Fabian & Azarola - [2023] FedCFamC1F 949

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fabian & Azarola [2023] FedCFamC1F 949

File number:

SYC 5734 of 2023

Judgment of:

REES J

Date of judgment:

8 November 2023

Catchwords:

FAMILY LAW – HAGUE CONVENTION – Return application for only one child of the relationship – Assessment of grave risk of exposure to psychological harm - regulation 16(3)(b) and its application – Sibling with significant medical issues required to reside in Australia with the mother – Application by the father for the return of the eldest child to Singapore – Separation of siblings – Where the child has existing behavioural issues – Lack of parental cooperation – Where the Court finds there is a grave risk of exposure to psychological harm upon return – Orders for the father’s return application to be dismissed

Legislation:

Family Law Act 1975 (Cth) ss 69, 69E, 111D(1)(f)

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1), 16(1A), 16(3)(b), 16(4), 16(5)

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children

Cases cited:

Bant v Clayton, (2015) 53 FamLR 621

DP v. Commonwealth Central Authority; JLM v. Director-General, NSW Department of Community Services (2001) 206 CLR 401

Isles & Nelissen [2022] FedCFamC1A 97

LK & Director-General Department of Community Services (2009) 237 CLR 582

N and S and the Separate Representative (1996) FLC 92-655

Oswald & Karrington (2016) FLC 93-726

Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611

Division:

Division 1 First Instance

Number of paragraphs:

177

Date of hearing:

25 & 26 October 2023

Place:

Sydney

Counsel for the Applicant:

Ms Mallett K.C.

Solicitor for the Applicant:

Broun Abrahams Burreket

Counsel for the Respondent:

Mr Anderson

Solicitor for the Respondent:

Bartier Perry Lawyers

ORDERS

SYC 5734 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR AZAROLA

Applicant

AND:
MS FABIAN

Respondent

ORDER MADE BY:

REES J

DATE OF ORDER:

8 NOVEMBER 2023

THE COURT ORDERS:
1.That the Hague Convention Return Application filed 17 August 2023 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Fabian & Azarola has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:

The proceedings before the Court relate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fabian & Azarola

Details

AGLC: Fabian & Azarola [2023] FedCFamC1F 949
Case: [2023] FedCFamC1F 949
Decision Date: 8 November 2023

CaseChat Overview and Summary

In this family law matter, the father, Azarola, applied for the return of their eldest child, X, to Singapore under the Hague Convention on the Civil Aspects of International Child Abduction. The mother, Fabian, opposed the application, arguing that returning X would place him at a grave risk of psychological harm. The Federal Circuit and Family Court of Australia was tasked with determining whether there was a grave risk of psychological harm to X if he were returned to Singapore.

The central legal issue before the court was whether the return of X to Singapore would expose him to a grave risk of psychological harm, as outlined in regulation 16(3)(b) of the Hague Convention. This required the court to assess the evidence regarding X’s existing behavioural issues, his diagnosis of ADHD, and the impact of being separated from his sibling Y, who required medical treatment and would remain in Australia with the mother. The court had to weigh the risk of psychological harm against the rights of the father under the Convention.

The court found that X had significant vulnerabilities, including a diagnosis of ADHD and possible Autism Spectrum Disorder. The father’s lack of cooperation with the mother and the potential for severe psychological harm if X were separated from his sibling Y were critical factors. The court concluded that the grave risk of psychological harm to X from being separated from his brother and returned to Singapore outweighed the father’s rights under the Hague Convention. Consequently, the court dismissed the father’s return application.

The court issued an order dismissing the Hague Convention Return Application filed by the father. The order noted that the form of the order was subject to review or variation in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

SYC 5734 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR AZAROLA

Applicant

AND:

MS FABIAN

Respondent

ORDER MADE BY:

REES J

DATE OF ORDER:

8 NOVEMBER 2023

THE COURT ORDERS:

1. That the Hague Convention Return Application filed 17 August 2023 be dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

A Hague Report was prepared by the Court Child Expert (“the Expert”) and the Expert was cross-examined.BACKGROUND Some information about this family is needed to give context to the determination. The parents, who are Australian citizens, met and married in Australia and in 2011, moved to the United Kingdom where both the children were born. In 2015 they moved to Singapore where they lived together until late 2022. The parents had difficulties finding educational facilities which suited X. The school where he was enrolled in 2022 was the eighth in which he had been enrolled but both parents agreed that X had settled well at that school and progressed satisfactorily. In Singapore, the parents consulted a psychologist, Dr C who first saw X on 31 August 2021. In his report, Dr C stated,[X] was reported to have a diagnosis of [a developmental disorder] and a history of language delay. He had attended a number of specialist, early intervention educational settings and was then enrolled in [E School], Singapore (a special needs school). [X’s] parents were concerned about poor focus and impulse on his part. Dr C assessed X over three sessions and diagnosed him with attention deficit hyperactivity disorder (ADHD), recommending that ADHD medication be trialled with a psychiatrist. He also recommended that X have individual talk/behavioural/art therapy and an occupational therapy assessment. Dr C stated,I recommended access arrangements (reasonable accommodations) in school tests and examinations (25% extra time, small group invigilation, prompting assistance and rest breaks.) Working memory training was also recommended. Dr C noted that the mother, in the history she provided, referred to X’s tendency for certain behaviours. Dr C last saw X in November 2021. X was referred to Dr D, a consultant psychiatrist, who saw X in November and December 2021, March and December 2022 and in July 2023. Dr D reported,[X] was noted to have experienced language delay and [a developmental disorder] which required learning support and interventions with an Occupational Therapist and in Speech and Language Therapist in the years preceding his appointment …The parents reported that [X] had a long standing history of distractibility, inability to follow through with tasks, impulsivity and inattention … Dr D prescribed medication for X. After X’s last appointment in July 2023, which he attended only with his father, Dr D stated that X’s prognosis, with treatment, was considered good. Dr D noted that X “wasn’t ready to talk in detail about the incident with [Y]” and suggested that therapy be “introduced at a later juncture once he was more ready to open up if needed”. Y has been diagnosed with a number of health challenges, including but not limited to a condition that would ultimately require surgery. In late 2022, Y’s health deteriorated and the parents agreed that the mother would bring him to Sydney for surgery at F Hospital. The mother and both children came to Sydney in late 2022. Three days later, Y became very ill at the home of the maternal grandmother and was taken to hospital where he underwent surgery. X was present when Y was being revived.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I am satisfied that X would be placed at risk of psychological harm if he were only to spend time with his mother and brother three or four times each year.CONSIDERATION In determining whether there is a grave risk in returning X to Singapore to permit the courts in Singapore to determine his future parenting arrangements, some guidance can be found in the cases relating to the assessment of unacceptable risk of abuse. In Bant v Clayton, (2015) 53 FamLR 621, Tree J, writing separately, said,Risk assessment involves determining first, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations - even accepting they may be imprecisely expressed within parameters - will inform whether the risk is adjudged to be acceptable or not. Similar statements were made by the Full Court in Oswald & Karrington (2016) FLC 93-726 where their Honours said,First, a finding expressed in terms of the balance of probabilities (ie “high risk”) is not the test to be applied in assessing future hypothetical events which may or may not occur. With respect to the assessment of future potential risk to children, the assessment requires identification of the nature and magnitude of the risk and whether or not the risk posed is unacceptable. In Isles & Nelissen [2022] FedCFamC1A 97, referring with approval to the decision of Fogarty J in N and S and the Separate Representative (1996) FLC 92-655, the Full Court stated,Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child (at 82,713–82,714) and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm. Further, their Honours adopted, as a correct statement of the law, the decision of Hale LJ (as her Honour then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec. The psychological harm which might be suffered by X is very serious. This is a child who has significant vulnerabilities. He has been diagnosed as suffering from ADHD. Dr P stated that X presented to her with a trauma response “compounded by features suggestive of underlying neurodiversity with suspected Autism Spectrum Disorder (ASD) in addition to his current diagnosis of ADHD.”

File number:	SYC 5734 of 2023
Judgment of:	REES J
Date of judgment:	8 November 2023
Catchwords:	FAMILY LAW – HAGUE CONVENTION – Return application for only one child of the relationship – Assessment of grave risk of exposure to psychological harm - regulation 16(3)(b) and its application – Sibling with significant medical issues required to reside in Australia with the mother – Application by the father for the return of the eldest child to Singapore – Separation of siblings – Where the child has existing behavioural issues – Lack of parental cooperation – Where the Court finds there is a grave risk of exposure to psychological harm upon return – Orders for the father’s return application to be dismissed
Legislation:	Family Law Act 1975 (Cth) ss 69, 69E, 111D(1)(f) Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1), 16(1A), 16(3)(b), 16(4), 16(5) Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children
Cases cited:	Bant v Clayton, (2015) 53 FamLR 621 DP v. Commonwealth Central Authority; JLM v. Director-General, NSW Department of Community Services (2001) 206 CLR 401 Isles & Nelissen [2022] FedCFamC1A 97 LK & Director-General Department of Community Services (2009) 237 CLR 582 N and S and the Separate Representative (1996) FLC 92-655 Oswald & Karrington (2016) FLC 93-726 Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611
Division:	Division 1 First Instance
Number of paragraphs:	177
Date of hearing:	25 & 26 October 2023
Place:	Sydney
Counsel for the Applicant:	Ms Mallett K.C.
Solicitor for the Applicant:	Broun Abrahams Burreket
Counsel for the Respondent:	Mr Anderson
Solicitor for the Respondent:	Bartier Perry Lawyers

SYC 5734 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR AZAROLA Applicant
AND:	MS FABIAN Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	8 NOVEMBER 2023