DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & LUZZATTO

The Director-General of the Department of Family and Community Services applied to the Family Court of Australia for the return of two children, S and N, to Italy, from whom they had been wrongfully removed by their mother, Ms Luzzatto. Ms Luzzatto opposed the application, arguing that a return order should not be made due to a grave risk of psychological harm to the children or their placement in an intolerable situation. The proceedings were brought under the Family Law (Child Abduction Convention) Regulations 1986, which implement the Hague Convention on the Civil Aspects of International Child Abduction.

The court was required to determine whether the prerequisites for a mandatory return order under Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 were satisfied, and if so, whether a return order should be refused under Regulation 16(3) on the grounds of grave risk of psychological harm or placing the children in an intolerable situation. The court also considered the weight to be given to the mother's allegations of domestic, sexual, and verbal abuse by the father, and whether these allegations were independently corroborated.

Justice Loughnan found that the prerequisites for a mandatory return order were satisfied, as the children were habitually resident in Italy, were Italian citizens, and had been wrongfully retained in Australia in breach of the father's rights of custody, with the mother having undertaken to return them by a specified date. The court noted that the mother's allegations of abuse by the father lacked independent corroboration. Applying the principles established in cases such as *DP v Commonwealth Central Authority* and *Regino and Regino*, the court held that the threshold for establishing a grave risk of psychological harm or an intolerable situation under Regulation 16(3) was not met. Consequently, the court determined that it did not have discretion to refuse to make a return order.

The court ordered the immediate return of the children S and N to Italy, with the respondent mother to bear the costs of their return, including airfares and other necessary travel expenses. The parties were granted liberty to apply on short notice regarding the wording of the orders and any conditions. Leave was also granted for the Central Authority's solicitor to uplift any passports held by the Registry Manager for the mother or children, and for the parties to approach the associate to Justice Loughnan concerning machinery orders or conditions.