Department of Families, Fairness and Housing & Cullen - [2022] FedCFamC1F 1027

Federal Circuit and Family Court of Australia
(DIVISION 1)
Department of Families, Fairness and Housing & Cullen [2022] FedCFamC1F 1027

File number(s): MLC 6353 of 2022

Judgment of: STRUM J

Date of judgment: 20 December 2022

Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from Poland – Where all the jurisdictional facts are conceded – Where the respondent mother relied on the regulatory exception in reg 16(3)(c) – Whether the child’s objection is to return to Poland per se or because her father and the parenting litigation was there – Whether the child’s objection shows a strength of feeling beyond mere expression of preference or ordinary wishes – Whether the child has attained an age and maturity such that her wishes should be taken into account – Where the child is 15 ½ years of age – Where the Polish courts have made findings that the child’s views are enmeshed with those of the respondent mother and that the child has been alienated from the requesting father – Orders for the child to return to Poland.

Legislation:
Australian Passports Act 2005 (Cth)

Evidence Act 1990 (Cth) s 131(2)(g)

Family Law Act 1975 (Cth) s 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 14, 16(1), (1A) (3)(b), (c), 26(1), 29(5)(b)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 15.15

Convention on the Civil Aspects of International Child Abduction

Cases cited:
Agee & Agee (2000) FLC 93-055; [2000] FamCA 1251

Colak & Viduka (2016) FLC 93-707; [2016] FamCAFC 79

Commonwealth Central Authority & Sangstar [2018]

FamCA 765

De L v Director General, NSW Department of Community Services (1996) FLC 92 – 706

Director General, Department of Community Services v Crowe (1996) FLC 92-717; [1996] FamCA 123

Director General of Family and Community Services v Davis (1990) FLC 92-182

HZ & State Central Authority (2006) FLC 93-264; [2006] FamCA 466

Police Commissioner of South Australia v Temple (1993) FLC 92-365; [1993] FamCA 146

Re M (A Minor) (Child Abduction) [1994] 1 FLR 390

Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716

Re S (A Minor) (Abduction: Custody Rights) [1993] Fam 242

Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192

Regino v Regino (1995) FLC 92-587

State Central Authority v Hotzner (No 2) [2010] FamCA 1041

Division: Division 1 First Instance

Number of paragraphs: 217

Date of hearing: 12-14 and 19-20 October 2022

Place: Melbourne

Counsel for the Applicant: Ms Harris

Solicitor for the Applicant: Department of Families, Fairness and Housing, Legal Services Branch

Counsel for the Respondent: Mr Whitchurch

Solicitor for the Respondent: Gordon Ainger Legal

Counsel for the Independent Children's Lawyer: Ms Treyvaud

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

MLC 6353 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING

Applicant

AND:
MS CULLEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

STRUM J

DATE OF ORDER:

20 DECEMBER 2022

THE COURT ORDERS THAT:
1.The:
(a)Application filed by the Secretary of the Department of Families, Fairness and Housing (“State Central Authority”) on 14 June 2022, pursuant to reg 14(1) of the Family Law (Child Abduction Convention) Regulations 1986 (“Regulations”), be granted; and
(b)Answer and Cross-Application filed by the respondent mother, Ms Cullen (“mother”), on 5 August 2022 be dismissed.

2.The child, X born 2007 ("X"), be returned to Poland pursuant to reg 16(1) of the Regulations before 30 January 2023, with an economy class airline ticket to be booked and paid for by the father, MR B ("father"), transiting only through Country D and / or countries which are both members of the European Union and in respect of which the 1980 Hague Convention has entered into force with Poland.
3.The mother be at liberty to accompany X on her return to Poland, provided that by 13 January 2023 she gives written notice to the State Central Authority, the Independent Children's Lawyer ("ICL") and to the father of her intention to do so, in which case:
(a)the father also pay for an economy class airline ticket for the mother to accompany X;
(b)prior to X's departure with the mother, the father provide to the mother and to the State Central Authority and the ICL a written undertaking, in a form enforceable in Poland, that in respect of time to be spent by X with him pursuant to extant Polish court orders:
(i)he will not pursue any application in any court in Poland for any financial penalty against the mother for non-compliance with such orders from 22 March 2022 until the expiration of 21 days from the date on which X arrives in Poland;
(ii)he consents to such time being suspended for a period of 21 days from the date on which X arrives in Poland; and
(iii)he consents to the first period of time to be spent by X with him, after the period of 21 days referred to in the preceding sub-paragraph, being in the presence of and supported by Ms F, psychologist;

(c)immediately upon the disembarkation of X in Poland and prior to leaving the airport with her, the mother cause any passport issued to X to be handed to the father or his nominated agent in writing;
(d)forthwith upon receipt of X's passport from the mother, the father:
(i)deliver X's passport to a notary retained by him in Poland, together with a sealed copy of these orders, and instruct the notary to hold the passport for safekeeping, pending further order of a court in Poland; and
(ii)notify the mother in writing of the name and contact details of such notary;

(e)to verify X's return to Poland, the mother forthwith notify her solicitor, the ICL and the State Central Authority in writing of X's arrival in Poland, within four hours of disembarkation.

4.In the event the mother either elects not to accompany X on her return to Poland or fails to make an election within the time specified in Order 3 herein, the father accompany X on her return to Poland:
(a)together with his aunt, Ms E, or another adult female family member or friend known to X, at his expense; and
(b)he facilitate communication between X and the mother by telephone, FaceTime, email or other like means of communication, at least once each day, and otherwise on X's reasonable request, pending further order of a Polish court.

5.Prior to X's return to Poland pursuant to these orders:
(a)the ICL request that a meeting be arranged between X, Ms G (the Court Child Expert who prepared the regulation 26 report in this proceeding) and the ICL before 11 January 2023, for the purpose of Ms G explaining the orders made by the Australian court to X;
(b)the mother do all such things required for X to attend the meeting arranged for X with Ms G (or, if such a meeting cannot be organised prior to X's return to Poland, then upon the ICL for the same purpose); and
(c)the mother and the father be permitted to provide copies of the Australian orders, reasons for judgment, regulation 26 report and any documents filed in the Australian proceedings to the Polish court.

6.Unless otherwise agreed in writing between the mother and the father or ordered by a court in Poland, the mother and the father sign all documents and do all acts and things necessary to support X resuming her attendance at the school she attended immediately prior to her wrongful removal from Poland, being H School (H School ), if possible.
7.Pending the child's departure from Australia for return to Poland, the mother continue to be restrained, and an injunction issue restraining her, from causing or permitting or suffering X:
(a)To be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of this order;
(b)To apply for any further or any other passports for X;
(c)To be removed from the State of Victoria, or
(d)To reside other than at her present residential address or any other address at which the State Central Authority has agreed that the child may reside.

8.Paragraph 7(a) of these orders remain in force until a letter from the State Central Authority is received by the Australian Federal Police advising of the travel arrangements made for the return of X to Poland AND IT IS REQUESTED that the Australian Federal Police remove the name of the child X (female) born 2007 from the Airport watchlist upon presentation for boarding the nominated flight to Poland on the date nominated for the said travel.
9.The Registrar of the Court release X's passport(s) to the State Central Authority and the State Central Authority be responsible for ensuring that the passport(s) are available to the parent travelling with X prior to travel.
10.A sealed copy of these orders be provided forthwith to the Marshall of the Federal Circuit and Family Court of Australia, the Commissioner of the Australian 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 Marshall of the Federal Circuit and 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.There be liberty to each of the State Central Authority, the mother and the ICL to apply urgently to relist the matter in relation to implementation of these orders and in respect of any machinery provisions.
13.The ICL be discharged upon the expiration of 24 hours from the child disembarking in Poland as notified by the mother pursuant to order 3(e) or the father within like time to that applicable to the mother pursuant to order 3(e) (as applicable).

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Families, Fairness and Housing & Cullen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:

This is an application by the Secretary of the Department of Families, Fairness and Housing, being Victorian State Central Authority acting for the Commonwealth Central Authority, filed on 14 June 2022, seeking the return to Poland of the child, X ("X"), born 2007, pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("Regulations").
The Regulations implement into law in Australia this country's obligations under the Convention on the Civil Aspects of International Child Abduction ("Convention") signed at The Hague on 25 October 1980, pursuant to s 111B of the Family Law Act 1975 (Cth) ("Act"). The Convention recites, at the commencement thereof, that the signatory states desire (inter alia) "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence".
Following the final hearing of this matter, but prior to delivery of this judgment, amendments were made to the Regulations relating to grave risk and family violence, taking effect on 10 December 2022. However, the following saving provision provided in the Regulations (as amended) applies to these proceedings:
33 Saving provision
Despite the amendments of this instrument made by the Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022 (the amending regulations), this instrument continues to apply, in relation to any application made under regulation 14 or 14A of this instrument before the commencement of the amending regulations, as if those amendments had not been made.
In proceedings under the Regulations, the best interests of the child, although not irrelevant, are not the paramount consideration. Rather, these proceedings are merely to determine the forum in which parenting issues in relation to her will be litigated by her parents.
The respondent, Ms Cullen, is the child's mother. The requesting parent is her father, Mr B, who lives in Poland.
The State Central Authority, in its Application filed 14 June 2022, pleads, and the mother concedes, that the child was wrongfully removed by her from Poland in or about early 2022 in that, as required by reg 16(1A) of the Regulations:
(a)the child was under 16 years of age; and
(b)the child habitually resided in a Convention country, namely, Poland, before her removal to Australia; and
(c)the father, who is seeking her return, had rights of custody in relation to the child under the laws of Poland immediately before her removal to Australia; and
(d)the child's removal to Australia is in breach of those rights of custody; and
(e)at the time of the child's removal, the father was actually exercising rights of custody, jointly with the mother or would have exercised those rights if she had not been removed.
The requisite jurisdictional facts are therefore established. However, the respondent mother, by her Answer and Cross-Application filed on 5 August 2022, pleaded two of the defences in reg 16(3) of the Regulations, namely that:
(a)there is a grave risk that the return of the child to Poland would expose her to physical or psychological harm or otherwise place her in an intolerable situation (reg 16(3)(b)); and
(b)the child objects to being returned to Poland and her objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes and she has attained an age, and a degree of maturity, at which it is appropriate to take account of her views (reg 16(3)(c)).
During the course of the hearing, the mother, through her counsel, abandoned the first of those defences.
Initially, both of the mother's defences were, and subsequently, when she abandoned her "grave risk" defence, her remaining defence was supported by the Independent Children's Lawyer, both at the opening and at the close of the case. Whilst, on the untested evidence, the former may have been understandable, the latter was less so. From conduct of the Independent Children's Lawyer's case, I am troubled that the nature of proceedings under the Regulations may have been somewhat conflated with parenting proceedings under Part VII of the Act, in particular, by reason of the child's age. Whilst I am cognisant of the financial limitations upon Independent Children's Lawyers, where funded by Victoria Legal Aid, they are nevertheless, by reason of their appointment, a party to proceedings. Rule 15.15(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("Rules") requires that, unless the Court otherwise directs, a party and the party's lawyer (if any) must attend each court event. Even if they cannot attend in person to instruct counsel, I can see no reason why Independent Children's Lawyers cannot follow the proceedings by video-link. They are a party and, as such, should familiarise themselves with how a case unfolds in order to be able to instruct counsel briefed by them properly.
For the reasons that follow, I find that:
(a)the second defence, under reg 16(3)(c), has not been made out;
(b)even if that defence had been made out, such that my discretion to refuse to make an order for the return of the child to Poland were enlivened, I would not do so.
In the circumstances, I shall make an order for the return of the child to Poland, subject to certain conditions, to which all parties agree, pursuant to the Regulations.
PRELIMINARY OBSERVATIONS - EVIDENCE AND CREDIT
Parenting and financial proceedings have been pending in Poland between the mother and the requesting father for six years. For the reasons which follow, I find that those proceedings are fairly described by the State Central Authority in its Outline of Case filed on 8 September 2022 (at [1.5] - [1.7]) as follows:
1.5The Polish proceedings reveal a high conflict case where the child was undergoing court ordered therapy to improve her relationship with the father and where the mother makes allegations of family violence, and the father asserts a process of the mother alienating the child from him.
1.6The court ordered therapy involving the requesting father and the child was interrupted by the removal of the child from the jurisdiction of the Polish courts.
1.7The continuation of the Polish proceedings in mid-2022 was interrupted by the absconding of the mother.
Evidence was given by the respondent mother and the requesting father, who was called by the State Central Authority as part of its case. The parents were the only lay witnesses who were called to give evidence and cross-examined.
The mother also relied upon affidavits of her sister and father but they were not required for cross-examination. I have read their affidavits. They do not add materially to the issues for determination.
Professor C, a professor of law at the K University of City M and an attorney at law practising there, was called by the State Central Authority as an expert witness in relation to matters of Polish law and was cross-examined. Although it transpired that his partner, both in life and in legal practice, is the lawyer for the father in Poland, his independence was not seriously challenged, nor was his expertise. His evidence was of assistance to the Court.
On 6 July 2022, the Honourable Justice Williams, made an order pursuant to reg 26(1) of the Regulations that a report be prepared in relation to the child ("Hague Family Report"). The Hague Family Report was prepared by Court Child Expert / Family Consultant Ms G. That report, as well as Ms G's evidence in cross-examination, were of considerable assistance to the Court.
There were a number of factual issues, which will be decided issue by issue. This is not a case where such disputes can necessarily be resolved by a blanket finding of credit in favour of one witness over another. That said, however, as the respondent to the State Central Authority's application, the mother's evidence and her credit in relation thereto loomed the largest. The mother was an articulate witness; however there was no evidence to corroborate her perceived experiences of racial discrimination, judicial bias or misconduct and institutionalised corruption in Poland.
A number of issues gave me great concern about the mother's credit-worthiness. In summary, some of these issues included:
(a)The mother has told a number of untruths, including to this Court, to the Australian Department of Foreign Affairs and Trade and to the Polish courts, to which I refer in the course of these reasons.
(b)The mother made repeated but unsubstantiated assertions, when challenged regarding her conduct in the Polish proceedings, that she was merely abiding by her lawyers' instructions (rather than advice) to her, rather than providing instructions to them, based upon their advice, and her denial of any degree of responsibility for their actions on her behalf. If that were indeed the case, given the plethora of material filed by her (affidavits and annexures comprising nearly 600 pages in the court book), it could reasonably be expected that she would have adduced some evidence from those lawyers corroborative of what appears, at least from an Australian legal perspective, to be a surprising proposition.
(c)The mother made repeated but unsubstantiated and scandalous assertions of misconduct or errors by judges in Poland, when unsuccessful in the proceedings there. When asked in cross-examination whether she believed the Polish judiciary to be corrupt, she responded "that's a fact". Indeed, even in relation to the financial proceedings instituted by the wife in this court in 2016, which were permanently stayed by orders made by the Honourable Justice Stevenson on 14 October 2016, she asserted to the Department of Foreign Affairs and Trade in her application for a passport for X in 2019 that "there were a number of errors in the Australian judgment", albeit that she did not appeal therefrom.
(d)The mother made repeated but unsubstantiated assertions that she was a victim of institutionalised racial discrimination in Poland, including in its legal system. As mentioned below, she is, in part, of Country L descent. She said that the Polish courts have discriminated against her because she is a "foreigner". Again, notwithstanding the plethora of other evidence adduced by her, not a skerrick of corroborative evidence was adduced by her in this regard. To the contrary, it is clear that she has been able to avail - and has availed - herself not only of legal representation and social welfare assistance (such as the "LL Association") in Poland but also of various complaints mechanisms, including the Polish Ministry of Justice, the President of Poland, the Human Rights Ombudsman and the European Court of Human Rights. Her complaint to that court, she said, was in respect of the asserted breach of X's right to "family", which she particularised in cross-examination as comprising her maternal grandparents and aunt. The irony seemed lost on her that, by her wrongful removal of X, she has deprived her of her right to her father (even if that were not the subject of complaint by X).
(e)Further and remarkably to me, she somehow was able to sue the presiding judge in the Polish family law proceedings directly, leading (I find) that judge to disqualify herself, although the mother professed not to know why that judge had done so. The wife alleged discrimination by that judge and sought that, by way of damages, she be ordered to make a payment to a foundation for foreigners in Poland.
(f)The mother made repeated allegations, both in the Polish proceedings and in these proceedings, of extensive domestic violence by the father, both throughout and after their relationship. Her allegations in the Polish courts span between 2002 and 2019, a period of 17 years. However, insofar as criminal charges were brought against each of the parents in Poland, upon complaint by the other, the charges against the father were dismissed, whilst those against the mother were upheld. Further and most surprisingly, the father, who denies the allegations by the mother against him, was not at all cross-examined in this regard by her counsel.
(g)The mother conceded that she holds a dim view of the father. She gave evidence, which I do not find supported by the evidence, that he is violent and manipulative. Initially, she was unable to give any meaningful answer when asked, in cross-examination, what value he adds to X's life. Rather, she responded by merely saying what, in her opinion, he should do for X. She could not bring herself to openly concede that the father loves X; the most she was prepared to say in this respect was that she assumed he loves her. Later in cross-examination, she said that the father adds no value to X's life, that he refuses to sacrifice his interests for hers and that he disregards and is insensitive towards her needs. However, by reason of the evidence of enmeshment between mother and daughter, to which I refer below, I am not satisfied that the mother is able to distinguish X's needs from her own. Further, the mother conceded that X knows she does not like the father. From the totality of the evidence, I have no hesitation in finding that X has derived such knowledge overwhelmingly from what the mother has told her or otherwise conveyed to her.
(h)She asserted that all the reports of the experts appointed pursuant to orders of the Polish court, including the reports of the court-appointed team of experts and of Ms F (to which I refer below) were biased against her. In relation to Ms F, she said that nothing she says can be trusted, merely because her services have been paid for by the father.
(i)She variously asserted, unsupported by any corroborative evidence, that "cronyism" is rife in Poland; that the father has contacts there with "inside knowledge"; that he has access to "formal and informal channels", to her detriment; that he "fabricated" documents in Poland; and that he falsely incriminated her there.

Unlike the respondent mother, the requesting father is not a party to these proceedings; however, he was called as a witness by the State Central Authority. In the circumstances of this case, his evidence was of more limited compass and, in some respects, given the reg 16(3)(c) defence, of less relevance than that of the mother. Whilst I address his evidence in greater detail below, when considering the various issues, suffice it to say at this stage that I found him to be an honest, credible and forthright witness, who made appropriate concessions. Insofar as it was suggested by the mother, although sensibly not by her counsel, that I should somehow view his evidence, and the findings in relation thereto, in the Polish parenting proceedings between them there, with caution because he has somehow improperly influenced those judges, I wholly reject that suggestion. There is not a skerrick of evidence to support that scandalous assertion by her.
Many of the documents referred to herein were originally in Polish. English translations thereof were in evidence and where I refer to or cite from such documents, I do so from the English translations. Further, where dates relating to the Polish court proceedings are referred to, such dates are taken from the translated documents in evidence as opposed to the joint chronology provided by the parties by way of aide memoire.
EVIDENTIARY PROVISIONS
Regulation 29 of the Regulations provides:
29 Evidentiary provisions
(1)This regulation applies in a proceeding in a court under regulation 14, 19A or 25 in which the applicant is a responsible Central Authority.
(2)The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.
(3)An affidavit of a witness who resides outside Australia that is filed in the proceeding is admissible as evidence even if the witness does not attend the proceeding for cross-examination.
(4)      A statement contained in a document that claims:
(a)to set out or summarise evidence given in a proceeding in a court in a convention country, or before a competent authority of that country, in relation to the custody of a child and to have been signed by the person before whom the evidence was given; or
(b)to set out or summarise evidence taken in a convention country for the purpose of a proceeding under these Regulations (whether in response to a request made by the court or otherwise) and to have been signed by the person before whom the evidence was taken; or
(c)to have been received as evidence in a proceeding in a court in a convention country or before a competent authority of that country in relation to the custody of a child and to have been signed by a judge, an officer of the court or that authority;
is admissible as evidence of any fact stated in the document to the same extent as oral evidence of that fact, without proof of that person's signature or official position.
(5)      The court may take judicial notice of the following matters:
(a)a law in force in a convention country;
(b)a decision of a judicial or administrative character made by a judicial or administrative authority of a convention country.
(6)      A document that claims:
(a)to be an order, or a copy of an order, of a court in a convention country, or a decision of a competent authority of that country, in relation to the custody of a child; and
(b)to have been signed by a judge, an officer of the court or that authority;
is admissible as evidence of that order or decision without proof of that person's signature or official position.
(7)      In this regulation:
custody, in relation to a child, includes:
(a)guardianship of the child; and
(b)responsibility for the long-term or day-to-day care, welfare and development of the child; and
(c)responsibility as the person or persons with whom the child is to live.
This is of particular relevance given that there have been a number of reasons for judgment delivered in the Polish parenting proceedings in which adverse findings have been made against the mother, including in the nature of alienation by her of the child from the father. Several of those judgments are based upon the acceptance by the Polish courts of expert evidence. In the course of these proceedings, the mother has sought to go behind both that accepted evidence and those judgments. Given the provisions of reg 29(5)(b) and the summary nature of these forum proceedings, I do not need to do so, especially in the absence of any proper reason for so doing.
Further, insofar as the mother annexed to her affidavit filed 29 July 2022 several Polish psychological reports obtained by her in relation to X in 2017, 2018, 2019 and 2021, whilst the parenting proceedings were pending there, the expert opinion of Professor C is that they are in a different category to the evidence of an expert appointed by (or pursuant to an order of) a court there or a team of court-appointed experts. The admission into evidence in Poland of the psychological reports obtained by the wife requires an order (which does not appear to have been the case). In the circumstances, Professor C opines that such evidence "only has the value of a private document … but has no evidential value comparable to that of an expert opinion. In fact, it should be treated as a presentation of a party's position". Accordingly, he opines that the said documents have no evidentiary value under Polish law.
In particular, in relation to the report of the court-appointed team of experts in Poland, dated late 2021, it is submitted on behalf of the mother in her Outline of Case filed 7 September 2021 (at pp. 5 - 6), that it has "some flaws"; is contradicted by a number of other reports, all of which (it is asserted) have been produced by appropriately qualified persons and filed in the Polish proceedings; and "there is no evidence that the Polish court has preferred any of the reports over any other and even if it had this Court would not be bound by that finding". I disagree with the submission. First, as is apparent from the reasons for judgment of the Polish court, to which I refer below, the findings of that court are consistent with the reports of the psychologists appointed by or pursuant to orders of that Court (in particular, those of the team of experts and of Ms F), rather than with those of the mother's adversarial experts. Secondly, it is not at all clear that the reports of the mother's adversarial experts were, in fact, admitted into evidence in the Polish proceedings. Thirdly, in circumstances where these are proceedings of a relatively summary nature, to determine the forum in which the parents' parenting litigation is to continue or take place (namely, Poland, where it has been ongoing for the past six years, or Australia, if a return order were not made), it is not the role of this Court to go behind the numerous judgments of the Polish courts without good reason for so doing. Notwithstanding the mother's complaints in relation to those proceedings, they are entirely unsupported by the evidence and no reason has been demonstrated for me to presume to go behind those judgments.
FACTUAL MATRIX
The father was born in City M, Poland, in 1972 and moved with his parents to Country N in 1984. He holds Polish and Country N citizenship and is of a religious background. The mother was born in Australia in 1974. She holds Australian citizenship but is, in part, of Country L descent, which she sought to make relevant in these proceedings. The parents met in Melbourne, where the father was studying, and married in 2002.
Between 2004 - 2009, the parents lived and worked in City O, where X was born in 2007. She is the only child of their marriage.
In mid-2009, in the wake of the global financial crisis, the husband was made redundant from his job in City O and secured employment in City M. Accordingly, the parents and X moved there. Other than the first two years of her life, X thereafter lived only in Poland until her wrongful removal therefrom to Australia in or about early 2022. Both parents worked in paid employment in Poland, the husband in the finance industry and the mother as an educator.
There is a dispute between the parties as to when they separated. The father asserts separation occurred in June 2013 and the mother asserts it occurred in January 2016. Nothing material to her defence, which I must decide, turns upon the date of the parties' separation. On either version, it occurred many years ago. However, it is relevant to the mother's credit which is, in turn, relevant in part to her defence. Notwithstanding the later date of separation asserted by the mother, incongruously, in early 2014, they signed a separation of property agreement in Poland in the form of a notarial deed and, mid that year, the father bought a residential property at Suburb P in City M, which was registered in his sole name.
Further, even prior to her asserted separation date, the mother (in a subsequent application for a passport to issue for X without the father's consent) makes it clear that X and she were living separately and apart from the father at that time.
In mid-2015, the mother and X, having lived in other premises since mid-2013, moved into the father's home, when the mother's lease expired. The father's evidence in his affidavit filed 1 September 2022 at [17.20], to which the mother has not replied, is that she had her own separate bedroom there and that most of her belongings were kept unpacked in the basement for the entirety of her stay, until late 2015. Further, he deposes that during this time, in mid‑2015, he introduced the mother to a divorce lawyer to represent her in discussions regarding their divorce. However, in February 2016, the mother instituted financial proceedings in this Court, which were permanently stayed by orders made by the Honourable Justice Stevenson on 14 October 2016.
In an affidavit sworn and filed by the mother in those proceedings on 26 July 2016 ([20], [45] and [56] of which were tendered by the State Central Authority and marked exhibit A8), the mother deposed at [20] that in mid-2013, the father announced that he would be moving out of the family home and thereafter he lived temporarily with a friend until he secured his own accommodation in late 2013, which he leased until about early 2015, "when he moved back in with us full-time".
The reasons for judgment of Stevenson J were in evidence before me, being annexed to the mother's affidavit filed 9 September 2022. At [28], her Honour referred to the mother having deposed that "she had received an offer of settlement from the husband in [late] 2015", which I find inconsistent with her assertion that they only separated in January 2016.
In all the circumstances, on balance, I am satisfied that the parents separated in June 2013, as asserted by the father, and not some 2.5 years thereafter, as asserted by the mother.
In her reasons for judgment delivered on 14 October 2016 at [37], Stevenson J referred to the two affidavits sworn by the wife in those proceedings which her Honour said "give the impression that she wishes to litigate her issues with the husband in Australia and as opposed to engagement with the Polish legal system" and that "the clear import of the wife's affidavits was that she objects to engagement with the Poland legal system". Nevertheless, her Honour found that a "without prejudice" letter from the mother's then Australian lawyers, which was admitted into evidence pursuant to s 131(2)(g) of the Evidence Act 1990 (Cth), gave the opposite impression and indicated a willingness and intention on the part of the mother to resolve issues in Poland arising from the breakdown of the parents' marriage. This is contrary to her evidence generally in these proceedings regarding the Poland courts.
Meanwhile, in mid-2016, the father commenced divorce proceedings in Poland. In late 2016, the mother applied to the Regional Court for R District for permission to travel to Australia with X in early 2017 and to have control of her Australian passport, as well as (effectively) sole parental responsibility for her, during that time. In early 2017, her application was dismissed. In its reasons for judgment, the Court said (inter alia):
(a)"[The] possible granting of the application of the defendant's attorney in the wording suggested by the attorney ("entrusting the care") would, in fact, lead to significant interference with the parental authority of the child's father. That is because in the period of [early 2017], the child would be under the exclusive care of her mother, and therefore the parental authority of the plaintiff would be temporarily suspended or he would be deprived thereof. Meanwhile, the defendant did not show the reasons for depriving the plaintiff of his parental authority… or for the suspension thereof…".
(b)"The trip to Australia, as referred to in the petition under consideration, would cover not only the time of school holidays, but also in the days when the child is obliged to fulfil her school duty, as well as the period of [an] integration […] trip with her class. … Therefore, it will be against her welfare to miss classes and to have to spend the time required for her to return to her school routine after such a long trip for such a long period of time. Meanwhile, there are no obstacles for the defendant to apply for a trip with her daughter during the period of school holidays (upon prior consultation with the child's father) so that her school duty in Poland is not interfered with."
(c)"At the same time, the Court understands the plaintiff's concerns connected with the trip of his daughter from Poland to Australia. [the mother], both in the submitted application and before the Australian court, pointed out the lack of "special" ties of her daughter with Poland ("I consider Poland to be my temporary, and not permanent home… "I am Australian and I would like to return to Australia with [X] in the future. Poland is not a country in which I intend to stay for ever out of my own choice or in which I intent to get involved in a legal fight due to various reasons… She emphasized that her whole family and friends reside in Australia, and her dream is to return to Australia for good, to her family and friends, to the place where her daughter could take advantage of a much better education system than that in Poland. At the same time, we should note that the defendant does not have any ties with Poland, such as, for instance, official duties. Long-term unemployment (and her unwillingness to take on any job), the lack of knowledge of Poland and the statements of the defendant before the Australian court justify the conclusion that [the mother] does not really feel comfortable in Poland and there is a risk that she will want to stay in her home country for good."
(d)"We should also note that the parties are in a strong conflict at the moment. It is important for both the father and the mother to be in an on-going and regular contact with the child. We should note that the plaintiff fulfils his parental duties towards the child in an exemplary manner. He cares both for the regular contact with the daughter (picks her-up-from school on Wednesdays and takes her to school the next morning and takes the child every other weekend, from Friday to Monday morning, when he takes her to school) and for her material needs. Therefore, there are no grounds to interfere with the parental authority of the plaintiff and to deprive him of contacts with her daughter for such a long period of time, especially in view of the circumstances that he is attempting to be awarded the shared custody over [X]."
The mother, dissatisfied with that outcome, appealed in early 2017. That appeal was unsuccessful, with judgment apparently delivered mid-2017. Thereafter, as will become apparent, that became her modus operandi in Poland, namely, to appeal whenever unsuccessful. Indeed, she conceded as much in cross-examination.
At or about this time, during the course of 2017, after having previously spent regular and fulfilling time together, X's relationship with the father began to deteriorate. One of the main reasons proffered by X, both in Poland in Australia, for this is the father's opposition to the mother and her travelling to Australia to visit their family here. As is and will hereafter become apparent, that opposition was upheld by the Polish court. I accept that X was understandably disappointed thereby. However, based on the evidence, which I accept, of the mother's enmeshment with and influence over X, I find that her disappointment was stoked by the mother, whether by omission or commission, and that she therefore has played a significant role in the breakdown of that relationship.
In mid-2017, notwithstanding the pending proceedings in the Regional Court, the mother (for reasons which were not clear) made application to the lower District Court for the R District of City M for permission to travel to Australia –in mid-July 2017. The evidence of Professor C is that the courts of first instance in Poland are the District Court and the Regional Court. He describes the District Court as the lower court, whereas the Regional Court is the court of first instance only in certain categories of cases and is otherwise the court of appeal for decisions made by the District Court. Most relevantly, he states that "if a divorce case is already pending before the Regional Court, no separate proceedings regarding the parental authority over the parties' common minor children or for contact arrangements may be initiated before the District Court". He explains, not unsurprisingly, that "[t]hese rules enable the Regional (divorce) Court to decide comprehensively on all the consequences of the dissolution of the family".
Accordingly, the father applied and, in mid-2017, the Regional Court made orders for him to spend time with X, including each alternate weekend, from the conclusion of school on Friday until the commencement of school on Monday, and each week from Wednesday evening until Thursday evening. The court's reasons for judgment are unremarkable.
A short time later, in 2017, the mother sought, but did not obtain, orders from the District Court that the father deliver X's Australian passport to her. He was not in attendance or represented that day. Notwithstanding the mother's allegations of domestic violence by the father towards her, she attended at his home, accompanied by a gentleman. X was at the husband's home, to spend overnight time with him that evening pursuant to the orders made a week earlier. The husband describes this gentleman's appearance as being that of a "bouncer". This is denied by the mother, who says that he was an acquaintance from the gym attended by her. Although it matters not, on balance, I accept the mother's evidence; of the two parents, she is the one likely to have a greater level of knowledge regarding this gentleman. With this gentleman present, she forcefully demanded that the father deliver up to her X's Australian passport, albeit in the knowledge that no order had been made for him to do so. He declined to do so. She later returned in the company of police officers, however, they did not require him to provide the passport to her. In cross-examination, the mother disagreed that X might have found it (I would add, to say the least) "disrupting" for her to attend at the husband's home, accompanied by police officers. The husband deposes, and the mother does not deny, that she claimed to them that he "would take [X] abroad and deprive her of contact with her". The irony is inescapable, for that is precisely what the mother did, some 4.5 years later, using an Australian passport that she had surreptitiously obtained.

In mid-2017, the District Court dismissed the mother's application for X to travel with her to Australia between 29 June (which had already passed) and 27 July 2017 but ordered the father to release X's Australian passport to the mother on or before 13 July 2017 and the mother to return it to him on or before 31 July 2017. It is unclear whether the father or his lawyer attended or were aware of this hearing (see annexures MC-10 and MC‑11 to the mother's affidavit filed 4 August 2022). In its reasons for judgment, the District Court said, inter alia:
The Regional Court has determined specific dates for 2017 holidays, when the girl is to stay with her father and when with her mother. As regards the time from 28 June to 31 July, 10:00 AM, the girl's contacts with her mother were already decided, so the Court found that it would be moot to rule on the motion for injunction through consent for mother's travel with her daughter in the period, for which the contacts had been already granted by the Regional Court (July this year), and dismissed the motion in this scope. Furthermore, were the Court to grant the applicant the consent within the requested scope, it would have to rule also, ex officio in a way, as to the mother's possible consent for the child to travel abroad with her father, and this travel is to happen as soon as in August 2017.
As regards the resolution in the matter of release of the passport of the minor i.e. [X], the Court imposed the obligation on both parents, in items 2 and 3 respectively, bearing in mind the need to ensure that both parties observe the contacts with the child as determined by the aforesaid decision of the Regional Court.
The District Court referred to the father's concerns regarding the mother's travel with X to visit her family in Australia, including a concern that they might not return to Poland. However, it said that:
Developing a mutual agreement between the parties would permit carrying out the travel plans, that is why the Court obligated both parents to hand over to each other the child's passport for the duration of planned trips with a given parent, in particular during the summer period, which is a good time to visit family and see interesting places (this includes the applicant's trip with her daughter to Australia in July, but also the trip to [Country J] planned by the participant in August … When both parties are given the opportunity to spend time with the child during summer trips, this should be advantageous for both the minor i.e. [X] and the conflicted parents; in the Court's opinion, this will help also to contain unnecessary emotions, gain some perspective on the situation, but most importantly - realise what responsibility and privilege both of [X's] parents have to raise her in mutual respect for both parents, despite their divorce.
The father appealed that decision to the R District Circuit Court, which in late 2017 upheld his appeal and revoked the decision of the District Court. In their reasons for judgment, the three presiding judges accepted the father's argument that, as proceedings concerning the same relief were already pending between the parties in another court, the mother's application in the District Court was invalid and its order was set aside. That judgment was tendered by the State Central Authority and marked exhibit A1. Although, perhaps surprisingly, the mother did not concede that, after late 2017, she knew or must have known that the order of mid-2017 was invalid and no longer extant, I do not accept that was so. She was legally represented throughout the Polish proceedings and displayed a remarkable capacity in these proceedings to recall that which supported her case but not to recall, or to seek to explain away, that which she perceived not to assist her case.
In early 2018, the mother filed a complaint to the Polish Ministry of Justice against the actions of the Regional Court. She alleged, inter alia, that "[c]rimes were committed during the procedure, including crimes against the justice system…" (emphasis in original); that, in the "court proceedings, obvious and gross violation of law is taking place, and the inactivity of the ruling panel in light of [the father's] torts is shocking outraging and not acceptable" (emphasis in original); that the father fabricated or forged documents; and that the "scale of manipulations on [the father's] part is so huge that he filed a motion in the divorce proceedings for division of joint property encompassing real property, which was subsequently - in other criminal proceedings - reported by the company, where he is a Senior ([S Company]), as property allegedly misappropriated" (emphasis in original). She submitted:
The Court's inactivity in the specified matter cannot be perceived in any other way than as favourable disposition towards one of the parties to the proceedings. Especially when we add to this the non-standard behaviour by the members of the ruling panel and open manifestation of dislike for me. Such attitude of the Court and absence of any reaction to violation of the law bring questions as to the sovereignty and impartiality of the ruling panel or reasons, for which no action is taken in the case to demonstrate interference with the evidence.
The absence of Court's objectivity, the pretending that nothing wrong and unusual is happening in the case also cause negative consequences in the area of the rights of my under-age daughter [X], a citizen of Australia, who is deprived of her fundamental rights: the right to have an identity document (which is being retained be [Mr B]) or the right to visit her generational family in her homeland.
Naturally, in reaction to the foregoing, I have already initiated the procedure aimed at changing the members of the ruling panel; however, it is difficult to hope for this measure to be effective if its granting depends, first of all, on the statements given by persons whom the motion concerns.
Notwithstanding the mother's repeated assertions that she has been the subject of discrimination in Poland and, in particular, the courts of that country and that her allegations of domestic violence by the father have not been taken seriously, among the material filed by her in this Court is a decision of the District Court in early 2018, which upheld her complaint regarding the decision of the District Prosecutor's Office to discontinue the investigation regarding her complaint of abuse by the father. In its reasons for judgment, the Court said:
In the Court's opinion, the challenging party's complaint is legitimate and should be granted, while the decision of the authority, which conducted preliminary proceedings, to discontinue the investigation in light of absence of data justifying the suspicion of crime should be considered premature at that stage of the proceedings, while the actions performed in the case today cannot be considered sufficient to clarify all circumstances of the case and make a substance-based decision to discontinue the proceedings.
The District Court found the mother's complaints, in that regard, to be "entirely correct" and said, further:
The continued preliminary proceedings should also head towards adding to the evidence gathered in this case all and any information whether there were police interventions in the parties' place of residence during the time when they jointly resided in Poland.
In the Court's opinion, only after those actions and any further actions, which may prove necessary in the course of the conducted proceedings, are performed and the complete evidence material is gathered, it will be possible to analyse the evidence in full and make a substance-based resolution in this case; this will involve the possibility to press charges in the case and refer the case to the court, or to discontinue the case.
This is because the evidence gathered so far, inter alia in form of the testimony of [the mother], medical documentation, photographic documentation, medical opinion by a court-appointed expert, must be verified based on the evidence, which is to be added and heard in continuation of the preliminary proceedings in this case.
Although the outcome of that criminal investigation is unclear, the matters set out in the preceding two paragraphs of this judgment make it clear that the mother's subsequent complaints regarding discrimination in Poland and its judicial system must be viewed with caution.
In early 2018, then aged 11 years, X wrote a letter to her father which the mother saw fit to put into evidence, I must presume, in support of her case. In my view, it does just the opposite. It was annexed to the mother's affidavit filed on 9 September 2022. X wrote:
Stop writing stupid things and putting my photos on instagram and facebook! Everything you say is not true. You are just trying to make you and [Ms T] look good. You did not spend time with me, always [Ms T] was there. I am not your property.
I am 11 years old. I read lots of books, and I know what I want and don't want. You do not know me at all so just stop lying all the time. You make me feel sick. I am very disappointed you are my father. You let me down and I feel very sad inside because I know you only care about yourself.
All I ever wanted was to have a nice family and to have the right to go to Australia or go out of Poland. But you had to make trouble for me and mama.
You think by hurting Mama I will come back to you? You must be crazy because you are hurting me and make me stressed and make me want to run away from you even more. Life isn't just about money or power.
Life is about being happy and real love. I remember once I saw a poor old man and told you I will save up all my money to give it to the poor. And you said, that is not allowed because what is ours, is ours. Well now it's not even mine.
You are a bad man that shouts at everyone, even me, to get your way. I saw you hitting my mama and scaring her and me.
And I know who [Ms T] really is. She is selfish and just wants money. She is fake. She is perfect for you. And [U] is not my brother. So stop all this what you write to everyone.
Just let me go to see my family in Australia. I need to see my grandma. It has been more than two years. She is so sick and everyone misses me.
You lie when you say you do not know where I am. I live in [illegible] where you do and you came to my other school where I can't go to now because you didn't pay them but say mama needs to pay for it, even though you have so much money. Don't say you need to sell the house, because that will not work with me. Say it to [Ms T]. You have seen me. I just don't want to see you. You will never rebuild my trust but at least just become good and understand. I do not want to go anywhere with you. I told you and police and friends and […]. Please do not go to my apartment or my new school and embarrass me in front of my friends. And give back the passport! Respect what I want for once!
[X CULLEN B].
(As per original)
Several matters may be observed from this letter. At first blush, it may not necessarily reflect well upon the father. X complains about certain actions by, and her interaction with, him; she refers to an incident of domestic violence by him towards the mother; she complains about his endeavours to include his new partner and her son in his relationship with her; she refers to him involving her in financial disputes between her mother and him. However, in my view, it reflects far more poorly upon the mother, as it contains matters expressed by an 11 year old child which I find, on balance, have been influenced by, or are attributable to, the mother, and are consistent with the evidence of the mother's views of him, including X's allegations that everything the father says is not true; that he lies all the time; that he only cares about himself; that he makes trouble for her mother and her; that he hurts her mother; that life is not just about money or power; that she knows who his new partner really is (namely selfish, money-hungry and fake); that she was required to leave her former school as he did not make payments; that he has "so much money"; and that he should return her passport and enable her to visit her family in Australia. I am fortified in this conclusion by the fact that she signed her name "[X CULLEN B]". Her mother's maiden name ([Cullen]) has never formed part of her name and my impression is that by, writing her first name and her mother's maiden name in uppercase characters and her (and the father's) surname in lowercase characters, she was seeking to convey to the father that, as far as she was concerned, she identified with her mother's maiden name rather than their surname. There was no evidence by the mother that might put an alternative gloss on these matters and which might have led me to another conclusion.
In mid-2018, the Regional Court made orders, inter alia, dismissing the mother's application for the issuance of an Australian passport for X, without the consent of the father, to be retained by her, and for X to travel with her to Australia for about a month in mid-2018. The reasons for judgment were not in evidence.
The mother deposes that, during the parents' marriage, X witnessed the father's "physical and mental abuse of [her] and made attempts to intervene" and "gave an account of her experience of [Mr B's] aggressive behaviour in the court proceedings [in mid] 2018". An English translation of X's evidence is annexed to the mother's affidavit filed 4 August 2022, marked "[MC]-05", which makes clear that the presiding judge explained to X, inter alia, her right to refuse to testify. X was then aged 11 years. She said: "Yes, I want to talk about my daddy". Remarkably, in cross-examination, the mother could see nothing wrong with an 11 year old child giving evidence against a parent and said that she did not object or even endeavour to object to X doing so. She said that it was appropriate at the time and denied that she was acting in her own interests, rather than those of X, in not even endeavouring to prevent her from giving evidence against her father.
In her evidence, X said that she witnessed her father kick her mother in the leg in about 2017 but that he had never hit her. X also said:
My mum is very nice, polite and that's all. I don't want to talk about my daddy. I can say a few words. I am angry with him, he lies a lot and I don't want to see him. Because he didn't allow us to go to Australia, he behaved in a bad way towards my mum, he kicked my mum.
By letter dated 3 September 2018 to the father, the Australian Department of Foreign Affairs and Trade referred to his request dated July 2018 that the Australian Passport Office raise a "child alert" for X and confirmed that such an alert was raised in August 2018, which would remain valid for a maximum period of 12 months. He was advised that the "child alert is a warning to the Australian Passport Office but there are circumstances that may need to be considered before an Australian passport is issued to your child".
Annexed to the father's affidavit filed 1 September 2022 is an English translation of a "psychological opinion" Ms Z in Polish. The English translation purports be of the Polish original dated "8 January 2011" [sic]. The Polish original bears the date "08 stycznia 2011" (emphasis added) but bears two date stamps: "08-01-2019" and "2019-01-09". The psychological opinion is said to have been prepared pursuant to an order of the Office of the Regional Prosecutor for the R District of City M "to prepare a written opinion on the testimony of the minor [X] and assess her ability to perceive, remember and rep produce observations". Ms Z states that she prepared her opinion "after analysing the case file, participating in the hearing of [the child] on 20 July 2018, and a psychological interview conducted with the opinion subject and her mother on the same day". Accordingly, I find, on balance, that the Polish original is, in fact, dated early 2019 and that the English translation should refer to that date.
Ms Z opines that:
During the hearing before the court the opinion subject remained in very good verbal contact, in an indifferent mood, calm, adjusted, spoke quietly. Informed that she could refuse to testify, she did not exercise her right. The opinion subject testified that she was angry with her daddy, because "he lies alot and I don't want to see him". As reasons for her attitude toward her father, the minor stated that "he didn't let us go to Australia, behaved badly towards my mum, kicked my mum". The girl confirmed the existence of a serious conflict between her parents. She described the quarrels between her parents, their behaviour during these events. She said that her father tried to hit her mother and was effective in these attempts. He also destroyed objects - damaged door or throwed cookies on the floor. The father did not use violence against the minor. The minor also described details of the relationship between her parents, indicating that she had knowledge of her parents' conflict inadequate for her age and developmental level. [handwritten underlining]
Summarizing all the material available to the expert (derived from the analysis of the case file, information from the hearing, psychological interview and analysis of behavioural indicators), it must be said that the girl's testimony is quite extensive, abounding in details about her parents' marital conflict. Due to her entanglement in the conflict of adults and her unconsciously taking on the perspective of the parent under whose custody she is currently under, the girl's testimony does not constitute a psychologically valuable source of information on her own observations. [handwritten underlining] While it is true that the witness is able to record facts that directly affect her, their reproduction replicates the position of the mother in conflict with her ex-husband.
(Handwritten underlining per original)
Ms Z concluded, inter alia:
The analysis of the material obtained from the subject and the internal and external analysis of the testimony indicate that her ability to perceive, remember and rep produce facts and events is disturbed due to the girl's entanglement in the conflict of adults. [handwritten underlining]
(Handwritten underlining per original)
The wife disagreed with Ms Z's opinion and procured her own opinion by a clinical psychologist and a pedagogue / family therapist, who were critical of Ms Z's opinion. The mother's evidence is that they are both "on the panel of experts approved by the Polish court". However, the evidence of Professor C is that such evidence "only has the value of a private document … but has no evidential value comparable to that of an expert opinion". As I understand the situation to be, the fact that the adversarial experts retained by the wife were on the panel of experts approved by the court merely rendered them eligible to be appointed as court experts in any case; it did not render them court experts in the proceedings involving the parents, merely by reason of their appointment by the mother. The status in Poland of the mother's adversarial expert report is unclear. As I have indicated, the proceedings in Poland, including in the Regional Court, have long been pending and are far advanced. The proceedings before me are of a limited nature, to determine the appropriate forum in which parenting proceedings in relation to X should hereafter take place. It is wholly inappropriate for me to go behind the parenting and criminal proceedings in Poland or to allow the mother to seek to relitigate those matters, certainly in the absence of good reason for so doing. Further, Ms Z's opinion is consistent with the findings and the preponderance of the evidence in the Polish proceedings. In the circumstances, I accept Ms Z's opinion over the adversarial evidence obtained by the wife in Poland.
Whilst, as between the parents, I am far more critical of the mother's conduct than that of the father, he too is not without same blame. In early 2019, the principal of the AA School at which X then attended, made application to the Regional Court that:
…substitute consent of the father be granted for the student [X], born […] 2007, to be permitted to come back home from the school unassisted and that a decision be made that meetings of the father with the daughter may not take place on the premises of the school.

The basis of the school's application was that the mother had given consent for X to return home from school unaccompanied (a distance of about 300 metres). However, the father did not consent thereto. The school's concerns were expressed as follows:
On specific days of the week, based on the decision case reference number […], the father has the right to see his daughter, which he tries to execute in practice by picking up his daughter from the school. On some Wednesdays, Thursdays and every second Friday the father comes to the school to pick up his daughter. Then sometimes the daughter tries to hide or even flee not to meet her father. While avoiding such meetings and being extremely nervous, the girl may behave in a way which is dangerous for her. [X] says that she is embarrassed and ashamed that her father picks her up from the school. Another aspect of those situations is the fact that the father does not pick up his daughter/does not come to the school every Wednesday, Thursday and every second Friday. Then, lack of consent may result in the girl staying in the school building until it closes.
Due to those incidents the safety of the student is at risk. The attempts to reach an agreement and work out a common standpoint of the parents have been ineffective. …
In the circumstances, the school sought that:
Due to a divergent standpoint of the student's parents … the student [X] be permitted to come back home unassisted on all days of the week and that the right to hold meetings of the father with his daughter be executed beyond the premises of the school.
In early 2019, the Regional Court ordered, inter alia, that the father have "an additional security for the period of the pending proceedings … in such a way that he collects his daughter directly from school or the mother's place of residence, depending on whether the child has school classes on a given day, and after the visit he drives her to the mother's place of residence" at Easter, during the "May weekend" and during the summer holidays that year. Further, the court ordered the mother to pay the father the sum of PLN … for each event of violation of such access rights.
In mid-2019, BB Lawyers in Melbourne, acting on the half of the mother in Poland, wrote to the Complex Case Management Section of the Department of Foreign Affairs and Trade, enclosing a Form B-11 declaration, as well as an Application for an Australian Travel Document Form B-9, a Form B-7 and "supporting documentation for your further information consideration". Those documents were tendered by the State Central Authority and marked as exhibit A2. The lawyers’ covering letter was in substantially the same terms as their subsequent letter, dated a short time later, in 2019, referred to below. However, they advised that the mother sought DFAT's urgent assistance to renew the child's passport without the Father's consent and to release it into her possession to enable her "to hold identification documents for her daughter and enable them to travel to Australia [mid-] 2019". Additionally, they asserted that "it is not safe for our client to attend upon the Australian Embassy in Poland to lodge her daughter's passport Application and we respectfully seek commission to lodge on her behalf in Australia". In the enclosed Form B-11, dated mid-2019, the mother referred to the proceedings that had been pending in Poland since mid-2016 and asserted, inter alia, that they had been "grossly biased in favour of the Father" and that, in mid-2016, "the Father retained possession of [X's] Australian passport from me and despite Polish Court Orders and involvement from the police has refused to return the passport to me since" (emphasis added). That was patently untrue, as the orders for the father to return X's Australian passport to the mother had been set aside on appeal as having been invalidly made. Further, she asserted:
The Father has perpetrated acts of family violence so severe that the Criminal Court of Poland have charged him in relation to these crimes. The Father continues to use the Polish legal system to inflict family violence against me. He is very well-connected in the country and protected by the Polish system as he is a citizen and I am not. I have grave concerns for our safety and am concerned that if the Father or any of his associates seen the attending upon the Australian Embassy in Poland they will jeopardise my Application and potentially retaliate with family violence.
That was, at best, an exaggeration and, at worst, patently untrue. Insofar as the mother represented to the Department of Foreign Affairs and Trade that the father had perpetrated acts of family violence that were "so severe", that was not, in fact, the nature of the charges. In any event, the father was ultimately not convicted. Insofar as she represented to the Department that the father had used the Polish legal system to inflict violence against her, that he was very well-connected in Poland and that he was protected by the Polish legal system as he was a citizen, whereas she was not, that was but a repetition of her mantra prior to that time and subsequent thereto, including at trial before me, which allegations were entirely uncorroborated and bordered on the scandalous.
Further, the mother represented to the Department that:
As the injustice I have suffered at the hands of the Polish Court has become so apparent that it has necessitated 3 Applications filed between for breach 2018 and [late] 2018 by my Polish lawyers to exclude the Judge hearing my matter without success and a submission to the European Court of Human Rights has also been submitted on my behalf highlighting the gross miscarriage of justice through the Polish Court I hold concerns about partaking in any bureaucratic process in Poland.
There is no suggestion, let alone evidence, that the mother's submission to the European Court of Human Rights was upheld or found to have any substance.
The enclosed Form B-9, also dated mid-2019, specified that X's proposed travel dates were from 8 July 2019 until 5 August 2019. The mother declared that the information she had given in the form was "complete and correct" and that she was aware that it was a criminal offence under the Australian Passports Act 2005 to make false or misleading statements (for which there were penalties of up to 10 years imprisonment or a fine of 1000 penalty units or both). Further, the mother asserted that, at that time, there was no restriction by way of court order in Poland on the child's or her travel to Australia. However, that was not the whole truth; what the mother did not disclose was that she had not obtained any orders permitting X to travel out of Poland. Further, the mother conceded in cross-examination that, at that time, not only were no flights booked for the dates she specified but there was not even any application pending in Poland for leave to travel with X to Australia, her last application having been unsuccessful in December of the preceding year.
In mid-2019, BB Lawyers submitted another passport application to the Complex Case Management Section of the Department of Foreign Affairs and Trade. Those documents are annexed to the mother's affidavit filed 9 September 2022.
After an earlier draft dated mid-2019 (annexed to the mother's affidavit filed 9 September 2022), in their covering letter also dated mid-2019, addressed this time to a case manager called "[Ms CC]", (included in exhibit A2), those lawyers sought, on the mother's behalf, "DFAT's urgent assistance to issue a new passport for the child without the father's consent and release it to our client's possession". They represented to the Department that:
There has been extensive family violence perpetrated by the Father against our client and [X] which has resulted in current criminal charges pending in Poland. We respectfully request that the father and/or his agent are not alerted to this application at any time throughout the process as there are serious safety concerns for our client.
(Emphasis in original)
Notwithstanding the solicitors’ assertion that there had been "extensive family violence perpetrated by the Father against … [X]", no such allegation has been made in these or the Polish proceedings. They further asserted that the Poland proceedings had been "grossly biased in favour of the Father" and that the father has used "the Polish legal system, including intimidating witnesses, to inflict family violence against" the mother but, despite her similar allegations in these proceedings regarding those in Poland, I repeat there has not been a skerrick of evidence in support of these scandalous allegations. Similarly, they asserted:
Our client has been severely missed treated by the Polish legal system as a non-national. The injustice has become so apparent that it has necessitated 3 Applications filed between February 2018 and November 2018 by her Polish lawyers to exclude the Judge hearing the matter without success. In this time, a complaint was filed to the Polish Minister of Justice however no action has been taken to date. A submission to the European Court of Human Rights has also been submitted on behalf that client highlighting the gross miscarriage of Justice through the Polish Court's restricting their freedom of movement and the violation of the Child's and our client's right to family life which is protected by the European Convention of [sic] Human Rights.
Enclosed with that letter was a Form B-9 Application for an Australian Travel Document for a child "without full parental consent or Australian court order permitting issue of a travel document". The notes at the commencement of the application state, inter alia:
It is your responsibility to obtain the consent of each person whose consent is required. This form should be completed only when you have exhausted all efforts to obtain the required consents. …
In my view, in circumstances where there were pending proceedings in Poland, it could not truthfully be said by the mother that she had exhausted all efforts to obtain the required consents, notwithstanding the mother's statement that the father and she were "involved in lengthy legal proceedings in Poland including family law proceedings, criminal proceedings relating to family violence and fraud perpetrated by the Father …". I have similar concerns regarding the mother's assertion in the application that: "In light of the Polish civil and criminal proceedings currently on foot, the Father cannot be made aware of this Application or the information it contains as it may severely jeopardise the safety of the child and myself". It is unclear why [X's] safety might be jeopardised.
In that application, X's proposed travel details were stated to be departing on 1 August 2019 and returning on 21 August 2019. That may have been the mother's subjective travel proposal, but she knew that any overseas travel was opposed by the father and therefore required a court order and that there was no such extant order, nor even an application therefor.
The mother also represented that "the last contact of any type between" (emphasis added) X and the father was on 23 June 2017. That was manifestly untrue.
In further support of her passport application for X, the mother represented to the Department of Foreign Affairs and Trade:
Since proceedings commenced by the Father in Poland in 2016, I have been severely mistreated by the Polish legal system as a non-national. The injustice has become so apparent that it has necessitated three Applications filed between February 2018 and November 2018 by my lawyers to exclude the Judge hearing our matter. The Judge whom we are seeking to be excluded has determined that she will remain hearing this matter, a decision that I have since appealed. During this time, the Judge continued performing non-urgent actions in the case, despite being prohibited from doing so by Statute.
My legal representatives in Poland have informed me and I verily believe that a number of the Judge's rulings in the proceedings are unprecedented and follow no previous ruling of the law in Poland. The Judge has clearly favoured the Father in every determination.
The mother continued:
On 19 June 2018 the Judge held a private meeting with the child … During this meeting, the Judge advocated strongly for the Father making the child feel very guilty for not wanting contact with him. … The evident biased has been witnessed by many independent observers throughout the proceedings, including [Mr DD] who attended the Court as a Human Rights observer …
The mother also alleged that further examples of bias shown by the Polish court included differential treatment between the father and her and differential treatment of the evidence filed by each of them, as well as the father having "falsified Court documents, witness statements and e-mail correspondences which have been accepted as evidenced by the Court. This includes also falsifying emails between me and [Ms EE]", her sister. Not only is there not a shred of evidence corroborating the mother's allegation of the falsification by the father of any documents, but this allegation was not even put to him in cross-examination.
The mother referred to a complaint by her to the Poland Minister of Justice on 28 February 2018, as well as an application to the European Court of Human Rights that had recently been filed, and also asserted that the father has held a number of important jobs with political ties within Poland which put him "in a position of power and influence over the Court". There is no evidence to support the mother's allegations. Further, she referred to a complaint to the court of first instance that was underway in relation to the lengthy duration of the divorce case and, in particular, she asserted that from late 2016 there had been over 13 hearings relating to X and her ability to travel. In relation to a decision of the Polish Court of Appeal in early 2019, which upheld the decision of the first instance court in late 2018 for X to become a Polish citizen, she stated that her Polish lawyers were in the process of drafting an appeal to the President of Poland. In relation to her application to the European Court of Human Rights, she stated that as it was likely to take considerable time, during which the docketed judge would retain the case, such that:
… the bias becomes untenable making the justice process farcical and unrelenting, the only remedy left for me was to personally sue the Judge for her gross mistreatment of me from the commencement of proceedings in Poland. [In mid-] 2019 I personally filed a Motion to the Polish Court to sue the Judge. To date, I have not received any response from the Court in respect of this Motion. My Polish language lawyers will likely have no choice but to submit a further Motion to the Court to seek the Judges exclusion again.
Poland does not look favourably on whistleblowing and I have been forewarned that the consequences for me are likely to be harsh and that the entire judiciary may become aware of this rare event, prejudicing my case.
(Emphasis added)
It is clear that the mother approbates and reprobates; she complains of delays in the Polish proceedings but contributes to them, including by taking the extraordinary (and, in my view, inexplicable) step of suing the docketed judge. When she was cross-examined about this, she feigned ignorance as to how and why she, herself, may have contributed to her own misfortune.
In late 2019 a Subsidiary Bill of Indictment was filed on behalf of the mother, represented by her lawyer in Poland, in the District Court there, accusing the father "for committing a criminal act to the detriment of the victim [the mother], i.e.: on the fact that, in the period from January 2002 to the date of filing this subsidiary indictment, he mentally and physically abused his wife" and seeking that (inter alia) the father be found guilty, be sentenced to a term of imprisonment (as determined by the Court) and that he pay the mother compensation in the amount of 50,000 zlotys.
In relation to the subsidiary indictment brought by the mother against the father alleging domestic violence (referred to above), her Polish lawyer stated:
[In late] 2022 a non-final judgement acquitting [the father] was handed down. This judgment is by no means final and [the mother] will be appealing against it. [the mother] was not even provided with a link to provide her testimony online on [the day of judgment]. And given that all of [the mother's] evidentiary submissions were dismissed and that the court failed to even complete her cross-examination, it is highly likely this judgement will be overturned by the Court of Appeal.
It will be obvious that the hearing in late 2022 occurred whilst the mother was in Australia, after wrongfully removing X from Poland. It appears that Poland does not accept evidence by video link from outside its borders. Accordingly, to some extent, the mother is again the author of her own misfortune. However, what the evidence of the wife's Polish lawyer reinforces is that, contrary to her assertions, she is not without legal recourse there, nor is any litigation to which she is a party doomed to failure.
Similarly, a Summary Bill of Indictment was filed on behalf of the father against the mother alleging that she had driven over his foot in her vehicle outside X's school in City M in late 2017. Annexed to the mother's affidavit filed 10 October 2022 is a letter by her Polish lawyer to her dated late 2022 in which he states, inter alia, that:
A non-final judgement was recently handed down in this case. The court did not convict [the mother]. The court, in respect of the traffic infringement, discontinued to proceedings due to the statute of limitations, while in respect of the infringement of [the father's] health, the court conditionally discontinued the proceedings, inter alia in recognition of [the father's] improper conduct on the road …
It must be pointed out that a decision conditionally discontinuing the proceedings is not a conviction. [The mother] remained in unpunished person under Polish law even if this decision was to be upheld by the court of second instance. Furthermore, Polish law applies the principal of the so-called "full appeal", which means that the Court of second instance, in the event of an appeal (and [the mother] intends to file such an appeal after receiving the justification for the judgment) decides the case in its entirety anew. It is also possible for [the mother] to be heard again in such proceedings. [the mother] will only be required to pay the sum of PLN 4,000 if the judgment of the court of first instance is upheld by the appeal court.
Furthermore, it should be stressed that one of the pieces of evidence in these proceedings brought by [the father], is the private opinion of [Dr FF]. This opinion was in all probability falsified by [Dr FF], i.e., he certified a false statement(s). This is evident, inter alia, indirectly from the two opinions of the court-appointed expert doctors, who indicated that injuries of the magnitude disclosed by [Dr FF] could not have occurred to [the father's] foot. It should be further emphasised that numerous criminal proceedings are pending against [Dr FF] for falsification of medical opinions. In one of these proceedings, [the mother] has the status of an aggrieved party precisely because of the use of [Dr FF]'s opinion by [the father] in the case described above in respect of the alleged injury to [the father's] foot.
On 13 February 2020, on application by the father, the Regional Court (inter alia):
(a)ordered that, in addition to the time to be spent by the father with X pursuant to the orders of mid-2017 (referred to above) and late 2017 (not in evidence), the father further spend defined holiday time with her;
(b)restrained the mother from collecting X from school personally on the days on which she was to spend time with the father, as well as "releasing the child from classes" and permitting third parties from collecting her so as to prevent contact;
(c)"cautioned" the mother regarding a fine of 4,000 zloty for every instance of non‑compliance with the father's contact rights; and
(d)ordered that on every other alternate Saturday, the father spend time with X between 4‑5 PM in the presence of a child psychologist.

In the circumstances, on balance, I am satisfied that, whilst X objects to returning to Poland, this is primarily due to her family situation there, which has been for six years (and which remains pending) before the courts of that country.
In relation to whether X's objection shows a strength of feeling beyond the mere expression of a preference or wishes:
(a)Ms G reports that X's objection to returning to Poland, whilst "emphatic", indicated a degree of desperation and wanting to avoid both the situation in Poland related to her parents' entrenched conflict and the ongoing court proceedings there, as well as her feelings of being unsafe in the context of the conflict in Ukraine (at [36.a]).
(b)Ms G opines that X's statement to her, that she found it easier to manage the situation from a distance, "may be a naïve view, but also may be related to her past experiences of having to engage with her father at times and venues where she felt uncomfortable and even embarrassed" (at [36.b]). Either way, in my opinion, that undermines the weight to be given to X's objection to returning to Poland. Ms G opines that X's feelings around this type of situation are not unusual from a young person whose social development may be at a peak stage in their life. However, she further opines that "[r]egardless of which country she lives in, it is likely that [X] will continue to be involved in court proceedings until such time that the parenting arrangements are finalised". There is nothing to suggest that if X remains in Australia, litigation between her parents will not continue in Poland and/or commence here. Therefore, in my opinion, in whichever country she is, she may very well be unable to escape that which she purportedly seeks to do.
(c)Ms G reports (at [36.c]) that X is aware of her mother having wanted to return to live in Australia and of the Polish court's (interlocutory) decision that X was not permitted to travel to Australia with her given the possibility (which, in fact, has transpired) that she may not return to Poland. In this regard, Ms G opines:
Given the apparently enmeshed mother-child relationship, there may be some doubt about whether [X] is expressing her wishes or her mother's wishes or a combination of the two with little distinction between them. However, it is common in separated families where there is high parental conflict, for children to adjust what they say and do to appease each parent based on what they know that parent wants to hear and see.
Ms F's Hague Family Report and her evidence in cross-examination in relation thereto have been of great assistance to the Court. She is an expert witness who has proffered helpful expert opinion. However, she is not the arbiter of the facts in this case. Whilst she opines (at [36.c]) that, given the "apparently enmeshed" mother-child relationship, there may be "some doubt" about whether X is expressing her wishes or her mother's wishes or a combination of the two with little distinction between them, on balance, I have no such doubts. For the reasons herein, I have no hesitation in finding that the relationship between the mother and X is, in fact, enmeshed and that X is expressing either her mother's wishes or a combination of her mother's and her wishes, the latter influenced, if not formed, by the former.
Lastly, in relation to whether X's objection shows a strength of feeling beyond the mere expression of a preference or wishes, Ms G reports (at [36.d]) that there was an incongruence between X's presentation and her expressed concern that her mother's and her mental health would "worsen" if they returned to Poland, in that X did not appear upset, as she had done earlier in the interview. Further, in relation to her concern regarding her mental health, Ms G opined that there was little information from X, and in the reports she read, to indicate that X's mental health stability was of concern. I do note, however, the concerns for X's mental health, by reason of her enmeshment by and with her mother, expressed in the Polish court reports and accepted by the courts there.
In the circumstances, on balance, I am satisfied that X's objection, so analysed, does not show a strength of feeling beyond the mere expression of a preference or wishes. Alternatively, I find that any strength of feeling has been brought about by the mother's enmeshment of and with X.
In relation to whether X has attained an age and degree of maturity at which it is appropriate to take account of her views, Ms G opines (at [37]) that:
a.While [X] clearly has reached an age and degree of maturity where some weight could be given to her views and wishes, she presented as a young person who appears to have been over exposed to adult issues related to her parents' relationship and the Court proceedings in Poland. [X] appears to have a positive relationship with her mother and appears also to be strongly aligned with her mother's views.
b.Taking all this into account, there may need to be a degree of caution placed on the weight being given to [X's] views and wishes in these proceedings.
(Emphasis added)
For the reasons herein, I agree that notwithstanding X's age, she is a young person who has been over-exposed to adult issues related to her parents' relationship and the court proceedings in Poland, at the hands of her mother, and that she is therefore strongly aligned with her mother's views. Accordingly, I find the degree of caution recommended by Ms G (at [37.b]) to be placed on the weight given to X's views and wishes in these proceedings to be, in fact, high.
In her summary, at the conclusion of her Hague Family Report, Ms G opines (at [38]) that, having been caught in the midst of the ongoing high conflict between her parents and the long standing court proceedings, X:
…appears to have become strongly aligned to her mother, and this is an important and significant relationship for her. [X] identified with her mother's experiences of her father. She presented as defensive and protective of her mother. [X] seems to have taken responsibility for the decision-making particularly in relation to the decision to leave Poland and travel to Australia with the intention of remaining in Australia.
Ms G further opines (at [39]) that:
From her own accounts, and in the material read for this assessment, it would seem that [X] may be experiencing an underlying level of sadness about the relationship with her father. There appeared to be some glimmer of hope that the father-child relationship could improve. [X's] suggestions for how she and her father can remain in contact, and her curiosity about the level of contact he maintained with her after she left Poland, indicated that she may still want a relationship with her father. The report from [Ms F], dated 14 April 2022, described a positive change in [X's] attitude towards her father whereby she made eye contact with him, smiled, and engaged in conversation directly with him after a period of using [Ms F] as an intermediary. If she was to return to Poland, [X] would have the opportunity to continue building on this relationship in a positive way. However, such a decision may lead to an increase in the anger [X] feels towards her father.
Ms G also opines (at [40]) that X's need for a "normal life" is a common feature of children experiencing parental separation, entrenched parental conflict and protracted court proceedings. I accept her opinion. It accords with common sense, as well as the experience of the Court. However, insofar as X told Ms G that distance made the situation in Poland and her feelings easier to manage, I accept and am troubled by Ms G's caution that "[t]his distance, as well as [X's] knowledge that her mother superficially supported the father-child relationship, may lead that relationship becoming further estranged".
In circumstances where X spoke warmly to Ms G of her peer relationships in Poland, the support those relationships provided her, and the deep understanding between them that has been developed over many years, I also accept and am troubled by Ms G's suggestion (at [41]) that X's "justification and minimisation of the impact of the departure from Poland on her friendship may be [X's] strategy to cope with the separation and loss of friendships that had an apparently high degree of trust and respect". Ms G suggests, and I accept, that given the nature of those friendships and X's reportedly sociable personality, she may likely be able to re-adapt to her familiar environment and friendships in Poland without great difficulty.
Ms G concludes (at [42]):
[X's] apparently maladaptive (avoidance) way of coping with parental separation and conflict is likely to become more challenging for her as she progresses through adolescence and faces other developmental trials and tribulations, such as school, friendships, intimate relationships, and employment. She may use maladaptive strategies in those areas of her life, thus affecting her emotional and social development. Without the appropriate parenting input in this area, and possibly professional intervention, [X's] avoidance of challenging situations may increase.
Ms G was cross-examined by all counsel. She was an impressive witness. Cross-examination elucidated but did not change her report.
She confirmed that X is an intelligent, mature and articulate girl, who appeared rational. However, she said that X was immediately emotional and cried from the onset of the interview and intermittently throughout the time she spent with her.
Ms G confirmed that there are two aspects as to why X objects to returning to Poland: one is the conflict in Ukraine; and the other is in relation to her relationship with her father. However, she later clarified that the majority of X's concerns are about her father.
In relation to X giving evidence in Poland, Ms G did not gain any impression from her that she had been coerced or influenced to do so. X told her that she wanted to give evidence there. However, Ms G said that it was inappropriate for a child to be placed in such a situation, to give evidence against one parent over another. She said it would be quite emotionally challenging time for a child under 15 (as X was at the time) and would potentially further affect her relationships with one or both parents. She said that parents should try their best to avoid engaging their children in their conflict, including by involving them directly in court proceedings, whether it be criminal or civil matters. I note that in the course of the mother's evidence, she saw nothing wrong with that.
Ms G said that X had been very aware that she had been prevented from leaving Poland, especially to visit Australia where her mother's family lives. Again, I note that X's complaint was about not being able to visit Australia, rather than to move here. Ms G continued that X blames her father for that and that there is "a correlation between [X's] time with her father or her relationship with her father deteriorating and her awareness about that", namely, the Polish court decision. In circumstances where the mother has been X's primary caregiver since separation and X is enmeshed with and influenced by her, and has spent only limited time with the father, I find that X's awareness and dissatisfaction are primarily attributable to her.
Ms G said that X is very much enmeshed with her mother in terms of her emotions and feelings towards the conflict between her parents and towards her father. She said that she did not think that X's objection to returning to Poland is entirely independent, because her exposure to the parental conflict and to the proceedings and multiple assessments in Poland have influenced her decision, such that some caution needs to be placed on the weight that is given to her views. Whilst Ms G agreed that X very articulately expressed a very strong preference not to return to Poland, she explained that caution was required (Transcript 19 October 2022, p 13, lines 35-42):
Because of her over-exposure to the adult issues over a number of years and the influence that she - you know, the influence on her views, her enmeshment or alignment with her mother. As I said earlier, she talks very much about experiencing what her mother has experience. She talks about, you know, her father harassing us or we - in the context of we. So she's very much enmeshed with her mother's views and wishes as well. So while I think [X] has her own views, she's aware of her mother's views. And as I've said in my report, there's probably a combination of the two.
Counsel for the mother put to Ms G that the correlation between X's views and those of her mother was to be expected because her mother had been her primary carer for most of her life. Ms G disagreed. She said that she had come across many families with children who were experiencing parental separation and not all were enmeshed with one parent and expressing the views of that parent as their own.
In relation to spending time with her father, X indicated to Ms G that her mother supported her doing so "because that's what the court had ordered". However, she did not give Ms G "any indication that her mother supported the relationship beyond that. And that would also contribute to [X's] resistance to see her dad or influence her view about him, which, at the moment, is quite a negative view".
I asked Ms G whether, if an order were made for X to return to Poland, it would be easier or more difficult for X to do so if she were accompanied by her mother. Ms G opined that, given the status of the relationship with her mother, it would be easier for X if her mother returned with her: "whether her mother returns with her or not, I think that will play a part in how [X] responds to any decision for her to return".
In relation to X's expressed need for a normal life, away from her father, Ms G said:
I think her need to, or her want to be away from the situation and create some distance goes back to her - I guess her maladaptive way of coping with the situation. So avoiding the situation, which I've talked about in paragraph 42. And I think for her, that distance and not having any contact with her father is her way of avoiding, I guess, tackling some of those difficult emotional aspects associated with the relationships with parental figures.
In relation to X having left her life in Poland, including her friends and her education there, Ms G said that "she has lost some of that support network. She talked about her well-established group of friends supporting her through her parental issues. And so now she doesn't have that close supportive network".
I asked Ms G what could be done to make it easier for X if an order were made for her return to Poland. She said:
Well, I think going back to a place where she is familiar with the school the friendships. That's all going to help. But I think, given some of the issues in this matter has [sic] been about what information she has been exposed to and how she has been influenced, I think it will be helpful for her to have a clear, child-appropriate explanation as to the decision made and why she is returning. … But, also, [X] will need her mother's explicit permission or support about a return if that spot [sic] was ordered.
In the latter regard, Ms G explained that it would help X "given that she is strongly aligned to her mother, she is supportive and defensive of her mother".
However, Ms G opined that, if an order were made for X's return, given her existing views about her father, her anger or negativity towards him may increase, which would affect any reparation process, so that there is no guarantee she is going to willingly resume any contact with him. I accept that may be so. However, she also said that if X remains in Australia, "given her maladaptive ways of coping, she may or may not be able to engage better in a therapeutic process to repair that relationship".
Ms G said that she would be concerned for X's well-being if the mother did not believe that she required any contact with her father and that, unless such contact posed a risk to X, it is significant for her development that there be contact. She said that X's emotional development is still ongoing and that she is quite emotionally vulnerable at her age and stage of development, especially as she has been in a conflictual situation since she was at least six years old. There was the following exchange between counsel for the State Central Authority and Ms G (Transcript 19 October 2022, p 21, lines 1-21):
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: So that in circumstances where a child of this age takes responsibility for her mother and her coming to Australia to be here, knowing that it was being done without her father's knowledge, that would have put incredible emotional pressure on this young lady, wouldn't it?
[MS G]: It would, yes.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: To have to go to school and hide it from your friends that you were just suddenly going to disappear from Poland and go somewhere else without notice would put incredible emotional pressure on the child, wouldn't it?
[MS G]: Yes.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: To have to go to a therapy session with your father 48 hours before leaving the country, knowing that that's what you were going to do - that is, leave the country - puts that child in an emotionally intolerable situation, does it not?
[MS G]: It would have been emotionally difficult for [X].
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: And it would be, would it not, that [X] is shouldering that responsibility for her mother. She's saying, it's my fault we're here. That's the way we read it, isn't it?
[MS G]: Look, as I've said, [X] was very much talking about this being her decision to move to Australia, to have no contact with her father. She talked about her and her mother in the us sense, the we sense. So yes, she was shouldering some responsibility about decisions made. And as I said earlier, she was quite supportive and defensive of her mother.
Ms G also said that X needs her mother's permission and support, now more than ever, to have a relationship with her father but that, as she understood from X, "her mother has supported this superficially in terms of saying, you know, this is what the court has ordered; you must see your father".
When asked by counsel for the Independent Children's Lawyer why X's views are not entirely independent, just because she lives with and is supportive of her mother, Ms G said:
It's because she's also reflecting some of her mother's views, as I understand it, and from reading the documents that have been filed, she has consistently - at least in Poland - reflected what her mother has seemingly told her about the situation. And they refer to her passport; her being able to come to Australia; she even told me, and this is in some of the Polish documents, about financial aspects and conflict, or dispute between her parents. And one particular example she gave me was about primary school and how she had to stop attending because her father would not pay the private school fees. So I think there's a combination of not just, like I said, her own views about how she feels about her dad - him starting a new relationship and the dynamics of a step-family for her was difficult; his attendance at her school, and the conflict that has occurred there. But even in the way that she spoke, as I explained two days ago in evidence, when she talked about her experiences, or her mother's experiences - like I said there's little distinction - it was very much in the context of "we" and "us". So there was little distinction between what she had experienced and what her mother had experienced. It was very much together they had experienced this. And one particular comment she made was about what her dad did to her mother was also a direct impact on her, and what he was doing to her.
Given the preponderance of the totality of the evidence in this case, including the various reasons for judgment of the Polish courts and the expert reports admitted and accepted by those courts in the proceedings between the parents there, I conclude that:
(a)Whilst X prima facie objects to be returned to Poland, properly analysed, her objection is overwhelmingly by reason of that country's association with her father and the proceedings between her parents there, rather than that country per se.
(b)Whilst, prima facie, X's objection might show a strength of feeling beyond the mere expression of a preference or of ordinary wishes, the underlying reason for such strength of feeling is by reason of her enmeshment by and with her mother and her mother's matrimonial dispute with her father. Insofar as X proffered reasons such as her preference for the combined theory and practice based approach to learning at her school in Australia (as she told Ms G) and her professed "love of how diverse it is here compared to Poland, [with] so many different cultures and religions that influence everyone and everyone is so nice + no abortion or lgbtq+ ban like in Poland", as she wrote to the father in a text message in mid- 2022, I find such grounds for her objection to returning to Poland to be merely expressions of a preference or of ordinary wishes. There was no suggestion, for example, that X identifies as part of the LGBTQ+ community herself.
(c)Insofar as X may, in isolation, have attained an age at which it may be appropriate to take account of her views, the requirement in reg 16(3)(c) is conjunctive, namely, "the child has attained an age, and a degree of maturity." Given X's enmeshment by and with her mother, as well as her alienation from her father by her mother, I am not satisfied that, despite her age, she has attained a degree of maturity at which it would be appropriate to take any significant account of her views. As Bennett J said in State Central Authority v Hotzner at [147.e]:
If the Court should come to the conclusion that the child's views have been influenced by some other person, for example the abducting parent, or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views.

In the circumstances, I shall dismiss the mother's defence pursuant to reg 16(3)(c).
DISCRETION
Having dismissed the mother's defence, I do not have any discretion not to make an order the return of X to Poland. It will be recalled that reg 16(3) provides that a "court may refuse to make an order under subregulation (1) … if a person opposing return establishes" one of the defences contained in paragraphs (a) - (d) of that subregulation. However, reg 16(5) makes clear that the court "is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
Even if I had found the mother's defence under reg 16(3)(c) made out, such that a discretion to decline to order X's return to Poland were enlivened, I would not exercise such discretion in the mother's favour for the following reasons.
In HZ & State Central Authority [2006] FamCA 466 at [29], the Full Court of this Court referred to the factors relevant to the exercise of discretion to refuse return as follows:
…
In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)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."
…
See also Regino v Regino (1995) FLC 92-587 at 81,820-81,821 and De L v Director General, NSW Department of Community Services (1996) FLC 92-706 at 83, 456.
In relation to the matters set out in sub-paragraphs (e) and (f) of the judgment in HZ & State Central Authority [2006] FamCA 466 at [29] , in Agee & Agee [2000] FamCA 1251 at [64], the Full Court said:
Despite the underlying purpose and intent of the Convention which must be accorded significant weight, it is equally important to remember that the Convention, in its adherence to the summary return of children whose future should be dealt with in another jurisdiction, nonetheless makes provision for specific consideration of the welfare of the particular child with whom the requested state is concerned where the threshold has been crossed and the interests of that child require the Court to take another course than summary return under reg 16. It is to be recognised however that these are narrow exceptions.
Accordingly, I turn to briefly consider issues relevant to the exercise of discretion, had it been enlivened.
As to the comparative suitability of the forum in which to determine the child's future in substantive proceedings, I am of the view that, notwithstanding these proceedings in this Court, which have overwhelmingly been directed to the issue of forum, the Polish court is the more suitable forum. Proceedings have been pending in that court for over six years. True it is that those proceedings have been protracted, however, there is no evidence which would suggest that the legal system in Poland, a fellow contracting State, is to blame for this state of affairs. There will also be delays in this court, where substantive parenting proceedings have not been instituted. To the contrary, on the evidence, I am satisfied that the mother has substantially contributed to those delays, including by routinely appealing any decisions with which she was dissatisfied, her complaints to the Polish Ministry of Justice, the President of Poland, the Human Rights Ombudsman and to the European Court of Human Rights and the legal action taken by her against the presiding judge in the Polish parenting proceedings personally, which I am satisfied, on the balance of probabilities, is the reason for which that judge has since recused herself, causing further delay.
It is difficult to predict with any degree of certainty, at this stage, the likely outcome, in whichever forum, of the substantive parenting proceedings. True it is that X is nearly 16 years of age, (at which time the Regulations and the Convention will no longer be applicable). It is highly likely that the parenting dispute will continue to be litigated between the mother and the father, either in Poland or in Australia. The court in which such litigation takes place, in either country, will need to grapple with two competing factors. First, the child will be 16 or 17 years old, an age at which her wishes may well carry weight, and she will soon be beyond the jurisdiction at least of this Court. Secondly, however, on the evidence to date, those wishes have been significantly influenced, and probably overborne, by the mother. I find that whilst, far from certain, it is more likely than not that the father / daughter relationship may be repaired, with therapeutic involvement, if they are physically in the same city.
The situation which would await the mother and the child, if compelled to return, will be no different to that which they left. X attended school in Poland, and happily so. The mother was, and had been, in paid employment in Poland and there is no suggestion that she will be unable to secure employment there. She was able to access not only legal assistance in the proceedings there, as well as social assistance, but was able to make submissions to the Ministry of Justice, the President of Poland, the Human Rights Ombudsman and the European Court of Human Rights. In circumstances where the mother abandoned her defence of "grave risk" under reg 16(3)(b) by reason of the war in Ukraine and where, in any event, that situation pertained both at the time of her wrongful removal of X from Poland in early 2022 and at the time of the trial of these proceedings before me in October 2022, I give no weight thereto in this respect.
As to the anticipated emotional effect upon X's best interests of an immediate return, which is a significant but not paramount factor, whilst I accept that she will be very unhappy, that unhappiness is largely attributable to the mother's actions, in enmeshing X and alienating her from the father and in wrongfully removing her from Poland. Further, it is beyond debate, at least in this Court, as a general proposition, that children should have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests, and that children have the right to know and be cared for by both their parents, and to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development. I see no reason why, in the exercise of any discretion, the objects of Part VII of the Family Law Act 1975 (Cth), cannot be taken into account, in a general sense, in the same way that the best interests of children (provided for in ss 60CA and 65AA of the Act) may be taken into account at this stage. Given the mother's demonstrated antipathy towards the father, her alienation of X from him and the vigour with which she as opposed the proceedings in the Polish courts and this Court, I do not accept that the repair of the father's relationship with the child has as great a chance of succeeding if they are situated at opposite ends of the world than if in the same place. For example, I do not accept that continued therapeutic intervention could be undertaken anywhere nearly as effectively by video-conference between Poland and Australia as would be the case if the father and X were in the same location. Further, by reason of my findings above, whilst the mother might well not be truly supportive of such therapy even if living with X in Poland, I am satisfied that she would be even less so in Australia, with the tyranny of distance between them.
Whilst I may understand the mother's desire to live in Australia, where her immediate family of origin, comprised of her parents and her sister, resides and with whom she enjoys a close and benefits from a supportive relationship, I am far from impressed by her conduct. She deliberately and knowingly set out to deceive the father, the Polish court-approved psychologist, Ms F, and the Polish courts regarding her planned wrongful removal of X. The mother deceitfully applied for an Australian passport for X, through lawyers in Australia. I find that she not only wrongfully, but also opportunistically, removed X from Poland under the guise of fleeing from the war in Ukraine, only to abandon that ground of defence at trial. I do not accept that she only made the decision to remove X from Poland during the course of the week prior to their departure as she asserted. They left Poland on or about early 2022 (and Europe the following day); however, their tickets were booked by her sister in Australia in early 2022. An email from SS Airlines airline to the mother's sister dated early 2022 attaching their itinerary was tendered by the State Central Authority and marked exhibit A7. Indeed, as noted above, the mother's evidence was that, but for the war in Ukraine, she would not have wrongfully removed X. Corollary to that is that she did not do so because of any wish, stronger otherwise, on the part of X not to live in Poland. In other words, it is the mother's wrongful removal of X from Poland, allegedly due to the war nearby (but since abandonded), that has given rise to X's objection to return.
Lastly, in the circumstances of this case, as I have found them to be, I am comfortably satisfied that the purpose and underlying philosophy of the Convention would be at risk of frustration if a return order were to be refused. Whilst I am acutely aware that X will soon be 16 years of age, to refuse to make an order for her return to her place of habitual residence, from which she was wrongfully removed, merely by reason of this fact would, in my view, frustrate the purpose and underlying philosophy of the Convention, especially in the particular circumstances of the mother's conduct in Poland and their proceedings. Further, whilst the mother has been unsuccessful to date, in the Polish courts, in obtaining an interlocutory order enabling her to travel with X to Australia to visit her family, there is no evidence that she has sought a final order there for leave to relocate with the child to this country. It may well be that, because of her wrongful removal of X, she will face a much more difficult road ahead in any future application made by her for relocation or travel to Australia. However, she has brought that upon herself and, indeed, X.
ORDERS AND CONDITIONS
Regulation 15(1) of the Regulations provides:
(1)If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:
(a)make an order of a kind mentioned in that regulation; and
(b)make any other order that the court considers to be appropriate to give effect to the Convention; and
(c)include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
At trial, the father gave evidence that if a return order were made, he would pay for economy class airfares for X and the mother, travelling through Convention countries. He also said that he had no intention to take any proceedings against the mother in Poland for child abduction.
The mother's evidence was that if I made a return order, she would not, at least at that stage (namely, in about mid-late 2022) accompany X to Poland. She said that she was not sure whether she could return because of what she alleged she had endured there, rather than because of the war in Ukraine which, on her case, is the reason X and she left. She conceded that, if a return order were made, it would be easier for X to do so if accompanied by her.
In closing submissions, her counsel sensibly sought that she be afforded further time to reflect on her position in that regard. However, by email dated 14 December 2022 to my chambers (and copied to the State Central Authority and the Independent Children's Lawyer), her solicitor advised that he was "instructed to confirm that [his] client will not be travelling to Poland". The refusal of an abducting parent to accompany the child on their return to their place of habitual residence is not a basis upon which to exercise the discretion to refuse to make a return order. To do so could be said to accede to an attempt to blackmail the court (cf: Director General of Family and Community Services v Davis (1990) FLC 92-182 at 78,228; Police Commissioner of South Australia v Temple (1993) FLC 92-365 at 79,829; Director General, Department of Community Services v Crowe (1996) FLC 92-717 at 83,643). In any event, the mother sensibly did not seek to argue a defence of grave risk caused by her own actions or inaction.
At the close of the trial, it was agreed between counsel for the State Central Authority, the mother and the Independent Children's Lawyer that a minute of orders would be submitted to my chambers if there were agreed conditions for any return.
Subsequently, the parties submitted to my chambers a minute of "agreed conditions of return if an order is made for the child, [X], to return to Poland". That minute provided for two scenarios: first, if the mother informed my chambers prior to the making of that she agrees to accompany X to Poland; and, secondly, if the mother did not inform my chambers prior to the making of final orders that she agrees to accompany X to Poland. Notwithstanding the email from the mother's solicitor dated 14 December 2022, I propose to give her one last chance to reconsider her position (namely, until 13 January 2023), given the evidence of Ms G that it would ameliorate X's distress if she were accompanied by her mother.
However, I will otherwise make orders and require undertakings generally in the terms agreed between all the parties.

I certify that the preceding two hundred and seventeen (217) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.
Associate:
Dated: 20 December 2022

File number(s):	MLC 6353 of 2022
Judgment of:	STRUM J
Date of judgment:	20 December 2022
Catchwords:	FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from Poland – Where all the jurisdictional facts are conceded – Where the respondent mother relied on the regulatory exception in reg 16(3)(c) – Whether the child’s objection is to return to Poland per se or because her father and the parenting litigation was there – Whether the child’s objection shows a strength of feeling beyond mere expression of preference or ordinary wishes – Whether the child has attained an age and maturity such that her wishes should be taken into account – Where the child is 15 ½ years of age – Where the Polish courts have made findings that the child’s views are enmeshed with those of the respondent mother and that the child has been alienated from the requesting father – Orders for the child to return to Poland.
Legislation:	Australian Passports Act 2005 (Cth) Evidence Act 1990 (Cth) s 131(2)(g) Family Law Act 1975 (Cth) s 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 14, 16(1), (1A) (3)(b), (c), 26(1), 29(5)(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 15.15 Convention on the Civil Aspects of International Child Abduction
Cases cited:	Agee & Agee (2000) FLC 93-055; [2000] FamCA 1251 Colak & Viduka (2016) FLC 93-707; [2016] FamCAFC 79 Commonwealth Central Authority & Sangstar [2018] FamCA 765 De L v Director General, NSW Department of Community Services (1996) FLC 92 – 706 Director General, Department of Community Services v Crowe (1996) FLC 92-717; [1996] FamCA 123 Director General of Family and Community Services v Davis (1990) FLC 92-182 HZ & State Central Authority (2006) FLC 93-264; [2006] FamCA 466 Police Commissioner of South Australia v Temple (1993) FLC 92-365; [1993] FamCA 146 Re M (A Minor) (Child Abduction) [1994] 1 FLR 390 Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 Re S (A Minor) (Abduction: Custody Rights) [1993] Fam 242 Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 Regino v Regino (1995) FLC 92-587 State Central Authority v Hotzner (No 2) [2010] FamCA 1041
Division:	Division 1 First Instance
Number of paragraphs:	217
Date of hearing:	12-14 and 19-20 October 2022
Place:	Melbourne
Counsel for the Applicant:	Ms Harris
Solicitor for the Applicant:	Department of Families, Fairness and Housing, Legal Services Branch
Counsel for the Respondent:	Mr Whitchurch
Solicitor for the Respondent:	Gordon Ainger Legal
Counsel for the Independent Children's Lawyer:	Ms Treyvaud
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

MLC 6353 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING Applicant
AND:	MS CULLEN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	STRUM J
DATE OF ORDER:	20 DECEMBER 2022