Director-General, Community Services Directorate & Moroz - [2024] FedCFamC1F 642

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Director-General, Community Services Directorate & Moroz [2024] FedCFamC1F 642

File number(s): CAC 42 of 2024

Judgment of: WILLIAMS J

Date of judgment: 23 September 2024

Catchwords: FAMILY LAW – HAGUE CONVENTION – CHILD ABDUCTION – Return application to Türkiye – Where there is an allegation of wrongful removal – Where the respondent is not the biological mother of the children – Where the father is the biological father of the children – Children conceived via surrogacy and born in Country B – Where surrogacy is illegal in Türkiye – Where the children’s birth certificates name the mother and father as the parents, thus conceal the linage of children – Regulatory exceptions to return raised by the mother – Concerns of family violence, possible criminal proceedings, and the mother’s potential lack of custodial rights in Türkiye – Finding that the children were habitually resident in Türkiye and all other jurisdictional facts– Grave risk of psychological harm and intolerable situation demonstrated – Discretion to return – Application dismissed

Legislation:
Evidence Act 1995 (Ct) s 140

Family Law Act1975 (Cth) s 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 15, 16, 26

Turkish Criminal Code No. 5237 art 231

Turkish Civil Code No. 4721 arts 282, 335, 336, 337, 339, 340

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

Cases cited:
De L v Director General, NSW Department of Community Services (1996) 187 CLR 640; [1996] HCA 5

Director-General, Department of Families, Youth and Community Care & Bennett (2000) FLC 93-011; [2000] FamCA 253

DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401; [2001] HCA 39

Gsponer v Director General, Department of Community Services (Victoria) (1989) FLC 92-001; [1988] FamCA 21

HZ & State Central Authority (2006) FLC 93-264; [2006] FamCA 466

LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9

McCall and McCall; State Central Authority (Applicant); Attorney-General of the Commonwealth (Intervener) (1995) FLC 92-551

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

Re H (Minors) [1998] AC 72

Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294

Re K (Abduction): Consent [1997] 2 FLR 212

Secretary, Department of Communities and Justice & Handley [2023] FedCFamC1F 1063

State Central Authority & Handbury [2019] FamCA 668

State Central Authority & Sigouris [2007] FamCA 250

Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 65

Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321; [2007] FamCA 398

Zotkiewicz & Commissioner of Police (No.2) (2011) FLC 93-472; [2011] FamCAFC 147

Number of paragraphs: 236

Date of hearing: 24-26 July 2024 and 27-28 August 2024

Place: Melbourne

Counsel for the Applicant: Ms Musgrove

Solicitor for the Applicant: ACT Government Solicitor

Counsel for the Respondent: Ms Treherne

Solicitor for the Respondent: Just Dispute Resolution

Counsel for the Independent Children's Lawyer: Ms Mussato

Solicitor for the Independent Children's Lawyer: Legal Aid
ORDERS

CAC 42 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE

Applicant

AND:
MS MOROZ

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

23 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.The Application filed by the State Central Authority on 12 January 2024 is hereby dismissed.
2.The Registrar of the Federal Circuit and Family Court of Australia release to the respondent mother or her nominee all current passports relating to the children and the respondent.
3.All previous orders are discharged.
4.The Independent Children’s Lawyer is hereby discharged.

THE COURT REQUESTS THAT:
5.The Australian Federal Police remove the names of the respondent mother, MS MOROZ born 1965 and the children, X born 2020, and Y born 2021 from the Watch List at all points of international arrivals and departures in Australia.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Community Services Directorate & Moroz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION

This is an application by the Director-General, Community Services Directorate (“the State Central Authority”) filed on 12 January 2024 seeking the return to Türkiye of the children, X born 2020, and Y born 2021 pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
Both children were born via surrogacy in the Country B and the respondent is the non‑biological mother of the children, however, hereafter is referred to as “the mother”. The requesting parent, Mr C, who lives in Türkiye, is the biological father of the children (“the father”).
The relevant regulations are made pursuant to s 111B of the Family Law Act1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention (“the Convention”).
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal/retention of a child from his/her country of habitual residence. Both Australia and Türkiye are signatories to the Convention.
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the children to their country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 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 sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (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 sub-regulation (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.
Note 1:In considering whether the matter mentioned in paragraph (3)(b) is established:
(a)the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and
(b)the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and
(c)the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.
Note 2:For the definition of family violence, see section 4AB of the Act.
(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 sub-regulation (3) is established by a person opposing return.
(6)If:
(a)the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and
(b)a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):
(i)in a return order for the child; or
(ii)in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;
the court must consider whether it would be appropriate to include the condition.
(7)In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).
(8)Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed/retained from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640, the High Court of Australia (“the High Court”) cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, counsel for both the State Central Authority and Independent Children’s Lawyer (“ICL”) cross-examined the mother, and counsel for both the respondent and ICL cross‑examined the requesting parent and his two expert witnesses, Mr D, and Mr E. All three‑counsel cross-examined the single expert witness, Mr F, and the Hague Report writer, Ms G.
The State Central Authority asserts that the children have been wrongfully removed from Türkiye in accordance with regs 16(1) and (1A), on the following basis:
·the application was made within one year of the children’s removal;
·the children are under the age of 16;
·the children were habitually resident in Türkiye as at the date of removal to Australia;
·the requesting parent, the father, has rights of custody in relation to the children, which he was exercising immediately prior to the children’s removal; and
·the removal of the children was in breach of the requesting parent’s rights of custody.
The mother conceded that the children were under the age of 16 as at the relevant date, and the application was made within the requisite time.
The mother opposes the application for return and asserts the applicant has failed to discharge its onus to prove the Court’s jurisdiction under the regulations is enlivened, because it has not established the following jurisdictional facts:
(a)The children were habitually resident in Türkiye (reg 16(1A)(b));
(b)The father had, and was exercising, custody rights in relation to the children (reg 16(1A)(c)); and
(c)The children’s removal to Australia was in breach of those custody rights (reg 16(1A)(d)).
Should the Court find that the jurisdictional facts are established, the mother relies on the following regulatory exceptions to return:
(a)the father was not actually exercising rights of custody when the children were removed to Australia, and those rights would not have been exercised if the children had not been so removed or retained (reg 16(3)(a)(i);
(b)the father had consented or subsequently acquiesced in the children being removed to Australia (reg 16(3)(a)(ii));
(c)there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place the children in an intolerable situation (reg 16(3)(b));
(d)the return of the children would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms (reg 16(3)(d)).
If the court is satisfied the mother has successfully proven one or more of the regulatory exceptions, the applicant seeks the court exercise its discretion to return the children. In this instance, the mother seeks the court’s discretion be exercised to permit the children to remain in Australia.
Onus of proof
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
The State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401.
The respondent mother bears the onus of proof to establish the regulatory exceptions to return.
Preliminary matters
The hearing was conducted electronically via Microsoft Teams, which enabled both parents to participate in the proceedings from interstate.
I wish to express my appreciation to all counsel for the professional and courteous manner in which the proceedings were conducted, and in particular the exceptionally high standard of written submissions relied upon in the proceeding.
Evidence and documents relied upon by the parties
Although not specifically referred to in its Outline of Submissions, the State Central Authority relied upon the following documents:
(a)Form 2 Application filed 12 January 2024;
(b)Affidavits of the requesting father;
(c)Affidavit of Mr D;
(d)Affidavit of Mr E;
(e)Written Outline of Submissions filed 18 July 2024;
(f)Written supplementary submissions filed 28 August 2024; and
(g)Documents tendered by counsel, including documents produced pursuant to subpoena.
Although not specifically referred to in a Case Summary document, the mother relied upon the following documents:
(a)Form 2A Answer filed 21 February 2024;
(b)Affidavits of the mother;
(c)Written Outline of Closing Submissions filed 28 August 2024;
(d)Documents tendered by counsel, including documents produced pursuant to subpoena.
The Independent Children’s Lawyer relied upon the following documents:
(a)Case Summary Document filed 18 July 2024;
(b)Documents tendered by counsel, including documents produced pursuant to subpoena.
All counsel tendered documents during the trial as follows:

Exhibit Number

Description

R-1

Police body camera footage of mid-2023

ICL-1

Email between the respondent and Australian Border Force dated early 2020

ICL-2

Hague Report of Ms G

J-1

Tender Schedule provided by counsel for the respondent via email to my Chambers on 28 August 2024.

Exhibit numbers JE-1 to JE-3, A-4 to A-154, and R-155 to R-186.

Regulation 26 enables the court to direct a Family Consultant to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate and that such a report may be received in evidence in any proceedings. In this matter, a reg 26 Hague Report was ordered to address:
(a)What (if any) objections the children have to returning to the Republic of Türkiye;
(b)Whether any such objection of the child shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(c)Whether the children have attained an age and degree of maturity, at which it is appropriate to take account of his/her views; and
(d)The impact on the children of separation from the respondent and their attachment to her.
Mr F, the single expert witness appointed at the request of all parties, prepared a report which was annexed to his affidavit filed 19 April 2024.
Credit of witnesses
The requesting father, Mr C, was cross-examined by counsel for both the mother and Independent Children’s Lawyer. At times, the father was not particularly responsive to questions asked of him, and on many occasions sought to give evidence through the prism of what he considered would advance his case and control the narrative. He lacked objectivity and was reluctant to make obvious concessions.

Mr D is a professional in Türkiye who wrote a ‘summary’ of the applicable Turkish law accordance with the Hague Convention. The requesting father initially requested Mr D to provide advice regarding the custody of children in accordance with Turkish law, after meeting him at a conference. Mr D was cross-examined by counsel for both the respondent and Independent Children’s Lawyer with the assistance of an interpreter. He conceded that at the time of writing his ‘summary’, he was unaware the children were born via surrogacy. He stated, however, that his opinion regarding custody of the children in Türkiye has not changed, despite his new understanding that the children were born via surrogate. I find this difficult to accept, given the evidence put to him in cross-examination and the evidence of Mr F, the single expert witness. It also became apparent during the trial that the respondent father considered Mr D to be a “friend”, having caught up with him for coffee when he witnessed his signature on his many affidavits filed in these proceedings. The father said he interacted socially with Mr D “after this process started”. Because of the father’s evidence, Mr D cannot be considered an impartial expert and where his evidence differs from Mr F, the single expert witness, I prefer the evidence of Mr F.
Mr E is an educator in Türkiye who was asked by the father to provide his expert legal opinion on the issues of changing the lineage of the children, and the status of surrogacy in Turkish criminal law. He was cross-examined by both counsel for the mother and Independent Children’s Lawyer. He appropriately conceded that he was not an expert on civil law and the Turkish Civil Code was beyond the realm of his expertise. He also conceded that at the time of writing his report, he was unaware of any case analogous to this, despite “having looked up hundreds of court documents”. Nevertheless, he remained steadfast in his opinion that no criminal offence had been committed by the parents.
The respondent mother, Ms Moroz, was cross-examined by counsel for both the applicant and Independent Children’s Lawyer. She impressed as a considered and forthcoming witness who made appropriate concessions. It is clear upon viewing the police body camera footage (Exhibit R-1) and hearing her evidence, that she is a loving and capable parent.
Mr F is a single expert witness who filed a Single Expert Report in these proceedings, annexed to his affidavit filed 19 April 2024. Mr F is a professional and has been internationally recognised as an expert in his field. He was cross-examined by all counsel on 28 August 2024. Mr F was an incredibly knowledgeable, insightful, and an impressive professional witness. I unreservedly accept his evidence.
In this matter, a reg 26 report was ordered and prepared by Ms G on 4 April 2024. Ms G was cross-examined by all counsel and provided evidence about the interviewing process, and her professional opinion on the childrens relationship with both parents. The interview with the father was conducted electronically, despite his regular travel to Australia, and she conceded she was unable to assess the quality of interaction between the father and children. She presented as a competent professional witness, and I accept her evidence.
Background
The requesting father is an educator born in Türkiye and is a Turkish and Australian citizen. The mother is a public servant, was born in Australia, and is an Australian and Turkish citizen.
In 2012, the requesting father and respondent mother met in Country H where the mother was working at an educational institution.
In 2013, the mother returned to Australia. The requesting father moved to Australia to live with the mother in 2014, and they married in City J in 2014.
In 2018, the requesting father and respondent mother decided to pursue surrogacy, as they had difficulty conceiving naturally, and they engaged the services of a surrogacy agency located in Country B. They entered into a surrogacy agreement in late 2019.
Both children were born in Country B to surrogate mothers, with donor eggs and the father’s sperm. A different surrogate was used for each pregnancy; however, the egg donor was the same. Both children have Australian and Turkish citizenship. Both Country B birth certificates name the requesting father as the father, and the respondent mother as the mother of the children. These documents were subsequently used to register the children in Türkiye.
On 11 March 2020, Covid-19 was declared a worldwide pandemic by the World Health Organisation and shortly thereafter, Australia closed its borders to non-citizens and non‑residents.
In 2020, the mother travelled to Country B in anticipation of the birth of their first child, whilst the father remained in Australia to wait for the arrival of his Australian passport. In 2020, X was born.
In 2020, the father travelled to Türkiye and the mother and X joined him there a month later. During this time, the mother was on primary caregivers leave from her job in City J, and many of the parent’s belongings remained at their home in City J.
Whilst in Türkiye, the parents arranged for a second surrogacy, and an agreement was entered into in mid-2020. It was at this point in time that the respondent mother asserts their plans changed, and rather than return to Australia they decided to remain in Türkiye to await the birth of their second child, Y.
In the period between mid-2020 and early 2021, the father was working in City K, while the parents were based in City L. In late 2020, the mother purchased an investment property in City K.
In 2021 Y was born, and the parents along with X travelled to Country B to collect him prior to returning to Türkiye.
In mid-2022 the mother travelled by herself to City J, where she deposed to having made arrangements for when the children were to return to Australia.
The respondent mother returned to Türkiye in mid-2022. She asserts that following her return, the parents’ relationship deteriorated, and the requesting father became aggressive and hostile towards her resulting in two physical altercations in late 2022.
In late 2022, a one-month interim protection order was granted restraining the father from approaching the mother. Two weeks later, the protection order was set aside.
Four days later, the mother sent the father a letter which inter alia, stated the father could have custody of the children, and she proposed to stay in Türkiye until mid-2023 when she would return to Australia without the children.
In early 2023, the mother and children left Türkiye without the father’s knowledge or consent. On the same day, the father made a criminal complaint against the mother alleging physical abuse and neglect of the children.
Until the removal of the children to Australia in early 2023, neither the father or mother had filed for divorce, although they were discussing an amicable divorce, and there were no operative court orders regarding custody of the children.
In early 2023, the requesting father commenced proceedings in the City L Family Court, seeking a divorce, sole custody of the children, an injunction restraining the mother from dealing with the City K property, and TL1,500,000 in damages along with legal costs.
Four days later, the requesting father flew to the United Kingdom in an attempt to locate and recover the children. He discovered the children were in Australia in early 2023 when he received an email from the mother, and a week later he travelled to City J to locate the children.
Although the father was in Australia in early 2023, he did not see the children. He travelled to Australia again in mid-2023, when he spent time with the children on three occasions.
In mid-2023, the father made a report to police in relation to alleged injuries to the children. The police attended the mother’s residence to examine the children and left with no concerns.
On 12 January 2024 the applicant commenced these proceedings at the request of the father.
JURISDICTIONAL FACTS
Turning now to the jurisdictional facts, I will first consider the habitual residence of the children.
Habitual residence (reg 16(1A)(b))
Relevant legal principles
The question of whether a person is habitually resident in a particular country is a question of fact, not an artificial legal construct, and requires an evaluation of all relevant circumstances.
The law in relation to habitual residence in Australia is well settled. The seminal authority is the High Court decision of LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”). French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:
23.… First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
…
25.… it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities". Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.
…
27.When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
28.… examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
…
34.… when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
35.It follows … that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
…
45.Moreover, the approach described in [Punter] accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
In Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147 at [82]–[83], the Full Court of the Family Court stated the task of a judge was twofold:
82.In our view, the observations made by Beaumont and McEleavy sit very comfortably with what the High Court has said most recently in LK. Accordingly, we consider the task of the Judge was twofold. The first was to ascertain whether the parents had a shared intention that the child would live in Poland with a sufficient degree of continuity that their purpose could properly be described as settled. The second was to determine whether the period of time spent in Poland was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and Poland was such as to justify a finding he was habitually resident in that country.
83.In approaching this task, the Judge was obliged to construe the Regulations having regard to the principles and objects of the Convention, recognising “that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence”.
The relevant date to determine the child’s habitual residence is immediately before the child’s removal to or retention in Australia (reg 16(1A)(b)), which in this case is early 2023.
Counsel for the applicant submitted the evidence clearly establishes that immediately before the children were removed from Türkiye by the mother, they habitually resided in Türkiye. At the time of removal, X was three years old, and Y was two years old.
Prior to the children’s removal, they had only ever lived in Türkiye, save for a period post birth, when they were in Country B to enable the requisite paperwork to be completed. They had never resided in Australia. Both children were registered with local authorities, the District Registry Office, with their address registered as the family’s apartment in City L. The children and their parents were registered as a family unit in the Turkish Family Register. The children were also registered with a local doctor in City L, and received their childhood vaccinations in City L, as recognised by the Turkish Ministry of Health. X also received specialist medical attention in Türkiye.
X attended childcare in City L and both children participated in social and cultural life in Türkiye with their extended family and broader Turkish community. The children were cared for by both parents, with the mother assuming primary care for the children in City L, whilst the father travelled to City K during the week. The father cared for the children when the mother undertook international travel to Country H (which according to the father, was twice in late 2021 and twice in early 2022), and to the United Kingdom and Australia (mid-2022). Otherwise, when both parents were present, they were both involved in the care of their children.
The intention of each of the parents was a significant focus of the hearing.
The father contended his intention was for Türkiye to be the habitual residence of the children at the time of their removal and thereafter. The mother contends it was not her intention for Türkiye to be her habitual residence. Rather, she intended Australia to be the place of habitual residence, and the extended period she spent in Türkiye after the birth of each child was due to the Covid-19 pandemic and inability to return to Australia because of cross border travel restrictions.
During cross-examination, the father reiterated his intention was for Türkiye to be the habitual residence of the children, and his expectation was for he and the mother to find employment in Türkiye and raise their children there. He relied upon the mother’s purchase of an apartment in City K in 2022 as demonstrating her agreement for the family to remain living in Türkiye. The plan for the foreseeable future was for the family to live in Türkiye, and there was no plan for the family to return to Australia to live permanently, although he conceded it may have been a possibility when the children were older, around seven or ten years old.
According to the father, the plan for the mother was to obtain as much leave as possible from her job in Australia, and at the expiration of that leave, she would return to Australia to work for a few years, prior to returning to Türkiye. During the period the mother was in Australia, the father and children would travel to Australia during the Turkish summer holidays.
At the time the family returned to Türkiye after Y’s birth in 2021, the mother was on paid annual leave. In late 2021, the mother applied for unpaid leave which was due to expire in mid‑2023.
During cross-examination, the mother agreed she had no intention of leaving Türkiye until at least mid-2023 when her leave expired,[1] and she was hoping the family would all return in mid‑2023.[2] She also said she did not believe there was any point in returning to Australia until her leave expired. Counsel for the applicant submitted those circumstances indicate, at least in the short to medium term, the mother’s intended habitual residence for herself was Türkiye.
[1] Transcript 25 July 2024, p.163 lines 37-41.
[2] Transcript 25 July 2024, p.164 lines 5-7.
The father also relies upon discussions in early 2022, about the mother removing the tenants from her apartment in City K, to enable the family to move into the apartment, depending on whether the parents could obtain employment in City K. According to the father, there were also discussions about purchasing another property in Türkiye.
The father’s professed intention to live in Türkiye was challenged by counsel for the mother. During cross-examination his evidence was:
The idea was, till the children learn the language, and start school, we will stay in Türkiye. After that, I was saying to [Ms Moroz] that they should benefit from the Turkish and Australian school system. So [Ms Moroz] would find a job in Türkiye, and then I was working in Türkiye. And then we bought the house, to live in that house, as a family home. [Ms Moroz] insisted on this, not me. So then the plan was to live in that house, basically. That – I think that’s a fair point
(Transcript 14 July 2024, p.19 lines 17-22)
What I asked was, the plan – from what I understand your answer is, the plan wasn’t to live in Türkiye indefinitely. It was to live in Türkiye at – from what you said for a particular period of time. That’s right?‑‑‑No, we don’t know what will happen after the kids. Basically, you don’t know what will happen after seven years, 10 years. But for the foreseeable future, the plan was to live in Türkiye. That is the right word, I guess.
(Transcript 24 July 2024, p.19 lines 29-34)

Counsel for the mother put to the father an email dated mid-2020, which he sent to the Country B Consul. In the email, he said X had arrived in City L, and the mother and X would be in Türkiye “for some time before going to Australia”. The father denied that as at the date of the email, it was always the plan to return to Australia, and said the email was in the context of a Passport Application for X. At that time, the family was looking for a family home in City L and in City K.
The father did not agree the mother returned to Australia in mid-2022 to prepare for the family’s return to Australia. He agreed the mother still owned her property in City J, her belongings were still in the house, and that he had provided the mother with his Australian Medicare details to register him with a doctor. His explanation for registering the children and himself with a medical practice in Australia, was to enable them to obtain medical care during their visits to Australia, if required.
The mother contended it was never her intention for Türkiye to be her habitual residence, and at all times she intended to return to live in Australia as a family.
The factual matrix pertaining to the engagement of a surrogacy agency in Country B, the parents travel to Country B, the births of their two children, and family residence in Türkiye is referred to above.
The mother contends the families plan to return to live in Australia changed around the time they entered into the second surrogacy agreement in 2020. As a result of travel restrictions and the Covid-19 pandemic, rather than return to Australia and risk not being able to return to collect their second child in Country B, the family remained in Türkiye to await the birth of Y and an easing of cross border travel restrictions.
She further contends the purchase of the City K investment property in late 2020, was to ensure secure accommodation for the family in uncertain times, and later on to provide holiday accommodation.
Between mid-2020 and early 2021, the father was working in City K from Monday evening to Wednesday evening each week, whilst the mother and X remained living in City L in a property belonging to the father’s family.
According to the mother, around mid-2022 the parents discussed returning to Australia but remain concerned about the children susceptibility to Covid-19. Consequently, she travelled to City J alone and made arrangements for the children’s return to Australia including registering the children and father at a medical centre in Australia and buying baby seats for their car.
When questioned by counsel for the Independent Children’s Lawyer about her decision to register the children in a medical centre a year before they were scheduled to return to Australia, the mother said it was her only opportunity to do so before the family returned to Australia.
The mother’s unchallenged evidence was that in late 2021, she had been granted unpaid leave from her employment in Australia until mid-2023, and that enabled the family to remain in Türkiye for a prolonged period. The mother said she was concerned about two young children travelling on a long-haul flight to Australia, and that by remaining in Türkiye for a further ten months or so, the children had the benefit of spending time with the maternal grandparents, prior to them moving to the United Kingdom in late 2022.
The mother relies on an exchange of text messages between the parents on 2 September 2022, to demonstrate that was the first time she became aware that the father may not return to Australia with her and the children (Exhibit R-165).
During cross-examination, the father denied the mother had always told him she wanted to return to Australia, but agreed she did want to return in September 2022. He denied he had previously agreed to the family returning to Australia, and that as of September 2022 he changed his mind. He said it was the mother who wanted to go to Australia, but by herself to work, and that the children would remain in Türkiye.
The mother’s counsel submitted the father had failed to provide a satisfactory explanation for the text messages, or how they reconciled with his contradictory evidence during the proceedings.
The mother also relied upon various factors to support her unambiguous intention to return to live in Australia following the birth of the children. These are her retention of property in City J during the period she lived overseas, her belongings remaining in her City J house during her absence, the family pets being looked after by a pet sitter, retaining her Australian employment, and obtained Australian passports for the children.
Counsel for the applicant challenged the mother’s evidence about her intention and submitted the following evidence demonstrates otherwise:
(e)Messages between the parents regarding purchasing property in City K;
(f)The 2021 messages from the mother regarding possibly selling the house in Australia;
(g)The mother’s registration with the Turkish employment agency in late 2022;
(h)A conversation in 2022 regarding job offers in Country H;
(i)Various other conduct regarding the house in Australia, the pets, the mother’s car, union membership and health insurance;
(j)The observations of Mr M, who swore an affidavit on behalf of the applicant, but was not required for cross-examination. Mr M deposes to having met the parents in Country H and the mother regularly complaining about her work and life in Australia, having voiced her desire to work in Türkiye, and his understanding that the mother wanted to settle permanently in Türkiye.
Counsel for the applicant submitted the mothers claim that the global Covid-19 pandemic and associated restrictions impacted her capacity to return to Australia, should not be accepted.
Paragraph [40] of the applicants Outline of Submissions states as follows:
40.The World Health Organisation declared the outbreak on 30 January 2020. On 15 March 2020, the Australian Government announced that all international arrivals to Australia would need to self-isolate for 14 days. On 18 March 2020 the Australian Government advised that all Australians overseas who wished to return to Australia were advised to do so as soon as possible. On 19 March 2020 the Australian Government announced that as of 20 March 2020 the Australian border would be closed to all non-citizens and non-residents; Australian citizens and residents and their immediate family could still enter. It is worth noting here that both [Mr C] and [Ms Moroz] were Australian citizens at this time. On 27 March 2020 the Australian Government announced that all travellers arriving in Australia would be required to undertake 14 days self-isolation at designated facilities.
As demonstrated by the chronology above, which was not disputed, all travel restrictions were in place before the mother left Australia in 2020 to travel to the Country B following X’s birth, and it is not correct to contend the Covid-19 pandemic precluded return to Australia by Australian citizens, as contended by the mother.
Counsel for the applicant submitted the evidence which most starkly indicates the intention of the mother for the children’s habitual residence to be Türkiye, is the agreement she expressed in the divorce protocols for the children to continue to reside in Türkiye with the father after her return to Australia in mid-2023. The mother contended that she was negotiating an amicable divorce under pressure from the father. The father conceded in cross-examination, that without an order granting him sole custody of the children, “the deal was off”.
Counsel for the mother submitted the parents agreed to live in Türkiye temporarily and their actions evince a clear intent to have Türkiye as a temporary domicile before settling with the children in Australia.
As to connection with Australia, the mother relied upon the practical circumstances when the mother left Australia in 2020, the delay in the father’s departure to Country B because he was waiting for his Australian citizenship, the father’s continuing affiliation with an Australian educational institution, the prompt issue of Australian citizenship and passports to the children, and the mother’s limited cultural and social assimilation in Türkiye.
After considering all relevant evidence, I accept and find the father’s intention during the relevant period was for himself and the children to be habitually resident in Türkiye, although he was open to the possibility of the family relocating to live in Australia when the children were older. Parental intention to possibly reside in Australia at some time in the future, does not preclude a finding of the father’s intention during the relevant period. Even if I accept the father’s intention was initially to return to Australia in mid-2023, which I do not, once the marital relationship fell apart, it is clear from the divorce negotiations his firm intention thereafter was to remain living in Türkiye with the children.
I accept the mother’s intention during the relevant period is less clear than the father’s. The evidence indicates that her intention may have wavered, depending on her circumstances and at times, was ambiguous. I do not accept the submission that the mother was effectively stuck in Türkiye because of international travel restrictions precluding her return to Australia. The mother was able to travel, but for valid reasons, including the young age of the children and quarantine restrictions, chose not to travel. I also take into account the mother’s evidence that she intended to remain in Türkiye until mid-2023 when her unpaid leave expired. I accept that the mother’s intention subsequent to mid-2022, when the marital relationship was deteriorating, was to return to Australia with the children.
In this case, due to the age of the children, counsel for the respondent submitted it is “less sensible… to speak of the place of habitual residence of the child[ren] as distinct” from that of the “persons upon whom the child is immediately dependent for care and housing” (LK [27]).
Per LK, whilst the intention of the parents is a consideration, it is not determinative nor to be given controlling weight. The practical circumstances of the parents and children between mid‑2020 and early 2023 are highly relevant to determination of habitual residence. That is particularly so in this case, where there was no challenge to the father’s evidence of the practical circumstances of the children in Türkiye, other than the mother asserting her role as primary carer for the children and in the context of the children never having travelled to Australia.
The strength of ties to Australia, as relied upon by the mother, falls well short of a real and practical connection of the children to Türkiye, and their assimilation in Turkish life and culture. There was no issue of whether the children’s time in Australia was sufficiently appreciable, because the children had never spent any time in Australia before their removal from Türkiye in 2023.
I am satisfied the period of time the children spent in Türkiye was sufficiently appreciable for it to be said the underlying reality of the connection between the children and Türkiye would justify a finding they were habitually resident in Türkiye.
Taking into consideration all relevant factors, on balance I conclude and find the habitual residence of the children at the time of their removal was Türkiye.
I now turn to the jurisdictional facts pertaining to rights of custody.
Did the father have rights of custody in relation to the children under the law of the country in which the children habitually resided immediately before the children’s removal to, or retention in Australia (reg 16(1A)(c))
Regulation 4 of the Regulations provides the definition of rights of custody.
The applicant contends the father had rights of custody in relation to the children prior to their removal from Türkiye. The mother contends he did not.
In this case, two expert witnesses gave evidence in relation to the law in Türkiye, the convention country in which the children habitually resided immediately before their removal.
The applicant relied upon the evidence of Mr D whose report was annexed to the Form 2 Application filed by the applicant on 12 January 2024. Mr D describes himself as a professional and educator at a higher education institution in Türkiye, who has 25 years’ experience practising in his field in Türkiye.
Mr D was requested by the father to provide his opinion about the father’s rights of custody under Turkish law. In his report, Mr D states he has read “the affidavit of fact prepared by the father”. During cross examination Mr D said he also relied upon information provided to him by the father during a conversation, to support his conclusion that the father had rights of custody. The applicant did not adduce any evidence via the father as to what instructions and further information, if any, was provided to Mr D during this conversation.
During cross-examination, the father described Mr D as a “friend” and said he caught up with him for a coffee when he witnessed the father’s signature on his many affidavits filed in the proceedings. Mr D said during cross-examination, that at the time he prepared his report, he was unaware that the children had been born via surrogacy.
On 29 February 2024, an order was made at the request of the parties, for the appointment of a single expert witness in relation to the mother’s legal position and parenting rights to the children post-divorce in Türkiye, with the cost of same to be shared equally between the parties.
Pursuant to that order, Mr F was engaged by the parties as a single expert witness by way of a joint letter of instruction emailed to him on 21 March 2024. He prepared a Single Expert Report which is Annexure MF-3 to his affidavit filed 15 April 2024. Also annexed to his affidavit is a copy of his curriculum vitae (Annexure MF-1) and a copy of the joint letter of instructions and documents to be considered in providing his opinion (Annexure MF-2).
Counsel for the mother submitted and I agree, in so far as there is a discrepancy between Mr D’s evidence and Mr F’s evidence, Mr F’s evidence should be preferred, not only because he is independent of the parties but also because he was far more responsive to questions asked of him than Mr D.
In reaching his opinion that the father has rights of custody under Turkish law, Mr D relied on Article 335 and Article 336 of the Turkish Civil Code No. 4721 (the Turkish Civil Code), which states:
I. Conditions
Article 335 - The child who is not of age is under custody of mother and father. Custody shall not be relieved of mother and father without a legal ground.
…
II. If mother and father are married to each other
Article 336 – Mother and father shall have custody together as long as the marriage continues. If common life is terminated or judicial separation has taken place, the judge can award custody to one of the spouses.
Mr D opines the father’s rights under Article 335 and Article 336 remain because the parents are not divorced, there are no parenting orders in favour of one of the parents regarding the ‘custodianship’ of the children, the father had continued to exercise day-to-day care of the children until their wrongful removal, and there was no court order to limit or alter his right to determine the children’s place of residence.
In his analysis, Mr D did not address whether the mother and father, under Turkish law, are considered the children’s mother and father. He assumed that to be so, as he conceded, because he was unaware the children were born via surrogacy.
Mr F opines in his report:
Under Turkish law, the mother is the person who gives birth to the child. This is a fact that cannot be disputed. Legal basis of it is the Article 282/1 of the Turkish Civil Code that regulates that the relationship between the mother and child is established through birth. This means having the child through that surrogate mother “has no basis in Turkish law” and a surrogate mother is the actual mother because she is the one who gives birth to the child.
Article 282 of the Turkish Civil Code states:
Article 282 - Parentage between mother and child is established by birth.
Parentage between father and child is established by way of marriage to mother, acknowledgement or decision of the judge.
Parentage can also be established through adoption.
The consequences of Article 282, have a flow on effect as far as the rights of the father are concerned. The mother in this proceeding is not “the mother” of the children, according to Turkish law. Therefore, Articles 335 and 336 of the Turkish Civil Code have no application because the father was not married to the birth mother.
Article 337 of the Turkish Civil Code applies if the birth mother and the father are not married to each other:
Article 337 – If mother and father are not married to each other, mother shall have the custody. If mother is deceased, a minor, under disability or if custody is relieved of the mother, the judge may appoint a guardian or award custody to father as per interests of the child.
Notwithstanding the obvious identified problems, the Turkish birth registration of the children is relevant to rights of custody. The evidence establishes that the mother and the father are registered as parents of the children in Türkiye. The birth certificates of both children were tendered by the applicant as Exhibit A-17 and A-18. They list the mother and father as the parents of the children, and it was these documents that were used to subsequently register the children in Türkiye. X was registered as their daughter in 2020, when the family were in Country B, and Y was registered as their son in 2021, when the family were again present in Country B.
Counsel for the applicant submitted and I accept, the registration of the children is an administrative decision. Pursuant to reg 29(5) of the Regulations, the court may take judicial notice of the fact the decisions to register the children were made. Counsel for the applicant invited the court to infer that as the decision was made to accept the documents provided and register the children, the decision-maker was satisfied with the material before them.
Furthermore reg 29(6) enables the court to admit as evidence the certificates of registration.
Mr F confirmed that until the birth registration is objected to/cancelled, the legal mother and father of the children are as described on the Turkish birth registration. As noted by him, the mother is registered as the mother of the children with the Turkish authorities, and she is recognised on the papers as their mother. Because no challenge to her parentage of the children has yet been determined, the parental rights of the father remain under Article 336 of the Turkish Civil Code.
At the time of the removal of the children from Türkiye, there were no divorce or custody orders of the court in Türkiye and the restraining order against the father at that time did not affect the father’s rights vis-à-vis the children.
I accept the evidence of Mr F, that notwithstanding the birth registration is incorrect and does not accord with the definition of mother and father under Article 282 of the Turkish Civil Code, the legal mother and father of the children are as described on the Turkish birth registration and until the registration is objected to/cancelled, the mother and father enjoy the rights conferred under Article 335 and Article 336 of the Turkish Civil Code.
Whether or not the registration of the children is incorrect and is likely to be subject to challenge at a later date, does not affect the father’s rights of custody under the Turkish Civil Code as of early 2023.
I therefore find the father had rights of custody immediately before the children’s removal to Australia in early 2023.
The possible ramifications of subsequent challenge to the incorrect registration are considered below, in the context of regulatory exception.
The child’s removal to, or retention in, Australia is in breach of those rights of custody rights of custody (reg 16(1A)(d))

Counsel for the father submitted there are no orders altering the custody rights regarding the children, and as the father did not know about the impending removal of the children from Türkiye, nor consent to their removal, the removal was a breach of his rights of custody.
Counsel for the mother submitted that even if the father had custody rights, which is denied, there was no breach of those rights. It was further asserted that the applicant failed to lead any evidence as to how those custody rights were breached by the mother travelling to the United Kingdom and later to Australia, albeit five months earlier than planned. Counsel for the mother contended the applicant had failed to establish what rights of custody the father had at the time of removal, which were breached.
In his opinion, at paragraph [13], Mr D referred to rights and responsibilities conferred by Article 336 of the Turkish Civil Code. He said:
13.Pursuant to Article 336 of the Turkish Civil Code, the mother and father as joint guardians and legal custodians have rights and responsibilities in respect of the children which includes the role of providing day-to-day care and the right to determine the children’s place of residence.
As to custody rights and responsibilities, Mr F said:
Under the Article 336 of Turkish Civil Code, if the child is born within a marriage, both parents share parental responsibility from the child’s birth until reaching to 18 years of age; as long espouses a married. According to Turkish Law, custody encompasses both rights and responsibilities. It grants parents the authority to make essential decisions regarding the child’s upbringing and education, always taking the child’s best interests into account (Article 339 of the Turkish Civil Code). This includes ensuring the child’s education within infeasible limits and safeguarding their physical, mental, spiritual, moral, and social development (Article 340 of the Turkish Civil Code). However, there is no division of legal custody or physical custody over the child under Turkish Civil Code. Therefore, the concept of custody includes both aspects.
Neither Mr D, nor Mr F were challenged about this aspect of their evidence.
Accepting the evidence of both Mr D and Mr F, the father enjoyed rights to provide day-to-day care of the children, the right to determine their place of residence and to make essential decisions regarding the children’s upbringing and education. I find the removal of the children to Australia in 2023 breached the father’s right to do so.
At the time of 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 (reg 16(1A)(e)
Counsel for the applicant submitted the father was exercising rights of custody at the time of the children’s removal from Türkiye. Although there was a restraining order in place at the time, it did not impact on the father’s right or ability regarding custody of the children. The father was actively trying to arrange time to see, and subsequently spent time with the children.
Additionally, the father was actively involved in their healthcare including making and attending appointments and assessments, and prior to the restraining order, was actively involved in their day-to-day care including feeding and changing nappies.
The mother contends the father had no rights of custody which are relevant to this regulation.
I accept and find the father was exercising his rights of custody at the time of removal, because he was spending time with the children, and indeed was due to spend time with the children around the time they were removed to Australia.
Have the jurisdictional facts been satisfied
Consequential upon my findings that the children were habitually resident in Türkiye immediately prior to their removal to Australia, the father had rights of custody at the relevant time, their removal was in breach of the father’s rights of custody, and at the time of removal the father was exercising the rights of custody, I am satisfied that all the requirements of reg 16(1A) have been satisfied. I find the removal of the children from Türkiye in early 2023 was wrongful.
REGULATORY EXCEPTIONS TO RETURN
The mother relies upon various regulatory exceptions to return. She contends the father was not actually exercising rights of custody when the children were removed (reg 16(3)(a)(i)), the father consented to the children being removed (reg 16(3)(a)(ii)), there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation (reg 16(3)(a)(iii)), and the return would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms (reg 16(3)(d)).
I will now turn to each of the regulatory exceptions.
The father was not actually exercising rights of custody when the children were removed (reg 16(3)(a)(i))
I have determined this issue above in my consideration of jurisdictional facts and concluded the father was exercising rights of custody at the relevant time. There is no merit in this regulatory exception.
The father had consented to the children being removed to, or retained in Australia (reg 16(3)(a)(ii))
The mother contends the father consented to the children living in Australia and relies upon the following email and text messages between the parents to establish consent.
On 1 July 2020 the father forwarded an email to the Australian Consulate staff as follows:
…She and our daughter [X] arrived to [City L] Türkiye and we will be here for some time before going to Australia…. I hope you all have safe and healthy days and weeks particularly in these bad “virus days”.
As referred to above, the father was cross-examined about this email and said it was sent to the Australian Consulate staff in the context of seeking to obtain a passport for X and denied it demonstrated any intention to live in Australia in the immediate future. He said at that time the family was actively looking for a home in City L.
In September 2022, the mother and father had the following text message exchange (Exhibit A-165):

Mother

It is good you are now upfront about your decision to not come to Australia or allow the kids to come to Australia.

Father

No, I didnot [sic]. I said that it is very clear that I am here will continue to be here and I am feeling threatened with your hostile behaviour

Mother

But I have choice to go and return to my children

Father

What I’m feeling is the threatened that if we go there you will deny me drom [sic] kids

You rush to get the pasaports [sic] and I was faster than you to pick them

And you are rushing to the aussie embassy for substitute passport

In early 2023 the father wrote to the mother via email (Exhibit A-50), after she had left Türkiye, and the same day he filed material in the Turkish divorce courts, and said inter alia:
I am happy them to start primary school in Aussie later, but not before they talk.
The relevant legal principles regarding consent are set out below.
In Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, Holman J stated:
On the facts of a particular case, a court may consider that evidence of consent needs to be cogent before it can overcome the degree of improbability of consent having been given on those particular facts. But in the end there is only one question, namely has consent been established? And only one standard, namely the balance of probabilities.
In State Central Authority & Handbury [2019] FamCA 668 (“Handbury”), at [240] Bennett J said:
The evidence of consent or acquiescence may be by words or inferred by conduct however, the consent (and it is submitted the same applies to acquiescence) must be real and unequivocal and can only be made out by clear and cogent evidence…
Whether or not a wronged parent has consented to the removal or retention of a child depends upon their actual state of mind, which is a question of fact to be determined in all the circumstances of the case and where the burden of proof falls on the “abducting parent”: Handbury per Bennett J at [242], adopting Lord Browne-Wilkinson in Re H (Minors) [1998] AC 72 at [90].
In Wenceslas & Director-General, Department of Community Services [2007] FamCA 398, the Full Court of the Family Court at [257]–[263] reviewed the United Kingdom authorities as to whether or not consent can be inferred from conduct. At [262], the Court referred to the statements of Hale J as she then was, in Re K (Abduction): Consent [1997] 2 FLR 212. At 217-8, Her Honour said:
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 the 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.
At [264] of Wenceslas, May and Thackeray JJ said as follows:
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 the children. As presently advised…we are of the view that consent can be can inferred from conduct; however, we are also the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.
In this case, I am not satisfied that the emails and text messages relied upon by the mother to establish consent, demonstrate real and cogent consent by the father to the removal of the children to Australia in early 2023 or to their remaining in Australia. I accept the father’s evidence about the context of the email of mid-2020. The text messages of September 2022 demonstrate no more than the father would not agree to the children travelling to Australia at that time, and there had been a dispute between the parents about the children’s passports. The final email of early 2023 does not clearly and cogently demonstrate consent by the father for the children to remain in Australia, particularly in the context of him filing an application in the City L Family Court on the same day, seeking orders including that he be granted sole custody of the children.
The mother has failed to satisfy this regulatory exception.
Grave risk of physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b))
The mother relies on the following to establish a grave risk of harm or intolerable situation:
(a)Family violence and safety concerns;
(a)Possible criminal proceedings in Türkiye against the mother;
(b)The impact of cancellation of the Turkish birth registration records; and
(c)The mother’s potential lack of custodial rights in Türkiye.
The relevant legal principles are set out below.
The leading authority in Australia pertaining to this regulatory exception is DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401 (“DP”) Gaudron, Gummow and Hayne JJ stated [39]:
39.… Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry…
…
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 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.
In DP at paragraph [130], his Honour Justice Kirby, in a dissenting judgment stated:
130.… Inevitably…the application of the exception provided for in reg 16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law…It should not therefore be surprising that they (the exceptions) have only been invoked successfully in comparatively rare instances.
Further at paragraph [132], Justice Kirby considered the language used in reg 16(3)(b) and said:
132.The adoption of the word “grave” to qualify “risk” plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not “grave”) risk of the kinds of harm contemplated. Similarly, the use of the word “otherwise” in reg 16(3)(b) indicates that the types of “physical or psychological harm” referred to must also be such as to place the child concerned in an “intolerable situation”. Therefore, the language in question, as well as its appearance in a provision enumerating limited exceptions to the general rule, make it clear beyond argument that orders of return will be made to uphold the principal object of the law in circumstances where, were the matter simply a custody dispute (however described), in all likelihood, on the evidence provided, the child's current arrangements would not be altered. Only a circumstance where the party resisting the order can establish, in the context presented by the ordinary rule of return, that that result would expose the child to a grave risk that was “intolerable … extreme and compelling”, will invite the application of the exception.
(Citations omitted).
Ryan and Aldridge JJ in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [58] referred to comments of Gaudron, Gummow and Hayne JJ, at paragraph [40] of DP:
40.So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 at 1154, the Court of Appeal stated that:
…There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which may be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence”
In State Central Authority & Sigouris [2007] FamCA 250, Bennett J said at [79]:
[79]In order for the respondent mother to make out the exception under Regulation 16(3)(b) of the regulations (Article 13(b) of the Convention), it is necessary to establish at the risk of exposure to physical or psychological harm or the children being placed in an intolerable situation in the event of their return to Greece forthwith is not only very real but “grave”.
In Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65, Watts J at [90] made it clear that the Regulations are to be interpreted according to Australian legal standards, and the fact that in DP the High Court did not give a restrictive meaning to the defence of grave risk that made clear that the words of reg 16(3)(b) are to be given their natural meaning and not a narrow construction.
I now turn to consider each of the risk factors identified by the mother.
Family violence, safety and the father’s capacity to support the children’s relationship with the mother
The mother claims she was a victim of continued family violence whilst she was in Türkiye, and post separation.
She claims to have been subjected to coercive and controlling behaviour, specifically financial control. She relies on the father taking USD9000 in cash from her, and the dispute about the children’s passports and identification cards as evidence of the father’s coercive control.
The father denied during cross-examination that he controlled the money the mother had access to whilst in Türkiye. He submits the mother had her own income from Australia, which was paid into her own bank account, to which the father had no access, she owned the apartment in City K and a house in Australia. Rent paid by borders for the City J property was paid into the bank account of the mother, to which the father did not have access. In 2020, the mother had a term deposit in Country H in her name alone, and it is obvious from the evidence that the mother had financial means separate to the father, over which he had no access or control. The father’s version of removal of the passports and identification cards was that he placed them in a different drawer within the home for a period of a few days. Regarding the USD9,000 cash, he stated during cross-examination, the mother had given it to him to invest in the paternal grandmother’s account, as the mother did not want to pay tax in Australia.

In October 2022, there was an incident between the parents. The mother alleges the father assaulted her by pushing her with force which caused her to injure her knee. The mother asserts this occurred in front of the children and her injuries were recorded by the hospital as pain in the elbow, knee and rib cage. The hospital records state she was “beaten by her husband” and the definitive diagnosis is listed as “assault and hitting by another person”.
In November 2022, the mother alleges the father choked her in the presence of the children, which was around the time the father raised obtaining a divorce.
In November 2022, the mother obtained a protection order against the father because she was fearful of him. Two weeks later, the father had the protection order set aside.
The incident of October 2022 was not reported to the Turkish police at the time, although it was the subject of a later complaint to the police in City L, following which a further protection order was granted. This protection order resulted in a criminal referral and charge, in which the father was subsequently found not guilty in mid-2023. The mother objected to the finding of not guilty and appealed. Her appeal against the father’s acquittal was rejected by the Turkish Court.
The father provided a different account in relation to the incident, where he said there was no physical contact, and the mother was yelling and throwing books.
Counsel for the applicant submitted this Court can take judicial notice of the dismissal of the charges against the father to conclude the evidence does not establish the violence as alleged by the mother occurred.
The mother also claims the amicable divorce negotiations are concerning, and indicative of coercion and control by the father. According to the mother, it demonstrates the father using his position of power (being versed in Turkish family law, speaking Turkish, and being the biological father of the children) to coerce the mother into a proposal which would result in her living separately from the children.
According to the mother, it is evident that subsequent to separation in September 2022, the father embarked on a course of action specifically designed to improve his bargaining position and “sure up” his evidence in the Turkish Family Courts. The chronology of events, which he conceded during cross-examination, demonstrates he was aware of the evidence required to ensure he was awarded sole custody of the children in the Turkish court.
In response to questions about the physical abuse allegations of the child by the mother, the father said “no court would give custody to someone who abuses a child… It is a valid reason in every country” (Transcript 24 July 2024, p.36 lines 40-41). He was also aware the mother had limited custodial rights because she was not the biological mother of the children, and he indeed raised that her lack of status and referred to her as their “step mother” in his application to the Family Court in City L in early 2023.
The father denies coercion and control, and his counsel submitted his conduct should be seen through the prism of hurt and loss suffered by him and the children, because of the unilateral conduct of the mother.
Counsel for the mother submitted the father’s actions in gathering evidence post separation in September 2022 presents a risk to the children and the security of their relationship with the mother if they were to be returned to Türkiye to live with the father. In those circumstances, the father would not and could not facilitate a meaningful relationship between the children and their mother, such as to constitute an intolerable situation.
As to the father’s successful appeal against conviction in the proceedings arising from the assault, as alleged by the mother, there was no evidence why the appeal was successful, nor the requisite standard for criminal conviction in Türkiye, to enable me to make a finding that the violence, as alleged by the mother, did not occur.
I accept and prefer the submissions of counsel for the mother about the father’s coercive conduct after September 2022. It is apparent from the father’s own evidence that he was in a superior position to gather evidence adverse to the mother in Turkish family law proceedings. The father’s evidence that the amicable divorce negotiations would not proceed, if the mother did not concede custody of the children to the father, in my view, is tantamount to coercive conduct.
Criminal proceedings in Türkiye against the mother
The mother contends she may face possible criminal charges in Türkiye arising from the father’s criminal complaint relating to alleged abuse and neglect of the children, possible prosecution for surrogacy offences, and her involvement in the misleading birth registrations. The expert evidence in the proceeding is that surrogacy, and altering or concealing the lineage of the child are criminal offences in Türkiye, and punishable by up to three years imprisonment.
She also contends there is no guarantee the father would not be subject to some form of prosecution, given his complicity in misleading the Turkish authorities in respect to the birth registrations. She relies on the applicant’s own evidence (Exhibit A-130), an email from the applicant to the Turkish Central Authority seeking information about the likelihood of prosecution of either of the parents for offences related to the surrogacy arrangements, should she return to Türkiye and the response from the Turkish Central Authority which states:
Also, regarding your request with providing assurance, as the Central Authority, we have no authorise above Turkish judicial authorities.
The Turkish Central Authority was unable to provide any assurances the parents would not be subject to prosecution.
The email further states:
… It is forbidden to have a child through the application of reproductive cells taken from one or both spouses and the embryo obtained from the cells to other persons and to be a surrogate mother.
The mother contends the possibility of her facing criminal charges in Türkiye and possible incarceration, constitutes a grave risk of psychological harm and intolerable situation for the children, because of the children’s likely separation from their mother: Secretary, Department of Communities and Justice & Handley [2023] FedCFamC1F 1063 (“Handley”).
Counsel for the applicant submitted the mother had legal representation in Türkiye for both family law and criminal proceedings, and it is open to the court to find that she has, can, and will protect her legal interests if she were to return to Türkiye. All the mother is required to do at present in relation to the criminal complaint initiated by the father, is to provide a statement to the authorities.
The applicant relies upon the evidence of Mr E that there is no possibility of prosecution for engaging in surrogacy, nor for changing the lineage of children.
Mr E is an expert witness, solely engaged by the father. Mr E was not engaged as a single expert witness and there is no evidence of the information provided to him by the father, other than a statement at the commencement of the report that he had received the files sent to him by the father, which included Mr F’s report. Mr E’s expertise is human rights and criminal law.
Mr E’s evidence was that there is no possibility of prosecution for engaging in surrogacy, nor for changing the lineage of the children.
Counsel for the applicant relied on the statement in Mr E’s report, that surrogacy is not a subject regulated in Turkish law, although it is prohibited. He said:
It is one thing for an act to be unlawful and another for it to constitute a crime in the context of criminal law. Although the institution of surrogacy is considered prohibited in Türkiye, it cannot be considered a crime since this issue is not regulated in the penal laws
During cross examination, Mr E agreed that he had been unable to find any cases with comparable factual situations to the circumstances of this family despite “having looked up “hundreds” of court documents (Transcript 25 July 2024, p.136 line 22). The opinion of Mr F was not specifically put to Mr E for comment during cross-examination, however, where their evidence differs, I prefer the evidence of Mr F as he is an impartial single expert witness.
Counsel for the applicant further submitted the evidence provided by the Country B Central Authority (Exhibit A-131) indicates the correct process was followed for obtaining the birth certificates of the children in that country, and there is no suggestion of wrongdoing or criminality in the manner that has occurred. The offence of changing or concealing the linage of children under the Turkish Penal Code only has application in Türkiye, and no extraterritorial application. Because the children were registered with the Turkish authorities whilst the children were in Country B, there is no possibility of prosecution for the offence.
I am also concerned about the unique factual situation, and the consequent difficulties for an expert, in providing a definite opinion.
The impact of cancellation of the Turkish birth registration records
The mother relies on the evidence of Mr F about the Turkish Divorce Court process, if the birth registration of the children is cancelled. In his report, as a preamble to his responses to questions asked, Mr F states:
Also, I refer my responses below that the mother should not have any custody rights according to Turkish Law however she seems to have as she is registered as the mother on the documents, but this can be objected/cancelled as the surrogacy is prohibited and illegal in Türkiye. Therefore, the responses between 1-9 are provided to have an insight of Turkish Law in general.
Mr F was provided with the Minutes of the Court Record dated early 2023 from the Family Court of City L. He confirmed the document is a Preliminary Proceeding Report which is always prepared by any Turkish Court upon filing of the lawsuit. The contested divorce case was filed by the father against the mother in early 2023 and stated, inter alia, that the subject of the case is divorce with breakdown of the marriage, temporary custody will be evaluated at the preliminary hearing after the expert report is submitted and travel bans were imposed on both children, with a letter sent to the City L Police Department.
It is not contentious that in his Application to the Family Court of City L, the father acknowledged that the mother was not the biological nor birth mother of the children, and she is referred to as the children’s stepmother (Exhibit A-46).
According to Mr F, once that issue has been brought to the court’s attention, and thereby putting the birth registration details in issue, the Court would stay the divorce proceedings until such time as the registration records have been corrected. In his report, Mr F stated “custody arrangements are connected to the public order”, which he reiterated on numerous occasions whilst giving evidence. During cross-examination, Mr F and counsel for the respondent had the following exchange:
Are you familiar with article 27 of the Turkish Code of Obligations? I will tell you what the summary – the summary that I’ve found is that contracts that are in breach of the imperative provisions of the law, contrary to good morals, against personal rights and with impossible subject, are strictly null and void?‑‑‑Correct, yes.
And that’s how the court views surrogacy arrangements in Turkey, correct?‑‑‑Yes.
(Transcript 27 August 2024, p.18 lines 15-21)
Mr F gave evidence that once the birth registrations are cancelled, the Turkish Family Court would firstly make an order about the interim care arrangements for the children, and secondly, take steps to locate the birth mothers of the children by asking the Turkish Child Protection Authority to intervene in the proceedings and commence an investigation.
His evidence was, it is possible, but by no means certain, the father would be granted custody of the children in the interim period. It was also possible the children would be placed in the care of the Turkish Child Protection Authorities. The ultimate decision about interim arrangements for the children would be significantly influenced by the recommendations of the Turkish equivalent of a Family Report.
In relation to the location of the birth mothers, at the time of the birth both mothers were located in Country B. Country B is now war zone, and there may will be difficulties locating the birth mothers, who even if located, may not wish to engage with the Turkish Court proceedings. There was no timeframe provided for the investigation to determine the whereabouts of the birth mothers.
During cross-examination, counsel for the respondent put the following to Mr F, to which he agreed:
So could I just summarise what you’re saying. So my understanding is that if there is some problem, if the registration is defective, and it’s cancelled, if there’s a problem locating the [Country B] mother, the birth mother or mothers, or they don’t participate or don’t want to participate, then the judge involves the Turkish child protection authorities and the child protection authorities become involved in the proceedings, and then there are options for the judge either – which would include mother and father, in this case, or child protection, and how that would be regulated would be after the judge has collected and assessed all of the information – which includes the expert social services report, which the court would order. Is that the process?‑‑‑Yes, your Honour.
Thank you?‑‑‑That’s the main process, yes.
(Transcript 27 August 2024, p.18 lines 1-13)
Counsel for the mother submitted there were a number of concerns which flowed from the evidence of Mr F. She contended, and I agree, there is no certainty the children’s current relationship with the father would withstand the scrutiny of a social scientist who would undertake the Family Report assessment. It is also unclear whether the father’s part in registering incorrect births would adversely impact upon a decision about interim custody, or whether he would be prosecuted, in circumstances where issues of custody have a crucial bond with public order.
Counsel for the mother relied upon the assessment of the children undertaken in January 2024 by Ms G for the Hague Report, as evidence of the relationship between the children and the father. Ms G opined:
17.… It is likely that the children now view their mother as their primary (and possibly only) attachment relationship and are likely to find it distressing to be separated from her. As children have already experienced disruptions in their relationship with caregivers, they are likely to struggle with a further separation…
18.[Mr C] reported that he has only spend three brief periods with the children since the end of 2022, and that the children do not engage with him during his weekly video calls. From this description, it appears likely that the children would not currently view [Mr C] as a parent figure or source of emotional connection…
19.…When young children lack trust in their caregiver’s capacity to predictably meet their needs, they may struggle to rely on a new caregiver for comfort and connection.
Counsel for the mother further submitted it would be unimaginably damaging for the children to be placed in the care of Turkish Authorities, in a foreign country, where they do not speak the language, bearing in mind X (now 4) was two years old when removed and Y (now 3) was one year old at the time of removal.
Counsel for the mother concluded there can be no doubt the above presents a grave risk of an intolerable situation if the children are returned to Türkiye.
Counsel for the applicant contended there is an established and loving relationship between the father and the children, which was disrupted by the unilateral actions of the mother, firstly by removing the children from Türkiye, and secondly by the manner in which she has limited contact between the father and the children. Despite the intentional disruptions, when it was put to Ms G during cross-examination, that given the solid base between the father and the children established from birth until their removal from Türkiye, that base would be sufficient for them to rebuild their relationship moving forward, she agreed (Transcript 26 July 2024, p.187 lines 34-36).
Counsel for the applicant disagreed with the submission that the registration of the childrens births would be cancelled and asserted that “the evidence doesn’t put it that high. There will be investigations, and the court will take – the court in Türkiye will take the due regard and carry out the process and investigations that are required”.[3] She further submitted that if the registration was cancelled, however, the best interests of the children would be the overriding consideration of the Turkish Court in making interim orders, and there would be involvement by the local child protection authorities and social experts.
[3] Transcript 28 August 2024, p.24 lines 28-30.
In the Applicant’s Supplementary Submissions, counsel for the applicant contended the ‘Questionnaire on the private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements’ (“the Questionnaire”) (Exhibit A-153), at [32] identifies that the only people able to challenge the registration are the persons currently described as the mother and father, and that there had been no such challenge made or determined, although the issue has been brought to the attention of the Turkish court. Under reg 29(5) and (6), this court may take judicial notice of the Questionnaire as an administrative decision.
Counsel for the applicant submitted that “it’s simply not open on the evidence to say that there would be an order that would absolutely remove the rights of [the mother] to have either custody or contact with the children”.[4]
[4] Transcript 28 August 2024, p.25 lines 37-39.
Whilst that may be so, it is equally true to comment that the evidence does not enable a conclusion or finding to be made that the mother will definitively have rights to custody or contact with the children, as their mother.
It is abundantly clear from Mr F’s evidence that because the incorrect registration has been brought to the Turkish Court’s attention by the father, the Court will take steps to correct the registration, and the uncertainty that follows from future investigation is unknown and constitutes a precarious situation for the children and their future relationship with the mother.
The mother’s potential lack of custodial rights in Türkiye
In response to who is considered the mother under Turkish law, Mr F opined:
… Under Turkish Law, the mother is the person who gives birth to the child. This is a fact that cannot be disputed. Legal basis of it is the Article 282/1 of the Turkish Civil Code that regulates that the relationship between the mother and child is established through birth. This means having the child through that surrogate mother “has no basis in Turkish Law” and the surrogate mother is the actual mother because she is the one who gives birth to the child.
When asked to articulate the rights of the mother in respect to the children, Mr F said in his Single Expert Report:
By referring the information and response provided above, the mother should not have any rights on the children as I’m not provided with the information of the adaption [sic] of the children that were born through surrogacy.
However, as I am also not provided with the information that there is not any cancellation of the children’s records and/or cancellation of her listing is the mother in the registry of the children, the defendant seems to be the mother of the children. Therefore, even she should not be given with the rights on the children, she can be considered to have the rights same as the mother. My response will change if the children’s records are cancelled, as the defendant mother should not listed as the mother of the children at the first place.

In relation to the state of law in Türkiye regarding motherhood rights to a person who is neither the genetic nor the birth mother, Mr F said the person who is not the birth mother of the child does not have any rights to the child, and the exception of this can be the adaption (adoption) of the child, in order to establish the paternity between the child and the third person (who wishes to be the mother of the child).
The mother’s consistently stated position is that she will not return to Türkiye because she is concerned about both potential criminal charges against her brought by the father, and the prospect of ramifications arising from the incorrect registration of the children. Adoption is therefore not a viable option for the mother to attain rights, and in any event, potential adoption of the children was never put to the mother in cross-examination.
According to counsel for the mother, relying on Mr F’s evidence as to the mother’s rights of custody in Türkiye if the birth registrations are cancelled, as would seem inevitable because of the steps taken by the father to alert the Court to the incorrect information in the birth register, there can be no question that the mother’s rights to spend time with the children would best be compromised, and at worst non-existent.
The mother’s lack of recognition as the children’s mother in Turkish law, poses a real risk that a return order would result in the loss of parental connection. The mother contends the impact on the children if they were separated from her would be significant, and amount to an intolerable situation for the children. She relies on the observations of the interactions between the children and the mother, as referred to by Ms G in the Hague Report as follows:
15.Based on the interactions during the observations, the children appear to have a warm and positive relationship with [Ms Moroz] and seem to turn to her for shared enjoyment and assistance. This aligned with [Ms Moroz’s] description of her relationship with the children. [Ms Moroz] displayed a good understanding of the children’s physical, emotional, social and educational needs and presented as a loving parent who has centred her lifestyle around the children and their needs.
Counsel for the mother submitted given the children’s age and attachment to their mother as their primary carer, the children’s likely “fear, confusion, and prolonged disruption” if a return order is made would be detrimental to X and Y’s emotional and psychological well-being and constitute both a grave risk of harm and an intolerable situation for the children: see Handley at [71]–[72], [127]. I agree with and accept the submissions of the mother’s counsel in this regard.
Counsel for the applicant relied upon the presumption that in convention matters, a co‑signatory has the capacity to adequately protect the child upon their return, unless shown otherwise : Gsponer v Director General, Department of Community Services (Victoria) [1988] Fam CA 21 (“Gsponer”) .She also relied upon the evidence of Mr F that the Turkish Courts would prioritise the best interests of the child, although custody must also be considered in the context of public order under Turkish law.
Whilst I accept the presumption in Gsponer, in this case surrogacy is illegal in Türkiye. According to Mr F, the parents’ involvement in the birth of the children “is a violation of Turkish Law and strictly forbidden”, and “according to Art.231/1 of Turkish Criminal Code, any person who alters or conceals the lineage of the child shall be sentenced to a penalty of imprisonment for a term of one to three years”.
Whether or not surrogacy will remain illegal in Türkiye, and the consequences thereafter, will ultimately be determined by Turkish lawmakers. In this case, the standing (or lack thereof) of the mother is too precarious to assume the relationship between the children and their mother will be recognised and protected, in the context of the parents engaging in an activity which is illegal in Türkiye and by extrapolation, contrary to public morality. Mr F repeatedly said the birth registration is incorrect, the registration will be subject to further investigation once it is brought to the attention of the Turkish Courts, and that custody rights are linked to public law. None of the foregoing was contemplated by Gsponer. In that case the mother opposed the return of a nine-year-old boy to Switzerland and relied on her evidence that she had been subjected to significant episodes of violence by her husband and that the child had also been assaulted or mistreated by the husband on a number of occasions. The facts of this case are readily distinguishable from Gsponer.
The presumption must be viewed in the context of a breach of Turkish law and criminal sanctions which may flow. I am not persuaded, in this highly unusual case, that the presumption would afford adequate protection for either parent, notwithstanding the opinion of Mr E about unlikely criminal prosecution There was no evidence of the impact on the respective parental rights to custody, in circumstances where parents have engaged in illegal conduct, according to the laws of the Convention state.
I find the above factors which the mother relies upon, as posing a grave risk of exposure to physical or psychological harm or otherwise place the children in an intolerable situation, collectively and cumulatively, constitute such a grave risk and intolerable situation.
In reaching that conclusion I have regard to the following (although in no particular order):
·The possibility of the mother being subjected to coercive and controlling behaviours of the father, particularly in the context of the family law litigation;
·The uncertainty of the trajectory of the father’s complaint that the mother has abused the children and the possible consequences for her;
·The lack of certainty about whether the mother will face criminal prosecution in Türkiye arising from the surrogacy arrangements;
·If the mother is prosecuted for the surrogacy the risk of her incarceration which would result in an intolerable situation for the children;
·The inevitable investigation by the Turkish authorities of the incorrect birth registration;
·The uncertainty of the children’s interim living arrangements during the authorities investigation of the birth registration;
·The mother’s potential lack of recognition as the children’s mother in Turkish parenting proceedings;
·The mother’s potential lack of standing in the Turkish family law proceedings, both interim and final;
·The effect on the children of separation from their primary caregiver, their mother;
I find that the mother has made out this regulatory exception to the required standard.
The children’s return would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms reg 16(3)(d)
The mother initially contended the return of the children would be a breach of their human rights and fundamental freedoms. There was no evidence adduced in support of this exception, and no submissions made on her behalf.
In McCall and McCall; State Central Authority (Applicant); Attorney-General of the Commonwealth (Intervener) (1995) FLC 92-551, the Full Court said this exception requires not simply that the return of the child would be incompatible, even manifestly incompatible, with human rights and fundamental freedoms, but these rights and freedoms simply do not permit the child’s return at all. In Director-General, Department of Families, Youth and Community Care & Bennett [2000] FamCA 253, the Full Court noted that provision in the regulations was intended to apply to “rare occasion that the return of the child would utterly shock the conscience of the court or offend all notions of due process”.
It is difficult to contemplate that the circumstances of the children’s return to Türkiye in accordance with Australia’s obligations to an international convention, would utterly shock the conscience of the court or offend all notions of due process and I find accordingly. This defence must necessarily fail.
DISCRETION TO RETURN
If a regulatory exception is found, as it has been in this case, I am now required to address whether I should exercise my discretion to return the children to Türkiye.
At paragraph [29] of HZ & State Central Authority [2006] FamCA 466, the Full Court of this Court referred to the factors relevant to the exercise of discretion to refuse return as follows:
… In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b) the likely outcome (in whichever forum) of the substantive proceedings;
(c) the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”
In this matter, if a return order is not made, the forum which would determine the child’s future in the substantive proceedings is Australia, which is a jurisdiction where the best interests of the child and the children’s welfare are paramount in proceedings. If a return order is made, the substantive proceedings would be determined in Türkiye.
According to the expert evidence, Türkiye is also a jurisdiction where the best interests of the children are paramount, but that must also be considered in the context of public law and morality and that surrogacy is illegal.
Both parents are dual citizens of Australia and Türkiye, and if the mother has standing to make an application in the Turkish courts, would be able to access proceedings in both countries, although it may be electronically, as occurred in this matter.
However, the mother’s standing to participate in Turkish legal proceedings is unknown, as according to Mr F, the Turkish Court will inevitably seek to investigate the registration of the children’s birth. In Turkish Court proceedings, the father, as the children’s biological father, may well be in a significantly superior position to that of the non-biological mother. Additionally, the father is bilingual, but the mother is not and she would require an interpreter to obtain legal advice and representation in Türkiye and to participate in court proceedings in Türkiye.
If the substantive proceedings were determined in Australia, then the father is entitled to seek orders that the children are returned to Türkiye. It is not known whether the mother, even if she had standing, could seek to relocate the children to Australia in the Turkish Courts.
The mother has raised significant concerns about whether she would face prosecution if she returned to Türkiye. As referred to in these reasons, the situation which would await the mother and the children if a return order were made is entirely uncertain
The very real possibility of the children’s separation from their mother, if the mother chose not to return to Türkiye, and the options for care of the children in Türkiye including possible placement in care if the Turkish authorities are involved and consider the father to be an unsuitable parent for interim custody. That would have a significant and immediate impact on the emotional and psychological call well-being and functioning of the children.
In terms of the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order is not made, there was no evidence or indeed any submissions by either counsel. However, in this case an exception to return, as provided by the regulations, has been satisfied.
For these reasons I propose to exercise my discretion not to return the children to Türkiye and will make the relevant orders dismissing the application.

I certify that the preceding two hundred and thirty-six (236) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 23 September 2024

File number(s):	CAC 42 of 2024
Judgment of:	WILLIAMS J
Date of judgment:	23 September 2024
Catchwords:	FAMILY LAW – HAGUE CONVENTION – CHILD ABDUCTION – Return application to Türkiye – Where there is an allegation of wrongful removal – Where the respondent is not the biological mother of the children – Where the father is the biological father of the children – Children conceived via surrogacy and born in Country B – Where surrogacy is illegal in Türkiye – Where the children’s birth certificates name the mother and father as the parents, thus conceal the linage of children – Regulatory exceptions to return raised by the mother – Concerns of family violence, possible criminal proceedings, and the mother’s potential lack of custodial rights in Türkiye – Finding that the children were habitually resident in Türkiye and all other jurisdictional facts– Grave risk of psychological harm and intolerable situation demonstrated – Discretion to return – Application dismissed
Legislation:	Evidence Act 1995 (Ct) s 140 Family Law Act1975 (Cth) s 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 15, 16, 26 Turkish Criminal Code No. 5237 art 231 Turkish Civil Code No. 4721 arts 282, 335, 336, 337, 339, 340 Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Cases cited:	De L v Director General, NSW Department of Community Services (1996) 187 CLR 640; [1996] HCA 5 Director-General, Department of Families, Youth and Community Care & Bennett (2000) FLC 93-011; [2000] FamCA 253 DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401; [2001] HCA 39 Gsponer v Director General, Department of Community Services (Victoria) (1989) FLC 92-001; [1988] FamCA 21 HZ & State Central Authority (2006) FLC 93-264; [2006] FamCA 466 LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 McCall and McCall; State Central Authority (Applicant); Attorney-General of the Commonwealth (Intervener) (1995) FLC 92-551 Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 Re H (Minors) [1998] AC 72 Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294 Re K (Abduction): Consent [1997] 2 FLR 212 Secretary, Department of Communities and Justice & Handley [2023] FedCFamC1F 1063 State Central Authority & Handbury [2019] FamCA 668 State Central Authority & Sigouris [2007] FamCA 250 Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 65 Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321; [2007] FamCA 398 Zotkiewicz & Commissioner of Police (No.2) (2011) FLC 93-472; [2011] FamCAFC 147
Number of paragraphs:	236
Date of hearing:	24-26 July 2024 and 27-28 August 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Musgrove
Solicitor for the Applicant:	ACT Government Solicitor
Counsel for the Respondent:	Ms Treherne
Solicitor for the Respondent:	Just Dispute Resolution
Counsel for the Independent Children's Lawyer:	Ms Mussato
Solicitor for the Independent Children's Lawyer:	Legal Aid

CAC 42 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE Applicant
AND:	MS MOROZ Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	23 SEPTEMBER 2024

Exhibit Number	Description
R-1	Police body camera footage of mid-2023
ICL-1	Email between the respondent and Australian Border Force dated early 2020
ICL-2	Hague Report of Ms G
J-1	Tender Schedule provided by counsel for the respondent via email to my Chambers on 28 August 2024. Exhibit numbers JE-1 to JE-3, A-4 to A-154, and R-155 to R-186.

Mother	It is good you are now upfront about your decision to not come to Australia or allow the kids to come to Australia.
Father	No, I didnot [sic]. I said that it is very clear that I am here will continue to be here and I am feeling threatened with your hostile behaviour
Mother	But I have choice to go and return to my children
Father	What I’m feeling is the threatened that if we go there you will deny me drom [sic] kids
You rush to get the pasaports [sic] and I was faster than you to pick them
And you are rushing to the aussie embassy for substitute passport