Department of Community Services and Carmichael

[2008] FamCA 690

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & CARMICHAEL [2008] FamCA 690

FAMILY LAW – CHILD ABDUCTION - HAGUE CONVENTION - Whether the return of the child to Zimbabwe would constitute a grave risk of physical or psychological harm - evidence admitted in form of a travel warning issued by the Department of Foreign Affairs and Trade - Child’s objections – Regulation 16(3)(c) - strength of objection and maturity of the child - Whether the mother consented to the child residing in Australia permanently with the father- Regulation 16(3)(d)

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

De L v Director-General, NSW Department of Community Services & Another (1996) FLC 92-706
DP vCommonwealth Central Authority; JLM v NSW Department of Community Services (2001) 206 CLR 401
Genish-Grant v Director-General, Department of Community Services (2002) FLC 93-111
In Re M (FC) & Anor (FC) (Children) (FC) [2007] UKHL 55
Re K (Abduction: Consent) [1997] 2 FLR 212
Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321

APPLICANT: Director-General, Department of Community Services

RESPONDENT: Mr Carmichael

FILE NUMBER: SYC 2729 of 2008

DATE DELIVERED: 14 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 1 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE RESPONDENT: Ms Adams

Orders

1. The Application filed 12 May 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Department of Community Services and Carmichael is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2729  of 2008

Director-General, Department of Community Services

Applicant

And

Mr Carmichael

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application filed by the Director-General of the Department of Community Services as the New South Wales Central Authority under the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) in which the return to Zimbabwe of a male child, T, born in December 1995 in Zimbabwe, is sought.

Background facts

1. The child the subject of the application is twelve and a half years of age.

2. Until coming to Australia on or about 22 July 2007 the child always lived in Zimbabwe.

3. On or about 22 July 2007 the child left Zimbabwe to live with his father in Australia.

4. There is a dispute as to whether the stay was a temporary one for holiday contact or was the taking up by the child of a permanent residence with his father in Australia with the consent of the mother.

5. The mother of the child was born in Zimbabwe in May 1967 and is presently aged 41 years.

6. The father of the child was born in Zimbabwe in March 1969 and is presently aged 39 years.

7. In 1994 the mother and the father entered into a relationship, the nature of which is in dispute, the mother asserting that it was a traditional marriage and the father asserting that it was a casual sexual relationship.

8. In 1995 the mother became pregnant and at or about that time the relationship between them ended.

9. In December 1995 the child T was born.

10. In 1997 the father moved from B in Zimbabwe to Harare.  In 1999 the father entered into a customary union with his current wife, E, in Zimbabwe.

11. It is asserted by the father that the subject child stayed with him during each of the Zimbabwean school holidays between 2000 and 2003, and for two holidays in 2004.  The mother disputes this assertion.

12. In October 2000 a child R is born to the father and his wife.

13. In December 2001 a second child K is born to the father and his wife.

14. In 2004 the father and his wife marry in a civil service in Zimbabwe.

15. In 2004 the father and his wife, together with the two children of their marriage, migrated to Australia, with E arriving in October 2004 and the father and the two children joining her in December 2004.

16. In February 2005 the father’s evidence is that he applied for permanent residency for himself, his wife and two children by his marriage and also for the subject child, T.  He further asserts that he discussed the application with the mother and she took the child to relevant medical examinations to procure certificates required for the purpose of the application.

17. In October 2005 the father and his wife and two children of his marriage are granted permanent residence status in Australia.

18. It is asserted by the father and denied by the mother that they had many conversations in 2005 and the following year concerning the child’s application for permanent residence status.  It is noted that these discussions seemed to have lead to the procurement of medical examinations and reports in support of the application.

19. It is asserted by the father that in a telephone conversation in November 2006 the mother agreed to the child living in Australia, provided that the father paid of the visa and the air tickets.  The father made an application for a permanent residency visa for the child.  The mother asserts that her agreement was only for the child to spend time with the father during the holiday period and on the basis that he lived with his aunt, Ms A, whilst in Australia.

20. In December 2006 the father travels to Zimbabwe.  He asserts that he meets with the mother who agrees that the child live with the father in Australia and that the father would purchase a one way ticket for the child and pay all the costs of immigration.  The father returned to Australia and says that he was awaiting the outcome of the application for the child’s permanent residence visa.  The mother denies that there were any discussions about a visa and says that the father took advantage of her ignorance concerning international travel in explaining the one way ticket purchase.

21. The evidence derived from subpoenaed material then turns to conversations and other communications between the father and one Ms M (apparently more correctly spelt …).  This person is an officer of the Department of Immigration and Citizenship in Pretoria in South Africa who had responsibility for the oversight of the child’s application on the African continent.

22. It seems that Ms M was concerned to make inquiry of the mother as to her understanding of a consent previously given to a visa.

23. Email correspondence reveals, inter alia, that the mother on the 3 April 2007, is reported to have said, in the following terms:

    “- she advise (sic) that you told her that this is an indefinite visa so that [the child] can travel to Australia when he complete (sic) his University studies in Zimbabwe.  She verbally refused to give consent for the child to migrate to Australia.”

24. A further email reads as follows:

    “….phone applicant’s mother and she advised that sponsor told her that they are lodging an indifinate (sic) visa for the applicant so that he can keep and travel when he complete (sic) his University studies in Zimbabwe.  Explained to her that this is a 5 year visa where applicant need (sic) to enter Australia before the 17 December 2007 and should be settled in Australia in 2012.  A’s mother told me that applicant is still a little boy and will alow (sic) him to go to Australia when he has completed her (sic) studies in Zimbabwe.  I asked her to put it in writing and fax number was given to her on the phone.”

25. On 24 April the father contacted Ms M and stated that “I talked to [the mother] and I think she did not understand what (sic) you talked to her…May you kindly give me the opportunity to explain to her.”

26. On 26 April the father wrote to Ms M and said that “I have spoken to [the mother] and she said she did not understand properly and now she wants to give you the permision (sic) to proceed with the issue of visa”

27. On 30 April the mother signed a document stating that:

    “I [the mother] ID Number […] agree that you can give [the child] who is my son an indefinate (sic) visa to Australia as the father [Mr Carmichael] requested.  He will be going to [Ms A] who is my young sister who resides at […]New South Wales Australia.  For 2 weeks.”

28. An email from Ms M dated 31 May notes that:

    “Spoke to applicant’s mother today and she advise (sic) that she is giving the him (sic) permission to travel to Australia to live with his father.  I asked her why she refused to give him permission when I called her on the 13/4/2007. She said that she did not understand and sponsor has explained it to her.  I asked her what the sponsor told her.  She said that sponsor told her that the child will be moving to Australia to live with him and the child will visit him during the Australian school holiday.  She advise (sic) that she is allowing the child to live with his father in Australia”.

29. On 31 May a visa is granted to the child arriving before the 17 December 2007.

30. In June 2007 the father is advised that the child has been granted permanent residency visa.

31. In July 2007 the child flies to Sydney from Zimbabwe on a one way ticket.

32. In September 2007 the mother makes an urgent ex parte application to the High Court of Zimbabwe for a declaratory order that the removal of the child from Zimbabwe and his retention in Australia was wrongful and illegal.

33. In October 2007 the High Court of Zimbabwe declared ex parte that the retention of the child in Australia to be wrongful and unlawful and ordered that he be returned to Zimbabwe within 15 days of the granting of the order and further declaring the mother to be the guardian and sole custodian of the child.

34. In December 2007 an application was sent from the Ministry of Justice Legal and Parliamentary Affairs in Zimbabwe to the Australian Authorities for the return of the child to Zimbabwe

35. In May the present application is filed.

The issues

1. The father contends and the mother denies that the mother consented to the child living with him in Australia on a permanent basis.  There is no contention that she acquiesced in a wrongful taking or retention.

2. The father contends and the mother denies that there is a grave risk that the child would be exposed to physical and psychological harm if he is returned to Zimbabwe.

3. The Father says that the child is in a “well settled environment”.  It is suggested by the applicant, and I agree, that this assertion carries no weight since the issue only arrises if the return application is made more than one year after the removal form the country of habitual residence.

4. The child objects to being returned to Zimbabwe and the requirements of the Regulations as to his age, maturity and strength of feeling have been appropriately met and his view should be taken into account and given weight.

The Law

1. The relevant law is to be found in Regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).

2. There appears no issue that the thresholds created by the Regulations are crossed and the only matters for the Court to consider are those matters set out in regulation 16(3) which affords to the Court a discretion not to return a child if:

   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.

Consent to removal

1. In relation to the question of consent, it seems to me that, on the totality of the evidence, the father has not discharged his obligation to demonstrate that there are clear and unequivocal words which could be properly interpreted as consent on the part of the mother to the child residing in Australia permanently with the father.  All the subpoenaed evidence, which is the evidence independent of either party, could mean that there was consent but it does not on its face demonstrate unequivocally that this is the position.  In my view, the father has not discharged the onus cast upon him to demonstrate a real, positive and unequivocal consent.  Re K (Abduction: Consent) [1997] 2 FLR 212 and Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321, per May and Thackeray JJ who go on to say that the consent must be demonstrated by clear and cogent evidence. Such documentation as exists is ambiguous, and clearly the mother moved quickly, as was pointed out by the applicant authority, to recover the child upon ascertaining that he was not returning to Zimbabwe. This might be, of course, as much reflective of a change in mind as it was of an intention to enforce the limitations imposed by her on her consent for the child to visit Australia. It is also pointed out that the email transmissions from Africa were ones to which the mother was not a party. Certainly the Australian officials had the view that consent had been given otherwise presumably they would not have, after so much interrogation of the mother on the subject, with a view to a clear commitment, have granted the visa. It is noted that the communication from Ms M speaks of “the child will visit him during the Australian school holiday” (sic). Given earlier errors with the use of language this may have meant “child will visit her during the Australian school holidays”, but I do not feel that the evidence would justify me in making this decision.

2. Accordingly, I find that the father has not made out this ground for refusing an order.

Grave Risk of the child being exposed to physical or psychological harm

1. I now turn to the assertion of the existence of a grave risk to the child being exposed to physical or psychological harm.

2. Each of the father and the mother gave evidence on this issue.  The applicant contends that I should take the view expressed in the House of Lords case of In re M (FC) & Anor (FC) (Children) (FC) [2007] UKHL 55, which dealt with an application for the return of a child to Zimbabwe. Apart from adopting the view that a decision should not be the product of a knee jerk reaction but rather a careful consideration of all the relevant evidence, I do not find much assistance in the decision which was clearly a decision on its own facts at another time, namely December 2007.

3. The “grave risk” has been commented on by the High Court in DP v Commonwealth Central Authority;  JLM v NSW Department of Community Services (2001) 206 CLR 401 their Honours Gaudron, Gummow and Hayne JJ in the following terms (at 43, footnotes omitted):

   “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.”

4. In Genish–Grant v Director-General, Department of Community Services (2002) FLC 93-111 Finn and Barlow JJ at 89-059, quoted the United States Court of Appeal for the Sixth Circuit in Friedrich v Friedrich, 78F3d 1060 (6^th Cir 1996):

   “Although it is not necessary to resolve the present appeal, we believe that a grave risk of harm for the purposes of the Convention can exist in only two situations.  First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute - eg, returning the child to a zone of war, famine, or disease.  Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.”

5. It is argued by the applicant that Zimbabwe is not at war and it is not subject to terrorist activity.  It is said that there is no evidence of disease or famine.  I am urged to consider that in Genish-Grant the concern was of terrorist activity, particularly targeting hotels and places of entertainment and bus stations, and significantly the father lived in, and operated, a hotel and restaurant complex.

6. The mother’s evidence says:

   “the situation here is calm and where I stay we never experienced anything bad during or after elections”  “My child was going to one of the best schools in Zimbabwe …  I made sure that he got everything he wanted and as a mother I made sure that he was safe all the time.”

   She goes on in other evidence to assert that he is well fed sheltered and clothed and has access to top range medical facilities and lives in an “up market suburb” and “[t]he neighbourhood I live in is very safe…”.

7. The father gave written evidence of the state of affairs in Zimbabwe.  He asserts the current inflation rate is in the order of 3 million per cent.  The consequence of this, he says, is that “…all amenities and services have broken down.  The health system has collapsed.  The education system has collapsed.  The rate for school fees doubles each week.  If the children can afford to go and if they can get there on the largely on non existent transport system.  There are no teachers.  There is no system of law and order.”

8. The child, in his discussion with the Family Consultant, repeats some of these assertions.

9. The evidence which is independent, and which I think is to be preferred to the clearly partisan assertions by the mother and the father, and is more likely to be true, is that contained in the Australian Department of Foreign Affairs and Trade travel advice for Zimbabwe, issued as current for Monday, 28 July 2008.  The picture it paints is grim indeed.  In summary it states:

   Summary

   ·We strongly advise you not to travel to Zimbabwe at this time due to the high level of election-related violence in many areas, the high level of criminal activity, the absence of the rule of law, and deteriorating economic conditions which could lead to civil unrest at any time.  This includes visits to national parks and Victoria Falls.

   ·If you are in Zimbabwe and concerned for your safety, you should consider leaving if it is safe to do so.

   ·There continues to be a high level of political tension in Zimbabwe following the 27 June Presidential run-off election.  Violence can escalate without warning.  Numerous incidents of political violence have been reported in both rural and high-density (lower-income) urban areas.  Members of the security forces, so-called “war veterans” and youths associated with the ruling ZANU-PF party have reportedly beaten, tortured and killed suspected opposition MDC party supporters.

   ·You should avoid demonstrations, street rallies and any political gatherings as they may turn violent.  Police and security forces are likely to act indiscriminately against any perceived opponents of the government, or even against the general public in the vicinity of political gatherings.

   ·The security situation could deteriorate quickly and without warning, and Australians could be caught up in violence directed at others.  In these circumstances, departure options may be severely limited.  You should ensure you have adequate supplies of water, food, fuel, cash and medications.  We encourage you to have your own contingency plan for independent departure if the situation warrants.  You should ensure that your documentation remains up-to-date.  Valid passports, visas and vehicle police clearances are essential should there be a need to depart Zimbabwe.  The Australian Government’s ability to provide consular services may be limited.

   ·We strongly advise you not to travel to farming areas, rural Mashonaland and high-density urban areas.  The ongoing political and economic crisis has made the situation very volatile, in both rural and urban areas.

   ·Zimbabwe is experiencing hyperinflation, food shortages, mass unemployment, shortages of local currency, foreign exchange and fuel, and increasingly unreliable basic services such as power, water and transport.  Health services are poor.  Many basic commodities, including medical supplies, are now in short supply, leading to panic-buying in shops and supermarkets.

   ·The level of HIV/AIDS infection in Zimbabwe is very high.

   ·Because of the uncertain security situation in Zimbabwe, we strongly recommend that you register your travel and contact details, so we can contact you in an emergency.

1. At the risk of being a little repetitive, Australians are advised not to travel to Zimbabwe, or consider leaving if already there.  It is asserted that there is there a high level of criminal activity and an absence of the rule of law.  The advice seems to agree with the father’s assertion that the deteriorating economic conditions could lead to civil unrest at any time.  The travel advice warns that violence can escalate without warning.  Police and security forces are likely to act indiscriminately against any perceived opponents of the government or even against the general public in the vicinity of political gatherings.  It is suggested that Australians should have adequate supplies of food, water, fuel cash and medications and a contingency plan for immediate departure.  The advisory speaks of a volatile situation in both the farming and urban areas.  It also speaks of the increasingly unreliable basic services such as power, water and transport.  Health services are poor and many basic commodities including medical supplies are now in short supply lead to panic buying in shops and supermarkets.  It observes that the rate of HIV/AIDS infections is “very high” In its detail it also says “Residents and visitors could be arbitrarily detained or arrested.”  Such an arbitrary detention and arrest would be contrary to the Australian understanding of the protection of fundamental human rights.  It goes on to say that Private businesses have been “targeted for intimidation as part of the Government’s attempt to enforce price controls.”  The mother runs a private business, her evidence being that “I run my own café.”

2. The advisory particularises that crime in the form of muggings and carjacking occur frequently, particularly in urban centres and tourist areas.  It notes that bribery demands are often made by police at roadblocks.  The advisory outlines the growing shortage of basic food commodities throughout Zimbabwe and fuel shortages, sometimes severe are common.  Public transport systems are said to be dangerous due to overcrowding, poor maintenance and reckless driving.  Medical supplies throughout Zimbabwe are very limited and some prescription medicines are not available.  Essential public services, including medical services, have been disrupted due to deteriorating economic conditions and ongoing political tensions.  Water borne, food borne and other infectious diseases (including cholera, hepatitis, tuberculosis, measles, typhoid and rabies) are prevalent with more serious outbreaks occurring from time to time.

3. It appears to me that the picture painted in this travel advisory could not be suggested as describing a country in which this young man could be considered other than at risk of physical harm.  In addition, it seems to me that he may be at risk of psychological harm as a result of the privations he would have to suffer in that troubled and unstable land.  It is true that there may not be an external enemy with which the country is at war but it seems to me that, to an extent, it is at war with itself.  In any event, the clear picture is of a country suffering all the deprivations, and many of the dangers, of war and I am persuaded that the risk to this child from return is grave.  In addition, the picture that the rule of law is breaking down puts at risk the opportunity for the legal framework of that society to protect and preserve the rights of this child.  It is not necessary that I be persuaded that the risk to this child is over and above that to which Zimbabwean children generally might be exposed.

4. I have for all the reasons referred to above concluded say that this ground for non return has been made out.

The Child objects to being returned

1. The requirements of Regulation 16(3)(c) for this ground to be made out are that the child:

   (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.

2. The court was assisted in its considerations on this ground by the evidence of the Family Consultant, Ms F, who interviewed the child.  She provided a written report and gave evidence orally.  The report states that the child does object to being returned to Zimbabwe.  This statement of fact did not seem to be seriously put in issue.  What was put in issue was whether the objection was more than an ordinary wish or a mere expression of a preference.  The applicant drew my attention to a number of cases in which children had expressed the strength of their wishes by acting out in a histrionic way.  Whilst in those cases those children might well have expressed the strength of their views by acting out, it does not follow that a view is only strongly held if such acting out takes place.  A view can be held passionately and strongly, clearly and firmly but at the same time with a quiet dignity.

3. This child expressed views which, in the evidence of Ms F, were firm and clear.  They were balanced and reasoned.  He expressed a fear that a return to Zimbabwe might mean he could not return to Australia.  He gave evidence of his understanding of the problems of Zimbabwe and compared life there to life in Australia.  He wanted, it was said in the oral evidence of Ms F, “passionately to live with his father in Australia.”  It was suggested by the applicant that on a number of occasions the child had either embellished his story to Ms F or told falsehoods in his recounting.  Ms F said that this did not reflect on the child’s maturity since she noted that adults also lie but might, she conceded, point to a greater strength of feeling.  It seemed to me that to the extent that he might have embellished what he said, or lied, pointed to a strong desire to procure the acceptance of his objection.  There was it appears no doubt that he well understood the purpose of his interview.  He has conveyed, he says, his objection to his mother by telephone.

4. Ms F concluded that his views were genuinely felt and that the child was mature enough that they should be given weight.  He expressed balanced views and gave, she said, thoughtful reasons for his wish to remain in Australia.  His descriptions of life in Zimbabwe were supported by the travel advisory.

5. The applicant sought to undermine the conclusions of the Family Consultant in cross examination, by reference to evidence obtained upon subpoena.  However, that attempt did not, in my view, succeed and I have come to the conclusion on the whole of the evidence there is a desire in this child beyond mere preference or ordinary wish, to remain in Australia and that he clearly and firmly objects to returning to Zimbabwe.  He was in that objection unfaltering in the view he expressed to Ms F.  I am further persuaded that that objection should, by reason of its strength and the maturity or the child, be given weight.

6. I accordingly find that that ground for non return has been made out.

The exercise of the Court’s Discretion

1. Having come to the conclusion that two of the grounds referred to in the regulations are made out I now have to determine whether, in the exercise of my discretion, those findings should lead me to a refusal of the application.

2. The High Court in De L v Director-General NSW Department of Community Services & Another (1996) FLC 92-706 held (at 83-456, footnotes omitted):

   “The regulations are silent as to the matters to be taken into account in the exercise of that discretion and the “discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]” enable it to be said that a particular consideration is extraneous.”

3. It seems clear that, in considering the exercise of my discretion, I have to take into account the purpose for which the regulations have been passed.  It seems to me that the policy of the regulations and the Convention to which they give effect is the need to discourage International Child Abduction and I recognise that purpose.  Having said that however, the regulations provide also clear guidelines of the circumstances in which “…a clear and compelling case to sustain an objection which permits an exception to the ordinary duty to order the return of the child” (per Kirby J at 83-471 in De L v The Director–General of Community Services & Another).

4. In my view, the grounds established in this case do provide such a clear and compelling case.  I cannot conceive of any conditions which I could impose upon a return which would ameliorate or lessen the perceived danger to the child.  There are no conditions of return which I could impose which would operate other than deny to the child his right to be heard and for his strong mature and clear views to be given weight in the decision concerning the order to be made.

5. I think more is not required, although if it were, I would draw comfort from the provisions of regulation 16(3)(d) which enables a court to refuse to make a return order if the return would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.  Australia has ratified the United Nations Convention on the Rights of the Child and whilst it is not directly incorporated into domestic law it is attached as Schedule 3 to the Human Rights and Equal Opportunity Act 1986 (Cth).

6. The rights recognised by that Convention are recognised as universal and the property of a person, not by reason of that recognition, but by reason of their humanity.  They are universal and as such are possessed by the child.  The practical expression of those rights are at risk given the current state of Zimbabwe, if this child were to return.  It is, in my view, a nonsense to say simply that Zimbabwe is a signatory to the United Nations Convention on the Rights of the Child.  A right without support and enforcement of that right, or the capacity of a government to give real meaning to its obligations under the Convention, is simply the expression of a pious hope.  In the troubled and unstable homeland of this child, the rule of law is failing.  There is an incapacity or unwillingness of the State to provide for the fundamental needs of its society, let alone undertake the myriad of obligations imposed by the Convention on the State.  The evidence suggests that the return of this child would be to a land where there is a grave risk that the rights he possesses by virtue of his humanity, and recognised in the Convention ratified by Australia, would at best be put at severe risk and at worse become as a tinkling cymbal or a sounding brass, having form but no substance.

7. I am persuaded to the view that the discretion of the Court should be exercised in favour of a decision that the return be refused, and accordingly I will dismiss the application.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  14 August 2008