Director General, Department of Community Services and Marshall

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES NSW & MARSHALL

[2007] FamCA 1116

FAMILY LAW – CHILD ABDUCTION - Hague Convention - child brought to Australia from Italy - objection of the child - grave risk

Family Law (Child Abduction Convention) Regulations 1986 (Cth) 16(3)(b), 16(3)(c)

Agee and Agee (2000) FLC 93-055.

De L v Director-General, New South Wales Department of Community Services and Anor (1996) 20 Fam LR 390 (De L (High Court) No 1).

Director General of Family and Community Services v Davis (1990) FLC 92-182.

DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081.

Gsponer v Director General, Department of Community Services, Vic (1989) FLC 92-001.
Re A (A Minor) (1998) 1 FamLR (Eng) 365.

APPLICANT:

Director-General, Department of Community Services, NSW

RESPONDENT:

Ms Marshall

FILE NUMBER:

SYC

2189

2007

DATE DELIVERED:

21 September 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Mushin J

HEARING DATE:

6 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tockar

SOLICITOR FOR THE APPLICANT:

Legal Services, Department of Community Services

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Horowitz and Bilinsky

Orders

That the application filed on 27 March 2007 dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mushin delivered this day will for all publication and reporting purposes be referred to as Director General, Department of Community Services NSW v Marshall

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2189 of 2007

Director-General, Department of Community Services, NSW

Applicant

And

Ms Marshall

Respondent

REASONS FOR JUDGMENT

Introduction

In December 2006 the wife brought the child of herself and her husband, M, aged 11 years, to Australia from Italy without the husband's knowledge. They have remained living in Australia to the present time.
The husband has made application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") for the return of the child to Italy which is conceded by the wife to be his place of habitual residence. The application is brought by the State Central Authority for New South Wales ("the Applicant") pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations") which are enacted pursuant to the Convention.
The application is opposed by the wife on two main discretionary grounds. The first of those is that the child objects to the return, that his wishes are beyond "the mere expression of a preference for ordinary wishes" and that he "has attained an age, and a degree of maturity, at which it is appropriate to take account of his … views".
The second of the wife’s discretionary grounds is that there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The Conduct of These Application

Both the applicant and the wife have been represented by counsel. The parties have relied on a considerable amount of affidavit material and I have been greatly assisted by thorough and comprehensive summaries of argument prepared by both counsel.
As is usual with such an application, the parties have relied on the affidavit material, the summaries and submissions and, other than cross-examination of the Family Consultant to whom I shall refer in due course, I have not heard viva voce evidence. In making findings of fact, I rely on the Full Court's approval of the statement by Jordan J in the following terms:
"The first thing to observe is that there is much conflict in the evidence. These are summary proceedings and issues must be determined on the papers. This often presents the Court with difficulties. It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see, Re F (1992) 1 FLR 548). As was submitted by counsel for the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.[1]

[1] Panayotides and Panayotides (1997) FLC 92-733 at 83,897.

Background Facts

The husband was born in Italy and is presently aged 63 years. The wife was born in the Middle East and is presently aged 52 years. The wife migrated to Australia in approximately 1974 or 1975 and became an Australian citizen in 1983.
The husband and wife met in Italy in 1983 or 1984 while the wife was on holiday there. Their relationship continued for some years and they married in April 1991. They lived in Milan for the first few months of their marriage and then moved to another village.
The wife alleges that from shortly after their marriage a great deal of the husband’s conduct was highly dysfunctional. It is alleged that in early 1992 the husband "escaped" to Switzerland to avoid possible prosecution in Italy for involvement in trafficking of stolen vehicles. It is further alleged that in the same year the husband was arrested by police in Austria and served a term of imprisonment of three months during which time the wife and the child also lived there. Following the husband's release from prison, he returned to Switzerland where he was allegedly charged with the theft of a jacket. He then allegedly travelled to both Yugoslavia and Tunisia.
In response, the husband asserts that he had demonstrated that the alleged theft was a simple misunderstanding. The wife alleges that the husband was also arrested in Tunisia, following which he returned to Italy and was imprisoned in Verona, for a relatively short period, until approximately December 1995.
The wife alleges that following the husband's release from prison as described in the last paragraph, she and her husband resumed living together in the town in Italy to which they had moved shortly after their marriage.
The child was born in Italy in April 1996. The circumstances of that birth are controversial. The wife alleges that the child was born prematurely as a result of an assault on her by the husband. The husband denies any assault. Counsel for the applicant submitted that the wife had given contradictory evidence with regard to this alleged assault and as a result, I could not be satisfied that it took place. While I am not persuaded that the alleged contradictions in the wife's evidence impugn her credibility as asserted by counsel, it is neither possible nor necessary to make a specific finding on an individual allegation of assault. I will consider the question of the husband's alleged violence towards the wife during their relationship in due course.
The mother alleges that shortly after the child’s birth, the father's brother and his wife offered to "buy" the child from the wife. She alleges that she was put under considerable pressure by the husband to accept the offer. Both the husband and his brother and sister-in-law deny any such offer.
One of the wife's recurring topics in her evidence is the allegation of sustained and significant family violence against her and the child by the husband. In particular, she alleges such violence continued after the child’s birth. She alleges that she sought assistance from the police but to no avail. In response, the husband denies ever having assaulted the wife.
In late 1996 the wife received news from Australia that her father was ill. Her family in Australia purchased two tickets for herself and the child to travel to Sydney. It is common ground that the wife and the child lived in Sydney for more than a year. There is a difference between the husband and the wife as to the precise length of time of that stay. The wife asserts that it was one year and nine months and the husband asserts that it was six months less than that. Nothing turns on that divergence in the evidence for the purpose of this application.
It is common ground that following the wife's visit to Australia with the child, they returned to Italy and resumed living with the husband. However, the wife alleges that her return was preceded by a telephone call which she received from the husband from Italy to inform her that he had "reformed". She says that as a result, she was persuaded to return to Italy.
There is further divergence in the evidence of the husband and the wife on the question of the proposed child care arrangements following the return to Italy referred to in the last paragraph. The wife alleges that the husband and his family insisted upon the child going home with his brother and sister-in-law. She claims that the child stayed with them for "a few days". The husband alleges that the mother was less concerned with the care of the child than she was with her own affairs and that the child was largely cared for by his sister-in-law. The wife further alleges that the husband insisted that the child spend time with his brother and sister-in-law and that "for about 3 months" the child lived part-time with them and part-time with the husband and the wife.
The child commenced kindergarten in 1999 in a nearby town. The mother asserts that after school the child usually went to the home of the husband's brother and sister-in-law for a few hours where he was looked after by the sister-in-law.
In December 1999 the wife's family in Australia paid for two airline tickets for the wife and the child to visit them in Australia. It is common ground that the husband agreed to this trip on condition that they returned to Italy after Christmas. The wife asserts that she did not intend to return to Italy. Part of the reason for that is alleged to be that shortly prior to the trip to Australia she had found the child cradled in the arms of the husband's sister-in-law with one of her breasts in his mouth. That is denied by the sister-in-law.
The wife and the child did not return to Italy immediately after Christmas 1999. The wife alleges that in March 2000 she received a telephone call from the husband informing her that he was terminally ill and had been given one month to live. She asserts that she agreed to go back to Italy with the child for one month to visit the husband. However, upon her return she realised that she had been deceived and that in fact, there was nothing wrong with the husband. She further alleges that upon that return the husband confiscated the child’s passport.
The wife further asserts that following the return to Italy the alleged pattern of abuse perpetrated by the husband continued unabated and she sought assistance from the local police. She asserts that they informed her that there was nothing that they could do to help her.
As part of the alleged abuse referred to the last paragraph, the wife asserts that the husband assaulted the child by kicking him in the buttocks or slapping him. All the abuse is denied by the father who nevertheless swore, in support of the assertion that he never hit the child, that that was "except for a very occasional slap when he refused to stop playing on his videogame console and do his homework".
In 2000, the father having confiscated the child’s passport, the wife telephoned the office of the Australian Consul in Milan seeking to obtain another passport. However, she was advised that she could not obtain such a passport without the husband's signature.
The wife alleges that in 2003 she arranged through friends in Australia for the father to obtain employment in Sydney for a period of three months. In addition, she asserts that she consulted a lawyer who advised her to approach the Australian Embassy for assistance.
The mother alleges that she started communicating with the Australian Embassy in Rome in early 2006. The purpose of the communication was to obtain consular assistance to enable her and the child to return to Australia. Late that year, the mother was informed by the Australian Embassy that the child would be given an Australian passport in his own name. It is common ground that that occurred without the knowledge or consent of the husband. Following the issue of that passport, the mother then arranged secretly for her family to buy airline tickets for herself and the child to travel to Australia.
The wife alleges that she was assaulted by the father in December 2006 and that he jammed her hand in the stove. The husband denies the allegation.
The wife and the child left Italy on 29 December 2006 and travelled to Australia without the husband's knowledge or consent. In February 2007 she commenced proceedings in the Federal Magistrates Court pursuant to Part VII of the Family Law Act 1975 seeking parenting orders with respect to the child and, in particular, an order that he live with her. Those proceedings have been stayed pending disposition of this application.

The Application

On 30 January 2007 the husband applied to the Central Authority of the Convention in Italy seeking the return of the child in accordance with the Convention. That application was transmitted to the Central Authority in Australia and was in turn transmitted to the State Central Authority for New South Wales on 19 March 2007. The present application was filed by the State Central Authority on 27 March 2007.
The application came before the court for directions on 23 April 2007 and an Answer was filed on behalf of the wife on 17 May 2007.

The Regulations

For the purpose of this application, it is common ground that application has been made for the return of the child who has been removed to Australia and that the application was made within one year of that removal. Further, it is conceded on behalf of the wife that the removal to Australia was wrongful in accordance with the meaning of that term in sub-Regulation 16(1A) which includes a concession that at the time of the wrongful removal the husband was exercising "rights of custody" in accordance with the meaning of that term in the Regulations. As a result of the concessions made on behalf of the wife referred to in the previous two paragraphs, I find that the Applicant has made out a prima facie case for an order for the return of the child to Italy.
The Regulations provide that in circumstances in which the matters referred to in the last paragraph are proven, the Court "must", subject to sub-Regulation 16(3), order the return of the child in accordance with the application. Sub-Regulation 16(3) provides a discretion to the Court to refuse to make an order for the return of the child in certain circumstances. The wife relies on that discretion in her resistance to the making of an order for return to Italy.

The Wife’s Case

The burden of proving one or more of the factors for the operation of the discretion referred to above shifts to the wife. Accordingly, I now turn to an examination of the evidence which is submitted to support the wife's response to the Applicant's case.
Sub-Regulation 16(3) empowers the Court, in its discretion, to refuse an order for the return of the child to the requesting country in the event that one or more of several factors is established. In this application, the mother relies on the following:
16(3) [When court may refuse to order a child's return]
A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
…
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii) the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views…
Initially, I propose dealing with the two paragraphs of the Regulations relied on by the wife separately. However, the second of those paragraphs, that is the question of any objection by the child to being returned, directly impinges on the first paragraph. In particular, the child's evidence through the Family Consultant, to which I will refer in due course, corroborates the wife's evidence in significant areas.
In my outline of the background facts above, I have set out a number of matters which, on the basis of the way in which this matter was argued, are no longer relevant to the wife's case, even if they were at an early stage of this litigation. For example, while the wife's allegations of the husband's criminal activities, particularly outside Italy, do not cast the husband in a good light, it has not been submitted on behalf of the wife that they are relevant to either of the factors relied on by the wife to establish her case.

Grave Risk

The Regulations require that any grave risk which is sought to be established in support of an order that the child not be returned must be a risk to the child and not to the wife. In my recital of the background facts referred to above, I referred to a number of allegations by the wife of violence against her by the husband. In her affidavit material, the wife related a small number of specific allegations of physical violence and has also alleged violence against her by the husband for most of their relationship. However, that is specifically a risk of violence to the wife. Nevertheless, a risk of physical violence to the wife may well constitute at least a risk of psychological violence to the child. Accordingly, it is necessary to consider the strength of the wife's evidence in this regard, particularly given the lack of cross-examination to which I have previously referred.
In addition to the wife's evidence referred to above with regard to physical violence against her by the husband, Counsel relied on various statements annexed to the wife's affidavits. At the commencement of this hearing, counsel for the wife requested that I close the Court so that people making statements referred to in the previous sentence would not be identified to visitors in the Court who were observing proceedings. I declined to close the Court but with the consent of counsel for the Applicant, I agreed that the makers of those statements would not be referred to in a way which would identify them in Court or in these reasons for judgement.
Mr B, a businessman who lives in Sydney, swore an affidavit in support of the wife's case on 18 June 2007. He deposed to having gone on a business trip to Europe in 1996. He visited the husband and wife at their home and stayed with them for several days. At that time, the wife was pregnant with the child. Mr B was very critical of the state of the home, its lack of general heating and small amount of available food. He assisted the wife by providing her with money to pay for electricity which was allegedly about to be cut off. On one further visit in 2001, Mr B and one of the wife’s brothers, visited the husband and the wife and stayed with them for a few days. At paragraph 8 of his affidavit Mr B deposed to the wife having told him that the husband "abused and physically assaulted her on a regular basis." He also deposed to the wife having told him that the husband's brother would only assist the husband with money:
if I let [the child] go and live with them. I don't want [the child] to go there at all anymore because they try to make it like [the child] is really their child and not mine. [The sister-in-law] tells [the child] that she is his mother and she tells him that I'm no good.

Mr B also deposed to the husband having told him:
[The wife] won't allow [the child] going to live with [the brother] and [the sister-in-law]. She is fucking up [the child's] future.
A further affidavit sworn on behalf of the wife by Ms C on 14 June 2007 corroborates the wife's evidence as to her assertion that she was the primary homemaker and parent and that the husband did not provide money for basics such as food. While Ms C deposed to her observation of tensions between the husband and the wife when she visited them at their home in Italy, she did not depose to any observed physical violence.
The wife's brother swore an affidavit in support of the wife's case on 14 June 2007. He swore that the wife had told him that the husband had "punched me in the stomach" which "caused my waters to break" at the time of the child's birth. The wife's brother also corroborated the wife with regard to the state of the home in the absence of heating and sufficient food.
The wife's brother deposed that during a second visit to the husband and the wife's home in 1999 and also during telephone conversations that he had with the wife both before and after that second visit, the wife had told him:
[The husband] assaults and abuses me on a fairly regular basis. I feel that I am unable to get any real help from anyone.
In the same affidavit the wife's brother corroborated the wife with regard to the issue of the husband wanting the wife to give the child to his brother and sister-in-law.
The wife's brother also gave evidence that he met with the husband in Australia several times when the husband came to Australia in an attempt to arrange employment here. The wife's brother deposed that on such occasions the husband complained about the wife not allowing the child to live with the brother and sister-in-law and said that once the child reached twelve he would “sort [the wife] out” and that “when the time comes I’ll fix [the wife] up”.
Mr K, an employee solicitor of the wife's solicitor, swore an affidavit in these proceedings on 19 June 2007. The affidavit annexed two documents in support of the wife's case. The first of those documents, an unsigned and undated facsimile transmission from a purported friend of the wife whose name is not specifically stated here for reasons referred to above, referred to the husband having said "bad words to his son when he is drunk, which means every day" and having heard the wife "escaping" from the husband "in the middle of the night" and having "always heard her screaming". However, because the document is not sworn, I decline to give it any significant weight.
The other document annexed to the solicitor's affidavit purports to be from "a group of people" who knew the husband and the wife "very well". This document, which is dated 2 June 2007, is also very critical of the husband and his treatment of the wife and child. In particular, it refers to the husband having deprived the wife of basic living requirements such as money, furnishings and like matters. The document refers to the child having received from the husband:
only insults and humiliations, at times blows and to bed without dinner [sic]. The continuous deprivations and humiliations have unfortunately undermined [the wife’s] health but she never gave in, she always sought to keep her family united, until when she was no longer able to cope with the situation and fortunately was able to leave.
Again, because the makers of the document, of which the quotes referred to in this paragraph are translations, are not identified, and the document is not sworn, I must be very wary of the weight which I give it and I find that it is not prudent to rely on this evidence.
The wife's affidavit sworn on 19 June 2007 contains material relevant to this issue. Annexure "AM7" to that affidavit is a statement apparently signed by a woman who lives in Italy and who has some knowledge of the wife. The document refers to the wife as seeming to be "sad and tired … because of troubles and discussions with her husband". The document does not specifically corroborate the essential aspects of the wife's case and I do not place any weight on it.
Mr K swore a further affidavit on 28 June 2007. That affidavit has annexed to it three statements by people living in the area of the former matrimonial home of the husband and the wife. The first of those statements, by a person who was described during the hearing as being a prominent person in the localities, attests to the fact that the wife is a "good, sensible and reliable person." While it is signed, it does not corroborate the wife on any fundamental factual issue in this application.
The second document in the affidavit referred to in the last paragraph is a translation of a handwritten document which is also purportedly written by a number of people in the locality of the matrimonial home. It is critical of the husband with regard to his alleged "displayed total disinterest" in the child's scholastic achievements and is correspondingly complimentary of the wife with regard to her involvement.
The third document is purportedly by a woman who also lived in the locality. It is signed. It praises the mother for her involvement with the child and her parenting abilities and asserts that the mother:
persisted for years in a distressing situation experienced in [the husband’s village]. I often saw her crying night and day… terrified that her Brother-in-law, childless, might take away her son… who was her only reason for living. … To live at times, she even had to sell off household items, various objects, especially to pay electricity bills etc.
I regard this document as having some small corroborative value for the wife's case.
The previous paragraphs provide some corroboration for the wife's allegations against the husband with regard to family violence, from which the wife's counsel seeks to persuade me to infer that the wife, and therefore the child, is at grave risk if I order the child's return to Italy. However, the strength of that evidence is limited and on its own, without further material, I may well find that the wife has not made out her case for grave risk.

The Family Consultant’s Evidence

On 23 May 2007 the Family Consultant read a number of documents in these proceedings and interviewed the child with the assistance of an Italian interpreter. She provided a report dated 17 May 2007 which is evidence in these proceedings. At the outset of this hearing, counsel informed me that neither of them proposed cross-examining the Family Consultant. However, I called her of my own motion as I required clarification of one aspect of her evidence.
The order pursuant to which the Family Consultant prepared her report specified the provisions of sub-Regulation 16(3)(c). While the report specifically addresses those factors, its contents also provide a significant insight into the question of grave risk of both physical and emotional harm. With regard to the question of physical harm the Family Consultant recorded:
He said that when his parents were fighting he would often say in a "big" voice, "Enough!" or sometimes put his body "in the middle" but claimed that this would usually just result in his father then "smacking", "pushing" or "punching" him. The hitting of him would be on his head or "bum" and he would sometimes cry because his father is "very strong".
The child informed the Family Consultant that the husband had required him to sleep in the husband's bed until he was "about 6". Even if the wife insisted that the child's sleep in his own bed, the husband would often come into his room when he was asleep and carry him back into the husband's bed.
[The child] also said that his father had often said to him "Pull your bottom apart, I want to see what's in there" and had wanted to "put his finger in my bum". [The child] had not liked this and had screamed, especially if his father would hold his body down to the bed when he was trying to put his finger in. [The child] said he did not know why his father wanted to do this and that he (his father) had always said he was "just joking" and stopped before it actually happened probably, [the child] thought, because of his screaming.
The child discussed other criticisms of his father with the Family Consultant. They include:
·    his concern that his father wanted to "give me to his brother";
·    his allegation that he was often "taken by force" to go and stay with the brother and sister-in-law;
·    his "indignant tone" when explaining that the sister-in-law had once rung his mother to invite "my mum to my birthday"; (emphasis by the Family Consultant)
·    the assertion that his father had "never worked" and had no money; and
·    had lived on his mother's money.
The Family Consultant also wrote the following with regard to her interview with the child:
[The child] says that he "never" wants to see his father again, adding "I don't want to have him for my dad". He referred to his father as [his given name] and said he had started to do this when he came to Australia because "He doesn't deserve to be dad". He added, "I don't miss him or think about him. My mum says call him, talk to him, but I don't. I don't want to".
In relation to Italy, [the child] could think of "no good things" about it. He said that three quarters of the people who live in his village come from other places -- Romania, Albania -- and that they "talk loud and use rude words" and play with "bombs" (the interpreter explained that these are like crackers but more dangerous) in their fingers [sic] which make a big noise. Even his school was "not much good". He said that he knew from "two years before" that he and his mother were going to come to Australia and that he was "excited".
The Family Consultant then considered the nature of the child's objection and whether it "shows a strength of feeling beyond the mere expression of a preference or ordinary wishes". She wrote:
[The child's] objection to returning to Italy was strong beyond the mere expression of a preference. His antagonism and feeling of anger towards his father was extreme as were his expressed fears and dreads. Most children, even those who have been victims of violence and exposed to violence towards others, nonetheless maintain an ambivalent stands towards the perpetrator if that person is a parent. It would also be expected that child would feel some sense of loss in relation to leaving a familiar environment and school friends etc even if the leaving of those elements meant relief from an intolerable situation. [The child] demonstrated no ambivalence. It may be that relief is still the uppermost feeling he has and will remain so unless expression of other more complicated feelings is encouraged. It may be that he has been prevailed upon by others (either deliberately or not) to hold a certain position and that that leaves no room to him to have other feelings or memories.
At times when [the child] spoke he appeared genuinely emotional, almost outraged, at the "very bad" things he was telling me had happened to himself and his mother. If they are not true and have been inculcated in his mind by his mother, then she would be a most disturbed person and he would be grave risk in her care. There are other times when [the child] seemed to be trying to remember things he had been told (or reminded of) by someone else and it was evident that he understood the significance of his interview with me in relation to the court case and was wanting to impress upon me the seriousness of what he was saying. Many of the incidence recounted by [the child] where the same as those described in his mother's affidavit, sometimes a bit confused as to timing and other details.
The above comments are not intended to suggest that the incidence as described by [the child] did not happen, rather that, if they did, [the child] and his mother either have very similar memories or they had discussed the incidents many times between themselves. Given their closeness this and isolation in Italy, and the context of his (sic) dispute, this would not be surprising.
Finally, the Family Consultant considered the child's age and degree of maturity and whether it is appropriate to take account of his views. She wrote:
[The child] is an intelligent child with good verbal skills (especially given that he was communicating in his second language) and in some ways appeared mature for his years. It may be that his life experiences have given him an understanding that most 11 year olds do not have. If he and his mother have been living in the situation he described, it would be unsurprising for them to have formed a very close, mutually protective and enmeshed relationship with each other which could mean that [the child] has had to grow up more quickly than usual. He is not old enough to understand the complexities of his current situation and is still of an age when his thinking is very black and white rather than nuanced but this is not to say that his views should not be given weight. If what he told me is true, or even an exaggerated and/or embellished version of the truth, his fear and dread of returning to Italy (ie in his eyes, his father) are understandable. He has reached an age and degree of maturity at which it would be inappropriate if his wishes were not given significant weight.
By way of viva voce evidence from the Family Consultant, I sought to develop the question of whether any objection held by the child to return was actually an objection to returning to his father rather than to Italy. It is common ground that the Regulations and the authorities require that the Court must regard an order for return as being return to the country rather than to the other parent.
The Family Consultant's viva voce evidence was very brief. It consisted of my asking her several questions, following which neither counsel sought to cross-examine. The essence of that evidence was to confirm that in the mind of the child, an order for his return to Italy was synonymous with a return to his father. I will discuss the significance of that in due course.
It is appropriate to particularise the factors relied upon by the respondent to establish the operation of the discretion.
The evidentiary factors which are submitted to constitute that grave risk, insofar as they are derived from the lay evidence, are as follows:
·    the husband's alleged dysfunctional behaviour including asserted criminal behaviour in several countries;
·    the husband's alleged family violence against the wife;
·    the husband's alleged family violence against the child;
·    the husband’s alleged alcohol abuse which allegedly contributes to the husband’s family violence;
·    the husband's alleged conduct in seeking to remove the child from the wife and place him in the care of his brother and sister-in-law;
·    the alleged inability of the local police in the family's place of residence to be able to afford the wife and the child sufficient protection to keep them safe due to the husband’s family’s power and influence within the community; and
·    the inferential corroboration of the above as evidenced by the preparedness of the Australian Embassy in Rome to grant the wife and child a passport.
The evidentiary factors which are submitted to constitute a grave risk to be derived from the expert evidence of the Family Consultant are as follows:
·    the child allegedly being smacked, pushed or punched by the husband when the child stepped between the husband and the wife during alleged assaults;
·    the child allegedly being required to sleep in the husband's bed despite the wife’s opposition;
·    the husband allegedly attempting to insert his finger into the child's anus;
·    the child's apparent concern that he would be required to go to live with the husband's brother and sister-in-law;
·    the child's criticism of the husband because of the husband's alleged financial reliance on the wife;
·    the child's statements to the Family Consultant the did not want to see his father again and did not want him for his father;
·    the child's apparent dislike for the village in which he lived and the people who live there;
·    the child's "expressed fears and dreads" of being returned to Italy which he equates with being returned to his father; and
·    the opinions of the Family Consultant that the child is of a sufficient age and degree of maturity such as would make it appropriate to give "significant weight" to his wishes.

The Applicant’s Case

I have already noted the husband's firm denials of violence against the wife or the child, save for what might be considered as chastising the child for bad behaviour. Counsel for the applicant submitted that I could not be satisfied to the requisite degree that any violence had in fact occurred and I must therefore find that the wife had not made out a case. By way of alternative submission, counsel asserted that on any view, the wife had exaggerated the claims of physical violence against her by the husband to the extent that her evidence was unreliable. Counsel for the Applicant further submitted that the wife had not corroborated her allegations against the husband in circumstances in which such corroboration was available to her. In particular, the wife had not provided any medical or like evidence which, it was submitted, could be reasonably expected to have been available to her.
With regard to the child's objections, counsel for the applicant submitted that the objections were to return to the father rather than to Italy and therefore should not be given any, or any significant, weight.

The Evidence

In circumstances in which the evidence has not been tested by cross-examination, I must be wary of making factual findings. In considering the evidence, I propose to divide it into four categories. They are:
·    the husband's and the wife's sworn evidence;
·    other sworn lay evidence;
·    unsworn lay evidence; and
·    the written and viva voce evidence of the Family Consultant.

The Husband and the Wife’s Sworn Evidence

The husband and the wife each contradict the other's evidence. Neither has been cross-examined and standing alone, in my view there is no forensic basis on which to prefer the evidence of one over the other. Because the burden of establishing her case rests with the wife, it therefore cannot be said that she has established that case on her own evidence alone.

Other Sworn Lay Evidence

There is some corroboration of the wife's evidence in other lay evidence which has been sworn. Again, it has not been tested and accordingly must be treated with caution. Further, the areas of the evidence in which the wife is corroborated cannot be considered to establish the wife's case of a grave risk to the child as required by the legislation. While issues of financial deprivation, dysfunctional behaviour by the husband and inadequate provision of staples such as food would undoubtedly be relevant to an application in which the best interests of the child are the paramount consideration, that test is not relevant to the present application. There is limited corroboration of the wife in the area of her allegations of physical violence against her by the husband being a photograph of her with injuries apparently consistent with an assault on her which she alleges on oath were caused by the husband. There is further corroboration in the evidence of the Family Consultant from her interview with the child.
Counsel for the Applicant submitted that I should draw an adverse inference against the wife because of a failure to produce medical evidence to corroborate her allegations of physical violence by the husband. It was submitted that the inference should be that such evidence would not have assisted the wife's case. I do not accept that submission. In my experience, it is not unusual for a victim of family violence to not seek medical attention. In any event, the evidence satisfies me that were the wife to be brought into immediate contact with the husband, she may well be at risk of physical violence at his hands. It was submitted on behalf of the wife that the Courts and other institutions in Italy were unable to protect the wife against such a risk. Because of the way in which I propose deciding this matter, it is not necessary for me to make a finding on that question.

Unsworn Lay Evidence

The unsworn lay evidence referred to above is couched in largely flowery language and, on any view, is not at all helpful. In particular, the fact that it is neither sworn nor tested leads me to the view that it would be extremely unsafe to place any weight on it at all. Further, as with the other sworn lay evidence its relevance to the present application is marginal. Accordingly, I decline to rely on this evidence.

The Written and Viva Voce Evidence of the Family Consultant

There was neither any cross-examination nor submission to suggest that there is any part of the Family Consultant's evidence which I should reject. There was no suggestion that the Family Consultant had erroneously reported on any aspect of her interview with the child. In addition, there was no challenge whatsoever to any opinion advanced by the Family Consultant.
The lack of any criticism of the Family Consultant by either counsel is in accordance with my view that her evidence should be accepted in all respects. That evidence was thorough, detailed and consistent and was most helpful.

Discussion

The Child’s Objection to Being Returned

In Agee and Agee[2], the Full Court of this Court held that "three distinct issues" were raised by the language of sub-Regulation 16(3)(c). They are:
1. whether the child objects; if so
2. whether the child has attained an age and degree of maturity at which it is appropriate to take into account the child's view; and
3. in the event that there is an affirmative answer to both the foregoing, whether the discretion arising from the word “may” in the opening phrase of reg 16(3) should be exercised to refuse to order the return of the child.[3]
[2] Agee and Agee (2000) FLC 93-055.
[3] Ibid at 87,906.
The sub-Regulation “should be accorded its natural and ordinary literal meaning. That is, that the child:
... objects to being returned'' (in this case to New Zealand) qualified however, with a consideration as to whether the child has ``... attained an age and degree of maturity at which it is appropriate to take account'' of that child's views.[4]
[4] Ibid.
The evidence of the Family Consultant satisfies me to the requisite standard that the child objects to being returned. To the extent that it may be suggested that there is some ambiguity in the child's objection as between his return to Italy and his return to his father, the same evidence further satisfies me that the child is unable to distinguish between the two. He understands an order for his return as being a return to his father. In the child's mind, a return to Italy is synonymous with a return to his father. In my view, on the facts of this case the issue therefore does not arise.
The foundation of the child's objection to being returned is his antipathy towards his father arising out of what the child sees as being his father's treatment of him and his mother. That objection is deeply held to the extent that the Family Consultant described the child as being in "fear and dread". The entirety of the wishes of the child has expressed to the Family Consultant is consistent with that last concept. Such an objection is a long way beyond "the mere expression of a preference or of ordinary wishes".
The child is aged 11 years and, as is established by the evidence of the Family Consultant, is well able to express his views. As referred to above, the Family Consultant's evidence establishes that the child "has reached an age and degree of maturity at which it would be inappropriate if his wishes were not given significant weight". The detail, context and nature of the expression of the child's views lead me to agree with her opinion. There was no cross-examination of the Family Consultant to challenge those propositions.
Accordingly, I find that the child-
·objects to being returned to Italy;
·that objection “shows a strength of feeling beyond the mere expression of a preference or ordinary wishes”; and
·“the child has attained an age, and degree of maturity, at which it is appropriate to take account of his … views”.
Having made the findings in the previous paragraph, it follows that the wife has established a ground on which an order for return may be refused. However, by virtue of the inclusion of the word "may" at the beginning of the sub-Regulation, there remains a discretion as to whether I should refuse an order for return. Before deciding that question, I propose considering the question of grave risk. The later consideration of the final discretion is relevant to both paragraphs and particularly so in this matter.

Grave Risk

The concept of "grave risk" has three elements to it. They are a grave risk of:
·    exposing the child to physical harm;
·    exposing the child to psychological harm; or
·    otherwise placing the child in an intolerable situation.
I now turn to a consideration of each of those factors separately.
The child alleges through the Family Consultant that he has been the victim of physical violence at the hands of his father. That violence includes circumstances in which he has stepped between his parents during an altercation between them, his father allegedly attempting to insert his finger into the child's anus and otherwise being physically chastised by him. Again, it is important to note the husband's denial of these allegations.
No matter what the child's perception is of the question of return to Italy as compared with a return to his father, the fact is that any order for return would be for return to Italy. Specifically, such an order would not be an order for return to the father. Accordingly, on one view it may be expected that the child need not be brought into any contact with his father, although that is an assumption on my part. There is no evidence as to whether the wife would be able to maintain herself, either with or without a contribution from the husband and there is no submission that any condition should be imposed in the event that I were to order a return to Italy. In the circumstances, I find it unnecessary to consider the question of imposing any condition.
On the basis of my assumption referred to in the last paragraph, I am prepared to conclude that the courts of Italy would be able to protect the wife and the child from any risk of physical violence although I note the untested evidence that the wife disputes that proposition. Accordingly, I conclude that the probability narrowly favours the proposition that the child would not be exposed to a grave risk of physical violence in the event that I ordered his return to Italy.
Turning to the question of grave psychological risk, the child has a perception that he would be at risk if he were returned to Italy. That perception includes a risk of physical harm to both himself and his mother, being placed in the care of his father's brother and sister-in-law and being returned to a physical and social environment in the town in which he has lived of which he has only negative opinions.
At this point it is necessary to differentiate between an objective risk and a subjective risk. While objectively, it may be open to discount any real risk of physical harm, on the subjective basis the child believes that he would be at risk. Accordingly while it is open to negate any physical risk, the subjective perception of the child of such a physical risk may, in itself, constitute an objectively considered psychological risk. In my view, the facts of this case lead me to the conclusion, to a very high degree of probability, that there is such a psychological risk.
The question remains as to whether such a psychological risk of harm is a “grave risk”. In Gsponer v Director General, Department of Community Services, Vic[5] the Full Court held that a “grave risk” of physical or psychological harm does not include “any physical or psychological harm” (original emphasis) but rather:
The physical or psychological harm in question must be of a substantial or weighty kind.[6] (my emphasis)
In interpreting the regulation in this way the Full Court drew on the views of the Court of Appeal in Re A (A Minor)[7] and noted that Nourse L.J had held:
…not only must the risk be a weighty one, but it must be one of substantial, and not trivial, psychological harm.[8]
[5] Gsponer v Director General, Department of Community Services, Vic (1989) FLC 92-001
[6] Ibid at 77,159.
[7] Re A (A Minor) (1998) 1 FamLR (Eng) 365.
[8] Ibid at p 372.
This interpretation in Gsponer was upheld by the Full Court in Director General of Family and Community Services v Davis.[9]
[9] Director General of Family and Community Services v Davis (1990) FLC 92-182 at 78,226 and 78,227.
In his dissenting judgment in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (“DP”)[10], Kirby J held that the “grave risk” must be “intolerable... extreme and compelling”, stating:
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'' 120, will invite the application of the exception.[11] (original emphasis)
[10] DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081.
[11] Ibid at paragraph 132.
In the majority judgement in DP, it was held:
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.[12]
[12] Ibid at paragraph 45.
The evidence of the Family Consultant is fundamental in my consideration of this issue. As previously noted, that evidence was not challenged. I was particularly influenced by the twice stated opinion of the Family Consultant that the child was in “fear and dread” of an order for return. Those words are consistent with the entirety of the child’s expressed views. The concept of an 11-year-old child being in “fear and dread” is most concerning. It is vastly more than a mere statement of preference. It is also more than the concept of “disruption, concern and anxiety” referred to in the majority judgement quoted above.
In my view, were I to order that the child be returned to Italy, it is highly probable that he would be traumatised. That translates to a degree of risk which is “substantial and not trivial” as well as being “intolerable … extreme and compelling”. Accordingly, I find that were I to order a return, the child would be placed at a grave risk of psychological harm which would, in turn, place him in an intolerable situation.

The court’s discretion in sub-regulation 16(3)

Having found that there is a grave risk of psychological harm if the child were to be ordered to return to Italy, there remains a residual discretion which arises from the word “may” at the beginning of sub-regulation 16(3).
In relation to the breadth of this discretion, the majority of the High Court in De L v Director-General, New South Wales Department of Community Services and Anor (De L (High Court) No 1) held:
The regulations are silent as to the matters to be taken into account in the exercise of that discretion and the “discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [regulations]” enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion. [13] (footnotes omitted)
[13] De L v Director-General, New South Wales Department of Community Services and Anor (1996) 20 Fam LR 390 (De L (High Court) No 1) at 403.
In that case Kirby J also addressed the scope of the court’s discretion to refuse to order the return of a child. His Honour stated:
… In my view, it is undesirable that this Court should limit the wide powers properly enjoyed by the experienced judges of the Family Court in discharging their duties, including by the exercise of the discretion which is reposed in them by reg 16(3) of the Regulations.[14]
[14] Ibid at 689.
Kirby J was of the view that the only limitation required was that judges exercise their discretion in a manner consistent with the Act. His Honour held that:
So long as the judge keeps clearly in mind the limited purpose of the jurisdiction conferred, the ordinary way in which the Regulations and the Convention are expressed to operate and the need for a clear and compelling case to sustain an objection which permits an exception to the ordinary duty to order the return of the child, it can be left to the judges to deal with individual cases as the evidence requires.[15]
[15] Ibid at 690.
Accordingly, the final discretion is to be exercised on the basis of the facts of the particular case and taking into account "the limited purpose of the jurisdiction conferred". The "limited purpose of the jurisdiction" refers to the fundamental purpose of the Convention and the Regulations which creates a jurisdiction relating to forum rather than to the best interests of the child. However, it is consistent with the authorities that the question of the child's interests be a consideration in the exercise of this discretion.
Consistent with my finding that the child would be traumatised by an order for return, it must follow that the child's interests would be adversely affected by such an order. Against that, were I to refuse an order for return, issues relating to the child's best interests could, and almost certainly would, be litigated in this jurisdiction. While that would create a forum advantage for the wife, such an advantage is greatly less than the disadvantage to the child of being returned to Italy.
While no submission has been made by either party seeking that I impose conditions on any order for return, I have nevertheless considered that issue. As a result of my finding that the risk to the child may be objectively assessed by me, the child's own assessment of that risk is subjective. Therefore, short of extensive therapy or counselling for the child before any return, which is not practicable in present circumstances, there is no condition which I might impose on an order for return which could protect the child against the risk which I have found to exist.
Accordingly, in all the circumstances it is appropriate to exercise the discretion in favour of dismissing the application.

Conclusion

There will be an order for the dismissal of the Applicant's application. There are proceedings between husband and wife in this Court pursuant to Part VII of the Family Law Act 1975 (Cth). It is open to the parties to approach the Court for a relisting of those proceedings following the conclusion of this application.

Orders

That the application filed on 27 March 2007 dismissed.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin.

Associate:

Date: 21 September 2007

[2007] FamCA 1116

21 September 2007

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