DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & MAGOULAS

[2018] FamCA 102

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & MAGOULAS [2018] FamCA 102

FAMILY LAW – CHILD ABDUCTION – Hague convention application – Application by the Secretary of the Department of Family and Community Services for the return of an eight year old child to the Ukraine – Dispute about whether the child was settled in Australia – Dispute over mother exercising rights of custody – Dispute over defences – Where the child was settled in Australia – Where the child was wrongfully removed to Australia by the father – Where the mother did not consent to the father removing the child – Where the child objects to the return but is insufficiently mature for that objection to be influential – Where grave risk of physical or psychological harm or an intolerable situation is not established – Where there is no discretion to order return – Application dismissed.

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 4, 16, 29(2), 29(3)

Director–General, Department of Community Services & M and C (1998) FLC 92-829
DP v Commonwealth Central Authority (2001) 206 CLR 401
Harris & Harris (2010) FLC 93-454
Re F (A Minor)(Child Abduction) [1992] 1 FLR 548
Re F (Minor: Rights of Custody Abroad) [1995] 3 All ER 641
Re K (Abduction: Consent) [1997] 2 FLR 212
Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171
Regino and Regino (1995) FLC 92-587
Secretary, Commonwealth Attorney-General’s Department & Wolford [2014] FamCA 445
Secretary, Department of Family and Community Services & Mayer [2017] FamCA 48
State Central Authority & Fang [2017] FamCA 533
State Central Authority & Topalogu [2007] FamCA 1337
Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321

APPLICANT: Secretary, New South Wales Department of Family and Community Services

RESPONDENT: Mr Magoulas

FILE NUMBER: SYC 8179 of 2017

DATE DELIVERED: 27 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 30 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Barnett

SOLICITOR FOR THE APPLICANT: Legal Services, New South Wales Department of Family and Community Services

RESPONDENT FATHER:	In person
INDEPENDENT CHILDRENS LAWYER:	Mr Blumberg

Orders

1. The Application of the Secretary of the New South Wales Department of Family and Community Services filed 8 December 2017 is dismissed.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC8179 of 2017

Secretary, New South Wales Department of Family and Community Services 

Applicant

And

Mr Magoulas

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. By way of an application filed 8 December 2017, the Secretary of the New South Wales Department of Family and Community Services (“FACS”) seeks the return to the Ukraine of B, born in 2009 (“the child”).

2. The respondent is Mr Magoulas born in 1969 (“the father”).  He is the child’s father and he seeks that the application be dismissed.  He says that the Court should not order the child’s return to the Ukraine because more than 12 months passed between the removal and the filing of the application and the child is settled in Australia.  If the Court rejects those arguments and finds that it is obliged to order the child’s return, the father argues that the Court should refuse to order the child’s return with the discretion to do so being enlivened because the mother consented to the removal and/or because the child objects to returning and/or there is a grave risk that if returned, the child will be exposed to psychological harm or otherwise placed in an intolerable situation.

3. The proceedings are brought under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Abduction Regulations”) which are the expression in Australian law of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). Among other countries, Australia and the Ukraine are signatories to the Convention. The applicant is the New South Wales Central Authority (“the Central Authority”) appointed under the Abduction Regulations.

4. The mother of the child is Ms C, born in 1973 (“the mother”).

5. The application was filed more than 12 months after the removal of the child and the Court finds that the child is settled in his new environment.  The application will be dismissed.  The reasons for that decision are as follows.

Documents

1. The applicant relies on the following:

   1.The Central Authority’s Application (Form No. 2) filed 8 December 2017;

   2.Affidavit of Ms D affirmed 8 December 2017;

   3.Affidavit of Ms D filed 25 January 2018; and

   4.Affidavit of Ms D filed 29 January 2018.

1. The respondent father relies on the following:

   1.Affidavit of the Father filed 19 January 2018;

   2.Affidavit of the Father filed 22 January 2018; and

   3.Affidavit of the Father filed 25 January 2018.

2. The father did not file an answer, or an answer and cross-application in accordance with the required form (form 2A) but there is no doubt that he opposes the application.

Short History

1. The child was born in the Ukraine in 2009.  As I understand it, he is a citizen of the Ukraine as well as of other countries, including Australia.  Until September 2016 he lived in the Ukraine for most, if not all of his life.  The mother was born in the Ukraine and is a Ukrainian citizen.  The father was born in Australia and has Australian, Country N and Country O citizenship.  The parents commenced living together in the Ukraine on a date that does not appear in the evidence.  The mother has another child, Ms E born in 2000 (“Ms E”).  She is a ward or foster child of the mother.  The child was the first child born of the relationship of the mother and father.  Their second child, F was born in 2012 (“F”).

2. The parents’ relationship finally broke down in late 2015/early 2016.

3. The father left the Ukraine with the child in the first week of September 2016.  After travelling through Europe, ultimately the father arrived in Australia with the child on 2 November 2016.  The child has remained in Australia since that date. 

4. The mother applied to the Ukraine Central Authority on 20 September 2017. On 8 December 2017 the New South Wales Central Authority filed an application in this Court under the Abduction Regulations for the return of the child to the Ukraine.

5. The proceedings first came before this Court on 13 December 2017 when orders were made ex parte for service and to secure the child within Australia.  A hearing date of 30 January 2018 was fixed.  Following service of the application and those orders on the father the proceedings came back before the Court on 10 January 2018 and further directions were made. 

The Hearing

1. The hearing was conducted on 30 January 2018.  The applicant and the child were legally represented but the father did not have legal representation.  The hearing was conducted on the papers but with some oral evidence from the father.  There was no cross-examination.  After oral submissions, judgment was reserved.

The Evidence

1. The father did not have legal representation.  He asserts that he is dyslexic and referred to a document that reported a disability relating to his capacity to read. 

2. During the hearing the father handed up as part of a bundle marked Exhibit 1 a document from the W Centre dated 24 November 2005 which stated as follows:

   [Mr Magoulas] attended this clinic on 16.12.1992.

   At that assessment he was diagnosed with […] Syndrome, a perceptual dysfunction affecting how the brain interprets the message it receives from the printed page and the environment.  His perception is highly sensitive to certain frequencies of spectral light.  A specific filter can eliminate or subdue the offending light frequencies and remove symptoms of strain and stress, thus solving one part of the puzzle which may cause his reading and concentration problems.

3. The question of the father having a disability was addressed in the submissions made on behalf of the applicant to the following effect:

   Dr Barnett: …and then when your Honour looks at the document which I understand is provided with respect to dyslexia, it talks about […] Syndrome which isn’t really dyslexia but something to do with light rather than difficulty, in my understanding dyslexia, and I have to say I’m certainly not an expert, of difficulty with reading words and forming the words in the proper order.  So it appears to me that there’s some lack of clarity, again, regarding what the father has deposed in his affidavit versus what when the document is actually looked at he says supports his proposition actually says.  Now I accept that these issues are to some extent fairly minute but it’s part of this overall submission that I’m making and that is that your Honour would have some grave concerns about matters as alleged by the father.

   His Honour: “What would be the motivation though? Why would you pretend to be disorganised in an affidavit if you’re not really?”

   Dr Barnett: “One would think that you’re doing yourself more harm than good.”

   His Honour: “You would and you do…and his oral presentation wasn’t much better, no disrespect to him.  He was all over the place”

   Dr Barnett: “What is, in my submission, consistent with this is that the mother deposes that the father hasn’t worked for a significant period of time which to some extent is consistent with, I guess, being less proficient than the father presented himself at least orally today.”

4. I take it from those submissions that the applicant accepted the father’s assertions about having an impaired capacity for written expression and saw it as corroboration of the mother’s complaint that he had not had paid employment in the Ukraine.

5. Although apparently not challenged on behalf of the applicant, despite the father’s evidence about this issue, he tendered certificates evidencing the award of undergraduate degrees from an Australian University and a Masters degree.  There was no challenge to the evidence of the awarded degrees.  I find it hard to reconcile the difficulty in written expression asserted by the father and evidenced by his affidavits, with the written work that is required for undergraduate and postgraduate studies at the high level apparently achieved by the father.

6. Citing difficulties with written expression, both in one of his affidavits and in person, the father requested the opportunity to supplement his written evidence with oral testimony.  Over the objection of the applicant’s counsel that application was granted.  The father gave oral evidence, albeit in a discursive fashion, for about one hour.  There was no application to adjourn the proceedings in order that the applicant could address any of that oral evidence.

7. No objections were taken to any of the affidavits.

8. There was no cross-examination.

9. Much of the evidence about the background facts is contested.  The versions of events provided by the parents are almost diametrically opposed.

10. This and other courts have considered the problem of resolving conflicting evidence in matters which are dealt with on the basis of affidavit evidence alone.

11. 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, and 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.

12. In Re F (A Minor)(Child Abduction) [1992] 1 FLR 548 at 553 and continuing at 554, Butler-Sloss LJ 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.

13. For proceedings under the Abduction Regulations special provision is made for the rules of evidence that apply to certain proceedings. For example and relevantly, subregulation 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.

14. That provision seeks to ameliorate the same mischief at which the Convention and, in turn, the Abduction Regulations, are partly aimed – the difficulty and unfairness of being required to litigate in a foreign jurisdiction, usually over long distances and often in a different language. However, by that provision, one of the evidentiary safeguards of the common law, that is, the scope for excluding unreliable evidence on objection, is not available in relation to the evidence filed in support of an application under the Abduction Regulations. The same latitude is not allowed for the evidence relied on by a respondent. I note however, the allowance in reg 29(3) in relation to the absence of overseas deponents. Of course there remains the capacity and obligation of the Court to weigh the evidence notwithstanding its source.

15. It was submitted on behalf of the applicant that the father was not a credible witness and that the evidence presented in the applicant’s case should be preferred over that of the father.  The father reciprocated, submitting that the versions of events presented in the applicant’s case were largely false. 

16. The applicant’s counsel cited the following as examples of the father’s unreliable evidence:

    (a)the evidence about the father attending F’s kindergarten in City H (formerly known as …) on 17 January 2017.  The father deposed to visiting[1] the kindergarten on that day.  However, the advice from the kindergarten[2] is that the father sought permission to communicate with F and then attempted to abduct him.  When taken to that discrepancy, the father did not dispute that he attempted to remove the child but his submission was to the effect that there could not have been a kidnapping of F as he was within his legal rights to take the child from the kindergarten.  The mother’s report to police of the same day was entirely consistent with the report of the kindergarten and inconsistent with the father’s description of the event.  I accept that the father’s initial evidence about the event was misleading. The father’s evidence on this issue reflects poorly on his credit;

    [1] See last line of the email from the father to the Independent Children’s Lawyer dated 29 January 2018 – exhibit 2.

    [2] Annexure D to the affidavit of Ms D filed 25 January 2018.

    (b)the father refers to threats made by the Ukrainian authorities to take the child and F and place them in an orphanage.  It is submitted for the applicant that there is no evidence of such a threat.  The father says that verbal threats were made but at page 10 of his affidavit filed 19 January 2018 he deposed:

    …

    6.Ukrainian Authorities have threatened that they will put my Australian Citizen Children in an orphanage.  I have this letter and The Australian Honary Consult in [City H] was told this via phone. …

    The father put into evidence, as part of his affidavit filed 22 January 2018, a letter dated 4 March 2016 purportedly from the Office of Children’s Services in City H, containing the following:

    Dear [Mr Magoulis],

    Your application as of 26.02.2016 has been processed by the Office of Children’s Services of [I District] State Administration in [City H].

    Considering your unfriendly relationships with [Ms C] and failure to come to an agreement as to bringing up the child in ward, [Ms E], as well as your own children – [B], born on ...2009 and [F], born on …2012, in order to prevent against the possibility of taking the children away and placing them into a psychosocial rehabilitation center, the Office of Children’s Services suggests you to undergo family mediation.

    …

    I have been given no explanation or description of “a psychosocial rehabilitation centre”.  It may be that the father’s characterisation of a threat to place the children in an orphanage, was fairly made.  In any event no credit findings adverse to the father are available on the basis of this evidence;

    (c)the father asserts that the mother consented to the removal of both boys from the Ukraine and to Australia.  Although not mentioned in the documents attached to the application, the mother agrees in a later statement that she signed documents in 2015, to allow passports and other citizenship documents to issue from Australia and elsewhere.  However, she denies giving any consent to the removal of either child from the Ukraine.  There is no evidence that the mother did any more than agree to the boys taking up the citizenships to which they had access through their paternal heritage.  On 15 September 2016, which was prior to the mother being aware that the child had left the Ukraine, she sought to prevent the boys leaving the Ukraine[3].  There is no evidence that the mother consented to the removal of the boys or either of them from the Ukraine.  In any event there is no other suggestion that the mother agreed to the child leaving the Ukraine in the first week of September 2016.  The fact that she kept F away from the father during that period demonstrates that she did not consent to F leaving the Ukraine.  It is possible that the father interpreted the mother’s support in 2015 for the issue of various passports for the boys as consent in this context.  However, I do not believe that when he removed the child from the Ukraine in the first week of September 2016, he believed that the mother consented to that removal.  The father’s evidence on this issue reflects poorly on his credit.

    [3] Annexure K at page 36 of the affidavit of Ms D filed 25 January 2018.

1. The father has similar complaints about the mother’s credit:

   (a)the father refers to the different statements and records made about the mother’s residence.  There are in evidence different official statements about the occupants of an apartment in City H.  On their face they seem inconsistent with the mother’s evidence.  However, the mother responds to the effect that the registration of occupants on a day may not reflect the presence of an occupant, just their formally registered place of abode.  For example, there is reference in one such document to the child being an occupant of the apartment when he was in fact in Australia.  As with many factual conundrums in these proceedings, the facts are suggestive but not sufficient for a clear finding on credit;

   (b)the father asserts that the mother has Country J citizenship.  The mother denies that she has Country J citizenship.  No credit finding is possible on that evidence;

   (c)much of the mother’s version of events is contradicted by her parents.  Although the mother did not address it in her application to the Ukrainian Central Authority, in her later statements she reveals that she is estranged from her parents and that they are aligned with the father.  The last proposition is undoubtedly true but it sits uncomfortably with the mother’s evidence about the physical threats made by the father against the maternal grandparents.  It seems unlikely that the maternal grandparents would continue to actively support the father against their daughter if they only do so because they are afraid of him.  That is particularly unlikely given that he and they live in different hemispheres.  In the normal course, albeit not an independent source of evidence, the contradictory deposition of members of the close family of a witness warrants careful review.  This circumstance casts doubt on the mother’s credit;

   (d)the mother falsifying or providing unreliable documents, for example:

   (i)the father asserts that the mother has not properly sworn the statement attached to the affidavit of Ms D filed 29 January 2018 because it was purportedly executed in the Australian Embassy in City H on 26 January 2018 and, being Australia Day, the embassy was shut on that day.  The father offered no evidence to support his contention to the effect that the embassy was closed on 26 January 2018.  No doubt is cast on the mother’s credit by that circumstance;

   (ii)the father also asserts that it is improbable that the mother has obtained records from authorities on dates at around Ukrainian New Year.  No doubt is cast on the mother’s credit by that assertion;

   (iii)the father attached at page 24 of his affidavit sworn 22 January 2018 a document purporting to be a report from the Office of Children’s Services K District State Administration in the City of H to the maternal grandparents dated 28 December 2015.  The letter apparently responds to an application made to the Office by the maternal grandparents dated 23 November 2015 and relates to the mother’s guardianship of Ms E.  The letter contains the following:

   [Ms C] has provided written explanations, reporting that currently she is not married, has two children, who are US citizens living in the city of [City L], [State M] and enrolled at the University of [State M].  She has never been married to the father of the children.

   The mother addresses that letter in her statement which is at page 14 of the affidavit of Ms D filed 29 January 2018.  There the mother says:

   In this letter I wrote about my long term relations (6 years of living together) boyfriend’s children, I took care about them and called them MY children, as I call [Ms E] MY daughter.

   It is difficult to understand the import of the letter of 28 December 2015 without knowing the contents of the maternal grandparents’ application of 23 November 2015.  The maternal grandparents have provided a statement in aid of the father’s case[4] but they did not refer therein to their approach to the Office of Children’s Services.  However, on the face of it, the mother’s explanation for the references to the adult children of a former partner in her reported response to the Office of Children’s Services, makes no sense.

   [4] The translation commences at page 18 of the father’s affidavit filed 22 January 2018.

2. There is no clear path available to the Court to distinguish between the creditworthiness of the mother and the father.  The result is that I cannot simply take up the submission of the applicant’s counsel to prefer in all circumstances, the evidence in the applicant’s case over that of the father.  Similarly there is no basis for accepting the evidence of the father on all contested issues.  What findings are available must be made issue by issue.

Detailed Chronology

1. The mother was born in the Ukraine in 1973.  She is a Ukrainian citizen.  The father contends that she is also a citizen of other countries, including Country J.

2. The father was born in Australia in 1969 and has Australian, Country N and Country O citizenship. 

3. The father and mother commenced living together in the Ukraine on a date that does not appear in the evidence.

4. The mother has another child, Ms E, born in 2000.  She is a ward or foster child of the mother.

5. The child was born in the Ukraine in 2009.  As I understand it, he is a citizen of the Ukraine.  He and his brother are also citizens of Australia, Country N and Country O.  Until September 2016 he mainly lived in the Ukraine[5]. 

   [5] There is a reference to the child having treatment for a medical condition in Country P.  It may therefore be that he travelled outside the Ukraine prior to his departure in September 2016.

6. The child’s brother, F, was born in 2012 and as far as I know, he continues to live with the mother.

7. The parents’ relationship finally broke down in late 2015/early 2016.  It is the applicant’s case that the mother attempted to negotiate a separation agreement with the father.

8. It is the applicant’s evidence that the father assaulted the child in January 2016 and that on many occasions he assaulted the mother.  The father makes a similar allegation against the mother in respect of an assault on a child and on him.  In early 2016 the mother moved with the children to another apartment.  It is the father’s case that from March 2016 the boys lived mainly with him but that he dropped them off to the mother on Mondays and Tuesdays.

9. The father retained the child on 17 May 2016.  It is the applicant’s evidence that despite approaching the police, the mother was unsuccessful in recovering the child from the father thereafter.

10. The father left the Ukraine with the child in the first week of September 2016.  After travelling to Country O and Country P, ultimately the father arrived in Australia with the child on 2 November 2016.  It is the applicant’s case that the mother discovered the child’s removal from the Ukraine in October 2016 when the father told her (falsely) that he and the child were then in Australia. 

11. The mother made reports to the police, complained to the police hierarchy and approached the Human Rights Commission in the Ukraine in an effort to have action taken by the Ukrainian authorities to recover the child.

12. The mother applied to the Ukraine Central Authority on 20 September 2017.  There is no satisfactory explanation as to why that application was not made earlier.  On 8 December 2017 the New South Wales Central Authority filed the application that commenced these proceedings.

13. The proceedings first came before this Court on 13 December 2017 when orders were made ex parte for service and to secure the child within Australia.  A hearing date of 30 January 2018 was fixed.  Following service of the application and those orders on the father the proceedings came back before the Court on 10 January 2018 and further directions were made. 

14. The hearing was conducted on 30 January 2018 and judgment was reserved.

APPROACH

1. Generally speaking the Abduction Regulations require the return of children who were wrongfully removed or wrongfully retained from one convention country to another. The return is to the country from which the child was removed and for the purpose of proceedings about the parenting arrangements for those children. In other words these proceedings are in the nature of forum proceedings, rather than proceedings about the merits of competing parenting proposals. The proceedings are conducted under the Abduction Regulations and, for example, unlike parenting proceedings under Part VII of the Family Law Act 1975 (Cth), the best interests of the child is not the paramount consideration in the Court’s determination.

2. Regulation 16 relevantly provides:

   Obligation to make a return order

   (1)If:

   (a)an application for a return order for a child is made; and

   (b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and

   (c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);

   The court must, subject to subregulation (3), make the order.

   (1A) For subregulation (1), a child‘s removal to, or retention in, Australia is wrongful if:

   (a)the child was under 16; and

   (b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and

   (c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and

   (d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and

   (e)at the time of the child’s removal or retention, the person, institution or other body:

   (i)was actually exercising the rights of custody (either jointly or alone); or

   (ii)would have exercised those rights if the child had not been removed or retained.

   (2)If:

   (a)an application for a return order for a child is made; and

   (b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and

   (c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;

   the court must, subject to subregulation (3), make the order.

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

   (a)the person, institution or other body seeking the child’s return:

   (i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

   (ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

   (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

   (c)each of the following applies:

   (i)the child objects to being returned;

   (ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

   (iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

   (d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

3. The effect of reg 16 of the Abduction Regulations, as it applies to the case argued by the parties in these proceedings, is that:

   (a)If the father cannot satisfy the Court that the child is settled in his current environment, the Court must order the child’s return to the Ukraine if the applicant satisfies the Court that he was wrongfully removed to Australia.  He was wrongfully removed if:

   (i)He was habitually resident in the Ukraine immediately before the removal;

   (ii)His mother had rights of custody and was exercising those rights or would have been exercising them but for the removal; and

   (iii)The removal of the child to Australia was in breach of the mother’s rights of custody.

   (b)If the applicant can bring the circumstances within those requirements the Court must return the child to the Ukraine but it may consider not doing so, if and only if, the father establishes that:

   (i)The mother consented or acquiesced to the removal; or

   (ii)There is a graverisk that returning the child to the Ukraine would expose him to physical or psychological harm or otherwise place him in an intolerable situation; or

   (iii)Each of the following apply:

   (a)the child objects to being returned;

   (b)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and

   (c)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views;

4. If the father can satisfy the Court that the child is settled in his current environment there is a controversy between the parties as to whether the application must be dismissed or whether the Court retains discretion to return the child. In the latter case, as I understand the applicant’s case, the Court could order his return, guided by the Abduction Regulations and by any other relevant consideration.

5. Before embarking on those matters I should say something about the application of subregulation 16(2).  There is no doubt in this case that more than 12 months expired before the application was made.  I asked learned counsel for the applicant whether the application related to a “removal from the Ukraine”, “removal to Australia” or “retention in Australia”.  She indicated that it was a removal to Australia.  The relevant date is said to be 2 November 2016.  However, a different view has been taken about the relevant date in other decisions.  In State Central Authority & Fang [2017] FamCA 533 Macmillan J dealt with a matter involving a Chinese child who was initially retained in Malaysia and who only came to Australia four months prior to the filing of the application. The finding was that 12 months had expired before the application was made. The issue was addressed in the following passage of her Honour’s reasons for judgment:

   When does the one year period commence?

   25.The wording of reg 16 makes reference to the wrongful removal to or retention in, Australia, a possible interpretation of that regulation being that time starts to run from the date upon which the child the subject of the proceedings arrives in Australia. This issue becomes relevant in this case as the child was allegedly retained in Malaysia before coming to Australia and has only been in Australia for four months. In State Central Authority & CR [2005] FamCA 1050; (2005) FLC 93-243 (“CR”) Kay J affirming the view he expressed in State Central Authority v Ayob (1997) FLC 92‑746 (“Ayob”) said at paragraphs 27-28 as follows:

   I looked at this question in my earlier decision in State Central Authority v Ayob (1997) 21 Fam LR 567;137 FLR 283; (1997) FLC 92-746 (Ayob)...I said:

   ...

   At first blush, the Regulation appears to have time running from the moment the child actually reaches Australia.  In this particular case, this is somewhat crucial to one aspect of the case because it is common ground that the child has now been in Australia only a matter of weeks and that is clearly less than one year after the date upon which the child first entered Australia... 

   In my view, while such an interpretation accords with a literal reading of the words of reg 16(1), the Regulations have to be read in the context of the Convention and the intention of the nations adopting it. The intention of the Convention is clearly to require the mandatory return of the child within a year of its wrongful removal or retention and to require the mandatory return of the child after the expiration of a year, unless it can be demonstrated that the child has settled in his or her new environment. In my view, the critical date is the date of wrongful removal or wrongful retention and not the date of the appearance in Australia for the first time of the child (emphasis added)

   ...

   While there have been amendments to the regulations since my decision in Ayob, I do not view those amendments as materially affecting my reasoning for concluding that the crucial date when time begins to run under the regulations is the time the child is removed from its place of habitual residence rather than the time it is brought to Australia.

   26.Both counsel for the SCA and the mother agreed that the one year period runs from the date the child was allegedly retained in Malaysia.  As discussed previously, while there is some dispute as to the precise date that this occurred, it is also accepted that the application was made more than one year after the date the child was wrongfully removed to Malaysia.

6. Although I raised the question with Dr Barnett, I was not aware during the trial of the discussion about these matters in State Central Authority & Fang and this issue was not canvassed in the submissions made on behalf of the child or by the father. In my respectful view, the interpretation discussed by Macmillan J and adopted by agreement before her, makes more sense of the scheme of the Abduction Regulations which aims to achieve prompt return, than that proposed on behalf of the applicant before me. On that basis the relevant removal date would be the first week of September 2016, rather than 2 November 2016. Nothing turns on the issue in respect of whether subregulation 16(2) is triggered in these proceedings but under the approach adopted by Macmillan J the delay before these proceedings were commenced was almost 15 months from removal rather than 13 months.

7. I turn to elements of the case.  First, the father seeks to establish that the child is settled in Australia.

Has the child settled in Australia?

1. In Director–General, Department of Community Services & M and C (1998) FLC 92-829 (“M and C”) the Full Court at paragraph 91 of its judgment rejected any gloss on the meaning of “settled in his or her new environment”.

2. It is the father’s evidence that since their arrival in Australia, the child has been living with him at the Suburb Q unit owned by the paternal grandmother.  The mother asserts that the father told her something different to that about where they had lived after arriving in Australia.  However, the father is in a position to give reliable evidence about where he lived and the mother is not.  There is no independent material.  The father says that his mother lives outside Australia for between seven and 12 months of every year.  Therefore he and the child largely have the unit to themselves.

3. It is the father’s evidence that the child commenced school in February 2017.  The father has provided school reports for the child.  His reports from the R School are excellent.  The child is clearly very bright and came to Australia with excellent language skills.  However, it is nevertheless, remarkable that he excelled in the 2017 NAPLAN test[6] with results in tests set in English that put him at the highest level of achievement.  The father says that the child has formal lessons in Arabic, Greek, Russian and Chinese and he studies French and Spanish online.  The child learns piano and the guitar.  The father says that he will apply for a scholarship for the child to S School (a fee paying independent school) and if that is not successful, his commencement at that school might be delayed until Year 7.

   [6] The National Assessment Program – Literacy and Numeracy (NAPLAN) is a series of standardised tests to assess students' basic skills in reading, writing, language (spelling, grammar and punctuation) and numeracy that are administered annually to Australian students

1. The medical attention given to the child in Australia includes the following.  It is the father’s evidence that the child has had the vaccinations required in Australia, has been seen by a skin specialist and had dental treatment at T Dental Hospital.  The child’s General Medical Practitioner referred him to the T Children’s Eye Hospital where he was treated for about 12 months for a condition referred to as “lazy eye”.  With glasses he has good vision in his left eye and a slight permanent loss of vision in his right eye.

2. The father comes from a large family and many of the members of that family are spread across Sydney.  In oral evidence the father said that each of his parents have five or six siblings and they in turn have many descendants.  The child has school friends and he has made friends with the father’s many friends in Sydney, who in turn have children of the child’s age.

3. The father has or has had yearly passes to a number of activity venues in the Sydney area, such as Taronga Zoo.

4. The father says that he and the child speak to the maternal grandparents about five times each week.  The father deposed that there is little communication between the child and the mother or F.  It is his evidence that the calls are made but there is irregular contact of short duration because the mother hangs up.  He says that the mother does not answer over 99.9 per cent of his calls, sms, emails or chats.  The effect of the mother’s evidence is that her communication with the child is monitored by the father and she does not agree that the lack of contact between her and the child is a matter of her lack of desire to communicate with him.

5. There is no doubt that the child misses his brother.

6. The father has yet to find paid employment in Australia.  He was receiving a single parents’ pension but is now receiving the NewStart Allowance paid to those seeking employment.  The father has some funds in the bank, being the proceeds of sale of a property in Australia.  The father said that he had earmarked those funds to pay the mother by way of property settlement.

7. The Court has the assistance of a report prepared by Family Consultant, Ms U, for the purposes of assessing whether the child objects to returning to the Ukraine.  I will refer to that report again later in these reasons but Ms U reported the following about the child’s current circumstances:

   11.[The child] was asked about his school and home life.  He said that he attends school at [R School] and is entering Year 4 in 2018. ...

   [The child] told the Family Consultant that he will move to [S School] in Year 5.  He seems to enjoy school.  [The child] was asked about living with his paternal grandmother.  He noted that she is “not very nice and she always tells us (him and his father) to get out”.  [The child] said that he does not know why his grandmother acts like this.

8. On those facts, I am satisfied that, in the ordinary sense of the term, the child is settled in his new environment.  

9. There is a difference of judicial opinion as to the consequences of that finding.  On one view that is the end of the proceedings and the application of the Central Authority must be dismissed.  On the other hand there is a view that despite finding that subregulation 16(2) applies and that the child is settled in his new environment, there remains discretion in the Court to consider ordering that the child return.

10. The Case Outline on behalf of the applicant sets out the argument in the following terms:

    …

    10.In the event the Court finds that he is settled it is submitted that the Court has discretion to order the return of [the child].

    11.It is noted that the Full Court in M & C at  [98] indicated in obiter that the Full Court was not necessarily persuaded that the view that the Court does not have a discretion to return where the Court finds the child is settled was correct.

    12.Justice Le Poer Trench reviewed the authorities in Attorney-General’s Department & McGaffey [2012] (sic) FamCA 722 and found that given an application for return was made pursuant to regulations 14 and 15, the manner in which regulation 16(2) is framed (ie that should the Court not find that the child is settled where an application for a return order is made more than one year after the day which the child was first removed to, or retained in, Australia, the Court must (subject to Regulation 16(3)) make the order for return) means that a discretion remains.

    13.His Honour says at [119] and following:

    119.I concur with the views of Bennett J and Kay J that the source of power behind the exercise the Court's discretion to order a return, if one exists, must be found within the Regulations rather than by recourse to the text of the Convention itself.  As I have previously outlined in Department of Family and Community Services & Raho [2013] FamCA 530 (“Raho”), it is the Regulations which govern and restrict the operation of the Convention under the Australian law.  Therefore, while there are various English authorities which support the view that a discretion does remain with the Court to order a return even where the child is settled in their new environment (see Cannon v Cannon [2004] EWCA CIV 1330, Re N (Minors)(Abduction) (1991) 1 FLR 413, 417; Re S (a minor)(Abduction) (1991) 2 FLR 1, 25 (UK)) this Court must determine the application before it pursuant to the Regulations and these authorities are of limited assistance.

    120.I diverge from Ayob’s case, SCA & CR and Hajjar, however, in relation to the findings therein that, in circumstances where application has been filed more than one year after the child’s removal and the child is now settled in his/her new environment, the Court retains no discretion to order a return pursuant to the Regulations.

    121.In Raho, I referred to the decision of his Honour Lindenmayer J in Director-General, Department of Family, Youth and Community Care & Thorpe (1997) 141 FLR 44 (“Thorpe“) and specifically to the submissions made by the applicant in that case, set out at paragraph 3.32 of Thorpe as follows:

    77.This issue remains the subject of a [sic.] conflicting Australian authority, but is [sic.] submitted that there remains a discretion to order the return of the child.

    78.Moss J. in the case of Director-General, Department of Community Services -v- Apostolakis (1996) FLC 92-718, having found that in the circumstances of that case the children were settled in a new environment and [sic.] went on to state:-

    ’28 The consequence of that finding is only that I am no longer bound to order the return of these children but rather I have a judicial discretion whether or not to do so, which must be exercised in the context of the policy of the Convention referred to above:  see in Re A [1992] FAM 106, per Lord Donaldson MR at 122...’ (My emphasis)

    79.However, in State Central Authority -v- Ayob (1997) FLC 92-746, Kay J stated when considering the same question:-

    ‘I digress for a moment to say that whilst there is some suggestion in some English cases that a finding of “settled in a new environment” still leaves a discretion in the Court to order the return of a child, I must respectively [sic.] disagree with those views.’ [His Honour then goes on to consider two English decisions, where the Convention itself is the law, which support a discretion to return the child even where it has been found to be settled in a new environment based upon the provisions of Article 18 of the Convention]  ‘In my view, if I concluded that this was a Hague child who had been wrongfully removed or retained, and that more than one year had passed prior to application being made, and I was satisfied that the child was settled in her environment, that would be the end of the matter under the Hague Convention and under the Regulations.’  (My emphasis)

    80.Whilst referring to the Regulations in the closing stages of the above quotation, His Honour does not analyse the specific wording of Regulation 16(1)(b).

    81.Read as one continuous sentence, Regulation 16(1)(b) reads:-

    ‘Subject to sub-regulations (2) and (3); on application under regulation 14, a court must make an order for the return of the child:  if on [sic.] the day on which the application was filed is at least one year after the day on which the child was.. first retained in, Australia unless the Court is satisfied that the child is settled in his or her new environment’

    82.The word ‘unless’ is clearly meant to qualify the word ‘must’. It follows clearly and without ambiguity, that the plain meaning of the section is that the Court no longer must order the return of the child if it is satisfied the child is settled in its new environment.

    83.The power to make an order for the return of the child is found in Regulation 15(1), not Regulation 16 (quoted at paragraph 8 above).  That section empowers the Court ‘if the Court is satisfied it is desirable to do so’ to make orders of the type set out in Regulation 14 (which includes an order for the return of the child).

    84.Where the Court has found that a child is settled in his or her new environment, then it is clear that the mandatory requirement to order the return set out in Regulation 16(1) is inapplicable.  However, it does not take away the power of the Court to order the return of the child granted in Regulation 15 which is unfettered by any finding that the child is settled in Australia, although it is accepted it would remain a factor to be considered.

    85.In order for a finding of settlement in a new environment to end the matter, further words would need to have been added to Regulation 16(1)(b) to the effect that the Court must not order the return of the child when there is a finding that the child is settled in his or her new environment.

    86.Given that the wording of the Regulations is clear and unambiguous, it is submitted it is not necessary to have to refer to the Convention to assist in its interpretation or meaning.

    122.Having accepted those submissions, Lindenmayer J found that the Court retained a discretion to order a return notwithstanding the finding that the child was settled in his new environment.

    123.I agree with the submissions outlined above, namely, that while a finding that a child has settled in his or her new environment means that there is no longer any obligation for the Court to make a return order pursuant to Regulation 16(2)(b), the Court may nevertheless choose to make the order in the exercise of its wide discretion pursuant to Regulation 15(1).

    14.Different Courts at first instance have come to a different conclusion,[7] and the matter has not been settled by the Full Court of the Family Court or the High Court. In this matter the Court is urged to follow the reasoning outline in the matter of McGaffey and the indication given by the Full Court in the matter of M & C.

    15.The Central Authority submits that should the Court accept that the father did the matters as alleged by the mother then what follows is that not only is the Court’s assessment regarding [the child] being settled impacted but these matters ought to be taken into account in the event the Court finds that the child is settled and support the return of the child in any event.

    [7] See for example Secretary, Department of Family and Community Services & Mayer [2017] FamCA 48, Stevenson J.

11. As was referred to in those submissions, in Secretary, Department of Family and Community Services & Mayer [2017] FamCA 48 Stevenson J was presented with an argument that a child to whom subregulation 16(2) applied could still be returned by the Court. She said:

    60.It is uncertain whether there remains a discretion to order a return where a respondent has established that a child is settled in his or her new environment for the purposes of Regulation 16(2). The position was summarised in a 2016 textbook titled “International Movement of Children”, by Lowe, Everall and Nichols, in the following terms:

    22.40 The position in Australia is less certain.  At first instance both Moss J in Director-General of the Department of Community Services v Apostolakis and Lindenmayer J in Director-General, Department of Families, Youth and Community Care v Thorpe accepted the existence of the discretion but in State Central Authority v CR the opposite view was taken.  At the appellate level, in Director-General, Department of Community Services v M and C the Full Court of the Family Court of Australia, without hearing full argument and without purporting to decide the point, stated that it was ‘not necessarily persuaded that Kay J’s view is correct’.  In Director-General, Department of Families, Youth and Community Care v Moore, the Full Court noted ‘the very great importance of the question’ but preferred to await a case with full argument and in which the issue squarely arose before reaching a concluded view.  In Department of Family and Community Services v Raho Le Poer Trench J relied on reg 15(1) as being a source of discretionary power, which he reiterated later in Attorney-General’s Department v McGaffey but in State Central Authority v Hajjar Bennett J held that in the event that the court finds that the child is settled  in Australia, its powers under the regulations are exhausted, and there is no further discretion to order a return, a decision that she later affirmed in 2015 in State Central Authority v Castillo

    (Footnotes omitted)

    61.In State Central Authority & Ayob (1997) FLC 92-746 Kay J stated:

    If, however, it is suggested that within the four walls of the Hague Convention there is room for discretion in respect of a child who has met the criteria of being more than one year away from the wrongful retention or removal and now settled in its new environment, then in my view there is no such room.  In my view, the Convention and the Regulations have no further application in respect of such a child.

    62.In Director-General, Department of Community Services v M and C [1998] FamCA 1518; (1998) FLC 92-829 the Full Court (Nicholson CJ, Holden and Dessau JJ) said as follows:

    95.Before leaving this aspect of the appeal, we think it is necessary to draw attention to the obiter view taken by Kay J in Ayob's case as to whether in a case where one year has elapsed since the child's wrongful removal (or retention) and the filing of an application pursuant to the Hague Convention, a finding under reg 16(1) that a child is settled in a new environment, still leaves a discretion in the court to order the return of a child.

    96.At 84,072, his Honour respectfully differed from the approaches of Bracewell J in Re N (Minors) (Abduction) [1991] 1 FLR 413 at 417 and Purchas LJ in Re S (A Minor) (Abduction) [1991] 2 FLR 1 at 25 to the extent that in those cases:

    “...within the four walls of the Hague Convention there is room for discretion in respect of a child who has met the criteria of being more than one year away from the wrongful retention or removal and now settled in its new environment...”

    Although that set of circumstances was not found to be the case before his Honour, he said that had such facts been the case “that would be the end of the matter under the Hague Convention and under the Regulations”.  In his Honour's view, the matter would fall to be decided under common law or other statute

    97.While the factual aspects of the children's being “settled” was subject to a good deal of argument in this case, the consequences in respect of discretion under the Regulations was not.  We therefore do not propose to deal with that issue which should await full legal argument.

    98.We should say however, that we are not necessarily persuaded that Kay J's view is correct.

    63.In State Central Authority & CR [2005] FamCA 1050; (2005) FLC 93-243 Kay J stated:

    58.Once the year has passed before the application has been filed and the settled exception is established then, notwithstanding the doubts expressed by the Full Court in Director-General, Department of Families, Youth and Community Care v Moore[1999] FamCA 284; (1999) FLC 92-841;(1999) 24 Fam LR 475 at para 75 and the decision of the Court of Appeal in Cannon v Cannot[2004] EWCA CIV 1330, I remain firmly of the view that I expressed in State Central Authority v Ayob (1997) FLC 92-746; (1997) 21 Fam LR 567 that the Regulations provide no source of power to enable a court to make a return order.

    59.The Court of Appeal in Cannon expressly rejected my logic, finding that a residual power to return could be found within the provisions of Article 18 of the Convention which provides “The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”

    60.Article 18 has no equivalent provision in the Regulations.  Its closest equivalent is Regulation 6 that provides:

    These regulations do not affect other powers of, or rights of application to, a court

    (1)These Regulations are not intended to prevent a person, an institution or another body that has rights of custody in relation to a child for the purposes of the Convention from applying to a court if the child is removed to, or retained in, Australia in breach of those rights.

    (2)These regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any other law in force in Australia for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention.

    61.This Regulation makes it clear that giving effect to the Convention is intended to supplement other remedies that might be available to order the return of a child and not replace those remedies.  If the intention of the Regulations was to permit a discretion to return to exist even though the  settled exception was established, then I would expect to find that power somewhere within Regulation 16(5).  It is not surprising that it is absent given that the Regulations are seen as giving effect to the preamble and the objects of the Convention namely to secure the prompt return of children wrongfully removed to or retained in any Contracting State.  As discussed at length in Ayob, the compromise reached between those who wanted a short time limit and those who wanted an open ended mandatory return was to opt for the settled exception.  If it is established that a prompt and summary return under the Convention is no longer seen as appropriate, the “best interests” considerations that accompany the exercise of local jurisdiction should be left to determine where the case should be heard and what orders should be made to provide for the child's welfare in all the circumstances.

    64.I respectfully agree with the views expressed by Kay J as to the existence or otherwise of a discretion in a court to make a return order, notwithstanding that there is a finding that the subject child is settled in his or her new environment.  In particular, I respectfully concur with the significance which His Honour attached to the fact that the existence of such a discretion is nowhere to be found in Regulation 16.

    CONCLUSION

    65.For these reasons, I conclude that I should dismiss the application of the Central Authority.  I will discharge the orders which were made on 14 October 2016 and dismiss all outstanding applications and responses.

12. Although the matter has yet to be conclusively addressed on appeal, I too interpret the provision to mean that if subregulation 16(2) applies and a child is found to be settled in the new environment, there is no remaining discretion to consider ordering return.  As to this aspect[8], the Abduction Regulations work to achieve the prompt return of abducted children to the forum of their habitual residence. It makes sense that the Abduction Regulations would have no work to do where prompt return is no longer achievable and the multifarious structures of a child’s life, from which much of the relevant evidence must come about their current circumstances, are increasingly located in another forum, that of the place of the current location of the child. In my view the summary nature of proceedings under the Abduction Regulations and the presumption in favour of return is explained by the aim of speedily restoring a child to his or her habitual residence. I do not understand how those same summary procedures can be fairly applied to a different enquiry. If not that summary procedure and the presumptive enquiry described in regulation 16, what procedure and enquiry should apply? Perhaps the answer is, a forum dispute outside the framework of the Abduction Regulations or a hearing on the merits about the best interests of the child.

    [8] Putting aside access applications, for example.

1. Learned counsel for the applicant submitted: “In this matter the Court is urged to follow … the indication given by the Full Court in the matter of M & C.” The “indication” was in the following terms: “We should say however, that we are not necessarily persuaded that Kay J's view is correct.” If there is any indication in those words, it is a subtle one.

2. For the reasons that I have given, I am satisfied that the child is settled in Australia and therefore the application will be dismissed.

3. If I am wrong about that, it may be useful to the parties if I say something about the other issues argued in the case.

4. First, the applicant would need to bring the circumstances within the scope of the Abduction Regulations.

Wrongful Removal

Habitual Residence

1. The child is under 16 years of age.  There is no doubt that the child was habitually resident in the Ukraine immediately prior to his removal to Australia.  The fact that the journey to Australia was via Country N and Country O is not relevant for these purposes.  It was not argued before me that the child’s habitual residence changed from the Ukraine prior to or upon his arrival in Australia.

Rights of Custody

1. The next question in order to assess whether the child comes within the Abduction Regulations, is whether the mother had rights of custody in respect of him.

2. Regulation 4 of the Abduction Regulations provides:

   Meaning of rights of custody

   (1)For these Regulations, a person, institution or other body has rights of custody in relation to a child if:

   (a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and

   (b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.

   (2)For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.

   (3)For the purposes of this regulation, rights of custody may arise:

   (a)by operation of law; or

   (b)by reason of a judicial or administrative decision; or

   (c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.

3. Extracts from the Family Code of Ukraine are set out in the application.  It is asserted and it is unchallenged that Ukrainian parents have certain rights in relation to their children.  A child who is under 10 years of age has his place of residence determined by the agreement of his parents.  If the parents are in dispute, their dispute may be resolved by a Guardianship and Tutelage Body or by a court.

4. For the purposes of these proceedings I accept that at all relevant times the mother had rights of custody in respect of the child.

Was the Mother Exercising Rights of Custody?

1. The next issue would be whether the mother was exercising her rights of custody or would have been exercising them but for the child’s removal.

2. Although he did not express it this way, on the father’s case, the mother was exercising her rights of custody when she consented to the child’s removal from the Ukraine.  However, I do not accept that the mother gave that consent.  I will address that matter in more detail below.

3. In my view, the mother would have taken an opportunity to be involved in the decision to take the child out of the Ukraine in the first week of September 2016.  Therefore, but for the removal, the mother would have exercised her rights of custody.

Was the Removal in Breach of the Mother’s Rights of Custody?

1. There is no doubt that the removal was in breach of the mother’s rights of custody.  From the time of his birth, the mother had the right to be consulted and heard about a relocation of the child.  The father’s unilateral removal of the child to Australia represented a denial of those rights. 

2. It follows that a finding could be made that the child was wrongfully removed from the Ukraine in September 2016.  But for subregulation 16(2), I would be required to order his return to the Ukraine unless the father could establish a basis for enlivening discretion to refuse such a return and the discretion was exercised in that way.

The Defences

1. If the Abduction Regulations applied to the child, the father sought to establish one or more of three defences which would enliven in the Court discretion to refuse to order the child’s return. The father sought to establish the defences in reg 16 (3)(a)(ii), (b) or (c).

2. Regulation 16(3) provides relevantly:

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

   (a)the person, institution or other body seeking the child’s return:

   ...

   (ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

   (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

   (c)each of the following applies:

   (i)the child objects to being returned;

   (ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

   (iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

   …

   (4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

   (5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return. 

Consent or Acquiescence

1. In order to establish this defence the father would have needed to establish that the mother consented to the removal or later acquiesced to it. 

2. The determination of an issue about consent was discussed by the Full Court of this Court in the case of Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321 (“Wenceslas”).[9]  At 81,559 the Full Court referred to the views of Justice Hale in Re K (Abduction: Consent) [1997] 2 FLR 212 at 217-8 (“Re K”) as follows:

   It is obvious that consent must be real.  It must be positive and it must be unequivocal.  But that is a separate issue from the nature of the evidence required to establish it.  There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing.  It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument.  There may also be circumstances in which it can be inferred from conduct.

   [9] See Secretary, Commonwealth Attorney-General’s Department & Wolford [2014] FamCA 445 at [46].

3. The Full Court in Wenceslas continued (at 81,560):

   It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to their children.  As presently advised … we are of the view that consent can be inferred from conduct; however, we are also of the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.

4. It was held in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 (“Re M”) that consent does not imply that the person concerned is happy or content with the outcome that has been agreed.[10] 

   [10] See page 188 and 190 of the judgment of Justice Wall in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171.

5. Each case must be decided on its own facts and, in any event, no two cases are the same.

Discussion

1. In order to determine whether the respondent could establish that the mother consented to the removal of the child from the Ukraine, it is necessary to consider the evidence of the circumstances leading up to the removal.

2. The father’s case rests on the mother’s execution of documents to permit the child (and F) to achieve citizenship and passports for the countries of their paternal heritage.  I refer to the discussion about this matter under the heading “The Evidence” earlier in these reasons.  Suffice it to say:

   ·the citizenship documents were signed by the mother in 2015, that is, prior to the separation of the parents;

   ·the mother agrees that she signed the documents and said that she did so willingly;

   ·however, the mother denies giving any consent to the removal of either child from the Ukraine and there is no evidence to suggest that she did so;

   ·the fact that the mother hid F from the father during the period leading up to the removal demonstrates that she did not consent to F leaving the Ukraine; and

   ·the father gives no evidence that suggests that in or about early September 2016 the mother said or did anything to indicate that she agreed to the child’s removal.

Conclusion on Consent and Acquiescence

1. There is no evidence that the mother consented to the child’s removal from the Ukraine.  There is no suggestion that the mother did anything after September 2016 showing that she acquiesced in respect of that removal.

Grave Risk

1. The father would argue that the Court has discretion to refuse to order the child’s return to the Ukraine because his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, pursuant to reg 16(3)(b).

2. In DP v Commonwealth Central Authority (2001) 206 CLR 401 (“DP v Commonwealth Central Authority”), the majority of the High Court (Gaudron, Gummow and Hayne JJ) said at pages 417-418:

   [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)

3. In the applicant’s material the mother says that if the child is ordered to return, she would facilitate that return.  Nevertheless, I asked the father if he would take the child back to the Ukraine if that was ordered.  He said that he would leave that to the mother and would take another flight.  In my view the father was being mischievous in that response.  It is the father’s case that the mother does not have the resources to fund her travel to Australia to collect the child.  In any event, if the argument was made that the child would be at risk if the father did not return with him, the Court would not recognise a risk caused by the father himself.

4. As I understand the father’s case, he contends that an order for return would create a grave risk that the child would suffer psychological harm because:

   (a)the mother may hide the child in Belorussia, which is not a Hague Convention country, as she has business interests there;

   (b)the mother may abduct the child to Country J;

   (c)there would be no protective action by the police or other authorities in the Ukraine; and

   (d)of the threats by the state child welfare authority to put the child (and his siblings) in an orphanage.

5. There is no evidence to support the first or second complaint.  As to the concern about the Ukrainian police and court system, one of the few areas of common ground between the parents in the proceedings is that the police and state welfare agencies have been entirely ineffective in intervening to protect the children.  Despite reports made about a violent assault by the father on one of the children, his abduction of the child in May 2016 and his attempt to abduct F in January 2017, no action was ever taken against him.  At page 6 of the affidavit of Ms D filed 29 January 2018, the mother responded to the father’s allegation: “Also [Ms C] has had over 20 written and telephone attempts to have me arrested all were totally dismissed as nonsense.  These are all accessible to the Ministry of Justice.” The mother’s response is “I confirm it.  I filed numerous complaints against the Respondent in order to protect myself and my children”. 

6. Despite those reports, the father was left with the care of the child in the Ukraine from May to September of 2016, he was able to remove the child from the Ukraine in early September 2016 and then to come and go from the Ukraine in January 2017.

7. On the father’s case, his report to the welfare authorities about the mother’s care of the children and the maternal grandparents’ complaint about the situation with Ms E were dismissed or ignored.

8. That said the parents themselves at times acted in ways inconsistent with their reported fears.  The mother says that after separation she set out to agree to shared parenting arrangements with the father.  That makes no sense in light of her complaints about his violence, lack of financial support and lack of capacity to care for a child.  On the other hand there is the father’s evidence that the mother neglected and abandoned the boys, that she had very poor mental health and that in a failed attempt to strike one of the boys in January 2016, the mother severely assaulted him.  Despite those allegations, the father says that from early in 2016, when the boys lived mainly with him, he dropped them off with the mother each Monday and Tuesday.

9. The father makes some assertions about the ‘system’ being biased against non-Ukrainian speakers but the mother seemed to fare no better in her dealings with police or other authorities.

10. Stepping back from the technical issues, one would ask – why was no effective use made of any Court or administrative or law enforcement system for this family during 2016 and 2017?

11. Each of the parents denies the allegations of the other but they agree that the authorities provided no assistance.  

Discussion

1. In terms of the observations in DP v Commonwealth Central Authority about the grave risk defence, in the circumstances of this case:

   ·the burden of proof is on the father;

   ·the father must establish that there is a grave risk that the return of the child would expose him to certain types of harm or otherwise place him in “an intolerable situation”.  That requires some prediction, based on the evidence, of what may happen if the child is returned; 

   ·consideration of this exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child;

   ·necessarily there will seldom be any certainty about the prediction but 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; and

   ·the exception is to be given neither a narrow or wide meaning but the meaning its words require.

2. All cases are determined on their own facts but I note that in Re F (Minor: Rights of Custody Abroad) [1995] 3 All ER 641 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.

3. In Harris & Harris (2010) FLC 93-454 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, 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.

4. There is no corroborated evidence of harm here.

5. Here the father’s allegations are categorically denied. 

6. F, the younger and therefore more vulnerable sibling, apparently remains in the mother’s care and save for his attempted removal from kindergarten by the father in January 2017, there is no independent evidence that he has come to official attention, let alone to any harm.

7. In my view the father could not establish that the return of the child to the Ukraine would expose him to a grave risk of psychological harm or place him in an intolerable situation.  Unlike the situation one might expect with reports of physical assault in public, one child abduction and one attempted abduction, the father has demonstrated that there is no impediment to him returning to the Ukraine and walking the streets with apparent impunity.  The father and the child would have the physical support of the maternal grandparents and, presumably, their assistance in any parenting proceedings.  A competent Court or authority would presumably have the capacity to establish conditions in respect of return.  Those conditions could ensure that the preliminary steps were taken to commence parenting proceedings in the Ukraine in respect of the child.

1. It is possible of course, that both of the parents have given false or exaggerated evidence.  That would make sense of the lack of official attention to the children in the Ukraine.

Conclusion on Grave Risk

1. The father told me that he would return to the Ukraine if the child was ordered back, albeit that he would take a different flight.  Although there are the concerns that I have identified, I doubt that the evidence can support a finding that on return, the child would be exposed to a grave risk of psychological harm or placed in an intolerable situation.  It must be remembered that return would be to the Ukraine and not to the mother.

The Child Objects to Return

1. Ms U reported that the child was unequivocal in his objection to returning to the Ukraine.  However, she notes that at the age of eight, going on nine years of age, there is a strong alignment with his father and the suggestion that he cannot separate his father’s views from his own.  Ms U expressed the view that the child is not developmentally mature enough to be able to anticipate the physical and emotional consequences to him of his statement about not wanting to return to the Ukraine.[11]

   [11] Hague report at [15].

2. It is the assessment of Ms U that given his lack of maturity, minimal weight can be placed on the child’s expressed wish.[12] If it was relevant, I would accept that assessment.

   [12] Hague report at [16].

Conclusion

1. If the provisions of subregulation 16(2) did not apply, I would probably be satisfied that the child falls within the provisions of the Abduction Regulations. In my view, the father would not be able to establish that:

   ·the mother consented to the removal; or

   ·the child’s return would expose the child to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation; or

   ·the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his objection to being returned.

2. However, the application was filed more than one year after the day on which the child was first removed to Australia and the father has established that he has settled in his new environment.  In those circumstances, in my view there is no discretion to consider ordering the return of the child.  The application of the Secretary of the New South Wales Department of Family and Community Services must be dismissed.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 27 February 2018.

Associate: 

Date:  27 February 2018