Moroz & Moroz
[2025] FedCFamC1A 41
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Moroz & Moroz [2025] FedCFamC1A 41
Appeal from: Director-General, Community Services Directorate & Moroz [2024] FedCFamC1F 642 Appeal number: NAA 276 of 2024 File number: CAC 42 of 2024 Judgment of: ALDRIDGE, WILSON & CAMPTON JJ Date of judgment: 14 March 2025 Catchwords: FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention – Where the father appeals against a refusal to make a return order – Whether the primary judge erred in assessing the existence of a grave risk of harm or an intolerable situation – Where the primary judge applied the correct principles – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt XIIIAA, ss 4AB, 117AA
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16
Turkish Civil Code No. 4721 art 325
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
Comar & Comar (2020) FLC 93-958; [2020] FamCAFC 99
Director General, Department of Family and Community Services v Davis (1990) FLC 92-182; [1990] FamCA 119
DP v Commonwealth Central Authority (2001) 206 CLR 401; [2001] HCA 39
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Galea v Galea (1990) 19 NSWLR 263
Gsponer v Director General, Department of Community Services (Vic) (1989) FLC 92-001; [1988] FamCA 21
Harris & Harris (2010) FLC 93-454; [2010] FamCAFC 221
Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21
House v The King (1936) 55 CLR 499; [1936] HCA 40
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
M v M (1988) 166 CLR 69; [1988] HCA 68
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Pickford & Pickford [2024] FedCFamC1A 249
Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145
Secretary, Department of Communities and Justice & Handley [2023] FedCFamC1F 1063
State Central Authority v Sigouras (2007) 37 Fam LR 364; [2007] FamCA 250
Thatcher & Thatcher [2024] FedCFamC1A 204
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; [1988] HCA 44
Wagstaff & Wagstaff (2022) FLC 94-098; [2022] FedCFamC1A 119
Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 65
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Zafiropoulos and State Central Authority (2006) FLC 93-264; [2006] FamCA 466
Number of paragraphs: 69 Date of hearing: 5 February 2025 Place: Sydney Counsel for the Appellant: Dr Smith Solicitor for the Appellant: Kennedy Partners Counsel for the Respondent: Ms Treherne Solicitor for the Respondent: Just Dispute Resolution Solicitor for the Independent Children’s Lawyer: Did not participate, submitting notice filed ORDERS
NAA 276 of 2024
CAC 42 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MOROZ
Appellant
AND: MS MOROZ
Respondent
INDEPENDENT CHILDREN’S LAWYER
Intervener
ORDER MADE BY:
ALDRIDGE, WILSON & CAMPTON JJ
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Moroz & Moroz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, WILSON & CAMPTON JJ:
INTRODUCTION
Following a five day trial, on 23 September 2024 the primary judge dismissed the application filed by the State Central Authority (“SCA”) on 12 January 2024 for the return to the Republic of Turkey (“Turkey”) of two children, one born in 2020 and the other born in 2021 (collectively hereafter called “the children”).
The father requested the SCA to seek orders for the children’s return to Turkey. In this appeal he asserted that he was a person affected by the orders made by the primary judge and was therefore properly entitled to appeal which he has done by Amended Notice of Appeal filed 7 January 2025. He relies on the principle in Harris & Harris (2010) FLC 93-454.
The father, a resident of Turkey, is the children’s biological father. The children’s mother is their non-biological mother. The children were born in Country B through surrogacy.
This appeal invited consideration of various provisions of the Hague Convention on the Civil Aspects of International Child Abduction, colloquially known as “The Hague Convention” to which the Commonwealth of Australia and Turkey are convention signatories.
For the reasons that follow, we take the view that the orders made by the primary judge were open. To our minds, the primary judge correctly applied all relevant authorities and engaged in proper fact finding with the consequence that the discretion conferred upon the primary judge was not vitiated. The appeal to this Court must be dismissed.
RELEVANT BACKGROUND
Very few factual matters were challenged by the father in this appeal. Instead, the mainstay of his appeal was his criticism of the primary judge’s treatment of the concept of the existence of grave risk if the children were returned to their place of habitual residence in Turkey and the primary judge’s conclusion that the making of a return order would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation, as stipulated in reg 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Child Abduction Convention Regulations”). That being said, the father challenged the factual findings at [215] and [221] of the primary judge’s reasons.
In order to set the father’s grounds of appeal in context, a short recital of relevant factual matters is necessary. The following matters were distilled from the primary judge’s reasons –
(a)the father, the holder of dual Turkish and Australian citizenship, was born in Turkey and was at all relevant times an educator;
(b)the mother, also the holder of dual Turkish and Australian citizenship, was born in Australia and was at all relevant times a public servant;
(c)in 2012 the mother and father met in Country H where the mother was working at an educational institution;
(d)in 2013 the mother returned to Australia, the father moved to Australia in early 2014 and the two married in City J in mid-2014;
(e)by reason of difficulties encountered in conceiving naturally, in 2018 the father and mother first pursued surrogacy, engaging a surrogacy agency in Country B and entering into a surrogacy agreement in late 2019;
(f)both children were born in Country B to surrogate mothers with donor eggs and the father’s sperm;
(g)both children hold Australian and Turkish citizenship;
(h)following the closure of Australian borders to non-citizens and non-residents upon the COVID-19 declaration in March 2020, in early 2020 the mother travelled to Country B in anticipation of the birth of the couple’s first child (the father remaining in Australia) and a month later the father travelled to Turkey where the mother and the first child then joined him;
(i)in mid-2020 the mother and father entered into a second surrogacy agreement leading to the birth of their second child in 2021;
(j)in July 2022 the relationship between the mother and father deteriorated and, according to the mother, in October and November 2022 physical altercations occurred between the two;
(k)in early 2023, when the family was living in Turkey, the mother and children departed Turkey without the father’s knowledge or consent;
(l)in early 2023 the father commenced a proceeding in a Turkish court seeking both property and parenting orders;
(m)in early 2023 the father asserted that the children were in Australia and he travelled to Australia with a view to locating the children, but he did not see the children so after returning to Turkey he travelled to Australia three times in mid-2023 in order to see the children;
(n)in mid-2023 the father made a report to police regarding alleged injuries to the children; and
(o)on 12 January 2024 this proceeding was commenced at the request of the father.
The primary judge found that all requirements of reg 16(1A) of the Child Abduction Convention Regulations had been satisfied with the consequences that the children’s removal from Turkey in early 2023 was wrongful within the meaning of reg 16(1).
As has already been observed, the Court retained a discretion to not order the return of the children if any one of the sub-regulations of reg 16(3) were engaged.
The primary judge found, in respect of reg 16(3)(b), that the mother had proven the existence of a grave risk of physical or psychological harm or placing the child in an intolerable situation, drawing on the learnings in the High Court in DP v Commonwealth Central Authority (2001) 206 CLR 401 (“DP”) and in other decisions such as Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950, Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 and State Central Authority v Sigouras (2007) 37 Fam LR 364.
In considering the matters relevant to reg 16(3)(b), the primary judge considered risk factors identified by the mother (at [162]–[219]). Those included –
(a)that the mother was the victim of continued family violence while in Turkey;
(b)that the mother claimed she was subjected to coercive and controlling financial behaviour;
(c)the mother’s allegation that she was assaulted by the father in October and November 2022;
(d)the father’s denial of coercion;
(e)the contention that the possibility of the mother facing criminal charges in Turkey constituted a grave risk of psychological harm and an intolerable situation for the children because of the children’s likely separation from their mother;
(f)the impact of the cancellation of the Turkish birth registration records; and
(g)the mother’s potential lack of custodial rights in Turkey.
The primary judge drew together the separate factors leading to the conclusion that reg 16(3) had been satisfied in the matters recorded in nine dot points at [221] of the reasons.
Her Honour held that one of the sub-regulations of reg 16(3) applied so it became necessary to examine whether the discretion to return the children to Turkey should be exercised. The primary judge relied on the decision in Zafiropoulos and State Central Authority (2006) FLC 93-264. The primary judge held that the mother’s standing to participate in a proceeding in Turkey was unknown having regard to the biological mother of the children being a surrogate mother with the consequence that the father may well be in a superior position in any litigation in Turkey. In addition, the primary judge addressed the following other matters in the exercise of her discretion –
(a)if a return order were not made, the forum for the determination of the children’s future was Australia;
(b)according to Australian law, the best interest considerations are the paramount considerations whereas in Turkey, the best interest considerations are addressed in the context of public law and morality, recognising that in Turkey surrogacy is illegal;
(c)a Turkish court was likely to investigate apparent registration irregularities in the children’s birth documentation and by reason of the father being bilingual, he was likely to enjoy a position of superiority in any such investigation because the mother would likely require an interpreter and legal representation;
(d)it was not known whether the mother was entitled to seek orders for the relocation of the children to Australia if a parenting proceeding were commenced in a Turkish court, assuming the mother even had standing to participate in any such proceeding; and
(e)the children were likely to be immediately adversely impacted in their emotional and psychological well-being and functioning if separated from the mother in circumstances where a return order were made and the mother chose not to return to Turkey. There was also a possibility the children may well be placed in care if Turkish authorities became involved and took the view the father was an unsuitable parent.
The primary judge dismissed the SCA’s application for orders for the return of the children to Turkey.
THE AMENDED NOTICE OF APPEAL
Seven grounds of appeal constituting the original Notice of Appeal were wholly deleted and replaced by four grounds in the father’s Amended Notice of Appeal dated 7 January 2025. It is necessary to go to each, in terms.
GROUND 1
The father’s first amended ground of appeal was as follows –
The findings made at paragraphs 215 and 225 (dot point 4) of the Reasons for Judgment that the separation of children from the Respondent constituted both a grave risk of harm and an intolerable situation was not supported by the evidence.
In the Summary of Argument filed 7 January 2025 on behalf of the father, his counsel contended that the primary judge’s path of reasoning commencing at [214] of the reasons was unsupported by the evidence with the consequence that the conclusion expressed in [215] was not supported by the evidence. The impugned paragraphs of the primary judge’s reasons were as follows –
214.The mother’s lack of recognition as the children’s mother in Turkish law, poses a real risk that a return order would result in the loss of parental connection. The mother contends the impact on the children if they were separated from her would be significant, and amount to an intolerable situation for the children. She relies on the observations of the interactions between the children and the mother, as referred to by Ms G in the Hague Report as follows:
15. Based on the interactions during the observations, the children appear to have a warm and positive relationship with [the mother] and seem to turn to her for shared enjoyment and assistance. This aligned with [the mother’s] description of her relationship with the children. [The mother] displayed a good understanding of the children’s physical, emotional, social and educational needs and presented as a loving parent who has centred her lifestyle around the children and their needs.
215.Counsel for the mother submitted given the children’s age and attachment to their mother as their primary carer, the children’s likely “fear, confusion, and prolonged disruption” if a return order is made would be detrimental to [the children’s] emotional and psychological well-being and constitute both a grave risk of harm and an intolerable situation for the children: see Handley at [71]–[72], [127]. I agree with and accept the submissions of the mother’s counsel in this regard.
The father’s Summary of Argument made it plain that by Ground 1, the father was not contending that the particular finding was against the weight of the evidence or that it was contrary to the evidence. Instead, the father’s counsel submitted that the finding in [215] of the reasons was not open on the evidence.
It is therefore necessary to dissect the several propositions advanced in [214] and [215] of the primary judge’s reasons.
In the first sentence of [214] the primary judge observed that the mother’s status as the children’s mother in Turkish law, or lack thereof, created a real risk that a return order would result in a loss of parental connection. The second sentence of [214] was a recital of the mother’s contention about the impact on the children if they were separated from the mother and that the magnitude of that impact, according to the mother, amounted to an intolerable situation for the children. The third sentence of [214] was a record of the way the mother relied on paragraph 15 of Ms G’s Hague report as well as a quotation of a paragraph of that report.
Only the first sentence of [214] of the primary judge’s reasons incorporated anything that was other than a recital of a contention or an extract from the Hague report. In our view the primary judge’s observation of the mother not being recognised in Turkish law as the children’s mother thereby posing a particular risk was amply supported by the evidence. It was not disputed in this case that surrogacy is illegal under Turkish law. It was also undisputed that the children’s birth involved surrogacy. The mother’s status under Turkish law, not being the biological mother of the children, presented considerable legal obstacles for the mother as revealed by the evidence of various witnesses who deposed to Turkish family law, Mr F in particular. We see no error in the primary judge’s statements in the first sentence of [214] in which the primary judge spoke of a risk posed by the making of a return order. The primary judge did not state that the risk would eventuate as a reality.
At [215] the primary judge recited submissions advanced by counsel for the mother, the source of authority for those submissions and the primary judge’s acceptance of those submissions. The primary judge referenced three paragraphs of the primary judge’s own decision in Secretary, Department of Communities and Justice & Handley [2023] FedCFamC1F 1063 ([71]–[72] and [127]) (“Handley”).
The gravamen of Ground 1 lay in the father’s assertion that no evidentiary basis existed for the primary judge’s acceptance of the mother’s submission in [215]. Specifically, the father complained about the primary judge’s acceptance of the submission that a constellation of certain identified factors constituted a grave risk of harm as well as an intolerable situation. The constellation of factors accepted by the primary judge as constituting a grave risk of harm and an intolerable situation was said to be –
(a)the children’s age and attachment to their mother as their primary carer;
(b)the children’s likely fear, confusion and prolonged disruption if a return order were made; and
(c)such likely fear, confusion and prolonged disruption if a return order were to be made would be detrimental to the children’s emotional and psychological well-being.
The primary judge agreed that such a constellation of factors enlivened the criteria in reg 16(3)(b) and her Honour relied on a similar proposition considered in Handley.
In advancing Ground 1 the father relied on statements from various authorities, including DP, Director General of the Department of Family and Community Services & Davis (1990) FLC 92-182 (“Davis”) and Gsponer v Director General, Department of Community Services (Vic) (1989) FLC 92-001 (“Gsponer”) in an endeavour to make good certain propositions. Those were –
(a)the degree of psychological harm to be established must be substantial to a level comparable to an intolerable situation as was held in DP and Davis;
(b)the physical or psychological harm in question must be substantial or weighty as was held in Gsponer;
(c)the gravity of the grave risk of harm required is emphasised by the cognate reference to an intolerable situation as was held in DP;
(d)it will be inevitable that a child taken from one country to another without the agreement of one parent will suffer disruption, uncertainty and anxiety so reg 16(3)(b) is intended to refer to more than that kind of result when it speaks of a grave risk to the child of exposure to physical or psychological harm on return as was held in DP by Gaudron, Gummow and Hayne JJ; and
(e)the mother bore the onus of establishing the grave risk and the evidence to support such a conclusion must be clear and compelling as was held in DP.
On behalf of the father it was put that little evidence existed about the likely effect of separation of the children from the mother. The father’s counsel submitted that the best evidence about the likely effect of any separation between the mother and the children was reposed in the Hague report prepared by Ms G. He submitted that taken in aggregate, Ms G’s evidence revealed the following –
(a)she did not have a comprehensive understanding of the children’s relationship with the mother; and
(b)she identified difficulties in the children maintaining a sense of connection with the mother if the children returned to Turkey but did not say this would result in significant psychological harm or an intolerable situation for the children.
In response to questions put to her in cross-examination, the mother gave evidence that it would be a huge disruption to the children’s routine and the children would miss the mother if they were returned to Turkey, it would upset their rhythm and it would upset the love provided to the children by the mother (Transcript 26 July 2024, p.180 lines 5–21).
Counsel for the father submitted that the evidence from Ms G and the mother extracted immediately above did not amount to clear and compelling evidence of which the Court spoke in DP (at [43]), nor did it amount to weighty evidence of which the Court spoke in Gsponer. Instead, the father’s counsel submitted that the evidence allegedly constituting a grave risk of harm and an intolerable situation amounted to no more than evidence of disruption, uncertainty and anxiety which the plurality in DP said was insufficient to constitute a grave risk to the children of exposure to physical or psychological harm, or an intolerable situation.
We disagree with the father’s contentions in respect of Ground 1. In our view it was erroneous to contend, as the father’s counsel contended, that the only evidence concerning matters germane to reg 16(3)(b) was properly characterised as the children sensing disruption, uncertainty and anxiety. While that evidence undeniably existed, other weighty, compelling and substantial evidence existed demonstrating that the making of a return order would place the children in an intolerable situation. The primary judge enumerated them in [221] of the reasons. The intolerable situation that the children would face if returned to Turkey included the following –
(a)parenting orders in Australia are determined by reference to best interest considerations yet those considerations under Turkish law are set in a context of public law and morality;
(b)surrogacy is illegal in Turkey yet both children in this case were born through surrogacy;
(c)the mother’s status to participate in any potential legal proceeding in Turkey in respect of the children was unknown;
(d)it was also unknown whether the mother would have standing and therefore whether she would be entitled to seek orders from a Turkish court in respect of the children; and
(e)it was also unknown whether the mother could seek from a Turkish court an order for the relocation of the children to Australia, assuming she overcame all associated complications that may have arisen by reason of her lack of standing as the birth mother of the children.
In aggregate, we take the view that the five matters recorded in the immediately preceding paragraph supported a finding that the return of the children would place them in an intolerable situation. The evidence was in accordance with the High Court’s statement in DP, being “clear and compelling” (at [43]). The evidence went significantly beyond its proper characterisation as evidence of a return order likely creating disruption no more than uncertainty or anxiety. Such an intolerable situation may lawfully be ameliorated by the making of an order refusing to return the children to Turkey, as the primary judge did. The father’s submissions in respect of Ground 1 are without merit.
GROUND 2
The father’s second amended ground of appeal was as follows –
The learned primary judge erred in considering the risk to the Respondent in the event a return order were made, rather than the risk to the children.
The father contended that the primary judge erroneously focused on harm that may be occasioned to the mother rather than harm to the children, as reg 16(3)(b) required.
In developing his contentions in respect of this ground, counsel for the father submitted that in [221] of the reasons the primary judge narrated nine dot points that represented the matters to which the primary judge had regard in concluding that the children were at grave risk of exposure to physical or psychological harm or which otherwise placed the children in an intolerable situation. They were as follows –
•The possibility of the mother being subjected to coercive and controlling behaviours of the father, particularly in the context of the family law litigation;
•The uncertainty of the trajectory of the father’s complaint that the mother has abused the children and the possible consequences for her;
•The lack of certainty about whether the mother will face criminal prosecution in Türkiye arising from the surrogacy arrangements;
•If the mother is prosecuted for the surrogacy the risk of her incarceration which would result in an intolerable situation for the children;
•The inevitable investigation by the Turkish authorities of the incorrect birth registration;
•The uncertainty of the children’s interim living arrangements during the authorities [sic] investigation of the birth registration;
•The mother’s potential lack of recognition as the children’s mother in Turkish parenting proceedings;
•The mother’s potential lack of standing in the Turkish family law proceedings, both interim and final;
•The effect on the children of separation from their primary caregiver, their mother;
In essence, the father contended that the first three dot points of [221] were not directed to the children as was required by reg 16(3)(b) and instead focused on the mother. Counsel also submitted that the finding in the first dot point as to the possibility of coercive and controlling behaviour falls short of a finding of family violence as there was no finding of fear on the mother’s behalf.
On behalf of the mother, her counsel argued in respect of Ground 2 that the father’s complaints concerning [221] of the primary judge’s reasons cannot be read in isolation. Counsel for the mother submitted that on its proper construction the matters recorded in [221] disclosed that the primary judge had in fact considered each factor and the effect thereof on the children. Counsel for the mother additionally submitted that the definition of family violence in s 4AB(1) of the Family Law Act1975 (Cth) (“the Act”) does not require the person to be fearful, citing Pickford & Pickford [2024] FedCFamC1A 249, although on the facts of this case the mother gave evidence that, in point of fact, she was fearful (Transcript 25 July 2024, p.168 lines 28–33).
On a fair reading of [221], it seems to us that the primary judge was recording the matters collectively and cumulatively which the primary judge considered represented the evidence supportive of her Honour’s conclusion that by the making of a return order –
(a)a grave risk existed of the children’s exposure to physical or psychological harm; or
(b)the children would otherwise be placed in an intolerable situation.
To the extent that any one or more of the matters in the nine dot points in [221] of the reasons were to be construed as placing the children in an intolerable situation if a return order were made, then that matter, or those matters were squarely relevant to reg 16(3)(b). In our view it was not necessary in the proper application of reg 16(3)(b) for the primary judge to isolate one or more matters that went to the grave risk of exposure to physical or psychological harm on the one hand, from other matters that went to the intolerable situation for the children. For that matter, the overlap in the construction of the two concepts in reg 16(3)(b) of grave risk of physical or psychological harm on the one hand, and of an intolerable situation on the other hand, was expressly recognised by Gleeson CJ in DP (at [8]). To our minds, that emboldens our view that it was not necessary for the primary judge to identify which dot point was attributable to either component of reg 16(3)(b).
To the extent that the primary judge took into account evidence of matters that principally affected the mother, but which nevertheless impacted upon the children then that evidence was relevant to reg 16(3)(b). Illustrations of that were found in dot points four, seven, eight and nine of [221].
It must not be overlooked that authority at the highest level has stood untouched on the subject of the proper approach to be adopted by an appeal court examining reasons under review. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) the High Court held that reasons for the decision under review are not to be construed “minutely and finely with an eye keenly attuned to the perception of error” (quoting from Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287). That decision is among the most frequently applied decisions in Australian jurisprudence, it having been applied in this Court very many times. In our view, the argument underpinning Ground 2 of the father’s Amended Notice of Appeal is an illustration of an approach to appellate review that the High Court in Wu Shan Liang held should not be adopted.
In our view, Ground 2 is devoid of merit.
GROUND 3
The father’s third amended ground of appeal was in the following terms –
The learned primary judge erred in [the] assessment that there was a grave risk that the return of the children under the Convention would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation.
The father contended that the primary judge’s conclusion about the risk embedded in reg 16(3)(b) was wrong because the primary judge failed to apply the correct test to the task of assessing risk. In substance, the father’s contentions in respect of the assessment of risk were as follows –
(a)the primary judge was required by reg 16(3)(b) to consider whether the relevant facts disclosed the existence of a “grave risk” of the matters addressed in that regulation;
(b)in M v M (1988) 166 CLR 69 the High Court held that the relevant risk must be unacceptable;
(c)in reg 16(3)(b) the relevant risk is conditioned by the adjectival qualification “grave”;
(d)in DP the plurality held that the precise provisions of reg 16(3)(b) should be given their ordinary meaning and that issues arising from that regulation stem from factual applications rather than the construction of its terms;
(e)as the five-member Court of this Court held in Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”) any assessment of risk must be undertaken against a backdrop of known facts and not as a matter of the exercise of discretion;
(f)consequently, this Court in Thatcher & Thatcher [2024] FedCFamC1A 204 held that the “correctness standard” prescribed by the High Court in Warren v Coombes (1979) 142 CLR 531 should now be applied;
(g)the advantages enjoyed by a trial judge should not be diminished nor overlooked, those advantages having been set out by Kirby ACJ in Galea v Galea (1990) 19 NSWLR 263;
(h)the primary judge’s conclusion that there was a grave risk that the return of the children to Turkey would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation was wrong and not open on the evidence; and
(i)even if “a risk” was established that the children would suffer harm of the kind contemplated by reg 16(3)(b) if separated from the mother, the evidence was not such as to attract the appellation “grave risk” as was required by reg 16(3)(b).
Taking the categories adopted by the primary judge, the father developed arguments in four categories. They related to –
(a)the impact of the cancellation of the Turkish birth registration records and the mother having no custodial rights in Turkey;
(b)criminal proceedings in Turkey and the possibility of subsequent imprisonment of the mother in Turkey;
(c)family violence and the children’s safety; and
(d)the accumulation of risk based on several discrete issues.
The finding as to the father’s conduct in prosecuting the deregistration of the children’s birth was at [208] of the primary judge’s reasons. Counsel for the mother identified the evidence grounding the finding referred to in the reasons as Annexure “[MF]3” of the affidavit of Mr F filed 19 April 2024, being Mr F’s expert report, particularly p.2 lines 18–22 and p.11 lines 10–16 of that report. The evidence at [194] that the divorce proceeding was stayed until the registration issue was dealt with by the Turkish court is also found at Transcript 27 August 2024, p.215 lines 34–38. The father’s knowledge as to bringing it to the divorce court’s attention is in Annexure 26 of the affidavit of the father affirmed 2 November 2023, annexed to the Form 2 Application filed on behalf of the Director-General on 12 January 2024.
It seems to us that at the core of Ground 3 was the father’s submission that on the facts of this case, the primary judge, upon the application of the correct test to the establishment of the grave risk to which reg 16(3)(b) was directed, could not be and should not have been persuaded that the elements of reg 16(3)(b) had been satisfied. The father also submitted that it was erroneous to reach a conclusion that the elements of reg 16(3)(b) had been satisfied as a matter of the exercise of discretion.
In her submissions before this Court, the mother descended to the minutiae in responding to each category advanced by the father in the paragraph immediately above. Relevantly paraphrased, the mother’s counsel submitted –
(a)in relation to the impact of the cancellation of registration and lack of custodial rights, the mother had argued that the impact of the uncertain outcome of the legal position in view of the factual matrix of this case meant that the mother’s right to pursue any legal rights to custody in Turkey in light of the uncertain criminal prosecutions was unknown, itself being compounded by the father’s complicity in registering the mother as the birth mother on Turkish registration documentation;
(b)in relation to the proposition about criminal proceedings, the mother argued that the criminal proceedings were relevant not only by reason of the severity of the charges laid but also by reason of the fact that the father’s course of conduct, once divorce discussions were underway, was deliberate, designed to improve his legal position in respect of the divorce application; and
(c)in relation to family violence and the children’s safety, the mother argued that each matter on which the primary judge relied was reasonably open on the evidence within the contemplation of the High Court in Edwards v Noble (1971) 125 CLR 296.
It seemed to us that several answers to those broad submissions emerged. In no special order of importance, they were as follows –
(a)as with all legislation including subordinate legislation, the integers of reg 16(3)(b) fall to be construed in accordance with well-established principles for the construction of legislation and of subordinate legislation as the Full Court of this Court held in Wagstaff & Wagstaff (2022) FLC 94-098;
(b)the application of reg 16(3)(b) to the facts of a given case will not be jurisprudentially sound if the judge refusing to make a return order does no more than apply discretion-based criteria to the determination of the dispute because reg 16(3)(b) calls for discrete issues to be separately proved;
(c)the risk that must be established for the purposes of reg 16(3)(b) is not merely “a risk” but rather it is “a grave risk”;
(d)the term “grave risk” has been the subject of a large number of English and Australian authorities including the High Court’s statement of principle in DP, which the primary judge was required to follow in accordance with the pronouncements of the High Court on the issue of stare decisis in Hill v Zuda Pty Ltd (2022) 275 CLR 24 and in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 which the primary judge did in this case;
(e)the “grave risk” in reg 16(3)(b) is that the effect on the children in the making of the return order under the Hague Convention would –
(i)expose them to physical or psychological harm; or
(ii)otherwise place the children in an intolerable situation;
(f)as a matter of ordinary human experience, the assessment of risk necessarily involves a predictive exercise, hence, in ordinary parlance people proceed on the basis that a risk exists that a certain consequence flows from certain conduct as was recognised by the five-member Full Court in Isles v Nelissen;
(g)findings of fact based on past events are measured according to the evidentiary standard of the balance of probabilities whereas predictions of future events are not measured on the balance of probabilities;
(h)in engaging in the predictive exercise required by reg 16(3)(b) in respect of risk, the Court must be persuaded that a grave risk exists of the children’s exposure to physical or psychological harm by the making of the return order or that a grave risk exists that the making of the return order otherwise places the children in an intolerable situation;
(i)the “grave risk” in reg 16(3)(b) relates to the consequences of the return of the child under the Hague Convention in the sense that by the return of the children a grave risk exists that the children are thereby exposed to physical or psychological harm or the children are otherwise placed in an intolerable situation;
(j)reg 16(3)(b) is not to be given a narrow or a broad construction and instead it is to be given the meaning its words require (DP at [44]); and
(k)in undertaking the predictive exercise of which the High Court spoke in DP, seldom will there be any certainty about the prediction, yet certainty is not required because persuasion is required that a risk exists attracting the qualitative description “grave” and, insofar as the risk of harm is concerned, the risk extends to a risk that the return would expose the child to harm.
In our view, that deals directly, but fatally, with the father’s arguments under Ground 3. The father’s main thesis was that no evidence existed to persuade the primary judge that a grave risk existed of the requisite kind. Certainty is not required that the events about which a grave risk exists will come to pass. The High Court has said as much (DP at [42]). What must be established, according to the High Court in DP (at [43]), is that a grave risk exists of exposure to future harm. It was not correct for the father to submit that clear and compelling evidence of that is required in all cases, without which the proofs under reg 16(3)(b) will not have been discharged.
In our view, the four factors identified by the primary judge between [162] and [220] of the reasons do in fact and in law demonstrate the existence of a grave risk that upon the children’s return to Turkey in pursuance of the Hague Convention the children would be exposed to harm or to an intolerable situation. In our view it was fallacious for the father to submit that the children may (repeat, may) suffer no more than “disruption, uncertainty and anxiety” if returned to Turkey (father’s Summary of Argument filed 7 January 2025, paragraph 27) while the person (not being the children’s biological mother) who has been their mother for their entire lives is unable to meaningfully assert her position as their mother under Turkish family law. The children are at grave risk that such circumstances would create an intolerable situation for the children.
We take the view that the primary judge did not err in the manner asserted in respect of Ground 3. That ground fails.
GROUND 4
The father advanced as his fourth amended ground of appeal the following –
In exercising the discretion as to whether to make a return order, the learned primary judge erred:
4.1 In concluding that the Respondent’s standing to participate in Turkish legal proceedings is unknown; and
4.2 In failing to consider that any identifiable risk of harm was occasioned by the Respondent’s wrongful removal of the children from their habitual place of residence.
In essence, under this ground the father contended that the primary judge’s discretion to refuse to make a return order under reg 16(1) was vitiated by reason of the alleged errors identified in Ground 4.1 and 4.2.
The first of the two alleged errors (that is to say, the alleged error in Ground 4.1) concerned the primary judge’s statement at [231] that, in effect, the mother’s standing to participate in a legal proceeding in Turkey was unknown. Counsel for the father submitted that art 325 of the Turkish Civil Code No. 4721 (“the Turkish Civil Code”) provided that a third party (as defined) was entitled to apply and may be granted the right to establish a personal relationship with a child.
In reliance upon the decisions of the High Court in House v The King (1936) 55 CLR 499 (“House v The King”) at 504–505, Lovell v Lovell (1950) 81 CLR 513 at 519, Mallet v Mallet (1984) 156 CLR 605 at 614 and CDJ v VAJ (1998) 197 CLR 172 at [186], the mother contended that the weight or importance to be given to evidence in the exercise of a discretion conferred upon the primary judge was quintessentially for the her Honour unless it could be shown that the conclusion was plainly wrong. The mother contended that the primary judge made no error in the exercise of the discretion involved when deciding whether or not to make a return order.
Precisely why the father asserted error when stating that the mother’s standing was unknown was itself difficult to follow. According to the Turkish Civil Code it was not disputed that the mother (not being the birth mother of the children) did not enjoy the same rights in relation to the children that the surrogate mother enjoyed, as Mr F said in his report which the primary judge accepted at [108] and [112] of the reasons. The primary judge did not reason that the mother had no standing at all, but rather recorded that the mother’s standing to participate in a legal proceeding in Turkey was unknown. While it was true that by art 325 a third party was entitled to apply to endeavour to show extraordinary circumstances with a view to establishing a personal relationship, whether the mother would be successful in any such application was not known. The primary judge was correct in saying as much. Far from the primary judge making any error in that regard, the primary judge made no material error so as to vitiate the valid exercise of the discretion under reg 16(3). In our view Ground 4.1 fails. No error on the part of the primary judge was thereby demonstrated.
That leaves Ground 4.2. Pursuant to that ground the father asserted that the primary judge’s exercise of discretion to refuse to make a return order was vitiated by the failure to take into account a relevant factor, thereby enlivening one basis on which the judicial exercise of discretion can be impugned in accordance with principles espoused in House v The King.
In essence, the father argued that the mother wrongfully removed the children from their habitual place of residence. He submitted that the mother may well not be a parent of the children under Turkish or Australian law. He said the circumstances giving rise to the mother’s contentions about risk to the children either existed at the time of the wrongful removal or were circumstances caused by her as the person who wrongfully removed the children from Turkey.
We take the view that the primary judge was acutely aware of the circumstances in which the mother arrived in Australia with the children. The primary judge found at [135] that the removal of the children from Turkey was wrongful. The primary judge was fully informed about the mother’s role when making the finding of wrongful removal.
Participation in a wrongful removal is not a matter that by the terms of reg 16 disentitles a person from arguing that reg 16(3)(b) is operative. We reject the submission that the primary judge failed to take into account the role of the mother in the children’s wrongful removal from Turkey.
It is relevant to observe that the father’s counsel cited no authority for the submission that the mother’s participation in the children’s wrongful removal from Turkey frustrated and undermined the philosophy of the Hague Convention. That submission was forlorn. Regulations 16(1) and (1A) do not descend into the minutiae of the role and acts of the person or persons involved in the wrongful removal of a child. Moreover, even where a return order must be made by operation of regulations 16(1), 16(1A) and 16(2), then reg 16(3) empowers the Court to refuse to make the return order if satisfied about an array of matters including those set out in reg 16(3)(b). In other words, despite the criticisms the father made about the conduct of the mother in the children’s wrongful removal from Turkey, nevertheless a return order need not follow as a mandatory consequence.
The father did not challenge on appeal the recording of the evidence at [162]–[177] as to his capacity (or absence thereof) to support the children’s relationship with the mother. That finding emerged at [177] of the reasons where the primary judge accepted counsel for the mother’s submissions as to the father’s coercive conduct.
The findings as to the opinion of Ms G at paragraphs 17 to 19 of the Hague report regarding the nature of the relationship between the mother and the children were at [200] of the reasons (the evidence of Ms G having been previously accepted by the primary judge at [32]). Further, the mother’s submissions recorded at [201] and [202] of the reasons were accepted by the primary judge in conjunction with the findings at [212]–[214], grounding the findings at [215] – the challenge to this intermediate finding being a primary plank of the father’s challenge on appeal. We repeat other findings of the primary judge set out at [217] of the reasons.
Birth certificates were also relevant to the finding in [199] of the primary judge’s reasons and led to the finding challenged on appeal at [213].
Ground 4 is devoid of merit. It fails.
OUTCOME
All grounds of appeal have failed. The appeal must be dismissed.
COSTS
In Comar & Comar (2020) FLC 93-958 the Full Court allowed an appeal from the primary judge who refused an application by the central authority for the return of the children to Colombia. On his successful appeal, the father sought costs of the appeal. The Full Court held that s 117AA of the Act applied, which provided that in a proceeding under regulations made for the purposes of Pt XIIIAA, the Court may only make an order as to costs in favour of a party who has been substantially successful in the proceeding and against a person or body holding an office under those regulations being a party to the proceeding in that capacity (here relevantly the SCA).
However, s 117AA(2) circumscribes the Court’s entitlement to make a costs order under s 117AA(1) by stipulating that the Court may only make a costs order in respect of a part of a proceeding if, during that part of the proceeding, the party against whom the order is to be made asserted a meaning of the regulations that the Court considers is not reasonable or is not convenient for the purposes of the relevant convention.
This was a proceeding under a regulation, namely the Child Abduction Convention Regulations. Section 117AA(1) of the Act was enlivened with the consequence that a costs order could only be made, relevantly here in favour of the mother, in the circumstances set out in s 117AA(2), none of which were operative in this case. Accordingly, a costs order should not be made.
Section 117AA clearly has the aim of limiting costs against the relevant authority charged with bringing applications under the Hague Convention. The public policy behind it is obvious. The father is not a relevant authority but the father of the children. It is not obvious that the same public policy reasons extend to appellants other than such authorities and it might be appropriate for this aspect of the litigation to be looked at by the legislature.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justices Aldridge, Wilson and Campton. Associate:
Dated: 14 March 2025
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