DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & LUZZATTO

[2013] FamCA 1016

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & LUZZATTO [2013] FamCA 1016

FAMILY LAW – CHILD ABDUCTION – Hague Convention application – Wrongful removal of children from jurisdiction by mother – Whether the children should be returned to Italy – Where the prerequisites have been satisfied for the court to make a mandatory return order as set out in Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Allegations of domestic, sexual and verbal abuse by mother –Whether a return order should not be made because of grave risk of psychological harm or placing the children in an intolerable situation – Where there is no independent corroboration of allegations made by the mother – Where grave risk of psychological harm or an intolerable situation is not established – Where the court does not have discretion to refuse to make a return order under Regulation 16(3) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Order for return of children to Italy.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth): rr 16(1),16(3)
Hague Convention on the Civil Aspects Of International Child Abduction

DP v Commonwealth Central Authority (2001) 206 CLR 401
Regino and Regino (1995) FLC 92-587
Re F (A Minor)(Child Abduction) [1992] 1 FLR 548
Re F (minor: rights of custody abroad) [1995] 3 All ER 641
Harris [2010] FamCAFC 221
Jones v Dunkel (1959) 101 CLR 298
State Central Authority and Papastavrou [2008] FamCA 1120
Murray v Director of Family Services ACT (1993) FLC 92-416

APPLICANT: Director-General, Department of Family and Community Services

RESPONDENT: Ms Luzzatto

FILE NUMBER: SYC 5925 of 2013

DATE DELIVERED: 19 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATES: 21 November 2013 & 5  December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Barnett

SOLICITOR FOR THE APPLICANT: Department of Family and Community Services

COUNSEL FOR THE RESPONDENT: Ms Dart

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW

Orders

1. The applicant and respondent shall make such arrangements as are necessary to ensure the return of the children S (male) born … 2009 and N (female) born … 2011 forthwith to Italy.

2. The respondent mother pay the costs for the return of the children including airfares to Italy and any other necessary travel expenses and in the event that the respondent returns to Italy in the company of the children, that she pay her own airfare and travel costs.

3. The parties are at liberty to apply herein on twenty-four hours’ notice in relation to the wording of these orders and any conditions that should be attached to them.

4. Leave is granted to the solicitor for the Central Authority to forthwith uplift from the Registry Manager any passport for the mother or for the children or either of them that is held by the Registry Manager.

5. Leave is granted to the parties to approach the associate to Justice Loughnan in chambers with terms of agreement in respect of machinery orders or conditions.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: 5925 of 2013

Director-General, Department of Family and Community Services
Applicant

And

Ms Luzzatto

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By way of an application filed 10 October 2013, the Director-General, Department of Family and Community Services (“DOCS”) seeks the return to Italy of the children S and N, aged four and two years respectively. Ms Luzzatto is their mother and she seeks that the application be dismissed. She says that there is a grave risk the children will be exposed to psychological harm or otherwise placed in an intolerable situation if forced to return to Italy.

2. The proceedings are brought under the Family Law (Child Abduction Convention) Regulations 1986 (“the Abduction Regulations”) which are the expression in Australian law of the Hague Convention on the Civil Aspects Of International Child Abduction (“the Convention”). Australia and Italy are signatories to the convention.

DOCUMENTS RELIED UPON

1. The applicant relies on the following:

   3.1.Form No. 2 filed 10 October 2013;

   3.2.The Affidavit of Ms H affirmed and filed 10 October 2013;

   3.3.The Affidavit of Ms H affirmed and filed 26 November 2013; and

   3.4.The Affidavit of Ms H affirmed 27 November 2013 and filed 28 November 2013.

1. The respondent mother relies on the following:

   4.1.Form No. 2A filed 11 November 2013;

   4.2.Affidavit of Ms Luzzatto sworn 10 November 2013 and filed 11 November 2013;

   4.3.Affidavit of Ms Luzzatto sworn 4 December 2013 and filed 5 December 2013;

   4.4.Second Affidavit of Ms Luzzatto sworn 4 December 2013 and filed 5 December 2013;

   4.5.Affidavit of Mr P sworn 6 November 2013 and filed 11 November 2013;

   4.6.Affidavit of Ms Luzzatto sworn 10 November 2013 and filed 11 November 2013;

   4.7.Affidavit of Ms A sworn and filed 11 November 2013;

   4.8.Affidavit of Ms F sworn and filed 11 November 2013;

   4.9.Affidavit of Mr L sworn and filed 11 November 2013;

   4.10.Affidavit of Mrs L sworn and filed 11 November 2013;

   4.11.Affidavit of Ms NN sworn and filed 11 November 2013;

   4.12.Affidavit of Ms G sworn and filed 12 November 2013;

   4.13.Affidavit of Mr L sworn and filed 3 December 2013; and

   4.14.Affidavit of Mrs L sworn and filed 3 December 2013.

SHORT HISTORY

1. The children S and N were born in Italy and lived there throughout their lives. They are Italian citizens and at the relevant time (January 2013) were habitually resident in Italy. Their parents are Mr Q and Ms Luzzatto. The father is an Italian citizen. The mother has dual Italian and Australian citizenship. They were married in Italy in 2006 and lived there on a small island off the coast of Sicily.

2. With the agreement of their father, the children came to Australia with their mother in September 2012. Although the mother formally undertook to return the children to Italy in January 2013, she did not do so and at the time of the hearing, remains with them in Australia. Therefore under the terms of the Abduction Regulations, the children were wrongfully retained in Australia in breach of the father’s rights of custody.

3. Following an application made by the father in Italy, on 10 October 2013 the Central Authority in Australia filed an application under the Abduction Regulations for the return of the children to Italy.

4. The proceedings first came before this Court on 16 October 2013. Without notice to the mother, orders were made for service and to secure the children within Australia. A hearing date of 14 November 2013 was fixed. Following service on the mother the proceedings came back before the Court on 28 October 2013, and further directions were made. The hearing date was changed to 21 November 2013.

THE HEARING

1. The hearing commenced on 21 November 2013. The only oral evidence was in the form of the cross-examination of the mother’s Italian lawyer, Ms M. She was cross-examined by telephone from Italy. Otherwise the hearing was conducted on the papers. During the hearing the applicant’s counsel said that further evidence was available to address allegations made by the mother and she sought an adjournment of the hearing to allow that evidence to be before the Court. No prejudice to the mother was identified and the adjournment was granted.

2. The hearing resumed on 5 December 2013. On that date submissions were concluded and judgment was reserved.

DETAILED CHRONOLOGY

1. The father was born in 1975 and is currently 38 years of age.

2. The mother was born in 1976 and is currently 37 years of age.

3. The parents were married in June 2006 in Italy.

4. There are two children of the relationship, namely S who was born in U, Italy in 2009 and is currently four years of age and N who was born in MZ, Italy in 2011 and is currently two years of age.

5. The mother deposed to controlling and angry behaviour by the father from the time of their honeymoon. There are many serious allegations made by the mother against the father. I will set out some of those allegations in these reasons.

6. The mother deposed that in June 2009 the father’s sister pushed past her and hit her in the head with a fist, the mother subsequently slept at her parents’ house that night.

7. The mother deposed that in July 2009 the father commenced monitoring the mother’s internet usage.

8. The mother deposed that in December 2009 the father commenced monitoring her telephone calls. She also gave evidence that the father said to her “I will kill you and whoever would come behind you”.

9. On 31 October 2010, the father ceased to operate his business.

10. In January 2011 the mother learnt that she was pregnant with a second child. The mother deposed that the father denied that the baby was his and continued that denial throughout the pregnancy.

11. The mother deposed that in March 2011 the father forced her to have anal sex with him. The mother alleged that the child S started saying “va caca” which translates to “go take a shit” to the mother. It is her evidence that the father repeatedly used that expression to her.

12. The mother deposed that during 2011, the father: slapped her across the face with an open palm; yelled at the child N “quiet. quiet. You are always crying”. On a separate occasion the mother deposed that the father said to the child S “I am going to kill you. I’m going to bang your head against the wall, and I’ll show you how”.

13. The mother deposed that during August 2011 the father became angry for no apparent reason and told the mother that the unborn baby was not his.

14. In October 2011, the mother travelled to Sicily to stay with friends in anticipation of the birth of the second child.

15. In late 2011 the second child, N, was born.

16. The mother deposed that in February 2012, the father punched her in the shoulder in the presence of the children. The mother also deposed that S began punching the father’s legs and crying “don’t punch mum”. The mother also asserted that the father told S to kick her and “to go have a shit” and that the father pushed the mother roughly on her chest. The mother did not tell members of her family, did not report the incident to the police or seek medical treatment.

17. The mother deposed that in April 2012, the father forced her to show him that she was menstruating and wanted to take her to the hospital. The mother called her mother who spoke with the father. The mother slept in another bedroom with the door locked that night. From that night the parties slept in separate beds.

18. The mother deposed that at around Easter 2012, she told her parents about incidents of physical abuse. The mother’s mother spoke to the father and encouraged him to attend counselling.

19. In June 2012 the mother commenced attending counselling with Ms O. The report prepared by the counsellor recorded that the mother had disclosed harassment, insinuations, excessive suspiciousness, obsessive thoughts of mistrust and other daily events by the father.

20. The mother deposed that in July 2012, she saw the father watching her while at she was at a friend’s place.

21. The mother deposed that in July 2012 she confronted the father about him teaching S to say to the mother “go and have a shit” and to hit the mother. She says that the father responded “that’s good he does that. You deserve it”.

22. The mother said that in July 2012 she attempted to contact women’s shelters in Rome, Palermo and Messina for assistance, having obtained their contact details from the Australian Embassy.

23. The mother deposed that in August 2012 she observed S place his hands down the fathers pants, move his hands around and laugh. The mother alleged that the father stated “he’s not touching me. He’s not doing anything wrong.”

24. On 17 August 2012 the parents and their lawyers met and it was agreed that the mother could travel with the children to Australia until 7 January 2013. The mother signed an undertaking “to return with the children, after the upcoming holiday season”[1].

    [1] See the English translation of the mother’s undertaking at page 14 of the attachments to the affidavit of Ms H affirmed and filed 10 October 2013

25. In is the mother’s evidence that in about late August 2012 she questioned S about a threat she had heard the father make towards him. The mother alleged S said the father had threatened “I am going to break your ass” and made hitting gestures towards his face.

26. The mother deposed that on 1 September 2012 the father pinched her and slapped her across face while S was present. She deposed that the father threatened to come to Australia and kill her.

27. On 6 September 2012 the mother and children departed Italy and on 7 September 2012, they arrived in Australia. They have remained in Australia since that date.

28. In October 2012 the mother commenced domestic violence counselling at the C Women’s Health Centre. She completed 12 counselling sessions and an eight week domestic violence support group.

29. On 25 October 2012 the child S commenced therapy with Child Psychologist, Ms F.

30. On 14 March 2013 the father sought judicial separation from the mother in Italy.

31. On 28 March 2013 the father commenced custody proceedings in Italy.

32. In March 2013 the father made an application under the convention to the Italian Central Authority.

33. On 4 July 2013, M Galluccio, Chairman of the Court Chancery, Barcelona made orders that:

    ·Authorised the parents to live separately;

    ·Suspended any decision on placing the children;

    ·Suspended any decision regarding visiting rights;

    ·Suspended the decision on assignation of the family home;

    ·Suspended the decision on determination of the maintenance amount;

    ·Transmitted the case to the Public Prosecutor’s Office at the Juvenile Court of Messina for evaluations relating to competence, and

    ·Adjourned the case to 20 September 2013.

34. By a letter dated 23 July 2013 the Italian Central Authority requested the Australian Central Authority to commence proceedings under the convention.

35. On 2 October 2013 a letter from the Central Authority of Italy was received indicating:

    ·That the custody proceedings were adjourned until Hague Abduction Proceedings are determined; and

    ·That the father has commenced criminal proceedings against the mother including:

    o   Child abduction under article 574 of Italy’s Criminal Code , and

    o   Slander under article 368 of Italy’s Criminal Code.

36. On 10 October 2013 the NSW Central Authority commenced these proceedings under the Family Law (Child Abduction Convention) Regulations 1986.

37. The father denies all of the mother’s allegations of violence and controlling and demeaning behaviour by him.

APPROACH

1. It is agreed that the prerequisites have been satisfied for the court to make a mandatory return order as set out in Regulation 16(1) Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Abduction Regulations”). That is to say that the Court is obliged to order the return of the children to Italy because:

   a)The children were habitually resident in Italy at the time they were retained in Australia;

   b)The father had rights of custody in respect of the children; and

   c)The children were wrongfully retained in Australia in breach of those rights.

2. The controversy before the Court is whether the mother can establish at least one of a number of defences which would permit the Court to consider refusing to order the return of the children. If the mother is able to do that, there is an issue as to whether the Court should exercise that discretion.

   Grave risk

3. The mother argues that the Court should refuse to make a return order, the discretion to do so being enlivened because of circumstances falling within Regulation 16(3)(b) of the Abduction Regulations.

4. Regulation 16(3)(b) of the Abduction Regulations is in the following terms:

   (3)    A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

   ...

   (b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

5. As this case was argued, it falls to the mother to satisfy the Court that there is a grave risk that the return of the children to Italy would expose them to:

   (a)Psychological harm; or

   (b)Would otherwise place them in an intolerable situation.

6. It is the mother’s case that:

   (a)An order for return would create a grave risk that the children would suffer psychological harm because:

   i)      Return would be to a place where the mother was subjected to violence, intimidation and controlling behaviours by the father and from which she was not protected. A repetition or continuation of those behaviours would expose the children to that violence and behaviour and directly or through their mother, they could suffer psychological harm; and/or

   ii)     The children or the child S will be prevented from continuing necessary psychological therapy.

   Or

   (b) There is a risk/likelihood that on return the children will be taken into care, separated from their primary care giver (the mother) and thereby placed in an intolerable situation.

7. In DP v Commonwealth Central Authority (2001) 206 CLR 401, the majority of the High Court (Gaudron, Gummow and Hayne JJ) said:

   [41] ….. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.

   [42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.

   [43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.

   [44] These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is,  in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.

   [45] That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return. (footnotes omitted)

Evidence

1. In terms of the observations in DP v Commonwealth Central Authority, here there is something less than clear and compelling evidence from the mother but something more than bare assertions of her fears for the children.

2. This and other courts have considered the problem of resolving conflicting evidence in matters which must be dealt with on the basis of affidavit evidence alone and in summary proceedings.

3. In Regino and Regino (1995) FLC 92-587 at 81,814 Lindenmayer J said:

   The resolution of the crucial factual issue in this case, which I have earlier identified, essentially involves a determination by me of the relative credibility of the parties’ conflicting accounts of the events immediately preceding the wife’s departure from the United States with M on 25 November, 1993, a particularly of their differing accounts of what the wife then informed the husband about her intentions as regards her future residence.

   Before attempting that resolution, it is appropriate to acknowledge that it is particularly difficult for any court to resolve contested issues of fact on the basis of affidavit evidence only where the court does not have the opportunity, which the taking of viva voce evidence provides, of seeing and hearing the witnesses give their evidence and thus being able to assess their credibility in the light of their demeanour and general consistency, particularly when subjected to a searching cross-examination in the forensic context. Nevertheless, in a case such as this, where, by the very nature of the proceedings, one of the parties resides overseas, and it is therefore impracticable to secure his or her attendance before the court to give oral testimony, the court must necessarily undertake that difficult task and do the best it can to resolve the factual issues upon the material which is before it. In doing so, I believe that the court must be cautious not to unfairly disadvantage the absent party by presumptively giving greater credit to the testimony of the other party who happens to be within the jurisdiction and before the court. 

4. In Re F (A Minor)(Child Abduction) [1992] 1 FLR 548 at 553 Lady Justice Butler-Sloss dealt with the problem of there being irreconcilable issues exposed in the affidavits in Convention cases. She said:

   If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.

5. There is a further issue in proceedings under the Abduction Regulations. Regulation 29 makes special provision for the rules of evidence that apply to certain proceedings. For example and relevantly Regulation 29(2) provides:

   (2) The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.

6. One can understand why that provision is there. It seeks to ameliorate the same mischief at which the Convention itself is partly aimed –  the difficulty and unfairness of being required to litigate in a foreign jurisdiction, usually over long distances and often in a foreign language. However, in that way, one of the common law evidentiary safeguards, the scope for excluding unreliable evidence on objection, is not available in relation to the evidence filed in support of an application under the Regulations. Of course there remains the capacity and obligation to weigh evidence.

7. The mother’s allegations are very concerning and can be summarised as follows:

January 2007	While parties on their honeymoon in Australia, the father frequently accused mother of looking at other men, stated “you want to have sex with them”, “say the truth, you want them” and called her a “fucking liar”.
February 2007	The father insulted mother in front of paternal grandmother stating words to the effect “you’re a piece of shit”.

Throughout the marriage

The father was physically abusive to the mother. There were a number of occasions when he slapped her with an open palm on her face or arm, pinched her on the arm, kicked her and spat at her. Mother deposes that such behaviour usually occurred two or three times each week and resulted in bruising to her arm at least once a week.

Approximately June 2008

Father performed oral sex on mother, pulling her vagina and rubbing his beard against her vagina. Mother asked father to stop as it was painful, father would not stop.

Approximately June 2008

After the mother fell pregnant, the father continued to ask her to have sexual intercourse with him every two to three days. If mother did not agree, father would say words to the effect “You’ve already made love to someone else”.

During sex, the father stopped and checked his penis. If mother’s discharge was found on his penis he would say words to the effect of “You’re a bitch. You’ve had sex with another person. You disgust me.” Mother would then cry and father would sometimes roughly push his penis into the mother, who would often bleed after this occurred.

Approximately June 2008

The father routinely insulted mother stating words to the effect:

·    “You’re a piece of shit”;

·    “Your blood should die”;

·    “Go and have a shit”; and

·    “You’re a bitch”.

Approximately June 2009

The father’s sister Ms R visited mother’s house and yelled “open the door, you bitch. You’re a disgrace. This isn’t your house so open the door.” The father’s sister then pushed past the mother and put her fist to the mother’s head.

December 2009	The father accused mother of having an affair and threatened mother with words to the effect “I will kill you and whoever would come behind you” (this phrase in Italian means “whichever man is to date you after me”).
2011	Throughout the mother’s pregnancy with the child N, the father continued to claim that the baby was not his and that the mother was a “slut”.
In or around 2011	The mother asked father to take S to child care, father was running late for work, became angry and slapped mother hard across the face with his open hand.
In or around 2011	The father said to the mother “I am going to kill you. I’m going to bang your head against the wall, and I’ll show you how” in front of S.
January 2011	The father accused mother of having an affair and called her a “piece of shit” in front of S.
January 2011	Mother’s menstrual cycle was late, father said to mother words to the effect: “Well, if you’re pregnant, you’re pregnant from the Holy Spirit”.
From March 2011	The father held the mother down and inserted his penis into her anus. Mother cried and asked father to stop as she was bleeding. Thereafter he insisted on anal sex each time they had sexual intercourse.
From around March 2011	The child S started saying “va caca” to the mother which translates literally to “go take a shit”. The father used these words on a daily basis.
June 2011	The father yelled at the mother in front of the child N who started crying. Father yelled at N “quiet, you’re always crying”.
August 2011	Father became angry at mother stating that she was not pregnant with his child. Mother locked herself and S in the main bedroom. Mother called friend Ms B and asked her to come to the home.

January 2012

The father scratched the mother on face. The mother took photo but later deleted it out of fear.

February 2012

The father punched the mother with a closed fist to right shoulder. Both children were present. S began crying and punching father on the legs and said “don’t punch mum”. Mother continues to feel pain to her right neck and shoulder following incident.

February 2012

The father said to S words to the effect of “Go on, kick her. Tell her to go have a shit” in reference to the mother. S began to kick the mother. Father said “I don’t want him to hate women, I want him to hate you”.

March 2012

Father found the word “bambino” (which means “baby” in English) written through the dust on his car, he said to mother words to the effect “Tell your lover if he had the balls he would say it to my face”.

March 2012

Father woke mother up at midnight and shouted very loudly at the mother words to the effect “You’re a bitch. You’re a piece of shit. Who did you give the key to?” The child S was also in bed with the mother and father and woke up crying.

Approximately March 2012

The father accused mother of “going to see [her] lover and have sex” on three occasions due to the mother washing herself in the bidet after using the toilet.

April 2012

The father forced the mother to show her that she was menstruating by opening her vagina with two pieces of paper towel. The father claimed the mother had a scratch and needed to go to hospital.

April 2012

Mother received letter on doorstep which read “I want your wife”. Father said words to the effect “This is proof you have a lover”.

April 2012

Mother received telephone call from father’s sister Ms R, she said words to the effect “You’re a slut. You’re a piece of shit.” She also said words to the effect “My brother should punch you and if I see you, I will punch you.”

Approximately August 2012

The child S placed his hands down the father’s pants, moved his hands around and laughed. Father said S was not doing anything wrong.

August 2012

The father said to children words to the effect “I’m going to break your ass”.

17 August 2012

After signing the paper work to obtain Australian passports for the children, the father said to S words to the effect “Your mum’s a piece of shit. Don’t worry, when you’re older, you’ll know what mum did.”

1 September 2012

In front of S, the father: pinched the mother and gestured as though he was going to kick and slap mother, slapped the mother across the face, yelled at the mother words to the effect “Your blood should die. Your blood should die. Your blood should die from your heart”.

Father later said to mother “I would break you” and “So when you go to Australia you can tell them ‘my husband was threatening me. I’m going to come there and kill you. I have the ability to do it.”

December 2012

The father used Skype contact to insult the mother. On one occasion the father said “Mummy’s a liar” to S. S slammed his fist on the table and yelled “Mum’s not a liar”.

20 December 2012

Via Skype contact S said to the father words to the effect “Don’t be naughty to Mummy, punching, kicking and say go and have a shit”.

17 July 2013

S woke up in the middle of the night and said to the mother “I’m scared that Daddy will punch you up high”.

1. The father declared[2] that he never used physical or psychological violence towards the mother or the children. Given that on the applicant’s case, it is seeking to establish a negative, there can be no complaint for that reason alone about the adequacy of the father’s bare denial.

   [2] Annexure A to the affidavit of Ms H sworn and filed 26 November 2013

2. In addition to the mother’s testimony, the evidence in support of the mother’s case is as follows:

3. Mrs L is the mother’s mother. Following the child S’s birth she attended at the parent’s home and regularly witnessed the father argue with the mother “over simple things like whether she should breast feed or bottle feed [S].” After S was born she says that the mother told her that the father yelled and swore at her on an almost daily basis but the mother gave her no details about the things he said. Shortly after the mother fell pregnant with the child N she told her mother that the father said that the baby was not his child. She cried to her mother every few days saying that the father always said “you’re a shit” and called the mother names.

4. The mother’s mother deposed that in or around April 2012 she received a call from the mother at about 1:15am. The mother sounded distressed and was crying. She said to her mother: “Can you come and care for the children because my husband has gone mad.” The mother’s mother said that she asked to speak to the father and that they had the following conversation:

   The father said:

   What’s wrong to go to the hospital to check that [the mother] had sex with someone?

   The mother’s mother said:

   How can you do such a thing? It is normal for a woman to have her periods after six months for one child and eight months for another. Should I come down to your place? I am worried.

   The father said:

   No don’t come. Everything is alright.

   The mother’s mother said:

   Can I rest easy? Can I rest easy that nothing else will happen and everything will be ok?

   The father said:

   Not, it’s alright.

5. The mother’s mother says she was very worried for the mother and spoke to her shortly thereafter. The mother told her:

   [The father] wanted to have sex but I had my period. He went crazy and said to me: ‘How could this be possible? When you had [S] you didn’t get your period so early.’ He insisted he wanted me physically checked and when he saw me bleeding, he said I was scratched and wanted to take me to hospital to prove I had sex with someone else.

6. The mother’s mother says that soon after that incident she suggested to the parents that they see a counselor together. She says that the father responded to the effect: “It’s not my fault.”

7. The mother’s mother deposed that she first heard that the father had been violent to the mother when the mother told that to her lawyer, in about May 2012. She reports that the mother said: “He hit me and was rough with me when we had sex.” She says she asked the mother why she had not told her earlier and says that the mother said: “Mum I didn’t like you to get upset.” She deposed that on the day after the mother and children arrived in Australia the child S said to her: “Nonna, my dad punched mum and kicked her and say go take a shit.” The mother’s mother said that after arriving in Australia the mother said to her words to the effect: “We had an argument and he punched me in the shoulder.”

8. Therefore the mother’s mother did not witness any of the concerning behavior about which the mother complains. She corroborates the mother’s evidence of conversations between them about various incidents, the conversations in the middle of the night in about April 2012 about the father demanding to take the mother to the hospital to check if she had been unfaithful and S reporting “dad punched mum and kicked her and say go take a shit”.

9. Mr L is the mother’s father.

10. It is his evidence that in around June 2009 the mother rang him in the evening, sounding quite scared. She said that the father’s sister, Ms R, had come to the house, forcibly entered, hit her on the head and threatened to bring her husband back to the house to bash her. The father was out fishing and the mother’s parents took the mother and S home for the night.

11. He observed the father driving by on his Vespa on six or seven occasions starting after S’s birth, apparently checking up on the mother when she visited her parents’ house.

12. Consistent with the testimony of his wife, he deposed that when the mother was pregnant with N she told her parents that the father said that the baby was not his child. The mother complained about that behaviour at least a few times each month until she gave birth. The mother’s father says he observed a general change in her demeanour and that she constantly appeared nervous around the father.

13. He deposed that in around March 2012 the father reported to him that someone wrote the word ‘bambino’ on his car and asserted that it must have been someone known to the mother. The mother’s father says that the father seemed almost obsessive about this incident. The mother’s father deposed that at about that time the mother disclosed to him that the father was being controlling and was using abusive words to her on an almost daily basis. She told him that the father accused her of having a lover and she used words to the effect: “He calls me names that really offend me and make me feel small. He tells me to go take a shit. It’s happening quite often.”

14. It is the evidence of the mother’s father that in about April 2012 when he and the mother’s mother visited the parents’ home the father said: “I found a note outside the door which said ‘I want your wife’. Definitely [the mother] must know who put it there and written those words”  The mother’s father deposed that he suggested to the father that the culprit must be someone on the father’s side of the family wanting to cause division in the parents’ marriage.

15. The mother’s father says that in about April 2012 he said to the father: “What are you doing to your marriage? You’re making jealous accusations without proof.” He deposed that his wife suggested to the parents that they see a counselor together. He confirms he wife’s testimony that the father responded to the effect: “It’s not my fault.” However, it is the mother’s father’s testimony that the father later said: “I should and will change.”

16. The mother’s father said that after arriving in Australia the mother said to him words to the effect: “He punched me. I ran into the bedroom and locked the door because I was afraid.”

17. The mother’s father said that he and his wife were requested to attend at a police station in U in November 2013. It appears that this related to the complaint the mother made against the father in respect of domestic violence. As was deposed by his wife, he confirmed to the police that he had never witnessed violence by the father against the mother. Among other things, he confirmed that his sister in law, Ms V, witnessed the father telling S to kick the mother. 

18. Ms A is the mother’s sister. She lives with her husband in Australia. She observed the parents when they visited Australia on their honeymoon in 2007. She observed the father to be uncomfortable and easily annoyed. She kept in contact with the mother by Skype, when the parents returned to Italy. She noted that the mother was required to have the father’s lunch ready when he called home from work. The mother told her that the father questioned her about having a lover. The mother told her about the offensive things the father called her on a daily basis.

19. During a Skype communication Ms A heard the father say to the mother: “Who are you speaking to? Is that your lover?” and heard the mother say: “No, it‘s my sister.” She deposed that the father then came to the computer and checked who was on the screen.

20. Ms A deposed that on more than one occasion in about June 2012 she asked the mother why she did not go to the authorities. The mother responded to the effect: “I was told by two solicitors and my psychologist not to report him because the police would call him to let him know he’s been reported and by the time you get home he will come home and kill you.”

21. Ms A deposed that in or around mid 2012 on four or five occasions during Skype sessions with the mother at night, the mother said words to the effect: “I can hear him coming up the stairs. I’m not in the mood to hear abuse. I’m going to close myself in my room before he comes in.”

22. Ms A said that there was one occasion when she heard the father refer to the mother as “a bitch”. It was in around the middle of 2012 during a Skype session. The mother said something to the father that Ms A could not hear and Ms A said “You better get off Skype and sort it out with him.”

1. Ms A said that in about April 2012 the mother told her that she had spoken to Ms X at the Australian Consulate in Rome who gave her contact details for refuges for women in Sicily. She said that the refuges could not give legal advice but could recommend solicitors in Sicily who might be able to help her. The mother said that Ms X suggested that the mother get back to Australia. Ms A deposed that she then contacted Ms X at the Australian Consulate who confirmed the advice she had given the mother. Ms X told Ms A that she could hear the desperation in the mother’s voice during their telephone conversation. She deposed to Ms X saying: “We’re not allowed to say this but I would strongly suggest your sister leave the island and get back to Australia. I’ve heard many cases like this and we’re not allowed to say these things, but I heard the desperation in your sister’s voice.”

2. Ms A deposed that on or about 12 July 2012 she received a text message from the mother that read words to the effect: “He threatened to kill me.” She immediately telephoned the mother who said: “We had a massive fight and he said: ‘If you go to the authorities with this, I’m going to kill you.”. Ms A deposed that she tried to calm the mother and told her to keep trying to call refuges in Sicily to get some help.  

3. On her arrival in Australia the mother told Ms A that the father had punched her.

4. Ms A also deposed to hearing the child S during Skype sessions. In late 2011 and early 2012 when she heard S run around the room, throwing toys and yelling “va cava”. She said that he appeared almost hyperactive. When the mother asked the child to stop, the father said “Leave him alone”.

5. Ms A deposed that on her sister’s arrival in Australia in September 2012, the child S hurt her son and destroyed toys. When she asked S about that behaviour he said that his father had told him to punch his cousin. When Ms A raised that with the father by Skype she observed him to smirk at her and say nothing.  Ms A also deposed to S referring to his father punch and kick the mother and say “va cava” to her. Ms A said she was present at a Skype session between the parents when the father was yelling at the mother. She noticed that S was with the mother and was huddled in a chair in front of the computer screen. Ms A told the father that she would not allow the children to be party to a “slinging match of words” and then she took S from the room.

6. The evidence of the mother’s parents and sister provides support for her case. They did not witness any physical violence inflicted on the mother by the father but they support her evidence about controlling behaviour and verbal abuse. They also support the evidence that the child S’s behaviour was oppositional, destructive and defiant.  

7. It is trite to say that the mother’s parents and sister are not independent of her.

8. Mr P is a chiropractor who has treated the mother since 26 October 2012. The mother told the chiropractor that the father struck her on her right shoulder/neck region a few months earlier. Suffice it to say that Mr P’s evidence is as a treating practitioner and while he cannot provide probative evidence about an event in Italy some months before, his evidence is not inconsistent with the mother’s allegation that she was punched by the father.

9. Ms F is a clinical child psychologist based in Sydney, NSW, who has treated the child S. She first interviewed him on 25 October 2012 and treated him at fortnightly sessions until 19 June 2013, when the sessions became monthly. Ms F observed that S initially presented at restless and impulsive, with a clear lack of boundaries and respect for the belongings and personal space of others. Ms F opined that S had difficulty with emotion regulation and responding to disappointment. He showed a lack of respect towards his mother often displaying oppositional behaviours when he didn’t get what he wanted. Ms F made no formal diagnosis as the behaviours she observed were consistent with the mother’s report of his upbringing, including “witnessing ongoing domestic violence and emotional abuse”. It is not clear what Ms F meant by “ongoing” in that context.

10. As to future treatment, Ms F recommended that S be slowly integrated into a larger student group and be given clear behavioural guidelines. It is recommended that the father be provided with parental management training to outline appropriate ways to address his son including when discussing the mother. Supervised contact with S’s father should be an ongoing requirement given the previous domestic violence. Interestingly, there was no recommendation for further therapy for S through Ms F or otherwise.

11. Ms F opined that if the recommended treatment is followed S would “continue to flourish behaviourally, emotionally and academically.” She reported that his treatment towards others requires ongoing skills due to the detriment of previous modelling, however should this contact continue to the supervised, he will continue to improve.

12. However, Ms F reported that should S’s recommended treatment not be maintained, his behaviour will regress. He may return to other means of releasing frustration and gaining attention. She stated

    Should [S] be removed from his mother following this attachment, the results would be catastrophic and he would possibly suffer from lifelong anxiety and associated depression.

13. Ms F gives evidence as a treating practitioner. She does not depose to an understanding of or adherence to the rules of court in relation to expert evidence. Her report does not set out the sources of information used in the report. It is not entirely clear from Ms F’s report, what she observed and what was reported to her by others. For example on the second page of her report she said:

    ... [S] often threatened to hurt other people and was reported to talk about his father hitting his mother. He presented as a boy filled with anger and frustration, often commenting on his father’s behaviour…

14. And later:

    ... [S’s] preschool was then concerned about his behaviour with other children. They became concerned that ongoing communication with [S’s] father was increasing [S’s] anxiety and providing inconsistent parenting styles. They suggested ... 

15. It is not clear whether those observations resulted from conduct observed by the clinician, or if based on information from others, who provided the information.

16. As a treating expert, Ms F is able to give evidence about her treatment and about S’s prognosis. She is not able to give probative evidence beyond those matters, including of course, the cause of S’s behaviours.

17. Ms NN is a counsellor employed at the C Women’s Health Centre. The mother was her client since about October 2012. The mother engaged in 12 counselling sessions at the Centre and completed an eight week domestic violence group there. In Ms NN’s opinion, the mother’s counselling progress has been successful in that she has been able to regain a sense of self and is able to make decisions for the best interests of herself and her children.

18. Ms NN refers in her report to the abuse suffered by the mother at the hands of the father but she is not able to give probative evidence about events in Italy.

19. Ms M is the mother’s solicitor in Italy. She acts for the mother in judicial separation proceedings in Italy and has done so since May 2013. Ms M provided a letter of advice which is attached to the affidavit of the mother’s Australian solicitor. Relevant to the mother’s claim of grave risk, it is Ms M’s advice that the Judicial Separation proceedings are in abeyance until the result of the convention proceedings is known. Ms M wrote the public prosecutor has expressed the opinion that if returned to Italy, the children should be placed in care until the resolution of criminal proceedings instituted by one parent against the other. In Ms M’s opinion:

    This means that in the case of the return of [S] and [N] to Italy, the Court will most certainly entrust the minors to the social services, ordering that they will be allocated in a community for minors (to be sure by themselves and without their mother) where both parents can access once a week for about an hour to see their own children in the presence of an educator or a responsible person of the community. This situation would remain unchangeable for the whole duration of the civil and penal proceedings (therefore at least 5/6 years) with serious prejudice for the minors which would find themselves growing up in fact with some strangers, without their love and their mother. A serious and unacceptable case.

20. The mother deposed that in 2012 she was advised not to report the father to the police. Ms A deposed that on more than one occasion in about June 2012 she was told by the mother, words to the effect: “I was told by two solicitors and my psychologist not to report him because the police would call him to let him know he’s been reported and by the time you get home he will come home and kill you.”

21. The effect of Ms M’s letter is that there are refuges in Italy where the mother and children might have escaped the father’s violence and protective orders can be granted under article 342 of the Civil Code to require a person to remain away from the family home, places of work, relatives’ homes and schools. However, she opines that those safeguards would have much reduced effect given the fact that U is a tiny island of 37km². The difficulty with that argument is that the return to be effected under the convention is a return to Italy, not necessarily to U.

22. Ms M wrote:

    The decision to leave has been very painful, but it has been made only for the sake of their children who were living in an unhealthy, dirty, violent and dangerous environment for their psychological and physical safety, as she told me.

23. Care is needed when dealing with translated documents. It is not otherwise suggested in the mother’s case that the children were likely to contract a disease or illness in the U premises. However, I accept that “unhealthy” could refer to an environment of conflict and domestic violence. Similarly, beyond Ms M’s letter, I can find no reference in the mother’s evidence to the children living in a dirty environment in the U apartment. I accept that “malsano” the term that was apparently translated as “dirty” is capable of having a different meaning.

24. Even allowing for the fact that Ms M is the mother’s advocate, her letter is a remarkable document. If I understand her letter correctly, it is her opinion that the mother had little choice but to retain the children outside Italy and that no adequate system of protection is available for the children if they are returned to that country. After setting out some statistics about domestic violence in Italy, Ms M wrote:

    This means that in Italy Justice is often arrives too late or the precautions are inefficient and do not protect the victim and her children.

    In the last analysis, the re-entry of minors into Italy would be detrimental to their physical and mental health.

25. Again allowance is needed for the subtleties of translation where the English version of Ms M’s evidence has it on page 6 in the second complete paragraph, that the criminal proceedings against the mother “would with much probability finish with a judgment in” her favour. That suggests that it is more likely than not that the mother will be acquitted. It is puzzling that the following paragraphs canvas the range of serious penalties which could apply were the mother to be unsuccessful in those proceedings. I am left with a lingering concern that Ms M’s opinion about the probability of the mother being acquitted has been exaggerated in the translation and that the meaning she intended to convey was that the mother could well be convicted.

26. The Central Authority relies on the testimony of several witnesses:

27. Justice Luciana Sangiovanni is the head of the Italian Central Authority and provided a statement dated 20 November 2013. Among other things Justice Sangiovanni took issue with what she described as the “extremely worrying portrait of the Italian justice system, law enforcement agents and welfare officers who would not be able to adequately protect women victims of domestic violence and abuse, thus exposing them to serious risks for their integrities” arising from the allegations of the mother and those of her private attorneys. Justice Sangiovanni summarized Ms M’s assertions about what would occur if the children are returned to Italy, as follows:

    1)     once arrived in Italy, the Examining Judge of the separation proceedings would allegedly remove them from their family and place them in a foster community for children at risk, upon the relevant request to entrust them to the Welfare Office allegedly put forward by the State’s Attorney;

    2)     the children could allegedly remained in such a foster community for even 5 to 6 years(!), with serious consequences on their psychological and physical health and gradual disappearance of both their parental figures who they would be forced to meet in supervised encounters exclusively;

    3)     the mother would be forced to come to Italy herself too, not to separation from her children, and since she is under criminal investigations in Italy for the offence of “child abduction and retention abroad”, under Section 574 bis of Italy’s Criminal Code as well as for “slander” under Section 368 of Italy’s Criminal Code (criminal proceedings No. 1105/2013 RGNR) [please note that those offences are no longer prosecuted upon the party’s complaint but shall be prosecuted ex officio] she would allegedly be put in prison under pre-trial custody for a long time, thus severely jeopardising her relationship with so tender-aged children tied to the maternal figure, who allegedly always had to raise them alone in [U] due to his husband’s and his relatives’ alleged absolute inadequateness.

28. Justice Sangiovanni then set out the following matters to address what she clearly saw as the pejorative and inaccurate description of the Italian justice system and the specific allegations:

    1.     Italy is not a country which disregards victims of offences and women in particular. Recently the Italian legislator passed a new law that introduced harsher punishments for any forms of violence, abuse, staling, etc against women (see Act No. 172/2012 that has transposed the Lanzarote Convention and reinforced protective measures on behalf of women and children victims of domestic violence).

    2.     As to criminal proceedings No. 4681/2012 instituted upon Ms [LUZZATTO’s] complaint against her husband, Mr [Q], in 2012 for alleged domestic violence and ill-treatments, the competent Public Prosecutor of Barcellona Pozzo di Gotto (Province of Messina) declared, in his notice of 12 November 2013 attached hereto, that he requested the competent criminal court to dismiss such proceedings since no such evidence was raised against Mr [Q] during preliminary investigations;

    3.     As to criminal proceedings No. 1105/2013 RGNR, instituted upon Mr [Q’s] complaint against Ms [LUZZATTO] for having wrongfully removed their two children from Italy, the competent Public Prosecutor of Barcellona Pozzo di Gotto (Province of Messina) declared, in his notice of 12 November 2013 attached hereto, that he has no reasons to adopt any precautionary measures (such as pre-trial custody, for instance) against her and reserved any further assessments on his decision in a case “the conduct of the person under investigations would continue as such for a considerable period of time”;

    4.     The Public Prosecutor advised on the phone that he was considering the opportunity of dismissing also the proceedings instituted against Ms [LUZZATTO] for slander.

    Finally, as to the statements released by Ms [LUZZATTO’s] private Attorney referred to the separation proceedings of spouses [Q/LUZZATTO], we beg to point out that competent State’s Attorney had actually requested the children’s provisional entrustment to the local Welfare Office in [U] until the above mentioned criminal proceedings would have been concluded, in consideration of the couple’s elevated conflicts and their mutual complaints for serious offences which had led to those criminal proceedings. However, by his order of 4 July 2013 (previously sent to your Central Authority) the Presiding Judge of the Court of Barcellona Pozzo di Gotto rejected such request of the State’s Attorney and decided to refrain from making any decision on the children’s custody (in consideration of their mother’s wrongful removal) until the Hague return proceedings are concluded.

29. It was not submitted on behalf of the mother that weight should not be given to the evidence of Justice Sangiovanni nor that the evidence of Ms M could or should be preferred to that of Justice Sangiovanni.

30. Monsignor D made a declaration in aid of the application. Monsignor D is the priest at U who married the parents. He has known the father for many years and considers him to be an honest man, with sound moral principles, supported by Christian values. He knows that the father was very much in love with the mother and he never had the sensation of any friction between them. He believes that otherwise the mother would have said something to him. As far as he knows the father is not capable of being violent to anyone, least of all, of being aggressive to the wife.

31. The mother deposed that she attended four weddings at Monsignor D’s church but did not speak to him during those weddings or at any time after her own wedding.

32. It is not asserted that this witness was in a position to observe the parties at any relevant time. His declaration is in effect a personal reference for the character of the father.

33. Ms T was the child S’s nursery school teacher in U. She taught S from September 2011 to June 2012. Ms T observed S to be a sweet and serene child and she saw nothing by way of visible signs of violence nor of upset that could have lead her to suspect that he might have been the victim of abuse or violence. She concluded from her observations that his family background was serene as well.

34. The mother responded to Ms T’s declaration by deposing that during the period from September 2011 to June 2012 the pre-school teachers did not inform her of any destructive or inappropriate behaviour by S. However, she notes that Ms T refers to S’s restlessness in a Facebook message posted on 6 March 2013. The message was:

    [Ms Luzzatto] your children are very beautiful! Is [S] going to school? Has he calmed down or is he always restless? I hope everything is going well with all of you ... let me have your news now and again.

35. Nothing much was made of that observation in the mother’s case. Nor could it be. Ms T’s Facebook message apparently responded to the mother’s message of 20 December 2012 which referred to S and read in part:

    .... He’s growing up and seems calmer, and is starting not to run here and there as he used to...

36. The reader is left unsure as to whether Ms T’s reference to S calming down and being restless is a response to the mother’s statement rather than any reflection from 2011-2012.

37. There is a similar problem with Ms T’s Facebook message to the mother posted on 9 October 2013. The message was:

    You did well to listen to advices ... you will see the improvements later on! We must not haste ... if he interiorises better certain behaviour he will give you more satisfaction when in primary school. I hug you all.

38. Whatever can be read into that message, without her directly saying so, it cannot be taken as repudiating her formal declaration in these proceedings.

39. Both parties have relied on the evidence of Ms T. Therefore in my view, she cannot be said to be a partisan witness. She was in a position to give evidence about S at a relevant time. In my view the evidence of Ms T supports the father’s evidence and does not support the mother’s case.

40. Mr E is the husband of the mother’s friend Mrs E. He declared that he observed some quarrels between the parents where the mother’s fiery and authoritarian temper clearly emerged. He observed the mother to behave very strictly with the father and the children. He is sure that the father never behaved in a violent or abusive way. He observed that the father and S had a very serene and harmonious relationship.

1. The mother responded to Mr E’s declaration by deposing that she complained to his wife, Mrs E, that the father was swearing at her on an almost daily basis and accusing her of having an affair. She recalls telling Mrs E that the father wanted to check that she had her menstrual cycle but did not tell her about the father’s violence to her. Mr and Mrs E had dinner at the parent’s home on about three occasions and the parents ate at their home on one occasion. Perhaps in response to Mr E’s reference to her being strict and authoritarian, the mother deposed to an occasion in around March 2012 in the presence of the Mr and Mrs E. On that occasion the mother recalls that S grabbed a dinner knife and began waving it around and laughing. The mother says that she told the father to recover the knife and he laughed at her. When she grabbed the knife by the blade, S pulled back, cutting her hand. She then removed the knife with her other hand.

2. It is not asserted that this witness was likely to favour the father’s version of events. He was in a position to observe the parties at a relevant time. It is the evidence of the mother, that she told Mrs E of many of her complaints about the father. Mr E’s declaration provides a positive reference for the character and behavior of the father. Rather than dispute his negative opinion of her behavior, the mother seeks to put that opinion in context. No evidence was called by the mother from Mrs E.

3. The evidence of Mr E supports the father’s evidence and does not support the mother’s evidence.

4. Dr Z was S’s paediatrician. He declared that S was his patient from 2009 to December 2012. Nothing turns on it but S was in Australia from September 2012. Dr Z treated S for an allergy that provoked ‘bronchospasms’. Dr Z observed S to be a sweet and peaceful child. He never saw anything to lead him to suppose that the child have been the victim of violence and or sexual abuse or other forms of abuse.

5. The mother responded to Dr Z’s declaration by deposing that she took S to him about once a month and that the visits usually lasted about 5 – 10 minutes. During a consultation with Dr Z about three weeks before she left Italy, the mother deposed to saying to Dr Z:

   My husband has been instigating my son to hit me and kick me.

6. And the mother says that Dr Z responded to the effect:

   Well, see if you can work it out.

7. It is not asserted that this witness was likely to favour the father’s version of events. He was in a position to observe the child at a relevant time. Albeit that is not said to be something he saw for himself, he is in a position to corroborate the mother’s evidence that she told him that the father had encouraged S to hit and kick her. He did not corroborate that evidence.

8. The evidence of Dr Z supports the father’s evidence and does not support the mother’s evidence.

9. Ms Y made a declaration in aid of the application. Ms Y declares that she is a friend of the parents. She says that she got to know the behavior of the parents towards the children because she and they often attended the same playground. She observed the mother to be very authoritarian and demanding towards the children and the father. She recalls the mother sitting on a bench loudly demanding things of a child and the father, making them uncomfortable.

10. The mother deposed that Ms Y is a friend of the father’s sister. She can recall only one occasion when she saw Ms Y at a park. On that occasion, after exchanging greetings with Ms Y, they did not speak. S played at the park for 45 minutes and the mother and the father’s sister and S left the park.

11. There is a dispute as to the allegiances of this witness. It is asserted by the mother that she has a connection with the father’s family. The mother challenges the testimony. This evidence is not of assistance in relation to the matters at issue.

12. It is the mother’s case that she seeks to run the same case for both children. I take it that she seeks by that submission to avoid any suggestion of different treatment for the two children.

13. It is the mother’s position that if the Court orders the return of the children to Italy, she will return with them. That is an appropriate concession.

14. Weighing all of the evidence, it seems to me that grave risk is not established. The grave risk in question is grave risk of psychological harm to the children. While disturbing and potentially harmful the allegations made by the mother about the father’s conduct, which the children are said to have witnessed or directly subject to, is not of the most serious type.

15. Importantly, the conduct is denied. All cases are determined on their own facts but I note that in, In Re F (minor: rights of custody abroad) [1995] 3 All ER 641 (to which I was referred) the Court of Appeal of England and Wales found inter alia and for the first time on an appellate ruling in England and Wales, that the defence of grave risk was made out. Unlike the case before me, the allegations of violence made by the mother in that case were unchallenged. The father elected to offer no evidence.

16. There is no independent corroboration. Taken together, the mother’s case is almost exclusively her own testimony and the family corroboration is of self-serving statements. The contemporaneous statements omitted the allegations of physical abuse until long after the event and within a few months before and after the children had left Italy. There are no medical records, contemporaneous police records or Court records. In Harris [2010] FamCAFC 221 (to which I was also referred) being a case in which the trial judge was upheld on her findings based on another defence, the Full Court rejected the first instance finding of grave risk of physical or psychological harm because the risk of harm to the children was not sufficiently identified. The evidence in that case was that on return the parents would not be living together and there was no evidence that the father had ever breached a domestic violence order. However, as to the degree of threat in Harris, among other findings of violent abuse, there were hospital records that enabled the trial judge to find that the father had on two different occasions, broken the mother’s arm. Further, in that case, the father conceded that he had threatened to kill the mother – that was an agreed fact.

17. Even the lay witnesses who are related to the mother and are likely to be aligned with the mother were not told of the main allegations until just before the children came to Australia and after that time. There is some evidence which is inconsistent with the mother’s claims, including evidence independent of the parties. The mother did not call her maternal aunt who it is asserted, heard the father call on S to abuse the mother. That testimony would not have necessarily been persuasive given that it would come from a source aligned with the mother but the failure to call it, invites the inference that it would not assist the mother’s case[3]. No explanation was given for that failure.

    [3] Jones v Dunkel (1959) 101 CLR 298; see the discussion in State Central Authority and Papastavrou [2008] FamCA 1120

18. Some safeguards put in place by the mother, on her own evidence, appear to have been successful. For example, the father apparently respected the mother shutting her bedroom door to him; he responded to the mother’s mother on occasions; and the mother was able to stay with friends for three weeks on one occasion.

19. The protective mechanisms available to the mother in Italy, mechanisms that are much criticised in the mother’s case, were never invoked by her. It is not the case that the mother and children went to a refuge and the father was still able to abuse them; it is not the case that an injunction for personal protection was sought and wrongly refused or was granted and proved ineffective.

20. The mother does not suggest that there is any impediment or disadvantage to her accessing the Italian legal system. Albeit belatedly and after she left Italy the mother herself initiated proceedings in Italy against the father. The mother has an experienced lawyer in Italy who is already acting for her in family law proceedings commenced by the father.

21. An order has already been made in the parenting proceedings in Italy that the parties are permitted to live separately.

22. Taken together the evidence does not support a finding that on return to Italy, the children will be exposed to a grave risk of psychological harm.

23. The second limb of the mother’s grave risk defence is that the children or the child S will be prevented from continuing necessary psychological therapy

24. As I have referred to earlier, I could find no reference in the evidence of Ms F to any further therapy being recommended for S. In the event that I am wrong about that, there is no evidence to suggest that therapy is uniquely available in Australia or not available in Italy.

25. I turn then to the assertion that there is a grave risk that the return of the children under the Convention would place them in an intolerable situation. The gravamen of the mother’s case is that there is a grave risk that on return to Italy, the children will be separated from her, whether because she is gaoled as a result of the abduction or slander proceedings or because the children are taken into care under an order likely to be made in the parenting or related proceedings. It is important to note that the mother has not been formally charged in relation to slander or kidnapping. In relation to slander, the public prosecutor is considering withdrawing the proceedings. If proceedings are commenced, truth is an available defence.

26. The point of the Convention is an acceptance that orders about children are best made in the jurisdiction of their habitual residence. The High Court has rejected in another context the unquestioning assertion of the adequacy of the legal system in the jurisdiction of habitual residence[4]. However, it cannot be required that the courts of every signatory jurisdiction must guarantee in each instance that there could be no interim or final outcome that would be inimical to the abducting parent’s case. In the context here, it cannot be that the Central Authority is required to guarantee that the Italian Court will order that the children live exclusively with the mother. Justice Sangiovanni forcefully confirms that a system of justice is available to apply the law of two Italian children’s homeland to their situation. The important matters are comfortably addressed in the uncontroversial evidence. There is a competent Court, seized of the parenting controversy that is accessible to and which has already been accessed by, both parents. Despite an application on behalf of the State, the Court has declined to make an order that the children be placed in care, and has indicated that it will not again consider that issue until the children are returned to Italy. The Court has already ordered that there be a parenting evaluation to assist in resolving the parenting dispute. The mother will have an opportunity to be heard before further orders are made.

    [4] See DP v Commonwealth Central Authority (2001) 206 CLR 401 and Murray v Director of Family Services ACT (1993) FLC 92-416.

27. As to practical matters, the mother makes no case about the lack of accommodation or any other practical impediment to a return that would not place the children in an intolerable situation. It is flagged in her case however, that if a return order is made, the mother would seek to be heard in relation to conditions. She will have that opportunity.

CONCLUSION

1. For all of those reasons I am not satisfied that the mother has established that the ground which she relies on pursuant to Regulation 16(3) of the Abduction Regulations has been made out and accordingly I do not accept the mother’s submission that the court should refuse to make the return order. I have no discretion to refuse to make the return order.

2. I shall make an order in the general terms suggested by the Central Authority. The parties will be able to bring the matter back in relation to conditions and machinery orders.

3. I should acknowledge the professional work of the parties’ lawyers and in particular of their counsel. The applicant’s case was run, as it should be, as representative litigation where there is an expectation that the applicant will act as a model litigant. That was the case here. In turn the mother’s counsel focussed on the issues and did not take unnecessary points or seek to dramatize the highly sensitive background facts of the proceedings. Although the responsibility for the delay in delivering these reasons lies with me, my task was made easier by the careful presentation and thoughtful submissions of the parties’ counsel.

I certify that the preceding one hundred and fifty three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 19 December 2013

Associate: 

Date:  19 December 2013