DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & DAYAN

In this matter before Le Poer Trench J of the Family Court of Australia, the Department of Family and Community Services and the father of two children, B and C, sought the return of the children to the USA. The mother, who was the primary carer, had retained the children in Australia without the father's consent. Ex parte parenting orders had subsequently been made by a US court granting the father sole legal and physical custody pending the determination of his application. The mother presented evidence of family violence perpetrated by the father against her and the children.

The central legal issue before the Court was whether the return of the children to the USA would expose them to a grave risk of physical or psychological harm, or otherwise place them in an intolerable situation, pursuant to regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). This required the Court to make a prediction about what might happen if the children were returned, which necessarily involved considering their interests.

The Court acknowledged the mother's evidence of family violence and found that the children might be exposed to a grave risk of physical and psychological harm if returned to the USA. However, applying the principles from *DP v. Commonwealth Central Authority; JLM v. Director-General NSW* (2001) 206 CLR 401, the Court determined that while the exception under regulation 16(3)(b) requires a prediction of future harm, certainty is not required; rather, persuasion that there is a risk warranting the qualitative description "grave" is necessary, supported by clear and compelling evidence. The Court ultimately exercised its discretion to order the return of the children to the USA, but this was made subject to the satisfaction of numerous preconditions designed to mitigate the identified risks.

The Court ordered the return of the children to the USA, subject to the father satisfying a comprehensive list of conditions prior to their departure. These conditions included the revocation of existing US orders and the substitution of interim orders for the children to live with the mother, prohibiting the father from molesting, harassing, threatening, or interfering with the mother, and restraining him from coming within 250 meters of her. The father was also required to register an undertaking in the US court not to pursue criminal proceedings against the mother for the wrongful retention of the children. Further conditions involved the father paying a specified sum of money to the mother's US lawyers for her benefit and securing return flights for the mother and children. The order stipulated that if the father failed to comply with these preconditions within six months, the return order would lapse.