Mazorski & Albright

In the Family Court of Australia, Justice Bennett considered an application by the State Central Authority seeking the return of two young daughters to Greece. The application was made on behalf of the children's father, Mr F, who resided in Greece. The respondent mother, Ms S, opposed the return, arguing that exceptions to the mandatory return provisions applied. The core dispute revolved around whether the children would face a grave risk of harm or an intolerable situation if returned to Greece, and whether the father had consented to or acquiesced in their retention in Australia.

The court was required to determine two primary legal issues: first, whether the respondent mother had established, on the balance of probabilities, that the return of the children to Greece would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation, pursuant to Regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986. Second, the court had to consider whether the requesting parent had consented to or subsequently acquiesced in the wrongful retention of the children in Australia, as per Regulation 16(3)(a)(ii). If either of these exceptions were found to be made out, the court would then need to exercise its discretion regarding the children's return.

Justice Bennett found that the respondent mother had not discharged the onus of proving the grave risk exception. While acknowledging the emotional distress the children would experience upon separation from their mother, the court found insufficient evidence to establish a grave risk of harm or an intolerable situation in Greece. The court also found that the respondent mother had failed to prove that the requesting parent had consented to or acquiesced in the children's retention in Australia beyond the initially agreed period. Consequently, the court determined that the exceptions to mandatory return were not engaged.

The court ordered the return of the children to Greece within 14 days. Liberty was granted for parties to apply regarding the implementation of the order, and the matter was to be relisted if agreement on the return particulars could not be reached by a specified date. Exhibits were to be retained by the court for 30 days, subject to any appeal.