Mazorski & Albright
[2007] FamCA 250
•23 March 2007
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & SIGOURAS | [2007] FamCA 250 |
| FAMILY LAW - CHILD ABDUCTION – Hague Convention |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth): Reg: 16(1), 16(2), 16(3), 16(3)(b), 16(3)(a)(ii), 29(2), |
Panayotides & Panayotides (1997) FLC 92-733
Re F (A Minor) (Child Abduction) [1992] 1 FLR
Re: H & Ors (1996) 1 All ER 1 at 16
DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401
Re C (A Minor) (Abduction) [1989] 1 FLR 403
Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478
Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011
Re G (abduction: Psychological Harm) [1995] 1 FLR 64
JLM v NSW Department of Community Services (2001) FLC 93-081
Director-General, Department of Human Services and RSP (2003) FLC 93-152
DOF & P [2003] FamCA 691
Re H (abduction: Habitual Residence: Consent) [2000] 3 FCR 412
Re H (Minors) (Abduction: Acquiescence) [1998] A.C. 72
HZ v State Central Authority [2006] FamCA 466
State Central Authority & DB [2002] FamCA 804
Re C (Abduction) [1999] 2 FLR
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Sigouras |
| FILE NUMBER: | MLF | 2256 | of | 2006 |
| DATE DELIVERED: | 23 March 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 15 & 16 January 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McFarlane |
| SOLICITOR FOR THE APPLICANT: | Victorian Government Solicitor |
| COUNSEL FOR THE RESPONDENT: | Ms Smallwood |
| SOLICITOR FOR THE RESPONDENT: | Thomas Koutsoupias Lawyers & Co |
ORDERS:
That I grant the application of the State Central Authority filed 24 July 2006 for the children the first daughter born in September 2001 and a second daughter born in January 2003 to be returned to Greece pursuant to Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986.
That the return of the children be effected within 14 days.
That the parties have liberty to apply on short notice in relation to implementation of this Order such application to be made by arrangement with my Associate and, in the event that the parties have been unable to agree on the particulars for the return by 12 noon on Tuesday 27 March 2007, the State Central Authority ensure that the matter is relisted.
That any exhibits and documents produced on subpoena be retained by the Court for 30 days after which all such documents be returned to person tendering or requiring production of same unless an appeal is lodged.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 2256 of 2006
| State Central Authority |
Applicant
And
| Ms Sigouras |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the State Central Authority filed on 24 July 2006 seeking the return to Greece of the children E[1] born in September 2001 and N born in January 2003 pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).
[1] Also referred to in the requesting parent’s material by the given name “[A]”
The respondent is the mother of the children, Ms S. The requesting parent, at whose behest the application is made, is the children’s father, Mr F.
It is conceded that no matters under Regulation 16(1) or (2) of the Regulations prevent the return of the children to Greece pursuant to the Regulations. However, the respondent mother submits that there are two exceptions to the mandatory return of the children to Greece which apply and make available to me, discretion to refuse to order the return of the children to Greece. First, the respondent contends that the return of the children to Greece would expose them to grave risk of physical or psychological harm or otherwise place the children in an intolerable situation[2]. Second, the respondent contends that the requesting parent acquiesced to the respondent retaining the children in Australia until the end of 2006[3].
[2] Within the terms of Regulation 16(3)(b)
[3] Within the terms of Regulation 16(3)(a)(ii)
In the event that the respondent mother fails to make out one of the exceptions and the children are ordered to be returned to their home country, the respondent mother will not accompany her daughters back to Greece. The fact that the children will be separated from their mother is a component of the facts that I am asked to consider in the context of the grave risk exception under Regulation 16(3)(b).
The elder daughter is now 5½ years old and the younger daughter has just turned 4 years old. The girls arrived in Australia in mid October 2005, then aged 4 years and 2¾ years respectively, and have been in the care of the respondent mother and her immediate family since that time. Prior to leaving Greece, the respondent mother was the primary carer of the girls. The requesting parent has not seen the girls since their departure from Greece in October 2005.
Evidence and findings of fact
The applicant relied on the following documents:-
a)Form 2 Application filed 24 July 2006 which includes prescribed documents and an declaration of the requesting parent made 14 June 2006;
b)The affidavit of Ms J (the solicitor with conduct of the applicant’s case) sworn 24 July 2006 and the annexures.
c)The affidavit of Ms T(the solicitor with conduct of the applicant’s case) sworn 16 October 2006 and annexures including:-
i)The declaration of the requesting parent made 5 October 2006 (to which the respondent’s long letter of January 2006 is annexed);
ii)The declaration of Mr G made 5 October 2006, first cousin of the mother’s father;
iii)Sworn statement of Mr N made 25 September 2006, family friend of the husband;
iv)Sworn statement of Mr P made 25 September 2006 family friend of the husband;
v)Affidavit of Mr A made 25 September 2006, family friend of the husband;
vi)Sworn statement of Ms F made 25 September 2006, sister of the husband.
For ease of reference, I will refer to the annexures independently of the affidavit of Ms T.
The numerous annexures to the affidavits of Ms J and Ms T are admissible pursuant to the evidentiary provisions of the Regulations which provide inter alia that the application, documents attached to or given in support of the application or request are admissible as evidence of the facts stated in that application, request or document (Regulation 29(2)).
The respondent relied on the following documents:-
a)The Amended Response filed 21 September 2006;
b)The affidavit of the respondent mother sworn 10 September 2006;
c)The affidavit of Dr B (psychiatrist) affirmed 7 September 2006;
d)The affidavit of Mr S (the respondent mother’s father) filed 11 September 2006;
e)The affidavit of Mr JS (the respondent mother’s brother) filed 11 September 2006 and
f)The affidavit of Ms K (the respondent mother’s family friend) filed 11 September 2006.
Additionally, there were exhibits tendered during the trial.
Many facts asserted by one parent are disputed by the other parent, only some of which are actually relevant to exceptions to the mandatory return of the children to Greece. With the exception of the respondent mother’s father, the evidence of family members and friends, on both sides, did not take the issues any further than the evidence given by the requesting parent and the respondent mother. Accordingly, I will not discuss the content independently.
Neither the respondent mother nor the requesting parent gave viva voce evidence. Save for cross examination of the wife’s expert psychiatrist, the matter proceeded on submissions.
In Panayotides & Panayotides (1997) FLC 92-733 Fogarty and Baker JJ (with whom Finn J agreed) cited with approval the comments of Jordan J at first instance of the process upon which the Court needs to embark in hearing these matters. At 83,897 the Full Court identified and approved of the following observations of Jordan J:-
The first thing to observe is that there is much conflict in the evidence. These are summary proceedings and issues must be determined on the papers. This often presents the Court with difficulties. It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see, Re F (1992) 1 FLR 548). As was submitted by counsel for the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.
The above observations echo the comments of Butler Sloss LJ (with whom the other members of the Court of Appeal agreed) in Re F[4], at page 553, as follows:-
[4] Re F (A Minor) (Child Abduction) [1992] 1 FLR
“… the admission of oral evidence in Convention cases should be allowed sparingly.
If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.
[5] (1996) 1 All ER 1 at 16.
Where I can or am required to make findings of fact, I make them on a balance of probabilities. Some allegations in these proceedings are very serious and some are unusual and some are both unusual and serious, such as the chopping block incident to which I will refer. In an English case involving a wardship application, Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings, such as these proceedings. In
Re: H & Ors [5]. His Lordship stated:
"[145]. Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. . . . Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".
I will proceed in the manner described in the cases of Panayotides and Re F. At the same time, I am mindful of the particular limitations placed upon the parties in Convention proceedings of this nature. They must often adduce evidence through governmental and official channels, in a different language and from a legal system structured and/or resourced differently from our own and do so within in a short time frame. As with many cases brought under the Convention, the evidence in this case is not comprehensive. Gaps in evidence which in domestic proceedings are routinely filled in oral evidence look like gaping holes in the evidence when we can only proceed only on the papers.
Where I have made or go on to make statements of fact, they constitute findings of fact.
Background
The requesting parent is 39 years old. The respondent mother is 36 years old. Both are of Greek origin. The requesting parent was born in Greece and the respondent was born in Melbourne, Australia, where her parents and her siblings continue to reside. The parties met in Greece, whilst the mother was holidaying there. There is some dispute as to when the parties first met. The requesting parent deposed in a translated affidavit filed 24 July 2006 that the parties met during 1990, whilst the respondent stated in her affidavit sworn
10 September 2006 that the parties met in 1995. Meanwhile, in her affidavit affirmed 7 September 2006, Dr B, psychologist noted that the parties had met in 1992.[6]. She does not specify where she obtained this information. It is not necessary for me to determine the conflict having regard to the actual issues in the case. It is sufficient for me to find that the parties met in Greece and were married some years later.
[6] Affidavit of [Dr B] affirmed 7 September 2006, paragraph 4.
This was the respondent mother’s second marriage. In the late 1980’s she had been married to another Greek man for a short time, about 9 months or so. The respondent left her first marriage and returned to her family of origin which, as I will discuss later on, is considered by the respondent’s expert psychiatrist to be significant in terms of the unusually high degree of support which that expert witness says the respondent mother requires from her family.
Returning to this marriage, the requesting parent and the respondent married at the Registrar General’s Office in Melbourne in May 2000, with a further ceremony held according to the rites of the Eastern Orthodox Church in Greece in June 2001. The parties then moved into the father’s parents’ house in Greece with a shared and settled view to live in Greece permanently. They later moved into their own home next door to the father’s parents. It is alleged by the respondent mother, and not denied by the requesting parent, that living in close proximity with the requesting parent’s parents was originally said to be a short term arrangement. It will become apparent that it is an enormous disappointment to the wife that she and the requesting parent never established a home which was completely independent of her in-laws.
The girls, E and N were born in Greece. They both have Greek citizenship. They are also citizens of Australia and have Australian passports.
The father is in employment as a farmer, managing his family’s agricultural property, whilst the respondent mother undertook the role of homemaker and primary caregiver for the children. Some time after that, the parties established or assumed operation of a restaurant business. The father deposed that in the first year of operation, the set up of the business required that he work both on the family farm and in the restaurant. The respondent mother deposed that whilst she was registered as the owner of the restaurant, she had no effective control over the conduct of the business. She stated that the father and his parents attended to all aspects of the business including banking and the payment of accounts and that her role was limited to dishwashing, laundry and food preparation.
In his affidavit, the father referred to the first few years of the marriage as ‘harmonic and tender.’[7] He stated that they took care of their children, who were ‘their happiness’[8] and that it was not until the respondent mother’s parents visited Greece on vacation that ‘[the] wife changed.’[9] The father asserted that around this time, the respondent mother began complaining about having to stay home to look after the children, that she stopped making an effort to adjust to her new environment in Greece, that she avoided meeting his parents and sisters and that she ‘interrupted all relations’[10] between the children and the father’s nephews and nieces. He stated that he tried to discuss the matter with her.
[7] Affidavit of the Father, 24 July 2006, page 3.
[8] Affidavit of the Father, 24 July 2006, page 3.
[9] Affidavit of the Father, 24 July 2006, page 3.
[10] Affidavit of the Father, 24 July 2006, page 3.
The respondent mother paints a very different picture of the years of married life in Greece. In her affidavit, she describes several incidents of physical violence and oppression towards both her and the children by the father. This included forcefully holding one of the children down during a car ride, teaching one of the children how to hold a rifle and placing the respondent mother’s head on a chopping board, raising an axe in one hand and threatening to kill the respondent mother. She stated that the children were witness to this last incident. The respondent mother also asserts that the father had no real interest in the children, no knowledge of their likes or dislikes and no tolerance for their company. She states that she doubted whether the father considered the children to be ‘the most precious thing on earth’ based on the contentions that he reluctant to permit a medical examination of the elder daughter’s eye condition and because he did not ‘supply’[11] her or the children with any financial support whilst they were in Australia.
[11] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 21 (page 10).
The respondent mother denied avoiding the father’s parents and sisters. She stated that she believed that she and the children had a good relationship with the father’s family. She acknowledged that she did find the father’s mother to be ‘intrusive and controlling’[12] but that she attempted to overcome this, ‘to foster a harmonious family relationship.’[13] There appears to be some tension between the respondent’s characterisation of her relationship with her in laws as ‘good’ and part of a letter which she wrote to the husband in mid January 2006 which appears as an annexure to the requesting parent’s declaration made 5 October 2006 and, omitting words written in Greek of which no translation is provided, reads as follows[14]:-
[12] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 15 (page 6).
[13] Affidavit of the Father, 24 July 2006, page 6.
[14] Pages 12 and 13 of the letter annexed to the requesting parent’s declaration of 5 October 2006
I am not perfect as a person (nobody is perfect). I have my faults too.
I know that, and I admit to it at least. I have my faults as a person but at least I say that I have faults –
Your mother is nice but she has her [……].
She wants to know everything about everybody.
She will even try […..]. Whatever I do and what ever I say is always wrong in her eyes. Her way is always the right way. Why doesn’t she just leave me alone!! Let me do things the way I want to, things that make me happy. Why do I always have to make her happy in my own house. I don’t go into her house and take control and tell her what I like and what I don’t like. It’s her house so I let her be. Do you know how angry it makes me when I say “no” to her about something and I mean “no” and she keeps insisting otherwise. This doesn’t happen 1-2 times, it happens many times […….]. Because she is like that, I just try to avoid her, try not to talk and say much to her.
[…..]
She always trys (sic) to change the way I think, so it becomes the way she thinks. I am just so tired of it […..]. That you understand what I am trying to say. She is a very smart lady and she has a good talent in this area. You know your mother and I know you understand what I am trying to tell you. I love her, don’t get me wrong, she just always interferes and I can’t cope anymore. It is hard I know because we live next door to them, I understand because they are your parents and you love them, but by living next door to them has created a problem between us (you and me). Can you understand me? How it is just so hard and how it has become so [….].
She does the same to you. She trys (sic) to change the way you think many times with her [….] so you can see things the way she see’s (sic) it. I have seen it happen many times. She’s a very smart lady – she just has her way to getting what she wants without you even knowing she’s doing it to you. (She has that super talent). [……] (which is you). She just knows she has that hold on you because she has given birth to you and she knows you very well – all your weakness and she works on them. Do you know what’s sad? She thinks she’s perfect, has no faults, she’s right and everyone around is wrong and has a problem.
Your father is good too, but her is abit (sic) of an egoist.
It seems to me that the respondent mother’s attitude to her in-laws is more accurately described as one of forbearance rather than ‘good’ but I will say more about the tone and purpose of the latter later in these reasons.
It is common ground between the parties that in late 2005, the respondent mother’s parents visited Greece for the anniversary of her paternal grandmother’s death and were booked to return to Australia on 13 October 2005. Then, the respondent mother and the 2 children accompanied her parents back to Australia.
The requesting parent stated that he requested that the respondent mother and the children remain with him in Greece for another year, until such a time as he could join them, but that the mother was ‘unmoved.’[15] He further stated that the respondent mother insisted on travelling with her parents, that he relented and that he ‘got them tickets’[16] to depart Greece in October 2005 and returning in January 2006. The respondent mother agreed that the father had requested her to delay the trip to Australia, but that she had indicated that it would be easier for her to travel with her parents, as they could assist with the management of the children during the long flight. She also deposed that the father had initially objected on the basis of a lack of funds, but that he had agreed to the trip after her parents offered to pay for the fares, including his own. She stated that the father did not travel with her and the children because he was ‘too busy’[17] at the time. Further, she contended that the father did not pay for her and the children’s tickets, as he deposed, but that her parents did. Attached to the respondent mother’s affidavit is a copy of a receipt dated 15 September 2005 for the sum of €3,170 (Exhibit “AS-3”). She stated that this was obtained from a travel agency in Crete by her father. She also stated that the return date for the tickets was late January, not mid January 2005, as the father stated. I accept that the requesting parent did not obtain tickets for the respondent and the children and that respondent’s family paid for the tickets. To the extent that his affidavit says otherwise, it is wrong.
[15] Affidavit of the Father, 24 July 2006, page 3.
[16] Affidavit of the Father, 24 July 2006, page 3.
[17] Affidavit of the Respondent Mother, 10 September 2006, paragraph 18 (page7).
In her affidavit, the respondent mother stated that she did not leave Greece with the intention of not returning and that she had ‘in fact, left most of [her] personal items, jewellery and keepsakes there.’[18]
[18] Affidavit of the Respondent Mother, 10 September 2006, paragraph 21 (page10).
Once in Australia, the respondent wrote a lengthy letter to the requesting parent. That is the letter from which I have taken the extract above. The letter is undated but a reference by the respondent to the fact that “It has been 3 months that we have been apart. The children and I have been missing you dearly[19]” indicates that the respondent wrote it in early to mid January 2006.
[19] Page 1 of the letter annexed to the requesting parent’s declaration of 5 October 2006.
The letter begins[20]:-
[20] Page 1 of the letter annexed to the requesting parent’s declaration of 5 October 2006.
“To my dear, very loved husband and father of our children.
I hope my letter finds you in well health.
It has taken me 3 days to write you this letter. I don’t want to upset you with it. I would like you to read it carefully. Over and over if you want to. These are my feelings and things that upset me when I was living there. These things all played a role to make me feel that way to do today and not really wanting to return.”
The letter concludes[21]:-
[21] Page 21 of the letter annexed to the requesting parent’s declaration of 5 October 2006.
I think I have said all the major things I was feeling and which made me upset. I feel better now that I have said it all. I am hoping that you understand how I felt, to want, to bring me to this point that I am now.
You have a lot of thinking to do and a lot of big decisions to make […]
I just hope that you will make the right choice for you and for us.
Thank you for reading it as I know it was a very long, sad, and meaningful letter on my behalf. It has been a true confession from me.
I still love you very much.
Parts of the balance of the letter, omitting text which is in Greek and for which no translation is provided, are as follows and I will number each paragraph for ease of reference:-
a)In the time I have been here [in Australia], it has given me time to relax from a lot of pressure I was feeling, it has given me time to sort out my deep feelings for you. To see things clearer with no stress. It has given me time to weigh up all the good things and the bad things. It has given me time to see a lot of the good things I had here before
I left and what I now have other there. I can see how much better the health system and the doctor’s are here compared to Greece. How nice the people are here, how much respect and love they show here compared to Greece. How much better the school system is compared to Greece. How many more opportunities there are here for our children and here compared to Greece. How much happier our children are here compared to how they were in Greece. These differences I see now that I have come back here. We have children now, where as before I left Australia I didn’t have, so I could not see all these things as I would have something to compare the difference. Our children how have smiles on their faces, they are happy, they have so may things to do and places to go to for the kids. Where as there our children didn’t do anything, didn’t go anywhere. They are just much better children now, a lot calmer, they listen a lot more, they are not so bored and the change has done them a lot of good..[22][22] Page 2 & 3 / 22 of the letter annexed to the requesting parent’s declaration of 5 October 2006.
b)Even though I came here on a holiday, I can’t seem to enjoy myself as much as I would have liked to. It is because I have a lot of thoughts on my mind. You are always on my mind and in my thoughts – believe it or not: I love you […..]. You are my other 1/2 . I married you for ‘you’, because I loved and love you. It is with you that I want to spend the rest of my life with, it is with you I want to talk and communicate with, it is with you that I want to laugh and cry with, it is with you
I want to grow up our children with, it is with you I want to grow old with – you and only you my love.c)You are probably thinking why I never showed you all these true feelings. I was always stuck in the house, closed up, growing up the kids alone, always I was tired too, depressed, not seeing you, no support from you, you had no time for me, you were always busy, tired, stressed with everything else yourself.
d)That is why we both drifted apart in so many ways. You had a busy work load and we just grew apart in so may ways. For you it was a little better cause you would leave, go into the fresh air and work, you had the rest of your family and friends around you always. As for me,
I had noone (sic) or anything, I was all alone and very sad – not even you were ever there for me. So I ask you – How did you want me to be? Happy? Smiling? Joking? Laughing?e)How could I be? When I was just so empty of emotions on the inside? What ever I was getting (which was nothing) that is what I was giving (nothing). Your actions have made me be the way I am today.[23]
[23] Page 3 & 4 / 22 of the letter annexed to the requesting parent’s declaration of 5 October 2006.
f)When I came to Greece, I had no friends, no nothing. All I had was just you. You were and are my everything (then and now). You were my support of life. You promised me the world and I believed in you. Where is you promise to love, honour, respect, support and care for me lately? How many other girls did you promise the same thing to before me? How many of them are there now? Just me I believed you and married you. I took the big jump with you and I followed you to Greece from the other side of the world. The other girls you used to chase before me. Don’t even want to look at you now. I was the one who made the biggest sacrifice in my life because I was ready for it and I followed you with all my love and I had trust in you. You not understanding me with this is because you have not sacrificed anything in return, everything is still the same for you there. Like it was before when you were not married.
g)We had our 2 beautiful girls together. When I had [our first daughter] I nearly died and so did our child. Do you remember that? Sometimes I wished I had of died then so that I wouldn’t be around now to live through all this heartache. I have had a lot of heartache in my life from a young age, which I have told you about the first time we met in 1993. That’s why I expected you to be a lot different now with me because I never hide anything from you from the start. I told you the trust (you know what I am talking about!) You just errased (sic) it all from your mind and from everyone. That was you mistake, not mine. I just expected a lot more support from you.
h)[….] you have never really been there for me or our children. You have been there for everyone else except us – in which we should be your No1 priority. Do you know how sad that is for me?
i)You don’t spend time with me – we don’t talk together, no communication, how am I supposed to feel – I ask myself this “where is my other ½ ?” You just shut me out of everything. You just close the door in my face and you don’t let me into your life.
j)You care more about your olives, grapes, animals, parents and sisters than what you care about the children and me. We seem to be last on you list. When I want to talk to you and I say something – it’s always, shut up – I’m tired, or you fall asleep (because you are so tired) or you can’t be bothered or you just don’t want to hear me.
k)That’s not good enough – I’m sorry.
l)You have to make the time for your family – we are your family, we are you future. That’s why we got married. I know that that’s why I got married! Why did you get married? Did you get married to say – that you got married and had children?
m)You have the also play your role of a husband and a father !!!! Getting married is not just working only and bringing money to your house. Marriage is being a loving, understanding husband and also a good father to our beautiful children.[24]
[24] Page 4, 5 & 6 / 22 of the letter annexed to the requesting parent’s declaration of 5 October 2006
n)One other big change I saw when I came to Greece was that you are very close with your parent’s. That’s okay and good that you are because they are your parents. But you know something, when you get married, I know that you are supposed to brake away a little from them – because you have your won family when you marry. But you know something? I didn’t see that with you. If anything, you became closer and more attached to them. They, then became the 3rd person between us and we (your family) played the 2nd role in your life.[25]
[25] Page 7 / 22 of the letter annexed to the requesting parent’s declaration of 5 October 2006
o)You promised me that I would not work on the olives, but you know deep down that you would somehow want me to help you in the future. You have never said it to me but I can feel it.
p)You opened the tavern on an agreement with your parents to help you. As if you weren’t busy enough with your olives, animals, grapes and avocado to have to open the tavern as well. Now, because it is all too much for all of you to handle, you want me to work there too. I do enough help already with the tavern and growing up our 2 children on my own with no help for me to work more at the tavern, I also need help with the children so that I can give more but I don’t have that extra help, for me to give that extra help somewhere else. Did you ever ask yourself maybe, nobody asked me what I wanted and what I liked to do and what makes me happy?!! But, you and your parents just always thought I would agree with everything you all decide for me. Well I don’t agree, cause it’s what you want me to do and not what
I can do or what I really want to do. Nobody asks me or talks or talks to me about anything. You just asume (sic) that I will agree because you leave me no other choice. Then what ever that I do I don’t enjoy to do so. So how can I be happy?[26][26] Page 8 /22 of the letter annexed to the requesting parent’s declaration of 5 October 2006
q)My life is hard enough being there with no family, no support, not knowing how to cook well, growing up 2 children on my own. To having everyone around me expecting me to be “like this” and to be “like that”. Expecting me to do “this” and to do “that”. In your eyes, you see me as if I’m not working, so that I am an […..], I am lazy, I am a bad person. I have to always agree with everyone and everything can’t I just be me, because it’s just me? I’m tired of making everyone else happy and me always being “unhappy”. I am tired of not talking when I feel I want to talk.
r)I am sick of agreeing with people when I just don’t agree and I’m not able to express myself. All this has made me very depressed, angry, sad and the person I am today.[27]
[27] Page 9 & 10 / 22 of the letter annexed to the requesting parent’s declaration of 5 October 2006
s)You were so different when you came on holidays and when I first met you. I noticed that you were more loving, understanding, supportive, caring, you adored me and I really felt loved and wanted. When we went to Greece (in 2000) you slowly started to change and become like everyone there in Greece. I noticed when you were away from your parents you were one person and when you were with them or around them, you would be another person why? Why? Why? Why have they got such a big influence on you. What are you scared of?
t)Are you scared of letting go?
u)Are you that insecure without them that you need them so much?
v)When someone marry’s, they need to stand on their own 2 feet and you may fall a few times but you learn by your mistakes and you become better, stronger and you prove to yourself 1st that you can do it on your own. Our parents are there for us, if we need them for support. If we have questions we need answers to from time to time. They should not be there all the time.[28]
[28] Page 10 & 11 / 22 of the letter annexed to the requesting parent’s declaration of 5 October 2006
w)I have gotten married (you and the children) come 1st and 2nd come my parents. But for you it seems your parents are still 1st and your family (wife and children come 2nd) where is the strength for you own family?[29]
[29] Page 11 / 22 of the letter annexed to the requesting parent’s declaration of 5 October 2006
x)I ask you again – what are you scared of [….]; it seems you are always scared if something when it comes to your parents. You don’t have top keep proving to them how good you are, how able you are, how organised you are, how much of a good person you are. You don’t need to have to prove anything to them because you are their son and they should know you well enough without you having to keep reminding them how good you are.
y)I know how good you are for me, that’s why I followed you so far away and I believe in you because ‘I love you’ and when you love someone you shouldn’t have to prove anything, you just need to love, respect and support the other person- that’s all I have asked for…….
z)So what are you scared of? Your sisters are not like that, my brother is not like that. What are you? I love your family, your sisters and families and your parents, but I just can’t go on anymore. I am so depressed that I have thought many times to end my life, and do you know what has stopped me? Our children have stopped me. Their beautiful faces, my love for them and just thinking how their […..] will live without me. That’s what stops me. That’s what stops me. That’s what gives me strenght (sic) to fight everything up till now, but I’m tired of fighting (sic) every day, I want to be calm and happy so that
I can make them calm and happy too…..aa)I got married to have my own house, my own rules, my own space, my own family, my own program, my own life with my husband close to me. In Greece I don’t have my own house – it’s your parents. I don’t have my own rules – your parent’s interfere. I don’t have my own space – your parent’s are always there and so are your sister’s kids and so on and so on……
bb)Everyone is always there except for you – I have everyone there and everyday there is someone. When do I have some peace and quite (sic) on my own with my family and just my family?[30]
cc)If they knew that I was unhappy they would have been closer because they know that I have noone (sic) else there. But because they think
I am happy that’s why they are not so involved with me. Do you know what puts you down in everyone else’s eyes? I know you wont want to hear this or you wont want to accept this and that the truth sometimes will hurt you, because it hurts me too when I see it happen because
I am your wife. That person that puts you down is non (sic) other than your own father! How many times does he put you down in front of people? I bet he has been doing it to you all your life. If you do something different to his way – he puts you down because his way is always right – he is narrow minded. He doesn’t look left or right, he just looks straight ahead.[31]dd)I married you [….] I didn’t marry your money, I didn’t marry your olives, tavern, grapes, goats (your fortune) I didn’t marry your family and my family. I married “you” like you married “me”. I am asking you for us (me and you) and our children. I am asking you for us to give it a try. I don’t give up easily and I hope you won’t give up on us either. We love and need you and need you now more than ever. To show us how strong [….] you really are. We must give it a try, us two together. Come here to try and see for yourself like I came their (sic) and tried in Greece. Be open minded and willing, like I was with you and I continue to am with you. We will find our health and happiness again as a whole family.
ee)Don’t think negative – start thinking positive.
ff)You used to tell me so many times that you wanted to pack your things and leave Greece. Do you remember those times? You know I am not lying? Now is your chance to do it for the sake of your own family and children. We need you more than your olives need you. We will all doe and they will still be there [….]. Don’t sell them I’m not asking you to do that. Find someone to work them ½ / ½ like many people have done. You will go to Greece when ever you want. I won’t be stopping you like you would have stopped me on returning back here.[32]
gg)Come for a holiday if you want so that you can relax a little bit from all your work there. Come and see for yourself and if I am wrong, then you can go back, I will understand. Please try to at least do something for yourself for once in your life without feeling guilty.[33]
[30] Page 12 & 13 / 22 of the letter annexed to the requesting parent’s declaration of 5 October 2006
[31] Page 15 / 22 of the letter annexed to the requesting parent’s declaration of 5 October 2006
[32] Page 20 & 21 / 22 of the letter annexed to the requesting parent’s declaration of 5 October 2006
[33] Page 21/22 of the letter annexed to the requesting parent’s declaration of 5 October 2006.
I am satisfied that by the time the respondent wrote the long letter to the requesting parent in January 2006, she had made up her mind not to return to Greece. All of the outcomes sought by the respondent involved the requesting parent travelling to Australia to join her and the children. That is consistent with the requesting parent’s description of the letter as “while accusing my parents and wider family at the end she asked me to leave everything behind and go and start a new life in Australia.[34]” I note that there is no mention in the long letter of the various allegations of serious physical and emotional abuse which the respondent subsequently alleged that she and the children suffered at the hands of the requesting parent (which I will detail later). Counsel for the respondent mother described the long letter as being an attempt at reconciliation. That is, the respondent’s endeavour to tell the requesting parent that she wanted to start afresh with him, in Australia.
[34] Page 2 of the husband’s declaration made 5 October 2006.
The respondent and children were booked on flights back to Greece in late January 2006. The father deposed that ‘[w]hen the arrival date came’[35] for the respondent mother and the children to return to Greece, she informed him that she wanted to stay in Australia so that their elder daughter could seek treatment for her eye condition, strabismus, from her treating doctor,
Dr W. The father stated that he was ‘greatly puzzled [as] the Ophthalmological Clinic of the University of Crete was one of the best in Europe’[36] and elder daughter’s condition could be treated in Greece. According to the father, the respondent mother insisted on remaining in Australia to continue treatment and stated that she would return at the end of February 2006. When that date also passed, the father was advised by the respondent mother that an operation was necessary and that she ‘trusted only the Australian doctors.’[37] The father stated that after many phone calls, the respondent mother told him that she did not intend to return to Greece and that she wished to stay in Australia with the children permanently.
[35] Affidavit of the Father, 24 July 2006, page 3.
[36] Affidavit of the Father, 24 July 2006, page 3.
[37] Affidavit of the Father, 24 July 2006, page 4.
The respondent mother does not disagree with the father’s account regarding the events following the original return date of January 2006. She stated that she did not at any stage advise the father that she did not plan to return. She asserts that the reasons behind why she sought to continue the elder daughter’s treatment in Australia, rather than in Greece, were two-fold. First, she contended that she initially delayed the departure date of late January 2006 because Dr W had indicated to her that he required the time to observe the progress of the elder daughter’s condition after wearing prescribed spectacles. Second, she stated that she delayed subsequent departure dates because the father had denied that the child had any problem with her eye and she was therefore not confident that the father’s concern was genuine enough for him to seek treatment for his daughter in Greece. She therefore preferred to continue the child’s treatment with Dr W in Australia. The respondent mother does not address the assertion by the father that she told him that an operation was necessary for the child, and that he ‘forbid her to act in any way as far as the operation was concerned without [his] consent.’[38]
[38] Affidavit of the Father, 24 July 2006, page 4.
The respondent mother denied telling the father that she would return at the end of February 2006. Further, she asserted that she had asked the father to come to Australia to meet with Dr W regarding the child’s condition, but that he had told her that he could not because of ‘some complaint involving assault charges made against him, preventing him from leaving the country before October.’[39]
[39] Affidavit of the Respondent Mother, 10 September 2006, paragraph 20 (page 9).
The requesting parent’s declaration indicates that the next development was “[in] the beginning of March 2006 during a phone conversation she told me to go to Australia if I wanted to see my children again. During that period and due to some documents addressed to me, I contacted the Child Support Agency Tasmania, and they mentioned that [the respondent mother] declared to CSA that on October 13th she left Greece because we were separated. Following that, I contacted the Australian Embassy in Athens and they in turn informed me about the international Hague Convention and gave me the name of an employee I should contact, in the Greek Ministry of Justice.[40]” None of the evidence adduced by or on behalf of the respondent in this case refutes the requesting parent’s allegations in this regard.
[40] Page 2 of the husband’s declaration made 5 October 2006.
The requesting parent signed an application to the appropriate authorities on
10 May 2006. The Hellenic Ministry of Justice, Athens, in its capacity as Central Authority for Greece, made a request of the Australian Central Authority to act on the father’s behalf for an order for the return of the children to Greece.
The application now before the court was filed on 24 July 2006. As to the wrongful retention, it is alleged that[41]:-
i.After the scheduled return date of 19 January 2006 arrived, the respondent mother told the requesting father that they intended to stay in Australia until 14 February 2006 as the older daughter needed to see a specialist doctor in relation to a condition of Strabismus. The requesting father consented to the extended stay until 14 February 2006.
ii.When 14 February passed, the respondent mother told the requesting father that she and the children would not be returning to Greece.
iii.The children have been wrongfully retained and have remained in Melbourne with the respondent mother since their arrival in breach of the requesting father’s rights of custody.
iv.At no time has the requesting father consented to the children remaining in Australia.
[41] Paragraph 6 of the applicant’s Form 2 application filed 24 July 2006.
I note that the above extract from the application initiating proceedings is not a document sworn to by the requesting parent. It is a summary of the factual basis of the application which is drawn on behalf of the applicant, the State Central Authority. I also note that it is internally inconsistent.
The application proceeded ex parte before Mushin J on 25 July 2006, and interim orders were made for the safe custody of the children, the delivery up of the children’s passports and the filing of documents and evidence in readiness for the trial. The mother would have been served with the proceedings shortly thereafter.
On 7 August 2006 the matter came before me. Ms Greenham, solicitor, of Australian Government Solicitor’s Office appeared for the applicant State Central Authority. Mr Koutsoupias, solicitor, appeared for the respondent mother having filed a Notice of Address for Service on behalf of the respondent on 4 August 2006. On that day the interchange between counsel and the court was as follows:-
Her Honour: Where is [the respondent mother]?
Mr Koutsoupias: She is not present today.
Her Honour: Some reason for that?
Mr Koutsoupias: It was my understanding that she was not needed today. (indistinct) I spoke to my learned friend.
Her Honour: Ok, Alright well we will see. What is your client’s position in relation to the application?
Mr Koutsoupias: My Client in this point and time that the parties are in direct contact with each other. The husband being in Greece. She came here over last year specifically for eye treatment for the youngest.
Her Honour: She says, he doesn’t say that.
Mr Koutsoupias: Ok, and her ticket expires on the 4th of October this year.
Her Honour: Does it?
Mr Koutsoupias: Yes
Her Honour: So the return ticket that she was supposed to go back on in February it is now valid until the 4th of October, Is it? Can it be extended after the 4th of October?
Mr Koutsoupias: No it can’t.
Her Honour: It will be lost.
Mr Koutsoupias: That’s right it expires. Her instructions this morning were that she is going back. That they have reconciled more or less and that they will be giving it another chance the marriage and so forth. She does have concerns – at this stage it is more than likely it will resolve and she will be going back.
Her Honour: Ok, so is she going back next week? When have the Central Authority agreed that she can go back?
Mr Koutsoupias: I don’t have instructions in relation to when specifically she is going back but it will be by the 4th of October, pending ---- the finalisation of her doctors appointment
Her Honour: I don’t know why we would wait until the 4th of October
Mr Koutsoupias: For the eye treatment for the youngest child, she is currently seeing a specialist optometrist. She has an eye condition. I am not up to date with the - - - I received instructions last Thursday, I don’t have specifics in relation to that.
Her Honour: Alright let’s see what Ms Greenham says
A final hearing date of 9 October 2006 was secured on the basis that it could be vacated in the event that the matter resolved and no hearing was necessary. The respondent was required to file her response and supporting evidence by 28 August 2006 and the applicant by 18 September 2006. The matter was adjourned for further mention before me to 17 August 2006 to see if, by that time, the parties had agreed on the specific flights to be taken by the respondent mother and the girls to travel back to Greece.
On 17 August 2006, Ms Daly of counsel represented the respondent mother. The respondent did not attend court. Her counsel tendered a medical certificate to the effect that the respondent was acutely ill and unable to attend court for one month. I enlarged the time in which the respondent could file affidavit evidence to 11 September, required the applicant to respond by 27 September 2006. I vacated the hearing date of 9 October 2006 in favour of an earlier hearing of 2 October 2006 on the basis that the airline tickets which the respondent mother and children could use to return to Greece, expire on
4 October 2006. Finally, liberty was reserved to both parties “to have this matter listed before me for mention by arrangement with my Associate […] in the event that […] either party seeks the appointment of an independent children’s lawyer to be appointed in sufficient time to represent the interests of the children at the final hearing….” No party has ever sought the appointment of an independent children’s lawyer.
The transcript of the proceedings on 17 August 2006 is Exhibit “M1” in these proceedings. It is apparent from the transcript that counsel for the respondent mother advised the court that the mother’s mental state had deteriorated markedly and that her instructing solicitor sought more time in which the respondent could give instructions relevant to the exception provided under Regulation 16(3)(b) (grave risk) to the mandatory return of children. My reasons for judgment are Exhibit “SCA1” and conclude with the following observations:-
[16]. Of course I do not question that the mother is distressed and that she may well be suffering from a mental illness or a psychiatric imbalance. However, the energies that she is devoting to the case here could also be directed to securing her position in Greece in terms of legal proceedings and rights as well as medical and psychiatric care.
[17]. There is certainly nothing which precludes the mother from instituting proceedings in Greece concurrently with these proceedings in Australia in the event that she wants to have some regulation of life in Greece in the event that the children are ordered to return in early October 2006.
As at the date of the final hearing, the respondent mother had not taken any legal or other steps in Greece. As I will come to later, it was submitted on her behalf that she is unable to contemplate the possibility of her return to Greece and, therefore, she is unable to do anything in preparation for it, even in the context that she may not be successful with her primary position of retaining the children in Australia permanently.
Between the hearings on 7 August and 17 August 2006 the respondent mother had suffered a psychotic episode. The respondent’s condition was described by a Dr R, a medical practitioner and psychiatric registrar with the Central East Crisis Assessment Treatment Team, in his affidavit sworn on 25 August 2006 as follows:-
[2]. [The mother] was referred to the C.A.T. Team on the 10th August, 2006. I assessed her at home with her parents on 11th August, 2006, in my role as C.E.C.A.T.T. Psychiatry Registrar.
[3]. The result of my assessment was a diagnosis of an acute psychosis with a working diagnosis of a Brief Reactive Psychosis, but also a wide differential diagnosis including other forms of psychosis.
[4]. [The mother’s] prognosis is that it is likely that she will respond to antipsychotic medication and make a full recovery. The time course for this is unpredictable but is likely to range between a month and six months or even longer.
[5]. On the basis of my assessment I concluded that [the mother] would be unfit to attend Court on 17th August, 2006 and unlikely to be fit to attend Court for one month.
[6]. This was based upon the extreme level of disorder present, particularly her grossly impaired and disorganised thinking, evident as an inability to marshal her thoughts or to shift them to a new topic, an inability to give clear answers, and her inability to make even simple decisions. This was accompanied by marked distress and fearfulness with emotional lability, delusions of surveillance, reference and persecution, abnormal auditory perceptions and impaired insight and judgement.
[7]. Until her mental state has improved substantially, [the mother] is not competent to appear in Court. In addition the stress of attempting to appear in Court is likely to exacerbate her condition and delay her recovery.
On 29 August 2006 the respondent mother was assessed by Dr B pursuant to arrangements made by the mother’s solicitors. This was not treatment. The respondent was assessed individually for 90 minutes and then Dr B saw the mother’s brother for about 15 minutes.
Before me, Dr B referred to the particular symptoms of the mother’s psychosis as a belief that the requesting parent was taping telephone conversations with her, thinking that television programs were in some way related to her and that she was under surveillance.[42]
[42] Transcript of extract of proceedings on 15 January 2007, page 27.
It was conceded on behalf of the respondent mother that her final decision to remain in Australia and to resist any application to return the girls to Greece was formed after service of the proceedings upon her in late July 2006 and, necessarily, after 7 August 2006 (when her solicitor informed that court that he was instructed that the mother and children would return to Greece). In the following passages of her affidavit sworn on 10 September 2006, the respondent mother deposes:-
[21]. [….] It was only after the husband’s verbal abuse and clear statements which he made to me that he would not change his ways towards me and the children, that he would not consider living separately for his parents, that I realised that our lives together in Greece would be intolerable and after he told me that he did not want me, I have decided that our marriage is failed. Accordingly, I do not consider an urgent return to Greece to be my priority. After much reflection, I have decided not to return to live there, at least for some years, and I could not subject my very young daughters to the risks to health and safety which I fear would occur were they obliged to live in Greece in my absence.
[…..]
[24]. That it was not until after I had been served with the papers pertaining to these proceedings that my husband, formally stated that he did not care about me, that his interest was coming to Australia to take the children back to Greece. I was deeply shocked and hurt by his blunt rejection of me and our marriage. My health has been adversely affected by the physical and emotional treatment of my husband towards me. Exhibited hereto and marked with the letters “AS-5” is a medical report of [Dr B].
Dr B records the respondent mother’s resolve to stay in Australia in the following terms:-
[3]. [The mother] is currently living with her parents and two daughters in the parental home in Melbourne. This has been the case since arriving for a holiday in Australia, with her parents after returning with them after they had visited her in Greece. The fares for this trip, I was informed were paid for by her parents, with the acknowledgement and permission of her husband who didn’t wish to come. Her intention had been to return earlier, but this was delayed due to eye appointments for her elder child. Furthermore, she had increasing concern about her mental health were she to return and be subjected to the living conditions previously imposed upon her by her husband. Until her husband sought legal avenues to have the children return to Greece, her intention continued to be that she and the girls would return, but hopefully not to the same untenable circumstances which she had left. She had hoped until the service of these proceedings that her husband would come to Australia to holiday with them and seek to resolve their marital problems.
[4]. Since the proceedings have continued, her husband has become increasingly abusive and [the mother] has increasingly feared for the safety of herself and her children were she to return especially so after he has informed her that she is not wanted back there by him. She has become increasingly anxious and agitated and was diagnosed with a Brief Reactive Psychosis in the setting of extreme stress. This condition is now managed and stable but she continues to require medication to sleep and subdue her “racing” thoughts. She feels overwhelmed and sad, confused by the court case and at times unable to rationally consider all of its implications because of the degree of distress it causes her when contemplating possible negative outcomes. Whilst talking about that prospect she became very tearful, and clutched desperately at me seemingly wanting me to help her save her children from being extradited.
Dr B had access to a copy of the requesting parent’s translated statement and Dr R’s affidavit regarding the respondent mother’s condition. In her affidavit affirmed 7 September 2006, Dr B stated that she agreed with
Dr Barnes’ diagnosis and that the mother’s condition was now managed and stable. I will deal later with Dr B’s evidence in the context of the alleged grave risk of harm to the children.
The matter was mentioned before me on 15 September 2006 at which time the respondent mother had not filed a response which identified the exceptions to mandatory return upon which she relied and she was given further time to do so. It was also ordered that the respondent mother comply with any reasonable requests of the applicant State Central Authority for psychiatric assessment of herself to be completed by 4pm on Tuesday 26 September 2006. If the State Central Authority did retain its own expert, then that expert was to confer with the wife’s expert witness, Professor B, not later than 4pm on 29 September 2006. The applicant State Central Authority did not appoint its own expert to report on the respondent’s psychiatric health.
The matter was listed for final hearing on 2 October 2006.
The hearing on 2 October 2006 did not proceed because the State Central Authority said that it was waiting for some documents to be put in admissible form, in particular, English and it was hoped that they would be processed within 24 hours or less. It did not proceed on 3 October 2006, because the applicant State Central Authority still did not have a translated version of the requesting parent’s answering material. In fact, the applicant did not have the requesting parent’s responses at all. I note that the declaration was made, in Greece, on 5 October 2006. I accepted that the applicant’s case would be prejudiced if I forced them to proceed without giving it a further opportunity to adduce evidence in response to the then recent allegation of the respondent mother that, in about March or April 2006 the requesting parent had agreed that the respondent mother could retain the children in Australia until October and subsequently ‘until the end of the year.’
I adjourned the matter to the earliest available date, 15 January 2007, which meant that there would be a delay of a further 4 months before the matter could be relisted – an unfavourable outcome in proceedings which the court is required to dispose of promptly and without delay.
By an amended response filed on 21 September 2006, the respondent resists the application on 2 grounds. Those grounds are:-
a)There is a grave risk that the return of the children to Greece will expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of Regulation 16(3)(b) of the Regulations (Article 13(b) of the Convention); and
b)The requesting parent has consented to and acquiesced in the wrongful retention of the children in Australia within the meaning of Regulation16 (3)(a)(ii) of the Regulations (Article 13(a) of the Convention).
As this was a case concerned solely with exceptions to mandatory return,
I made orders on 15 September 2006 that the respondent mother’s case proceed prior to the case of the applicant.
As I have indicated, neither party made application for the appointment of an independent children’s lawyer. Also, the applicant State Central Authority did not appoint an expert to assess the mental health of the respondent mother although it made clear that it wanted to, and did, challenge the evidence of Dr B in cross examination.
The respondent mother’s case in relation to grave risk of harm was prepared in terms of there being a grave risk of harm to the children or that the children would be placed in an intolerable situation in the event that she returned to Greece with them. It was not until the trial commenced that counsel for the respondent informed the court that, come what may, the mother would not return to Greece and, if I ordered that the children go back to Greece, they would have to go without her. Initially, counsel for the respondent mother agreed that, if I ordered the children be returned to Greece, I ought to provide to the respondent an option to change her mind within, say, 72 hours of my order to the effect that she could elect to accompany the children. On that basis, counsel for the mother adduced a considerable amount of extra viva voce evidence from Dr B as to what was likely to happen to the respondent if she returned to Greece with the children.
By the second day of the hearing, Ms Smallwood advised me that the respondent mother had specifically instructed her that she would not return to Greece under any circumstances and opposed any option being extended to her to accommodate a change of heart.
Grave risk
Regulation 16(3)(b) provides that a court may refuse to return a child to its home country if a person opposing return establishes that 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. Practically, it mirrors the provisions of Article 13(b) of the Convention which provides:-
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that … there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The respondent mother bears the onus of proving, on a balance of probabilities, that the return of the children to Greece pursuant to the Regulations will expose the children (or any of them) to a grave risk of physical or psychological harm or otherwise place the children (or any of them) in an intolerable situation.
The proper interpretation of Regulation 16(3) has been settled by the majority judgment of the High Court in the cases of DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401 where Gaudron, Gummow and Hayne JJ said:
“[40] So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that ‘there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
‘Narrow construction’?
[41] In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a ‘strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed’. Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. 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 or in 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.”
The respondent’s summary of argument[43] put her case as follows:-
In the alternative, the respondent seeks that the application for the return of the children to Greece be dismissed on the basis that there is a grave risk they will be exposed to psychological or physical harm, and subject to an intolerable situation. [……]
The respondent mother has filed an affidavit sworn by [Dr B], filed 11 September 2006, in which [Dr B] records the history taken from the wife, both as to her psychiatric history and her living circumstances in Greece during her marriage there. She notes the respondent mother has recently experienced a psychotic episode. [Dr B] concludes at paragraph 19 of that affidavit that were the wife forced to return to Greece, without her family support, which is the very foundation of her self esteem, she would be at significant risk of a further psychosis and would struggle to provide the care of her children in a setting of ongoing stress, abuse and depression.
It is submitted on behalf of the respondent mother that that (sic) [the] children are highly dependent upon her and would be exposed to a grave risk of psychological harm should they be separated from her. Any return of the children to Greece would therefore necessitate a return of the respondent mother with them, to protect them from negative effects of separation from her. Her return to Greece would lead to an intolerable situation for the children, given her vulnerable psychiatric state in those circumstances, as deposed by [Dr B]. [……].
It is submitted that whilst she would not be required to cohabit with the father, should she return to Greece, she would be placed in a situation where she has no personal support or available friends, no ability to obtain a job to financially support herself, and/or the children and no financial resources to live off in the meantime. The practical circumstances for herself and the children would result in an intolerable situation. The father has provided no financial support to the respondent since her departure, which departure was by consent, in late 2005.
[43] Summary of Argument on Behalf of the Respondent filed 22 September 2006.
In the preparation of the respondent mother’s case, significant emphasis is placed by her and her family on the fact that the requesting parent did not provide financially for her and/or the children to come to, or since they have remained in, Australia. The respondent complains of the requesting parent’s “cruel hypocrisy, in the he expresses a love and concern for his children, if not myself, whilst knowing that he has not provided one dollar of financial support for me or his two small children since we left Greece in October 2005. Independently of the fact that we have received no financial support from him, he has also failed to make an endeavour wither by phone call, correspondence or even a small token or present to recognise our [younger daughter’s] birthday last January.”[44] The requesting parent responds as follows:-
My wife also accuses me that when she left from Greece I did not give her even one dollar. However, she knows that the money I made from my agricultural estate as well as some money from the tavern was placed in the bank in the beginning of summer 2005 for a better profit after an (sic) mutual agreement between us and she also knew that I owe 4.400 euros for the agricultural provisions and fertilizers. She also stated that she had some money from some occasional hair cuts she made and she did not need my support. I believe that when she left Greece she had 10,000 euros on her and as I discovered later on she had taken with her all family documents and papers for the christening of the children, of the civil and religious marriage, my passport and all jewelry (sic) in our house, even my christening cross.[45]
[44] Affidavit of Respondent Mother, 10 September 2006, paragraph 22 (page11)
[45] Declaration of the requesting parent made 5 October 2006 (page 5)
I have extracted the above evidence because the requesting parent’s failure to provide financial support to the wife is a very strong theme in the respondent’s case, deposed to not only by her but by her other witnesses and the psychiatrist upon whose evidence she relies. The respondent’s expert psychiatrist referred to the lack of financial support from the requesting parent as a matter about which the respondent was ‘particularly distressed[46]’. I am confident that the respondent and her family of origin consider the requesting parent’s lack of financial assistance to be egregious conduct and humiliating of the respondent.
[46] Transcript of extract of proceedings on 15 January 2007, page 30, line 43
On the first day of the hearing I queried the mother’s inability to support herself financially in light of a passing reference in the material to a residential property in Australia which was acquired prior to her marriage to the requesting parent. Finally, counsel for the respondent mother was able to inform me that her client is the sole registered proprietor of an unencumbered residential property at B. That property is tenanted and the rental, of approximately, $8,000 per annum was applied to repayment of a mortgage affecting the property until about August 2006 when the mortgage was repaid in full. The respondent mother owns the property unencumbered and, as at the date if hearing, had $8,000 standing to her credit in an account with National Australia Bank. I was informed that the respondent was unable to estimate the current market value of B property.
I was informed that, apart from her house and savings, the mother has no other property or financial resources. I was informed that the reference in the evidence[47] to monies left to her by her paternal grandmother does not represent any interest relevant to the respondent. She says that she has previously accessed the account in Greece, but now recognises that those monies belong beneficially to her father. Counsel for the respondent mother said that the mother does not even know the current balance of the account.
[47] The affidavit of [Dr B] affirmed 7 August 2006 (paragraph 13), states “…The only small amount of money she obtained was for her children, from her own grandmother (who was living in Greece but has now died), [the father] often demanded that money to be given to him to bank.”
It is not possible to reconcile the respondent mother’s actual financial position with the contentions contained in her summary or argument. Particularly the contention extracted above that:-
[…] should she return to Greece, she would be placed in a situation where she has no personal support or available friends, no ability to obtain a job to financially support herself, and/or the children and no financial resources to live off in the meantime. The practical circumstances for herself and the children would result in an intolerable situation.
It was submitted by counsel for the respondent mother that counsel, and not the mother, had been the author of the case outline document. I accept that is the case. It remains that respondent the mother is the sole owner of unencumbered real estate in Melbourne which can be liquidated and, whilst tenanted, produces an income of about $150 per week gross of expenses. The mother provided no information about expenses referrable to the property. Likewise, the mother provided no evidence about the cost of living in Greece. I am satisfied that the mother has a valuable asset which can be readily liquidated and that money does not constitute much difficulty as far as the mother is concerned. I am also satisfied that the mother has had the wherewithal to support herself and the children in Australia, if not through income then through a mixture of income tested pensions drawn by her in Australia and capital.
The respondent mother personally deposes to the basis of her opposition to the return of her daughters to Greece in the following terms:-
[27]. That in opposing this application, I do so on the basis as hereinbefore described, specifically that my husband has attempted to mislead the Court to misrepresent my position, insofar as he has attempted to erroneously portray me as a scheming dishonest person. Conversely I submit he has chosen to put the interests of our children as secondary to his own concerns which I believe to be a false show of love for our children in order to demonstrate to his own family and/or his neighbours a concern for the welfare of our children. Such a hollow concern has in my respectful submission been contradicted by his failure to demonstrate a capacity to care adequately for their physical and emotional health and safety when they resided with him in Greece and furthermore, his failure to make any financial or emotional support for them and myself for a period of at least one (1) year since they came to Australia with his consent.
What the mother describes above does not bring her within the grave risk of harm exception. I will proceed to determine whether the balance of the evidence does bring the children within the Regulation 16(3) exception to mandatory return.
It was submitted on behalf of the respondent mother that there is a grave risk that the return of the children to Greece would expose the children to harm by virtue of them being returned to an environment in which they:-
▪were personally subjected to abuse, for example, the alleged behaviour of the requesting parent to the younger daughter after delivering the respondent mother to the dentist;
▪witnessed serious assaults being perpetrated on their mother by their father, for example the chopping board incident;
▪would be likely to be abused by the requesting parent and/or his family in the future.
This argument is predicated on my accepting the respondent mother’s evidence about domestic violence perpetrated by the requesting parent against her and to the children. The evidence of the mother’s expert psychiatrist was tested in cross examination. However, the direct evidence about domestic violence, being that of the respondent mother and the requesting parent, is disputed and untested. I have not seen either give evidence. Their evidence conflicts in very many respects, which I will set out below.
The respondent’s allegations about domestic violence and violence to or witnessed by the children appear in the affidavits sworn by her and her witnesses or as told to her expert psychiatric witness. What follows is my attempt to summarise the allegations of the respondent mother and the responses of the requesting parent.
a)The respondent mother alleges that she was frequently chastised by the requesting parent. She recounted several such incidents as occurring when she was ‘obliged by my husband, [the father], to give assistance in the business and order rely on a monitoring system downstairs for noise or disturbance upstairs to check on the welfare of my young children.’[48] When she went to the upstairs level of the tavern to check on the children. She stated that ‘[The father] would become angry with me for leaving the business on these occasions, he appeared to consider the work in the restaurant as a priority above my concern for the safety and welfare of our children.’[49] The response of the requesting parent was[50] that he worked hard to support the family “like the people who run businesses and have responsibilities do” and that the respondent’s work was not onerous. In particular, “I agree that my wife washed and ironed the table linen, but that was not always the case. I never forced her to leave the children and work in the tavern.”[51]
b)The respondent mother alleges that she and children were subject to isolating and controlling behaviour whilst living with the requesting parent in Greece. She contended that the father refused to allow the family to move into their own home, as initially ‘promised’[52] when the respondent mother first agreed to move in with the father’s parents. She deposed to the father telling her to, ‘forget about it’[53] and stating that they were simply ‘not going to move’.[54] The requesting parent responded by saying:-
“The house we lived is an independent apartment, with phones, independent power supply and central heating. The only thing in common with my parent’s apartment is the court yard. She [the respondent] should not forget that even when she lived with her grandmother in 1999 she was even then complaining.”[55]
c)The respondent mother deposed that after the birth of the elder daughter, the family ‘rarely went out, at most perhaps once every three (3) or four (4) months.’[56] Dr B stated that the respondent mother had told her that the father had prevented her from ‘taking the children to any child related activity, had no holidays, would not allow her to get any childcare, or allow her manual driving lessons, which meant she was totally isolated and dependent.’[57] Dr B deposed to the father’s control of the parties’ finances, recounting the respondent mother’s recollection that the father ‘[cut] her off from supports and any life beyond the four walls of their small home…’[58], that she had no knowledge of their financial circumstances and that the father did not give her money for herself or the children, even accompanying them to do the grocery shopping. The requesting parent did not specifically respond to the allegations of the respondent. However, the matters raised by the respondent relate to the functioning of the parents as a couple or an intact family. The allegations, if ultimately tested and accepted to be correct, may be the basis for the respondent ending the marriage, but they are not an appropriate basis for refusing to return the children to Greece.
d)The respondent mother alleges that she and children were not a high priority for the father. She deposed that it was after the time the respondent mother queried the possibility of the family moving into a house which was independent of the father’s parents, that she noted a change in the father’s attitude towards her and, she conceded, ‘to a lesser extent, to the children.’[59] She noted that the father’s concern appeared to be focussed on the interests of himself and his parents and that she and the children were being demoted to a lower priority as time went on. This is a further example of evidence which may be relevant to the issue of where and with whom it would be in the children’s best interests to live but it is not relevant to the exception provided by Regulation 16(3). It is not proposed that the respondent return to Greece to live with the requesting parent or at all.
e)The requesting parent was violent and emotionally abusive towards the respondent mother throughout the marriage in the presence of the children and, in one particular incident, allegedly forced the mother’s head onto a chopping board and threatened to kill her with an axe, only stopping when the elder daughter screamed for him not to kill her mother. As I said earlier in these reasons, with many cases brought under the Convention, the evidence in this case is not comprehensive. Gaps in evidence which in domestic proceedings are routinely filled in oral evidence look like gaping holes in the evidence when we proceed only on the papers. This allegation of the wife is an example of how I have to reconcile factual matters in the absence of oral evidence and cross examination. The respondent mother deposed as follows:-
[25]. In relation to my previous statement that my husband has abused me both verbally and physically, I cannot forget one occasion when our children were playing with my nieces and nephews after bedtime when my mother-in-law complained that they were “running in and out of the tavern, which was not a playground”. I then decided to take the children upstairs to sleep, when my husband grabbed me by the neck in a choking manner and marched me back into the tavern kitchen. He then placed my neck on the chopping board and had an axe in his hand threatening to kill me. His mother and my niece and nephew in addition to our children witnessed this incident and were traumatised by it. My eldest daughter was crying and screaming No! Daddy No1 Don’t kill our mother! He then stopped.
[48] Affidavit of Respondent Mother, 10 September 2006, paragraph 10 (page4).
[49] Affidavit of Respondent Mother, 10 September 2006, paragraph 10 (page5).
[50] Declaration of the requesting parent made 5 October 2006 (page 3)
[51] Declaration of the requesting parent made 5 October 2006 (page 4)
[52] Affidavit of Respondent Mother, 10 September 2006, paragraph 11.
[53] Affidavit of Respondent Mother, 10 September 2006, paragraph 11.
[54] Affidavit of Respondent Mother, 10 September 2006, paragraph 11.
[55] Declaration of the requesting parent made 5 October 2006 (page 4)
[56] Affidavit of the Respondent Mother, 10 September 2006, paragraph 16.
[57] Affidavit of [Dr B], affirmed 7 September 2006, paragraph 10.
[58] Affidavit of [Der B], affirmed 7 September 2006, paragraph 10.
[59] Affidavit of Respondent Mother, 10 September 2006, paragraph 11.
f)When the requesting parent’s responding statement became available, the respondent’s allegation was dealt with in the following manner[60]:-
[60] Requesting parent’s declaration made 5 October 2006 (pages 5 & 6)
[…]
Reply regarding paragraph 25 of the declaration under oath made by [the mother].
If those things mentioned by [the mother] in paragraph 25 were actually happening in a democratic country, such as Greece, she could have easily contacted the police and I would undergo enormous penalties by the law and now I would probably be even in prison.
g)Counsel for the respondent mother submitted that I should not regard the requesting parent’s response as being as being a denial of her client’s allegations. I agree that a reading of the balance of the requesting parent’s declaration makes it clear that elsewhere he was able to make blanket denials and specific denials. By way of corroboration of the mother’s allegation, her father deposes[61] that:-
[61] Affidavit of [the mother’s father] sworn 8 September 2006 (paragraph 5).
[5]. [….] I was shocked on one occasion, when my little granddaughter [the elder child], without any prompting or encouragement or enticement, approached me and said “Grandad, my Dad tried to kill my mum”. I responded to her, somewhat dismissively that it wouldn’t have been so. When my little granddaughter persisted, I further asserted that it must have been a joke. Some time later, I raised with my daughter [the mother] the comment made to me by her daughter. She became distressed and did not want to talk about it. I did not discuss the matter with [the father].
h)I accept the submissions of counsel for the respondent mother to the extent that I will not construe the requesting parent’s response as a denial. This chopping board incident is the most serious act of physical violence alleged by the respondent mother against the requesting parent. The requesting parent’s response is consistent with him making a point that, if the respondent mother did not go to the police when it happened, then it is too late for her to complain about it now. Neither do I construe the response of the requesting parent to be an admission. Sure enough, if nothing in the nature of what the respondent alleges occurred, it would have been easy for the requesting parent to make an outright denial of the allegation. Framed as the requesting parent’s response is framed, however, I am not satisfied that the reason that he did not make an outright denial is because what the respondent mother deposed to was true. Elsewhere the requesting parent has said:-
The fact that I have never abused [the respondent mother] is proven by the declarations under oath of friends who have no interest and as a result they say only the truth.[62]
[62] Declaration of the father made 5 October 2007, foot of page 2
i)I am inclined to the view that something of the nature of the respondent’s complaint happened but I am not satisfied to the required standard that it occurred as deposed to by her or as reported to her father by the elder daughter. This difficulty in the evidence is what cross examination and oral evidence would elucidate. Without the benefit of cross examination, I am unable to find to what extent the respondent’s allegation is correct.
j)Even if I were satisfied to the appropriate standard that the requesting parent had acted as he is alleged to have acted, I would not regard this chopping board incident as necessarily constituting a grave risk of harm to the children given that the jurisdiction of the children’s habitual residence has a system of family law which provides legal protection for children. It is not suggested by the respondent that she will not participate in any proceedings in Greece, albeit such participation may be from Australia.
k)The respondent mother deposes that the father was ‘on many occasions initially verbally abusive towards me and ultimately subsequently, physically abusive to me and the children.’[63] One of these incidents was recounted by the respondent mother to Dr B and is included in Dr B’s affidavit at paragraph 8. She stated that on one occasion, the father was irritated by the sound of one of the children crying and that he ‘punched [the respondent mother] whilst the baby was in her arms, blaming her for the child not settling.’[64] The requesting parent did not respond to this allegation, perhaps because it was not evidence of the respondent. I am satisfied, however, that the requesting parent has elsewhere denied assaulting the respondent.
[63] Affidavit of Respondent Mother, 10 September 2006, paragraph 11.
[64] Affidavit of [Dr B], affirmed 7 September 2006, paragraph 8.
l)The respondent mother deposed to another incident of violence against the children in March or April 2004, when the father drove the respondent mother to a dentist appointment and witnessed the children become distressed as they wanted to go with her. The respondent mother stated that the father became angry with the younger child, grabbed her by the hair and pushed her downwards in the car. The respondent mother asserted that the father then told her that held the child down for the remainder of the car journey home. The mother said that, upon examination of the child’s head, she ‘observed that a patch on [the younger daughter’s] head indicated that he had pulled a tuft of hair from her head.’[65] The respondent mother noted that the father did not deny that he had caused the missing patch of hair and that he had commented that ‘it would “teach her a lesson”.’[66] It is submitted that if returned, there is a grave risk that ‘they will be exposed to a continuum of that abuse’[67]. The requesting parent’s response[68] is that:-
[65] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 12 (page5).
[66] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 12 (page5).
[67] Summary of Arguments of the Respondent Mother, 22 September 2006, paragraph 14.
[68] Requesting parent’s declaration made 5 October 2006 (page 4)
I never treated my children badly. The wanted to come with me and if at some cases I left without taking them, mostly the youngest one reacted very intensely. I do not know about the pulling hair matter but I do know that she pulled my oldest
This is yet another factual dispute that I am unable to determine in the absence of the evidence being tested. I am not prepared to disregard the requesting parent’s denial. It follows that this allegation is not evidence which is supportive of the respondent’s objective for me to refuse to return the children to Greece.
m)The respondent mother deposed that she feared for her children’s safety. She deposed to the father having rifles in the house and instructing the older child, ‘how to hold it and how to shoot it’[69] when the child was only two-and-a-half years of age. When the respondent mother objected to the father doing this, she was allegedly told to ‘shut up and leave me alone.’[70] After what she described as ‘much abuse and manipulation’[71], the mother was able to lock the rifles in a cupboard in another, locked, room. The requesting parent’s response was:-
[69] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 13.
[70] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 13.
[71] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 13.
I strongly disagree with what my wife says about keeping a gun in our house and that she – allegedly – is afraid for the safety of the children because of the gun. The gun in the house is an antique from my grandfather. We have removed the trigger mechanism from the gun for further safety reasons. My wife is well aware of this fact but she does not say the truth.[72]
[72] Requesting parent’s declaration made 5 October 2006 (page 4)
I construe the requesting parent’s reference to removing the trigger mechanism as a further precaution to the precautions taken by the respondent of placing the rifle in a locked cupboard in a locked room. I am not satisfied that either of the girls are a grave risk of harm in this context.
n)The respondent mother alleges that the requesting parent did not understand the physical and emotional needs of the children and ‘appeared not to know their likes, dislikes or in fact, to really know them or show any real interest in them.’[73] The respondent mother stated that the father would force the elder daughter to accompany him while he worked in the fields on the family farm, ‘even in 40c heat.’[74] She stated that the child would develop ‘heat rash and sores and would cry from the discomfort’[75] and that the father ‘did not appear to consider her well being and would insist on taking her.’[76] Further, the respondent mother contended that the elder daughter witnessed abuse when the mother attempted to prevent the father from taking the child into the fields. The requesting parent denied the allegation. He said:-
[73] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 14.
[74] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 14.
[75] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 14.
[76] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 14.
In Greece the climate is Mediterranean. This means that never in the summer do we have 40 degrees Celsius. Only in Africa they have 40 degrees Celsius during summer. Moreover, no agricultural works are ever done by anyone when it is hot outside. They are done early in the morning or late in the afternoon because no one wishes to excruciate himself by walking in the fields when the sun is high. Besides the only thing I do in summer is to monitor the automatic irrigation system of my vineyards and olive trees, lasting 30 minutes per day, since the olive trees and the vineyards are irrigated automatically, and I do so three times per week.
I categorically deny that I was taking my daughter [the elder child] in the fields against her will. My daughter insisted in coming with me since it gave her a chance for a stroll. Her mother did not allow her to go for strolls with her cousins, so [the elder daughter] greatly enjoyed coming with me for a stroll in the countryside because we were going to see little rabbits I have at the extremities of my property. I always wanted to have my children with me and not be closed in the four walls of the house all day without company. [The elder daughter] was happy and merry in out strolls lasting up to half an hour, only early in the morning or late in the afternoon.[77]
o)The requesting parent’s response to the respondent’s allegation about taking the elder daughter out in the heat is just another example of the many disputed facts raised by the respondent which may be relevant to a parenting case but is neither relevant nor persuasive of any fact relevant to grave risk of harm under Regulation 16(3). Again, I am not prepared to disregard the requesting parent’s denial.
p)The respondent mother also stated that on other occasions, the father had been unable to cope with the care of the children when she left them in his care, even for a short while. She stated that ‘he would come to me 10 to 20 minutes later asking me to take [the children] as he could not handle them and could not get anything done, saying he has to shout and hit them.’[78] This allegation is relevant to a determination of where and with whom the children should live particularly if the welfare of the child(ren) is paramount. However, even if I were to accept it as being true, that fact is not a basis upon which the children could be said to be at grave risk of exposure to harm or likely to be placed in an intolerable situation within the meaning of Regulation 16(3)(b) of the Regulations or Article 13(a) of the Convention.
q)Further, she stated that the father did not often wish to spend time with herself and the children and that ‘[e]ven on the one day out of seven when we were entitled to be absent from the restaurant business, he would elect to find other duties to that of attending to his wife and children…’[79] Likewise, even if I were to accept it as being true, that fact is not a basis upon which the children could be said to be at grave risk of exposure to harm or likely to be placed in an intolerable situation within the meaning of Regulation 16(3)(b) of the Regulations or Article 13(a) of the Convention.
r)The requesting parent spoke in a deprecating manner to the respondent mother whilst speaking on the phone to her in Australia and that he ‘acted manipulatively with the children’[80] by making derogatory comments about her to the children. The respondent mother did not provide any details or specific evidence about the comments the father allegedly made about her to the children and whilst the allegation, appropriately elaborated, would be relevant evidence to be taken into account in reaching a decision on where and with whom the children should live, it does not approximate the harm or intolerable situation contemplated by Regulation 16(3)(b).
s)The respondent mother also asserted that the requesting parent acted towards her in a derogatory manner in Greece, in particular, failing to stand up for her against his family. She stated that she believed she had a good relationship with the father’s sisters and their families. She denied avoiding the father’s parents because of the close proximity of their home to the tavern. Dr B stated that the respondent mother told her that ‘[w]hilst she had a cordial relationship with her in-laws she was always made to feel like an outsider; her husband degraded her in front of them, and would not stand up for her when they also were negative towards her.’[81] The respondent mother contended that she found the father’s mother ‘…intrusive and controlling but
I endeavoured to respect her, to foster a harmonious family relationship. My husband […] directed me always to submit to her will and never challenged or cautioned his mother regarding her treatment of me.’[82] I do not regard the respondent’s reservations and ill will toward her relatives by marriage to be relevant to any exception to mandatory return as provided for in the Regulations.t)The respondent mother asserted that the father told her that upon her return to Greece, she would ‘have to work on the farm, that [she] would not work as a hairdresser, which occupation he likened to work of prostitutes.’[83] The requesting parent denied this allegation.[84]
[77] Requesting parent’s declaration made 5 October 2006 (page 5)
[78] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 14.
[79] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 16 (page7-8).
[80] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 20 (page9).
[81] Affidavit of [Dr B], affirmed 7 September 2006, paragraph 7.
[82] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 15.
[83] Affidavit of the Respondent Mother, sworn 10 September 2006, paragraph 21 (page10).
[84] Requesting parent’s declaration made 5 October 2006 (page 5)
I construe the requesting parent’s response, extracted above at paragraph 147, as a denial that he acquiesced to the children being retained in Australia and/or consented to them remaining in Australia until the end of 2006.
I note that the requesting parent’s application to the Central Authority in Greece was made on 10 May 2006. It has annexed to it various public documents obtained earlier than that, being school records dated 5 May 2006. The requesting parent’s affidavit was sworn on 14 June 2006. Thereafter, it appears that the requesting parent has responded to the mother’s case as and when called upon to do so. This includes his own response by declaration made
5 October 2006 and the 5 other witnesses statements which he obtained and which were made on either 25 September or 5 October 2006.
I queried why the respondent’s affidavit material about the telephone conversations in which she had, allegedly, been told that the children could stay in Australia until October 2006 and then until the end of 2006 was so vague, lacking as it does, references to dates or times. Counsel for the respondent mother said that her client could not recall the dates because, at the time, she did not consider what the requesting parent said to be something she needed to record. In essence, the respondent mother had no idea of how significant the two telephone conversations would become. I am not able to accept or to reject the respondent’s evidence about the alleged telephone calls.
There is simply no cogent evidence upon which I can be satisfied, on a balance of probabilities, that the requesting parent consented or acquiesced as is alleged by the respondent mother. On the evidence:-
a)I am not satisfied that the requesting parent provided his consent for the respondent mother to remove the children from Greece for any longer than 19 or 29 January 2006;
b)I am not satisfied that the requesting parent acquiesced to the retention of the children in Australia until October 2006 or the end of 2006 or any time later than the date on which the requesting parent anticipated their return prior to them leaving Greece.
The evidence adduced in this case, does not come remotely close to satisfying me that the requesting parent has, in fact, gone along with the wrongful retention.
I am also satisfied that at no time since the children have arrived in Australia has the requesting parent acted in a way that would lead the respondent mother to believe that he would not insist on the return of the children to Greece.
It was suggested, but not submitted, by counsel for the respondent mother that, had I been satisfied that the husband had acquiesced to the wrongful retention to the alleged effect because the State Central Authority would not be able to rely on its application because the time by which the children were required to be returned, namely October 2006 or the end of 2006, post dated the issuance of the application on 24 July 2006. I surmise that this was an argument formulated on behalf of the respondent mother in the context of the final hearing commencing on 2 October 2006 rather than on 15 January 2007. In any event, the issue does not arise because I am not satisfied that the requesting parent ever agreed, in the appropriate sense, to the children remaining in Australia past January 2006.
I find that the respondent mother’s case under Regulation 16(3)(a)(ii) must fail.
Exercise of discretion against mandatory return
In the event that the respondent mother had made out either of the exception for which she contended, I would have had available to me a discretion whether or not to order the return the children to Greece.
The applicant contended that if the discretion arose I should not exercise it. The respondent contended that I should exercise it and thereby allow the two children to stay in Australia.
In the unreported decision of Kay J in State Central Authority and DB [2002] FamCA 804 delivered 24 September 2002, His Honour, in my view, correctly summarised the relevant law in relation to the exercise of the discretion to refuse an order for return as follows:-
33. The existence of the Regulation 16(3) defence means that the Court may refuse to order the return of the child under the Convention. This raises the question of the exercise of a discretion. The Regulation offers no express terms as to how that discretion may be exercised. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640; FLC 92-706; 20 Fam LR 390 at CLR 661; FLC 83,456; Fam LR 403:
“if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child's return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]’ enable it to be said that a particular consideration is extraneous [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.”
In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:
“(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)he situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”
34. Her Ladyship said:
“56. As to (f), the policy of the Hague Convention undoubtedly weighs heavily in respect of the children's objections. In my view, expressed in Re HB (Abduction: Children's Objections) [1997] 1 FLR 392, it weighs particularly heavily in those cases where children come to visit a parent living here and wish to remain: unless their objections are very cogent indeed, they should return to their primary carer for the dispute about a change in primary care to be settled in their home country. It weighs rather less heavily when the children wish to remain with their primary carer, particularly where, as here, the child has had no contact with the other parent for such a long time. … “
35. Arden LJ said of the exercise of discretion in the TB case that as the majority were sending the younger children back and that the mother would follow, notwithstanding the wishes of the elder child, the interests of the child dictated that she be forced back as well.
“107 However K is entitled to separate exception under Article 13 by reason of the fact that she is able to express her wishes and objects to return. She is now fourteen and a half years old. … It is important that her wishes should be respected so far as possible but on the other hand since her brothers are to return, the court should consider whether it is right to respect those wishes in those circumstances. More importantly she is close to her brothers and her mother. She has been a source of strength to her mother in the past. Her mother says that at times she does not know how she could cope without K. In my judgment, the likelihood is that her mother will return to New Zealand with A and KI. In those circumstances, despite some dislocation in her education, it is in K's best interest to return also. In so concluding, I reach the same conclusion as Hale J (as she then was) reached on the facts of the case in Re: HB (Abduction: Children's Objections) [1997] l FLR 392, referred to with approval on appeal allowed on another point [1998] 1 FLR 422). Other factors include the fact that she has grown up in New Zealand and has the benefit of her mother's extended family there. Having considered those matters, in my view, in the exercise of discretion effect should not be given to K's wishes and she too should be ordered to return…”.
In the recent decision of HZ v State Central Authority [2006] FamCA 466, the Full Court comprising Kay, Coleman and Warnick J. endorsed the above passage by Kay J in State Central Authority and DB as being appropriate approach to be taken on the issue of the exercise of discretion to refuse to return a child to its country of habitual residence. In HZ v State Central Authority the Full Court were considering an appeal from my decision to return children then aged 8, 5 and 3 years to Greece after they had been consensually removed about a year earlier but then wrongfully retained. Their Honours observed:-
Her Honour identified the features that were appropriate to the exercise of discretion in this case, namely that the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused, because her Honour identified the retention as “the most ‘blatant kind’”…Given that these were children who were born in Greece and had spent effectively the entirety of their life in Greece until the mother unilaterally determined to retain them in Australia, Greece was clearly the appropriate forum for issues relating to the welfare of these children to be determined. In those circumstances it was appropriate for her Honour to place significant weight on the first of the objects referred to in Article 1 of the Convention namely the prompt return of the children who had been wrongfully retained in Australia.
In HZ v State Central Authority there was no suggestion that the respondent mother’s mental health precluded her return to Greece but, similar to this case, she had alleged that the father had perpetrated acts of violence and verbal and emotional abuse against her, had restricted her freedoms, that she would have little support or financial assistance in Greece and that the father had threatened her with harm upon her return, thus constituting a grave risk of psychological and physical harm or an intolerable situation for the child. Differently from this case, I was satisfied at first instance, that some of the alleged violence, overly controlling behaviours and abuse had occurred. The Full Court upheld the finding at first instance that the exceptions to the mandatory return of the child to Greece were not made out and affirmed that, had the exceptions been made out, it would have been inappropriate to exercise the resultant discretion to allow the children to remain in Australia.
In this case, neither party addressed the relevant considerations with much vigour but I will do the best I can on the evidence before me.
Comparative suitability of the forum to determine the child’s future in the substantive proceedings I have no doubt that Greece is as suitable as Australia in terms of judicial resources. The mother and her family reside in Australia. The mother says that she cannot go to Greece without her family. If that remains the case and sufficient of her family members refuse to accompany her to Greece even for the purpose of proceedings, then she will have to participate from Australia. I have not received any evidence to the effect that Greece has less capacity than our court in Australia to obtain evidence by way of video link or on commission and that would be from the respondent mother and at least her father. On the other hand, the balance of witnesses relevant to the allegations of the respondent mother are in Greece, that is the father, his parents, his sister and the various persons from whom he has obtained evidence to date. That number is likely to be expanded rather than contracted. Taking the availability of witnesses into account, I am satisfied on balance that Greece is the more suitable forum to determine the children’s future than is Australia.
The likely outcome of the substantive proceedings. This is not easy to answer and neither counsel before me attempted to do so. I am confident that an outcome in either jurisdiction will follow on an examination of all relevant evidence which I am obviously in a position to assess at this stage. In Australia the paramount consideration is the best interests of the children. In Greece, from what I understand, the focus is also the interests of the child(ren). I note that at page 31 of the annexures to the application filed on 24 July 2006, there is an extract of applicable law which includes the following:-
Article 1511
Every decision of the parents concerning the parental car’s exercise, must aim at the child’s interest.
The court’s decision must also aim at the child’s interest, when, according to the law’s provisions, the court decides relatively to the placement of the parental care or to the mode of her exercise. The court’s decision must also respect the equality between the parents and not make distinctions because of the sex, race, language, religion, political or other convictions, nationality, national or social origin or of the property.
According to the child’s maturity, his opinion must be asked appreciated before each decision relevant to the parental care, provided that the decision concerns his interests.
According to Greek law, custody of a person involves the following:-
The custody of the person of the child mainly includes his / her upbringing, supervision, schooling and education as well as the determination of his / her place of residence.
During the upbringing of the child, his / her parents support him / her, without any sex discriminations, to develop his / her personality responsibly and with social conscience. Penitentiary measures can only be taken if they are pedagogically necessary and do not prejudice the child’s dignity.
During the child’s schooling and vocational education, the parents take into account his / her abilities and personal aptitudes. For this reason, they should cooperate with the school and, if there is such a need, request the assistance of competent state services or public organisations.
I am unable to predict the outcome of proceedings in either jurisdiction without knowing what evidence is to be adduced and without having an opportunity to see it tested. For the purpose of this exercise, I am satisfied that the outcome of the proceedings, wherever they are conducted, will be a determination arrived at with the children’s interests being a very real if not paramount consideration.
Consequences of acquiescence. I am not satisfied that there has been any acquiescence on the part of the requesting parent.
The situation awaiting the respondent mother and children if they return. There is no suggestion of any criminal charges or civil penalties which would await the respondent parent in the event of her return. Seeing as it is not the respondent’s proposal to return to Greece come what may, I will not dwell of circumstances as they pertain to her.
I am satisfied that, the children, are returned to Greece, they will be cared for by the requesting parent and his family and enveloped in whatever warmth and love that family has to offer. The girls’ material needs will be met but they will have no mother. That is a harsh reality and, if I had been satisfied that the respondent mother’s mental illness was such that she is currently not in command of her own circumstances, this is a factor which would weigh heavily in favour of me exercising the discretion to permit the girls to stay. However,
I am not satisfied on the evidence that it is practically impossible or even highly undesirable for the respondent mother to return to Greece. I repeatedly asked counsel for the mother to inform me of what the mother had done to make life better for herself in Greece and to prepare a path by which the children could be returned in her care although living entirely separately and part from the requesting parent. The response was that she had done nothing because she was unable to contemplate returning to Greece. Absent cogent evidence that the respondent was, at the time of the hearing before me, effectively precluded by psychological or psychiatric illness or by some other reason from returning to Greece, I regard the fact that the mother has done nothing to make her lot better to be indicative of trying to close off all options other than permitting her to stay in Melbourne.
The anticipated emotional effect upon the children of an immediate return
.
I accept that the children will suffer emotionally by reason of being separated from the respondent mother who has been their primary carer. They have not seen the requesting parent nor any member of their family in Greece since October 2005 when they were then aged 4 years and 2¾ years respectively. They will be bewildered at the loss of their mother and not understanding about the loss of their Australian family members. However, the alternative, may be that they are deprived of having a relationship with the requesting parent or from ever knowing their Greek family or their Greek way of life. It is a comparison of matters which have very different qualities. The known and familiar status quo against that which lies in the future. I have no direct evidence as to the medium to long term effect of depriving the children of their primary carer at this stage in their lives. I note that Dr B’s evidence, about the effect of the children being separated from the respondent, was expressed to be predicated on the history provided by the respondent mother being correct. Whatever be the truth of the mater as between the requesting parent and the respondent, I accept that separation from the respondent and her family will be an emotional blow to the girls and will produce anxiety and sadness. At the end of the day, however, I am not satisfied that this predicament was brought about by other than the wife’s actions in respect of which she has failed to satisfy me that she does not have control.
The extent to which the purpose and underlying philosophy of the Hague Convention would be frustrated is a return order were refused. The child welfare issues raised in this case are matters which, in my view, are best dealt with by the courts in Greece. It is not contended that the respondent will be unable to participate meaningfully in proceedings in Greece about with whom and where the children should reside. However, if the respondent mother had persuaded me that she was precluded from returning to Greece because of mental illness or a dependency on her family (which she has not), this would be a factor in favour of me refusing to make an order for her to return.
I also consider the extent to which the underlying philosophy of the Convention has been compromised by the court process here. The children left Greece in October 2005 and should have been back in Greece by February 2006. The relevant application was not filed until 24 July 2006. The respondent’s psychotic episode and her failure to comply with orders and directions for the filing of material were responsible for considerable delay and impeded the State Central Authority from gathering its evidence. Then the State Central Authority obtained an adjournment of the final hearing which was then re-listed in mid-January 2007. It was most unfortunate that the adjournment added another 4 months to the process. Then the matter proceeded before me and there has been a regrettable delay in my delivery of this judgment.
The consensual removal of the children from Greece occurred 18 months ago. The children have been wrongfully retained since, say, February 2006 and the wrongful retention has subsisted for more than 12 months. In Re C (Abduction) [1999] 2 FLR, Thorpe LJ was critical of the delay in the determination of those proceedings in the following terms, at page 488:-
Sadly this case is not an illustration of good practice. The abduction took place on 9 June 1998. The father’s application to the Cypriot central authority was made on 15 July 1998. Good practice would have ensured the determination of the issue and an order for the return of B before the expiration of the long summer school holidays. The trial did not take place until 6 months after the initiation of the proceedings. The Cypriot central authority is responsible for 2 of those months. But in a straightforward case with no evidence but the affidavits from the family the determination of the proceedings in this jurisdiction should not take 4 months. At least we have completed the appellate review within 2 months. The goal for which we should strive in this jurisdiction, both at first instance and on appeal, should be 6 weeks from initiation to conclusion. It cannot be too strongly emphasised that this is intended to be a hot pursuit remedy and if the courts permit it to linger into anything else they aid the creation of unnecessary litigation issues.
The comments of Thorpe LJ in relation to the convention being a hot pursuit remedy and the need to dispose of the matters as expediently as possible are as apt here as in England.
Whilst the time lines in this case are far from admirable, I am satisfied that the delay, itself, has not thwarted the purpose of the Convention. This has not ceased to be a case which should be examined by a court of competent jurisdiction, in Greece, as soon as possible. This is not a case which should, because of the affluxion of time, rest with the respondent’s unilateral and wrongful retention of the children in Australia.
Hypothetically and on other evidence, it may be that I would exercise a discretion to refuse an order returning the children to Greece. However, on my determination of the principal issues of grave risk of harm and acquiescence, no discretion is enlivened.
I found the case in some respects to be difficult but, in the final analysis, the difficulties which I perceived were around the presentation of the respondent’s case and not the substance of it. On the evidence which was presented to me, the result of the girls being returned to Greece is not a result which is attended by doubt or disquiet on my part. No doubt, if the respondent mother had better evidence to present, it would have been presented on her behalf. Further, if she was unable to give those instructions herself, she had retained professionals to present a case for her. At all relevant times she was represented by qualified practitioners whose task it was to advise her as forcefully as necessary. Alternatively, if worst came to worst and they assessed the respondent as a person, who by reason of mental disability, was not able to understand the nature or possible consequences of the case or not capable of adequately conducting, or giving adequate instructions for the conduct of, the case, they could have made application (supported by appropriate evidence) for the appointment of a case guardian. They did not do so. On the other hand, in the running of this case, the respondent mother instructed counsel appearing on her behalf to resist any order which would give the mother the opportunity to change her mind and follow the children to Greece[119]. I think that reflects a resolve and capacity to give instructions which is inconsistent with the respondent’s case that she is not in control of her own circumstances or unable to put in place any measures by which she would be able to continue to care for the children when they are returned (as they will be).
[119] Discussed at paragraph 60 of this judgment
I will accede to the application of the State Central Authority. I will hear from counsel as to the form of the orders whereby both children are to be returned to Greece.
I certify that the preceding one hundred and eighty (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 23 March 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SCA & SIGOURAS
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