian legal standards and the fact that in DP the High Court did not give a restrictive meaning to the defence of grave risk that made clear that the words of reg. 16(3)(b) are to be given their natural meaning and not a narrow construction.
The mother’s evidence as to grave risk and intolerable situation
The mother submitted that the facts which support her contention of a grave risk of exposure to physical or psychological harm to the child upon return are:
(a)the serious ongoing coercive and controlling domestic violence perpetrated on the mother and the children by the father;
(b)the loss of the protective relationship, and disruption of the relationship between the child and her big brother Y;
(c)the threat of violence and instability posed by the father’s untreated mental illness;
(d)the fact of the coronavirus pandemic;
(e)threat by the father of criminal proceedings in Ireland against the mother.
The facts which the mother submits support her case with respect to intolerable situation are:
(a)the mother is not a native speaker of English;
(b)the mother has led a very restricted life in Ireland as a result of living in a small rural village, being unable to drive and being subject to the whims of an unstable partner;
(c)the mother has little knowledge of the Irish legal system or the Irish health system;
(d)the mother does not have her Australian passport as it has been stolen by the father;
(e)the mother has nowhere to live except the home that she purchased in F Town where the father is currently living with his girlfriend;
(f)the father’s family had a history of animosity against the mother;
(g)the mother has no immediate right to reside in Ireland and consequently no immediate rights to the benefits of residence such as subsidised medical treatment, which is of particular concern in the current coronavirus pandemic.
I will firstly address the facts which the mother submits support her contention of grave risk.
ALLEGATIONS OF COERCIVE AND CONTROLLING DOMESTICE VIOLENCE
The mother’s evidence as to coercive and controlling domestic violence
The mother asserts that during the eight year marriage the parental relationship was marred by serious ongoing coercive and controlling domestic violence perpetrated by the father. The mother, with the children, left the father on two occasions before fleeing Ireland in November 2019 and deposes that she was worried that the father would eventually strangle her.
A summary of the mother’s relevant evidence in her first affidavit is as follows:
(a)At paragraph 148, the children have both witnessed attacks on the mother by the father, and that they are consequently both fearful of the father;
(b)At paragraphs 21-26, she first witnessed family violence during their honeymoon in Ireland following their marriage in 2012 in Sydney. The family violence involved the father’s former partner, who lived in the property next door. Both she and the father were arrested by the police, although not charged, as she deposes to hitting the father and being very angry with him for putting her in that position;
(c)At paragraph 30, the father first attacked her in May 2013 in her unit, when he head-butted her;
(d)At paragraphs 32 to 38, in October 2013 the father attacked the mother and tried to strangle her and threatened to kill her. The father was hospitalised and began a treatment of lithium for a period of time;
(e)at paragraph 41, in October 2013 the father verbally abused the mother and guests in her home;
(f)at paragraph 42, in November 2013 the father threw a phone at her and smashed a door;
(g)at paragraphs 43 to 44, in 2014 the tendon on the mother’s little finger and her right hand was severed by the father during an argument;
(h)at paragraphs 45 to 49, the mother suffered miscarriages in 2014 and 2015 which she considers were contributed to by the violent and erratic behaviour of the father;
(i)at paragraph 70 to 76, the parties are separated due to the aberrant and aggressive behaviour of the father when the mother and children again went to Country Q and Sydney;
(j)at paragraphs 65 to 67, in December 2015 the father pushed her to the ground and called her names which caused the mother to leave the marriage and stay with her parents in Country Q until April 2016 when the parties reunited;
(k)at paragraph 77 to 87, when the parties reunited and the mother returned to Ireland ,the father engaged in coercive and controlling violence including verbal abuse, physical violence, psychological abuse, the father yelling at the child and daily verbal abuse and insults of the mother;
(l)at paragraphs 102 to 107, in November 2019 the father grabbed the mother and threw her to the ground attempting to strangle her saying to her “you ruined my life. You won’t keep everything. You fucking bitch, I am going to kill you”. It was only when the mother called out to Y that the father released her.
Counsel for the Central Authority put the following allegations about violence to the mother and her responses were:
(a)the incident in December 2012 during the honeymoon in Ireland when the mother became angry and hit the father, which she agreed was true;
(b)she denied that she had a bad temper and loses control when drinking;
(c)she could not recall that in March 2008, when Y was 18 months old, she alleged that Y’s father had assaulted her;
(d)she could not remember that in July 2009, she had a verbal argument with Y’s father and went to the police,
(e)she was unable to remember that in October 2019, she had a verbal argument with her sister when drunk and called the police;
(f)she recalled an incident in January 2011, when she had an argument with her then boyfriend and told the police he had punched her;
(g)she recalled an incident in January 2011, when she was dancing at the club with the same boyfriend and had another argument. They pushed each other. On an escalator she was hit by that boyfriend. He said he wanted to throw her off the escalator. She then ended the relationship;
(h)she did not recall that three months before the same man punched her in the face, she told the police about it;
(i)she did not recall that in August 2014 she became angry with the father because he was looking at the Internet on his phone;
(j)she was unable to recall that in August 2013 she was requested by the police to attend H Hospital to be assessed about her mental health;
(k)she agreed her relationship with the father was a very volatile and they had arguments, some of which were caused by her and some by him;
(l)she was aware that X had told the family consultant that she could sometimes be angry, and her response was it is the case with every mother;
(m)she could not recall reading that Y told the family consultant, at times she was mad, angry, stressed and had no grip;
(n)she did not accept that she lost her temper at the children or in front of the children.
Counsel for the Independent Children’s Lawyer put the following allegations about violence to the mother:
(a)she recalled that her evidence about an injury to her right hand was because of the father breaking a glass;
(b)she did not recall ever having said, when she attended the EE Hospital in Sydney and saw the doctor she told the doctor she had cut her right hand intentionally by gripping glass in her hand;
(c)when pressed about the incident referred to in the previous paragraph, her evidence was that she remembered telling the doctor she had cut her hand whilst cutting hair because she was a hairdresser although she realised that was impossible as the cut was to her right hand;
(d)that she had caused the laceration to herself and that the father had denied causing the laceration, which required surgery, her response was the father denied many things;
(e)she had told the doctor that she had caused the injury to her right hand, her response was that was not true because the father had caused the injury.

Exhibit ICL-1 is a bundle of documents including a “Discharge Referal” of the mother’s attendance at the EE Hospital in Sydney in October 2014. The document states that on 31 October 2014 the mother told Dr S that she had cut her right hand intentionally with a shard of glass by gripping the shard hard. That contemporaneous record is contradictory to the mother’s evidence under cross-examination referred to in the preceding paragraph. Additionally at paragraph 44 of her first affidavit, the mother deposes that she told the doctor that she had cut herself with scissors. Annexure R-03 to that affidavit does not refer to the mother having cut herself with scissors.
Exhibit ICL-5 are records of the mother’s attendance for a hand assessment at a Hospital in Sydney. On 23 April 2013, the mother states that she was injured on 20 December 2012 and that is an injury to her right elbow. The note refers to “patient assaulted whilst overseas”. Counsel for the Independent Children’s Lawyer, quite rightly submitted, that could not have been an assault by the father, as according to the mother’s own affidavit, the first time he was violent towards her was in May 2013.
Much of the mother’s evidence during cross-examination by Counsel for the Central Authority was to do with incidents of violence between the mother and other people, where sometimes she was the victim. During final submissions, Counsel for the mother was critical of that cross-examination and questioned the relevance to the current dispute. I agree that the fact that the mother was a victim of violence perpetrated by a former partner does not assist with my determination. However, the mother’s denials of the incident the subject of the hospital records and her responses of a professed inability to recall does not assist the mother being assessed as a reliable witness.
The father’s evidence as to coercive and controlling domestic violence
The father swore an affidavit on 26 August 2020 and a further affidavit on 9 November 2020 which is annexure A to the affidavit of Ms K filed 17 November 2020. The first affidavit does not make any reference to family violence, which is not surprising as at that time no such allegations had been raised. The second affidavit, at paragraph 4, refers to a disagreement between the parents approximately two weeks prior to the mother leaving Ireland with the child. The father deposes that ‘there was absolutely no issue of domestic violence and I respected my wife’s wishes up to the abduction’.
The father was cross-examined by Counsel for the mother, the main focus of which was the father’s mental health and his complaint to the police about the mother removing the child. He was not cross-examined about any specific incidents of violence, as alleged by the mother.
Counsel for the Independent Children’s Lawyer cross-examined the father about specific incidents of alleged violence. The following allegations were put to the father:
(a)the alleged incident of May 2013, in the mother’s unit, when the father hit his head against the wall and head-butted the mother. His response was he had never laid a finger on the mother and would never hit his head against the wall;
(b)on 13 October 2013, when the mother alleged he had put his hands on her neck and said he would kill her, his response was no;
(c)following his admission to H Hospital in October 2013 in response to the allegation that he told medical staff he was very agitated, he agreed and said he would have been very stressed;
(d)during his hospitalisation at H Hospital, he was rambling and allegedly said he would kill someone, his response was that he was very agitated and agreed that he may have been rambling, but the comment that he would kill someone had been misinterpreted, although he agreed he might have said that he would kill himself as he was very agitated, and he had never bothered to correct the records;
(e)the mother’s allegation that he wanted to put a knife to someone’s head, he responded that it was the mother who said that and he refuted that allegation;
(f)at the mother’s party in 2013 to promote her business he had screamed at the guests and talked to himself, he responded that the allegation was not true and he had gone outside and laid on the grass;
(g)the allegation that there was an argument upon his discharge from hospital about him wanting to provide accommodation to a person he had met in the hospital, he denied there was an argument and that he had never suggested that the acquaintance stay at their home and that the mother had taken it the wrong way;
(h)the allegation that he threw a phone at the mother, he responded it 100 percent never happened and he had never laid a finger on the mother;
(i)in 2014, during an argument, he smashed a glass on the wall and used the glass to cut a tendon on the mother’s hand, he responded that the mother did that and had crushed the glass in her hand which cut her tendon;
(j)during 2014, he had threatened to kill mother on more than one occasion, he responded that, no, he had never laid a finger on her;
(k)he had called her a fucking bitch and cunt, he responded that he had never laid a finger on her, although he possibly did call her obscenities, although nothing that rude;
(l)on 5 and 6 November 2019, in Ireland he had tried to strangle the mother, and yelled at her that she had ruined his life, she was a fucking bitch, and that he would kill her, he responded that was the day that he left the family home when he went to collect his mother who was being discharged from hospital, the mother went to the hospital and made a scene and told him to leave the home, which he did and he then stayed with his parents.
There are two text messages annexed to the affidavit of Ms K filed 24 November 2020. The first text message, at page 32 of the affidavit is from the mother to the father and dated 31 March. The second text message is at page 33 of the affidavit. During submissions, I clarified that the messages were sent by the parties in March 2020 and were referring to earlier events. The mother accuses the father of grabbing her around the neck in the first message and in the second message the father denies grabbing the mother by the neck but rather by her clothes, in the context of stopping her coming at him and she kicked him out as usual. The text messages, if accurate, and bearing in mind that neither of the messages was put to the mother or the father, confirm that the parents did indeed have a volatile and at times physically violent relationship, and that in that instance, both parties were physically violent to the other.
Exhibit ICL-7 is progress notes relating to the father from H Hospital dated 24 October 2013. The notes include reference to the mother’s allegation that there was an argument between the parties, when the father wanted someone he met at the hospital to live in their home.
The notes appear to be “written in retrospect” on 23 October 2013 after the father had returned from leave and he had arrived at the hospital with the wife.
The notes state “After return from leave. Arrived with wife. They have had some problems and arguments. Mr B mentioned to his wife he wanted to help a young female co-patient he met in GG Health Services and that he wanted to bring her home to give her shelter. His wife became very upset at this. They had an argument. Mr B felt angry but he could control his anger in the evening”. There was no evidence this incident escalated or that the father subsequently coerced mother into having the person stay in their home.
Counsel for the mother was critical of the Central Authority for failing to adduce evidence-in-chief of the father, in relation to the mother’s specific allegations of coercive and controlling behaviour and family violence. In her Case Outline, Counsel for the mother submitted that the failure by the Central Authority to seek a response from the father to the mother’s allegations is fatal to the application, and the court should accept the mother’s evidence of uncontradicted instances of coercive and controlling violence experienced by the mother and witnessed by the children. I do not accept that submission, as the substantive allegations of the mother were put to the father by Counsel for the Independent Children’s Lawyer during a detailed cross-examination. Exhibit ICL-12 is the records from the New South Wales Police Service which discloses that there are no disclosable court outcomes or outstanding matters relating to the father or the mother. The father’s affidavit sworn 9 November 2020, which is annexed to the affidavit of Ms K sworn 17 November 2020 is a police certificate stating that the father “was not convicted of any crimes whilst residing in Ireland”.
Counsel for the Independent Children’s Lawyer comprehensively cross-examined the father about the mother’s principal allegations of family violence. He was steadfast in his denials of any family violence save that he conceded the events leading up to his hospitalisation in October 2013.
Counsel for the mother in her final oral submissions, also sought to draw a distinction between evidence in chief and evidence obtained during cross-examination, which implied that evidence in chief is preferable, which I do not accept. Counsel for the Independent Children’s Lawyer in his final submissions, submitted that it was up to Counsel for the mother to cross-examine the father about his blanket denial, that there was absolutely no issue of domestic violence, and I respected my wife’s wishes up to the abduction, in his affidavit of 9 November 2020. Counsel obviously made a forensic decision not to do so, and did not make any applications subsequent to cross-examination of these matters by the Independent Children’s Lawyer. The father’s evidence during cross-examination enabled me to observe his demeanour and the manner in which he gave his evidence and form an opinion as to the veracity of the denials.
As referred to earlier in these reasons, both the father and the mother were not impressive witnesses and their evidence in some respects was contradictory and in particular the evidence of the mother about the circumstances of her injury to her hand which was contradictory to contemporaneous hospital records. The allegations and rebuttals of both witness were at times unconvincing and seem tailored to the outcome each sought to achieve.
Counsel for the mother, in her Case Outline sought to extrapolate the mother’s evidence as to the alleged strangulation as supportive of the proposition set out in annexure A to that document, namely the Suburb T Legal Centre Briefing Paper of 17 November 2017 in relation to strangulation in the context of domestic violence. I find such an extrapolation to be unsupported by the evidence and in particular the text messages between the parents, referred to in these reasons.
The unsatisfactory nature of evidence of both the witnesses does not satisfy me to the requisite standard, about:
(a)the respective culpability of each parent for past violence and events;
(b)the mother’s allegations about violence;
(c)the mother’s allegations about coercive and controlling behaviour.
I do, however, find that the relationship between the parents was volatile and at times included both verbal and physical assaults of the other. I do not find that there would be a grave risk of exposure, for the child or mother, as her primary carer, to physical or psychological harm, arising from the asserted coercive and controlling conduct of the father.
Loss of the relationship with Y
I accept the submission of the mother that X and her brother Y are close and that he has been a protective ally for her during parental conflict. I also accept the evidence of the family consultant, Ms N that any separation from Y may be experienced by X as a significant loss.
However, given the respective difference in ages of the children, Y aged 14 and X aged 4 and a half, I accept that Y will most likely move away from the family unit in the not too distant future, and become more independent, which will affect the nature of their relationship.
Ms N’s evidence under cross-examination does not suggest a risk which could be categorised as a grave risk. I accept that the children will be able to communicate electronically and it is in the hands of the mother as to the length of separation of the children and their future relationship. If X is returned to the country of her habitual residence, the mother is at liberty to make application to the Irish courts to relocate to Australia. She is also able to make arrangements or seek court orders if necessary, for Y to return to or visit Ireland, noting that Y told Ms N that he initially would have liked to have returned to Ireland, after being removed to Australia by the mother and that he indicated a willingness to travel to Ireland to visit his mother and X. Such travel would be subject to COVID-19 restrictions.
In State Central Authority & Abdalle [2012] FamCA 1151, Bennett J at [97] referred to the comments of Thorpe LJ in Re C (Abduction: Grave Risk of Physical or Psychological Harm [1999] 2 FLR 478. The facts of that case involved the separation of a six-year-old boy from his 14-year-old sister, who had a different father and was not the subject of the return application, and possibly his mother, if the child were ordered to be returned to Cyprus from where he had been wrongfully removed. Thorpe LJ said that, in many cases a balanced consideration of an assertion that returning a child would expose the child to grave psychological harm, leads to the conclusion that the party opposing return is in reality relying on their own wrongdoing in order to build the statutory defence. In order to test the validity of an Art 13(b) defence, Thorpe LJ stated that a trial judge must consider what were the ‘intolerable features of the child’s family life immediately prior to the wrongful abduction?’ If these “intolerable features” are only “scant” or non-existent, then it is difficult to hypothesise the circumstances in which the Article 13(b) defence would be upheld. Thorpe LJ said:
In my opinion Art 13(b) is given its proper construction is ordinarily confined to meet the case where the mother’s motivation for flight is to remove the child from a family situation that is damaging the child’s development.
In this matter I have found that the parents had a volatile relationship. There was scant objective or independent evidence about the children’s adverse circumstances prior to the mother’s removal of them to Australia. To the contrary I refer to Y’s positive comments to the family consultant about life in Ireland and the comments of the principal of the day care centre both children attended.
Exhibit ICL-10 is an email from the Independent Children’s Lawyer to the parties which includes a response from Ms V, the principal of X’s preschool and the centre where Y sporadically attended an after-school program.
The statements in the email are in response to questions posed by the Independent Children’s Lawyer. They include the following:
(a)X attended the service from February 2019 until September 2019;
(b)although her attendance was very poor overall, her presentation was always very good;
(c)she had a great relationship with both her mother and her father and on the rare occasion her grandmother or aunt collected her she was equally delighted;
(d)the centre never had any child protection concerns for either child;
(e)Y started attending the centre at the end of September 2018 but was deregistered at the end of November 2018 when he travelled to Country Q with his mother, and was again reregistered from mid-February 2019 until June 2019 when he commenced secondary school;
(f)during the time Y and his mother travelled to Country Q there was no observed change in X’s behaviour at all;
(g)both children were well-rounded and enjoyed the time when they attended.
For a period of six weeks between December 2018 and January 2019, the mother travelled to Australia with Y and left X in Ireland. During cross-examination by Counsel for the Independent Children’s Lawyer, the mother insisted that that the child had been left with her paternal grandmother and aunt and not in the care of the father. In response to the proposition that she did not know how the father cared for the child when she was in Australia, she responded that she thought he cared for her the same way as he had every other time. She was emphatic that she would never have left her daughter alone with the father. She was unaware that the father had cared for X without his mother or sister being present. She responded that she didn’t ever give her permission for the child to be left alone with her father.
The notes from X’s childcare centre, referred to at paragraphs 90 and 91 of these reasons also include the following:
Any observations you had about X’s relationship with her mother, her father and any extended family
X had a great relationship with both her mother and her father. On the rare occasion her grandmother or aunt collected her she was equally delighted.
That document is in stark contrast to the mother’s evidence whilst being cross-examined by the Independent Children’s Lawyer. There is no suggestion that X was fearful of her father, indeed quite the contrary, nor that she was primarily cared for by the maternal grandmother or aunt whilst the mother was absent from Ireland.
It is difficult to conclude that there is any significant evidence as to intolerable features damaging the child’s development prior to her removal from Ireland.
The mother relied upon an affidavit of Mr G, Y’s father. Mr G deposes that he will not consent to Y returning to Ireland and that he has discussed the situation with the mother. If the separation of siblings is foremost in the mother’s mind, then it is surprising that the mother has not commenced proceedings in Australia to enable Y to return to Ireland, if X is ordered to return. She is the architect of the children’s current predicament and has had plenty of opportunity to consider the implications for both children if X is ordered to return to Ireland.
I have considered the evidence of Ms N, all other evidence referred to in these reasons and the submissions of all Counsel in relation to the separation of X from Y and although the separation clearly may be difficult for X, the evidence falls a long way short of a grave risk of exposure to physical or psychological harm, as required by regulation 16(3)(b).I do not find that the loss of the relationship with Y would pose a grave risk of exposing the child to physical or psychological harm.
The threat of violence and instability posed by the father’s untreated mental illness
The mother asserts that the father has a long history of mental illness, which first manifested in 2013 when the parties were living in Australia and the father became depressed and aggressive.
According to the mother, the father first attacked her in May 2013 when he started shouting at her and hitting his head against the wall which culminated in the father head-butting the mother. Thereafter, the father consulted a psychologist. However, on 13 October 2013, the mother asserts that the father attacked her, putting his hands on her neck and attempting to strangle her and saying “I’m going to kill you.” The father’s evidence about these events is referred to in paragraph 73 hereof, during cross-examination by the Independent Children’s Lawyer.
What is not in dispute is that on that occasion the mother contacted the police and the father was taken to the H Hospital. The mother asserts that the father was hospitalised for three weeks and thereafter continued as an outpatient at the clinic. The father’s emergency documentation in relation to his admission on 14 October 2013 is exhibit R-7. The documentation establishes that the father was hospitalised as an inpatient for a period of two weeks.

Counsel for the Independent Children’s Lawyer put the mother’s allegations to the father in cross-examination, and his responses are referred to at paragraph 73 hereof.
Exhibit R-7, demonstrates that the father was initially hospitalised as an involuntary patient, but later as a voluntary patient, had recently been diagnosed with depression and bipolar, was medicated six weeks ago, had an argument with his girlfriend that night, threatened to kill “someone”, denied suicidal ideations and said what he said in anger.
The father was discharged on 28 October 2013 and since that time there was no evidence that he had been readmitted to a psychiatric hospital.
As referred to earlier in these reasons, the original trial date of this matter was adjourned, at the request of Counsel for the mother, to enable evidence to be adduced as to the father’s psychiatric state.
Letters were obtained from the father’s treating general practitioner, Dr P dated 27 November 2020 and 2 December 2020, which are annexed to the affidavits of Ms W filed 3 December 2020 and Ms Z filed 4 December 2020.
Neither of the letters could be described as comprehensive. The first letter which is annexure A to the affidavit of 3 December 2020 states as follows:
To whom it may concern,
The above named patient has a history of Bipolar Depression. His condition is currently stable and he is off all medication. There is no history of hospitalisations in Ireland with his condition.
The second letter is annexure A to the affidavit filed 4 December 2020 and states as follows:
To whom it may concern,
The above named patient was diagnosed with Bipolar Depression, and hospitalised, in Australia, in 2013. He tells me he was started on Lithium at that time.
Following return to Ireland his mental condition remains stable. He had no relapses or hospitalisations.
He remained on lithium until earlier this year when he decided to stop it.
He has been seen on a couple of occasions this week and his mental state is normal.
Counsel for the mother cross-examined the father about his current mental health. That evidence may be summarised as follows:
(a)he agreed he was diagnosed with bipolar in Sydney in 2013 to 2014;
(b)his medication was Lexapro, which is lithium based;
(c)he was originally under the care of a psychiatrist but subsequently stopped attending any such appointments;
(d)he continued to take medication without any psychiatric care;
(e)he does not have a psychiatrist in Ireland but rather has regular contact with a local doctor, Dr P;
(f)he agreed he had contacted Dr P about the reports;
(g)he had also seen Dr P once in June 2020 because he was feeling a bit ill and he discussed his personal life with the doctor;
(h)he agreed that the report of Dr P did not refer to that consultation;
(i)he consulted Dr P in 2018 once or twice and in 2019 possibly once;
(j)he consulted Dr P in 2019 and told him that he had forgot his tablets for a week, he felt fine and he was told to monitor the situation;
(k)if he feels down, he goes there;
(l)he denied that he was making up the evidence and in response to the proposition that there was no evidence today that he visited Dr P in 2018 or 2019 about his mental health, he responded that he did have such a conversation in 2019;
(m)since 2013, he considered his mental health had been quite stable;
(n)he had read what the mother said and refuted it as dishonest and untruthful;
(o)in response to the proposition that he had not provided any evidence to the court in the November affidavit about his mental health, he responded that it had not been an issue for many years;
(p)he agreed that the mother considered it a very serious issue;
(q)in response to the proposition that the mother left him on three occasions because of his aggression from mental illness, he responded that he had left the house on two occasions to de-escalate the situation between himself and the mother;
(r)he denied the proposition that it was not true that he had consulted Dr P in 2019;
(s)he agreed that he went to Dr P’s rooms to obtain the report dated 27 November 2020 and a further report dated 2 December 2020, as he was told the first report was insufficient and to obtain another;
(t)he was requested to do so via email from the authorities in Ireland;
(u)the first time he told Dr P about his mental health would have been May 2015;
(v)he attempted to explain the discrepancy between Dr P’s report which stated that he remained on lithium until early 2020 and his own evidence that he had come off medication in 2019, by obtaining six-month prescriptions;
(w)he made the decision to stop lithium in 2020 because he has been okay and there have been no incidents, and he lives 50 metres from a police station;
(x)in response to the mother’s assertions that he had considerable mental health issues, he replied that was false;
(y)he denied that he had attempted suicide at Christmas 2020 and rather had said that he was feeling extremely down and had told the mother how he was;
(z)denied that he had attempted suicide on more than one occasion in 2020.
In her final submissions, Counsel for the mother was scathing about the brevity of the evidence pertaining to the father’s mental health. She was critical of the reports of Dr P and submitted that they did not provide any basis for the opinion that the father’s mental state was normal.
It was further submitted:
(a)the court should be very concerned that a person who had been prescribed lithium from 2013 had ceased his medication in early 2020 without any psychological or psychiatric recommendation;
(b)it would appear that the father had been prescribed lithium medication without clinical monitoring and assessment for many years;
(c)having regard to the mother’s evidence contained in her second affidavit, the court should be satisfied that the father suffers from significant mental illness for which he is not receiving treatment and has ceased treatment of his own accord without guidance or supervision of a clinician;
(d)the instability of the father’s mental health and the link to violent episodes is highly relevant to the courts assessment of whether there is a grave risk of psychological harm to the child and whether the mother and child would thereby be placed in the intolerable situation.
Dr P was not cross-examined, which would have been of considerable assistance.
The mother’s evidence about the father’s taking of medication and what she asserts are outbursts linked to a failure to take medication, is deposed to in her second affidavit of 12 January 2021.
Notwithstanding the obvious limitations of Dr P’s reports, there was no other independent evidence to substantiate the mother’s assertions that the father has an ongoing untreated mental illness. There was no independent evidence of any further hospitalisations or acute episodes which could be objectively linked to the asserted ongoing untreated mental illness.
I accept that the father had an acute mental health episode in Sydney in October 2013 and was diagnosed with bipolar disorder. Since that date he has taken lithium medication and he ceased taking the medication absent the recommendation of a health professional. It is unclear whether he ceased taking the medication in 2019 or 2020. I also accept that the father has continued to function in his daily life and has remained in employment.
I am unable to find and do not find that the father currently has an acute mental health problem which would cause him to have an increased propensity to commit asserted family violence. I do not find that there is a grave risk, that the child or mother, would be exposed to physical or psychological harm, arising from the father’s mental health.
Coronavirus pandemic
The mother asserted that the COVID-19 pandemic posed a grave risk to the child and the mother for the following reasons:
(a)COVID-19 infection rates are rising in Ireland and the country has moved to level 5 restrictions;
(b)the level 5 restrictions include a ban on all household visits, the closure of non-essential retail and a 5 km limit on travel;
(c)the country was experiencing a new coronavirus variant which was spreading at a rate that surpassed the most pessimistic models, according to annexure B to the submissions of Counsel for the mother;
(d)the mother has no access to the Irish health system nor is any evidence that the child has access to the Irish health system;
(e)the mother and child have nowhere to stay and there is no evidence that the child would be able to reside in the F Town property.
There was no objection to the attachment to the mother’s submissions, which were:
(a)a printout from the BBC News online service as at 30 December 2020 titled “COVID-19: Republic of Ireland moves to Level Five restrictions”;
(b)a press release dated 5 January 2021 titled “Statement from the National Public Health Emergency Team – Tuesday 5 January”
The COVID-19 pandemic was referred to in Walpole however, the reasons for refusing to make a return order were not related to the pandemic.
The Irish Court of Appeal in C v G [2020] IECA 233, recently considered the impact of COVID-19 in the context of “grave risk”, where there was no expert evidence. The appeal was from a decision of the Irish High Court, to refuse to order the return of a child to Poland, because to do so would be a “grave risk” of exposing him to physical or psychological harm or otherwise placing him in an intolerable situation.
The Irish Court of Appeal, in the judgement of Ms. Justice Power in C v G ,in relation to the impact of the COVID-19 pandemic as a grounds for exception to return, said:
[80]…Moreover, a distinction must be drawn between a grave risk of harm and the probability of infection. Whereas gravity qualifies the risk referred to in Article 13(b) it is, nevertheless, linked to the harm envisaged in the defence are set out therein (see In Re E at para. 33). Care must be taken, therefore, not to conflate a moderate or even high risk of contracting COVID-19 with a grave risk of harm should one become infected with the virus. In this regard, it seems to me that the trial judge fell into error in conflating those respective risks. While I accept that the risk of contracting COVID-19 is a relevant factor in the assessment of grave risk, that risk cannot, in and of itself be equated with a grave risk of harm.
[81] In assessing the defence that arises in this appeal, a distinction must, therefore, be drawn between the likelihood of Jan becoming infected if exposed to the virus and the probability of a grave risk of harm being visited upon him should such infection occur.
In the context of whether a child exposed to a grave risk of contracting the disease if an order for return were to be made, would involve a child being returned to a “zone of disease” as referred to in C v G quoting from Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996):
[84]…To my mind, ‘disease’ as contemplated by the US Court of Appeals for the Sixth Circuit, has to be seen in the context of its comparator dangers, namely, war and famine. It cannot, reasonably, be contended that the return of the child to Poland during the current pandemic constitutes the same or a similar risk is returning a child to a zone of war or famine.
And at [89]:
I am bound to conclude that any increased risk of Jan contracting the virus (whether from air travel or from being in Poland), if such were established, is not sufficient, in itself, to prove that a grave risk of physical harm would rise in the event that a return order were to be made.
That decision is not binding, however, the comments referred to in the previous paragraph are highly persuasive and pertinent to this case. Regulation 29(5)(b) permits me to take judicial notice of a judicial decision of a convention country.
The mother did not adduce any expert evidence as to the risk of international air travel nor the risk to the child or the mother of contracting coronavirus in Ireland and there were no submissions in that regard. In her final submissions, Counsel for the mother submitted the mother did not have access to the Irish health system, although there was no evidence and in particular expert evidence, about her eligibility or lack thereof such as healthcare reciprocity between Australia and Ireland or other healthcare benefits she may be entitled to as the spouse of and mother of an Irish citizen. That statement is contradictory to Exhibit ICL-13, in relation to X’s eligibility for a GP card.
I accept that Ireland is experiencing difficulties with the pandemic and as at the date of the documents was in a state of hard lockdown, as are many other countries, however that evidence does not constitute clear and compelling evidence that the return of the child to Ireland would constitute a grave risk that she would be exposed to physical or psychological harm or otherwise placed in an intolerable situation as a consequence of the pandemic. There is no evidence of any particular vulnerabilities of X or her mother to international air travel nor any particular identified risk to the child or the parent arising from the environmental and social circumstances which the mother and child would face in Ireland, in the context of the pandemic. I do not find, on the evidence that the COVID-19 pandemic causes a grave risk of exposure of the child or her mother, as primary carer, to physical or psychological harm.
Threat by the father of criminal proceedings in Ireland against the mother
The mother asserts that the father had commenced criminal proceedings in Ireland and is completely focused on separating the children from her. Annexure R-13 to her first affidavit are two text messages dated 28 December and 3 January from the father to the mother.
Counsel for the mother cross-examined the father about all complaints he had made to the police. His evidence under cross-examination was as follows:
(a)he had made a report to the police in Ireland about the mother’s abduction of the child and then initiated the current proceedings;
(b)in response to the proposition that it was his intention to have the mother arrested, he responded that he did not have the information although she could face charges there;
(c)if he got his child home he had no personal grievance against the mother;
(d)he would consider withdrawing the complaint he has made;
(e)in response to the proposition that he wanted to get her in trouble, he responded that he went to the police first and then to the child abduction authorities to get the child back;
(f)he had not taken any action since the initial complaint although the police had contacted him 3 to 4 times for an update;
(g)the complaint was still active and he did not envisage any problem withdrawing the complaint if he got his child home;
(h)in order to withdraw the complaint he would go to the local police and ask them to withdraw the complaint.
During final submissions, Counsel for the Central Authority submitted that it was the father’s position that he did not care to pursue any police proceedings and that the court could make a condition to return that all previous police complaints are withdrawn and that the father not make any further complaints.
I agree with the submission of Counsel for the Central Authority that if I am minded to order a return, then such return could be subject to appropriate conditions to address the outstanding police proceedings, if any. Regulation 25A(1)(c) of the regulations allows the court to include conditions by order, if it considers those conditions are appropriate to give effect to the Convention.
Counsel for the Independent Children’s Lawyer drew the court’s attention to a document annexed to the mother’s affidavit filed 28 October 2020. The last page of that affidavit is an extract from the Non-Fatal Offences Against the Person Act, 1997. Section 16(5) of that Act states that any proceedings under this section shall not be instituted except by or with the consent of the Director of Public Prosecutions. It is not a matter for the local police to pursue such a prosecution. I do not find the threat of criminal proceedings constitutes a grave risk of exposing the mother and the child to physical or psychological harm.
Intolerable Situation
I will secondly address the factors which the mother asserts support her contention of intolerable situation.
The mother is not a native speaker of English
The mother gave evidence with the assistance of an interpreter. During her evidence it was clear that prior to translation the mother sometimes gave pre-emptive evidence, albeit in her mother tongue. As the hearing was conducted electronically, all Counsel were able to directly observe the mother giving evidence and being cross-examined.
The mother travelled to Australia from Country Q in August 2005 and commenced a relationship with the father of her son Y. She met the father in Sydney in May 2012 when she was working as an educator. She has also run her own business and held a party to launch the business at her home in October 2013. Exhibit ICL-12 is a copy of the COPS police records relating to the mother which verify that she was living in Sydney during 2008, 2009 2010, and 2011. The hospital records, which are exhibit ICL-1 and ICL-5 demonstrate the mother’s presence in Sydney in 2013 and 2014.
Ireland is an English-speaking country and the mother commenced living there in a small village in August 2015. She has effectively been living in an English-speaking country since August 2005.
The text messages between the parties which are exhibited to the affidavit of Ms K filed 24 November 2020 demonstrate that the mother has a reasonable standard of command of the English language. Additionally, the Binding Financial Agreement which is Annexure R-1 to the mother’s first affidavit, and which was prepared in December 2012 does not have any clause to indicate that the document was translated to the mother and the statement under s.90G of the Family Law Act 1975, annexed to the document, does not make any reference to the solicitor at the time explaining the document to the mother with the assistance of an interpreter.
The mother does not submit that she is unable to speak or understand English, rather that she is not a native speaker of English. During cross-examination by Counsel for the Independent Children’s Lawyer the mother conceded that her English is a lot better now than when she was living in Ireland. I am satisfied that the mother has a sufficient command of the English language to enable her to live and cope in an English-speaking country.
The mother has led a very restricted life in Ireland as a result of living in a small rural village; being unable to drive and being subject to the whims of an unstable partner
Counsel for the Central Authority submitted that the application for return of the child is to the country, not to the village of F Town, where she previously resided with the father. I agree with that submission. The mother is at liberty to reside anywhere in the country she so chooses, subject to any future order of an Irish court.
The mother has little knowledge of the Irish legal system or the Irish health system
At paragraphs 93 to 95 of her first affidavit, the mother deposes to having consulted a solicitor in Ireland with the assistance of her sister-in-law Ms O, although she did not engage him as she was required to deposit €5000 into his trust account to commence legal proceedings. That evidence supports the submission of Counsel for the Central Authority that the mother is perfectly capable of obtaining the names of lawyers and in that instance, it was not her inability to find a lawyer, but the financial impost, which stopped her from commencing proceedings.
The mother does not have her Australian passport that has been stolen by the father

During cross-examination, the father conceded that he would return the mother’s Australian passport to her. It is also possible to include a condition for return which would provide for the return of the passport.
The mother does not have any support in Ireland
Counsel for the Central Authority conceded that the mother probably had little support in Ireland. Her family, other than her sister in Australia, live in Country Q. However, she did obtain assistance from the father’s sister-in-law and there would be nothing preventing her from making acquaintances and friends in the future. I’m also confident that she would have the capacity to make enquiries with the Irish authorities to ascertain support services which may be available to her. She lived in the country between August 2015 and November 2019, just over four years and would have a certain degree of familiarity with life in Ireland.
The mother has nowhere to live except the home that she purchased in F Town in which the father is currently living with his girlfriend
The mother’s proposal for conditions to return, in the event a return order is made include an order that the father remove himself and any other persons from the home located at D Street, F Town and that he arrange for the changing of the locks on the property at his own expense and provide all keys to the real estate agent.
In response to inquiries by me, Counsel for the mother stated that it was the mother’s intention that she lease the property and receive the rent from it. In the event a return order is made, then the order proposed by the mother, despite a degree of opposition from the father, would be appropriate to ensure the mother has a source of income immediately upon her arrival in Ireland. She is at liberty to obtain accommodation wherever she chooses in Ireland, if a return order is made.
The text messages between the mother and the father which are annexed to the affidavit of Ms K filed 24 November 2020 clearly refer to the mother’s desire to rent out the property.
The father’s family has a history of animosity towards the mother
I accept that given the circumstances of the mother’s removal of X from Ireland, there may well be animosity from the paternal family. However, the mother does not need to live in the village of F Town nor have anything to do with the father’s family. I have every confidence that if a return order is made the Irish courts are more than capable of protecting the mother from any animosity of the paternal family. I refer to the statements in Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001 at paragraph 165 hereof.
The mother has no immediate right to reside in Ireland and no immediate right to the benefits of residence such as subsidised medical treatment
Exhibit ICL 3 is an extract of Statutory Instrument No. 473 2014 Immigration Act 2004 (Visas) Order 2014, Ireland. Article 3 refers to various classes of non-nationals who are not required to be in possession of a valid Irish visa when landing in Ireland. Article 3(a) refers to schedule one of the act, which lists the applicable countries, which includes Australia. The mother would therefore not require a Visa to enter Ireland.
Exhibit ICL 4 is an extract of a brochure of the Department of Justice which explains how to apply for a Visa to remain in Ireland, as a parent of an Irish citizen. As X is an Irish citizen the mother would be able to apply for such a Visa, which may also include the right to work without the need for an employment permit. The mother previously worked in Ireland.
Exhibit ICL13 is a document obtained from the Irish citizen’s information website about the eligibility to obtain a GP visit card for children under six years of age. As X is an Irish citizen under six years of age, that scheme would apply to her.
The exhibits demonstrate that there are options available to the mother in terms of her immigration status and subsidised medical care for X.
Delay
Counsel for the mother in her Case Outline submitted that delay, particularly the fact that X has been living away from Ireland since 25 November 2019 and living in Australia since 17 March 2020, is a relevant factor in the court’s assessment of whether there is a grave risk of exposure to psychological harm.
It was asserted that the father had not explained the delay in taking action with respect to the children’s relocation to Australia.
That submission was prior to the cross-examination of the father by Counsel for the Independent Children’s Lawyer. The father’s evidence during cross-examination was:
(a)he agreed he had requested X to be returned in July 2020;
(b)the reason for the delay was problems obtaining a marriage certificate from Australia and then providing it to the authorities in Country Q;
(c)by the time he obtained the marriage certificate, the time limit had run out in Country Q and he had realised the mother and the children had gone to Australia.
I accept that evidence as a reasonable explanation.
It was also submitted:
(a)the children have settled back into their lives in Australia;
(b)it is significant that Australia was the home of the mother and the children after separation of the parties in October 2016;
(c)X has attended childcare at Suburb AA during 2020 and is enrolled to commence school in Sydney in February 2021;
(d)X has friends, aunts and cousins in Sydney;
(e)even if an order is made for immediate return, the current COVID-19 pandemic will mean that it will probably take several months to organise necessary details for travel;
(f)the child’s education will be impacted by the delay as she is due to start school in a few weeks.
There was no supporting authority provided for the proposition that length of stay in a state or delay in filing an application within the requisite 12 month period, is a factor which should be taken into consideration of grave risk.
This issue was also considered by the Irish Court of Appeal in C v G.
The facts of the case are that the child was born in Poland in 2012, he was a Polish national and his habitual place of residence was Poland. Following the breakdown of his parents’ relationship, orders were made in the District Court in Poland on 5 November 2018 that the child would live with his mother and access arrangements for the father. On 8 December 2018, the mother took the child from Poland to live with her in Ireland. At that time the child was six years old. It was later conceded between the parties that the child’s removal from Poland was wrongful in terms of the relevant article of the convention.
In February 2019, the father wrote to the mother requesting an indication of her intended date of return of the child to Poland however she did not reply. On 1 April 2019, the mother telephoned the father and during a conversation indicated that she did not intend to return to Poland with the child. On 29 April 2019, the father applied to the Central Authority in Poland and proceedings were instituted in Ireland on 6 June 2019.
After considering various Irish authorities, Her Honour concluded at [116] that the case law supports the contention that length of stay is not a matter to be considered in an assessment of grave risk, although she was unable to say categorically and without exception that length of stay could never be raised as a reason for grave risk of exposure to psychological harm. Her Honour emphasised that every application is to be characterised by its own specific facts and assessment, however, ‘it could only be in highly exceptional and very specific circumstances that a case might be made that the level of distress or uprooting caused solely by length of stay would be sufficient, in itself, to reach the threshold of grave risk…Even then,… such a scenario could only arise in a case where a child is old enough to appreciate the significance of the upset and disruption caused by removal, in which case, the defence is more likely to be one based on the minor’s objections rather than one of grave risk.’
At paragraph [118], Her Honour said:
[118] I am more persuaded by the view that the defence of grave risk is concerned about difficulties in the state of habitual residence which prompted the child’s wrongful removal in the first place. In this appeal, the trial judge’s consideration that eighteen months was ‘potentially’ relevant in the assessment of grave risk was an error of law... The duration involved in this case, even now at 20 months, is not of such significance that it would lead me to conclude that, in and of itself, the return of Jan to Poland after such a period spent in Ireland would create a grave risk of psychological harm… I am satisfied that the trial judge misdirected himself in law in concluding that Jan’s 18 months in Ireland was a factor which was potentially relevant in his assessment of the defence of grave risk under Article 13(b) of the Convention.
I agree and respectfully adopt the comments of Her Honour in C v G. In this case, the child was removed surreptitiously from Ireland and taken to Country Q. I accept the father’s evidence that he encountered difficulty with obtaining documentation for the Country Q authorities. It was not until March 2020 that the child arrived in Australia. In July 2020, the father signed his application form to request the return of the child and the application was filed by the Central Authority in September 2020. The matter was scheduled to be heard on 26 November 2020, however it was adjourned at the request of the mother to enable further psychiatric evidence to be adduced. It is now less than 12 months since the child arrived in Australia as a 3 ½ year old. Adopting the comments of Ms Justice Power there are no exceptional and very specific circumstances in this case and the child, at 4 ½ years of age would not appreciate the upset and disruption caused by her removal from Australia. I do not find that delay, as asserted by the mother, poses a grave risk of exposing the child to physical or psychological harm.
Conclusion as to grave risk and intolerable situation
Having regard to my findings about the factors which are asserted constitute a grave risk of the child and the mother being exposed to physical or psychological harm, I do not find that either individual or collectively, the factors constitute a grave risk, as is required by DP.
The facts of this application may be readily distinguished from the facts of Walpole where the defence was successful. In Walpole there was compelling evidence of the children being exposed to very serious physical violence including potential lethality, in circumstances where the requesting parent had been deported from Australia to New Zealand as a result of serious and systematic criminal conduct and a real concern that the New Zealand authorities would be unable to protect the mother and children.
I do not accept the submission by Counsel for the mother, that if conditions to return are considered necessary, then the exposure to the risk contemplated, would be grave. That would have a consequence of refusing return applications, if conditions were thought appropriate, or alternatively return orders being made without conditions, when appropriate conditions are indeed warranted. The issue of moulding appropriate conditions to return was considered by the Full Court in Walpole at [58].
The submissions of the mother do not address the capacity of the court of the contracting state, Ireland, to protect the child, except in her proposed conditions to return. There is a presumption that co-signatory states have the capacity to adequately protect the child upon return, unless shown otherwise.
The presumption referred to in the preceding paragraph is discussed in Gsponer at [178]:
[178] There is no reason why this court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child’s welfare. Indeed the entry by Australia into this convention with the other countries may justify the assumption that the Australian government is satisfied to that effect.
As submitted in the written submissions of the Independent Children’s Lawyer, the sentiment in the preceding paragraph has been unanimously echoed by the High Court in De L v Director General, NSW Department of Community Services & Anor [1996] HCA 5; (1996) 87 CLR 640 at 658:
The Regulations reflect 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.
Additionally, Counsel for the mother in her submissions is critical of the Central Authority’s failure to identify any services to assist the mother and submits that the court cannot act on speculation about the availability of services or about the responsiveness of authorities. The burden of proof to establish the reg 16(3)(b) defence falls on the mother and it is her obligation to prove to the requisite standard, the absence or deficiency of such services.
Notwithstanding the mother’s burden of proof, exhibit ICL-2 is a document setting out the capacity of the Irish courts to make safety orders, protection orders and barring orders. As submitted by Counsel for the Independent Children’s Lawyer, the documents comprising ICL-2 make reference to such applications being made to the District Court in Ireland, and the criminal sanctions which can apply if an order is broken including the possibility of imprisonment for 12 months. The documents also demonstrate that legal aid may be obtained in certain circumstances, District Court staff will assist with the forms required to make such an application and the support services available to women requiring protection of such orders.
There is no reason in my view why the mother could not avail herself of protective measures in the Irish courts if she so desired, and also access services for vulnerable women who assert they are victims of family violence. There was some suggestion by her that the father had some form of influence with the local law enforcement in F Town, however there was no suggestion, and in my view would be far-fetched to do so, that he had any capacity to unduly influence an Irish court properly exercising its jurisdiction.
In relation to the mother’s submissions of intolerable situation, I am satisfied that life will not necessarily be easy for the mother in Ireland, but it will not be intolerable, as required by reg 16(3)(b). I make that finding on the basis of the evidence referred to in the preceding paragraphs and in particular:
(a)the mother has lived in an English-speaking country since 2005 and clearly has a reasonable proficiency in English, as evidenced by the text messages forwarded and received by her and the absence of any reference in the Binding Financial Agreement, of the document needing to be or having been interpreted to her;
(b)the mother is not required to live in the same village as the father, a return order is to Ireland and she is at liberty to choose where she would live, subject to any subsequent order of an Irish court;
(c)the mother has previously had access to lawyer in Ireland;
(d)X would at the very least be eligible for a GP visit card in accordance with exhibit ICL-13;
(e)she has lived in the country for almost 4 years and has a degree of familiarity with life in Ireland and would be capable of accessing support services;
(f)an order can be made requiring the father to forward the mother’s Australian passport to her, as a condition to return, noting that the father has acknowledged in his evidence that he is willing to do so;
(g)the mother will have an income from the F Town property, if an order is made in accordance with her proposed condition of return;
(h)the mother is able to make an application to the Irish courts for any protection she would seek from asserted animosity of the father’s family;
(i)the mother is entitled to enter Ireland as the mother of an Irish citizen and thereafter apply for the relevant visa.
In conclusion, I find the factors which the mother asserts create a grave risk of exposure to physical or psychological harm or otherwise place the child in an intolerable situation, do not individually or collectively constitute such a risk, particularly where there are protective measures which could be put in place to ameliorate the asserted risks.
The mother has not satisfied the threshold test of “grave risk” or “intolerable situation”, and this defence must fail.
To return the child would not be permitted by the fundamental principles of Australia in relation to the protection of human rights and fundamental freedoms
I will now address the reg 16(3)(d) submissions of the mother.
Counsel for the mother submitted that to return X would be inconsistent with her right to a family life consistent with Article 8 of the United Nations Convention on the Right of the Child (UNCROC) and to do so would be a severe breach of those rights.
It was submitted that the court should have regard to her vulnerable age and the ability she will have at that age to cultivate her relationship with her brother.
An English authority was cited in support of that proposition. There were no submissions made about the application of an international convention in Australia, in circumstances where the convention has not been incorporated by enforcing domestic legislation, as is the case with UNCROC.
In McCall & McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551 the court said that reg 16(3)(d) requires not simply that the return of the child would be incompatible, even manifestly incompatible, with human rights and fundamental freedoms, but these rights and freedoms simply do not permit the child’s return at all. The Full Court noted that the provision in the regulations was intended to apply to “rare occasion that the return of the child would utterly shock the conscience of the court or offend all notions of due process”.
In Director-General, Department of Families, Youth and Community Care v Bennett [2000] FamCA 253, Full Court quoted McCall with approval.
It was further submitted that to return a child to a country where level V COVID-19 restrictions are in place would restrict her access to healthcare or education and both of which would be a breach of her rights. The point of level V COVID-19 restrictions is to protect the community. There are many countries where level V restrictions have been imposed by governments and I do not accept that the imposition of such restrictions constitutes a breach of human rights nor would it fall within the parameters of the statements in McCall in the preceding paragraphs, to the effect that it would utterly shock the conscience of the court or offend all notions of due process.
It is difficult to contemplate that the circumstances of X’s return to Ireland, in accordance with Australia’s obligations to an international convention, would utterly shock the conscience of the court or offend all notions of due process. This defence must necessarily fail.
Conditions of return
Regulation 25A(1)(c) permit a court to include regulations, by orders, if it considers those conditions are appropriate to give effect to the Convention.
If ordered to return, the mother proposed the following conditions:
(a)the child not be returned until the risk with respect to the COVID-19 pandemic be such that the level of restrictions allow free movement of persons through the country including no requirement for quarantining or self-isolation;
(b)the father pay all costs associated with the travel of the child and the mother, including meals and any necessary accommodation;
(c)the father withdraw any complaints made to the Irish authorities in respect of the mother removing the child from Ireland;
(d)the father return to the mother the Australian passports for herself and the child;
(e)the father consent to a protection order and/or safety order/barring order in respect of the mother and the child;
(f)the father provide to the local authorities a copy of his Australian criminal history - the father’s criminal history is exhibit ICL-12;
(g)the father provide to his treating physician his medical records with respect to his mental health treatment in Australia;
(h)the father immediately seek referral to a qualified mental health practitioner for psychiatric assessment and treatment;
(i)the father remove himself and any other persons from the home located at D Street, F Town and that he arrange for the changing of the locks on that property, at his own expense, and he provide all keys to the real estate agent.

I will address each of the proposals as follows:
(a)there was no expert evidence about the quarantining or self-isolation requirements for in bound travel to Ireland and no submissions how quarantine or self-isolation would constitute a grave risk to or intolerable situation for the child or mother. I have every confidence that the mother would take all reasonable and available precautions for herself and X to travel to Ireland as safely as possible. In the context of the current COVID-19 vaccine program in this country, such precautions may include arranging for herself to obtain a COVID-19 vaccine prior to return. I note that the mother flew from Country Q to Australia in March 2020, during the COVID-19 pandemic and there was no evidence that either she, the child or Y had contracted COVID-19 during the course of that international travel. The mother was clearly prepared to travel internationally from Country Q to Australia, with the children at the commencement of the pandemic. There was also no evidence current as at the date of the trial, as to the stage of restrictions applicable in Ireland, nor that restriction of free movement constituted a grave risk. To the contrary, the very point of restriction of free movement and COVID-19 restrictions, is to reduce the risk of infection. In her final address, Counsel for the Central Authority submitted that there were no issues with flights departing Australia and upon the making of a return order, the Central Authority will make the appropriate arrangements to comply with the requirements of the Irish Government. I accept those submissions;
(b)there was no evidence about the financial position of either of the parties, save that the mother is the registered proprietor of the F Town property and also has property in Sydney. Counsel for the Central Authority, in her final address, submitted that a return order could be made conditional upon the airfares being paid, to ensure the child returns. I am satisfied that the father is on notice that the mother sought that he pay the costs of travel for the mother and the child. In order to maximise compliance with my orders, I intend to order that the father pay the costs of flights to Ireland with the father being at liberty to seek an order in any court of competent jurisdiction in Ireland for reimbursement from the mother;
(c)during cross-examination, the father’s position was that as long as the child was returned he had no interest in pursuing criminal proceedings against the mother, and I intend to make an order that the child’s return is conditional upon the father withdrawing any complaint he has previously made to the Irish authorities, and provide evidence of same to the mother;
(d)during cross-examination, the father conceded that he had no objection to returning the Australian passports of the mother and child to her, and I will make the return order conditional upon the father doing so;
(e)if the mother wishes to seek such protection, it is appropriate that she be accorded some time to do so, before the return of the child. It is difficult to impose a time frame absent relevant evidence, but I consider 30 days to file an application in Ireland should be sufficient time for the mother. I will include the father consenting to the interim order as a condition of return. I will also order that the return of the child occur 14 days after compliance with the conditions to return specified in these orders. A return order does not require the mother to return to F Town and it is a matter for her where she will initially choose to live in Ireland.
(f)if the mother makes an application for a protection order, it is appropriate that the father provide to the Irish authorities a copy of his criminal history in Australia, or alternatively, the mother be permitted to do so;
(g)it is appropriate that the father provide his Australian mental health records, albeit they refer to treatment in 2013, to his general practitioner, or alternatively the mother be permitted to do so;
(h)if either of the father or the mother provides a copy of the father’s medical records to the father’s GP, thereafter it should be up to that qualified medical practitioner, to decide whether or not the father requires referral for a psychiatric assessment and treatment. The mother is at liberty to pursue such an application during the course of any proceedings in an Irish court of competent jurisdiction;
(i)the father was cross-examined about vacating the F Town property and was reluctant to do so. I am satisfied the father has had adequate notice of the mother’s proposal. Such an order would enable the mother to obtain income which could be applied to the immediate accommodation needs of herself and the child. The father is at liberty to pursue to vary such an order during the course of any proceedings in an Irish court of competent jurisdiction.
I have no hesitation in making orders which will enable the child and the mother’s return to Ireland more comfortable. I anticipate that either one of the parents will issue proceedings in the Irish courts to enable X’s long-term parenting arrangements to be resolved in a child focused manner. This Court has every confidence in the Irish judicial system.
I will therefore make orders granting the application of the Central Authority, subject to the appropriate conditions.

I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 11 March 2021
Index of Exhibits

Exhibit Number Description

A-1 COPs Records in relation to Ms Ruiz, Y and Mr B

A-2 Surgery Consultation Notes from Suburb CC Medical Centre in relation to Ms Ruiz, 07/07/2020

R-1 Surgery Consultation Notes from Suburb CC Medical Centre in relation to Ms Ruiz, 27/04/2020

R-2 Surgery Consultation Notes from Suburb CC Medical Centre in relation to Ms Ruiz, 04/05/2020, 12/05/2020 & 15/05/2020

R-3 Medical Certificate from Suburb CC Medical Centre in relation to
Ms Ruiz, 29/09/2020

R-4 Department of Communities and Justice – Contact Record,
14/10/2013

R-5 Department of Communities and Justice – Contact Record, 16/10/2013

R-6 Discharge Referral from EE Hospital in relation to Ms Ruiz , 08/09/2014

R-7 Emergency Documentation from H Hospital in relation to Mr B, 14/10/2013

R-8 Progress Note from H Hospital in relation to Mr B, 14/10/2013

ICL-1 Discharge Referral from EE Hospital in relation to Ms Ruiz Cabrera, 31/10/2014

ICL-2 Safety orders, protection orders and barring orders in Ireland from Citizens Information, Ireland

ICL-3 Statutory Instrument No. 473 2014 Immigration Act 2004 (VISAS) Order 2014, Ireland

ICL-4 Irish Nationalisation and Immigration Service FAQ Parents of Irish Citizen

ICL-5 Hand Assessment | Initial Examination Notes from H Hospital in relation to Ms Ruiz, 23/04/2013

ICL-6 Mental Health Transfer/Discharge Summary in relation to Mr B, 28/10/2013

ICL-7 Progress/Clinical Notes from H Hospital in relation to Mr B, 24/10/2013

ICL-8 Mental Health Triage from H Hospital 04/09/2013 in relation to Mr B, 04/09/2013

ICL-9 Progress/clinical Notes from H Hospital in relation to Mr B, 09/09/2013

ICL-10 Email from the ICL to the parties, 24/11/2020

ICL-11 Email correspondence with Mr DD, Principal (F Town School) in relation to Y, 30/11/2020

ICL-12 Criminal History and Summary of COPs Events

ICL-13 Information from Citizens Information in relation to access to healthcare for children

File number(s):	SYC6556 of 2020
Judgment of:	WILLIAMS J
Date of judgment:	11 March 2021
Catchwords:	FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from Ireland – Jurisdictional facts conceded by the mother – Consideration of regulatory exceptions (reg. 16(3)(b) and (d)) – Held return of the child to Ireland would not expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation – The return of the child to Ireland would not offend the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms – Return order made subject to conditions – Family Law Act 1975 (Cth) s 111B – Family Law (Child Abduction Convention) Regulations 1986 – reg 16 – Return Order.
Legislation:	Family Law Act 1975 (Cth) ss 90G, 111B Family Law (Child Abduction Convention) Regulations 1986, regs 15(2), 16, 25A, 26, 29(5)
Cases cited:	C v G [2020] IECA 233 De L v Director General, NSW Department of Community Services (1996) 187 CLR 640; [1996] HCA 5 Director-General, Department of Families, Youth and Community Care v Bennett [2000] FamCA 253 DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 180 ALR 402 Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001; [1988] FamCA 21 HZ & State Central Authority [2006] FamCA 466 McCall & McCall; State Central Authority (Applicant); Attorney General (Intervener) (1995) FLC 92-551 Re C (Abduction: Grave Risk of Physical or Psychological Harm [1999] 2 FLR 478 Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 State Central Authority & Abdalle [2012] FamCA 1151 State Central Authority & Sigouris [2007] FamCA 250 Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Number of paragraphs:	185
Date of hearing:	19 & 20 January 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Hartstein
Solicitor for the Applicant:	DCJ Legal, Department of Communities and Justice
Counsel for the Respondent:	Ms Goodchild
Solicitor for the Respondent:	Hague Convention Legal Practice
Counsel for the Independent Children's Lawyer:	Mr Moore
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	11 MARCH 2021

Exhibit Number	Description
A-1	COPs Records in relation to Ms Ruiz, Y and Mr B
A-2	Surgery Consultation Notes from Suburb CC Medical Centre in relation to Ms Ruiz, 07/07/2020
R-1	Surgery Consultation Notes from Suburb CC Medical Centre in relation to Ms Ruiz, 27/04/2020
R-2	Surgery Consultation Notes from Suburb CC Medical Centre in relation to Ms Ruiz, 04/05/2020, 12/05/2020 & 15/05/2020
R-3	Medical Certificate from Suburb CC Medical Centre in relation to Ms Ruiz, 29/09/2020
R-4	Department of Communities and Justice – Contact Record, 14/10/2013
R-5	Department of Communities and Justice – Contact Record, 16/10/2013
R-6	Discharge Referral from EE Hospital in relation to Ms Ruiz , 08/09/2014
R-7	Emergency Documentation from H Hospital in relation to Mr B, 14/10/2013
R-8	Progress Note from H Hospital in relation to Mr B, 14/10/2013
ICL-1	Discharge Referral from EE Hospital in relation to Ms Ruiz Cabrera, 31/10/2014
ICL-2	Safety orders, protection orders and barring orders in Ireland from Citizens Information, Ireland
ICL-3	Statutory Instrument No. 473 2014 Immigration Act 2004 (VISAS) Order 2014, Ireland
ICL-4	Irish Nationalisation and Immigration Service FAQ Parents of Irish Citizen
ICL-5	Hand Assessment \| Initial Examination Notes from H Hospital in relation to Ms Ruiz, 23/04/2013
ICL-6	Mental Health Transfer/Discharge Summary in relation to Mr B, 28/10/2013
ICL-7	Progress/Clinical Notes from H Hospital in relation to Mr B, 24/10/2013
ICL-8	Mental Health Triage from H Hospital 04/09/2013 in relation to Mr B, 04/09/2013
ICL-9	Progress/clinical Notes from H Hospital in relation to Mr B, 09/09/2013
ICL-10	Email from the ICL to the parties, 24/11/2020
ICL-11	Email correspondence with Mr DD, Principal (F Town School) in relation to Y, 30/11/2020
ICL-12	Criminal History and Summary of COPs Events
ICL-13	Information from Citizens Information in relation to access to healthcare for children