DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & VIDUKA

[2015] FamCA 640

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & VIDUKA [2015] FamCA 640

FAMILY LAW – CHILD ABDUCTION – Application by the Secretary of the Department of Family and Community Services (the Central Authority) for the return of two children to Croatia – Where there is no issue that the mother has wrongfully retained the children, the children were habitually resident in Croatia, the father did not consent to the removal of the children and the father was exercising rights of custody – Consideration of the objections of the children – Where it is found the children’s objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes – Where the children’s views are enmeshed with the mother’s views – Where the Central Authority asserts the children’s degree of emotional maturity means it is not appropriate to take into account their views – Where it is found that it is appropriate to take into account the children’s views – Consideration of whether a return order would expose the children to a grave risk of physical or psychological harm or place them in an intolerable situation – Where the mother asserts the father has been physically and verbally abusive to herself and the children – Where the mother asserts she will not return to Croatia if the children are ordered to return – Where it is found that the mother’s allegations are exaggerated and there is no grave risk that the father will abuse the children if they return – Where the family consultant opines that the mother not returning to Croatia would constitute a grave psychological risk to the children – Where the mother’s evidence that she will not return to Croatia is not accepted – Where the children have expressed suicidal ideations – Where one of the children is found to be capable of devising and carrying out a plan to harm himself if an order is made that he return to Croatia – Where the possible outcome of that child attempting to harm himself is an unacceptable risk that can properly be described as “grave” – Where the conditions of grave risk are satisfied – Discussion of discretionary considerations – Refusal to make return order – Where the Application by the Central Authority is dismissed

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Director-General, Department of Families and RSP (2003) FLC 93-152
DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401
Garning & Department of Communities, Child Safety & Disability Services & Anor (Discharge application) [2012] FamCA 839
Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001
HZ v State Central Authority (2006) 35 FamLR 489
In re E (children) (abduction: custody appeal) [2011] 4 All ER 517
Re C (a minor) AM (Abduction) [1989] 1 FLR 403
Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145
Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 843
Soyza & Commissioner, Western Australia Police [2012] FCWA 28
State Central Authority & Papastavou [2008] FamCA 1120
W v W (Child Abduction: Acquiescence) [1993] 2 Fam Law L211
Wolford and Attorney-General’s Department (Cth) [2014] FamCAFC 197

APPLICANT: Department of Family and Community Services

RESPONDENT: Ms Viduka

FILE NUMBER: SYC 2170 of 2015

DATE DELIVERED: 4 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 - 24 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Barnett

SOLICITOR FOR THE APPLICANT: Department of Family and Community Services

COUNSEL FOR THE RESPONDENT: Ms Ward

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

Orders

1. All previous orders are discharged.

2. The application by the Secretary of the Department of Family and Community Services filed 9 April 2015 is dismissed.

3. The passports of B born … 2001 and C born … 2003 (“the children”) be returned to the mother.

4. The name of the mother Ms Viduka born … 1966 and the names of the children be removed from the watch list in force at all points of arrival and departure in the Commonwealth of Australia.

.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2170 of 2015

Department of Family and Community Services

Applicant

And

Ms Viduka

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. B born in 2001 (“B”) and C born in 2003 (“C”) (collectively “the children”) were wrongfully removed by their mother from Croatia on 18 October 2014.

2. The children are under the age of 16 years old, were habitually resident in Croatia at the time of their removal, and their father had and was exercising rights of custody in Croatia immediately before the children were removed. The removal was in breach of those rights.

3. By way of an application filed 9 April 2015, the Secretary, Department of Family and Community Services (“the Central Authority”) seeks the return of the two children to Croatia, under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Abduction Regulations”) as provided for in s 111B(1) Family Law Act 1975 (Cth) (“the Act”).

4. The mother asks the court to refuse to make a return order. The mother seeks to establish a ground for the refusal under both Regulation 16(3)(c) and 16(3)(b) of the Abduction Regulations and then asks the court to exercise the discretion not to make an order that the children return to Croatia.

DOCUMENTS RELIED UPON

1. Notwithstanding the summary nature of these proceedings, the mother and the Central Authority relied upon a volume of material which is detailed in Schedule 1. I have the advantage of a report prepared by a family consultant focusing on the objections made by each of the children to returning to Croatia. The mother also relied upon six unsworn statements by persons in Croatia which were tendered in evidence without objection (Exhibit 4).

2. The father, the mother, and the family consultant gave oral evidence during the hearing.

CREDIT

1. The father was not a particularly impressive witness. Although, as I discuss below, he was justified in concluding that the children had become enmeshed with their mother’s views of the parental conflict, he answered many questions by saying the children were simply “parroting” their mother’s views and perceptions. This led him to be reluctant or slow to make obvious concessions. For example, he was unable to concede that the mother was the primary caregiver for the children during the period of about seven months in 2013 and 2014 when he was away from the family home in City D because he was working in Country E. More generally he was unable to concede that the mother was the primary caregiver of the children when the family’s time in Croatia was looked at as a whole. I form the view that the father was not being frank about the amount of time he spent away from the family. Nor was he frank about his contribution to the parental conflict.

2. Although the mother had lived in Australia between the approximate ages of 24 and 40 years old, the mother understandably wished to give her evidence with the assistance of a Croatian interpreter (who impressed me with her competence). Occasionally the mother forgot that she required assistance and gave answers in English. The mother’s answers were coloured by her unquestionable desire for herself and the children to remain in Australia. For example, she had difficulty conceding that she had told her daughter that she would return to Croatia with her daughter if the court made an order for the daughter to return. Whilst the mother said that she would always put the children’s welfare above her own, she stated she would not return to Croatia even though it was her view if the children returned, it would place the children in an intolerable situation. For reasons set out below, I do not accept she was being truthful about saying she would not return with the children if they were ordered to do so.

3. I found fanciful the mother’s evidence about the security she put in place for her trip to Country E with the children to see the father in 2014. 

4. I approach the evidence of both the parents with caution. Where the evidence of the parent’s conflicts and it is necessary in the context of these summary proceedings to make some finding, I will look for other objective evidence or make a decision upon what version might be more inherently likely.

BACKGROUND

1. The mother was born in Croatia in 1966.

2. The father was born in Australia in 1970.

3. In 1990 the mother migrated to Australia from Croatia.

4. The parties first met in 1997 and re-connected in 1998. At that time the mother was managing a restaurant in Sydney.

5. The parties commenced to live together on 15 May 1998 and were married in 1999 in Sydney.

6. In December 1998 the parties purchased a property at Suburb F using their combined savings. The parties moved into that property in 1999.

7. B was born in 2001.

8. The father was unemployed in 2001. During this time the mother says the family relied on the maternal grandparents’ for financial support.

9. During May 2002 the parties and B travelled to Croatia to visit the maternal family. The mother and B stayed in Croatia until November 2002. Following their return, the father was again out of a job and the mother says that her aunt and uncle from Perth, and friends, gave her money to “survive”.

10. C was born in 2003. During the time the mother was in the hospital, B was cared for by a family friend.

11. In April 2005 the father accepted a job offer in Melbourne. In December 2005 the father lost his job with the employer in Melbourne.

12. In early 2006 the father went to Croatia for three weeks. During this trip he had a job interview. He resided with the maternal family who financially supported him during this time. On the father’s return to Australia, the parents decided to permanently relocate to Croatia with the children. The father obtained employment with G Ltd in Croatia.

13. On 11 March 2006 the family moved to Croatia. They initially lived in a house owned by the maternal grandfather in a small rural village. During this time the father was working away in City D in order to support the family. The mother and children remained in the home owned by the maternal grandfather until 15 March 2007. After this the parties rented an apartment in City D.

14. The father’s employment with G Ltd ended in June 2010 when the father lost his job. The father then obtained a role as project manager on a project at a golf club in City D. He says that the project fell through and the employment shortly thereafter ceased.

15. The mother obtained seasonal work in City D.

16. In 2011 the mother and children travelled to Australia for three months. They stayed with family and friends for five weeks and also spent five weeks residing in the Suburb F property. The children were enrolled in school at Suburb F during this time.

17. The mother alleges in 2011 the father was dealing in drugs. The father was not asked any questions about that issue in cross examination. I make no finding about that allegation.

18. The mother alleges that in 2011 she discovered the father was having an extra-marital relationship and the sexual relationship between the parties ceased at that time. The father denies this. I find the mother’s evidence about her sexual relationship with the father unlikely given the content of her written communication with him in August 2014 (referred to in more detail below).

19. From 19 November 2012 to 15 April 2013 the father was employed in Country E. During this time the father resided in Country E and according to the mother, came home every second or third weekend. The father says that he came home every weekend. The truth is probably somewhere in the middle of the two versions. The mother says when he came home he was always busy and had no time for the children. I do not accept the mother’s evidence about that.

20. The father lost his job on 15 April 2013 and returned home to City D. The father was present in the home after that time. I am confident however that the mother remained the primary caregiver.

21. On or about 30 September 2013 C found text messages on the father’s phone from another woman.

22. In or around the end of May 2014 the father started working again in Country E.

23. In May 2014 the father signed a new employment contract for a job in the Middle East. The contract is Annexure B to the mother’s affidavit of 26 May 2015. During March 2014 colleagues from G Ltd contact the father to see if he was interested in working in the Middle East. The father had a skype interview on 28 April 2014 and signed a contract for employment on 30 May 2014. He says that he had discussed with the mother the contract and they both decided not to ultimately take the job so as not to uproot the children from their school, friends and cousins. The father’s oral evidence was to the effect that he signed the agreement as an option, there would have been a probation period and then his intention would be to have moved the family to be with him in the Middle East. If the contract however was signed in May 2014, on his evidence, he was already living separately from the mother at that time. The father however said that he signed the contract on an “unaccompanied basis” because he was going to wait for the probation to end before having the family move out to be with him. He also said that the other provisions of the contract provided for family. The mother says she only discovered the contract in August 2014 and was never made aware of it previously.

24. There is an issue between the parties as to the date of separation. The mother alleges that after the she confronted the father about the text message that C had found in September 2013, the father ceased to live with the mother in City D and moved to accommodation provided by the maternal grandfather in Country H. The father says the separation did not occur until June 2014. Whilst it is not necessary in the context of these proceedings to resolve that factual dispute, the evidence as it has been presented to me would point in the direction of the father’s version being accurate.

25. On the one hand there is an unverified and untested statement made by Mr I (statement 5 in Exhibit 4) that by the end of the summer of 2013 the father had come to J Town, Country H and stayed there until the beginning of the summer of 2014 when he left to go to work in Country E and the father’s evidence about his signing a contract of employment in May 2013 to work in the Middle East which was less than convincing.

26. On the other hand the most weighty piece of evidence is an electronic communication sent on 25 August 2014 (item 16 of page 5 at Annexure A to the father’s affidavit filed 1 July 2015) where the mother makes it clear that the father has been away for two and a half months. In the context of pleading with him to reconsider the written request he made on that day for a divorce, the mother says, “I gave you the time to do what you have to do”. That statement by the mother is corroborative of a separation of about two and a half months as at 25 August 2014 which is consistent with the father’s assertion that the date of separation was June 2014.

27. The father did not drive from Country E to City D on 21 August 2014 to see B for his birthday.

28. On 25 August 2014 the father sent a text message to the mother requesting a divorce. A large volume of SMS and Viber messages were then sent back and forth between the parties, many of which were subject to questions during oral evidence.

29. On 27 August 2014 the father came to City D and there was an argument between the parents in front of the children.

30. On 8 September 2014 the children and mother travelled to see the father in Country E. The mother says she pleaded with the children to see their father. 

31. The father says he presented to the mother a joint application for divorce and draft joint parenting plan on or about 12 or 13 September 2014.

32. On 18 September 2014 the mother reported to the social department in Croatia a complaint about domestic violence between her and the father. A meeting was set down for 14 October 2014.

33. The father filed a Request for Carrying out Procedure of Compulsory Consultation Before Divorce on 16 September 2014 in the Croatian court, which included a draft joint parenting plan.

34. On or around 9 October 2014 the mother received a letter from the social department in City D to attend a meeting on that day.

35. The mother was scheduled to attend a meeting about domestic violence with the social department in Croatia on 14 October 2014 but says she was unable to attend because C had to go to an orthodontist.

36. On 13 October 2014 the mother purchased the airplane tickets to return to Australia. The mother’s father loaned her $5,000 for the tickets.

37. On 18 October 2014 the mother, without the father’s knowledge or consent, returned to Australia with the children. The mother and children arrived in Australia on 20 October 2014.

38. On 5 November 2014 the mother’s Australian solicitors served an Application for Divorce on the father by email.

39. The children have had some telephone communication with their father in January 2015. There was an unsatisfactory meeting between the children and the father at McDonalds on Monday 20 July 2015. The meeting lasted for about half an hour whereas the father had hoped it would be of longer duration.

THE PROVISION OF THE ABDUCTION REGULATIONS

1. There is no issue in this case that the prerequisites for the court making a mandatory return order as set out in Regulation 16(1) of the Abduction Regulations have been satisfied.

2. The mother asserts that the requirements of Regulation 16(3)(c) and Regulation 16(3)(b) of the Abduction Regulations are satisfied and asks the court to exercise a discretion to refuse to make a return order.

3. Regulation 16(3)(b) and (c) of the Abduction Regulations are in the following terms:

   (3)A court may refuse to make an order [a return order] .... 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

   (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

OBJECTIONS OF THE CHILDREN

1. It is convenient to first discuss the application of Regulation 16(3)(c) of the Abduction Regulations as that discussion, in this case, is also relevant to the subsequent consideration of Regulation 16(3)(b) of the Abduction Regulations.

2. As will become clear, there is no question in this case that both children object to being returned to Croatia and that those objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

3. The children are almost 14 and 12 and a half years of age. They are of a chronological age for their views to ordinarily be taken into account. However, under the Abduction Regulations, in order for their views to be taken into account, those views need to be expressed with a degree of maturity that allows that to happen. The Central Authority argues that, in this case, the children’s expressed objections should not be taken into account given that the children’s views are enmeshed with their mother’s views and their objections are emotionally immature. As set out above, the father asserts that the children are “parroting” the mother’s views.

4. B left Australia when he was 5 years of age. When he saw a psychologist in Croatia in 2010 (when he was aged nine years old), that psychologist (Professor K) recorded that B told him that his life in Australia was nicer and happier.

1. During the interviews with the family consultant B indicated a desire to stay in Australia. He said “this is my country, I was born here [meaning Australia]”. B said that he has friends in Australia and expressed the opinion that he has “nothing in Croatia”. He does miss his maternal grandfather though. B said his school is “really good, better than Croatia” and that he has made lots of friends at this school.

2. The family consultant discussed with B the possibility that the court might determine he has to return to Croatia to decide parenting arrangements there. B was observed by the family consultant to become particularly agitated and adamant that this not occur. He told the family consultant “I want to stay here, the Court has to be here” and “If I go back to Croatia, I have a harbour [meaning Sydney Harbour] that I could jump in, I would rather jump onto this Harbour bridge and kill myself rather than go back to Croatia”. At another point during the interview, B indicated he would kill himself if required to return to Croatia and said “I am not going to exist anymore”. When the family consultant attempted to further discuss B’s suicidal thoughts he said these were his own “private” business, and did not want to talk about such feelings.

3. B expressed the view that his father “is always lying”, and that he had “just scary memories” of his father. He said that he no longer wants his father in his life and spoke negatively about the current telephone communication. He said his father is always laughing at him during the calls and telling him he is going back to Croatia. B said that in Croatia his father was never interested in him, his activities or school work. B indicated an awareness that his father has a “lady friend”.

4. B indicated to the family consultant that he is afraid of his father and presented the picture of his father as being an aggressive and physically abusive person. B said the father kicked him in the bum with his leg “hundreds of times” so B would fly across the house. He also said that the father stuck his head in a plate causing him to have ketchup on his face if he was full and did not eat his food. The father would stick his middle finger up at B, and one occasion the father got so angry he took a big kitchen knife and cut up B’s Batman suit. Also, B indicated that when he was in hospital in Croatia, his father visited him only once and threw a pizza at a wall because it was the wrong pizza. B told the family consultant that his father punched him on the arm, in the stomach and slapped him on the head.

5. B raised with the family consultant the possibility that his father was on drugs. He said “my father needs to be tested, he is a mental case, he is on drugs”.

6. C also advised the family consultant that she does not want to live with her father and provided numerous reasons for this without prompting. Her complaints included her father beating her with a bamboo stick because she had broken a towel holder in the bathroom, her father showing her the middle finger, always yelling and throwing things such as food and furniture, yelling and calling her mother names such as “whore, slut and cow and more than that”, grabbing her mother’s shoulder and “shaking her and telling her bad things”, always kicking B in the back and sometimes C in the back, and sticking B’s and her head in a plate when they were full and did not eat. C said she and B were afraid of her father and would hide under the bed during incidents of abusive behaviour. C also said the windows were kept closed in the home in Croatia so neighbours could not hear the father’s allegedly abusive behaviour.

7. C held the same view as B that the father was not interested and did not care about things like school or activities. C also was aware the father “has got other women” because she had seen her father practicing “lovers words on the internet”.

8. C started to cry when discussing the possibility of being required to return to Croatia. She told the family consultant “if I go there and live there, I will kill myself, I don’t want to live with him”. She told the family consultant she would run away if required to return to Croatia and live with her father. However, she said she would not run away if she were living with her mother in Croatia.

9. C expressed the view that she does not want to live in Croatia because “it is not [her] country, [she has] nothing there”, and “it doesn’t feel like [her] home”. C said that in Croatia she has nothing and that she has bad memories of Croatia. C indicated there was nothing about Croatia which she missed and spoke negatively about telephone communication with her father. C told the family consultant “Dad doesn’t really want us to come back, he will sell us for one cent”.

10. B held the view the mother would not return to Croatia if the children were forced to return. C however said her mother has told her that although her mother does not want to live in Croatia, she will return if the children are required to return there.

11. The family consultant opines that the children were both strident and firm in their views and each gave lengthy, and possibly plausible, accounts of the reasons for their objection. Those objections are inextricably linked to the serious allegations that they each made about their father’s ill treatment of them and their mother, and the prospect of having to live with their father. The family consultant says that if there is substance to the children’s allegations, the strength with which each of them has expressed their objection would be understandable. However, if there is no substance to the allegations, then their objection to a return to Croatia would need to be viewed within the context of them being unhealthily aligned with their mother, or of them being extremely worried about being separated from her.

12. As indicated above, B reiterated on a number of occasions that he would kill himself rather than return to Croatia. The family consultant is concerned about the fact B has given some thought to how he might go about doing this. C also commented she would kill herself but there were no indications that she had thought through how to do that. C also indicated she would run away if required to live with her father in Croatia. The family consultant opined that comments by children of these children’s ages are of considerable concern.

13. The family consultant records that given the complex dynamics in this family, and the psychologically impossible situation in which the children have currently been placed, it is difficult to comment on whether or not the children are of sufficient maturity, particularly emotional maturity, to fully appreciate and consider the ramifications, particularly in the long term, of the decisions that need to be made around whether they should be returned to Croatia.

14. The family consultant did not express a concluded opinion in her report as to whether or not the children were of sufficient maturity for their views to be taken into account.

15. The mother says that as a result of difficulties the children had following telephone conversations with their father after the children had come to Australia, she saw a general practitioner and obtained a referral for the children to see a psychologist, Dr L. Dr L has provided evidence by way of two reports, the first dated 22 May 2015 and the second dated 25 June 2015. At the time of writing his first report, he had seen the children on eight occasions. He initially took detailed history from the mother which contains similar details to that found in her affidavits. The mother made sure in her provision of history to Dr L that he was aware that in November 2005 the father had cut up B’s Batman suit with a large kitchen knife in front of the children. This fact was repeated by B to the family consultant. When interviewed alone, the children confirmed to the psychologist that they had a strained relationship with their father and were anxious about disruptions to their life in Australia. He recorded that B had developed a nervous tick and nightmares as a result of the stress. He said:

    The children expressed a strong desire to continue with their education and life in Sydney. They hoped that their father would not repeatedly tell them that they had to return to Croatia, or laugh at them or tell them that the police were following them. [B] and [C] wish that their father would stop accusing them of being coached by their mother.

    [C] anticipated that if she returned to live with the father, ‘he would just yell at us’ and she would ‘run away’. [B] recalled that much of their past interaction with their father consisted of the children serving him. [B] added that their father rarely participated in any activities, such as parent/teacher nights, with them. He recalled that his father did not accompany him to medical or dental appointments and took little interest in his school and sport activities.

16. Dr L concludes by recording that the mother and children gave a psychologically plausible account of their circumstances. He opined that the children freely and openly expressed their preference to remain in Australia. He recorded that they expressed the same preferences whether their mother was present in the room or not. He said that the children were very anxious about the prospect of having to return to Croatia and their relationship with their father was strained.

17. He ultimately concluded that if the children were returned, “their psychological health would deteriorate markedly”.

18. Dr L’s second report was written after two more sessions with the children. He recorded the children’s enthusiasm about transferring from the intensive English language school to a main stream school and recorded that the children continued to exhibit distress when discussing concerns about leaving their comfortable life in Australia and the prospect of returning to Croatia against their will. He states “They told me that they still dreaded talking to their father because he made comments that made them upset”. Again, Dr L concluded, “Their psychological health would most likely deteriorate markedly if they returned to Croatia, particularly if they had to return without their mother”.

19. Dr L does not record any expression of suicidal ideation by either child in the ten interviews he has had with them.

20. The Central Authority relies upon significant evidence pointing to the fact that the mother has inappropriately and unhealthily involved the children in the parental conflict and that some of the statements made by the children are discordant with other objective evidence, particularly as to the life the children enjoyed in Croatia.

21. The text and Viber messages that the mother has sent to the father make it clear that she had no insight as to the inappropriateness of sharing with the children messages that had passed between the father and her which contained content to which the children should not have been exposed. Text number 57 on page 15 of annexure A to the father’s affidavit of 19 June 2015 makes it clear that the mother has “shown the children your messages”. I infer that the children saw the whole SMS chain including highly emotive messages sent by the mother to the father. The family consultant agreed that doing this was an example of enmeshment and failing to protect the children from adult concerns. The mother invited the father to come to the residence to discuss openly with the children the conversation that she was having with the father about the divorce and used the word “we” instead of “I” when writing to the father about intimate adult matters.

22. The family consultant said that it was likely that the children were caught in a conflict of loyalties. It is understandable that they felt loyalty to a parent who was most distressed and it is likely the children had become unnecessarily and overly burdened by issues in the intimate adult parent relationship.

23. In that context it would not be surprising that in order for the children to survive; they exaggerated stories and even became histrionic. That does not mean that there may not be some element of truth in what they were saying, but it is likely that what they were saying is unreliable.

24. There is some objective evidence that that is so. The children’s description of their schooling in Croatia is inconsistent with the independent evidence from the school about their performance and attitudes at their school in Croatia. I find that B’s expression of a memory to the family consultant that his father cut his Batman suit in 2005 was consistent with the children living with the mother who is now driven to relive any negative memory about the father that she can. The mother in her affidavit records that three weeks before the wedding in 1999 she and the father had a big argument because she found him to be “quite controlling and a very jealous person”. She also remembers the father having an altercation with a doctor at the time of B’s birth in 2001. The mother’s litany of complaints against the father is not consistent with the messages that she sent him in August 2014 in which she pleaded for his return to her and repeatedly expressed her love for the father. In one text (text 25 of Annexure A to the father’s affidavit filed 1 July 2015), she goes so far as to say that she would not allow the divorce to happen “even if it costed [sic] me my life”.

25. Counsel for the mother suggests that the children’s objections are solidly based in fact and that the court would find that the father was an absent parent who was physically and emotionally abusive towards the mother and the children in Croatia.

26. The father worked away from the home a lot in order to feed the family. The children have experienced the father as being absent for significant periods.

27. In 2010 the mother made a contemporaneous statement to Professor K that the father “spends little time with the family, due to the nature of his work, and most of the parenting is done by the mother”. Notwithstanding the fact that the mother was seeing the psychologist for problems that B was experiencing at the age of nine years old, she does not provide the psychologist with any information about family violence.

28. I am able to accept that there were occasions in the family household where there was screaming and there were some arguments where the mother was reduced to tears. The father in cross examination was insensitive as to the type of effect that those types of arguments could have on the children. There is some evidence from the mother’s brother that on one occasion he found the mother and the children locked in a bedroom (he was not however able to give any indication as to when in the seven year period that happened), although in 2014 he tried to get the father to return to his sister.

29. Depositions from two neighbours (Ms M and Ms N) corroborate that they heard from neighbouring apartments the raised voice of the father in English addressing both the mother and the children with Ms N saying that this happened at various times of the day and giving a specific example in the period leading up to B’s first communion. Counsel for the Central Authority highlights correctly that the weight I place on Ms N’s evidence is somewhat lessened by some of the obviously exaggerated language (the father shutting an entrance door to the apartment block when he came home late at night “which were like an earthquake”). Although counsel for the mother referred to the statement by Ms O as evidencing the father’s behaviour when C had been hospitalised (yelling and shouting, blaming the mother for C’s injuries and using improper words) as being evidence as to how C was affected by her father’s behaviour, in fact, what C remembers about that hospitalisation in 2011 (when she was eight years old) was the lateness in the father getting there from overseas. I have no evidence that C remembers anything about the father behaving badly when she was in hospital.

30. There are no allegations of serious injury being caused by the father to either the mother or the children and the mother does not allege there are any. She does however allege chronic pushing and kicking of B on the backside.

31. There is no doubt that the children observed parental conflict from time to time in the household. I do not accept the father’s evidence that he did not physically discipline the children at times. I do find however that the children have exaggerated the father’s behaviour.

32. The voluminous evidence I have from the SMS and Viber messages between the parties however as at August 2014 evidence the fact that the mother was still deeply in love with the father and that she continued to want him to be a father to the children within the family unit. I do not accept that the mother’s descriptions of the father’s behaviour which have largely been adopted by the children, represent an accurate history of what happened in the household over an eight year period. The mother attempted to explain away what she had written in August 2014 by saying that she was motivated by feelings of religious and cultural shame around a divorce and a feeling that she would not be able to look into her father’s eyes. Whilst I do not discount that those feelings were present, they do not explain the intensity of the mother’s writings to the father and the submission ignores the amount of enmeshment those messages evidence of the children in the parental conflict.

33. The mother never made any complaints to the police nor did any of the neighbours make any complaints to police about the father’s behaviour. She never sought a protection order prior to the father indicating to her that he wished to have a divorce, either on her own behalf or on behalf of the children. The only time she contacted an authority was after August 2014 when the father had made it clear that he wished to end the marriage.

34. The mother now asserts that the father on a number of occasions threatened her life. I do not accept that evidence. The mother gave some fanciful evidence that after she says the father had threatened her life, she drove from her home to where the father was working in Country E with only herself and the children in the car for the purposes of putting “a smile on the face of the children”. I do not accept what I considered to be an opportunistic statement by the mother in the witness box that she had another carload of people following behind her for protection. The mother’s assertion that she feared the father was not consistent with the threats that she freely made against the father in text messages that she would do things that would expose the father to criminal prosecutions and losing his job.

35. The children are very protective of the mother. It is likely that the children know the mother is now saying that she believes that she might be arrested and imprisoned if she returns to Croatia.

36. Both B and C are intellectually mature children. They were both performing well at their school in Croatia and have satisfactorily transitioned into mainstream schooling in Australia through intensive English language school, notwithstanding that they had Croatian as their first language since they were very young.

37. There is no question that the children’s expressed objections are genuinely held.

38. Because of the enmeshment with their mother’s views, the children’s emotional maturity has been compromised. The intensity with which the children are expressing their views is a function of that emotional immaturity. The mother has involved the children in the adult conflict and before coming to Australia, used the children in an attempt to get the father to come back to her. The children are entrenched on the mother’s side of the adult conflict.

39. The question arises as to whether it is appropriate to take into account the genuine objections of an intellectually mature boy who is almost 14 years old and an intellectually mature girl who is aged 12 and a half years old when their emotional maturity has been significantly compromised.

1. At their ages, I reluctantly conclude it would be unrealistic not to do so. Accordingly, I find that the condition in Regulation 16(3)(c)(iii) of the Abduction Regulations is satisfied (and consequently the conditions of Regulation 16(3)(c) are satisfied) and I have a discretion to refuse to make a return order on that basis.

GRAVE RISK

1. The plurality in DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401 (Gaudron, Gummow and Hayne JJ) said at [41] to [45]:

   [41] In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a “strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed”. Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. 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)

2. In Director-General, Department of Families and RSP (2003) FLC 93-152, the Full Court considered whether or not these statements by the High Court altered what a previous Full Court had said about the interpretation of Regulation 16(3)(b) of the Abduction Regulations in Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001 at 77,159 which was in the following terms:

   31. The need to consider .... the following comments made by the Full Court in Gsponer v Director-General, Department of Community Services (VIC)(1989) FLC 92-001 at 77,159:

   In our view the three categories are to be read separately and to that extent we agree with the submissions of senior counsel for the wife. However it needs to be emphasised that there must be a “grave risk” of the occurrence of one or more of such events. Further, it is impossible to ignore the existence of the words “or otherwise”. The consequence of those words is to link the quality which each of the first two categories must have to the emphatic words which describe the third category (“an intolerable situation”). That is, it is not the grave risk of any physical or psychological harm which would satisfy the first two aspects of this subparagraph. The physical or psychological harm in question must be of a substantial or weighty kind.

   This accords with the views of the Court of Appeal in Re A (supra), where at p. 372, Nourse L.J. said this:

   “I agree with Mr Singer, who appears for the father, that not only must the risk be a weighty one, but it must be one of substantial, and not trivial, psychological harm. That, as it seems to me is the effect of the words 'or otherwise place the child in an intolerable situation'. It is unnecessary to speculate whether the ejusdem generis rule ought to be applied to the wording of an international convention having the force of law in this country. Assuming that it ought not, I nevertheless think that the force of those strong words cannot be ignored in deciding the degree of psychological harm which is in view.”

3. The Full Court in RSP concluded:

   34. We consider that little is to be gained by endeavouring to establish whether statements concerning the application of reg 16(3)(b) by the Full Court of this Court which pre-date DP and JLM continue to have validity. In our opinion, the necessary guidance in relation to the application of reg 16(3)(b) is to be found in the paragraphs just quoted from DP and JLM.  [namely [41] – [45]

4. Counsel for the mother referred to a recent Full Court decision of Wolford and Attorney-General’s Department (Cth) [2014] FamCAFC 197 in which the Full Court discussed with apparent approval the trial judge’s reliance upon In re E (children) (abduction: custody appeal) [2011] 4 All ER 517, a decision of the Supreme Court of the United Kingdom in 2011. The Full court said:

   57. Reliant on In Re E at [33] the primary judge correctly proceeded on the basis that the predicted risk “… must have reached such a level of seriousness as to be characterised as ‘grave,’” and, from the same passage that although the word “grave” characterises the risk rather than the harm, “there is in ordinary language a link between the two.”   It is useful that we now set out in full that paragraph and the following paragraph of In Re E:

   [33] Second, the risk to the child must be 'grave'. It is not enough, as it is in other contexts such as asylum, that the risk be 'real'. It must have reached such a level of seriousness as to be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as 'grave' while a higher level of risk might be required for other less serious forms of harm.

   [34] Third, the words 'physical or psychological harm' are not qualified. However, they do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation' (our emphasis). As was said in Re D [2007] 1 All ER 783 at [52], ' "Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate" '. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. [Mr R] accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.

5. In oral evidence, the family consultant said that if the children were enmeshed psychologically with their mother, and I have found that they are, then they are functioning at a most traumatic level of survival. The children currently hold the view that their father is an abusive parent. The family consultant opined the situation has been made impossible for the children by the mother’s current statement that she does not intend to go back, even if a return order is made.

6. In relation to the risk, the family consultant opined that if the allegations the mother made against the father were correct, then there is potentially a grave risk if they are returning to live with him and the mother is not in Croatia that they would be returning to live with an abusive parent and there is obviously a psychological risk to them as a consequence of that. She opined that that would be a grave risk. As discussed above, it is my view that the allegations that the mother has made against the father when taken as a whole are exaggerated and consequently there is no grave risk that if the children are returned to the father he will abuse them.

7. The second grave risk of psychological harm which was identified by the family consultant was also predicated on the mother not returning to Croatia. The family consultant said that if the children are separated from the person who had been their primary carer, the children would likely form the view that that parent had abandoned them to an “abusive” parent in another country. The family consultant said that in her opinion that would also constitute a grave psychological risk to the children.

8. The issue arises as to how I treat the mother’s sworn evidence that she has now resolved not to return to Croatia even if an order is made for the children to return.

9. At [150] of the mother’s affidavit of 26 May 2015, the mother says:

   I do not know at the moment if the children are sent back to Croatia if I will return to live there.

10. As indicated above, on the day the children were interviewed by the family consultant, B seemed clear that his mother would not return to Croatia. B said “my Mum will not go back to Croatia she will not go back, Mum said she didn’t want to go, if I go back she won’t go. I want to stay here”.

11. On the other hand, at [24] of the family consultant’s report, she records:

    24. Contrary to [B’s] views, [C] said that her mother has told her that although her mother does not want to live in Croatia she [her mother] will also return to Croatia if [B] and [C] are required to return home.

12. In the mother’s case outline prepared the day before the hearing, her position, as stated at [150] of her affidavit of 26 May 2015 (and set out above), was repeated.

13. However, when asked at the commencement of the trial, counsel for the mother indicated that her intention now was not to return to Croatia even if a return order was made. That position was confirmed by her in cross examination. The mother was asked when it was that she had resolved in her own mind not to go back if the children were sent back. She was unable to satisfactorily respond to that question. The mother was asked whether or not, between when she received the Central Authority’s application for the return order (after 9 April 2015) and when C spoke to the family consultant (26 May 2015), she had told C that she would return with C if a return order was made. Again, her answers to that question were very unsatisfactory.

14. The mother now gives a number of reasons why she had decided not to return.

15. The first was her fear of possible criminal charges that may be laid against her. The question was raised during submissions as to whether or not the mother should be able to rely upon a lawful consequence of her wrongdoing as part of her defence to a return order.

16. During the hearing there was reference made to the well-known passage by Butler-Sloss LJ in Re C (a minor) AM (Abduction) [1989] 1 FLR 403 at 410:

    The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him...Is a parent to create the psychological situation, and then rely upon it?  If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return.  It would drive a coach and four through the Convention, at least in respect of applications relating to young children.  I, for my part, cannot believe that this is in the interests of international relations.  Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent. …

    This passage which was approved by Gleeson CJ in DP v Commonwealth Central Authority; JLM v Director-General, NSW, Department of Community Services at paragraph 20.

17. For a general discussion as to why the mother should not be able to rely upon the “grave risk of harm” exception when the risk arises because of the mother’s refusal to accompany the children home (see Thackray J in Soyza & Commissioner, Western Australia Police [2012] FCWA 28 at [150] to [159] and Forrest J in Garning & Department of Communities, Child Safety & Disability Services & Anor (Discharge application) [2012] FamCA 839 at [53] to [55]).

18. Counsel for the Central Authority made the following submission:

    Furthermore there is a long list of authorities which say in situations where the parent has created a situation, broken law in country habitual residence, can’t rely on fact they might be prosecuted. That concern must be wiped away.

19. Counsel for the mother relies on the case of State Central Authority & Papastavou [2008] FamCA 1120 at [108]– [122]. In that case two English cases were referred to:

    Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 843

    Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145

20. I do not read those authorities to support the notion that the mother’s possible incarceration is to be ignored as a consideration but given the findings I make shortly about the likelihood of prosecution, I do not need to further discuss these authorities.

21. The mother’s lawyer in Croatia, Mr P, gives evidence that the father initiated criminal proceedings against the mother and her brother for allegedly stealing property worth over EUR$100,000. He says that after a police investigation on 2 June 2015 the State Prosecutor Office dismissed all allegations of the father as unfounded and instructed him to undertake civil action if necessary. The mother’s Croatian lawyer says that her brother would have the right to sue the father criminally for false accusations (which he says may lead to a fine or imprisonment for one to three years).

22. The mother’s Croatian lawyer also indicates that the police commenced an investigation on 30 January 2015 and questioned the mother about the circumstances of the allegations which the solicitor for the mother asserts was brought against her by the father under “Article 174, paragraph 3 of the Criminal Code (children abduction)”. The mother’s lawyer says that that offence can be punished by imprisonment for one to ten years.

23. Annexure E to the mother’s affidavit is a letter from the Ministry of Internal Affairs, of the Police Department of City D. The letter indicates that the mother had been interviewed on 30 January 2015. It also advised the mother’s lawyers that they could gain access to the mother’s file and get any further necessary information. Between May and the hearing the mother did not seek to further access her file.

24. The mother did not give any evidence in her affidavit about having been interviewed by the police about child abduction on 30 January 2015. It is unclear to me as to how this happened given she was in Australia at the time. In oral evidence the mother said that she was warned by her Croatian solicitor about the investigation in January 2015.

25. Exhibit 3 is a certificate from the Municipal Court in City D tendered by the Central Authority indicating that there are no criminal proceedings in the Republic of Croatia against the mother. Counsel for the mother submits that given that the court has no evidence as to how long it takes for the prosecution office to investigate a complaint and then start proceedings, the court is unable to assess whether or not the mother is still at risk if she returns to Croatia. Given that the mother has not sought to access her file in Croatia, I can make no finding that the mother is at risk of prosecution on her return.

26. The second reason advanced by the mother for not wishing to return is the history of family violence she says was perpetrated against her by the father. I have discussed above why I do not accept most of what the mother has said about the father’s aggression. I do accept there was a high conflict relationship. The objective evidence demonstrates that the mother was perfectively capable of speaking aggressively and in a threatening manner to the father.

27. The mother also asserts that she does not have accommodation in Croatia. That assertion is met by the father indicating he would be prepared to continue to maintain the property in which the family lived for seven years for the mother and the children until court proceedings were resolved in Croatia. The mother complains that the property she lived in for seven years was awful and the children’s bedrooms were underground with no natural light. The father says he would consider obtaining alternate accommodation if it was made a condition of a return order. If the mother goes back to Croatia, the Suburb F property will produce rent and the mother can make an application to this court for support from that rent. There is some evidence that the mother has in recent years had casual (albeit seasonal) work in Croatia. The mother has over a significant period of time, had the support of a close network of relatives and friends in Croatia. The mother has been able to fund legal representation in these proceedings. The mother’s assertions about a lack of accommodation in Croatia are not sustainable.

28. I conclude the mother has the ability to conduct and sustain litigation in Croatia and to pay lawyers to assist her in dealing with any court proceedings in Croatia, including applying for appropriate protective orders in the Croatian court. The mother is already legally represented in Croatia.

29. The mother gave evidence that she would always place the children’s welfare above her own.

30. Taking all these matters into account, I am unable to accept the mother’s sworn evidence that if a return order is made she will choose to let the children go to Croatia without her.

31. When asked whether or not it would eliminate a grave risk, the family consultant said that the mother’s return with the children definitely reduced the risk. I find that is it is more probable than not that the mother will travel back with the children, consequently the risk of psychological harm arising from the children feeling they have been abandoned by a mother who remains in Australia is not a grave risk.

32. What I have discussed so far is not however a complete answer as to whether or not Regulation 16(3)(b) is satisfied. The family consultant remained concerned, as am I, about B’s suicidal ideation. The family consultant could not exclude B’s risk of self-harm. He expressed very strong and adamant feelings to the family consultant about self-harm if a return order was made. When the family consultant attempted to talk to him about what he had said he closed off and would not talk about it. The family consultant could not exclude what B might do if he was placed in a situation that he found intolerable. B is intellectually capable, at his age, of devising and carrying out a plan to harm himself. His enmeshment with his mother’s views and his emotional immaturity mean that there is an unacceptable risk that he might do something dramatic without any proper thought. Given the severity of the possible outcome of him attempting to harm himself, that unacceptable risk can properly be described as “grave”. Accordingly, in relation to B, I find that the conditions of Regulation 16(3)(b) are satisfied.

1. The family consultant did not have the same concerns about C’s statement that she would kill herself. I accept currently there is no unacceptable risk that she might do so. Her threat to abscond when she got back to Croatia is also met by the finding it is probable the mother would return with C. I find there is no grave risk that a return order would expose C to physical or psychological harm or otherwise place her in an intolerable situation.

EXERCISE OF DISCRETION

1. Having found that there is a ground established for both children under Regulation 16(3)(c) and in relation to B under Regulation 16(3)(b), I have a discretion to refuse to make a return order.

2. The Abduction Regulations offer no express guidance as to how I am to exercise my discretion.

3. In HZ v State Central Authority (2006) 35 FamLR 489, the Full Court endorsed a list of considerations as originally suggested by Waite J in W v W (Child Abduction: Acquiescence) [1993] 2 Fam Law L211. I consider each of those headings:

The comparative stability of the forum to determine the child’s future in the substantive proceedings

1. The father has commenced parenting proceedings in Croatia. Both parents have engaged lawyers in Croatia. I have no evidence that would indicate the likely outcome of those proceedings in Croatia. I have evidence that there is a system of family law in the Republic of Croatia which regulates, by statute, the rights of the child and the legal relationship between the parent and the child (Article 85-126). The statute defines the concept of parental care with reference to parental responsibilities, duties and rights in a way which seems similar to the definition in s 4 of the Act of major long term issues. The Croatian statute provides that parents have the right and duty to exercise parental care equally, jointly and amicably. When parents do not live together permanently, they are obliged to elaborate a plan on joint parenting in order to exercise parental care. If the parents cannot agree on a decision which is important for the child, the court may do so. Article 85, para 2 of the statute, provides that if a child lives with a parent separated from the other parent, the child has a right to meet and associate with the other parent. Article 100 empowers the court to decide which parent a child will live with and the manner and time of contact with the other parent (see generally the affidavit of Ms Q, attorney in City D, pages 111 to 116 attached to the Central Authority’s application filed 9 April 2015).

The likely outcome (in whichever forum) of the substantive proceedings

1. There is nothing that would suggest that parenting proceedings heard in Croatia would lead to a worse outcome for the children than a decision made in parenting proceedings in this court.

The consequences of the acquiescence

1. Not applicable.

The situation which would await the absconding parent and the child if compelled to return

1. I have discussed above the mother’s fears that she might be incarcerated because she abducted the children and factually I am unable to find that that is a concern.

2. I have already made findings above in relation to what awaits the mother and the children if a return order is made.

The anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount)

1. The family consultant opined that the children would have difficulties handling a returning to Croatia unless both parents easily handled the situation sensitively.

2. The father’s lack of sensitivity to the difficult position the children are in leaves me with little confidence that he would approach their plight in any delicate way. He had no insight into the likely drama that will be involved in getting the children, and in particular B, onto a plane.

3. Whilst the family consultant opined that the risk to the children would not be grave if their mother returned with them, a return order is not without risk. As I have said, the children are intelligent and have expressed clearly their objections to a return order and their views as to where they wish to live in the future. When exercising my discretion, some considerable weight needs to be placed upon their expressed views, notwithstanding the impairment that they may suffer as a result of being enmeshed with their mother’s views of the father.

4. There is a real risk that given B’s reaction to the family consultant when the topic was raised by her, that he will react badly to being told that a return order has been made. At his age there will be logistical difficulties in terms of transportation which are not ones that the authorities are unable to handle, but ones which can be anticipated to have a significant emotional effect on B. Most importantly, I am mindful of the grave risk that B’s expressed suicidal ideation poses.

5. I have considered whether or not imposing conditions requiring B to have psychological assistance prior to his removal but I have no evidence that such assistance would be either timely or effective. I have no confidence that any condition I could impose would be sufficient to ameliorate the risk to B.

6. Given the closeness in age of the children, if I do not make a return order in relation to B, it would not be in C’s best interest to make an order she return without her brother. Splitting the children is likely to cause them both emotional harm.

7. In the end, with some reluctance, I conclude that the anticipated emotional effect on the children of an immediate return order is of such significance in this case that it becomes decisive.

The extent to which the purpose of the underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused

1. Australia seeks advantage from the Hague Abduction Convention. The Convention aims to achieve a balance between its core aim of creating a summary process to secure the return of children to their place of habitual residence if they have been abducted from that place while at the same time allowing exceptions and if an exception is established, the consideration of best interest principles. In this case two of the exceptions have been established.

CONCLUSION

1. Taking into account discretionary considerations, I find in this case I should refuse to make a return order. I will discharge interim orders which retain passports and place the children on the airport watch list and will make consequential orders returning the passports to the mother.

I certify that the preceding one hundred & forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 4 August 2015.

Associate: 

Date:  4 August 2015

SCHEDULE 1

The Central Authority

1. Hague Convention Report dated 22 June 2015;

2. Application by the Central Authority filed 9 April 2015;

3. Affidavit of the father filed 1 July 2015;

4. Affidavit of the father filed 22 May 2015.

The respondent mother

1. Form 2A filed by the mother 26 May 2015;

2. Affidavit of the mother filed 26 May 2015;

3. Affidavit of the mother filed 24 June 2015;

4. Affidavit of the mother filed 15 July 2015;

5. Affidavit of the mother’s brother filed 24 June 2015;

6. Affidavit of the mother’s Croatian solicitor filed 15 July 2015;

7. Affidavit of Prof K (Croatian psychiatrist) filed 15 July 2015;

8. Affidavit of Dr L filed 25 June 2015;

9. Affidavit of Dr L filed 25 May 2015

10. Unsworn statements contained in Exhibit 4:

    a.Ms N dated 16 January 2015

    b.Mr S dated 21 January 2015

    c.Ms M dated 13 April 2015

    d.Ms O dated 14 May 2015

    e.Mr I dated 18 May 2015

    f.Mr R dated 7 June 2015