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 to the parenting of two children, X born 2011 and Y born 2013 (“the children”).
The children’s parents, Ms Fabian (“the mother”) and Mr Azarola (“the father”) are both Australian citizens and the children are Australian citizens.
For the reasons set out below, I am satisfied that I have jurisdiction to hear and determine the parenting dispute in relation to both children.
The family lived in Singapore from 2015 and remained there until the mother and Y came to Australia in late 2022 to seek urgent medical care for Y.
The father and X returned to Singapore, although at the present time, X is in Australia, having travelled here by agreement between the parents in mid-2023.
The mother now seeks orders that the children live with her in Australia. The father seeks orders for X to return to Singapore and Y to remain with the mother in Australia.
The mother seeks interim orders for sole parental responsibility for the children; that the children live with her and spend time with the father as agreed; that the father be restrained from removing X from Australia and for the appointment of a single expert to prepare a report in relation to matters relevant to the parenting dispute, including, inter alia, the mental health of the parents.
The father seeks the return of X to Singapore pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
In relation to Y, the father seeks orders to spend time with Y in Australia, including overnight time.
As a preliminary matter, I must determine two matters. Firstly, whether this Court has jurisdiction to determine the parenting dispute in relation to both children. Secondly, whether, pursuant to the Regulations, X should return to Singapore in circumstances where it is not disputed that the mother cannot return to Singapore but must stay in Sydney with Y.
The father relied on an affidavit sworn by him on 4 October 2023; an affidavit of the paternal grandfather sworn 5 October 2023; an affidavit of Dr B sworn 3 October 2023; an affidavit of Dr C, psychologist sworn 20 October 2023 and an affidavit of Dr D, psychiatrist, sworn 23 October 2023.
The mother relied on an affidavit sworn by her on 18 September 2023 and an affidavit of the maternal grandmother sworn 17 October 2023.
There was limited cross-examination of both parents. No other lay witnesses were required for cross-examination.
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.
The mother deposed that she has been told that Y has suffered a serious medical condition. He remained in intensive care for about three months and has since been transferred to a long-term unit where he remains, although it is planned that he will be discharged in late 2023.
In early 2023, X returned to Singapore with the father. The mother deposed,
This was agreed prior to our arrival in Australia and before [Y’s] medical emergency … I agreed that I would remain in Australia with [Y] until he recovered, and thereafter we would both return to Singapore.
The father travelled to Sydney for a period in early 2023, leaving X in Singapore in the care of friends for a few nights and then in the care of Ms G, who had been the housekeeper from mid-2022.
The father returned to Sydney for a week the following month, leaving X in the care of Ms G and a friend.
The mother travelled to Singapore later that month. X had a week off school. She deposed,
During the week I was in Singapore, [X] was very clingy with me. One night I slept in the same bed with him and he held me tight. He asked me to scratch his back and rub his tummy each night.
The mother deposed that she asked X if he wanted to do “Party Friday” which was a routine before she and Y left for Sydney and X said “Party Friday is lonely without [Y]”.
The mother returned to Australia one week later.
In early 2023, the father spent two nights in Country H and, separately, two nights in Country J, leaving X in Ms G’s care.
In March and April 2023, the parents agreed that their relationship had ended.
In early 2023, the father brought X to Sydney for two weeks. The mother deposed that,
[X] was very clingy towards me and even slept on the sofa with me, squeezing himself in with me instead of moving to the bed some nights.
The father and X returned to Singapore two weeks later. On the following day, the father left to spend four nights in City K, leaving X in Ms G’s care.
The mother deposed that, around one week later, she attended X’s parent-teacher interview by video. The mother was told that X was “a little more withdrawn” and she asked if a school counsellor could speak with X.
The mother travelled to Singapore in mid-2023 for a week when X was on holiday from school. The mother stayed in their Singapore home with X and Ms G, and the father travelled to Sydney. The mother deposed,
Again, [X] was clingy. He frequently and spontaneously asked me for hugs and kisses. He always held my hand. I slept in the same bed as [X]. He asked me to rub his tummy and scratch his back each night.
The mother deposed,
Whilst I was in Singapore, […] [X] and I had a discussion about [Y] and our family and I asked him “How are you going?” [X] began sobbing and said to me “It is too sad to talk about”. He then pulled away from me.
The mother was scheduled to leave Singapore two days before the father returned. The mother deposed that, in mid-2023, she sent a message to the father requesting that he confirm his return date. He did not respond. The following day, the mother sent an email to the father advising him that no arrangement had been made with Ms G to be available to care for X after the mother left and before the father returned. The mother made those arrangements. The mother messaged,
Can we please work on more communication around this. [Ms G] has also indicated that more broadly she is missing information that helps her support [X’s] supervision, pickups for ECAs and ensuring her schedule works around this.
The day after the mother left Singapore, Ms G messaged the mother,
I feel so sad after you left yesterday especially for [X] being away from his Mom. When I asked him to eat his biscuits, he said he has no feeling to eat coz [sic] he’s sad. Breaks my heart.
The father deposed that, in May 2023, the assistant head of X’s school wrote to the parents suggesting therapy for X. In late May or early June 2023, a therapist, Ms M, conducted an assessment of X. The father deposed,
At the time it was my observation that [X] was coping well with a very difficult situation.
In an email to both parents dated 15 June 2023, Ms M reported,
[X] felt that he has had minor difficulties for last 1-5 months. The difficulties distress him quite a lot interfering
1)a great deal in home life
2)only a little in friendship
3)only a little in classroom learning
4)not at all in leisure activities
[X] indicated that his difficulties make it harder by quite a lot for those around him.
[X] seems to indicate that he perceives himself to have a certain degree of distress internally, in particular from home life, though it is not currently externalising through disruptive or difficult behaviours.
In view of the above, kindly confirm your decision whether or not you wish to support [X] with play therapy in school …
(as per the original)
There followed an email discussion between the parents about whether X should engage in counselling. They were unable to agree.
On 17 June 2023, the father wrote in an email to the mother and Ms M, “… it is not clear to me that there is a serious problem to be addressed with therapy in the first place.” And, on the same day, “I think we should allow for the possibility that he’s dealing with things quite well”.
On 24 June 2023, the mother wrote,
Can you leave room for the possibility that an 11-year-old child doesn't have all of the emotional tools to deal with this on his own?
In an email dated 28 June 2023, the father responded,
My concern regarding therapy is that no allowance is made for the possibility that [X] might actually be handling the situation reasonably well.
On 28 June 2023, the mother wrote,
[X] told me again last night he still wants to talk to somebody about what’s going on and that he’s “too sad” about it…
The father responded, inter alia, “I don’t want to engage in these slanted and adversarial communications.”
No agreement was reached. X did not start therapy.
Dr D saw X in July 2023.
In mid-2023, the father and X travelled to Australia. The father booked flights for their return the following month for X to start the next school term.
On 14 July 2023, the mother sent a text to the father saying, inter alia, “we need to have a conversation” but unfortunately, after an exchange of texts, they did not meet. The mother interpreted the father’s response as a refusal to communicate although she conceded that she did not tell him what she wanted to discuss. In cross-examination, she said,
… he was not responding to any of my correspondence. This was the – he wasn’t trying to contact me. The fact that I reached out to him to ask to have a face-to-face discussion, I thought that he would assume it was important.
The mother organised a medical appointment for X on the day the father was to return to Singapore. Asked in cross-examination whether she thought the father should have been told about the appointment she replied, “I did not feel that I could communicate with [the father] in a constructive way.” The notes of the doctor are in evidence. It is clear that the mother was seeking support for X and she was given a referral to a paediatric clinic which, if I understand the evidence correctly, was not activated because the waiting list for an appointment was too long.
On that date, the father returned to Singapore.
The mother deposed,
When [X] arrived, he was very happy to see me. He ran into my arms and gave me a long and tight hug. I have found him to be clingier to me than when I had last seen him […] and he started to display some concerning behaviours which I will detail below.
In my home in [Suburb N] there is a second bedroom set up for [X] and [Y]. [X] will not sleep in this room. He insists on sleeping with me. [X] says to me “Mama sleep with me. This way we can hug while we are asleep”. [X] has also said to me “I am scared of the dark. I want to sleep with you”. Prior to [late] 2022 [X] and [Y] shared a room. [X’s] current bedroom in Singapore is located on the other side of the house and upstairs. [X] did not use to sleep with me and [Mr Azarola]. He was not scared of the dark. It is unusual for [X] to want to sleep with me each night. My [home] in [Suburb N] is two levels. [X] will not go upstairs on his own, even with the lights on. [X] will not shower unless I am sitting outside the bathroom. When it is time for him to shower he says “Mama I want you to sit outside while I shower.” When I asked him “why” he replied “I don’t want to be alone.” Since [X] arrived [in mid] 2023, I have sat outside the bathroom when he takes a shower. [X] did not need me to sit outside the bathroom while he showers when we were in Singapore.
When we leave the house [X] holds my hand the entire time, unless we are with [Y], then he holds onto [Y]. During the day he spontaneously asks me for hugs and kisses. He is very tactile with me and does not like me to be out of sight. I notice him always looking at me checking that I am nearby.
During the night, I have awoken to find [X] kissing me on my face and hugging me. This has occurred on two occasions. He does not do this for a prolonged time. It lasts for under a minute. This did not occur when I was last in Singapore.
Spontaneously during the day and at bedtime, [X] asks me to rub his tummy and scratch his back. This is something he has always loved, but it was a bedtime habit and not something we did in the middle of the day. He is about to enter Year 7, and asking for tummy rubs from his mother is not age appropriate.
At times, he is not age-appropriate, and he says to me “I want my mummy” in a baby voice. He demands frequent hugs and will interrupt meals and walk over and say to me “I want a hug.” He will lift his shirt and rub his stomach against me.
Since his arrival in [mid-2023], [X] has adopted a habit of grabbing my hand to suck my fingers before he goes to sleep. Sometimes I fall asleep at the same time as him but I always sit with him as he goes to bed.
At the dining table he grabs my hands across the table and will try to suck my fingers. He started “nibbling” on my hands and fingers after he arrived, often before going to sleep, and sucked on my finger one night. I do not pull my hand away so he does not feel uncomfortable or rejected. He has done this on at least 10 occasions.
On two occasions in [mid] 2023 when waiting to see a doctor he sat on my lap and licked me during doctor visits.
When trying to engage [X] in more serious discussions around what is happening in our family, [X] will respond by hiding under furniture and on one occasion […] he crawled like a dog away from me to avoid the conversation. I have observed that his behaviour and mood will suddenly change from sadness to almost clownish behaviour where he is joking around.
(As per the original)
In mid-2023, the mother took X to a general practitioner, Dr L, who noted that during the consultation, X sat on the examination couch tearing up paper which he said made him feel good. Dr L referred X to a paediatrician, Dr P. The mother did not tell the father either about seeing Dr L or the referral to Dr P despite being told by Dr L that both parents needed to be involved if a Mental Health plan was to issue for X.

Dr L noted,
Family situation complicating access to treatment as Dad is not supportive of psychological treatment at present.
I do not accept the proposition, put to the mother by King’s Counsel for the father, that her representation to Dr L was misleading.
On 26 July 2023, the mother emailed the father, saying, inter alia:
… I wish it didn’t have to happen over email, but I have made multiple requests for a conversation about coparenting and responsibility for our boys which cannot be ignored any longer.
We need a sustainable solution that is in the best interest of both of our sons. The current arrangement is not something I agreed to long term.
I believe it is time for [X] to be based in Sydney where he will live with me and his brother, and I want to discuss planning his life here.
The mother set out her argument in favour of X’s living in Sydney which included the presence of both the paternal and maternal extended families.
There was a second consultation with Dr L in mid-2023 in which Dr L noted that,
[X] doesn’t want to talk to GP today
Described his feelings by blowing a raspberry – said this was both about talking to GP and about his feelings in general when asked
Dr L told the mother that she was happy to be contacted by the father to discuss X.
Dr P saw X the following day. She reported,
[X] presented with quite abnormal social interaction. He was immature with use of baby language with me today. He was talking about himself with the “me” pronoun, e.g. when referring to sitting on his mother’s lap, he reported “me is heavy”. He also had abnormal social behaviour, and went to lick the tap in the clinic room as he was thirsty. He was otherwise observed playing on his iPad.
Impression
[X] presents 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. This is on the background of a hugely unsettling time, including critical illness of his younger brother, and rupture of the family unit, which is now dispersed between Sydney and Singapore.
Dr P wrote,
I would support [X] receiving trauma informed therapy alongside consideration of neurodiversity. I believe he has features of a traumatic response with avoidance, memory loss of his brother’s illness.
The father responded to the mother’s email of 26 July 2023 on 1 August 2023 saying,
I refer to your email of 26 July 2022 (sic) and agree with you that we need to have a parenting plan in place in a timely and thoughtful manner for the future care of the boys. I do not wish to rush this and we need to move carefully. Your current accommodation would clearly not permit both boys to live with you, and it is not in the best interests of the boys.
I do not wish to respond to other matters that you raise at this time save to say that you have not requested to discuss this proposal with me on numerous occasions.
It is unclear when the father was told about the consultations with Dr L and Dr P. He received a copy of Dr P’s report on 17 August 2023. On 6 September 2023, he emailed Dr P’s rooms asking for an appointment. The evidence does not establish whether he spoke with Dr P. Dr L’s notes of a long consultation with the father in September 2023 are in evidence and it is clear that, by this time, the father had a copy of the notes from the first appointment in mid-2023.
The expert’s report recommended that X start attending school “as a matter of urgency”. What happened thereafter is an example of the parents’ poor parenting co-operation.
On 27 September 2023, the mother’s solicitors wrote to the father’s solicitors stating that she wanted to enrol X in the local public school (named) pending the outcome of this application. She sought the father’s consent. The letter also stated that the mother had continued to engage a tutor to work with X on lessons provided by the school in Singapore. An immediate response was requested.
On 3 October 2023, the father’s solicitors replied stating that the father did not consent to X’s being temporarily enrolled in school and expressing his “strong view” that X should be returned to Singapore and his school there. The letter stated,
Our client is very concerned about [X’s] absence from school to date. Notwithstanding the above, given your client’s refusal to return [X] to his familiar school in Singapore, and stability and continuity that would provide, our client feels he has no alternative but to accept your client’s proposal for [X] to be enrolled at [the school].
Please provide the following forthwith:
1.What steps does your client intend to take to minimise the disruption and negative effect on [X]?
2.What arrangements does [the school] have in place to address [X’s] needs?
3.What does your client intend to communicate to [X], if he is to commence school in Australia?
On 16 October 2023, the father’s solicitors wrote,
The school term commenced [in] October 2023. Our client has not received direct communication from your client, nor have we received any correspondence from you, as to whether your client has taken any steps to enrol [X]. Could you please provide confirmation as to whether or not [X] is attending [the school]? Please also confirm that your client has authorised the school to provide all relevant details to our client (if that is required).
In addition, please provide your client’s responses to the questions contained in our correspondence of 3 October 2023.
On 20 October 2023, the mother’s solicitors wrote to the father’s solicitors asking for the father to engage in the enrolment process. The letter stated, inter alia,
Since August our client has been liaising with the administrative staff at [the school] in relation to [X’s] enrolment. Our client has been transparent about [X’s] circumstances. Consequently, the school has taken a cautious approach and referred the application for [X’s] enrolment to their legal department.
When our client received your letter dated 3 October 2023 to be conditional (sic) upon her providing a response to the matters enumerated 1, 2 and 3. As you are aware, when the letter was received, [the school] was closed for the end of term school holidays. When the school resumed, our client again returned to [the school] with a view to obtaining further information for your client to respond to the matters raised by him. By that time, she was understood (sic) that your client’s consent was not conditional. Regrettably, [the school] continues to take a very cautious approach in relation to [X’s] enrolment … It would assist if your client could engage directly with [the school] and communicate his consent to [X’s] immediate enrolment. In doing so, your client can make his own enquiries of the school and how it will assist [X’s] transition into the school.
At the commencement of the hearing on 25 October 2023, the father’s solicitors had not responded to this letter. The transcript of the father’s cross-examination about this issue is set out below:
MR ANDERSON:       And you sent a – your solicitors sent a letter dated 3 October – which is included in the bundle, your Honour, but I won’t burden your Honour with it at the moment.
That at the time, the school was closed; you agree that that’s the case, don’t you?
THE FATHER:            Yes. There had been ample time to enrol him prior to the holiday, but at the time of that letter, it was closed for the mid-year – mid-term holiday.
MR ANDERSON:       Can you just answer the question … rather than     ?
THE FATHER:            Okay.
MR ANDERSON:       being – trying to devalue the input that your wife – former wife has put into the schooling for [X]. We will get through things a bit quicker. Now, it has informed your solicitors in this letter that [Q School] takes a cautious approach and, as recently as yesterday – that’s when the – when [Ms Fabian] spoke to [Ms R], which – she was informed the enrolment application is being reviewed by the legal department. You agree that that’s what’s informed in that letter?
THE FATHER:            It’s in the letter.
MR ANDERSON:       And although she communicated that you had provided through your solicitors unconditional consent to him being enrolled, it was suggested:
It would assist if your client could engage with [Q School] and communicate his consent to [X’s] immediate enrolment. In doing so, your client can make his own inquiries of the school and how it will assist [X’s] transition into the school.
So had you – you haven’t taken that opportunity to speak directly with [Q School]?
THE FATHER:            On receipt of this, we wrote back promptly, asked for the history of communication between [Ms Fabian] and the school
HER HONOUR:          Would you like to answer the question you were asked?
THE FATHER:            What was the question?
MR ANDERSON:       Did you contact [Q School] as indicated in this letter that you could?
THE FATHER:            I asked for the contact details and I asked for the emails to be sent to me so I would know what I was inquiring about.
MR ANDERSON:       Would you agree that you’re not communicating to the school has put the school – did put the school in a position where they didn’t know whether you consented or not?
THE FATHER:            The – the one time that I had been asked to provide my consent, we wrote straight back and gave unconditional consent.
HER HONOUR:          Would you like to answer the question you were asked?
THE FATHER:            This – this letter – we received this a week ago. There hasn’t been a lot of time for me to make further investigations directly with the school, and as I understand it, it has been referred to the legal department. I would like some more knowledge about the history and why it would have been referred there. But as I said, the only time I’ve been asked, I provided consent, and I’ve asked for the contact details and the circumstances surrounding the communication.
MR ANDERSON:       Yes. You didn’t communicate with the school directly, as requested or suggested in this letter?
THE FATHER:            I asked for the contact details.
MR ANDERSON:       You didn’t contact them, did you?
THE FATHER:            I asked for the contact details.
MR ANDERSON:       All right. I won’t press the question, your Honour. I don’t think he wants to answer that question.
But, well, perhaps you should answer the question.
HER HONOUR:          You can assume, … that I infer your answer to be no?
THE FATHER:            Okay.
During the whole of this time, when the enrolment of X in school was clearly very important to both parents, neither emailed the other or simply telephoned the other to talk about how the impasse could be resolved.
The parents’ approach to a follow up appointment for X with Dr D in Singapore was similar. The father emailed the mother on 12 October 2023, stating,
[X] has an appointment with [Dr D] at 3pm […]. The link will be set [sic] to you on the day of the appointment.
X was in the mother’s care on the day of the appointment. There was no enquiry about whether that was a time suitable to her, noting there is currently a three hour time difference between Singapore and Sydney. Neither is it clear whether the appointment was for Singapore time or Sydney time.
The link was sent to the father by Dr D at 2.35pm Singapore time. The father forwarded the link to the mother at 5.41pm. Whether this was Singapore time or Sydney time is unclear. The mother in cross-examination said “I was on back-to-back work calls and missed the call.” The passage of cross-examination is reproduced below:
MS MALLETT:           You did not provide [X] to that appointment, did you, by Zoom?
THE MOTHER:          No, we missed it.
MS MALLETT:           You missed it? How can that be, … in [X’s] best interest for him not to have maintained contact with his prescribing psychiatrist?
THE MOTHER:          I was on back-to-back work calls and missed the call.
MS MALLETT:           Have you since communicated with [Dr D] to say, “I’m really sorry I missed this appointment. Can we rearrange? Can we schedule – reschedule?”?
THE MOTHER:          I wrote to [the father] immediately – well, not immediately. I wrote to [the father] that evening and I said, “I’m so sorry that we missed this. Can we reschedule?”
MS MALLETT:           I suggest to you you didn’t say, “Can we reschedule?” You simply said, “I missed it”. Sure about that?
THE MOTHER:          I cannot recall the exact words of the email.
MS MALLETT:           Well, you see     ?
THE MOTHER:          And then he wrote – he responded to me saying, “Why don’t you reschedule at a time that suits you?” I did offer other alterative days that I was available.
The mother did email the father later in the afternoon stating,
Apologies we had to miss this.
Can we reschedule for 4pm Sydney time for a weekday appointment? I can do any day this week except Thursday?
The father replied,
Why don’t you arrange an appointment directly at a time that works for you.
The mother did not concede that Dr D was X’s treating psychiatrist. She maintained that he had been retained only to prescribe medication for X’s ADHD.
In her submissions, King’s Counsel for the father offered, on his behalf the following undertakings:
1. The Father is willing to enter into undertakings to:
1.1.engage in family therapy with [Ms S] of [T Psychology] (or if unavailable, such other agreed therapist from [T Psychology]), with the father to contact [T Psychology] to secure an initial appointment within 7 days of the undertaking being given;
1.2.follow all therapeutic recommendations of [Ms S] (or such other therapist from [T Psychology]), including but not limited to the engagement of [X] in therapy.
2.The Father offers to enter into the following undertakings in support of and associated with the Orders returning [X] to Singapore:
2.1.to fully facilitate [X’s] communication and relationship with the mother and [Y], including asking [X] whether he seeks more communication with the mother and/or [Y];
2.2.engage in an Australian-based family dispute resolution process no earlier than 1 December 2023 and no later than 1 March 2024 regarding the parents reaching agreement upon parenting arrangements for [X] and [Y];
2.3.facilitate [X] travelling to Australia to spend time with the mother and [Y] for no less than 13 weeks per year, provided that the mother has given an undertaking that, pending any final orders or written agreement between the parents otherwise, she will return [X] to Singapore at the conclusion of all agreed periods of time in Australia.
The proposed undertakings were offered after the father’s cross-examination had concluded and were not put to the mother when she was cross-examined.
JURISDICTION
Although it was conceded by Senior Counsel previously appearing for the father that this Court has jurisdiction, I am conscious that a court cannot acquire jurisdiction by consent and therefore I will set out the reasoning process by which I have determined that jurisdiction exists.
Singapore is not a signatory to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996. ("the Convention").
Section 69 of the Family Law Act 1975 (Cth), (“the Act") gives jurisdiction to this Court in respect of parenting matters in specified circumstances, the first of which being that the child is present in Australia. The effect of the Convention is not to deprive this Court of jurisdiction in relation to certain children but rather to prescribe those cases where this Court "may exercise jurisdiction".
The circumstances in which a court in Australia may exercise jurisdiction in relation to a child who is habitually resident in a non-convention country are set out in s111CD(1)(f) of the Act in the following terms:
(f)       a child who is present in Australia, if:
(i)        the child is habitually resident in a non-Convention country; and
(ii)       any of paragraphs 69E(1)(b) to (e) applies to the child.
Relevantly, section 69E provides:
69E Child or parent to be present in Australia etc.
(1)Proceedings may be instituted under this Act in relation to a child only if:
…
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
The "relevant day" for the purpose of subsection (1) is defined as the day on which the proceedings before this Court were instituted, in this case 7 August 2023.
In the present case a number of the provisions on subsections (b) to (d) apply:
·The children are Australian citizens - s69E(b).
·The mother of the children is an Australian citizen and is present in Australia - s69E(c).
·The mother, who is the applicant in the proceedings, is present in Australia - s69E(d).
Thus I am satisfied that I may exercise jurisdiction in relation to both of the children in relation to the parenting proceedings.
Whether I should exercise that jurisdiction in relation to only one of the children is to be determined having regard to the Regulations.
THE ABDUCTION CONVENTION
Regulation 16(1) provides the legislative framework. If the application for return is made and the application is filed within one year after the child’s removal or retention, and the court is satisfied that the removal was wrongful under sub-regulation 16(1A) then the court must make the order unless one of the defences in sub-regulation (3) is made out.
Regulation 16(1A) provides:
For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d)the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child's removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained."
In LK & Director-General Department of Community Services (2009) 237 CLR 582 the High Court, dealing with the concept of wrongful removal said at [8]:
It will be observed that the requirements of each of the five paragraphs of reg 16(1A) must be satisfied if it is to be shown that a child's removal to, or retention in, Australia is wrongful. The first two requirements look to the age of the child (par (a)) and to whether the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia (par (b)). The remaining requirements hinge about the notion of "rights of custody in relation to the child". The rights that are to be considered are rights "under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia".
For the purpose of this application, I am satisfied that X was, at the relevant date, habitually resident in Singapore.

It was agreed that X had been wrongfully retained in Australia by the mother for the purposes of the Regulation.
DEFENCES
Regulation 16(3) sets out the available defences:
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)       the person, institution or other body seeking the child's return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)       each of the following applies:
(i)        the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
Here, the mother relies on subregulation (3)(b). It is important to note that I am not required to find that the child will be exposed to physical or psychological harm, but whether there is a grave risk that the child will be so exposed.
In relation to “grave risk”, the High Court in DP v. Commonwealth Central Authority; JLM v. Director-General, NSW Department of Community Services (2001) 206 CLR 401 ("DP"), Gaudron, Gummow and Hayne JJ stated:
39.… Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry…
…
41.… On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in "an intolerable situation". That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child."
42.Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description "grave". Leaving aside the reference to "intolerable situation", and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43.Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44.These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a "narrow" rather than a "broad" construction. There is, in these circumstances, no evident choice to be made between a "narrow" and "broad" construction of the regulation. If that is what is meant by saying that it is to be given a "narrow construction" it must be rejected. The exception is to be given the meaning its words require.
45.That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
(Emphasis added).
THE HAGUE REPORT
The family was interviewed by the Expert for the preparation of a Hague Report in late September 2023 and a report dated 16 October 2023 was issued.
The Expert noted that X has been in the care of a psychiatrist in Singapore and that the father told the Expert that “[X’s] psychiatrist in Singapore was of the view that [X] was managing and coping very well with his difficult family circumstances.”
The Expert reported that the father “generally did not raise concerns about [the mother’s] care of [X] ‘up until this abduction’”.
Whilst there appears to be no dispute that X’s behaviour has regressed, the parents do not agree about when this was observed. The Expert reported,
[The mother] identifies very worrying behaviours by [X] in his interactions with her, both during her visit to Singapore to see him in [mid] 23 and since he has been with her in Australia, including: [X] being clingy towards her and demonstrating age inappropriate behaviours, such as talking in a “baby voice”, wanting “tummy rubs” and frequent hugs, sitting on her lap, and licking her. It is understood that [X] has been sleeping with his mother since he has been in Australia, despite him being able to sleep in the second bedroom or [the mother] sleeping in the living room.
The Expert’s observations of X’s behaviour are set out in her report,
On arrival at the Court and when in the waiting area, [X] was observed to be laying on the seating, in the middle of his mother and [Y]. He was noted to be laying on and touching his mother, saying that he was tired and wanted to sleep. During discussion, it emerged that [X] had slept in the bedroom with his mother on the night prior to the interviews, while [Y] had slept in his own room. [X] was observed to continue to lie on his mother and he, somewhat intrusively, commenced sucking her fingers and licking her, saying that he was hungry and as if eating her fingers. In response, [the mother] was noted to gently tell [X] to stop this behaviour, without much response from [X] …
The Expert also commented that X “seemed reluctant” to separate from his mother to speak to the Expert alone.
After observing the children with the mother, the Expert spoke to the mother alone and reported,
[The mother] seemed to acknowledge that she is struggling in relation to the management of [X’s] current behaviours, such as the licking and sucking behaviour that [X] has exhibited with her in recent months. [The mother] indicated that she has previously had concern about whether or not [X] understands “consent”; with her referencing a time in 2019 when [X] had been “blowing raspberries” on her stomach, which she said had resolved. She acknowledged that [X’s] behaviours have regressed, which she seems to attribute to his family experiences and is why she considers that [X] requires therapy.
The father maintained that X did not exhibit regressed behaviour “when he was in his sole care in Singapore, or when he has spent time with him in Sydney (including on the weekend prior to the Report interviews).” After the Expert had observed the father and the children together, she spoke to the father and reported,
During this discussion, [the father] expressed considerable concern about the descriptions of [X’s] behaviours, as noted in [the mother’s] affidavit. [The father] said that [X] does not exhibit such regressed behaviour when he is with him.
The parents had different views about the relationship of the two siblings. The mother,
… presented the picture that [X] and [Y] have a close, affectionate, and “love/hate” sibling relationship. She considers that [X] has been particularly caring and nurturing towards [Y] since [Y’s] deteriorating health, noting that it was [X] who first obtained a response from [Y] when he was critically ill in the Intensive Care Unit. She feels that both boys have missed each other and, therefore, should be together.
The father,
… on the other hand, suggests that the boys have always had a somewhat “fractured” relationship, in that they have played separately, plus have different interests, communication abilities and socialisation needs. He acknowledged that [Y] has sometimes felt left out, but seemed to suggest that, over the years, the parents have done a lot to create activities for the boys to do together, although he feels that [X] becomes “bored” by some of the activities that [Y] loves.
The Expert reported, that,
[X] and [Y] were observed to playfully bump and push into each other, a game which they referred to as “squishy/squashy” and which both boys seemed to enjoy.
The Expert reported, of the interview with X alone, that it was difficult to engage him in discussion, “which is more usually able to occur with a child of [X’s] age,” but she stated,
It seemed important to ask [X] about how he might feel if he was, or was not, to live with [Y], to which he understandably replied, “that is very hard”. It seemed important to, again, acknowledge how hard [X’s] situation is for him, to which he replied, “that is right, it is too hard”.
Asked about things he liked to do, X included
… playing “squashing” with [Y], with [X] noting that this was the game that he and [Y] had been playing together in the Court waiting area. He said that [Y] also “likes squashing too”, saying that sometimes they like to “squash each other on the bum”. During this discussion about [X] and [Y] enjoying “squashing “each other [sic], [X] was noted to become much more animated and relaxed. He commented, “imagine me and [Y] squashing” his mother at the same time, “it is so funny”. In relation to his father, he said that he does not “really squash” him, but he did say that he had “even tried to tickle” him.
The Expert reported,
At the end of the interview, it was explained to [X] that the Court Child Expert considered that it might be important to let the Judge know that [X’s] family situation is too hard for him and to also to let the Judge know that he likes doing things with [Y], to which [X] smiled.
The children were observed by the Expert with the father and she noted,
Upon [the father] and [X] being taken to the assessment room where [Y] was waiting (with the nurse), [Y] seemed excited to see his father and both boys sat at the table with their father to do some drawing. [The father] was noted to set limits on the children’s behaviour, including the content of what they drew, expressing his disapproval of a drawing of poo. Instead, he encouraged the children to draw more age-appropriate pictures, although [the father] expressed his disapproval of [Y] having drawn a picture of McDonalds, again saying that this is not food that the children have been previously encouraged to eat. During these interactions, [Y] and [X] seemed relaxed and the children’s behaviours, particularly [X’s], were noted to be calmer than was observed at other times during the morning of the assessment. [X] subsequently initiated a conversation with his father about whether or not adopted siblings are able to marry each other, to which [the father] responded that this was an interesting question, but not necessarily one with a clear answer as different places have different rules about marriage. Discussion also occurred about food and eating (although [the father] later expressed to the Court Child Expert his discomfort about talking about food in front of [Y], due to the limitations of what food [Y] can now eat). At one point, [X] was noted to briefly approach his father to sit on his knee, and [Y] followed, with both boys briefly seeking physical affection from their father, which [Mr Azarola] reciprocated. [The father] confirmed that both children enjoy the “squashing” game.
As the observation progressed, the [X] and [Y] were noted to become physically interactive and started to run around the room. They approached the puppet theatre to play, at which point [the father] commented that some of the games in the assessment room were a “little infantile”, and so other activities, such as Uno, were pointed out to him. In response, [the father] suggested that they play Uno, a game which [X] and [Y] were obviously familiar. Much of the remainder of the observation was then spent with the children and their father sitting at the table cooperatively playing Uno together, which they seemed to enjoy. [The father] commented that he and [X] play chess together, saying that [X] is good at chess.
The Expert noted that, at the end of the observation, X said goodbye to the father and “of his own volition, shook his father’s hand.”
Under the heading “Evaluation” the Expert stated,
[X], [Y], and their parents, have all been required to endure, and adjust to, the type of family circumstances that would be emotionally intolerable for most children, and also for their parents. Given that it seems unlikely that, at least into the foreseeable future, [X’s] family will be in a position to all live in the same country, the decisions to be made, by the parents or the Court, are of the type that would be intolerable for any parent. This assessment has identified a number of possible risk and safety concerns for [X], primarily as alleged by the parents, if he returns to Singapore or if he remains in Australia. Perhaps one of the greatest risks identified in this assessment, is the most unfortunate situation of the parents now being in an adversarial litigation process. By both of their accounts, [the mother] and [the father] have, as parents, experienced chronic stress in caring for their children with diverse needs. As is not uncommon for parents confronted with such a significant health emergency for their child, plus the inevitable grief and trauma, it would appear that the parents possibly held different perspectives and had ways of dealing with [Y’s] treatment and possible future quality of life questions. Sadly, this seems likely to be a contributing factor to their separation. It is also possible that, due to their own personal characteristics and/or vulnerabilities, they have each held more long-standing differences in relation to the parenting of their two special needs children, which is also not necessarily unusual.
While it is acknowledged that the risks that each of the parents have raised about the other will require further exploration as part of the evidentiary material during the hearing of this matter, the Court Child Expert cautions that the currently divided and fractured parenting relationship potentially poses an even greater risk to [X], and [Y], as the allegation that each of the parents have made about the other. To that end, it is strongly recommended that the parents consider whether there is any way that they might be able to engage in a family dispute resolution process and post separation counselling processes. Due to the enormity of the parenting decisions required, plus the uncertainty of the immediate future, particularly in terms of [Y’s] transition from hospital to home and to his new school, it may be more practical for interim short term decision making to occur in relation to [X’s] care, particularly if this can occur in a mutually agreeable way , rather than the parenting relationship potentially being irreparably damaged by the hurt that these Court proceedings seem likely to cause each parent, in the midst of their grief and loss.
The Expert had been asked by the parents to report on specific questions and she did so as follows:
Opinion as to the nature of the relationships between:
[X] and [Y]: [X] and [Y] would appear to have a close sibling relationship. They were noted to enjoy close physical interactions, such as the “squashy game”. As with most siblings, they were both observed to have the usual type of sibling squabbles, which may, at times, be further exacerbated by their differing needs. [X] was visibly animated and smiling when talking about [Y]. [X] identified that [Y] would be unlikely to be able to return go back to Singapore for a while and, understandably, he identified that such a circumstance was hard for him to think about. He wanted the Judge to know that he likes doing things with [Y].
The Expert was asked to comment on the relationship of each child with each parent. She stated, in relation to X and the mother,
[The mother] impressed as a loving mother, who wants the best for [X]. As described in the body of this report, this assessment has highlighted concerns about the current nature of [X’s] behaviour towards, and possibly relationship with, with his mother. During the observations, the nature and type of [X’s] interactions with his mother were more akin to an infant, where sucking and more enmeshed physical boundaries between the mother (or parent) and child is required for the survival of the infant. [The mother] herself acknowledges that such behaviour by [X] has emerged over the last few months, although during discussion with her she indicated that she had previously held concerns (several years) ago about whether or not [X] understood consent (which, in itself, is a concept that young children learn in response to adult expectations, instruction and guidance)
The origins of [X’s] current behaviour towards his mother are not able to be sufficiently understood within the limits of this assessment. That said, it is possible that the concerns that each of the parents have for [X], and his essentially currently difficult circumstances, about which they disagree, may to some extent all be contributing factors, including: [X’s] response to having missed his mother when he lived in Singapore with his father without her; [X’s] response to the distress associated with [Y’s] medical needs, including the understandable focus of his mother on [Y] and [Y’s] needs; [X’s] response to his current lack of predictability and the loss of his usual routine, including the structure of his schooling and his life in Singapore; and also the recent changes in his parents’ relationship, which he is likely to be very sensitive to. For any child, such challenges would be difficult, but [X’s] ADHD (about which the parents agree) would make his ability to accommodate and adjust to such experiences even more challenging.
It is acknowledged that this assessment has occurred at a time of significant stress and distress for [the mother], and so the observations that occurred as part of this assessment might not have been representative of her more usual parenting style. During this assessment, [the mother] appeared to experience some challenges in terms of setting the requisite expectations, limits and boundaries to [X’s] behaviours and his interactions with her. Therefore, she would benefit from some professional assistance in this regard, irrespective of whether or not [X] stays in Australia or returns to Singapore (but returns to Australia to spend time with her). As [the mother] suggests, [X] might also require therapeutic assistance but, more usually, the benefits of therapy can be questionable, without the parent firstly, or at least in tandem, providing the requisite adult expectations, limits and boundaries for behaviour.

In relation to X and the father, the Expert stated,
[The father] impressed as a loving but firm parent, who wants the best for [X]. As outlined in the body of this report, [X] does not appear to exhibit the degree of emotionally immature behaviours in his interactions with his father, as seems to currently occur with his mother. While [X] somewhat jokingly indicated his intention to play a prank on his father, it was noted that he did not do so. From the outset, [the father] set firm limits and expectations on [X’s] behaviour (and also on [Y’s]), to which [X] appeared familiar and respond to. [X] seemed comfortable to seek brief physical affection from his father to which [the father] responded. [X] (and [Y]) were observed to engage in mutually cooperative conversation and play with his father. In observation with his father, [X’s] behaviours were observed to be considerably more emotionally contained (than when observed with his mother) and his behaviour and interactions generally appeared more akin to what would be expected of a child of his age. Noting his ADHD diagnosis, [X] likely requires an even greater degree of adult guidance and structure than other children of his age might require.
The Expert also commented on Y’s relationship with the father,
While [the father] clearly loves [Y], the impression was formed that he has likely experienced, over many years, [Y’s] specific needs as more challenging than he has experienced [X’s] needs. Therefore, it is possible that [the father] has responded to [Y] in ways that might have been experienced by [Y] as emotionally rejecting, as [the mother] suggests. This is not to suggest that [the father] cares for, or loves, [Y] any less than he does [X] but, rather, that he himself as a parent may feel insecure or ill equipped to himself emotionally manage and attend to [Y’s] care needs. If this is so, then [Y’s] health crisis and now even higher care needs are likely to result in [the father] feeling even more insecure in his parenting of [Y]. Sadly, it seems that the different ways that each of the parents has emotionally managed [Y’s] medical crisis has likely created a deep divide between them. For [Y], and his relationship with his father, now and into the future, it will be important for both parents to carefully manage their feelings and differences, so as to ensure that [Y] has the opportunity to maintain his important relationship with his father.
The Expert was asked, “In the event that [X] is returned to Singapore as a result of these Hague Convention proceedings, and the mother and [Y] both continue to reside in Australia, please provide your opinion as to whether any of the following may cause physical or psychological harm to [X] or otherwise place [X] in an intolerable situation”. She responded having regard to each element of the question.
[X] being separated from [Y], including in the event that the health of [Y] either improves, fails to improve or deteriorates [X] will undoubtedly miss his brother in the event that he is required to return to Singapore. Whether or not a return to Singapore may cause physical or psychological harm, or otherwise place [X] in an intolerable position, will largely be dependent upon how each of his parents behave and manage this difficult situation for [X]. If [X] is required to return to Singapore, it will be important that the reasons for such a return be explained to [X] in a manner which is as age appropriate, and as neutral as possible. In addition, it would be necessary for [X] to have frequent communication and visitation with [Y]. It is not possible to say whether a return to Singapore would be more or less psychologically harmful or intolerable for [X], based on [Y’s] health. That said, in the event that [Y’s] health was, sadly, to deteriorate it would be important for this to be sensitively and carefully managed for [X].
[X] being separated from the mother: [X] will undoubtedly miss his mother in the event that he is required to return to Singapore. Whether or not this may cause physical or psychological harm, or otherwise place [X] in an intolerable position, will also largely be dependent upon how each of his parents behave and manage this difficult situation for [X]. As outlined above in relation to [Y], it will be important for the reasons for such a separation from his mother to be explained to [X] in a manner which is as age appropriate, and neutral as possible. In addition, it would be necessary for [X] to have frequent communication and visitation with his mother. Factors which may assist [X] with the day to day loss of his mother (and brother), which is a loss that [X] will sadly be required to experience in relation to either parent in the event that the parents continue to live in different countries, is [X’s] return to the routine and structure of his school in Singapore, plus the other familiarities of Singapore, including the psychiatrist who is already familiar with [X’s] circumstances. In the event that [X] is not able to regularly communicate and spend time with his mother (and brother), then this would cause psychological harm to [X], and may indeed become intolerable for him.
[X] being separated from both [Y] and the mother at the same time: The comments made in the above paragraphs 69 and 70 are applicable to this question.
[X] residing with the father in Singapore: As outlined in the body of this report, no concerns were identified about the nature of [X’s] relationship with his father per se, or in relation [Mr Azarola’s] parenting approach in relation to [X] and his development needs. That said, given the allegations that have been made in relation to [Mr Azarola], whether or not a return to Singapore with his father may cause physical or psychological harm to [X] or otherwise place [X] in an intolerable situation, is a question that will largely be dependent upon the evidentiary material presented during the Court hearing. In particular, the evidence in relation to the father’s current mental health status, the family violence allegations, [X’s] diagnosis, treatment and therapy needs, and the questions surrounding [X’s] supervision.
Asked, “In the event [X] is returned to Singapore and the mother and [Y] both continue to reside in Australia, please provide your opinion as to the impact upon the mother of being separated from [X] and whether the impact to the mother (if any) may cause physical or psychological harm to [X] or otherwise place [X] in an intolerable situation?”, the Expert responded,
Without question, [the mother] is likely to be devastated and to experience even more grief and loss, in the event that [X] is required to return to Singapore. [X] is also likely to be highly sensitive to his mother’s feelings of distress and loss, which will also cause distress to [X]. Whether or not the impact of such a circumstance may cause physical or psychological harm to [X] or otherwise place [X] in an intolerable situation will largely be dependent upon how both his mother and his father respond and manage this difficult situation for [X]. [The mother] will likely require addition emotional support if [X] is returned to Singapore. as this additional grief and loss could impact her capacity to care for [Y], at a time when she is also likely to be managing [Y’s] transition from hospital to home.
Thus, in her report, the Expert identified a number of factors which would determine whether return to Singapore would expose X to the risk of psychological harm.
In her report, the Expert wrote:
… the Court Child Expert cautions that the currently divided and fractured parenting relationship potentially poses an even greater risk to [X], and [Y], as the allegation that each of the parents have made about the other.
Further, in summary, the Expert said that whether or not X will suffer psychological harm will depend on the following variables:
·“… how each of his parents behave and manage this difficult situation for [X]”.
·“ … it would be necessary for [X] to have frequent communication and visitation [sic] with [Y]”.
·“… it would be necessary for [X] to have frequent communication and visitation [sic] with his mother".
·In the event that X were to return to Singapore, “… Without question, [the mother] is likely to be devastated and to experience even more grief and loss, in the event that [X] is required to return to Singapore. [X] is also likely to be highly sensitive to his mother’s feelings of distress and loss, which will also cause distress to [X].”
The Co-Parenting Relationship
I will deal firstly with the “divided and fractured parenting relationship”. In cross-examination, the Expert said,
I would say the greatest risk I’ve identified in my report is the fact that we’re here and that these children more than – all children – require a degree of parental co-operation. These children require, in my assessment, even more than the average child. I think the dilemma here is whether there’s a return or isn’t there – or there isn’t a return. This situation has occurred in the context of serious, serious grief and trauma – and for both parents – and for the children. And in those instances, the first option needs to be parents working together. And I’ve identified that as the greatest risk to these children.
Nothing in the evidence of either parent gave any comfort that the poor degree of parental co‑operation which is currently evident is likely to improve.
The father in cross-examination, said he did not trust the mother which, although understandable in the circumstances, does not lead to co-operation with her. Further, he said that her raising concerns about his mental health is “discriminatory” stating in cross‑examination,
…it’s offensive to me, frankly, that she and you would seek to profit from that historic mental illness on a purely discriminatory basis to suggest that because I’m now dealing with the grief and distress, both of [Y’s] situation and now of this legal situation, that that should in some way relate to my historic condition.
The Expert raised this issue with the father. She reported,
During discussion about any possible reproachment [sic] occurring between him and [the mother], he said that he “will never move past that [meaning the concerns raised about his past mental health problems and him now possibly being a suicide risk]”.
The mother, in her affidavit, deposed to the father’s making hurtful comments to her shortly after Y’s surgery. She deposed,
… [the father] said to me “You are all too willing to give up your career to be a hospital mum” and he said I had “Munchausen’s syndrome.”
The father, in his affidavit, stated,
I did not say that [the mother] had “Munchausen’s by proxy”.
In cross-examination the father drew a distinction between saying that the mother had Munchausen by proxy syndrome and said that he said she behaved as if she had Munchausen by Proxy Syndrome.
In her report, the Expert stated,
[The father] admits to having made disrespectful comments to [the mother] earlier this year, specifically that he was worried that “she identifies as a hospital mother” and was behaving in a way of “someone with Munchhausen’s Proxy”. While [the father] acknowledged in interview that [the mother] would likely have been “devastated” by his such comments, he said that his response had been because he was “really alarmed by her positivity”.
The Expert reported, in relation to the mother,
Post separation, [the mother] considers that [the father] has been “hostile and cold” towards her and placed “all the blame onto me”, saying that there had also been a lot of “gaslighting in the relationship”. She generally expressed the view that her opinion “never mattered” when major decisions were made during the relationship. She said that her attempts to communicate with [the father] about [X] have been “shut down”, with her already starting to feel excluded/eliminated by [the father] in relation to decisions for [X], which is why she had felt it necessary to commence these Family Law proceedings. She expressed “heartbreak” that [the father] did not initially seek orders for any time with [Y], saying that she “never thought he would be so cold towards [Y]”.
During the period when X was living in Singapore with the father from early to mid-2023, it appears they were parenting X in parallel. The mother was in regular contact with X’s music teacher and receiving videos of X practising his music. The father was not aware that X was practising for his music exam with his teacher. He was not aware that X videoed his practise for his teacher or that the videos were sent to the mother. In cross-examination, about his knowledge of the upcoming exam, he said “[X] wasn’t doing terribly much practice, so I wasn’t aware of any particular activity in that direction.” He was not aware that X and his teacher had video communication. The father dismissed the music teacher without telling the mother.
Similarly, the father was not aware that Ms G was communicating with the mother about X’s day to day care and taking instructions from her. He was asked,
And you’re aware, aren’t you, that [Ms G] checks with [Ms Fabian] over WhatsApp to check dates for [X’s] after school activities, sports dates, half days of school and transport arrangements on special days for [X]?
He replied, “I’m not aware of the communication between [Ms G] and [the mother].”
The Expert in cross-examination agreed that the parents had “raw and open wounds” arising from their separation and that each had said hurtful things to and about the other.
I do not accept the submission made on behalf of the father that the mother is solely responsible for the poor parenting relationship and that she has engineered the situation in order to advantage herself in these proceedings. Rather, it is likely that the present poor relationship is a product of their personalities, their very recent and very painful separation and the effect of their both being engaged in these proceedings.
The undertakings proffered on behalf of the father are not likely to effect any positive changes in the short or medium term, if at all.
The Expert, in cross-examination said,
So I’m really saying this child needs even more parental cooperation and working together and putting aside – and help. The parents having help about how they’re feeling, including about the end of their long, lengthy relationship, where, as I’ve also highlighted in my report, they – the parents – from either account – I mean, we can look at – from either account, these parents have lived in a very, very stressful home life where my initial assessment – I accept that there may be other evidence that is presented in these proceedings, but my impression is both parents are essentially good people with vulnerabilities who have had a very, very challenging family life and parenting circumstance, and the concern I have is that this situation will just divide this even more and more, and that will be the concern for the child.
In cross-examination, on behalf of the father it was put to the Expert that, “You don’t have to cooperate with the other parent to be able to deal and respond sensitively to your child missing the other parent?” She replied, “You do need co-parenting, especially from a separate country – even more.”
I do not accept that, if X is returned to Singapore, the co-parenting relationship will improve to the extent necessary to protect him from psychological harm.
How the parents manage X
The Expert in cross-examination said,
A risk that could cause a psychologically intolerable situation for [X] is if the father does not acknowledge the loss for [X] of his mother and his siblings, and he does not ensure that he cooperates with the mother as much as possible and ensures that there is ways of minimising that risk.
In her report, the Expert said,
Without question, [the mother] is likely to be devastated and to experience even more grief and loss, in the event that [X] is required to return to Singapore. [X] is also likely to be highly sensitive to his mother’s feelings of distress and loss, which will also cause distress to [X]. Whether or not the impact of such a circumstance may cause physical or psychological harm to [X] or otherwise place [X] in an intolerable situation will largely be dependent upon how both his mother and his father respond and manage this difficult situation for [X].
The father was cross-examined about this statement. The transcript is set out below:
MR ANDERSON:       If you’ve got [Ms U’s] report there still. Paragraph 74 of [Ms U’s] report which I think is page 26. Have you read that report in relation to that paragraph?
THE FATHER:            Yes, I have.
MR ANDERSON:       It says that:
[X] is also likely to be highly sensitive to his mother’s feelings of distress and loss which will also cause distress to [X].
Do you agree with that?
THE FATHER:            I haven’t seen that distress in the period from [early to mid‑2023].
MR ANDERSON:       And that’s in reference to the fact that [the mother] is likely to be devastated and experience even more grief and loss in the event that [X] is required to return to Singapore. Do you accept that she would be devastated and experience more grief and loss if [X] was to return to Singapore?
THE FATHER:            Well, she agreed to his return [in mid-2023].
HER HONOUR:          The question you’re being asked is not the one that you’re answering?
THE FATHER:            Well, I expect at this stage in process that she will be disappointed if the outcome doesn’t favour her.
MR ANDERSON:       And do you accept what [Ms U] is said in the bottom of that paragraph? Well, that the additional grief and loss that she will experience in relation to [X] going back to Singapore will affect her capacity to care for [Y]?
THE FATHER:            I wouldn’t really know about that.
(Emphasis added)
The father’s unwillingness or inability to accept that the mother will be devastated if X returns to Singapore engenders no confidence that he will sensitively deal with X’s missing his mother.
He was asked in cross-examination whether X will miss his mother if he returns to Singapore. The passage is set out below:
MR ANDERSON:       Do you believe that [X] has a close relationship with his mother?
THE FATHER:            Yes.
MR ANDERSON:       And do you believe that he will miss being in the physical company of his mother if he is returned to Singapore?
THE FATHER:            When we’ve returned he hasn’t expressed that to me. His mood has been great. You know, at the airport when we’ve flown back he has been excited to go back to school. He was obviously anticipating returning to Singapore in [mid-2023] and very excited to start year 7, so he wasn’t expressing any concerns about the upcoming separation as he understood it that would occur when he went back to school in Singapore in [mid-2023].
The Expert was asked about the effect on X if his father does not acknowledge the loss to X of his mother and his brother. She said,
THE EXPERT:            Absolutely. Any parent who doesn’t acknowledge their child’s grief because they can’t acknowledge it or because they’re handling something a certain way isn’t being attentive to the children. And for children to have to be grieving and have to – and not be able to express it is concerning – that the child – in the immediate – because they’re alone. Grief is – think about what grief is like for adults. So for children – the adults need to be open to it; open to how it will be expressed. And – yes, sometimes children will adapt and it will seem as though there’s no problem. Children can actually get on with things. But at other times they are sadder or they’re more distressed. And the parent needs to be flexible. Probably my word would be flexible.
MR ANDERSON:       And if the father exhibits an attitude that there is no necessity for [X] to undertake any form of counselling or therapy because of the loss of his mother or his sibling. That would be of concern to you as to the psychological impact upon [X] of that?
THE EXPERT:            Yes. I – I – I would be – have some concerns about why there was no necessity when there’s such – such a grief situation. My – my question would be there would be no harm in it.

I accept that parents may legitimately differ about a proper course of action for a child but it is a matter of concern that, in June 2023, when the mother had told the father that X had asked for someone to talk to and Ms M had told both parents that X’s difficulties had a great deal of effect in his home life, the father was not convinced that it was necessary for X to have therapy. I note that he now proffers an undertaking to follow any recommendation of a specified professional that X engage in therapy.
The father does not agree that X has been significantly affected by the events since late 2022. In cross-examination he said,
Well, it depends on what you mean by “significantly affected”. If you look at his school reports, he has been thriving. If you look at the assessments that were conducted by [Ms V], it suggests that his mental wellbeing was within the normal range. So when you say there has been significant impact, it wasn’t necessarily showing through in his behaviour in Singapore. It’s only since he has come out to Australia and been in his mother’s care that these signs of emotional aggression under her care have come to light.
Asked whether he thought that Y’s medical emergency in late 2022 had affected X, the father said, “I think [X] has been coping well, and this was expressed to me by his psychiatrist in Singapore as well.”
In contrast, the Expert, asked about the impact on X of seeing Y’s medical emergency said,
There’s no doubt it was traumatic. How that’s managed will determine the long lasting nature of the … impact.
The Expert said, in relation to the issue of therapy for X,
I think the risk for the father is – because he is – quite favours structure – and that is a good thing – that is a really good balance – the father – and the father – however, he has managed his own vulnerabilities – may be at risk of minimising that his son requires something a little bit differently. I actually suspect – which is why I said this in my – I actually think there’s something to what both parents are saying here. And – but unfortunately, they’re in an either or situation with each other.
The father was asked how he proposed to manage X’s return. The passage of transcript is reproduced below:
MR ANDERSON: … whether [X] is placed in an intolerable situation will be – largely be dependent on how both his mother and father respond and manage this difficult situation for [X]. How do you propose to manage this difficult situation for [X]?
THE FATHER: Well, firstly, you know, we have the visits to Australia. I would also want to start scheduling communication in a more regular manner. But in terms of parenting decisions and, you know, charting a way forward, you know, we have been doing that and we have been corresponding about doctor’s appointments and – and school. You know, after – a day after the appointment with [Dr D] I wrote to [Ms Fabian] to say that thought that [X] was coping well and – and therapy might be advisable at a later stage but wouldn’t be beneficial now and I offered to setup an appointment for [Ms Fabian] and [Dr D] if she had any concerns. So I’ve been trying to facilitate a co‑parenting relationship and I’m certainly amenable to that going forwards. Obviously, there’s a lot of angst over the current process but at some point in time we simply need to get forward and deal with the – the traumas that we face in terms of things [X] – [Y’s] illness.
Nothing in that answer envisaged X’s missing and grieving for his mother.
The father was asked whether X would be distressed if he understood that Y missed him. He said,
[X] hasn’t been distressed by this situation. He’s a – he’s an adaptable guy and I – I haven’t seen any distress, and neither have his teachers, and neither has his psychiatrist. He – I mean, at that age, kids are closer to their friends than they are to their siblings, a lot of the time, especially when they can’t communicate with the sibling due to the language developmental issues.
There are also concerns raised by the mother about the father’s being physically available to care for X. The father deposed,
I attend on average, one or two work events in the evening each week. In most cases I return home in time to say goodnight to [X]. I go out socially approximately once per fortnight.
The paternal grandfather deposed that, in mid-2023 when he and the paternal grandmother visited the father in Singapore (a time when X was in Australia),
He was working very long hours, so it was not possible to see him during weekdays, and even when we ate together he would often return to work (in his home office or at the dining table) once the meal was finished.
The father was cross-examined about his work commitments:
MR ANDERSON:       As recently as [mid] this year, your father and your mother travelled to Singapore to spend time with you. And he observed that you’re working very long hours so it wasn’t possible to see you during weekdays, even when you ate together you would return home to work:
…in his home office or at the dining table once the meal was finished. While we were there we ate together either in his house or a restaurant and we did what we could to support him through this difficulty time. [Ms U] and I returned to Australia [in mid] 2023.
So it’s the case, isn’t it, that your work is quite demanding and you’re very busy with it?
THE FATHER:            It is demanding. I think when he says:
We didn’t see him during the weekdays –
he means the days. We would usually have dinner together on weeknights.
MR ANDERSON:       And he says you were working very long hours and that you – you would agree with that, wouldn’t you?
THE FATHER:            Yes.
MR ANDERSON:       And you would often return to work after having those meals with your      ?
THE FATHER:            I work in the evenings sometimes, yes.
MR ANDERSON:       … with your parents? Yes. And that’s your normal practice, isn’t it, as – in relation to your work?
THE FATHER:            Yes, I often go back to work after putting the boys to bed, for example.
MR ANDERSON:       And if [X] were to return to Singapore, you would still continue to work?
THE FATHER:            Naturally.
MR ANDERSON:       And you’re very busy with your work?
THE FATHER:            But I carve out time for [X].
MR ANDERSON:       Beg your pardon?
THE FATHER:            I carve out time for [X].
The Expert was asked whether, if a child were to live with a parent who is not able to sensitively manage their missing the other parent, that would mitigate against them living with that parent. She said, “Yes”.
I am not satisfied that the father accepts or would acknowledge that X misses his mother and his brother and I accept that this would place X at risk of psychological harm.
Frequent communication and visits
The Expert was asked, in this context, whether four visits a year to the mother and Y would be sufficient. She said,
THE EXPERT:            No, it’s not. I mean, it’s not enough. It’s – no, it’s not.
HER HONOUR:          And does that – if that is the case, does that also mitigate against the children – against [X] being separated from his mother?
THE EXPERT:            Yes.
In cross-examination, the father when asked if he would ensure that X came to Australia during the four Singapore school holidays said,
THE FATHER:            Yes. We – we’ve got a proposal to that effect.
HER HONOUR:          And how many school holidays are there in each year?
THE FATHER:            There are four.
HER HONOUR:          Right. Thank you?
THE FATHER:            I’ve already suggested that he come at least three of those times.
The Expert was also asked about the effect on X if he is in Singapore and Y has another catastrophic event. She said,
He may feel responsible. He may feel quite guilty. All of the experiences of grief that people happen – that happen for people. He may feel that he could have done something if he was here. He might have been able to help him. I mean, children also can have all sorts of fantasies that aren’t necessarily reality, just like adults happen in grief. You know, adults have these sort of feelings with grief, so for children, that is heightened and that is – that is quite a significant risk.
The Expert also agreed that X might have the same feelings if there was a catastrophic event for Y and X was in Australia. She did not, however, qualify that eventuality as “a significant risk”.
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.”
X’s presentation to both the Expert and Dr P is concerning and suggestive of a child already psychologically damaged.
Any further psychological harm to X falls into the category of “really serious harm” and a “comparatively small risk” of such harm occurring constitutes a grave risk.
I am satisfied that X’s return to Singapore, even for the period of time required for proceedings to be instituted and determined (no proceedings having been instituted at this time) and in circumstances where the mother cannot return to Singapore to be with him, will expose him to risk of further psychological harm and that the risk is grave.
The application will be dismissed.

I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:
Dated: 8 November 2023

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