SECRETARY, ATTORNEY-GENERAL'S DEPARTMENT & BEGA
[2017] FamCA 506
•5 July 2017
FAMILY COURT OF AUSTRALIA
| SECRETARY, ATTORNEY-GENERAL'S DEPARTMENT & BEGA | [2017] FamCA 506 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application for the return of children to the Kingdom of the Netherlands – Court finds that the retention of the children in Australia is wrongful - Order made that the children be returned to the Kingdom of the Netherlands |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| C v C (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All ER 465 Gsponer v Director-General, Department of Community Services, Vic (1989) FLC 92-001 |
| APPLICANT: | Secretary, Attorney-General's Department |
| RESPONDENT: | Ms Bega |
| FILE NUMBER: | BRC | 10973 | of | 2016 |
| DATE DELIVERED: | 5 July 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 31 May & 1 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr A. Berger |
| SOLICITOR FOR THE APPLICANT: | Australian Government Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr J. Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | DA Family Lawyers |
Order
That the children B born 7 September 2007 and C born 23 February 2011 (“the children”) be returned to the Kingdom of the Netherlands (“the Netherlands”) pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) within 28 days of the date of this Order.
Subject to paragraph 5 of this Order, the respondent mother shall:
(a) Arrange and pay for the costs of the children’s economy class airline tickets to the Netherlands departing from Brisbane International Airport and ensure that any stopover occurs at a country signatory to the Convention of the Civil Aspects of International Child Abduction 1986; and
(b) Notify the applicant of the return itinerary within 2 days of booking and no later than 72 hours prior to departure; and
(c) Provide to the applicant such proof as may be requested to confirm the details of the return itinerary; and
(d) Ensure that at the point of check in, the children are ticketed through to the Netherlands.
Subject to paragraph 5 of this Order the Department of Communities, Child Safety and Disability Services shall release the passports of the respondent mother and children into the custody of the solicitors for the respondent mother, to be released into the custody of the respondent mother 12 hours prior to departure.
In the event the steps referred to in paragraph 5 of this Order are required, Mr D (the father) shall meet the necessary costs to enable such steps to occur.
Subject to paragraph 4 of this Order, in the event that the mother is unwilling or unable to return to the Netherlands with the children, an officer or officers of the Department of Communities, Child Safety and Disability Services shall arrange the children’s economy class airline tickets to the Netherlands departing from Brisbane International Airport and ensure that any stopover occurs at a country signatory to the Convention of the Civil Aspects of International Child Abduction and shall accompany the children during their return to the Netherlands subject to appropriate notice and delegate approval.
Pending the children’s return to the Netherlands, the respondent mother is restrained and an injunction hereby issues restraining her from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia and it is requested that the Australian Federal Police continue to give effect to this Order.
Pending the children’s return to the Netherlands the respondent mother is restrained and an injunction hereby issues restraining her from changing the children’s usual day to day residence from the premises where she and the children are currently residing in the State of Queensland.
The respondent mother is restrained and an injunction hereby issues restraining her from applying for any further passports for or on behalf of the children, or applying for any travel documents for or on behalf of the children, other than travel documents necessary to give effect to this Order.
The Department of Communities, Child Safety and Disability Services is requested to forthwith notify the Jeugd Bescherming Regio Amsterdam (“the JBRA”) of this Order and the reasons for judgment of the Honourable Justice Carew and request them to consider whether any legal or other steps should be taken in the Netherlands pending return of the children.
The applicant is to forthwith serve a sealed copy of this Order on the Australian Federal Police.
Subject to paragraph 12 of this Order the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police shall retain the names of the mother Ms Bega (also known as Ms E) born … 1979 and the female child B born …2007 and male child C born … 2011 on the AFP Family Law Watch List Alerts at all international departure points in Australia.
The Australian Federal Police shall remove the names of the respondent mother, Ms Bega (a female) born … 1979 (also known as Ms E) and the children B (a female) born … 2007 and C (a male) born … 2011 from the AFP Family Law Airport Watch List Alerts upon receipt of a letter from the applicant advising of the travel arrangements made for the children to return to The Kingdom of the Netherlands from 12:00am on the date nominated for the said travel in the letter.
In the event that the mother elects to accompany the children on their return to the Netherlands, the Australian Federal Police Airport Uniform Police shall escort the children and respondent mother onto the flight departing Australia.
The Marshal of the Family Court of Australia and the Commissioner of all Federal Agents of the Australia Federal Police and Officers of the Police Forces and Services of the various States and Territories are hereby authorised to take all necessary steps to give effect to this Order.
Liberty to apply is granted to the applicant and the respondent mother to seek any further orders necessary to allow the applicant or his nominee to make such arrangements as are necessary to give effect to the return of the children in accordance with this Order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986.
Each party shall bear their own costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Attorney-General's Department & Bega has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10973 of 2016
| Secretary, Attorney-General's Department |
Applicant
And
| Ms Bega |
Respondent
REASONS FOR JUDGMENT
This is an application for a return order[1] pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Regulations provide the legislative framework pursuant to which Australia meets its obligations as a contracting party to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).[2]
[1] As defined in regulation 2 of the Family Law (Child Abduction Convention) Regulations 1986
[2] [1987] ATS 2
The Secretary of the Attorney-General’s Department (as Commonwealth Central Authority) is the applicant (“the applicant”) and entitled to bring the application on behalf of the requesting parent, Mr D (“the father”). The respondent to the application is Ms Bega (“the mother”).
The proceedings concern a female child, B, born in 2007 and a male child, C, born in 2011 (“the children”).
It is alleged by the applicant that the children were wrongfully removed from the Netherlands by the mother on 23 June 2016 and/or wrongfully retained in Australia after 29 July 2016[3] or in the alternative after 6 December 2016[4] or in the alternative after 20 December 2016[5] or in the alternative after 3 March 2017[6] and should be returned to their habitual place of residence, The Kingdom of the Netherlands.
[3] Date of order suspending the sole custody order and ordering that the father have custody and the children to be placed in the father’s care
[4] Date of order setting aside the sole custody order and deeming the joint custody of the parents never to have been terminated
[5] Date of email exhibit 6 in which it is indicated the mother was aware of orders made in the Netherlands after her departure
[6] Date on which the respondent concedes she became aware of the order made on 6 December 2016
The mother resists the making of a return order on the grounds that the father did not have rights of custody at the time of removal or retention or, alternatively, if he did have rights of custody, the children were not habitually resident in the Kingdom of the Netherlands at the time of the retention or, alternatively, the Court should exercise its discretion to refuse a return order because ‘there is a grave risk that the return of the children to The Kingdom of the Netherlands will expose them to physical or psychological harm or otherwise place them in an intolerable situation’.[7]
[7] Regulation 16(3)(b)
Hague Convention
The purpose of the Hague Convention is to ensure the prompt return of a child who has been wrongfully removed from or retained in a convention country and to enable any dispute relating to the parenting of that child to be determined by the child’s country of habitual residence prior to the wrongful removal or retention.[8]
[8] De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 at 648-649
The Regulations are intended to be construed:
(a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b)recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and
(c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.[9]
[9] Regulation 1A
The best interests of the child are not the paramount consideration as the parenting dispute is not being determined.[10]
[10] De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 at 658
This is not a hearing on the merits of the parenting case but a hearing to determine the appropriate response to Australia’s obligations under the Hague Convention.
If an application for a return order is made within one year[11] after the removal or retention of a child and the removal or retention was wrongful within the meaning of the regulations, the Court must, subject to certain exceptions, return the child.[12]
[11] If filed after one year and the child has not settled in the new environment the Hague Convention will still apply. See regulation 16(2)
[12] See regulation 16 (1)
It is not in contention that the application for a return order was made within twelve months of the removal or retention.
The facts in this case which would make the removal or retention wrongful[13] are as follows:
a)The children were under sixteen years of age; and
b)The children habitually resided in the Netherlands immediately before their removal to or retention in Australia; and
c)The father had rights of custody in relation to the children under the law of the Netherlands immediately before their removal to or retention in Australia; and
d)The children’s retention in Australia is in breach of those rights of custody; and
e)At the time of the children’s removal or retention the father was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights had the children not been removed or retained.
[13] See regulation 16(1A)
The applicant bears the onus of proving those facts.[14]
[14] See regulation 16 (1)(c)
If proven, the mother bears the onus of establishing one of the exceptions set out in regulation 16 of the Regulations.[15]
[15] Regulation 16 (3) and Gsponer v Director-General, Department of Community Services, Vic (1989) FLC 92-001; DP v Commonwealth Central Authority; JLM v Director-General Department of Community Services (2001) 206 CLR 401
background
The father and mother married in 2003 in India. They separated on 1 November 2013 and divorced in 2014. The father was born in India but has not lived there since 2001 and has not visited India since 2013. The mother was born in the Netherlands but spent five years of her early childhood living in Africa.
The mother and father are citizens of the Netherlands as are their children who were both born in the Netherlands.
The father and mother have lived all their married lives in the Netherlands. Up to 23 June 2016 the children had lived all their lives in the Netherlands.
Prior to the mother and children arriving in Australia on 25 June 2016 they had no connection to this country.
The father works in the entertainment industry in the Netherlands. He re-partnered in 2014 and lives with his fiancé, Ms F, who is born and bred in the Netherlands. Ms F is also his business partner. The father employs seven employees in his business. He owns two properties in the Netherlands.
The mother commenced a relationship with Mr G in April 2014. Mr G lived in Australia with the mother and the children from 19 July 2016 to 25 December 2016. He then returned to the Netherlands. He and the mother continue to communicate weekly however the mother is unsure whether they will continue in an intimate relationship because of the current distance between them.
Prior to her departure from the Netherlands the mother was employed as a public servant.
After separation the father and mother entered into a parenting plan that provided for the children to spend regular time with the father each week including overnights.
That arrangement ceased in December 2013 after the mother alleged that the father had attempted to abduct the children and take them to India. The father denies the allegation of attempted abduction and maintains that he had and has no intention of relocating from the Netherlands.
The last time the father spent time with the children was in June 2014 and it was under supervision. He spent fortnightly supervised time with the children from April 2014 and had not seen the children prior to that since December 2013.
On 6 August 2015 a court order was made placing the children under the care and supervision of the certified institution, JBRA.
In September 2015 the mother obtained a restraining order against the father for a period of twelve months restricting his ability to attend at the mother’s home and his ability to approach her or the children save for the purposes of spending time with the children.
On 13 January 2016 an order was made by the District Court terminating the joint custody of the parents and awarded sole custody to the mother and declared it to be provisionally enforceable (meaning as became apparent during the hearing that it was a final order, save for rights of appeal).[16]
[16] I note the evidence of the father’s lawyer in the Netherlands that this order was made in the absence of the parties. The mother’s lawyer in the Netherlands takes issue with this statement.
On or about 21 January 2016 JBRA decided not to proceed with a hearing concerning the children being placed in foster care in light of the order made on 13 January 2016.
On 26 January 2016 the mother’s appeal against the care and supervision order made on 6 August 2015 was dismissed by the City J Court of Appeal.
On 10 February 2016 the father filed an appeal to the High Court of Holland against the order for sole custody made on 13 January 2016.
Unbeknown to the father or the JBRA, on 26 February 2016 the mother made an application to the Australian Department of Immigration for herself and the children to migrate to Australia.
On 23 March 2016 the mother purchased tickets for herself and the children to fly to Australia.
On 10 April 2016 the mother gave notice to her landlord that she would be vacating her premises as of 1 July 2016.
On 25 April 2016 the mother resigned from her employment.
On 26 April 2016 the father’s application to suspend the sole custody order made on 13 January 2016 was refused. The mother attended this hearing and was legally represented. The father raised at this hearing his concern that the mother was a flight risk. The mother stated during the hearing that for the sake of the peace and quiet of the children she did not intend to move house. The decision of the City O District Court on 24 November 2016 notes that this statement by the mother (among other things) led the Court of Appeal to dismiss the application by the husband for suspension of the sole custody order.
In April 2016 JBRA indicated their intention to continue attempts to establish contact between the children and the father.
In May 2016 there was another hearing before the High Court in the Netherlands in relation to the father’s appeal and again the mother was present and legally represented. During this hearing the mother informed the court that she had an appointment on 30 June 2016 for the children to attend therapy with Child and Youth Trauma Centre as required under the arrangements made pursuant to the care and supervision order made on 6 August 2015.
On 21 June 2016, Altra (the service desk of the Youth Protection Services which is the welfare agency supervising the children’s upbringing), attended the mothers home and all seemed to be well.
On 23 June 2016 the mother contacted the children’s school and said the children were ill. On that same day the mother and children left the Netherlands and entered Australia on 25 June 2016. The mother changed her name and the children’s names in an attempt to prevent the father locating them.
On 27 June 2016 the school tried to contact the mother by telephone but her phone was turned off. They called the mother’s work and were told the mother had called in sick. Two teachers from the school went to the mother’s house on 27 June to find it had been cleaned out.
Also on 27 June 2016 a complaint was made to police by Ms H, the team manager at City J Youth Protection Services. The complaint related to an evasion of supervision by the mother contrary to the supervision order made on 6 August 2015.
The children were first reported missing by their school, Q School. A copy of the care and supervision order was provided and a statement made that “nobody was given the right or permission to commit the offence”. The offence is described as a criminal offence namely removing the children from the custody of the person or person exercising legal authority over them (Article 279 of the Dutch Penal Code).
The father also made a complaint to police on this date alleging the mother had abducted the children.
On 18 July 2016 the mother enrolled the children in school in Australia.
On 21 July 2016 the care and supervision order over the children was extended to 6 August 2017.
On 29 July 2016 an order was made by the District Court suspending the sole custody order made on 13 January 2016, and until determined otherwise, custody was granted to the father and the mother was required to surrender the children to the father.
On 3 August 2016 the father applied for sole parental custody.
On 29 August 2016 the father submitted a request to the Central Authority of the Netherlands under the Hague Convention for the return of the children.
In August 2016 the father filed a complaint with the police against the mother for allegedly violating a court order in the Netherlands.
On 2 September 2016 the Central Authority of the Netherlands decided it was unable to process the father’s application under the Hague Convention.
In September 2016, as a result of concerns raised about the children’s safety in Australia because of alleged threats by the mother to kill the children, the Department of Communities, Child Safety and Disability Services undertook a welfare assessment of the children and determined that they were not at risk of harm. The mother denies making any such threats.
On 20 October 2016 an order was made by the North Holland Law Courts requiring the mother to deliver the children to the father within one week.
On 26 October 2016 the City J Court of Appeal heard the father’s appeal against the sole custody order made on 13 January 2016. The mother was represented at this hearing by her lawyer, Ms L who made submissions on her behalf. The Court reserved its decision.
On 24 November 2016 the City O Court ordered the Central Authority to process the father’s application under the Convention. The Court held:
In view of the foregoing specific circumstances of this case, the Court is of the opinion that the wife acted in a way that was contrary to the rights of custody in the sense of the Convention, considering that her parental authority was limited by the care and supervision order and the fact that by her actual behaviour – concealing her intention to emigrate with the children to Australia – she made the powers of the certified institution in the context of the exercise of the parental responsibility illusory.
On 6 December 2016 the City J Court of Appeal set aside the sole custody order made on 13 January 2015 and stated that that the joint custody of the father is deemed never to have been terminated.
In January 2017 the mother sought to register in Australia the sole custody order made in the Netherlands on 13 January 2016.
On 23 January 2017 the children changed schools.
On 8 February 2017 the District Court of City O ordered that custody of the children be solely exercised by the father and declared this parental responsibility order to be immediately enforceable.
evidence relied on in the case
I observe that the material relied upon by the respondent was extensive and contained a good deal of evidence that was irrelevant to any question to be determined in these proceedings. That observation can likewise be made of much of the cross-examination of witnesses in the case. A report had been prepared by a psychologist (although why that was so, remains uncertain in my mind) and he was cross-examined to little effect or purpose.
I take this opportunity to remind parties to an application of this type that the evidence relied upon should have a greater focus on issues that are relevant to a determination under the Convention. It is not a hearing on the merits of a parenting application.
Was the removal to or retention in Australia wrongful within the meaning of regulation 16(1A)?
The children were under sixteen
There is no issue that the children were and still are under the age of sixteen at the time of removal to and retention in Australia.
Did the children habitually reside in the Netherlands immediately before their removal to Australia?
The fact that immediately prior to their removal to Australia the children habitually resided in the Netherlands was not put into contention by the respondent.
Did the children habitually reside in the Netherlands immediately before their retention in Australia
The mother contends that the children were habitually resident in Australia as and from their arrival in Australia on 25 June 2016 given her intention to migrate and, if not by that date, certainly by any of the other dates relied upon by the applicant.
The applicant contends that the children’s habitual residence immediately before their retention on the various dates nominated was the Netherlands.
The question of habitual residence is a question of fact to be determined by reference to all of the circumstances of the case.[17]
[17] LK v Director-General, Department of Community Services (2009) 237 CLR 582; Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701
The essential enquiry, having regard to all of the circumstances, is whether, from the children’s perspective, they were sufficiently settled in Australia on the various dates identified by the applicant to result in the conclusion that the children were not habitually resident in the Netherlands immediately before their retention.[18] “Unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.”[19] Generally speaking one parent cannot unilaterally change a child’s place of habitual residence.[20] That, of course, must be considered in the context of any existing order or agreement affording a parent the sole right to determine the place of residence of a child.
[18]Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701
[19] LK v Director-General, Department of Community Services (2009) 237 CLR 582
[20] LK v Director-General, Department of Community Services (2009) 237 CLR 582
In this case, the factors relevant to the determination of the children’s habitual residence include:
a)The historical connection of the parents and the children to the Netherlands including language, extended family, schooling, friends, culture, housing, medical and psychological professionals;
b)“Due to their sudden departure the children were unable to say goodbye to their living environment, school, family and friends in a healthy way”;
c)The finding by the City J Court of Appeal on 6 December 2016 that by suddenly removing the children from their trusted environment the mother “has not put the children’s best interests first. It would appear that she mainly acted out of self-interest”;
d)The absence of any prior connection with Australia;
e)The mother’s intentions to migrate to Australia and remain here;
f)The physical presence of the mother and children in Australia since 25 June 2016;
g)The mother’s change of name for herself and the children in an attempt to avoid detection;
h)The mother’s employment as a public servant in Australia pursuant to a Contract of Employment expiring in December 2017;
i)The presence of the mother’s partner in Australia living with her and the children and his departure on 25 December 2016;
j)The children’s attendance at school in Australia from 18 July 2016;
k)The children’s change of school in January 2017;
l)The children’s limited proficiency in English although improvement has occurred;
m)The children’s attachment to an elderly neighbour whom they commenced to call ‘opa’ (grandfather) within a couple of weeks of arriving in Australia;
n)The children’s involvement in extracurricular activities;
o)In a welfare report prepared by the Department of Communities, Child Safety and Disability Services in or about September 2016 it is noted that the children do not speak English very well and that this is a barrier for them. It is also reported that the child C was struggling in his new environment and was only attending school half days;
p)In interview with Mr M, psychologist, on 10 May 2017 the child B told him that she enjoyed her friendships in the Netherlands more than the friendships she has made in Australia;
q)The order for sole custody in the mother’s favour made 13 January 2016;
r)The mother’s knowledge that the father had appealed against the sole custody order and that proceedings were pending;
s)The mother was legally represented and participated in a number of hearings in the court in the Netherlands prior to her removal of the children on 23 June 2016;
t)The existence of a care and supervision order made in respect of the children on 6 August 2015;
u)The dismissal of the mother’s appeal against that order on 26 January 2016;
v)The extension of the care and supervision order on 21 July 2016 to August 2017;
w)On 24 November 2016 the City O District Court made an order that the Central Authority of the Netherlands process the father’s application under the Convention. In the reasons for judgment the court held:
The measure imposing a care and supervision order leads to a limitation on the parental authority of the parent charged with custody. The authority of the parent is now exercised under the supervision, and with the help and support of, of the certified institution. In order for this measure to be enforceable the parent charged with custody must consult the family supervisor about important decisions regarding the care and upbringing of minors – to the extent that aspects of the care and upbringing targeted by the care and supervision order are involved – and follow and (written) instructions from the family supervisor. This means among other things that the certified institution may give an instruction regarding the place of residence of the minors. By means of this provision regarding the power to give written instructions, the legislator has given the certified institution the authority to infringe parental custody and, if an instruction concerning the place of residence of the minors is involved, to this extent make a decision on the matter instead of the parent with custody.
In the present case there is a developmental threat to the minors consisting of an extremely tense relationship between the parents and the lack of contact between the husband and the minors. For that reason a care and supervision order was pronounced with the intention of working on the relationship between the parents and restoring the contact between the minors and the husband. The wife did not notify the family supervisor of her intention to emigrate to Australia with the children. … Since the family supervisor was not aware of the intention of the wife to move to Australia with the children there was no reason for her to give a written instruction regarding the place of residence of the minors. This does not detract from the fact that if the wife had expressed that intention, the certified institution could have exercised its authority to issue a written instruction and would have exercised that authority in practice, considering that (as the documents show) the certified institution does not approve of the removal of the children to Australia.
[emphasis added]
x)The mother made clandestine arrangements to depart the Netherlands;
y)The mother misled the court in the Netherlands denying an intention to change the children’s place of residence which led (in part) to the refusal to suspend the sole custody order prior to 29 July 2016;
z)The mother misled the court in the Netherlands by representing that she had an intention to take the children to therapy on 30 June 2016;
aa)The mother made the decision to cut herself off from communication with her lawyer in the Netherlands thereby denying to herself the capacity to be kept informed of proceedings in the Netherlands and any orders made.
29 July 2016 (the date on which the mother’s sole custody order was suspended and an order made, until decided otherwise, for the children to be placed in the custody of the father and requiring the mother to take the children to the father)
I reject the contention that the children were sufficiently settled in Australia as at this date for the following reasons:
a)They had only arrived in Australia on 25 June 2016 (not that any particular period, no matter how short, is determinative);
b)They had only commenced attending school on or about 18 July 2016;
c)They had limited capacity, if any, to speak English;
d)All of their life connections e.g. family (apart from the respondent and her partner), friends, school etc. remained in the Netherlands;
e)The mother had changed their names upon arrival in Australia;
f)The children were seeking out virtual strangers with whom to bond.
I also take into account the following circumstances in concluding that immediately before 29 July 2016 the children habitually resided in the Netherlands:
a)Despite the order for sole custody made on 13 January 2016 the mother was aware the father had appealed against that order;
b)The existence of the care and supervision order had the effect of placing a limitation on the mother’s parental authority and ability to unilaterally change the habitual residence of the children;
c)The care and supervision order had been upheld and extended after the sole custody order;
d)The mother had participated in and been legally represented in ongoing court proceedings in the Netherlands prior to her clandestine departure;
e)The mother misled the court in the Netherlands representing that she had no intention of changing the children’s residence and would be taking them to their therapy session on a date subsequent to the date she knew she would be departing;
f)The mother contrived to claim a lack of knowledge of further orders made in her absence by cutting herself off from any communication with her lawyer in the Netherlands after her departure.
6 December 2016 (the date on which the respondent’s sole custody order was set aside and the parent’s joint custody was deemed never to have been terminated)
I reject the contention that the children were sufficiently settled in Australia as at this date for the following reasons:
a)They had only been in Australia for a period of less than six months (not that any particular period, no matter how short, is determinative);
b)While attending school, the children had found their lack of proficiency in English to be a barrier and C was finding the transition difficult and was only attending half days;
c)The mother had changed their names upon arrival in Australia;
d)They retained significant connection with the Netherlands although they may not have had communication with family and friends.
I also take into account the following circumstances in concluding that immediately before 6 December 2016 the children habitually resided in the Netherlands:
a)Despite the order for sole custody made on 13 January 2016 the mother was aware the father had appealed against that order;
b)The existence of the care and supervision order had the effect of placing a limitation on the mother’s parental authority and ability to unilaterally change the habitual residence of the children;
c)The care and supervision order had been upheld and extended after the sole custody order;
d)The mother had participated in and been legally represented in ongoing court proceedings in the Netherlands prior to her clandestine departure;
e)The mother misled the court in the Netherlands representing that she had no intention of changing the children’s residence and would be taking them to their therapy session on a date subsequent to the date she knew she would be departing;
f)The mother contrived to claim a lack of knowledge of further orders made in her absence by cutting herself off from any communication with her lawyer in the Netherlands after her departure.
20 December 2016 (the date on which an email communication indicates that the mother was aware of the order made on 6 December 2016)
I do not find the state of the mother’s knowledge about the order to be a significant factor in determining habitual residence. In any event the mother contrived to remain ignorant of the ongoing proceedings in the Netherlands.
I reject the contention that the children were sufficiently settled in Australia as at this date for the following reasons:
a)They had only been in Australia for a period of less than six months (not that any particular period, no matter how short, is determinative);
b)While attending school, the children had found their lack of proficiency in English to be a barrier and C was finding the transition difficult and was only attending half days;
c)The mother had changed their names upon arrival in Australia;
d)They retained significant connection with the Netherlands although they may not have had communication with family and friends.
I also take into account the following circumstances in concluding that immediately before 20 December 2016 the children habitually resided in the Netherlands:
a)Despite the order for sole custody made on 13 January 2016 the mother was aware the father had appealed against that order;
b)The existence of the care and supervision order had the effect of placing a limitation on the mother’s parental authority and ability to unilaterally change the habitual residence of the children;
c)The care and supervision order had been upheld and extended after the sole custody order;
d)The mother had participated in and been legally represented in ongoing court proceedings in the Netherlands prior to her clandestine departure;
e)The mother misled the court in the Netherlands representing that she had no intention of changing the children’s residence and would be taking them to their therapy session on a date subsequent to the date she knew she would be departing;
f)The mother contrived to claim a lack of knowledge of further orders made in her absence by cutting herself off from any communication with her lawyer in the Netherlands after her departure.
3 March 2017 (the date on which the mother concedes she was aware of the order made on 6 December 2016)
I reject the contention that the children were sufficiently settled in Australia as at this date for the following reasons:
a)They retained significant connection with the Netherlands although they may not have had communication with family and friends.
b)The children changed school in January 2017;
c)The mother’s partner returned to the Netherlands on 25 December 2016 creating a significant change in their living circumstances;
d)While the children were participating in extracurricular activities and their command of English is stated by the mother to have improved I do not consider such matters to be of such significance to indicate on their own that the children had become sufficiently settled in Australia.
I also take into account the following circumstances in concluding that immediately before 3 March 2017 the children habitually resided in the Netherlands:
a)Despite the order for sole custody made on 13 January 2016 the mother was aware the father had appealed against that order;
b)The existence of the care and supervision order had the effect of placing a limitation on the mother’s parental authority and ability to unilaterally change the habitual residence of the children;
c)The care and supervision order had been upheld and extended after the sole custody order;
d)The mother had participated in and been legally represented in ongoing court proceedings in the Netherlands prior to her clandestine departure;
e)The mother misled the court in the Netherlands representing that she had no intention of changing the children’s residence and would be taking them to their therapy session on a date subsequent to the date she knew she would be departing;
f)The mother contrived to claim a lack of knowledge of further orders made in her absence by cutting herself off from any communication with her lawyer in the Netherlands after her departure.
Did the father have rights of custody in relation to the children under the law of the country in which the children habitually resided immediately before the children’s removal to or retention in Australia
Regulation 16(1A) makes it clear that for the removal or retention to be wrongful it is the father (in this case) who must have rights of custody. It is insufficient that JBRA or the court in the Netherlands had rights of custody.[21]
[21]MW v Director-General of the Department of Community Services (2008) 82 ALJR 629
The determination of rights of custody involves a three stage process:[22]
a)What rights, if any, did the father have under the law of the Kingdom of the Netherlands at the time of removal to or retention in Australia;
b)Do those rights amount to rights of custody within the meaning of the Regulations;
c)Was the removal or retention in breach of those rights.
Stage one: Did the father have rights of custody in relation to the children under the law of the Netherlands immediately before their removal to or retention in Australia
[22] J v Director-General, Department of Community Services (2007) FLC 93-342
Ms L, a lawyer who has previously acted for the mother in the Netherlands, opines that the father did not have rights of custody because of the order made on 13 January 2016 granting the mother sole custody. The fact that the father had lodged an appeal did not give him rights of custody nor did the care and supervision order given him rights of custody. Ms L does not address the impact of the orders made on 29 July 2016 suspending the sole custody order and granting the father custody or 6 December 2016 overturning the order made on 13 January 2016 in which the court also stated that the father’s joint custody should be deemed never to have been terminated.
Mr N, a lawyer who has previously acted for the father in the Netherlands, opines that unless ordered otherwise the parents have joint custody over their children pursuant to Article 1: 251 of the Dutch Civil Code. He states that the most important order is that made by the City J Court of Appeal on 6 December 2016. The court held that the contested order made 13 January 2016 be set aside and that the father’s joint custody “should be deemed never to have been terminated”. He states:
9. Because of this court order; the situation by Dutch law is that [Mr D], always had joint custody, ergo: the mother needed permission & validation of the father to go abroad with the children and off course also to move to Australia on June 23rd in 2016.
Mr N opines that because of this order the father’s rights of custody at the time of the children’s removal were breached.
I consider it fair to observe the applicant’s reluctance to place significant reliance on the opinion of Mr N as to the retrospective impact of the 6 December 2016 order. Rather, it is the primary position of the applicant that this case is one of wrongful retention. In view of my findings on the primary position of the applicant I find it unnecessary to determine whether the ‘deeming’ provision contained in the reasons for judgment of the City J Appeal Court had retrospective effect such as to afford to the father rights of custody as at 23 June 2016.
It is submitted by Mr Berger, for the applicant that the order made 29 July 2016 which suspended the sole custody order and ordered the father to have custody of the children until advised otherwise and requiring the children to be returned to the father’s physical care restored the father’s rights of custody under Article 1:251:a of the Dutch Civil Code giving him ‘parental authority’ over the children. Further and in the alternative, it is submitted that the effect of the 6 December 2016 order gave the father continuing rights of custody at all relevant times including the time of removal.
I accept the submission of the applicant that the order made 29 July 2016 gave the father rights of custody under the law of the Netherlands where the children habitually resided immediately before their retention in Australia after 29 July 2016. If I am incorrect in so finding I nevertheless find that the father had rights of custody under the law of the Netherlands in which the children habitually resided immediately before their retention in Australia after 6 December 2016. The order made on 6 December 2016 set aside the sole custody order thereby reinstating the parent’s joint rights of custody.
I reject the submission on behalf of the respondent that the respondent’s alleged ignorance of the orders negates the legal reality of the father’s rights of custody. I was not taken to any authority to support the submission nor is there any mention of a requirement of notice in the regulations.
Stage two: Do those rights amount to rights of custody within the meaning of the Regulations
Regulation 4 relevantly provides:
Meaning of rights of custody
(1)For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a)the child was habitually resident … in a convention country immediately before his or her removal or retention; and
(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force … in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)For the purposes of sub-regulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3)For the purposes of this regulation, rights of custody may arise:
(a)by operation of law; or
(b)by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in … a convention country.
The right to determine the child’s place of residence has been held to be a necessary pre-requisite to having rights of custody within the meaning of the Regulations.[23] A mere right to be consulted is not sufficient but a right to veto is sufficient.[24]
[23] J v Director-General, Department of Community Services (2007) FLC 93-342 at [63]
[24] C v C (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All ER 465; Resina & Resina [1991] FamCA 33; Director-General, Department of Families, Youth and Community Care v Hobbs (2000) FLC 93-007; MW v Director-General of the Department of Community Services (2008) 82 ALJR 629
As at 29 July 2016 the father had rights of custody pursuant to an order including a right in relation to the care of the children and as at 6 December 2016 (at least) the father had joint custody with the mother by operation of the law of the Netherlands. The rights of custody remained limited by the supervision order made in favour of JBRA who could issue binding instructions in relation to matters relevant to the welfare of the children. Absent a contrary binding instruction from JBRA the father had a right to veto (at least) a change in residence of the children. His right was more than a mere right to be consulted.
Having found that the children were habitually resident in the Netherlands immediately before their retention in Australia after 29 July 2016 and/or 6 December 2016 and/or 20 December and/or 3 March 2017 and that rights of custody were attributed to the father under the laws of the Netherlands immediately before the children’s retention, I find that the father had rights of custody within the meaning of the regulations.
Stage three: Was the retention in breach of those rights
I am satisfied that but for the children being retained in Australia after 29 July 2016 and/or after 6 December 2016 and/or 20 December and/or 3 March 2017 the father would have exercised his rights of custody. He has at all times demonstrated a desire to exercise rights of custody and participated in legal proceedings with that intention.
I find that the retention of the children in Australia after 29 July 2016 and/or 6 December 2016 and/or 20 December and/or 3 March 2017 was in breach of the father’s rights of custody.
is there an exception justifying a refusal to grant the return order
A return order must be made unless the mother establishes one of the exceptions to making a return order and the Court exercises its discretion to refuse to make a return order.
The mother in this case contends that pursuant to sub regulation 16(3) (b), there is 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 mother contends that she will not return with the children in the event a return order is made and she relies on this fact to support her contention that the exception applies. She states that she has no faith in the authorities to protect her from the father whom she accuses of domestic violence. The mother also contends that if she were to return to the Netherlands she is likely to be arrested and prosecuted for abduction and could face a term of imprisonment. It is submitted on behalf of the mother that if a return order is made the children will in all likelihood be returned to the father or be placed in foster care. It is also contended by the mother that if the children are placed with the father he may relocate with them to India and she will have no prospect of seeing them again.
The mother bears the burden of proof.
In DP v Commonwealth Central Authority[25] the High Court held:
[41] ..... On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which 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.
[footnotes omitted]
[25](2001) 206 CLR 401at 417-418
Whether or not there is a grave risk or intolerable situation is a question of fact to be determined on the evidence before the Court.
Domestic Violence
As properly conceded by counsel for the mother, the mere fact of their being a history of domestic violence does not equate with there being a grave risk of exposure to physical or psychological harm or an intolerable situation.
The mother relies upon the following matters in support of her contention that the exception is established:
a)She was subjected to domestic violence during the marriage in the following form:
i)The father damaged items around the home and threatened to damage their property;
ii)The father pushed her and held her tightly;
iii)The father constantly put her down and blamed her for making him angry and screamed at her daily;
iv)The father threatened to commit suicide and self-harm;
v)The father prevented the mother maintaining connections with family and friends;
vi)The father threatened that if the mother divorced him he would never see the children again.
b)She was subjected to domestic violence after separation in the following form:
i)The father refused to accept the end of the marriage and repeatedly sent her texts or called her requesting another chance;
ii)The father repeatedly attended at her home unannounced;
iii)The father on occasion called her a bitch;
iv)The father failed to adhere to times for him to spend time with the children;
v)She was told the father threatened to kill her partner, Eduard in August 2015;
vi)She suspects the father had hacked her mobile telephone and computer.
The father denies the allegations of domestic violence.
The mother applied for a protection order against the father in February 2015 but was unsuccessful. The mother was supplied with a direct contact line to police in the event she required assistance and on the occasions that she called the police attended.
In September 2015 a protection order was made because the father continued to attend at her home or the children’s school contrary to his agreement not to do so. The order expired in September 2016.
The description in the Youth Protection report dated 7 February 2017 of the domestic violence is as follows: “there was a lot of conflict, the parents disagreed and the children were witness to domestic violence. Both parents shouted, the mother felt belittled and the father sometimes threw things.” That same report also states “[C]and [B] have indicated that they want to see their father again.” It is not clear when this indication was made and to whom.
While any domestic violence is abhorrent the allegations made against the father are not at the severe end of the spectrum. The mother has been afforded protection upon her request and I am satisfied on the evidence before me that the Netherlands has a comprehensive system in place to address the mother’s concerns were she to return to the Netherlands.
The Full Court in Murray v Director, Family Services (ACT)[26] held:
It would be presumptuous and offensive in the extreme, for a Court in this country to conclude that the wife and children are not capable of being protected by the [country of return] courts or that the relevant [country of return] authorities would not enforce protection orders which are made by courts.
In our view … the circumstances in which Regulation 16(3) comes into operation should largely be confined to situations where such protections are not available. …
For us to do otherwise, would be to act on untested evidence to thwart the principle purposes of the Hague Convention, which are to discourage child abduction and, where such abduction has occurred, to return such children to their country of habitual residence so that the courts of that country can determine where and with whom their best interests lie.
[26] (1993) FLC 92-416
I am satisfied on the evidence before me that there is significant support in the Netherlands for victims of domestic violence. The history of the proceedings in the Netherlands between the father and mother persuade me that legal measures can be put in place quickly to provide protection for mother should she so require and that the police provide rapid response to complaint.
Prospect of arrest, prosecution and incarceration
In Ms L’s opinion the mother was entitled to remove the children from the Netherlands as she had a sole custody order. She opined that a prosecutor might make the decision to prosecute if the 6 December 2016 order is interpreted as having retrospective effect for the purpose of criminal proceedings. If convicted the mother could face a gaol term of at least three years. Ms L does not have any personal experience in such cases.
In my view the prospect of criminal proceedings being brought against the mother seem somewhat remote.
Impact on children if placed in the care of the father or in foster care
The mother stated at the hearing that she would not return with the children to the Netherlands.
In Mr M’s opinion it is unlikely that the mother would not return in light of her indication to him on 10 May 2017 that she would not be prepared to remain in Australia if the children were required to return to the Netherlands.
I consider the prospect of the mother not returning to be remote. Her instructions to her counsel on this issue took some time and are contrary to what she told Mr M shortly before the hearing. However, my decision is not reliant on the mother returning with the children.
If the mother does not return with the children they may be placed with the father or they may be placed in foster care.
The children have witnessed their parent’s conflict. The Youth Protection in the Netherlands provided ongoing assistance to this family dating back to 2013. The purpose of the intervention was to assist the children to develop resilience in circumstances of considerable conflict between the parents and to assist the children in developing a relationship with the father. As at February 2016 the mother reported that she was able to discuss the father with the children without this “evoking any anxiety in the children” and that C had been observed to look at photos of the father and B was happy with a gift she had been provided by the father.
A report prepared by the Queensland Department of Communities, Child Safety and Disability Services in or about September 2016 as the result of a request from their counterparts in the Netherlands concluded that the children “are at significant risk of emotional harm pursuant to section 9 of the Child Protection Act 1999 if they are forcibly removed from the care of their mother in Australia, returned to Holland and either placed in Foster care or the care of their father who they have not lived with in a significant period of time…. This process would be be very upsetting for [B] and [C] and they will not understand what is happening and they could be scared and frightened…. Child Safety is worried that if [B] and [C] are returned to the care of their father that they will be exposed to his behaviour of threatening, stalking, and talking negatively about their mother. That he will not allowed (sic) her to see her children, or that he will take them to India and their mother will not have any access to them. This will cause [B] and [C] to be sad, upset and scared.”
There are many factual assumptions contained in that report, which remain in dispute, however I accept that the children are likely to be scared, sad and upset if removed from their mother’s care.
Mr M, psychologist, prepared a welfare report in this matter which is far more balanced. Mr M did not have the opportunity to observe the children in the presence of the father. He nevertheless assessed the children to be fearful of the father particularly that he may take them to India. The mother conceded to Mr M that she had informed the children that the father attempted to take them to India in December 2013 against her wishes. She also conceded having told the children that they had moved to Australia and were hiding from the father. As earlier noted the children and the mother have not used their real names while living in Australia. Mr M’s interviews with the children reveal that the mother appears to have done little to protect the children from exposure to the continued conflict between her and the father e.g. permitting the children to become aware of allegations made by the father against the mother that she might harm the children resulting in the attendance of police at their home to undertake a welfare check.
It is clear from Mr M’s report that depriving the children from a parent (be it the mother or the father in this case) may have lifelong consequences for them.
9.35 … if [the mother] were to stay in Australia and the children were to return to the Netherlands, they would in all likelihood suffer enormous grief at not being able to live with their mother, who has been their primary care provider now since December 2013. There is the very real likelihood that they would blame their mother for not coming with them and feel that their mother has abandoned them. This would prove a debilitating disrupting to their attachment schema and possibly result in short and long-term emotional harm. Children who suffer severe disruption to or severing of their attachment to a primary care provider may go on to develop behavioural and emotional adjustment difficulties throughout childhood, adolescence, and their adult lives. This can affect their adjustment to home, school, and management of various developmental tasks throughout their childhood, adolescence, and adult lives.
…
9.53 If it were determined that the mother’s portrayal of the father has been deliberately contrived and shared with the children, for the purpose of eliminating him from the children’s lives, it would point to deliberate parental alienation on her part. Complete removal of a child from a parent when not justified is the most extreme manifestation of parental alienation and it can ultimately result in a range of lifelong emotional and psychological problems for the subject child. If the mother’s claims about the father were found to be exaggerated but were found to be due to a genuine belief that the father poses a risk to the children, it would point to the mother holding unjustified and excessive anxiety about the father to the point that it has become harmful through an attempt to eliminate a loving parent from the children’s lives. In circumstances where children learn at some stage in the future that the “left parent’ never posed a risk or that any risk was markedly exaggerated, and that as a result they have been denied a relationship with the parent, the consequences can be devastating psychologically.
There is every prospect that if the children were placed into the immediate care of the father it would be upsetting and traumatic for them. They have not spent any time with him since 2014 and have recently expressed fear of him, in particular, that he will take them to India. They have been told by their mother that they are in hiding from the father. Notwithstanding these matters I consider that the court and authorities in the Netherlands have the capacity and willingness (given their past involvement) to make appropriate arrangements relating to the children’s placement. The JBRA retain supervision of the children pursuant to an order of the court in the Netherlands. I propose to include in my order that the JBRA are informed of the order and my reasons for judgment.
Ms L, the mother’s lawyer in the Netherlands, states that only a court can make a decision about placing the children in foster care and that certain criteria have to be satisfied which she identifies as:
a)Whether it is necessary for the care of the minor;
b)The parent that has custody is not capable (enough) to have the daily care; and/or
c)It is necessary that there is research into the behaviour of the minor which cannot take place in the home of the parents.
Ms L also deposed that if the development of the child is in danger and this danger cannot be resolved within the home of the child, an application can be made by JBRA to authorise it to place the child in foster care. This can be done within a couple of hours of request.
Ms L considers it unlikely that the children would be placed into foster care if they were returned to the Netherlands because the father now has an order granting him sole custody. He would, she says, be able to determine how often the children see the mother. What Ms L seems to overlook is the continuing existence of the care and supervision order in favour of JBRA. That authority has consistently indicated an intention to promote the children’s relationship with both parents and have the power to make binding directions.
While the children would be likely to experience significant adjustment difficulties if placed in foster care, Mr M considers that the children would manage this transition so long as it were only for a short period and they were able to re-establish meaningful contact with a caring parent. The father has indicated a willingness to work with the JBRA upon the children’s return to the Netherlands and has secured the agreement of their school for them to return. He also indicated a willingness to commence the children’s therapy which was to occur prior to their removal from the Netherlands.
In the event the mother does elect to return with the children, Mr N, stated that the mother could file a further application with the court in the Netherlands seeking to retain the children in her care.
Although accepting that removal of the children from the mother and placement with the father or in foster care would be traumatic for the children I reject the submission that the trauma would be of such gravity to amount to a grave risk of exposure to physical or psychological harm or otherwise place the children in an intolerable situation.
It must be observed that the respondent mother has an interest in avoiding return and circumstances other than those created by her own actions will normally be required to establish an exception.[27]
[27] Per Butler-Sloss LJ in C v C (Minor: Abduction: Rights of Custody) [1989] 2 All ER 465 at 471
Risk of father relocating to India with the children
The circumstances of the December 2013 alleged attempt to remove the children to India remain in dispute. I am not satisfied on the evidence before me that the father intended to abscond with the children at that time.
The father has not lived in India for sixteen years. He has an established business and life in the Netherlands. His fiancé is Dutch and they are together involved in the entertainment industry in the Netherlands. The business employs seven people. The father owns two properties in the Netherlands. In short, he has significant connections to the Netherlands and only historical connections to India. I am not satisfied that the father is a flight risk.
Conclusion as to grave risk or intolerable situation
In order to satisfy the burden of proof the mother needs to establish by clear and compelling evidence[28] 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’. I am not so satisfied.
[28] DP v Commonwealth Central Authority; JLM v Director-General Department of Community Services (2001) 206 CLR 401
residual discretion
In the event that I am wrong in my assessment of the ‘grave risk and intolerable situation’ question I would nevertheless decline to exercise my discretion in refusing a return order.
The observations of Baroness Hale of Richmond in In re M and another (Children)(Abduction: Rights of Custody)[29] are apposite:
In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the Contracting States and respect for one another’s judicial processes. Furthermore, the Convention is there not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the Contracting States.
[29] [2008] AC 1288; [2007] UKHL 55 at [42]
The mother’s actions in thwarting the father’s rights of custody are compounded by her deception involving her failure to inform the JBRA of her intentions and her misleading statements to the court in the Netherlands.
Summary
I am satisfied that an application for a return order was made and an application filed within one year of the children’s removal or retention and that the applicant has satisfied the Court that the children’s removal or retention was wrongful under sub regulation 16 (1A). The mother has failed to establish that there is a grave risk that the return of the children to the Netherlands would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation.
I propose to make the return order and consequential orders sought by the applicant. I have considered the submissions made on behalf of the mother in opposition to certain paragraphs of the proposed order but I consider the inclusion of those provisions to be prudent so as to enable the applicant to bring this order to the attention of the authorities in the Netherlands.
I certify that the preceding one hundred and thirty three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 5 July 2017.
Associate:
Date: 5 July 2017
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