Department of Communities, Child Safety and Disability Services and Hughes - [2017] FamCA 509

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & HUGHES

[2017] FamCA 509

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application for the return of a nearly 16 year old child to Argentina – Where the Respondent brought the child to Australia pursuant to an Order made by a Court in Argentina that he be able to do so between 23 July 2015 and 28 December 2015
FAMILY LAW – CHILD ABDUCTION – Whether the child objects to being returned to Argentina – Whether the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes – Whether the child is settled in Australia – Whether, pursuant to Regulation 15(1)(a), the Court has a discretion – Whether the discretion ought be exercised in favour of a return order.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640
Director-General, Department of Communities(Child Safety Services) v Kells (2009) 41 Fam LR 525
Director General, Department of Community Services v M and C (1998) FLC 92-829
Director-General, Department of Community Services v Moore (2003) FLC 93-132
In the Marriage of Agee (2000) 27 Fam LR 140
Northern Territory Central Authority & Gambini [2008] FamCA 544
State Central Authority and CR (2005) FLC 93-243

APPLICANT:

Director-General, Department Of Communities, Child Safety and Disability Services

RESPONDENT:

Mr Hughes

FILE NUMBER:

BRC

4428

2017

DATE DELIVERED:

18 July 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:	Hogan J
HEARING DATE:	17 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shoebridge

SOLICITOR FOR THE APPLICANT:

Ms Fitzgibbon, McInnes Wilson Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Kirkman-Scroope

SOLICITOR FOR THE RESPONDENT:

Ms Ray, Woods Prince Lawyers

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous Orders are discharged.
The child, M (a male), born … be returned to Argentina and, for the purposes of giving effect to this Order:
(a)the said child leave the Commonwealth of Australia on or before 25 July 2017; and
(b)the said child arrive in Argentina on or before 26 July 2017; and
(c)pending the child returning to Argentina, the Respondent continue to be restrained and an injunction is hereby issued, restraining him from removing or attempting to remove the child from the Commonwealth of Australia; and
(d)pending the child returning to Argentina, the Respondent continue to be restrained and an injunction is hereby issued restraining him from removing or attempting to remove the child from the premises where he and the child are currently residing, namely C Street, Suburb D in the State of Queensland; and
(e)subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all federal agents of the Australian Federal Police retain the names of the Respondent, Mr Hughes, born … 1961, and the child M (a male), born … 2001 on the Family Law Watchlist at all international departure points in Australia; and
(f)the names of the child and the Respondent be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Communities, Child Safety and Disability Services advising of the travel arrangements made for the child to return to Argentina from 12.00 am on the date nominated for the travel in the letter; and
(g)the Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders; and
(h)to facilitate the return of the child to Argentina, Ms E, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release all current passports relating to the child for the purpose of the child’s return to Argentina and to release the Respondent’s passport to him (or his nominee) upon request.
The Applicant has liberty to apply on short notice to seek any further orders necessary to allow him or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this Order and pursuant to the Central Authority’s obligation under Regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986.
All other Applications are dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disability Services & Hughes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4428 of 2017

Director-General, Department of Communities, Child Safety and Disability Services

Applicant

And

Mr Hughes

Respondent

REASONS FOR JUDGMENT

By an Application in Form 2 filed on 5 May 2017, the Director-General, Department of Communities, Child Safety and Disability Services in his capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) seeks an order that nearly sixteen year old M (a male), born in 2001,[1] be returned to Argentina.[2]
[1]And, thus, still a ‘child’ for the purpose of the Regulations which define that term to mean “a person who has not attained the age of 16 years”: Regulation 2.
[2] Regulation 14(1)(a)(i) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
The Application falls to be determined in the following undisputed circumstances:
a)the child has been in Australia since about 25 July 2015; and
b)the child’s presence in Australia is the result of the Respondent father’s successful application to the relevant Argentinian Court for an order permitting him to remove the child from that country for a defined period of time (that is, between 23 July 2015 and 28 December 2015); and
c)the child’s mother unsuccessfully opposed the Respondent’s application in Argentina on the basis of her expressed concern that the Respondent would not return the child to that country if permitted to remove him from it; and
d)on 20 July 2015, an order made by the relevant Argentinian Court permitted the Respondent to remove the child from Argentina and travel with him to Australia between 23 July 2015 and 28 December 2015; and
e)the July 2015 Order required the Respondent to return the child to (his mother in) Argentina on 28 December 2015; and
f)the mother unsuccessfully appealed the July 2015 Order and last saw the child in person, face-to-face, on 21 July 2015; and
g)at some time in December 2015 (while he and the child were in Australia), the Respondent applied, with the assistance of a lawyer he engaged in Argentina, to the relevant Argentinian Court for an order that he not be required to return the child to Argentina (as required by the 20 July 2015 Order) and/or that the child remain in Australia; and
h)at some time in December 2015, the Argentinian lawyer engaged by the Respondent advised the mother and the relevant Argentinian Court that the child would not be returning to Argentina; and
i)despite the December 2015 Application and whatever processes the same set in motion in Argentina, no order has ever been made in Argentina changing the terms of the July 2015 Order or removing from the Respondent the obligation imposed by it on him to return the child to Argentina: that is, the 20 July 2015 Order remains in force in the same terms in which it issued; and
j)despite the terms of the 20 July 2015 Order, the Respondent failed to return the child to Argentina on 28 December 2015 and has since retained him in Australia; and
k)there is no credible evidence to suggest that the Respondent laboured under any misapprehension that his application to change the terms of the July 2015 Order of itself meant that he was freed from the obligation it imposed on him to return the child to Argentina by 28 December 2015; and
l)one consequence of the Respondent’s deliberate non-compliance with the terms of the July 2015 Order is that the child has been separated from his mother and from his brother, now eighteen year old F[3] who remains living with their mother in Argentina.
[3] Born in 1999.
In addition, given the Respondent’s evidence about the asserted lack of determination of his application to change the terms of the July 2015 Order (and/or, arguably, the Order which was made in 2009/February 2010 by which the mother was accorded custody of the child and his brother), I am easily persuaded that it is much more likely than not that, as at 28 December 2015, he knew that the terms of the July 2015 Order remained binding on him.
According to the Report prepared pursuant to Regulation 26, it appears that the Respondent asserted a view that the July 2015 Order “implicitly” provided for the child to decide whether he wished to live in Australia or Argentina.[4] There is no expert evidence, including that provided by Mr G (who the Respondent engaged to act for him in the proceedings in Argentina) to definitively substantiate any such assertion.
[4] Family Report dated 14 July 2017, paragraph 2.
To the extent that it is necessary that I do so (given the concessions made by Counsel for each party and the manner in which the Application was run and opposed), I express my findings that, on the evidence before me:
a)the child was habitually resident in Argentina, a Convention country within the meaning of the Regulations, immediately before he was retained in Australia on 29 December 2015; and
b)the mother had rights of custody in relation to the child under Argentinian law immediately before his retention in Australia; and
c)the child’s retention in Australia after 28 December 2015 is in breach of the mother’s rights of custody; and
d)at the time the child was retained in Australia, the mother was actually exercising her rights of custody or would have exercised them if he had not been retained here; and
e)the mother has never consented to the child moving to live in this country; and
f)the mother opposed the Respondent being able to remove the child from Argentina on 23 July 2015 (even for the purpose of holiday); and
g)the mother did not consent to the child remaining living in Australia at any time after 28 December 2015 and, when considered in the context of the difficulties which confronted her (which I accept were as outlined in her affidavit material[5]), attempted proactively to seek his return to Argentina; and
h)the mother has not in any way acquiesced to, or in, the child’s retention in Australia after 28 December 2015.
[5]Affidavit of Ms L sworn 2 January 2017 (Attached to Form 2) at [18], [22] and [23].

Relevant background

The Respondent (who was born in Australia in 1961) and the child’s mother (who was born in Argentina in 1966 and is a citizen of both Argentina and Australia) married in Australia in 1992.
The child was born in Australia. He is a citizen of both Australia and Argentina.
The child’s parents differ in their recounting of a number of historical events. Resolution of these differences is, in many cases, unnecessary for the resolution of this Application.
It is sufficient to record that, until he was removed from Argentina by the Respondent in July 2015, the child had lived in that country since about 2007. On the Respondent’s account, the child and his brother lived with their mother from no later than 2009, when a temporary order accorded her custody of them and accorded him visitation at a frequency of once per month; thereafter – but still, it seems, in 2009 on his case – orders were made (by consent) by which it was agreed that the mother would have custody of the children and the Respondent would have wide visitation rights, including spending time with the children every time he visited the city where they lived with their mother, on long weekends, during Easter and winter school holiday periods. It is said by the Respondent that these orders were for a period of two years.
However, the mother’s evidence is that the relevant Argentinian Court made a final parenting order in February 2010, by which she was afforded the sole right of custody in respect of the children and the Respondent was given rights of visitation.
Whether the order was made in 2009 or February 2010 does not seem to me to matter much in the present circumstances. What is clear, whether from 2009 or February 2010, is that, from no later than February 2010, the mother was accorded (primary) custody of the child and his brother by consent order made by the relevant Argentinian Court.
What is also particularly relevant, it seems to me, is that there is nothing in the evidence to suggest that, until the July 2015 Order was made, there were any subsequent orders made by the relevant Argentinian Court to change this parenting arrangement or to accord the Respondent more time with the children than was provided for in the 2009/February 2010 consent order.
The Respondent’s evidence is that, between 2009 and 2015, the mother made it difficult for him to spend time with the children. During her cross-examination by Counsel for the Respondent, the mother refuted this assertion. In essence, she said that the only time she refused to allow the children to spend time with their father was on one occasion during a school holiday period when he had not given notice of his intention to spend time with them, but simply turned up.
Whatever the actual position, it is clear the Respondent was able successfully to apply to the relevant Argentinian Court at some time before 20 July 2015 for permission to remove the child from Argentina between 23 July 2015 and 28 December 2015.
In any event, the nature of this Application and the accepted circumstances of the child’s retention in Australia after 28 December 2015 seem to me to make resolution of this divergence of account unnecessary in the consideration and determination of the current Application.
Another example of divergence in the accounts provided by the parents may be found in their respective recounting of the child’s care arrangements in early 2015: the Respondent alleges that the child was living with him at this time, whereas the mother asserts this was not the case. Whatever the true position, there is nothing in the evidence before me to suggest there had been any formal change, whether via written agreement of the parents or by way of judicial intervention, to the terms of the order made in 2009/February 2010 (which accorded the mother primary custody[6] of the children).
[6] To use the term used by both the Respondent and the mother in their recounting.

The Applicant’s concession in respect of the date of the child’s wrongful retention

Reference only to the Case Outline prepared by Counsel for the Respondent would result in the idea that, at the hearing, the Applicant contended for a date other than 28[7] December 2015 as the date of retention for the purpose of the application of the Regulations.
[7] Or 29 December 2015.
However, these submissions were prepared before Counsel for each party had the opportunity to converse. Such communication clarified that the Applicant accepts that 29 December 2015 is the relevant date for the child’s wrongful retention by the Respondent.

The Respondent’s concessions

Counsel for the Respondent quite properly conceded that the Applicant is an eligible applicant; that the child was under 16 years of age at the time the Application for a return order was made; that the child was habitually resident in Argentina before his removal from that country; and that, when the child was removed from Argentina, his mother had rights of custody in relation to him that were actually being exercised.
It was also conceded that the child’s retention in Australia is ‘wrongful’ within the meaning of Regulation 16(1A)[8] because the Respondent failed to return him to Argentina in accordance with the obligation imposed on him by the terms of the July 2015 Order.
[8]Whilst the reference at [5] on p. 3 of the Case Outline is to “Regulation 16(1)”, I have proceeded on the basis that this is likely a typographical error and likely intended to be a reference to Regulation 16(1A), which details the circumstances in which a child’s removal or retention is ‘wrongful’ for the purpose of Regulation 16(1).
However, given that 29 December 2015 is accepted as being the date on which the child was first retained in Australia, it is clear that the Application for a return order was filed more than one year after this date. As Counsel for the Respondent adverted to in the Case Outline, Regulation 16(2) applies so that, if I am satisfied that the Respondent[9] has not established that the child has settled in his new environment[10], I must, subject to Regulation 16(3)[11] make an order for his return to Argentina.
[9] Who bears the onus.
[10] Regulation 16(2)(c ) Family Law (Child Abduction Convention) Regulations 1986.
[11]In this case, the only exception advanced by the Respondent is that particularised in Regulation 16(3)( c).
It was accepted by Counsel for the Respondent that, even if I am not satisfied that the Respondent has not established that the child has settled in Australia, a residual discretion to make an order for his return to Argentina exists. Even if this concession had not been made, I consider that such discretion exists.[12]
[12]Regulation 15(1)(a ) Family Law (Child Abduction Convention) Regulations 1986; see: Director-General, Department of Community Services v M and C (1998) FLC 92-829 at 85,491 & 85,492; Director-General, Department of Community Services v Moore (2003) FLC 93-132; Northern Territory Central Authority & Gambini [2008] FamCA 544 at [107] – [115]; Director-General, Department of Communities(Child Safety Services) v Kells (2009) 41 Fam LR 525
Given the child’s age, an Order for the preparation of a Regulation 26 Report to address the matters particularised in Regulation 16(3)(c) was made when the matter was first substantively before me. Given that the date for determining whether the child objects is the date of the hearing,[13] it is fortunate that the interview process was undertaken last week.
[13] In the Marriage of Agee (2000) 27 Fam LR 140.

The Regulation 26 report[14]

[14] Regulation 26, Family Law (Child Abduction Convention) Regulations1986

The child was interviewed by Ms H, a Family Consultant, on 13 July 2017. Ms H also spoke with the Respondent that day but did not speak with the mother.
Ms H was not required for cross-examination.
It appears, from her interview of the Respondent, that he told the child he was being interviewed because his mother wanted him to return to Argentina and that his (the child’s) view would play a large part in the outcome.
The Respondent told Ms H that the child’s response was “if I turned 16 this is all over?” He also reported that the child remarked: “I could disappear… hide.”[15] However, there is no suggestion in Ms H’s report that the child made such comments to her.
[15] Family Report dated 14 July 2017, paragraph 4.

Ms H reports that, having explained the Hague Convention process to him, the child clearly conveyed his understanding that there was a possibility he may be required to return to Argentina while a decision is made there about his parenting arrangements.
The child told Ms H that he enjoyed school, liked his teachers (whom he considered to be kind and helpful), had made numerous friends at school (some of whom he associated with outside of school) and participated in extracurricular activities.[16]
[16] Family Report dated 14 July 2017, paragraph 8.
The child told Ms H that it was “his decision” to live in Australia because Argentina was unsafe and there were better educational and employment opportunities in this country. Ms H thought his views appeared to be “at least partly authentic” because of the examples he provided her.[17] Given that the child told Ms H that “safety and employment” were also the Respondent’s stated reasons for leaving Argentina, she also expressed the opinion that his (the child’s) views may also “partly” be the product of the Respondent’s influence or, at least, coincide with the Respondent’s views.[18] I consider the former to be highly likely.
[17] Family Report dated 14 July 2017, paragraph 10.
[18] Family Report dated 14 July 2017, paragraph 11.
Ms H also records that the child told her of his plan to attend university in this country. His understanding appears to be that Australian universities do not accept people who have completed Year 12 in Argentina such that, if he completed Year 12 in that country, he thought he would have to repeat Year 12 here.[19] However, there is no evidence before me to establish that the child’s understanding of the educational position in Australia vis-à-vis students who complete their secondary education in Argentina is correct.
[19] Family Report dated 14 July 2017, paragraph 10.
The child told Ms H that, if it was not the case he would have to repeat Year 12 in Australia if he returned to Argentina to complete his secondary education, he would still be older if he finished school in that country rather than in Queensland.[20] Again, there is no evidence before me to establish that the child’s understanding in this respect is factually correct.
[20] Family Report dated 14 July 2017, paragraph 10.
The child described his mother positively to Ms H. He said he loves and misses her and Mr F.[21] He said he wanted to visit them during school holidays and that he intended to visit Argentina for a few months when he completed Year 12.
[21] Family Report dated 14 July 2017, paragraph 12.
Ms H reports that the child told her he would be disappointed with his mother if she did not allow him to live in Australia and had recently sent her a text message to “stop doing this because I want to stay here”. However, Ms H also records that he did not think that his relationship with his mother would be adversely affected if he returned to Argentina.[22] From his statements, she concluded that he shares a loving relationship with his mother and has an intention to remain connected with her.[23]
[22] Family Report dated 14 July 2017, paragraph 13.
[23] Family Report dated 14 July 2017, paragraph 17.
The child told Ms H that he maintained contact with friends from Argentina and thought that if he returned to that country, he would most likely return to his previous school – which he described as being a “good” school.[24]
[24] Family Report dated 14 July 2017, paragraph 13.
Ms H reports that the child thought his relationship with his father would be compromised if he lived with his mother as he was almost certain she would not allow him to visit his father in Australia.[25] He was also unsure about whether she would permit him to spend time with his father in Argentina: he recalled that she “hid” him and his brother when his father came to visit them in the past and said that she had previously told him that his father “wants to kidnap us (the child and his brother) and take us back to Australia”. He also appeared to think that there were “charges” against his father which had been initiated by his mother and he was worried that his father “might go to jail” if he entered Argentina.
[25] Family Report dated 14 July 2017, paragraph 14.
As noted elsewhere, the Respondent’s account is that the mother frustrated his attempts to spend time with his children, whilst the mother’s account is a denial of consistently hiding the children or preventing them from seeing their father. Given that the mother accepts there was one occasion on which she prevented the children from spending time with their father (albeit that she says this was because he had not told her of his intention to visit), it is possible that the child’s recounting to Ms H is of a memory of that occasion; it is also possible that his recounting of his recollection has been influenced by his exposure to his father’s account, especially in circumstances where – as a consequence of the Respondent’s decision not to comply with the July 2015 Order – he (the child) has had only some telephone communication[26] with his mother since July 2015.
[26] Family Report dated 14 July 2017, paragraph 12.
In any event, whatever the mother’s actual behaviour, there is nothing in the evidence before me to suggest that the Respondent took any action to return to the relevant Argentinian Court to seek redress about such asserted behaviour before he petitioned that Court for the order made in July 2015.
The mother was not asked during her cross-examination by Counsel for the Respondent whether she had previously told the child that the Respondent wanted to kidnap him and F and take them back to Australia. However, her opposition to the making of the July 2015 Order evidences a prescient view that the Respondent would not return the child to Argentina if permitted to remove him from that country.
Given the absence of interaction between the child and his mother since July 2015 and the Respondent’s evidence about his concerns about returning to Argentina (namely, that he is concerned for his personal safety if he returns to Argentina as he has been threatened by members of the mother’s family and that he faces charges of kidnapping in a system which proceeds on the basis of a person being ‘guilty’ until they prove their innocence), it seems much more likely than not that the Respondent is the source of the child’s expressed thoughts about the existence of “charges” against his father and also the source of his attendant concern that his father might be jailed if he enters Argentina.
When cross-examined by Counsel for the Respondent about her evidence that he was facing charges/was indicted, the mother’s evidence was as I have summarised it in paragraph 63(i) below; in summary, she said he had been investigated about non-payment of financial support for the children and she denied making a report of kidnapping to the police.
There is no evidence to establish the potential consequences for the Respondent if the mother has in fact made a report of kidnapping to the police or other relevant authorities. There is no evidence to establish that the Respondent is at risk of being jailed if he returns to Argentina. Despite the Respondent relying on evidence from Mr G, the lawyer he engaged to represent him in the application he brought before the relevant Argentinian Court in December 2015, he did not adduce any evidence from Mr G to establish that, in Argentina, a person charged with an offence of kidnapping is presumed to be guilty until that person establishes their innocence. Additionally, it was not suggested to the mother during her cross-examination that any members of her family have threated to harm the Respondent if he returns to Argentina.
Returning to the report, Ms H records that the child told her that he would “have to” accept returning to Argentina if an order to this effect was made.[27]
[27] Family Report dated 14 July 2017, paragraph 15.
This acceptance is, I think, telling, especially given that, as noted earlier, the Respondent had told the child (before he spoke with Ms H) that his views would play a large part in the outcome of this matter. In addition, this acceptance seems to me to be at least somewhat inconsistent with what the Respondent told Ms H (as recounted in paragraph 27) the child had said to him during that conversation.
Ms H recounts that “no risk factors” were reported in relation to the child returning to Argentina.[28] However, given that she also recounted the child’s comment that it was his decision to live in Australia because Argentina was unsafe, I have interpreted the “no risk factors” assertion as meaning that she was not provided with any report of any detailed or “particularised” risk factors.
[28] Family Report dated 14 July 2017, paragraph 16.
Ms H’s unchallenged opinions, which I accept, are that:
a)the child appeared to give calm, considered and independently formed responses when she explored his family relationships, the current situation and possible future scenarios with him;[29] and
[29]         Family Report dated 14 July 2017, paragraph 16.
b)the child’s responses demonstrated his ability to think abstractly, to consider several hypotheses and future forecasts - in light of this, he has attained an age and a degree of maturity at which it is appropriate to take account of his views;[30] and
c)the child has established social networks in Australia and Argentina;[31] and
d)the child remembers his former school in Argentina;[32] and
e)the child’s objection to returning to Argentina:
i)is more about his preference to live in Australia than reflective of his experience of a poor problematic relationship with his mother;[33] and
ii)is predominantly based upon the differing lifestyle factors which he believes exist in each country.[34]
f)based on the allegations that the mother has attempted to obstruct the child’s relationship with his father in the past, the primary disadvantage of the child returning to Argentina may be the potential impact upon his ability to maintain a meaningful relationship with the Respondent;[35] and
g)if the mother is indeed a negative influence on the child’s relationship with the Respondent, his (the child’s) age and independent positive experiences of his father during the last two years are “highly likely” to ameliorate such influence.[36]
[30]         Family Report dated 14 July 2017, paragraph 16.
[31]         Family Report dated 14 July 2017, paragraph 17.
[32]         Family Report dated 14 July 2017, paragraph 17.
[33]         Family Report dated 14 July 2017, paragraph 12.
[34]         Family Report dated 14 July 2017, paragraph 17.
[35]         Family Report dated 14 July 2017, paragraph 18.
[36]         Family Report dated 14 July 2017, paragraph 18.
Having regard to Ms H’s evidence, I certainly accept that the child has attained an age and degree of maturity at which it is appropriate to take account of his views.[37]
[37] Regulation 16(3)(c )(iii), Family Law (Child Abduction Convention) Regulations 1986 (Cth).
Counsel for the Applicant conceded that the child objects to being returned to Argentina. However, I am not persuaded that this is really the case rather than, as Ms H opines, an expression of preference. I also place particular reliance on the fact that, despite being told by the Respondent that his views were particularly important, the child was accepting, during his discussion with Ms H, of the possibility of returning to Argentina if the Court made such an order. I also place particular weight upon the child’s assertion that he did not think being returned to Argentina would adversely affect his relationship with his mother.
If I am wrong in this conclusion and the child objects to being returned to Argentina, I do not join in the Applicant’s conclusion that such objection shows a strength of feeling beyond a mere expression of a preference or an ordinary wish. Having regard to Ms H’s evidence and her opinions, the child’s expressed acceptance if an order was made for his return to Argentina, and his views about the impact of returning to Argentina on his relationship with his mother, I am not persuaded that any objection he has expressed to returning to Argentina currently shows strength of feeling beyond the mere expression of a preference or of ordinary wishes.
Consequently, I am not persuaded that the Respondent has established the only Regulation 16(3) exception relied on in his case.
Of course, this is only relevant if I am satisfied that the Respondent has not established that the child has settled in his new environment (that is, in Australia).

Has the Respondent not established that the child has settled in Australia?

Authority establishes that the word ‘settled’ in Regulation 16(2) should be given its ordinary meaning.[38] The time at which the assessment of whether the child has settled in his new environment is to be undertaken is either at the time the Application was made or at the time of the trial.[39] I intend to undertake the assessment as at trial.
[38]Director General, Department of Community Services v M and C (1998) FLC 92-829 at 85,488 to 85,492.
[39]Director General, Department of Community Services v M and C (1998) FLC 92-829 at [91].
The Respondent’s evidence is that, since arriving in Australia, the child has attended J School at Suburb D where he is doing well academically, is currently in Grade 11 and has made a number of friends.
The only school report from J School in evidence is that which relates to Semester 1 2017.[40] This seems to me to establish that the child consistently attended the school during the period covered by the report, has achieved a range of academic results (from an A- to Cs) in his five subjects, has been diligent in his approach to the subjects in which he has achieved higher results and has been the subject of recommendations to consolidate his classwork with regular homework in the subjects in which his results have been more limited. These comments provide some support for the Respondent’s recounting to Ms H on 13 July 2017, that the child has performed well in subjects he likes but lacks motivation and is lazy in other areas.[41]
[40] Exhibit 1.
[41] Family Report dated 14 July 2017, paragraph 4.
The Respondent also says that, since arriving in Australia, the child has joined a local club and has also participated in other sports activities. His 2017 Semester 1 report also records that he has been involved in volleyball (via the Region K Independent Schools Sports Association) and has also participated in Australian Rules football.
Reference to the child’s Semester 1 report from Brisbane School of Distance Education[42] establishes that he has achieved very high results in Spanish via his engagement in that educational interaction (however it takes place).
[42] Exhibit 2.
There is no evidence before me about the child’s actual living arrangements since he was brought to Australia by the Respondent in July 2015: for example, I do not know whether they have always lived in the same residence and I do not know whether they have always lived alone in that residence (or any other residence) or been joined by any other person; I do not know whether the Respondent personally meets all of the child’s day-to-day care arrangements or whether he is assisted in doing so.
Whilst Counsel for the Respondent also submitted that the fact that the child said he would “have to” accept returning to Argentina if an Order was made to this effect does not make his objection to returning to Argentina any “less strong” or “reduce it to a preference” (but is, rather, an indication of the child’s maturity and willingness to be a law abiding citizen), I have extrapolated from this submission that the Respondent also contends that the absence of a strong expression of wish by the child to return to Argentina suggests he has settled in Australia since he was brought to this country by the Respondent on 25 July 2015.
Counsel for the Respondent also submitted that the following matters would persuade the Court that, since his retention here on 28 December 2015, the child has settled in his new environment of Australia:
a)he has lived continuously in Australia for two years and is halfway through Year 11 at J School; and
b)he expressed his ‘objection’ to returning to Argentina when he spoke with Ms H on 13 July 2017 and had previously expressed this to the relevant Argentinian court during video-link proceedings in January 2016; and
c)his school reports show that he has demonstrated a willingness to be involved in activities and has been considerate towards others and has had positive interactions with others; and
d)he told Ms H he had numerous friends at school, spends time outside of school with a number of them and has been involved in sports activities; and
e)he has re-established his relationships with his “Australian family”, although there is no evidence at all to particularise what is meant by this phrase as used by the Respondent in his evidence; and
f)he has future plans to attend university in Australia; and
g)he recently sent his mother a text asking her to “stop doing this because I want to stay here” – a message the mother accepted receiving, but did not necessarily accept as emanating from the child himself; and
h)he has maintained a relationship with his mother, despite not having seen her physically since about 21 July 2015: I also note that the child told Ms H that, since July 2015, he has had some telephone contact with his mother and Mr F.[43]
[43] Family Report dated 14 July 2017, paragraph 5.
Not all of these matters seem to me to be relevant to the determination of whether the Respondent has not established that the child is settled in Australia. However, I take them into account, as I take into account Counsel for the Applicant’s lukewarm contra-assertions in relation to this issue.
Although it is not without some reservation, on balance I am satisfied on the balance of probabilities that the child is settled in Australia in the sense that he has adjusted to life in this country.[44] Therefore, I am not satisfied that the Respondent has not established that the child has settled in Australia and, consequently, Regulation 16(2) does not apply to mandate the making of an order for return in the absence of the establishment of a Regulation 16(3) exception.
[44] See: State Central Authority and CR (2005) FLC 93-243 at [52].

Discretion pursuant to Regulation 15(1)(a)

As already noted, Counsel for the Respondent accepted that, even if the Court found that the child has settled in his new environment of Australia at the time of the hearing, the Court retains the discretion to make an order for his return to Argentina if satisfied that it is desirable to do so.[45]
[45] Regulation 15(1)(a), Family Law (Child Abduction Convention) Regulations 1986.
Counsel for the Respondent submitted that the Court would not be persuaded that it is desirable to make such an order and would in fact be persuaded that the proper exercise of discretion would see the making of an order dismissing the Application. It was submitted that a number of matters persuade of such a conclusion. They, as summarised below[46] and accompanied by my consideration of them, are as follows:
[46]        Being italicised.
a)the final parenting order made by consent in Argentina in 2009/ February 2010 provided that the father have significant and substantial time (said to include all holiday time) with the children: Even if (which is not, as I understand it, necessarily accepted by the mother) the 2009/February 2010 order provided for the children to spend a significant amount of time with their father, it did not provide for:
i)the child to live primarily with the Respondent in another country; nor
ii)for the child and his brother to be separated; nor
iii)for the child to have nothing but telephone communication (of whatever frequency) with his mother.
b)the father acted at all times in a legal openhanded manner by bringing the appropriate application before the relevant Argentinian court to seek to bring the child to Australia and sought the requisite permission prior to removing the child from Argentina in July 2015 or taking matters into his own hands and moving the child to Australia without any permission at all: Whilst it is accepted that the Respondent applied to the relevant Argentinian Court for an order permitting him to remove the child from Argentina, it is clear that the July 2015 Order required him to return the child to Argentina on 28 December 2015; in the absence of any order varying the terms of the July 2015 Order before that date or since, I am not remotely persuaded that the Respondent has at all times acted in a ‘legal openhanded manner’ - in fact, I consider it overwhelmingly obvious that he simply failed to comply with the terms of the July 2015 Order once he obtained the permission it granted to him to remove the child from Argentina.
c)the child travelled to Australia with the permission of the Argentinian Court and such permission included that he be able to study and attend school in Australia: I accept the child travelled to Australia (as distinct from remaining in Australia after 28 December 2015) with the permission of the Argentinian Court.
d)the father advised the mother before 28 December 2015 as soon as the child expressed that he wanted to stay in Australia and then brought an application to the Argentinian Court for permission from that Court to retain the child here: Whilst there is no evidentiary challenge to these assertions, as noted elsewhere, the Respondent did not have any other order from the relevant Argentinian Court when he decided not to return the child to Argentina in compliance with the terms of the July 2015 Order and, given its terms, the mother would not have had any remedy in respect of the same until after 28 December 2015 in any event.
e)the delay in the bringing of the Application for a return order[47] means that the child is settled in Australia and, consequently, an order returning him to Argentina would be very disruptive to his progress and development at this important stage of his adolescent life because, since being in Australia since 23 July 2015, he has had an undisturbed and successful integration into life in Australia in the care of his father: I accept that there has been delay in the bringing of the Application for a return order; I also accept the mother’s evidence about what was happening in terms of the legal processes (and other matters associated with the same) in Argentina between 29 December 2015 and 19 October 2016 when the Application for a return order was prepared and I note that it was not suggested that she in any way acquiesced in the child remaining in Australia. Whilst I accept that an order now returning the child to Argentina is highly likely to cause him some disruption, his comments to Ms H about missing his mother and brother, his willingness to abide an order for his return, his ongoing relationships with his friends in Argentina and his expectation that he would return to his former ‘good’ school upon his return to that country all combine to lead me to conclude that I am not persuaded that an order returning the child to Argentina (his home until July 2015, when he left ostensibly for an extended holiday visit to Australia) would be very disruptive to him; if I am wrong in this conclusion, I consider that the benefits of the opportunity to resume his previously agreed parenting arrangements, to reconnect in person with his mother and brother (both of whom he loves and misses), to reconnect in person with his friends and the other aspects of his life in Argentina outweigh any (unparticualrised) deleterious impacts of such disruption.
f)the child should not be forced to endure a serious physical disruption to his life for the sake of “the evil of child abduction worldwide”: I certainly accept that, if the issue of the worldwide deterrence of child abduction was the only issue for consideration in a matter such as this, it is highly unlikely that a Court would be satisfied that it is desirable to make a return order; however, this case does not involve only the consideration of such an issue and the exercise of discretion here involves the consideration of all of the factors raised by each of the parties in the circumstances established by the evidence; any order for the child to return to Argentina will not be made for the sole purpose of addressing the issue of worldwide child abduction; or to punish the Respondent for his actions in failing to abide the terms of the July 2015 Order; if made, it will be made because, in the exercise of the wide discretion I consider reposes in the Court in the circumstances of this case, I have concluded that I am satisfied that it is desirable to make such a order.
g)whilst in Australia, the child has the opportunity to maintain a relationship with both his mother and his brother via his own independent communications: I accept that, according to the information he provided to Ms H, the child has had some telephone communication with his mother and brother but I also note that he said he missed them both and would like to visit Argentina.
h)given the passage of time since his retention in Australia on 28 December 2015, the purpose of the Convention in providing a means for the “prompt” return of children to their places of habitual residence cannot be satisfied: Whilst I accept that the time that has passed since the child was retained in Australia by the Respondent in non-compliance with the July 2015 Order is, because of its associated impact on the child, certainly a relevant consideration in the exercise of the discretion and is something which I must take into account in determining whether I am satisfied that it is desirable to make an order for his return to Argentina, I do not accept that the passage of time is, of itself, determinative; I consider that, whilst the purpose of the Convention is to provide a means for the “prompt” return of children to their country of habitual residence and that the Regulations, in a sense, take up this purpose by mandating the making of return orders once certain defined matters are established, the absence of a Regulation which prohibits the making of a return order after the passage of a nominated period of time, coupled with the existence of the discretion provided by Regulation 15(1), is suggestive of a broader purpose.
(i)as the Respondent faces the risk of sanctions and/or potential arrest if he returns to Argentina, any order for the child to return to that country would sever any physical contact between the father and child as the father would never be able to return to Argentina without being arrested: the Respondent gives evidence about the risk of sanctions and/or what is submitted to be no higher than “the potential” of his arrest if he returns to Argentina; the mother’s evidence about the sanctions he might face if he returns to Argentina oscillated: whilst her (translated) affidavit contains the assertion that the Respondent failed to comply with his alimony payment and this caused him to be “indicted” with the Public Prosecutor of her city and “now having to add the offence of concealment of my son from me, international abduction of a minor and disobedience to comply with Court Orders to return the child to his habitual residence”[48], during her cross-examination by Counsel for the Respondent, she corrected this by saying that the father was ‘suspected’ of failing to pay alimony (but not indicted for this), that he was not suspected of anything else and she denied making a report of kidnapping to the police; whilst documentary evidence (such as the Argentinian equivalent of a charge sheet) may well have assisted to determine what charges if any the Respondent may face if he returns to Argentina, no such document was placed before me and there is no expert independent evidence to establish that the Respondent is, in fact, unable to return to Argentina without being arrested.
i)an order for return to Argentina would be contrary to the child’s expressed wish to remain in Australia, something that is particularly relevant given that, at his age, such expression of wish should be given considerable weight: I certainly accept that, at his age, the child’s’ expressions of wishes about his future should be accorded significant weight; here these seem to me to include a wish to remain in Australia, to spend time in Argentina and (by implication) to address the fact that he misses his mother and brother.
[47]        For whatever reason.
[48]         Affidavit of Ms L sworn 2 January 2017 at [10], annexed to the Form 2 Application.

In addition to the matters discussed above, Counsel for the Respondent also submitted that, in exercising the discretion, it is appropriate to take into account a number of further factors. These[49], and my consideration of them are as follows:
[49] Again denoted by the use of italics.
a)the comparative suitability of the forum to determine the child’s future parenting regime - in this case:
i)until July 2015, the child had not lived away from Argentina since moving to live there no later than about 2007 (when he was about six years of age); and
ii)previous parenting orders were made, by consent, by the relevant Argentinian Court in 2009/February 2010; and
iii)the July 2010 order permitting the Respondent to remove the child from Argentina between 23 July 2015 and 28 December 2015 was made by the relevant Argentinian Court; and
iv)the Respondent’s evidence is that his application to the Argentinian Court for permission to retain the child in Australia remains on foot; and
v)the Respondent has repeatedly demonstrated the ability to participate in the proceedings in Argentina via the engagement of a legal representative there, whilst the mother’s engagement in these proceedings has only been facilitated by the intervention of the respective Central Authorities; and
vi)there is no evidence to suggest that the mother has the financial capacity to participate in parenting proceedings in Australia (where she has not lived since no later than about 2007).
b)the likely outcome (in whichever forum) of the substantive proceedings: in this case there is insufficient expert evidence before me about the applicable Argentinian law and/or the processes of the Courts entrusted with its administration to permit me to proffer even a tentative opinion as to the likely outcome of future proceedings relating to the child’s parenting arrangements or the timeframe for the finalisation of the same in Argentina.[50]
[50]Although I do note the Respondent’s evidence that, having commenced proceedings in Argentina at some time in December 2015, the relevant court there convened a videolink conference with the child in early January 2016.
c)the situation which would await the Respondent (an absconding parent) and the child if compelled to return to Argentina – in this case:
i)(as already noted) there is no expert evidence as to the potential legal consequences for the Respondent if he determines to return to Argentina in the event that an order is made for the child to return to that country; and
ii)the child’s age is such that he is able to travel to Argentina independently of the Respondent; and
iii)the child would return to the care of his mother, a parent he misses and with whom (according to Ms H’s assessment based on his recounting) he has a loving relationship and into whose custody he was entrusted when consent parenting orders were made in 2009/February 2010; and
iv)the child would return to the company of his older brother Mr F, whom he misses and with whom he had lived for no less than the vast majority of his life[51] until the Respondent removed him from Argentina in July 2015; and
[51]Even accepting the Respondent's evidence that the child lived with him from the beginning of 2015 – a matter which is disputed by the mother.
v)the child would return to his former school, which he described as being a “good” school;[52] and
[52]I have arrived at this conclusion because the Respondent did not adduce any evidence to counter the child's view, as expressed to Ms H, that, if he returned to Argentina, he would return to the school at which he previously attended.
vi)the child wold return to Argentina “if he had to”; and
vii)whilst the Case Outline prepared on behalf of the Respondent asserts that “it is unlikely the Respondent would return to Argentina if an order was made for the return of the child as there is a very real risk the father would be subject to criminal sanctions”[53], there is no actual evidence from the Respondent about his future intentions if an order is made for the child to return to Argentina.
[53] Case Outline of Respondent dated 17 July 2017, paragraph 34.
d)the anticipated emotional effect upon the child of an immediate return to Argentina – whilst there is no expert evidence addressing this issue, the following matters suggest to me that the emotional effect on the child of an order for his return to Argentina is more likely than not to be relatively muted:
i)he would be returning to the country in which, before July 2015, he had lived since he was about six years of age and to the school at which he had previously attended and to the friends with whom he has maintained contact since being brought to Australia by the Respondent in July 2015; and
ii)he has a loving relationship with his mother and brother, both of whom he misses; and
iii)Ms H’s evidence is that the child did not think that his relationship with his mother would be adversely affected if he returned to Argentina; and
iv)whilst the child told Ms H that he thought his relationship with his father would be compromised if he returned to Argentina because he was certain his mother would not allow him to visit him in Australia, Ms H’s evidence is also that he thinks that, if he returns to Argentina, his mother would allow telephone calls between him and his father because Mr F telephones now; and
v)Ms H’s evidence that, even if the mother had been obstructive of the relationship between the child and the Respondent in the past, the child’s age and his independent positive experiences of his father during the last two years are “highly likely” to ameliorate such influence; and
vi)even with his views about the possible impact on his tertiary education of a return to Argentina, the child did not express to Ms H anything to suggest that he thinks that such a return will be fatal to those aspirations; and
vii)whilst there may well be some impact on the child of leaving his current school and the friends he has made there and during the course of his engagement in activities outside of school, it seems to me to be highly likely he will be able to maintain contact with these friends in the same manner as he has maintained contact with his friends in Argentina.
e)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused: in this case, I consider that the purpose and underlying philosophy of the Hague Convention will be at a significant risk of frustration if a return order is not made because failing to make such an order will:
i)in effect, sanction the Respondent’s deliberate non-compliance with the July 2015 Order made by the relevant Argentinian Court (despite the agreed primary custodian’s opposition) to permit him to remove the child from Argentina between 23 July 2015 and 28 December 2015; and
ii)permit the Respondent to continue to implement, unilaterally, a fundamental change to the previously agreed parenting regime for the child, as reflected in orders made by consent by the relevant Argentinian Court in 2009/February 2010.
In addition to the matters already discussed, I also consider that the fact of each of the matters determined at paragraph 5 of these Reasons is also relevant in determining whether I am satisfied that it is desirable to make an order for the child’s return to Argentina.

Concluding remarks

In addition to any consideration of the matters outlined above, I specifically record that, in arriving at my decision in relation to the exercise of discretion to make an order for the child’s return to Argentina, I have taken into account the degree to which he appears to have assimilated and/or has become settled in Australia. I have accorded this and his expressions of wish to Ms H significant, but not determinative, weight in arriving at my ultimate decision that, in the circumstances of this particular case, it is desirable to make an order for his return to Argentina.
I have also considered the line of reasoning which is to the effect that, even if there has been “morally reprehensible conduct” on the part of an abductor, a time must be reached when, if the circumstances so dictate, it harms rather than helps a child to order that child’s return to the country from which he or she was wrongfully removed or retained. In this case, and for the reasons expressed, I am not persuaded on the evidence before me that an Order returning the child to Argentina is something which will harm him rather than help him.
For the reason outlined above, I decline to exercise the discretion by refusing to make an order for the child’s return to Argentina. Rather, I am satisfied that it is desirable to make an order for the child’s return to Argentina.
There are overwhelming reasons for his return to that country not to be delayed, not the least of which is the importance of reuniting him with his mother (the parent to whom his primary custody was accorded by agreement in 2009/February 2010 and to whose care he should have been returned on 28 December 2015 in compliance with the July 2015 Order), his brother and the environs which, until July 2015, constituted his home.
I therefore consider that the child should leave Australia for Argentina by no later than 25 July 2017. Given that there are both weekdays and a weekend between now and that date, I am satisfied that such a timeframe will accord him a reasonable opportunity in all the circumstances of this case to make his farewells.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 July 2017.

Associate:

Date: 18 July 2017.