Director-General, Department of Communitites (Child Safety Services) and Mathieson - [2011] FamCA 922

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITITES (CHILD SAFETY SERVICES) & MATHIESON

[2011] FamCA 922

FAMILY LAW – CHILDREN – Application under the Hague Convention – Habitual residence in Country B – rights of custody under the law of Country B – Process in determining rights of custody – Whether grave risk of returning child – Whether child objects to return – Whether return of child who is an Australian citizen is an imposition upon the child’s human rights and fundamental freedoms – Whether conditions on return order ought be imposed

Family Law Act 2003 (Country B)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction

De L v Director-General, NSW Department of Community Services (1996) FLC 92-706
Department of Community Services v Frampton (2007) FLC 93-340
Director-General, Department of Community Services v Crowe (1996) FLC 92-717
DJL v The Central Authority (2000) FLC 93-015
DP v Commonwealth Central Authority; JLK v Director-General, Department of Community Services [2001] HCA 39
Harris v Harris [2010] FamCAFC 221
J v Director-General, Department of Community Services [2003] FamCA 929
Laing v The Central Authority (1999) FLC 92-849
LK v Director-General, Department of Community Services (2009) 237 CLR 582
McCall and State Central Authority; Attorney-General (Commonwealth)(Intervenor) (1995) FLC 92-551 at 81-518
MW v Director-General of the Department of Community Services (2008) 244 ALR 205
Soysa v Commissioner of Police [2001] FamCAFC 39

APPLICANT:

Director-General, Department of Communities (Child Safety Services)

RESPONDENT:

Ms Mathieson

FILE NUMBER:

BRC

8226

2011

DATE DELIVERED:

8 December 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

18 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M. Green

SOLICITOR FOR THE APPLICANT:

Crown Law

Orders

The child, C, born … 2001, be returned to the country of Country B; and for the purpose of giving effect to this order:
(a)       That the said child leave the Commonwealth of Australia on or before 15 December 2011;
(b)       That pending the said child returning to Country B, the respondent mother, Ms Mathieson, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from the Commonwealth of Australia;
(c)       That pending the return of the said child to Country B, the respondent mother continue to be restrained and an injunction is hereby issued restraining her from changing the residence of the said child from the premises where the child and she currently reside;
(d)       That subjection to sub-paragraph (e) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent mother and the said child on the All Ports Watch Alert System at all international departure points in Australia;
(e)       That the said child and the respondent mother be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services Unit of the Department of communities advising of the travel arrangements made for the said child to return to Country B from 12.00am on the date nominated for the said travel in the letter;
(f)       That the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders;
(g)       That to facilitate the return of the said child C born … 2001 to Country B, an officer of the Department of communities be at liberty to release to the respondent mother all current passports relating to the child for the purpose of the said child’s return and release the passport of the respondent mother to her or her nominee upon her request;
(h)       That liberty to apply be granted to the applicant to seek any further orders necessary to allow her or officers of the Department of Communities to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
That the respondent mother Ms Mathieson, born … 1975, pay all necessary expenses associated with returning the child to Country B, including the cost of airfares and departure taxes (if any) for the child to travel from Brisbane International Airport to Country B, and in the event the respondent mother fails or refuses to pay these expenses, the respondent mother to pay to the applicant the necessary expenses incurred by or on behalf of the applicant and Mr B in returning the child to Country B within two business days of the applicant making a written demand for reimbursement of the said expenses.
That all other applications be dismissed.
That there be liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Communities (Child Safety Services) & Mathieson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8226 of 2011

Director-General, Department of Communitites (Child Safety Services)

Applicant

And

Ms Mathieson

Respondent

REASONS FOR JUDGMENT

Introduction

By Application filed on 15 September 2011, the Director-General, Department of Communities (Child Safety Services), in her capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), applied for final Orders, including an Order that C, born … 2001, be returned to Country B.
The requesting person within the meaning of the Regulations is the child’s father, Mr D (“the Father”), resident in Country B, and the Respondent to this Application is the child’s Mother (“the Mother”), currently resident in Brisbane, Australia.
The Regulations made under ss 111B and 111D of the Family Law Act 1975 (Cth) (“the Act”) give effect to the Convention on the Civil Aspects of International Child Abduction (“the Convention”) which is set out in Schedule 1 to the Regulations.

Background

The Father was born in City E, Country B, in 1971. The Mother was born in Adelaide, Australia, in 1975. The Mother and the child each hold Australian citizenship.
In about 1996, the Father and the Mother commenced a relationship and on 5 September 1998, they married in Country B. Late that year, the Father left Country B for the Country F to further his studies, and the Mother subsequently joined him in the Country F. In 2000, the Mother commenced studies at the University of Country F.
On 11 February 2001, the subject child the child was born in Country F.
In February 2003, the Mother and the child returned to Country B whilst the Father remained in Country F. The Mother commenced employment with the G Organising Committee in Country B.
In August 2003, the Father returned to Country B and the family took up residence at the maternal grandparents’ home in Country B.
It appears that in about September 2003, the Mother and the Father initially separated. They are at odds with each other on their respective versions as to the nature of their relationship thereafter.
In June or July 2004, the Mother and the Father were living in a flat together, although they give differing versions of the nature of the relationship at this time.
In early 2005, the Mother and the child the child relocated to Country H. The Mother says that this was effectively to start a new life in Country H.
However, in May 2006, the Mother and the child returned to Country B, where the Mother accepted a three year contract of employment with the government of Country B. The Mother and the child then lived at the maternal grandparents’ residence in Country B until the Mother found her own accommodation.
At about this time, the Father alleges that the Mother sought a reconciliation with him. Whilst again the parties are at issue about that, it is not in issue that the child commenced school in Country B.
Again in August 2006, the Father and the Mother were living together. It appears that they were attempting to reconcile their relationship and it seems they attended counselling for this purpose.
In late 2006, the child commenced to attend a school known as J School in Country B, and the evidence establishes that he was progressing well at that school, attaining grades in the top 5 per cent of achievement in his class. the child became a prefect, a senior in his martial arts activities and it seems that at this time, even on the Mother’s evidence, the child was extensively involved in the lives of the Father’s extended family and moved freely between the Mother’s siblings and their families.
In 2008, the Mother and the Father and the child resided together in the maternal grandparents’ house in Country B. However, an altercation in August 2008 led to them living separately, but continuing to celebrate events. For example, they celebrated their tenth wedding anniversary, Christmas and other significant events together. On the Mother’s evidence, this was an attempt to keep the family links strong and ensure that the child did not feel the full impact of his parents’ separation.
Some time in 2008 or by early 2009, it can be said that the Mother and the Father finally separated. By June 2009, the Mother had commenced a relationship with one Mr K.
On 7 January 2010, the Mother commenced proceedings for dissolution of her marriage to the Father at the Family Magistrates’ Court at City E in Country B. Her Application for Dissolution pleads that the Mother and the Father first separated in 2003, but records them living together for an eight month period between June 2004 and February 2005, and for a twenty-four month period between August 2006 and August 2008. The Application refers to three attempts at reconciliation and also to the counselling earlier referred to.
In dealing with the question of proper arrangements for the child the child, the Mother’s Application for Dissolution records:
That the child [C], born on … 2001, be resident with the Applicant [Mother] with reasonable access to the Respondent.
On 29 January 2010, the Family Division of the Magistrates’ Court in Country B granted a conditional Order for dissolution of marriage, recording satisfaction that the marriage had broken down irretrievably, and that proper arrangements had been made for the care, welfare and development of the child. That conditional Order became final on 1 March 2010.
I reject the Mother’s contentions to the effect that because the Court in Country B dissolved the marriage in the circumstance that the pleaded “proper arrangements” in the application were as set out, that the Order for divorce also constituted some form of parenting Order or otherwise affected the parents’ rights of custody in some way. I deal specifically with “rights of custody” below having regard in particular to the expert evidence admitted in the hearing.
It appears that soon after the divorce, the Mother and the Father were at odds about the Father’s access or contact with the child. On 14 September 2010, the Father filed an Application for Final Orders in the Family Division of the Magistrates’ Court, City E, seeking, inter alia, Orders that the Mother be granted residence of the child, subject to his contact rights.
On 21 December 2010, the Mother and the Father attended court counselling to discuss arrangements for the child spending time with both of his parents at Christmas.
On 2 March 2011, the Father filed a further application seeking interim access, and applied for Orders for alternate weekend access. The Father also sought an Order that the child not be allowed to leave Country B without the Father’s consent. The Father also sought leave to amend his Application for Final Orders.
On 14 April 2011, the Court in Country B made an interim Order by consent which provided for the Father to have alternate weekend access and the parties were referred to counselling. This interim Order was expressed to remain in place until the “next calls date”.
On 20 April 2011, there was a further Order of the Magistrates’ Court in Country B varying the address for the point of access.
The parties are again at odds on their evidence as to what occurred between April and June 2011. For his part, the Father alleges that his time with the child was characterised by ill-will, non-communication, and general disregard for the letter of the law on the part of the Mother and her extended family. For her part, the Mother alleges that the child was having feelings of negativity, disconnection and distress in relation to contact with the Father.
In the event, on 6 May 2011, the Father filed an Amended Application for Final Orders in Country B, seeking Orders for, inter alia, the child to reside with each parent for an interval of two weeks each, that the parents jointly decide all major issues relating to or affecting the child and that the child be prevented from leaving Country B without the consent of the Father first being obtained in writing.
On 6 June 2011, the child left Country B for Australia in the company of the Mother without the Father’s knowledge or consent, and they have lived in Australia since.
The Mother was due to give birth on 9 August 2011, having become pregnant in November 2010 to her fiancé and de facto partner, Mr K. The Mother says that she needed to travel before she had reached 34 weeks’ gestation, and based on an alleged delay in the capacity of the Court in Country B to deal with the applications, she says that she elected to travel to Australia on the basis that she had “custody” of the child and that there was no Order restraining the child’s travel.
The Mother has asserted in affidavit evidence that at the time of taking the child out of Country B, there was no Order that restricted her decision to take up residence in Australia.
On 7 June 2011, the Mother filed an affidavit in the Country B proceedings which in part alleges a history of excessive alcohol consumption on the part of the Father, as well as episodes of violence. At the conclusion of that affidavit, the Mother sought Orders in the Country B proceedings that the Father be restrained from having any form of communication with the Mother except through solicitors, that the Father have limited contact with the child in Australia and that the progress of such contact be monitored by a registered child counsellor in Australia.
It appears that upon coming to Australia, the Mother enrolled the child in the L School.
It appears that on 8 June 2011, the Father learned from the child’s maternal grandmother that the Mother and the child had gone to Brisbane, Australia, and on 28 June 2011, the Father completed an application for the return of the child to Country B under the Convention.
In July and September 2011, there were further affidavits filed in the proceedings in Country B, and interim mentions or hearings of the competing applications were conducted in Country B.
On 7 October 2011, the first return date of the present application, I made a Commonwealth Information and Location Order in these proceedings to assist in locating the Mother and the child. On 28 October 2011, I made procedural Orders for the filing of material and set the matter down for hearing on 18 November 2011.

Application of the Regulations

As was explained to the Mother in the course of the hearing, the Regulations are not directed at the question of what the welfare of the child requires, but are directed to ensuring that questions concerning the child’s welfare are determined by the jurisdiction in which the child was habitually resident at the time of the child’s removal or retention from that jurisdiction. The Regulations are concerned with the determination of forum. The policy with respect to the best interest of the child under the Regulations focuses upon the appropriate forum.[1]
[1] MW v Director-General of the Department of Community Services (2008) 244 ALR 205 at [58].
Where, as here, proceedings have been filed within a year of the child’s removal to Australia, the circumstances in which the Court must make a return Order may be summarised as follows:
a)The Applicant must be the responsible Central Authority, or a person, institution or other body that has rights of custody in relation to a child for the purposes of the Convention (reg 14(2));
b)The Application must be filed within one year after the child’s removal or retention (reg 16(1)(b));
c)The removal or retention must be “wrongful” under sub-reg (1A) (reg 16(1)(c))
The concept of “wrongful” includes five separate ingredients. Regulation 16(1A) provides that the removal or retention is wrongful if all the following conditions are met:
i)The child was under 16 years of age;
ii)The child habitually resided in a Convention country immediately before the child’s removal to, or retention in, Australia;
iii)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;
iv)The child’s removal to, or retention in, Australia, was in breach of those rights of custody;
v)At the time of the child’s removal or retention, the person, institution or other body:
a)was actually exercising rights of custody (either jointly or alone); or
b)would have exercised those rights if the child had not been removed or retained.

Issues

On the Mother’s evidence filed in response to this Application, it initially appeared that the Mother was opposing the Order sought for the child’s return to Country B on numerous grounds. That is, it appeared that some or all of the elements the Central Authority must establish under reg 16 of the Regulations were in issue, and in addition, it appeared that the Mother was raising a number of grounds of exception to a mandatory return under the Regulations and also sought that conditions be imposed on the return Order.
The transcript of the proceedings before me on 18 November 2011 will reflect that the Mother made a number of concessions, both at the outset of the hearing and over the course of the hearing, particularly once Counsel for the Central Authority, Mr Green, had completed his oral submissions. The Mother then explained, in effect, that she was self-represented and had not understood fully the application of the Regulations or the full import of the application of the Regulations to the facts here. I incorporate reference to the transcript of the hearing before me for the concessions made by the Mother in the respects referred to, but in the circumstances I propose to deal with each relevant matter under the Regulations.

Habitual Residence

The Applicant must establish that immediately before the child was removed to Australia on 6 June 2011, he habitually resided in a Convention country.
There is no issue that Country B is a Convention country and is the country from which the child was removed on 6 June 2011. There is also no issue that the Applicant is the responsible Central Authority; that the Application was filed within one year of the child’s removal; and that the child is under 16 years of age; and I thus formally make findings in these respects.
Whilst initially both in her affidavit material and even at the outset of the hearing before me, the Mother indicated that habitual residence was in issue; by the conclusion of Mr Green’s oral submissions as Counsel for the State Central Authority, the Mother no longer pressed this as an issue. That is, the Mother conceded that immediately before the child’s removal from Country B on 6 June 2011, he was habitually resident in that country.

That concession was, in my view, properly made given the following facts.
As already noted, the child was born in Country F in 2001. He commenced living in Country B in February 2003, and aside from a period earlier referred to in 2005 when the child was temporarily relocated by his Mother to Country H, the child has lived in Country B all his life.
The child returned to Country B with the Mother in May 2006 and had lived in Country B as his place of habitual residence from then until his removal on 6 June 2011.
As already noted, subsequent to May 2006, the child commenced attending primary school in Country B. He continued to attend school in Country B up until 6 June 2011.
Aside from formal education, the child participated in a number of extra-curricular activities in Country B, including hockey, dance group, a form of martial arts and swimming. These activities are detailed in the Mother’s affidavit filed 7 June 2011 in the Country B proceedings.
As already noted, prior to final separation in 2008 or early 2009, it appears that the child had considerable interactions with the extended families of both the Mother and the Father, and the Mother’s June 2011 affidavit confirms this.
Whilst there is issue about the extent of the Father’s involvement in the child’s life post-final separation, it is common ground that the child remained involved in all aspects of his life in Country B, including his school life referred to.
As already noted, initially it appeared that the Mother had an issue with respect to the child’s habitual residence being in Country B. For example, at paragraph 30 of her affidavit filed in November 2011, the Mother deposes:
[C’s] previous residences have always been temporary where I move in order to undertake work. My residence has always been in Australia.
That deposition is not borne out on the Mother’s own evidence as a whole. The Application for Dissolution of Marriage filed by the Mother stands in contrast, and likewise, the Mother’s affidavit filed in the proceedings in Country B on 7 June 2011 is contrary to that deposition.
In the end, the Mother conceded before me that she no longer challenged the proposition that, immediately prior to 6 June 2011, the child was habitually resident in Country B. On the broad factual enquiry outlined by the High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582 at paragraph [34], it can be seen that, on the evidence before me, the child’s important connections were in Country B as at 6 June 2011. He then resided in Country B and did so habitually. The intentions of the Mother (subsequent to her completing the Application for Dissolution of Marriage in December 2009 expressing the then-current intention to live permanently in Country B) to a different effect cannot be effectual to alter the child’s habitual residence absent some evidence of common intention of the parents or circumstances attending the child’s relocation as at 6 June 2011 sufficient to result in the conclusion that his habitual residence in Country B came to an end.
As there is no such evidence, and given the Mother’s concession, I find that immediately before his removal on 6 June 2011, the child was habitually resident in Country B.

Rights of Custody

Again, the transcript of the hearing before me will confirm that the Mother conceded, in the end, that immediately before the child’s removal to Australia, the Father had rights of custody in relation to the child under the law of Country B.
As I understand the Mother’s position, whether the child’s removal to Australia constituted a breach of those rights of custody remained in issue.
Regulation 29 outlines the evidentiary provisions in the Regulations facilitating the receipt of certain evidence in this proceeding. Regulation 29(2) renders admissible as evidence of the facts stated therein, the Application and supporting documents. Regulation 29(3) renders admissible in evidence affidavits of witnesses who reside outside Australia, even if the witness does not attend the proceeding for cross-examination. Regulation 29(4) renders admissible statements setting out or summarising evidence given in the proceeding in a court in a Convention country, and evidence in relation to custody of a child. Regulation 29(5) enables this Court to take judicial notice of a law enforced in Country B and of Country B decisions of a judicial or administrative character. Regulation 29(6) facilitates the admission into evidence of Orders or decisions made in Country B.
The Applicant relied upon the expert evidence of the law of Country B provided by affidavit evidence from Ms M. That evidence was unchallenged, and despite the feature that the Mother is represented in the Country B proceedings, no controverting expert evidence was relied upon by the Mother.
I accept that Ms M has relevant specialised knowledge within the meaning of s 79 of the Evidence Act 1995 (Cth) and that her opinions are based on that knowledge. I thus accept that expert’s opinion that:
a)Both the Mother and the Father, as the child’s parents, have “parental responsibility” for the child (section 46 of the Family Law Act 2003 (Country B));
b)“Parental responsibility” is defined to mean, “All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” (section 45 of the Family Law Act 2003 (Country B));
c)No Orders made in Country B have diminished the Father’s parental responsibilities (section 47(2) of the Family Law Act 2003 (Country B));
d)Country B Courts have held that a parent with parental responsibility has the right to the care of the child and the right to determine the place of residence of the child (The Permanent Secretary for Justice v Cheer (Case Number 10/SUV//0293));
e)Section 200 of the Family Law Act 2003 (Country B) has the effect that for the purposes of the Hague Convention, the Father should be regarded as having “rights of custody” for the purposes of Hague Convention applications.
I also note that sections 81(1)-(3) of the Family Law Act 2003 (Country B) are expressed in the following terms:
81.
(1) If a residence order, a contact order or a care order (the "Part VI order") is in force, a person who was party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not, intentionally or recklessly, take or send, or attempt to take or send, the child concerned from [Country B] to a place outside the [Country B] except as permitted by subsection (3).

(2) Subsection (1) does not prohibit taking or sending, or attempting to take or send, the child from [Country B] to a place outside [Country B] if-
(a) it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the Part VI order was made; or
(b) it is done in accordance with an order of a court made under this Part at the time of, or after, the making of the Part VI order.

(3) A person who contravenes subsection (1) commits an offence and is liable to a fine of $10,000 or to imprisonment for 3 years.
Whilst the Mother asserted in her affidavit evidence that the Father did not have the right to determine the place of residence of the child, and that the Mother had sole authority to determine where the child should live, as noted, the Mother did not provide any expert evidence, nor did she refer to the laws of Country B to support those broad assertions. The evidence filed on behalf of the Applicant, which I accept, is contrary to those propositions and I have also referred to s 81 of Country B legislation.
In J v Director-General, Department of Community Services [2003] FamCA 929, the Full Court, by reference to authority, approved of a three step process in determining whether a requesting person has rights of custody, and applying that process to the present case, that requires:
a)Establishing, on the evidence before the Court, what rights, if any, the Father had under Country B law in relation to the child at the time of the child’s removal;
b)To resolve, as a matter of Australian law, whether those rights amount to “rights of custody” within the meaning of reg 4 of the Regulations;
c)Finally, the question is whether or not the removal of the child was in breach of those rights.
Given the foregoing, I am satisfied that the Father had the right to determine where the child lives under Country B law, and that amounts to “rights of custody” under Australian law within the meaning of the Regulations. The child’s removal was in breach of those rights.
There can be no doubt that, at the time of the child’s removal from Country B, the Father was actually exercising rights of custody, or would have exercised those rights if the child had not been removed to Australia.
Whilst both the Mother and the Father jointly possessed the right to determine where the child lives, the exercise of those rights by one person possessing those rights (here, the Mother) may at the same time breach the rights of custody possessed by another person possessing those rights of custody (here, the Father).
By determining that the child’s place of residence should be relocated from Country B to Australia, the Mother may have been lawfully exercising her rights of custody, but at the same time breached the rights of the Father, who possessed the same rights of custody.[2]
[2] Director-General, Department of Community Services v Crowe (1996) FLC 92-717.
In this case, the Father was pursuing proceedings in the Court in Country B to have the child’s parenting arrangements for his future determined. It is plain that the Father was seeking to be involved in the child’s school and was seeking to have an interim Court Order in Country B observed. In Soysa v Commissioner of Police [2001] FamCAFC 39, the Full Court discussed the level of involvement necessary to support a finding that a parent was exercising their rights of custody in the Hague Convention sense, and I am satisfied, on the evidence before me, that the Applicant discharges the onus of proof in this respect.

Wrongful Removal

There is no issue that the subject Application was filed within one year of the child’s removal from Country B to Australia. There is no doubt that the child is under the age of 16 years. It is not in issue that Country B is a Hague Convention country. Thus, taken with the above findings, the Applicant has established that there has been a “wrongful removal” within the meaning of the Regulations, and the Court must order the return of the child to Country B unless the Mother can establish one of the matters in reg 16(3).
The onus rests upon the Respondent to establish one or more of the matters set out in reg 16(3).[3]

Grave Risk of Returning the child to Country B that would expose him to physical or psychological harm or otherwise place him in an intolerable situation

[3] DP v Commonwealth Central Authority; JLK v Director-General, Department of Community Services [2001] HCA 39.

By her affidavit filed 16 November 2011, the Mother deposes in paragraph 5(a) to the effect that she would return with the child and her new daughter, N, if a return Order is made in these proceedings.
Likewise, in her oral submissions before me, the Mother confirmed that she would voluntarily return to Country B if a return Order is made with respect to the child.
The Mother does not establish, on the balance of probabilities, that she would be at any physical, psychological or other risk of harm should she return to Country B.
The Mother’s affidavit filed 7 June 2011 contains a number of references to instances of family violence. The Father denies all except two of these incidents, and about those he expresses regret. In turn, he makes allegations against the Mother. However, none of the alleged incidents occurred after the Mother and the Father had finally separated, now some three years ago. There is simply no evidence upon which this Court could comfortably conclude that the Mother’s return would probably result in further family violence involving the Mother or the child.[4]
[4] Harris v Harris [2010] FamCAFC 221 at 143-4.
The Mother therefore does not establish that, even if her evidence as to the past history be accepted, there is a likelihood of the child being subject to the grave risk referred to in circumstances where the Mother is voluntarily returning to Country B with the child if a return Order is made.
In her affidavit filed 4 November 2011, the Mother raises an issue with respect to the child requiring counselling, and asserts to the effect that there are no qualified child psychologists or professional family reporters that can make a proper assessment of the child’s well-being, “…in his current environment.”
Earlier, in her affidavit of 6 June 2011, the Mother deposed to a belief that the child was not in need of counselling, although she opined such counselling would be needed if the Father, “…continues with his behaviour.” The Father places the asserted lack of counsellors in Country B in issue, and has provided a curriculum vitae of a psychologist in Country B.
The Mother does not establish that her perceived lack of counselling services exists as she files no corroborative evidence to support such an assertion, nor does the Mother provide any convincing evidence as to whether or not the child requires counselling or, if he does, the nature of it.
Whilst the Mother also has advanced assertions in evidence as to her economic circumstances being poorer if she returns to Country B, there is insufficient evidence to establish that this, in and of itself, constitutes a grave risk from the point of view of the child. The Mother has a past history of successful employment in Country B, including self-employment and she does not dispel in her evidence the notion that she will continue to have financial support from her current partner.
There is also evidence in the Father’s case that he has provided financial support to the Mother and the child in the past and the Mother deposes in her most recently filed affidavit that she will have an entitlement to 20 per cent of the Father’s net income under the child support system in Country B.
I therefore find that it has not been established by the Mother that there is a grave risk that the return of the child to Country B would expose him to physical or psychological harm or otherwise place the child in an intolerable situation.

Objection to Return

In her submissions before me, the Mother acknowledged that she had raised the issue of the child’s objection in the context of a return to the Father’s care. Once it became clear to the Mother that, in circumstances where she too would return to Country B if a return Order was made and that the child would remain in her primary care pending further Orders of the Court in Country B, the Mother acknowledged that the child did not object to returning to Country B per se, but rather would object if it meant that he would be returned to live with the Father.
In her affidavit filed 4 November 2011 at paragraph 33, the Mother deposes:
[The child] objects to being returned to his father and has reached an age and degree of maturity that his opinion should be considered.
(emphasis added)
As the Mother confirmed in her oral submissions, that is the very nature of the child’s objection. That is, an objection to being returned to his father as opposed to an objection to returning to Country B in circumstances where the Mother will be returning to Country B if a return Order is made.
In De L v Director-General, NSW Department of Community Services (1996) FLC 92-706, the High Court cited with approval a statement confirming the principle that the return to which the child objects is an immediate return to the country from which the child has been wrongfully removed, so that the Court of that country may resolve the merits of any dispute as to where and with whom the child should live.
Before me, having heard the submissions of Counsel for the Applicant and having had it explained to her that it would be a matter for the Courts of Country B to determine parenting arrangements if a return Order is made, the Mother did not maintain that the child objects in the relevant sense and her revised position is consistent with the evidence. I would not be prepared to find on the evidence as a whole that the child objects to returning to Country B within the meaning and application of that exception in the Regulations.

Human Rights and Fundamental Freedoms

In circumstances where the child is an Australian citizen, the Mother raised an argument to the effect that it was an imposition upon the child’s rights and freedoms to be ordered to return to Country B.
As already noted, there are parenting proceedings on foot in Country B. Those proceedings will necessarily involve consideration of the child’s best interests, as was confirmed by the expert, Ms M.
There is well-settled authority to the effect that Australian citizenship is no bar to ordering the return of a child to another Convention country where the requirements of the Regulations are met.[5]
[5] Laing v The Central Authority (1999) FLC 92-849 and DJL v The Central Authority (2000) FLC 93-015.
It has been said of reg 16(3)(d) that it has very limited application and would only arise on the, “…rare occasion that the return of the child would utterly shock the conscience of the court or offend all notions of due process.”[6] It has no application in this case.
[6] McCall and State Central Authority; Attorney-General (C’th)(Intervenor) (1995) FLC 92-551 at 81,518.
I find that the Mother has failed to establish any of the exceptions to a mandatory return.

Conditions

At paragraph 7 of her affidavit filed on 16 November 2011, the Mother deposes to the effect that should a return Order be made, she seeks that the Father provide an undertaking that he would pay the amount of $600.00 per week by way of child support, “…until such time as agreement is reached between the parties or Orders made varying the amount that Mr D pays.”
Regulation 14 of the Regulations refers to the Orders a responsible Central Authority may apply to the Court for, including, “an Order requiring that arrangements be made (as necessary) to place the child with an appropriate person, institution or other body to secure the welfare of the child until the request under reg 13 is determined,” (reg 14(1)(a)(v)) and in sub-paragraph (vi), “any other order that the responsible Central Authority considers appropriate to give effect to the Convention.”
The Applicant does not seek any order of such a kind nor does the Applicant support the conditions sought to be imposed by the Mother and submits that no conditions are necessary to give effect to the Convention.
Regulation 15 further provides that if the Court is satisfied that it is desirable to do so, the Court may, in relation to an application made under reg 14, make an Order of a kind mentioned in that regulation or, “make any other order that the court considers to be appropriate to give effect to the Convention.”
It is clear enough that it is possible for the Court to impose a condition upon an Order to ensure necessary or essential financial assistance is provided but it seems to me that the relevant test is that the Court must be satisfied that it is desirable to do so, having regard to the need to give effect to the Convention.
Thus, in Department of Community Services v Frampton (2007) FLC 93-340, in circumstances where it was not in issue that there would be a grave risk to the child if the mother was unable to return to the country of origin with the child, this enlivened the requirement to give consideration to whether conditions could be imposed that would alleviate the risk. Thus, the Full Court thought it essential that the Mother in that case have the legal ability to stay in the Country F pending the parenting proceedings and also considered it essential, considering the mother’s financial position, that the means of transporting the child and the mother to the Country F be provided. The Full Court also thought it essential that some financial arrangement be made to ensure the mother and the child had the ability to find accommodation upon their arrival, and have provision for their day to day living expenses, “…at least until an application for support can be made by the mother to an appropriate court.”

On the evidence before me, it does not appear that it is “essential” that a condition be imposed of the kind contended for by the Mother.
In her affidavit filed on 16 November 2011, the Mother confirms that her own parents will pay for the air tickets to Country B for the Mother and her child N.
Whilst the Mother asserts that she will be unable to reside with her parents upon returning to Country B, that assertion is not expanded upon in circumstances where, on the Mother’s own affidavit evidence of 6 June 2011 (paragraph 212), the Mother and her present partner, Mr K, helped finance the flat that was extended at her parents’ house.
Whilst the Mother asserts that she will not have employment upon returning to Country B, she suggests that shortly prior to her travel to Australia, her contract with the Country B government expired. However, her contract with the government in fact expired in October 2010, subsequent to which her evidence establishes that the Mother became engaged in self-employment in her own business.
Importantly, the Mother refers in her affidavit to the Father’s income of $120,000.00 per annum and deposes:
I would anticipate that Freddie would be obliged to pay child support at the rate of 20 per cent of his net income if an order was made.
Nothing in the Mother’s evidence indicates why it would not be that the Mother can immediately engage mechanisms to obtain child support in Country B upon her return to that country.
Moreover, the Mother’s evidence does not satisfactorily establish that her current partner, Mr K, cannot provide for the Mother and his baby daughter.
In summary, I am not satisfied on the evidence advanced by the Mother that it is desirable to impose the condition sought by the Mother as appropriate to give effect to the Convention.
I therefore make orders in terms of those set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 December 2011.

Associate:

Date: 8 December 2011