Department of Families, Fairness and Housing & Cullen (No 2) - [2023] FedCFamC1F 176

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Families, Fairness and Housing & Cullen (No 2) [2023] FedCFamC1F 176

File number(s): MLC 6353 of 2022

Judgment of: STRUM J

Date of judgment: 21 March 2023

Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where child brought to Australia by mother – Where return of child previously ordered – Application to discharge return order pursuant to reg 19A of Family Law (Child Abduction Convention) Regulations 1986 – Asserted exceptional circumstances justifying discharge of return order – Provisions of reg 19A – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 69ZT, 111B, 111CE

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 16, 19A, 26

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996

Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980

Vienna Convention on the Law of Treaties signed at Vienna on 23 May 1969

Cases cited:
Commonwealth Central Authority & Sangster (No. 2) [2018] FamCA 894

Department of Children, Youth Justice and Multicultural Affairs & Golub [2021] FamCA 435

Department of Communities, Child Safety and Disability Services & Garning (Discharge Application) [2012] FamCA 839

Department of Community Services & Smollett (No. 2) [2018] FamCA 372

Director-General, Department of Families and RSP (2003) FLC 93-152; [2003] FamCA 623

Director-General, Department of Families v P [2003] FamCA 691

Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011; [2000] FamCA 253

DP v Commonwealth Central Authority (2001) 206 CLR 401; [2001] HCA 39

Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10

Soysa & Commissioner, Western Australia Police [2012] FCWA 28

State Central Authority v Ustinov (No 4) [2008] FamCA 987

W v W (Child Abduction: Acquiescence [1993] 2 Fam Law R 211

Division: Division 1 First Instance

Number of paragraphs: 159

Date of hearing: 9 March 2023

Place: Melbourne

Counsel for the Applicant: Mr Wilson

Solicitor for the Applicant: Kennedy Partners Lawyers

Counsel for the Respondent: Ms Colla

Solicitor for the Respondent: Department Of Families, Fairness and Housing
Director, Legal Services Branch

Counsel for the Independent Children’s Lawyer: Ms Hutchings

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:
MS CULLEN

Applicant

AND:
DEPARTMENT OF FAMILIES, FAIRNESS & HOUSING

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

STRUM J

DATE OF ORDER:

20 March 2023

THE COURT ORDERS THAT:
1.The mother’s Form 2D Application filed 15 February 2023 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 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:
INTRODUCTION

On 20 December 2022, in proceedings instituted by the Secretary of the Department of Families, Fairness and Housing, as the Victorian State Central Authority (“State Central Authority”), under the Family Law (Child Abduction Convention) Regulations 1986 (“Regulations”), I made an order that the child, X, born 2007, be returned to Poland before 30 January 2023, pursuant to reg 16(1) of those Regulations (“return order”), subject to certain conditions. The reasons for judgment I delivered, when making the return order, were extensive, spanning 80 pages and 217 paragraphs (“previous reasons for judgment”).
As I noted at the commencement of my previous reasons for judgment, and it is important to recall, 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”. Further, in proceedings under the Regulations, the best interests of the child are not the paramount consideration, although they may be of relevance in the event a discretion not to return the child is enlivened. Rather, such proceedings are merely to determine the forum in which parenting issues in relation to the child will be litigated by the child’s parents.
The trial of the proceedings took place before me in October 2022, over six days. The respondent mother, Ms Cullen, conceded that she had wrongfully removed the child from Poland but pleaded a defence under reg 16(3)(c), namely, that the child objected to being returned to Poland; that her objections showed a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and that she had attained an age, and a degree of maturity, at which it was appropriate to take account of her views.
At [197], I concluded, in summary, that:
·Whilst, prima facie, X objected to being returned to Poland, her objection was overwhelmingly by reason of that country’s association with her father and the proceedings between her parents there, rather than that country per se.
·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 was by reason of her enmeshment by and with her mother, and in her mother’s matrimonial dispute with her father, who was the requesting parent.
·Insofar as X might, prima facie, have attained an age at which it might be appropriate to take account of her wishes, given her enmeshment by and with her mother, as well as her alienation from her father by her mother, I was not satisfied that, despite her age, she had attained a degree of maturity at which it would be appropriate to take any significant account of her views.
In the circumstances, I dismissed the mother’s defence and made the return order. These reasons for judgment should be read in conjunction with my previous reasons for judgment.
On 16 January 2023, the mother filed a Notice of Appeal, which is listed for hearing on 28 March 2023.
On 23 January 2023, on application by the mother, the return order was stayed by the Honourable Justice McNab, pending the determination of her appeal.
On 15 February 2023, pursuant to reg 19A of the Regulations, the mother filed a Form 2D Application to discharge the return order (“discharge application”). That application proceeded before me on 9 March 2023. It is opposed by the State Central Authority and by the Independent Children’s Lawyer. For the reasons which follow, the mother’s discharge application will be dismissed.
I note that, on 30 January 2023, the mother filed an Application in an Appeal to adduce fresh evidence, being substantially the same evidence upon which she relies in support of her discharge application. When the mother’s discharge application first came before me, on 22 February 2023, I was initially concerned as to whether or not I should entertain it, in light of her pending, and earlier-filed, appeal and Application in an Appeal. However, my attention was drawn to the decision of Strickland J (with whom Kent and Tree JJ agreed) in Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10, where his Honour, in not dissimilar circumstances, said (at [5]):
In discussion with counsel today we have raised the circumstance that first, it is a well-known principle that all remedies that are available at first instance should be pursued before any appeal is heard and determined, and in this case, a specific issue that has been raised is the prospect of there being two appeals. In other words, if this appeal proceeded and was heard and determined, then, subject to the result, the application under reg 19A would be pursued and then, subject to the result of that application, there may very well be an appeal against that determination.
Accordingly, I listed the mother’s discharge application for hearing by me. Whilst I anticipate the mother will appeal my dismissal of her discharge application, the time for the filing of which will expire after X attains the age of 16 years, it may be that, in the circumstances, the Full Court will see fit to require the consolidation and expedition of any such appeal with the pending appeal next week.
STATUTORY FRAMEWORK
Regulation 19A of the Regulations provides:
19A Discharge of return order
(1)If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.
(2)The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:
(a)all the parties consent to the return order being discharged; or
(b)since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or
(c)exceptional circumstances exist that justify the return order being discharged; or
(d)the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.
(3)In considering whether to make an order discharging a return order, the court must have regard to section 111CE of the Act if the convention country from which the child was removed is also a Convention country within the meaning of subsection 111CA(1) of the Act.
The mother founds her discharge application on reg 19A(2)(c), namely, that exceptional circumstances exist that justify the return order being discharged. If, and only if, I am so satisfied, a discretion then arises to make an order discharging a return order.
As is apparent from reg 19A(3), in considering whether to make an order discharging the return order, I must have regard to s 111CE of the Act if Poland is also a “Convention country” within the meaning of s 111CA(1) of the Act, namely a country, other than Australia, for which the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (“Child Protection Convention”). Poland is such a country.
Section 111CE provides:
111CELimitation when a child is wrongfully removed from or retained outside a Convention country
A court must not, other than in a case of urgency, exercise jurisdiction in accordance with paragraph 111CD(1)(a), (b), (c) or (d) to take a Commonwealth personal protection measure relating to a child if:
(a)the child has been wrongfully removed from or retained outside a Convention country; and
(b)an authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.
REGULATION 19A(2)(C): EXCEPTIONAL CIRCUMSTANCES
Counsel for the mother relied upon the decision of Dawe J in State Central Authority v Ustinov (No 4) [2008] FamCA 987 at [11]–[12], where her Honour said:
11.The Court must consider the meaning of the word “impracticable” and phrase “exceptional circumstances”. I rely upon the ordinary meaning of the words, as there is nothing in Regulation 19A which suggests that they have any particular meaning other than their usual meaning. I accept that “exceptional circumstances” requires the finding of something unusual or something in the nature of exception and that the word “impracticable” requires something which makes it unmanageable or unable to be carried out.
12.On the definition of exceptional circumstances, I have been referred to the decision of Ho v Professional Services Review Committee No 295 [2007] FCA 388 in the Federal Court of Australia. At paragraph 25 Rares J states:
“25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’”
In that case, Dawe J dismissed the father’s application for a discharge order, saying at [24]–[44] (not dissimilarly to the present case):
24.The other major submission on behalf of the father is that exceptional circumstances now exist that justify the return order being discharged. This is based upon the evidence of the father that he does not now intend to, and will not, return to Bulgaria, either in the short term or the long term, and that the children have expressed to Mr Q and Dr W strong views about not returning to Bulgaria and not returning to the care of the mother.
25.The evidence of Mr Q, which is contained in his report, was as a result of at least one hour interviewing the children together in the absence of their father and subsequently interviewing them in the presence of their father. He has taken into account the report of Mr R and has read the judgments of the Court at first instance and the Full Court. He conducted a personality assessment inventory and parent-child relationship inventory in relation to the father and the children. He did not interview, and did not have any information directly from, the mother.
26.The arrangements were made to comply with the permission granted to the father in paragraph 7 of the order of 22 April 2008, which not only referred to a qualified child psychologist assisting the children but also to the psychologist explaining to the children the father’s need to comply with the Court orders for their return to Bulgaria.
27.The report and the oral evidence of Mr Q indicates that he did not explain to the children the father’s need to comply with the Court orders for their return to Bulgaria. His oral evidence, and his written report, suggest that he considered whether the provisions of regulation 16 of the Family Law (Child Abduction Convention) Regulations had been met. He specifically refers to the Child Abduction Convention Regulations and draws conclusions of his own about “grave risk” and the “strong objections” by the children to their return. In the second to last paragraph of page 2 of the report, Mr Q says:
“Even though I stated to the father that the Family Court documents and Jenny Olsson stated clearly the purpose of the children seeing a clinical psychologist was to prepare them for their return to Bulgaria, the father stated that he had had legal advice that, due to a change in circumstances, he could seek a change in the Court order.”
28.Much of the report of Mr Q sets out his view of the application of the Regulation 16 provisions which had already been determined by the Court.
29.The report of Dr W, and the report of Mr Q and his evidence, confirm that the children are expressing views similar to those they expressed to Mr R. It is now a longer period of time since the children have been in the care of the mother and an increasing period of time since they have been in the sole care of the father or his mother. There is no evidence before the Court that the children have been given any encouragement, support or direction by the father to permit him to comply with the orders of the Court for the return of the children to Bulgaria.
30.The mother’s evidence given before me today is that the attitude and views of the children have been formed, as she described it, by brainwashing by the father.
31.The father has indicated to the Court that now he will not return to Bulgaria.
32.The principles to consider have been referred to by the High Court and include that the Convention exists to bring about the prompt return of children who have been removed from a Convention country improperly. The question of habitual residence and wrongful removal were considered by me in the judgment and have been the subject of unsuccessful appeal to the Full Court.
33.I therefore consider whether exceptional circumstances have arisen since the judgment which would justify the return order being discharged. The exceptional circumstances must be more than simply all emphasis on the attitude of the children and their strong views which were in existence when they were interviewed by Mr R before the return order was made.
34.Based on interviews with the father and the children, Mr Q has concluded that there is a grave risk because of the psychological harm to the children. This Court, however, took into account the strong views of the children and the evidence of Mr R and determined nonetheless that the risk was not such as to direct the Court not to order the return of the children.
35.The facts which have been established are that the children have been making strong statements to Mr R, Dr W and Mr Q. Mr Q’s evidence is that the statements they have made should not be interpreted as a real threat of suicide but do indicate a risk that the children might take steps to enforce their views.
36.The mother has given evidence that she already has in place arrangements in Bulgaria to assist the children on their return, even if their return is, as the father has indicated, not in his presence or with his assistance.
37.I am not therefore satisfied that the father has established a grave risk, which would be the foundation of exceptional circumstances. I am satisfied that the children continue to maintain their strong views which they have maintained since they have been interviewed about these proceedings, and it is likely that they will continue to maintain those strong views. That, however, does not in itself create an exceptional circumstance that would justify the return order being discharged.
38.The question of exceptional circumstances and whether it is impracticable also calls into question what role the father has played in endeavouring to comply with the Court orders. There is no evidence before the Court as to what steps, if any, the father has taken to comply with the orders. (He has brought the application to discharge and has sought to appeal the orders which are his right to do).
39.If the father does not return to Bulgaria to participate in proceedings already commenced by the mother, this may leave the children in Bulgaria in the care of the mother.
40.His decision not to return to Bulgaria, and the reasons that he gives for that decision not to return to Bulgaria, should not be an exceptional circumstance which would justify the order being discharged.
41.It may be exceptional that the father decides not to return to Bulgaria to contest any proceedings concerning the welfare of the children, but his decision and the reasons he gives for that decision, whilst exceptional, do not create an exceptional circumstance that would justify the discharge of the return order.
42.The correct interpretation of the Regulations, taking into account the purpose behind the Convention, do not bring about a situation where one party saying they would not return to the country of origin could bring about a circumstance which would justify the discharge of the order.
43.The children have expressed strong views, but taking into account the circumstances which have existed, particularly that the mother has not had frequent time with the children in the time they have spent in Australia with the father since their removal in July 2007, I am satisfied that the orders that were made in April, as amended in September, should not be discharged.
44.Therefore, the provisions of Regulation 19A have not been made out.

To the extent that, in the present case, X’s objection to returning persists and the mother persists in her refusal to return to Poland together with X, the observations of Dawe J at above are apposite. Both X’s objection and the mother’s refusal were dealt with in my previous reasons.
However, the dicta of Dawe J in that case at [11], upon which the mother relies, above must nevertheless be viewed with a degree of caution, given the subsequent dicta of Thackray CJ in Soysa & Commissioner, Western Australia Police [2012] FCWA 28, to which reference is made below.
I was not referred to any authorities by counsel for the State Central Authority.
Counsel for the Independent Children’s Lawyer helpfully prepared and provided to the Court a written outline of submissions, in which she referred to the decision of Bennett J in Commonwealth Central Authority & Sangster (No. 2) [2018] FamCA 894, in which her Honour, noting (at [12]) that there was not a great deal of authority on the invocation of reg 19A, referred to the decision of McClelland J (as his Honour then was) in Department of Community Services & Smollett (No. 2) [2018] FamCA 372.
At [17]–[20], Bennett J said:
17.Apart from requiring that the circumstances rise to the description of “exceptional” the Regulations are silent as to the nature of the circumstances which may qualify under r.19A. It is a similar lack of specificity as exists in relation to matters which are to inform the exercise of the discretion to refuse return which arises when one or more of the five r.16 exceptions to return has been made out. I propose to treat r.19A(2)(c) in the same way. I adopt, with respect, the comments made by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in De L v Director-General, NSW Department of Community Services [1996] 187 CLR 640 where having regard to an exception to return having been made out, their Honours observed:
The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]’ enable it to be said that a particular consideration is extraneous [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
18.Accordingly, whilst the magnitude or depth of the circumstances must be fairly characterised as “exceptional” in relation to the case, the breadth of circumstances to which the court may have regard in the exercise of its discretion under r.19A(2)(c) is unconfined except insofar as they may be extraneous. I accept that under r19A(2)(c) it is appropriate to have regard to the best interests of the particular child(ren) as well as events or matters arising since the wrongful removal and after the decision to return.
19.In considering what constitutes “exceptional”, in Smollet’s case McClelland J stated (and I agree):
17.In applying that criteria I am assisted by the reasoning of Rares J in Ho & Professional Services Review Committee where his Honour applied the High Court decision of Baker v the Queen in stating:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
20.I am satisfied that the reference to “circumstances” does not require sequential assessment of each circumstance relied upon and that I may have regard to the circumstances cumulatively in assessing whether a discharge of all or part of the order is justified.
In that case, Bennett J made a discharge order, saying (at [48]–[50] and [60]):
48.This has been a somewhat unusual case, and it is therefore unsurprising, that the application of 19A(2)(c) would have unusual features to it. This is not a decision which will be readily applicable to other cases where conditions to return are not met. Each case falls to be decided on its own facts. The distinguishing features in this case included that:
•only two of the three children with which the return application was concerned were ordered to be returned,
•the children’s habitual residence has ceased to be the state to which they would be returned, and
•the uncertainty brought about by the father’s non-compliance is impacting adversely on the children in the manner described above.
49.Taken cumulatively, I consider that these circumstances are exceptional within the meaning of r.19A(2)(c), and that they justify the return order being discharged.
50.Notwithstanding that a discharge is “justified”, it is still discretionary. The Regulations are silent on what factors can inform the exercise of my discretion to discharge all part of the return order. As referred to earlier, in the absence of specification of relevant factors I regard the factors as being unconfined except to the extent that the subject, scope and purpose of the regulations enable it to be said that effect is extraneous.
…
60.I conclude that the circumstances relied upon by the mother, viewed cumulatively, amount to exceptional circumstances which justify a discharge of the return order in relation to the two younger children and that it is appropriate for me to exercise my discretion to discharge the return order it its entirety.
In Department of Community Services & Smollett (No. 2), McClelland J refused to make a discharge order. His Honour held (at [7]) that:
…in applying Regulation 19A, it is necessary for the court to have regard to the statutory context. That is, the Regulations are made pursuant to section 111B of the Family Law Act 1975 (Cth) which relevantly provides that the purpose of the Regulations is to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980…
At [8]–[9], his Honour referred to dicta of Gleeson CJ and Kirby J in DP v Commonwealth Central Authority (2001) 206 CLR 401. Gleeson CJ said at [3]:
…the concern of the Convention is to reserve to the jurisdiction of the contracting state which is the place of habitual residence of the child the determination of rights of custody and of access. This was said to entail a degree of self-denial, the natural inclination of any court before which such a question comes being to make its own assessment of the interests of the child. The objective is to secure the prompt return of children who have been removed wrongfully, or are being retained wrongfully, so that issues of custody and access may be dealt with according to the laws of their place of habitual residence…
Kirby J said (at [131]) that, applying the principles of the Convention:
…requires decision-makers to face up to what will necessarily, on many occasions, be an unpleasant obligation where there may be a suspicion that the child’s best interests, viewed purely as a custody determination, might suggest the child’s retention within the jurisdiction, although the proper operation of the Regulations, implementing the Convention, requires an order of removal…
McClelland J said (at [18]):
In this matter, a potential exceptional circumstance that has arisen since the orders were made is the fact that the child has been diagnosed as suffering from autism. In that respect, in a statutory declaration dated 16 April 2018, Dr J, a consultant paediatrician at the K Hospital, said that he had diagnosed the child with several medical conditions relating to impaired development, including most relevantly Autism Spectrum Disorder DSM-5, level 2 severity.
His Honour continued (at [22]):
In considering whether exceptional circumstances exist, in the context of the Regulations it is appropriate to have regard to whether, in the event of the return order remaining in force, the child would be at grave risk as contemplated by regulation 16(3)(b). That sub-regulation provides that a court may refuse to make an order for the return of the child if the person opposing return establishes that:
there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
His Honour concluded (at [25]–[28]):
25.In this matter the Court would have been assisted by more detailed evidence from Dr J and in particular Dr J’s opinion as to the potential consequence of the child being separated from the mother. Nevertheless, even on the basis of Dr J’s statutory declaration and the evidence of the mother to which I have referred, I am satisfied that the child being returned to New Zealand other than in the presence of the mother would place the child in a situation where the child would face a grave risk of harm as contemplated by regulation 16(3)(b). This is because the child, who has autism, would be highly distressed at being removed from the mothers care, placed on an aeroplane and being placed in a situation where the child would not be in a position where she could readily obtain comfort from her primary carer.
26.However, I have noted, by reference to the wording of regulation 16(3) the mother carries the onus of establishing the existence of a grave risk. The mother has not presented evidence that she would allow a situation to occur where the child would be separated from her as a result of her failing to accompany the child on the child’s return to New Zealand.
27.In that context I note that, in Re C (A Minor) (Abduction), Butler-Sloss LJ said:
... I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parents who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and horse through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent. ...
28.As noted, there is no evidence before the Court that the mother would act in such a manner.
(Footnotes omitted)
Accordingly, in all the circumstances, while recognising “the very trying circumstances faced by the mother and the special needs of the child” (at [35]), McClelland J was not satisfied that the conditions set out in reg 19A(2)(c) existed and he dismissed the mother’s discharge application.
Other cases involving reg 19A(2)(c), to which I was not referred, include Soysa & Commissioner, Western Australia Police; Garning & Department of Communities, Child Safety and Disability Services and Anor (Discharge Application) [2012] FamCA 839 and Department of Children, Youth Justice and Multicultural Affairs & Golub [2021] FamCA 435.
In Soysa & Commissioner, Western Australia Police, Thackray CJ said (at [71]):
Although I doubt reg 19A requires elucidation by reference to extraneous material, the Explanatory Statement that accompanied the 2004 amendments to the Regulations indicated it was designed to have “limited operation”…
Lest it be necessary to make it clear in the present case, Thackray CJ relevantly said (at [74]–[84]):
74.Although in proceedings under Part VII of the Act, the best interests of the child are the paramount consideration, this is not the position under the Convention, nor the Regulations which give effect to it: see De L v Director General, NSW Department of Community Services [1996] HCA 5; (1996) 187 CLR 640 at 658 (“De L”).
75.The Convention and the Regulations place emphasis on the best interests of children generally, expressly recognising that it is desirable to protect all children from “the harmful effects of their wrongful removal or retention”. As Waite J said in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 at 220 (“W v W”), “it is implicit in the whole operation of the Convention that the objective of stability for the mass of children may have to be achieved at the price of tears in some individual cases”.
76.Linda Silberman discussed the policy underpinning the Convention in her article, ‘Hague Convention on International Child Abduction: A Brief Overview and Case Law Analysis’ (1994) 28 Family Law Quarterly 9. Professor Silberman, a leading commentator on the Convention, said at 32, 33:
Certainly it is hard to quarrel with rhetoric about the child’s best interests [but] attempts to frustrate return under the guise of best interests, if allowed to succeed, could undermine the Convention and transform its procedural framework into one of substance. Indeed, the Convention presumptively declares that the best interests of the child are in fact served by preventing abductions and ordering the return of the child...
In addition, attempts to serve the best interests of children by conducting extensive hearings on the “psychological harm” or “intolerable situation” defence lengthen the proceedings and undercut the expeditious procedure envisioned by the Convention. It is important to short-circuit such attempts.
77.To give effect to this policy, the Convention assumes that a court of a signatory country will exercise self-denial by not following “its natural inclination to make its own assessment about the interests of children who are currently in its jurisdiction by investigating the facts of each individual case”: see Eekelaar, J. ‘International Child Abduction by Parents’, (1982) 32 University of Toronto Law Journal 281 at 305, cited with approval in De L at 649.
78.However, as Emily Keris explained in ‘The interests of children or the interests of the child? Discretionary non-return of a child under Art 13 of the Hague Convention on the Civil Aspects of International Child Abduction’ [2007] AUJlHRights 26; (2007) 12(2) Australian Journal of Human Rights 139 at 142, the interests of the individual child are not ignored. She went on to say:
The best interests of a child are to be determined in a court in the child’s state of habitual residence upon return...Further, the Convention envisages circumstances in which it is not in the individual child’s best interests to be returned to the requesting state...Exceptions provide for instances in which the ‘specific welfare of the child is allowed to prevail over any generalised principle that a child should be returned’ (per Butler-Sloss LJ in Re M (Abduction: Leave to Appeal) [1999] 2 FLR 550 at 552). Importantly, none of the exceptions permit an overall analysis of the child’s interests but necessitate the fulfilment of specified criteria in order to prevent assessment of the merits of the case...The obligation to return children is best understood by reference to the exceptions which define its extent...
79.The same points were made by the Supreme Court of the United Kingdom in In Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144 at 154 [13] (“Re E”). The necessity of honouring the “exceptions” in the Convention was also stressed by Carol S Bruch in ‘The Unmet Needs of Domestic Violence Victims and Their Children in Hague Child Abduction Convention Cases’, (2004) 38 Family Law Quarterly 529, where she said (at 530):
...although the basic scheme of the Convention leaves the hearing on an individual child’s best interests to the courts of the habitual residence, its exceptions are intended as a deviation from this norm. Each defense to return...addresses a concrete factual situation in which an individual child’s best interests are, indeed, meant to control the outcome of the Hague proceeding.
80.Professor Bruch therefore warned (at 535) against legitimate concerns about the exceptions being permitted to “swallow the return rule” developing further into “an improper disregard for the Convention’s intended protections against danger”.
81.Consistent with that approach, the High Court of Australia and the United Kingdom Supreme Court have found that courts should not give a “strict or narrow reading” to the “exceptions” contained in reg 16: see De L at 654, DP v Commonwealth Central Authority [2001] HCA 39; (2001) 206 CLR 401 at 418 [44] (“DP”) and Re E at 154 [13]. Accordingly, I accept that a strict or narrow reading should not be given to the words “impracticable” and “exceptional circumstances” in reg 19A. Put another way, adopting Gleeson CJ’s expression in DP at 407 [9], it would be inappropriate to give a “grudging” interpretation to the regulation.
82.The words of the regulation should therefore be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”: Vienna Convention on the Law of Treaties, art 31. The latter requirement accords with the injunction contained in reg 1A(2) to construe the Regulations “having regard to the principles and objects...of the Convention”.
83.The Regulations have been drawn (and amended) with careful attention to the difference between the permissive, “may”, and the mandatory, “must” – as can be seen from the Explanatory Statement to the Family Law Amendment Regulations 2004 (Cth). Therefore, the deliberate use of “may”, where it appears in reg 19A, clearly reposes a discretion in the court to leave the return order in place even if one of the designated criteria is met. Of course, it would seem implausible that a court would decline to discharge a return order if it found it was “impracticable” for it to be carried out. However, it is easier to envisage situations in which the order would not be discharged even if “exceptional circumstances” were found to exist.
84.Regulation 19A provides no guidance as to the matters to be taken into account in the exercise of the discretion to order the child’s return, should the discretion arise. However, it is clear that the child’s best interests would be a matter properly taken into account for the same reason the High Court determined in De L (at 660) that such interests should be taken into account if one of the reg 16(3) “exceptions” is established. The discretion is otherwise “unconfined except in so far as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous”: De L at 661.
His Honour (at [85]–[86]) rejected the mother’s submission in that case that the child’s interests are to be taken into account both in determining whether “exceptional circumstances” exist (or whether it is “impracticable” for an order to be carried out) for the purposes of reg 19A and when exercising the discretion conferred by it. His Honour said (at [86]):
These words impose an objective test. It is either practicable for the order to be carried out or it is not. Similarly, it is only by comparison with other cases that a court could determine if the circumstances of a particular case are “exceptional”.
His Honour continued (at [87]–[90]):
87.Of course, in determining whether it is “impracticable” for the order to be carried out and/or whether the circumstances are “exceptional”, it could not be overlooked that at the centre of the enquiry there is a child, not a sack of potatoes. Thus, the strength with which an older child might resist being put on a plane may be such that it is “impracticable” for the order to be carried out. The order might therefore be discharged, not because forcing the child onto a plane would be contrary to his best interests, but simply because it could not physically be done and/or the airline may refuse to accept him: see In Re F (Hague Convention: Child’s Objections) [2006] FamCA 685; (2006) FLC 93-277 at 80,710 (“Re F”) and Re M (A minor)(Child Abduction) [1994] 1 FLR 390. Similarly, the circumstances may be found to be “exceptional” because the child’s reaction to being ordered to return home proved to be far more disturbing than would have been anticipated. The order in such a case may be discharged, not because it would protect the child’s best interests, but because the circumstances were “exceptional”.
88.Adopting any other approach would be inconsistent with the objective of the Convention, which is aimed at limiting “best interests” litigation in any country other than that of the child’s former habitual residence. While the Regulations do contemplate some “best interests” disputes, the scheme of the Regulations suggests these should generally be dealt with at the same time as the court is determining whether there is a foundation for the return order. In any event, a “best interests” exception should not be allowed to creep in the backdoor after the return order has been made and confirmed on appeal. To adopt a construction of the Regulations that would not only allow, but encourage, such an approach would further impact on the ability of our courts to secure the prompt return of children.
89.It follows from what I have said that I take a slightly different approach to that which the mother’s counsel suggested had been adopted by Dawe J in her admirable ex tempore judgment in State Central Authority v Ustinov (No. 4) [2008] FamCA 987(“Ustinov”), which is one of the few cases determined under reg 19A.
90.Nevertheless, I agree that once the discretion is enlivened by a finding of “impracticability” or “exceptional circumstances”, the child’s best interests are a factor to be taken into account. But the best interests of the individual child will not be the only factor. The policy imperatives underpinning the Convention also need to be weighed, for fear of the effect the decision might have on the lives of many other children whose parents may be contemplating an abduction: see In re M (Abduction: Rights of Custody) [2007] UKHL 55; [2008] 1 AC 1288 at 1307 [42] – [44] (“In re M”).

Albeit in the context of his consideration of impracticability for the purposes of reg 19A(2)(b), his Honour nevertheless relevantly said (at [147]–[160]):
147.Dawe J in Ustinov at [42] expressed the view that the Regulations, correctly interpreted, “do not bring about a situation where one party saying they would not return to the country of origin could bring about a circumstance which would justify the discharge of the order”. However, prior to reaching that conclusion, her Honour discussed the meaning of “impracticable” in the context of reg 19A. Her Honour found, at [11], that given its ordinary meaning, the word “impracticable” requires something which makes it “unmanageable or unable to be carried out”.
148.Notwithstanding it accords with one of a number of meanings for “impracticable” given by the Shorter Oxford Dictionary, in my view the formulation “unable to be carried out” comes too close to “impossibility”, which is clearly not the test. I consider that the first synonym suggested by Dawe J, namely “unmanageable”, is more apt in the context of the Regulations because it allows “some degree of reason” to enter into the process of determining whether the discretion to discharge the order has been enlivened.
149.Accepting that “impracticability” is different from “impossibility”, and that the former involves the exercise of “some degree of reason”, I consider that the mother’s argument can be disposed of easily, once it is accepted that it is not for her to lay out the boundaries within which the issue is to be resolved.
150.This point was well made by Dawe J in Ustinov. It was also made in Re C (A Minor)(Abduction) [1989] 1 FLR 403 where the question was raised as to whether a mother could rely upon the “grave risk of harm” exception when the risk arose because of the mother’s refusal to accompany the child home. Butler-Sloss LJ famously said at 410:
The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him...Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent. ...
151.Her Ladyship’s views were endorsed by the Full Court of the Family Court of Australia in Director General of the Department of Family and Community Services v Davis (1990) FLC 92-182 at 78,228, where Nygh J said, “it would ill behove a party to rely on the fact that he or she has created the very situation which would prevent compliance with the Convention”.
152.A similar approach has been adopted in Switzerland in K v K (13 February 1992, District Court of Horgen) (“K v K”). The facts and outcome of that case are succinctly summarised on the website of the Permanent Bureau of the Hague Conference on Private International Law ( as follows:
The mother stated that she would not return to the United States. This was because she believed she would have better employment opportunities in Switzerland and would also fare better in divorce proceedings. Consequently, as she would not return, she argued that the child would face a grave risk of harm if forced to return alone.
The court rejected this argument, finding that the mother was not unable to return to the United States. The court noted that the mother was not required to resume cohabitation with the father. The court came to the conclusion that as a responsible mother who has the interest of her child at heart she would hardly refuse to accompany him on his return. Moreover, should she refuse, it would have to be assumed that she placed her own welfare above that of the child.
153.Beaumont and McEleavy’s text, Beaumont, P and McEleavy, P, The Hague Convention on International Child Abduction, Oxford University Press, London 1999, has been described as the “leading treatise on the convention”: see Mozes v Mozes [2001] USCA9 16; (2001) 239 F. 3d 1067 at 1072. The learned authors observed (at 145) that “the most common basis underpinning an allegation of psychological harm is separation from the abductor, particularly where that person has always been closely involved with, if not primarily responsible for the care of the child”. Having noted the undoubted distress and disruption associated with sending a child back to the country of habitual residence, Beaumont and McEleavy described the refusal of a parent to return with the child as representing “a very powerful weapon for an abductor attempting to overcome the summary-return mechanism”.
154.Beaumont and McEleavy went on to refer to the first English case where a similar issue was raised and noted that, in that matter, Nourse LJ declared “it is the parental duty of the mother to [the child] to go with him to Canada and thus minimise so far as is possible the further instabilities which are likely to beset him”: see Re A (A Minor)(Abduction) [1988] 1 FLR 365 at 375.
155.Beaumont and McEleavy, at 146, commented that the fact “this uncompromising approach has been repeated in subsequent cases is indicative of the resolve manifested by courts in England and also in the United States to prevent abducting parents from defeating the Convention by ‘manipulation or even by the expression of genuine fears and sincerely held feelings’”. They went on to acknowledge that “calling the bluff of an abductor...could place the welfare of the child in jeopardy. Nevertheless, it is suggested that it is a risk which has to be taken”. However, as Beaumont and McEleavy point out, calling the abductor’s bluff is not “an absolute rule”, and they recognised that some courts have been prepared to accept that the abductor would, in fact, not return.
156.Having discussed the decision of a French court refusing an application to return a four year old child after an almost three year absence (along with another similar case in France), Beaumont and McEleavy comment, at 149, that:
...the combined effects of these decisions is potentially disastrous for the implementation of the Convention in France. It must therefore be asked whether the French courts cannot adopt a more rigorous attitude vis-à-vis abductors and thereby deny them the scope to create the harm on which they subsequently rely. Such an approach should not be seen in terms of a restriction on the movement of the abducting parent. In the words of Judge Inglis QC in the New Zealand case Re J.E. (Child Abduction), [1993] 11 FRNZ 84 such criticism ‘overlooks the fact that [the child] has rights which are independent of both his mother and his father, and it cannot be assumed that [the child’s] welfare and happiness necessarily march in tandem with how the mother sees her own welfare and happiness’.
157.There may now be a more “robust” approach in such matters in France – as to which see the commentary on the decision in K v K on the website. I accept, however, that not all statements made by an absconding parent that he or she will not return to the country of origin should be seen as a “bluff”. Thus, in Director-General, Department of Families v P [2003] FamCA 691, Warnick J found there was a real risk that if the child was returned to the United States, the mother would commit suicide thereby creating a grave risk of harm to the child. In making this decision, Warnick J said at [80]:
I do not reach these findings without disquiet. Courts will understandably have a real concern about the disingenuous adoption of stances designed to achieve the purposes of abductors in resisting orders for the return of children. But the response to this concern cannot be to disregard evidence, but rather to scrutinise it with great care.
158.In deciding not to order the child’s return, Warnick J took into account evidence concerning the mother’s past and current mental health problems and her prior history of suicide threats. He particularly took account of the fact that the medical evidence had originally been obtained for the purposes of treatment, not evidence gathering.
159.Warnick J’s decision was upheld on appeal by the Full Court of the Family Court of Australia: see Director-General, Department of Families and RSP [2003] FamCA 623; (2003) FLC 93-152. See also Director-General, Department of Families, Youth and Community Care v Bennett [2000] FamCA 253; (2000) FLC 93-011 at 87,230 – 87,231 where the Full Court accepted there may well be personal or other circumstances which genuinely preclude an absconding parent from returning with the child to the country of former habitual residence.
160.For a further, very recent, example of a court declining to order the return of a child because of the primary carer’s intention not to return home, see the decision of the United Kingdom Supreme Court in In the matter of S (a Child) [2012] UKSC 10 delivered on 14 March 2012. In that case, “the unusually powerful nature of the medical evidence” supporting the mother’s concerns, along with other facts, persuaded the Supreme Court to reinstate the decision of the primary Judge, who had dismissed the application for return because of the “grave risk” of harm to the child. The Supreme Court also made clear that it did not consider it was necessary for the mother’s fears to be based upon objective risk. This is apparent from the following paragraph of the judgment (emphasis added):
27.In In re E this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child’s situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this court’s clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by...counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, “the source of it is irrelevant: eg, where a mother’s subjective perception of events lead to a mental illness which could have intolerable consequences for the child”. Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found “no reason to doubt that the risk to the mother’s mental health, whether it be the result of objective reality or of the mother’s subjective perception of reality, or a combination of the two, is very real”.
(As per original)
In relation to whether there were exceptional circumstances that justified the discharge of the return order, Thackray CJ said (at [174]–[180]):
174.Dawe J in Ustinov, at [11], considered that “exceptional circumstances” meant “something unusual or something in the nature of exception”. There is eminent authority to support her Honour’s view. Although speaking in a different context, Lord Bingham of Cornhill said in R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 at 208:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered...
175.This formulation was referred to with approval by Callinan J in Baker v R [2004] HCA 45; (2004) 223 CLR 513 at 573 [173], albeit again in a different context.
176.While I accept it is not permissible to place a gloss on the meaning of words merely because they appear in a convention designed to prevent child abduction, I would be inclined to treat the everyday meaning of the word “exceptional” in reg 19A, as being something more than “unusual”. In this regard I note that the Macquarie Dictionary also gives “extraordinary” as a synonym for “exceptional”, and that the Merriam-Webster Dictionary gives “rare”.
177.When construing the word “exceptional” in the context of reg 19A, I consider it would be proper to have regard to the strength of the language employed in those other parts of the Regulations that allow a court discretion not to order the return of a child. Gleeson CJ drew attention to this in DP at 408 [9], where he highlighted the cognate reference to “grave risk of harm” and “intolerable” in reg 16(3)(b), which he said was explicable by reference to “the nature and purpose of the regulatory scheme”. The strength of the language used elsewhere leads me to conclude that accepting something “unusual” as sufficient to activate the discretion in reg 19A would not be a construction that pays regard to the objects of the Convention. This is particularly so because, in my experience, cases arising under the Regulations commonly already possess “unusual” elements.
178.Jordan J dealt with one of the few applications brought under reg 19A in his succinct ex tempore judgment in Department of Child Safety v Starky [2009] FamCA 774 at [18] (“Starky”). Provided his Honour’s reference to the “bar [being] set very high” is understood as not imposing a gloss on reg 19A, I agree with Jordan J that it is proper to regard the “grave risk” exception in reg 16(3)(b) as:
...providing guidance in how one might interpret exceptional circumstances in this case. The provisions of that regulation talk of grave risk of psychological harm or of otherwise placing a child in an intolerable position. I accept that the bar needs to be set very high in considering regulation 19A, which is to cover situations after an order has been made.
179.With one important reservation, I therefore accept the submission made by Queen’s Counsel for the mother that “if the circumstances are exceptional enough to amount to an exception to return they ought to be exceptional enough for reg 19A”. The reservation I have about unqualified acceptance of that proposition is that it leads to the risk that a cunning abductor will keep the “grave risk” card up their sleeve until they have exhausted the first instance and two layered appellate procedures dealing with the threshold issues of habitual residence, rights of custody, and so on. If abductors can then, much later, play with impunity the card they have concealed and follow the same process all over again, they can potentially delay the return of the child almost indefinitely. This was not the position in Starky where the return order had been made by consent.
180. I accept, however, that there is nothing in reg 19A to indicate that the “exceptional circumstances” must have arisen after the order was made (in contrast with the provision dealing with impracticability of carrying out the order). …
Thackray CJ concluded (at [187]) that there were no exceptional circumstances warranting the making of a discharge order “because the most important circumstances on which the mother wishes to rely (i.e. those arising from the impact of the threatened termination of the relationship between mother and child) have been generated by her and can be removed, or significantly ameliorated, by her”.
In Garning & Department of Communities, Child Safety and Disability Services and Anor (Discharge Application), Forrest J said (at [4]–[5]), of the return order he had earlier made:
4.I did not, in that judgment, determine that the four children are better off living with their father. I did not determine that it is in the children’s best interests to return to live in Italy. That was not my responsibility. Indeed, had I determined either of those things, I would have erred at law. That is because the multitude of nations that negotiated the terms of the Hague Convention determined, by the provisions written into the Convention, that when children are wrongfully removed or retained away from the country of their habitual residence, court proceedings to determine which parent they should live with, and in which country their best interests are met, should take place in that country of their habitual residence, from which they were wrongfully removed or from which they were retained away.
5.Many Australian parents whose children are wrongfully removed or retained away from Australia every year benefit from the application of the provisions of the Convention and have their children promptly returned to Australia. But for the existence of the Convention and its observance by the Courts of the signatory states throughout the world, this might not happen. Child abduction as between separated and conflicted parents, particularly in its international form, has long been recognised as abhorrent and, in itself, not in a child’s best interests. What has happened with the four children in this case, in the last year particularly, in my view demonstrates the correctness of that recognition.
As the time for the return of the children to Italy approached, they were taken into hiding by an adult or adults known to them, during which time “the mother boldly applied for [Forrest J] to discharge [his] return order, without giving any evidence that assisted in the recovery of the children” (at [7]).
Forrest J ordered the children to be re-interviewed by the same family consultant who had previously interviewed them, prior to the making of the return order. The family consultant reported that the four children all strongly objected to being returned to Italy. His Honour said at [12]:
…Were the determination I now have to make as simple as considering whether the children object to being returned to Italy, this process would probably stop here. However, it is not that simple.
In relation to reg 19A, Forrest J said (at [13]):
Australia is one of the only signatory states to the Hague Convention whose enactment into domestic law of the Convention provides this Court with the power to discharge a return order. I shall not even begin to speculate on why that might be. Suffice to say that the power is enlivened if the Court is satisfied of at least one of four express pre-conditions. If so satisfied, discretion to discharge a return order is enlivened. Discharge is not mandatory on such satisfaction….
In considering what is the meaning of “exceptional circumstances” in the context of reg 19A(2)(c), his Honour said (at [19]–[22]):
19.In Ustinov, at [11], Dawe J considered that “exceptional circumstances” “requires the finding of something unusual or something in the nature of exception.” In Soysa, at [174]-[178], Thackray CJ respectfully discussed the issue further. Whilst he pointed out that there is “eminent authority to support her Honour’s view[3]”, his Honour went on to say that he “would be inclined to treat the everyday meaning of the word “exceptional” in reg 19A, as being something more than “unusual”. His Honour gave his reasons for that at [177], saying:
When construing the word “exceptional” in the context of reg 19A, I consider it would be proper to have regard to the strength of the language employed in those other parts of the Regulations that allow a court discretion not to order the return of a child. ....The strength of the language used elsewhere leads me to conclude that accepting something “unusual” as sufficient to activate the discretion in reg 19A would not be a construction that pays regard to the objects of the Convention. This is particularly so because, in my experience, cases arising under the Regulations commonly already possess “unusual” elements.
20.His Honour had earlier, at [86], already remarked that “it is only by comparison with other cases that a court could determine if the circumstances of a particular case are “exceptional”.”
21.Again, I find myself respectfully drawn to agree with Thackray CJ’s considered views. The fact that I have to be satisfied that the “exceptional circumstances” actually “justify” the return order being discharged fortifies my own view that to justify discharging a return order the “exceptional circumstances” must be something more than just “unusual”. Return orders made after due consideration of the evidence and principled application of the Regulations having regard to authority that remain untouched after appeal should not readily be discharged because “unusual” circumstances have emerged. That would too easily lead to defeat of the Convention’s purpose. Filing an application for special leave to appeal to the High Court from the decision of the Full Court of the Family Court, then subsequently withdrawing it after the first instance judge refuses a stay of the return order, before then again going to the High Court on a constitutional point that is immediately dropped at the start of the hearing in the High Court could only be described as “unusual”, yet these circumstances could hardly be considered such as to “justify the return order being discharged”. The circumstances need to be quite different from those that generally present in this sort of case to make them “exceptional” and there clearly must be something about the “exceptional circumstances” that makes it appropriate to discharge the return order; that justifies, substantiates or warrants doing so, particularly having regard to the purpose and scheme of the Convention and the basis upon which the return order was originally made.
22.Whilst paragraph (2)(b) expressly requires the circumstances that make a return order “impracticable” to be carried out to have arisen since the order was made, there is no requirement that the “exceptional circumstances that justify the return order being discharged” must have arisen since the order was made. Thackray CJ accepted that in Soysa at [180]. I respectfully accept that as correct.

In considering whether there were exceptional circumstances that justified discharge of the return order, his Honour said (at [37]–[46]):
37.I considered all that evidence of the children’s objections to returning to live in Italy in the course of determining the State Central Authority’s application for a return order, particularly in the context of the mother’s arguments that a Regulation 16(3) exception was made out. I did not find that the children’s objections showed the required strength of feeling, being beyond the “mere expression of a preference or of ordinary wishes” required by the Regulation, or that all of the girls had reached an age, and a degree of maturity, at which it was appropriate to take account of their views.
38.Now, as I have observed, the same Family Consultant reports, after having interviewed the children on 29 August this year, that all four children strongly objected to returning to Italy and told her that they would not get on the plane.
39.More alarmingly yet, the Family Consultant reports that the second eldest child stated she would run away and that she said “I’d probably end my life I’m feeling so strong.” This child was also reported to have told the Family Consultant that when she had been in foster-care she had considered cutting herself “with a knife ... anything that cuts.”
40.That last statement reported by the Family Consultant was consistent with other evidence that the child had confirmed to her foster-carer that she had communicated notions of self-harming to her mother and third parties whilst she was in foster-care in the period after being found in hiding in May this year, before the girls were put back in the care of the mother by order of Murphy J of this Court in early July.
41.The same child wrote the “Dear Someone” letter that I have already referred to during that same period of time. In that, she also said “I don’t think I could even survive in Italy. I would just cry and cry all day. I’d die of pain.”
42.Of note also, is the fact that the youngest child, now 9 years old, who was reported in May last year by the Italian speaking expert to have expressed the preference for returning home to Italy, is reported by the Family Consultant to have now said “Italy’s a scary place. I don’t feel comfortable..... I feel more Australian than Italian.”
43.Apparently, the level of the children’s expressed objection to returning to Italy has increased since their views were independently assessed and considered last year. That is, in my view, not at all surprising. They are all more than a year older, they have been living on the Sunshine Coast enjoying the lifestyle that this country and that locality has to offer, they have been building relationships with their maternal extended family, they have been building friendships with peers, they have acquired a far greater command of the English language and, importantly, they have been made absolutely aware of their mother’s expressed intention not to return to Italy with them in circumstances where their attachment to her is now clearly far stronger than their attachment to their father. That they would be disappointed about returning to Italy and object to doing so, in all these circumstances, is neither surprising nor, in the context of Hague Convention proceedings and cases like this, hardly exceptional.
44.The case for the mother though, as I understand it, is that the apparent strength of the children’s objections to return to Italy, manifesting itself in escalating psychological distress, and, particularly in so far as one of them is concerned, in threats of self-harm, constitutes the “exceptional circumstances” that justify discharge of the order.
45.Certainly, evidence of threats of self harm is seriously concerning and demands extremely careful consideration. The Family Consultant reports that she explored the particular statements that she reported had been made to her by the second eldest child further with the child. Thankfully, the child is reported to have said that she had received good advice from her friend and her mother and that she does not intend to self harm. The Family Consultant then went on to express the opinion that the likelihood of the child harming herself is low based upon her presentation at interview.
46.The mother had also deposed in an affidavit that the child had earlier spoken words to the effect of an expression of intent to cut her wrists, but the mother added that the words were used as an “expression” and that the child was “not really going to harm herself”. As I have already noted, there is also evidence that the child had confirmed to her foster-carer when asked by her that she had written something to the effect of “what do I have to do to get back home, [into her mother’s care] do I have to kill myself”. Thankfully again though, the evidence about that, is that the foster-carer then reported that the child had told her she did not really mean it and that she would never act on such a statement.
In this regard, his Honour said (at [49]):
I do not trivialize threats of self-harm made by a 14 year old girl or a 9 year old girl. It is very troubling. But as the Family Consultant has said, the circumstances in which these girls have found themselves directly involved in the efforts of their mother, and other members of the mother’s extended family, to keep them in Australia, notwithstanding the decisions of the Court, have had a significant emotional impact upon the children. The very public nature of the campaign has been very disturbing. I am satisfied that they have definitely not been shielded from the dispute and have clearly, I find, been significantly influenced in their views and their conduct by their mother and other members of her family. …
His Honour continued (at [52]–[53] and [55]):
52.It is very important to remember that the children’s objections to returning to Italy are principally founded in a belief that their mother cannot return with them. The Family Consultant confirmed as much. Notwithstanding the submissions of counsel for the mother criticizing the nature of the inquiry the Family Consultant was directed to and did undertake in respect of ascertaining the children’s views, I am left in no doubt that the children do not want to return to Italy, whether there are further proceedings in that country that might result in them being allowed to return to Australia or not, principally because of a belief, instilled in them by their mother, that she cannot and, therefore, will not return to Italy with them. The current strength of their views about returning to Italy cannot be considered in isolation from that fact.
53.In Ustinov, at [42], Dawes J was quite strong in holding that the correct interpretation of the Regulations, taking into account the purpose behind the Convention, does not allow the absconding parent to hold out as a circumstance that would justify the discharge of a return order the fact that she will not return to the country of origin. In Soysa, at [150] to [159], Thackray CJ carefully discussed the same issue.
…
55.The same approach has been endorsed by the Full Court of this Court,[4] but as Thackray CJ pointed out, the Full Court of this Court has more recently accepted that there may be personal or other circumstances which genuinely preclude an absconding parent from returning with the child to the country of former habitual residence.[5] Given these contrasting positions, I consider it best to be mindful of the words of Warnick J, the trial judge in Director-General, Department of Families v P [2003] FamCA 691, who said:
Courts will understandably have a real concern about the disingenuous adoption of stances designed to achieve the purposes of abductors in resisting orders for the return of children. But the response to this concern cannot be to disregard evidence, but rather to scrutinise it with great care.
His Honour held (at [56]) that such scrutiny was clearly required in that case, where the evidence was that the children would readily accept returning to their home country if their mother accompanied them. I interpolate, at this juncture, that is not necessarily the case here. His Honour continued (at [65]–[67]):
65.Nevertheless, I am not satisfied that the mother’s concern that she will be arrested, charged with an offence, convicted and imprisoned on return to Italy, is one that “genuinely precludes” her from returning. Not even the evidence that she herself has put before the Court supports such a finding.
66.I am satisfied that the level of attachment between the children and the mother is very strong and that the mother’s commitment to the welfare of the children is such that when faced, ultimately, with the prospect of them returning to Italy being real, she might very well determine to travel with them. Whilst I do not find that she would definitely decide to return with them, as counsel for the State Central Authority submitted I should, I do not consider that I must do so in order not to be satisfied that the circumstances constitute exceptional circumstances justifying discharge of the return order. I am, however, satisfied that I cannot find that the mother will not return to Italy if the return order is not discharged. …
67.If the mother does determine not to return, even in the face of the return order remaining in place, then that is her decision, but it is not one that I accept she has no personal choice but to make. In my original decision last year, I considered but rejected the mother’s argument that returning the children would expose the children to a grave risk of physical and psychological harm or otherwise place them in an intolerable situation. Included in my reasons for rejection was my satisfaction that the girls did not object to return to Italy if their mother also returned and my inability to find that the mother could not and would not return.
In all the circumstances, Forrest J dismissed the application to discharge the return order, adding that, even if the discretion had been enlivened, he would not have exercised it to do so, saying (at [95]):
I acknowledge that the matter, if it got to the exercise of the discretion, is extremely finely balanced. Certainly, consideration of the children’s best interests, which is able to be done at this point, albeit not as the paramount consideration, points to the need to consider the strength of the views expressed by the girls and the extent to which they have apparently settled where they have been living and going to school for the last two years. However, letting them stay here denies all four of the girls the regular company of their father and all of the members of his family. They might say they do not care about that but I am satisfied, particularly in so far as the younger two girls are concerned, that they are not all mature enough to understand the significance of such an outcome. I am also mindful of the fact that there is no principle that requires the discretion to be exercised entirely in accordance with what the subject children say they want.
In so holding, his Honour had regard (at [99]) to the fact that proceedings between the parents about the appropriate parenting arrangements in respect of the children could take place in the Italian courts and could result in orders that permitted the mother to relocate them to Australia. Further, his Honour said (at [100]–[101]) that he gave considerable weight to the directive in the Regulations to the Court to recognise that the effective implementation of the Convention depends on reciprocity and mutual respect between judicial authorities of Convention countries. His Honour concluded (at [102]):
After considering all of the evidence and all of these matters, and being acutely aware of the fact that I am making difficult decisions involving the lives of four children who have expressed strong views that they do not want to return to Italy, I have determined that I would not set aside the return order, even if I had an entitlement to do so after determining the ‘exceptional circumstances’ point…
In Department of Children, Youth Justice and Multicultural Affairs & Golub, an application was made for a discharge order under reg 19A(2)(c), in circumstances where it was alleged that the children the subject of the return order, aged nine and 10 years, had made threats of suicide if forced to return to Serbia. At trial, as in this case, the defence under reg 16(3)(c) had been pleaded. A reg 26 report had been prepared for the purposes of the trial. The family consultant had assessed the children, who had by that time been the sole care of the father in Australia for ten months, as preferring to stay in Australia but not having attained a degree of maturity at which it was appropriate to take their objections into account. It was reported that the children were critical of their mother, attuned to their father’s views and accepting of his allegations.
Bennett J referred (at [23]) to the decision in Department of Community Services & Smollett (No. 2) at [7]–[9]. Her Honour continued (at [24]–[28]):
24.In considering Regulation 19A(2)(c), “exceptional” is to be given its ordinary meaning. Baker v the Queen [2004] HCA 45; (2004) 223 CLR 513 was a case arising under s.13A of the Sentencing Act 1989 (NSW) which provided that a person serving an existing life sentence could apply for the determination of a minimum term of imprisonment and a parole period. S.13A(3)(a) provided that a person subject to a non-release recommendation was not eligible for a determination of a minimum term and a parole period unless the court was satisfied that “special reasons” existed that justified making the determinations. In Baker v the Queen Callinan J stated [173]:
...Legislative requirements that a judicial determination depend upon the demonstration of exceptional or special matters, events, circumstances, or reasons, are far from unique and have been the subject of much judicial deliberation. Regularly this Court is called upon to decide whether special leave to appeal should be granted. Speaking of the expression “exceptional circumstances” in s 2 of the Crime (Sentences) Act 1997 (UK) required for a decision not to impose a sentence of life imprisonment, Lord Bingham of Cornhill CJ said in R v Kelly (Edward):
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
(Footnotes omitted)
25.In the event that I am satisfied that “exceptional circumstances exist that justify the return order being discharged” (which I am not), relief under r.19A is discretionary, as evidenced by the opening words of the regulation which are “The court may make an order discharging a return order, or a part of a return order ...”. Accordingly, relief under r.19A is preconditioned on a finding that there are exceptional circumstances which justify the return order being discharged. However, even if such a finding is made, it remains for me to decide whether the discretion should be exercised in favour of discharging the return order, or part thereof.
26.The Regulations are silent as to the matters which are to inform the exercise of the court’s discretion to discharge part or all of a return order. In De L v Director General, NSW Department of Community Services & Anor (1995) FLC 92-706 the High Court considered r.16(3)(c) of the Regulations, which similarly confers a discretion on the court to refuse to return a child without specifying any matters to be taken into account. In De L , the plurality, comprising Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed that the court’s:
discretion is therefore unconfined except insofar as the subject matter and the scope and purpose of the Regulations enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is to be taken into consideration in exercising that discretion.
27.The consideration of the best interests of the particular children in the exercise of the court’s discretion is significant because in the making of the substantive order the best interests of a child is relevant only to the limited extent that it finds expression in the exceptions to return provided in r.16(3).
28.Regulation 15(1)(c) provides that, if the court is satisfied that it is desirable to do so, the court may, in relation to an application for return “make any other order that the court considers to be appropriate to give effect to the 1980 Convention”. It follows from the reasoning of the plurality in De L that the purpose and underlying philosophy of the 1980 Convention would, had I come to a different conclusion on the existence of exceptional circumstances, been a relevant consideration in the exercise of my discretion. However, within the context of r.19A(2)(c), a discretion to discharge a return order or part of a return order arises if, and only if, the court is satisfied of the existence of an exceptional circumstance and, because on the fact of this case, I am not satisfied of exceptional circumstance(s), I have no discretion to discharge the return Order made on 11 March 2021.
Bennett J continued (at [35]–[38]):
35.The Family Consultant saw the boys separately. She found X (10 yo) to still be enthusiastic about life in Australia and still negative about the mother. He said that his mother lies and was forcing him and Y to return to Serbia. He told the family Consultant that he did not want the mother to be part of his family. X stated to the Family Consultant that, if forced to go back to Serbia, he would kill himself and that he had formulated three methods to suicide:
•He would stab himself in the head with a knife.
•He would cut his own throat.
•He would jump off a balcony and land on his head.
36.The Family Consultant’s evidence was that X believed these three methods would be lethal.
37.The Family Consultant observed Y (nearly 9 yo) to become angry, stiffen, sad, worried and agitated when talking about returning to Serbia. Y stated that his life would be ruined, he would be better off dead and would stab himself in the head or the neck if he was forced to return to Serbia.
38.When giving evidence for the first time after interviewing the boys, the Family Consultant’s expressed the view that the boys each required an urgent mental health assessment and recommended a referral of both to G Hospital.
In cross-examination, in relation to the 10 year old child’s threat to suicide, the family consultant, albeit understandably cautiously, said (inter alia) that she “leaned towards it being a means of X expressing the distress he is suffering” (at [40]).
At [59]–[61], Bennett J said:
59.It is apparent that the children are very upset and made statements to the Family Consultant about harming themselves that no parent or person who works with children ever wants to hear. However, the opinion of the Family Consultant, after observing the children with the mother, was that the children were likely to be using the threats of suicide to add emphasis and weight to their expressed desire to remain in Australia, possibly in the belief that if they stay here, their parents might reconcile and they can live once again as a family.
60.The Family Consultant took very seriously boys’ proposals to kill themselves, as do I. The Family Consultant was obviously deeply worried after her interview with the boys on Thursday morning but her concern seemed to be alleviated to some degree after speaking with the mother and then observing the boys in the mother’s company.
61.In my assessment of whether the boys’ threats to do themselves harm constitutes an exceptional circumstance, I must have regard to the uninterrupted period for which they have been in the care of the father in Australia with the support of members of his family of origin. Further, the boys’ relationship with the mother has been fractured by distance and their acceptance of the father’s description of the mother as breaking her promise to join them in Australia in August 2021 and arranging for him to be arrested and gaoled if he returned to Serbia. The mother has lost any authority over the boys, the father has become omnipresent and the architect of the prism through which they view the mother.

On that occasion, Ms TT also administered a NovoPsych test, the report of which was contained in her file produced upon subpoena and which report was tendered. Counsel for the mother urged me to place great weight upon the results of that test, which describe X’s depression as mild (percentile: 79.4), her anxiety as being severe (percentile: 99.2) and her stress as being severe (percentile: 98.6). Whilst I note those results which, prima facie, appear concerning, I note that nowhere in Ms TT’s file note of her consultation with X that day does she refer to the NovoPsych test, let alone express any opinion or concern in relation thereto. Further, in her second report, dated only three days thereafter, she similarly does not refer to that test or express any opinion or concern in relation thereto. In the absence of any explanation to the contrary, it is open to me to infer (and I do so) that had Ms TT in fact been concerned by those test results she would have recorded such concern in her contemporaneous file note and/or her second report written only a few days thereafter.
X last attended upon Ms TT, prior to the hearing of the discharge application, on 6 March 2023, by online telehealth consultation, for 50 minutes. There was no assessment of, or reference to, her mood, anxiety or stress on that occasion, nor any reference to the NovoPsych test undertaken some 10 days earlier and, in particular the results thereof. This omission, for the third time, further adds to my caution in placing any significant weight on those test results, contrary to the submission of counsel for the mother. X was noted as being “scared about what will happen but realistic that not within her control”. She mentioned that she had sent her father a message but had received no reply which, as I have noted above, appears unusual on the part of the father, if that be the case. She is recorded as having told Ms TT that she had “moved around a lot when younger”; she could “make the best of a bad situation”; she “got used [to] it [and] did not know any different”; and “what else was I supposed to do but to deal with it”. X is also recorded as having told her that, if she goes back to Poland, “all that she desired will be lost”.
MS G’S HAGUE FAMILY REPORT AT TRIAL
In order to consider whether or not “exceptional circumstances exist that justify the return order being discharged”, so as to enliven a discretion to do so, it is also necessary to have regard to my consideration of Ms G’s Hague Family Report (and her cross-examination in relation thereto) in my previous reasons for judgment. At [170], I said that Ms G’s Hague Family Report and her evidence in cross-examination had been of great assistance to the Court. I overwhelmingly accepted her evidence, both written and oral.
In particular, in relation to Ms G’s Hague Family Report:
(a)At [144], I referred to Ms G’s evidence that, during her interview with X on 12 July 2022, X’s emotional distress was evident immediately; she cried intermittently throughout the interview; at times, the volume of her voice rose and she became more forthright; and her views and feelings about the situation primarily related to the relationship with her father, and her feeling that her views and wishes had been largely unheard in court proceedings in Poland.
(b)At [163] I referred to Ms G’s evidence that, when asked directly about the possibility of having to return to Poland, X cried and said she that did not want to think about it, she had “no idea” where her mother and she would live, and she considered that living in Poland again would be “horrible”.
(c)At [164], in relation to X’s assertion to Ms G that living in Poland again would be horrible, I noted that there was nothing in the Hague Family Report to suggest that X’s life in Poland, prior to her wrongful removal, met that extreme descriptor, either objectively or subjectively.
(d)At [166], I noted that insofar as Ms G reported that X expressed strong views that her mother’s and her mental health would be adversely impacted if they were forced to return to Poland, not only did that reinforce my finding that X had been influenced by and become enmeshed with her mother, but I also noted Ms G’s observation that, in a psychological and pedagogical assessment of X provided by the mother to her, there was no record of any signs of anxiety being present and the writers were of the view that X did not require regular psychological therapy, albeit contrary to the expert opinions in the Polish proceedings.
(e)At [167(a)], I noted Ms G’s evidence that, whilst X was strongly opposed to returning to Poland, her fear and uncertainty in relation thereto appeared to be impacted by her inability to process difficult emotions and feelings and/or to consider other options to feel safer.
(f)At [167(b)], I noted Ms G’s evidence that X appeared to blame her father for how safe she felt or did not feel and that she criticised him for not allowing her to leave Poland, although she was aware that the Court there had ordered this, and Ms G’s expert opinion that X appeared unable to rationally consider other safer options, X having indicated to her that, in discussion with her mother, other options were not considered. I also referred to Ms G having reported that X presented with feelings related to low sense of safety and security which, she opined, might be related to a combination of experiences, including exposure to long-standing parental conflict, feeling unheard and managing possible in a turmoil related to her family and court issues.
(g)At [167(d)], I referred to Ms G’s evidence that there was no indication from X, or in the reports from Poland read by her, that any risk of family violence was present at the time X and her mother left Poland.
(h)At [169(a)], I noted Ms G’s evidence that X’s objection to returning to Poland, whilst emphatic, indicated 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 nearby military conflict.
(i)At [169(c)], I noted Ms G’s opinion that, given the apparently enmeshed mother-child relationship, there might be some doubts about whether X was expressing her wishes or her mother’s wishes or a combination of the two, with little distinction between them. I had no such doubts and had little hesitation in finding that the relationship between the mother and X was, in fact, enmeshed in that X was 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.
(j)At [171], I noted Ms G’s opinion that there was 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 then appear as upset as she had earlier in the interview. Further, she opined that there was little information from X, and in the reports she read, to indicate that her mental health stability was of concern.
(k)At [173], I noted Ms G’s opinion that, while X had clearly 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 appeared to have been over-exposed to adult issues related to her parents’ relationship and the court proceedings in Poland; that X appeared to have a positive relationship with her mother and appeared to be strongly aligned with her views; and that a degree of caution might need to be placed on the weight given to X’s views and wishes.
(l)At [175], I noted Ms G’s opinion that, having been caught in the midst of the ongoing high conflict between her parents and the long-standing court proceedings, she appeared to have become strongly aligned to her mother and to identify with her mother’s experiences of her father; she presented as defensive and protective of her mother; and she seemed 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 here.
At [179], I referred to Ms G’s opinion that X’s apparently maladaptive (avoidance) way of coping with parental separation and conflict was 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. I also noted Ms G’s concern that X might use maladaptive strategies in those areas of her life, thus affecting her emotional and social development and that, without the appropriate parenting input in this area, and possibly professional intervention, X’s avoidance of challenging situations might increase.
In relation to Ms G’s evidence in cross-examination, inter alia:
(a)At [185], I noted Ms G’s evidence that, whilst X very articulately expressed a very strong preference not to return to Poland, caution was required in relation thereto because of her over-exposure to the adult issues over a number of years and the influence on her views by reason of her enmeshment or enlightenment with her mother.
(b)At [187], I noted Ms G’s evidence that X did not give any indication that her mother supported the relationship with her father and, in particular spending time with him other than because that was what the Polish court had ordered, and Ms G’s opinion that this would also contribute to X’s resistance to see her father or influence her negative view about him.
(c)At [188], I noted Ms G’s evidence that, given X’s relationship with her mother, it would be easier for X if her mother returned with her and that, whether or not the mother did so, “will play a part in how [X] response to any decision for her return”.
(d)At [189], I referred to Ms G’s opinion that X’s need or wish to be away from the situation between her parents in Poland and to create some distance was attributable to her maladaptive way of coping with the situation and that having distance from, and no contact with, her father was her way of avoiding or tackling them of the difficult emotional aspects associated with the relationships with her parents.
(e)At [191]–[192], in relation to what could be done to make it easier for X to return to Poland, if such an order were made, I noted Ms G’s evidence that she would need her mother’s explicit permission or support about a return, given that she is strongly aligned to, and supportive and defensive of, her mother. In this regard, I note that there is no evidence whatsoever of any attempts by the mother to assuage X’s distress by the return order or to assist, encourage or support her to return to Poland. Given my findings about the mother in my previous reasons for judgment, I comfortably infer that is because it suits her case not to do so.
(f)At [193], I noted Ms G’s evidence 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 her relationship with her father.
(g)At [194], I noted Ms G’s evidence that X’s emotional development was still ongoing and that she was quite emotionally vulnerable at her age and stage of development, especially as she had been in a conflictual situation since she was at least six years old, and that taking responsibility for her mother and her coming to Australia, knowing that it was being done without her father’s knowledge, would have put incredible emotional pressure on X.
(h)At [196], I noted that, when asked why X’s views were not entirely independent, Ms G said it was because she was also reflecting some of her mother’s views and she had consistently, at least in Poland, reflected what her mother had seemingly told her about the situation between her parents there. Accordingly, there was a combination of not just X’s own views regarding how she feels about her father but, when she talked about her or her mother’s experiences, there was little distinction between what X had experienced and that which her mother had experienced.
DO EXCEPTIONAL CIRCUMSTANCES EXIST THAT JUSTIFY THE RETURN ORDER BEING DISCHARGED?
Having considered above the evidence and the legal principles applicable thereto, I conclude that, in the circumstances, no exceptional circumstances exist that justify the return order being discharged. Further to, or to buttress, the matters I have already referred to above, I note the following.
At [208] of my previous reasons for judgment, I accepted that X would be “very unhappy” by the return order. In my view, the evidence, in particular of Ms G and Ms TT, confirms just that. However, that does not constitute exceptional circumstances in this case.
I agree with Dawe J who said, in State Central Authority v Ustinov (No 4), that for the purposes of reg 19A the Court should rely upon the ordinary meaning of the words “exceptional circumstances” as requiring at least the finding of something unusual or something in the nature of an exception; something which is out of the ordinary course, or unusual, or special, or uncommon; and that to be exceptional, circumstances need not be unique, or unprecedented, or very rare. That said, it cannot be one that is regularly, or routinely, or normally encountered.
In my view, for the reasons herein, having accepted in my previous reasons for judgement that X would be very unhappy by the return order, her reaction thereto is not exceptional within the meaning accorded thereto by Dawe J.
In that case, the father who sought the discharge of a return order, relied (inter alia) upon his refusal to return with the children and the strong views that they had expressed about not returning either to their place of habitual residence or to the care of their mother there. I refer, in particular, to [34], [37], [40] and [42] of her Honour’s decision. In particular, her Honour held that the father’s decision not to accompany the children on their return, and the reasons that he gave for that decision, were held not to be exceptional circumstances which would justify the order being discharged. That was because, as her Honour held, the correct interpretation of the Regulations, taking into account the purpose behind the Convention, was that a parent’s refusal to return with the child(ren) could not bring about a circumstance which would justify the discharge of the return order.
The Independent Children’s Lawyer refers to the evidence of Ms TT which suggests that the mother’s decision not to accompany X is inextricably linked to the deterioration in her mental health presently and which poses a future risk of harm to her. In this regard, the Independent Children’s Lawyer correctly submits that this is not a new concept, given [188] of my previous reasons for judgement. Counsel for the Independent Children Lawyer, in her case outline at [17], poses two rhetorical questions: to what extent has X’s mental health deteriorated as a consequence of the mother’s decision not to return to Poland (noting X’s relationships with each of her parents), thereby resulting in a situation where X must return to live with her father; and would the degree of decline have been so great (amounting to a contended exceptional circumstances) if the mother, who is described by Ms TT (at [23] of her second report) as X’s “constant source of safety and security” had done differently after the return order was made? That is answered, in my view correctly (subject to one reservation), at [19] of the Independent Children’s Lawyer’s case outline, where it is submitted that:
… the degree to which the Mother’s decision not to return to Poland with [X] has impacted (and may continue to impact) [X’s] mental health cannot go unnoticed. Likewise, notwithstanding [X’s] deterioration, the Mother appears to persist in her decision not to return. To this end, the Court can only query the (degree of the) Mother’s perception of risk to [X] were the Court to uphold its decision; a distinct possibility in circumstances where the Court has discretion, even if the Mother’s application is made out.
The reservation to which I refer in the preceding paragraph is that, on the evidence, including importantly the notes of Ms TT which were tendered but which were not available to counsel for the Independent Children’s Lawyer when she prepared her case outline, for the reasons herein I am not satisfied that the deterioration or decline in X’s mental health since the trial or the making of the return order is necessarily to the extent submitted on behalf of the Independent Children’s Lawyer.
In concluding that the mother has not made out that exceptional circumstances exist that justify the return order being discharged, in addition to the decision of Dawe J in State Central Authority v Ustinov (No 4), I am also fortified by the acceptance of Thackray CJ in Soysa & Commissioner, Western Australia Police that reg 19A was designed to have limited operation and that, as was held in W v W (Child Abduction: Acquiescence) [1993] 2 Fam Law R 211, that it is implicit in the whole operation of the Convention that the objective of stability for the mass of children (namely, their protection from the harmful effects of their wrongful removal or retention) may have to be achieved at the price of tears in some individual cases. Whilst Thackray CJ accepted, as do I, that a strict or narrow reading should not be given to the words exceptional circumstances in reg 19A, nevertheless, his Honour held that they should be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in the context and in the light of its object and purpose”, referring to the Vienna Convention on the Law of Treaties, art 31. His Honour said, and I agree, that this requirement accords with the injunction contained in reg 1A(2), which provides:
These Regulations are intended to be construed:
(a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b)recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and
(c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
See also the dicta of McClelland J in Department of Community Services & Smollett (No 2) at [7], referred to above.
Whilst in State Central Authority v Ustinov (No 4), Dawe J held that the term “exceptional circumstances” requires a finding of “something unusual”, in Soysa & Commissioner, Western Australia Police, Thackray CJ was inclined to treat that term is being something “more than ‘unusual’” and referred to the synonyms “extraordinary” and “rare”, including that the language used elsewhere in the Regulations led him to conclude that accepting something “unusual” as sufficient to activate the discretion in reg 19A would not be a construction that pays regard to the object of the Convention, particularly because cases arising under the Regulations commonly already possess “unusual” elements. On either test, I am not satisfied that exceptional circumstances exist.
I agree with Thackray CJ that circumstances may be found to be exceptional because a child’s reaction to being ordered to return home proves would to be far more disturbing than had been anticipated, in which case the order may be discharged because the circumstances are exceptional. However, in the present case, where the mother’s sole defence (after the abandonment of her “grave risk” defence) was X’s objection to returning to Poland, based on the evidence at trial and at the hearing of her subsequent discharge application, I am not satisfied that X’s reaction to the return order is “far more disturbing” (emphasis added) than had been anticipated. To the contrary, given the evidence at trial as to the strength of X’s objection to being returned, which I accepted prima facie (albeit that I found the underlying reason therefor was by reason of her enmeshment by and with her mother), I find her reaction unsurprising and part of the continuum of her objection. Put another way, not only am I am not satisfied that the circumstances upon which the mother relies in support of her discharge application are something more than more than unusual, such as exceptional or rare, as Thackray CJ required in Soysa & Commissioner, Western Australia Police, I am not even satisfied that they are unusual, as required by Dawe J in State Central Authority v Ustinov (No 4). This also accords with the approach of Forrest J in Garning & Department of Communities, Child Safety and Disability Services and Anor (Discharge Application).

It is noteworthy that, at trial, even prior to her abandonment of her “grave risk” defence, that defence was founded upon the war being waged by Russia in Ukraine, which neighbours Poland, and not upon a grave risk that X’s return to Poland, in the face of her objections, would of itself expose her to physical or psychological harm or otherwise place her in an intolerable situation. Therefore, in considering the mother’s discharge application, I share Thackray CJ’s concern that “a cunning abductor will keep the ‘grave risk’ card up their sleeve” until they have exhausted the first instance and appellate procedures and then, “much later, play with impunity the card they have concealed and follow the same process all over again” thereby potentially delaying the return of the child almost indefinitely. Lest it be necessary to make the implicit explicit, given my extensive findings in my previous reasons for judgement regarding the mother, she could, not unfairly, be described as a cunning abductor, especially given the circumstances in which she surreptitiously removed X from Poland as well as her prior conduct in endeavouring to obtain an Australia passport for X unilaterally and on the basis of misrepresentation to the Department of Foreign Affairs and Trade.
Further, notwithstanding my initial reservations expressed in my exchanges with counsel for the mother at the hearing of the discharge application, I accept his submission, which accords with the dicta of Thackray CJ, that there is nothing in reg 19A(2)(c) to indicate that the exceptional circumstances must have arisen after the return order was made, in contrast with, reg 19A(2)(b), dealing with the impracticability of carrying out the order in circumstances which have arisen since it was made. However, properly analysed, that does not assist the mother’s case because I find that the alleged exceptional circumstances, upon which she relies, not to have been unforeseen at trial and merely to be a continuation thereof.
This is to be contrasted, for example, with the circumstance in Department of Community Services & Smollett (No 2) where, after a return order was made, the child was diagnosed as suffering from autism. However, in the circumstances of that case, even that diagnosis ultimately was not held to constitute exceptional circumstances, albeit because the mother had not presented evidence that she would allow a situation to occur where the child would be separated from her as a result of her failing to accompany the child on the child’s return to New Zealand. In the present case, however, the mother continues to maintain her refusal to return to Poland with X, notwithstanding X’s unsurprising reaction to the return order, the evidence of Ms TT that X’s distress is, in part, referable thereto and the evidence of Ms G at trial that such distress could be ameliorated by her mother’s return with her.
In Department of Communities, Child Safety and Disability Services & Garning (Discharge Application), Forrest J said that he had considered all the evidence of the children’s objections to returning in the course of determining the application for a return order, particularly in the context of the mother’s arguments that a reg 16(3)(c) defence was made out, and that he had dismissed same. I did likewise in my previous reasons for judgement. At the time of the hearing of the discharge application in that case, the level of the children’s expressed objection to returning had increased since trial, with one of the children saying that she would run away; would “probably end my life I am feeling so strong”; had considered cutting herself “with a knife … anything that cuts”; and that she did not think she “could even survive in Italy. I would just cry and cry all day. I’d day of pain”. It is readily apparent that those threats are not dissimilar to those made by X. Forrest J said at [43] that this was, in his view, not at all surprising given the passage of time and that, “importantly, they have been made absolutely aware of their mother’s expressed intention not to return to Italy with them in circumstances where their attachments to her is now clearly far stronger than their attachment to their father”. His Honour said that, whilst the evidence of threats of self-harm was seriously concerning and demanded extremely careful consideration, the family consultant in that case opined that the likelihood of the child harming herself was low, based upon her presentation at interview, and that the child had said to another person that she did not really mean her threat and would never act on it. Based upon the evidence of Ms G and Ms TT referred to herein, I am of a similar view.
In that case, the children’s objections to returning were principally founded in a belief that their mother could not return with them. Whilst X’s objection, in this case, is not principally founded upon the mother’s refusal to return with her, given the evidence of Ms G at trial and that of Ms TT filed by the mother in support of her discharge application, it is nevertheless an important matter. As Forrest J said at [55], referring to Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011 and Director-General, Department of Families and RSP (2003) FLC 93-152, “there may be personal or other circumstances which genuinely preclude an absconding parent from returning with the child to the country of former habitual residence” (emphasis added). His Honour continued, saying that he was mindful of the words of Warnick J in Director-General, Department of Families v P [2003] FamCA 691 at [80] that:
… Courts will understandably have a real concern about the disingenuous adoption of stances designed to achieve the purposes of abductors in resisting orders for the return of children. But the response to this concern cannot be to disregard evidence, but rather to scrutinise it with great care.
In the present case, other than confirm her evidence at trial that she would not return with X to Poland, the mother has not adduced any further evidence in relation thereto. There was no evidence at trial of any personal or other circumstances which, in my view, genuinely precluded the mother from returning with X. That is all the more so when it is recalled that proceedings under the Regulations are merely to determine the forum in which parenting issues in relation to X will be litigated, such proceedings having already been pending in Poland since 2016 and having been delayed, at least in part, by the mother’s attitude of appealing any decisions with which she was not satisfied and going so far as to sue one of the judges there. As Forrest J said in that case at [67], I too say in the present case: “If the mother does determine not to return, even in the face of the return order remaining in place, then that is her decision, but it is not one that I accept she has no personal choice but to make”.
In Department of Children, Youth Justice and Multicultural Affairs & Golub, Bennett J also considered a discharge application in circumstances where children aged 10 and nine years that they would try to kill themselves if forced to return. However, the opinion of the Family Consultant, which her Honour accepted, was that they were likely to be using the threats of suicide to add emphasis and weight to their expressed desire to remain in Australia. Her Honour concluded that the children’s threats of suicide were the means by which they thought they could best emphasise the importance to them of staying in Australia and that, in the circumstances, it was neither unusual nor exceptional.
Insofar as the mother deposes that, following the trial (which concluded on 21 October 2022), X was very anxious and distressed about the possibility of a return order and that, once informed of making that order (which occurred two months later, on 21 December 2022), she was very distraught and that her disposition became progressively worse over the summer break, in the circumstances of this case, I find that was that was not unusual, let alone more than unusual, such as exceptional or rare.
The first direct evidence of a concerning threat by X is Ms G’s evidence that, at the meeting on 10 January 2023, she said that she would run away or harm or kill herself. That is not something anyone involved in this case would wish to hear, not the mother, the requesting father, the State Central Authority, the Independent Children’s Lawyer or the Court. However, after the Independent Children’s Lawyer explained to X, in the presence of Ms G, what action would be taken if she did so, including involvement of the Australian Federal Police, there is no suggestion that she persisted with that threat. Insofar as X stated to Ms G and the Independent Children’s Lawyer that she would harm or kill herself, when Ms G explored with her what her plans were, whether she had ever had those thoughts before or whether she had harmed herself before, X responded in the negative. As I have already found above, and in the circumstances, I infer that these threats were made spontaneously, without forethought and possibly as a crie de coeur, especially in circumstances where she had already been aware of the return order for nearly three weeks and had not previously made such threats.
In relation to the evidence of Ms TT in her two reports and in her tendered file notes, there is no evidence of any threats or even any substantial deterioration in X’s mental health prior to the making of the return order. Notwithstanding the fact that X had been attending upon Ms TT since 3 November 2022, she did not consult her after being informed of the return order on 21 December 2022, until 9 January 2023, nearly 3 weeks thereafter, being the day prior to the meeting with Ms G and the Independent Children’s Lawyer. Rather, only the mother spoke to her on 21 December 2022, merely telling her that X knew about the return order, was “carrying on as usual” and was adamant she would not be returning. Therefore, insofar as Ms TT states, in her first report, that subsequent to the making of the return order, a significant decline was noted in session of X’s mental and emotional state, she did not attend upon her for nearly three weeks. Further, when X attended upon Ms TT on 9 January 2023, whilst her mood was recorded as being low and her affect as being restricted, and she was recorded or described herself as being (inter alia) teary, sad and unmotivated, and suffering from sleep disturbance and panic attacks, she did not make the threats which she made to Ms G and the Independent Children’s Lawyer following day. At its highest, she said that returning to Poland would be unbearable, as she would have to live with the father. However, as I have noted, that is, at least in part, because of the mother’s refusal to return with her.
Notwithstanding the mother’s understandable alarm at X’s threats on 10 January 2023, X did not attend upon Ms TT until 23 January 2023, nearly a fortnight thereafter. As had occurred on 21 December 2022, when the mother informed X of the return order, it was the mother who again first contacted Ms TT after the events of 10 January 2023, on 12 January 2023 and again on 19 January 2023. Further, X did not attend upon Dr VV until a week thereafter, namely 17 January 2023, on which occasion she is recorded as having said to the doctor that, if she was forced to return to Poland, “the action I must take is taking my life is that is better than living”. However, no evidence was adduced from Dr VV as to what else was said by X in the course of that consultation or to contextualise that statement. The only evidence is that, the following day, on 18 January 2023, Dr VV wrote to Ms TT merely requesting six further psychological sessions for X with her and seeking her “opinion and management regarding the condition of this patient”. Otherwise, no concern or alarm was apparently voiced by Dr VV.
Insofar as Ms TT, in her first report, states that, subsequent to the meeting on 10 January 2023 and to the mother informing her (on 12 January 2023) of X’s distress and disclosed suicidal intent, she “subsequently contacted [X] to assess her mental state and risk", there is no evidence of any communication between X and Ms TT until their telephone call on 23 January 2023. One is left to wonder why it took 11 days for this to occur; even if Ms TT was on leave (which appears to have been the case for part of that time), she was able to make time to speak with the mother on 12 January 2023 and 19 January 2023. Accordingly, on the evidence, I find that Ms TT’s reference to subsequently contacting X must be a reference to their telephone conversation on 23 January 2023, in the course of which X acknowledged that her heightened emotional activity in the meeting on 10 January 2023 was triggered by her desperation of not being listened to and Ms TT assessed her, at that point in time, with no active suicidal ideation, intent or plan, or other self-injurious behaviour, notwithstanding X’s disclosure to Dr VV on 17 January 2023. Indeed, whilst Ms G’s file note of her telephone conversation with X on 23 January 2023 records her statement to the effect that it was better to die, and that she would rather not live, than return to Poland, in my view, and consistent with Ms TT’s reports, that must be viewed in the context of X having described herself as having been hysterical in the meeting on 10 January 2023 and that the statement was, as recorded, made more out of desperation, to convey how hard returning to Poland would be for her.
In Ms TT’s second report, dated 3 March 2023, she refers to X having positively engaged in five further sessions, between 7 February 2023 – 6 March 2023, in the course of which, despite X having expressed uneasiness, feeling disturbed and unsettled and persistent feelings of worry and hypervigilance, nevertheless, in terms of risk, she denied experiencing suicidal ideation or thoughts of self-harm “at that point in time”. In my view, notwithstanding Ms TT’s tendered notes which, in respect of the period from 7 February 2023 to 6 March 2023, variously record:
·X’s mood as variously being stable and/or euthymic;
·her anxiety as mild or moderate;
·her stress as normal, mild or moderate; and
·her affect as mildly subdued –
she denied experiencing (nor did Ms TT diagnose) suicidal ideation or thoughts of self-harm at that point in time.
I am not oblivious to, or dismissive of, X’s distress at returning to Poland (subject to the outcome of the mother’s appeal from my return order). However, I do not accept that it is, in the circumstances, exceptional; rather on the evidence, both at trial and in support of the mother’s discharge application, I find that it is quite the opposite. It is to be expected; it is consistent with the evidence at trial; and is not unusual, let alone more than such, such as extraordinary or rare. Whilst she is very disappointed and, indeed, distressed by the prospect of her return to Poland, that is likely, if not implicit, in many, if not most, return orders made upon dismissal of a defence under reg 16(3)(c), especially in teenage children. However, the Convention and the Regulations envisage such a scenario and, to hold otherwise would, in my view, undermine the very purpose thereof.
Accordingly, for the reasons above, I conclude that, on balance, exceptional circumstances do not exist that would justify the return order being discharged. I am also fortified in so concluding by the apparent progress that X has made in her sessions with Ms TT over the past 4.5 months, which have been primarily, if not wholly, by tele-health consultations. It was not suggested this could not continue from Poland.
CONCLUSION
Having found that there are no exceptional circumstances, the discretion in reg 19A(2) to discharge the return order is not enlivened and the mother’s application for same is dismissed.

I certify that the preceding one hundred and fifty-nine (159) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.
Associate:
Dated: 21 March 2023

File number(s):	MLC 6353 of 2022
Judgment of:	STRUM J
Date of judgment:	21 March 2023
Catchwords:	FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where child brought to Australia by mother – Where return of child previously ordered – Application to discharge return order pursuant to reg 19A of Family Law (Child Abduction Convention) Regulations 1986 – Asserted exceptional circumstances justifying discharge of return order – Provisions of reg 19A – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 69ZT, 111B, 111CE Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 16, 19A, 26 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 Vienna Convention on the Law of Treaties signed at Vienna on 23 May 1969
Cases cited:	Commonwealth Central Authority & Sangster (No. 2) [2018] FamCA 894 Department of Children, Youth Justice and Multicultural Affairs & Golub [2021] FamCA 435 Department of Communities, Child Safety and Disability Services & Garning (Discharge Application) [2012] FamCA 839 Department of Community Services & Smollett (No. 2) [2018] FamCA 372 Director-General, Department of Families and RSP (2003) FLC 93-152; [2003] FamCA 623 Director-General, Department of Families v P [2003] FamCA 691 Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011; [2000] FamCA 253 DP v Commonwealth Central Authority (2001) 206 CLR 401; [2001] HCA 39 Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10 Soysa & Commissioner, Western Australia Police [2012] FCWA 28 State Central Authority v Ustinov (No 4) [2008] FamCA 987 W v W (Child Abduction: Acquiescence [1993] 2 Fam Law R 211
Division:	Division 1 First Instance
Number of paragraphs:	159
Date of hearing:	9 March 2023
Place:	Melbourne
Counsel for the Applicant:	Mr Wilson
Solicitor for the Applicant:	Kennedy Partners Lawyers
Counsel for the Respondent:	Ms Colla
Solicitor for the Respondent:	Department Of Families, Fairness and Housing Director, Legal Services Branch
Counsel for the Independent Children’s Lawyer:	Ms Hutchings
Solicitor for the Independent Children’s Lawyer:	Victoria Legal Aid

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

order made by:	STRUM J
DATE OF ORDER:	20 March 2023