Secretary, Department of Communities and Justice & Darvall
[2023] FedCFamC1F 747
•31 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Communities and Justice & Darvall [2023] FedCFamC1F 747
File number(s): SYC 915 of 2022 Judgment of: WILLIAMS J Date of judgment: 31 August 2023 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Return application to Mexico – Where there is an allegation of wrongful removal – Where the jurisdictional facts are conceded – Regulatory exceptions to return raised by the mother – Where the mother asserted there is a grave risk that the return of the child would expose the child to physical and psychological harm because she alleged the father used drugs, is violent and is a member of a Mexican organised crime group – Where the mother is subject to an outstanding Mexican arrest warrant for the abduction, retention and concealment of a minor – Intolerable situation demonstrated – Discretion to return – Application dismissed Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15, 16
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: De L v Director General, NSW Department of Community Services (1996) 187 CLR 640
DP v Commonwealth Central Authority; JLM v Director – General New South Wales Department of Community Services (2001) 206 CLR 401
Gsponer v Director Gen, Department of Community Service (Victoria) [1989] 94 FLR 164
HZ & State Central Authority [2006] FamCA 466
Re C (A Minor) (Child Abduction) (1999) 2 FLR 478.
Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145
Secretary, Department of Communities and Justice & Caladine (No 2) [2022] FedCFamC1F 51
State Central Authority & Sigouris [2007] FamCA 250
StateCentral Authority v Papastavrou [2008] FamCA 1120
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Division: Division 1 First Instance Number of paragraphs: 107 Date of hearing: 3 August 2023 Place: Sydney, delivered in Melbourne Counsel for the Applicant: Mr Harris Solicitor for the Applicant: Legal Services Unit, Department of Family and Community Services Counsel for the Respondent: Mr Cook Solicitor for the Respondent: Adam Jones Solicitor ORDERS
SYC 915 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND: MS DARVALL
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
31 AUGUST 2023
THE COURT ORDERS THAT:
1.The Form 2 Application filed by the State Central Authority on 16 February 2022 is dismissed.
2.All previous orders are discharged.
THE COURT REQUESTS THAT:
3.The Australian Federal Police remove the names of the respondent mother, Ms Darvall born 1985 and the child, X born 2019 from the Watch List at all points of international arrivals and departures in Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION
This is an application by the Secretary, Department of Communities and Justice (the State Central Authority) filed on 16 February 2022 seeking the return to Mexico of the child, X, born 2019 pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent is the mother of the child. The requesting parent who lives in Mexico is the child’s father.
The relevant regulations are made pursuant to s 111B of the Family Law Act 1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Hague Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention (“the Convention”).
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal/retention of a child from his/her country of habitual residence. Both Australia and Mexico are signatories to the Convention.
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return a child to his/her country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
The Regulations require that applications for the return of children, when it is alleged that they have been wrongfully removed/retained from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
Although the State Central Authority filed a Form 2 Application on 16 February 2022, the application was not listed for trial until June 2023, because the applicant was unable to serve the mother with a copy of the Form 2 Application until 23 February 2023. When the matter was eventually listed for trial on 5 June 2023, counsel for the mother sought an adjournment to enable a subpoena addressed to the Department of Foreign Affairs and Trade (DFAT) to be issued. The trial was subsequently adjourned to 3 August 2023.
In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, counsel for the State Central Authority cross-examined the mother and counsel for the mother cross-examined the requesting father.
The State Central Authority asserts that the child has been wrongfully removed from Mexico, in accordance with regs 16(1) and (1A), on the following basis:
(a)the application was made within one year of the child’s removal from Mexico;
(b)the child is under the age of 16;
(c)the child was habitually resident in Mexico as at the date of removal in mid‑2021;
(d)the requesting parent, the father, has rights of custody in relation to the child which he was exercising immediately prior to the child’s removal; and
(e)the removal of the child was in breach of the father’s rights of custody.
The mother conceded the jurisdictional facts, but opposed the application for return. She relied on reg 16(3)(b) to assert there is a grave risk as the return of the child to Mexico would expose him to physical or psychological harm or otherwise place him in an intolerable situation.
Onus of proof
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
The State Central Authority bears the onus of proving the jurisdictional facts which establish the removal/retention was wrongful: DP v Commonwealth Central Authority; JLM v Director‑General, NSW Department of Community Services (2001) 206 CLR 401.
The mother bears the onus of proof to establish the regulatory exception to return.
Preliminary matters
The hearing was conducted in Sydney with both counsel present in court. The father attended electronically from Mexico and the mother also attended electronically due to safety concerns.
Evidence and documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)Form 2 Application together with Annexures, filed 16 February 2022;
(b)Affidavit of Tara Shenoy filed 1 June 2023;
(c)Outline of Case document filed 2 June 2023;
(d)Documents tendered by counsel.
The respondent relied upon the following documents:
(a)Form 2A Answer filed 26 May 2023;
(b)Affidavit of the mother sworn 26 May 2023;
(c)Outline of Case document filed 5 June 2023;
(d)Documents tendered by counsel.
Credit of witnesses
The father was cross-examined by counsel for the mother and was a responsive and direct witness. Most of the questions asked required a yes or no answer, which he provided without any attempt to embellish his case. I accept him generally as a witness of truth.
The mother’s evidence was problematic. Rather than attending court in person, she requested to give evidence electronically due to safety concerns, despite the requesting parent being situated in another country. She was not responsive to questions asked, and at every possible opportunity sought to emphasise the father’s alleged criminal activities and fears for her safety. Her oral evidence frequently differed from her affidavit. I do not consider her a particularly credible witness.
In his final submissions, counsel for the State Central Authority referred to three examples of inconsistency in the mothers evidence. The first was her account of the father’s alleged drug use. In her affidavit she deposed to the father using an illicit drug in a hotel room while she was nursing the child, but resiled from that position in her oral evidence and alleged the father had used the illicit drug on multiple occasions whilst in Australia following the birth of their child. She claimed such activity took place in the hotel room whilst she was not present, in a public toilet where the father’s “street dealer” had been living, in a park and in their hire car. Secondly, she did not accept the documentary evidence of her visit to a psychiatric hospital, which dated her admission to the facility as late 2019. Her evidence was that her admission occurred in late 2020. Thirdly, her evidence about the photograph of the weapon (Annexure MD5 to her affidavit of 26 May 2023) was inconsistent and hard to follow. In her oral evidence she initially said she took the photo of the weapon, however, later resiled from that position and said the image was possibly from the father’s computer which she emailed to herself and her solicitor. Further, in her affidavit of 26 May 2023, she referred to one weapon however in her oral evidence she referred to two unregistered weapons.
Background
The father was born in Mexico and is aged 58 years. He is a dual citizen of Mexico and Australia, having obtained Australian citizenship in 2011. The mother was born in Australia and is aged 37 years. She is an Australian citizen and previously held a Mexican tourist visa. There is one child of the relationship, X, aged four years who holds dual Australian and Mexican citizenship and is the subject of this proceeding.
The parents met in 2018 in City C, Region D, Mexico, although they disagree about the circumstances. The requesting father contends they met at a business in 2018 where the mother was working as a receptionist and the mother contents they met at a lunch organised by American expatriate women. Nevertheless, it is agreed they started dating in 2018 and commenced cohabitation the same month.
The mother asserts she fell pregnant some six months into their relationship. The father disputes that timeline because of the child’s birthdate. Upon advising the father of her pregnancy, the mother claims the father said he was too old to have a child and that his family, as traditional Catholics, would never accept a child born out of wedlock and suggested an abortion. The father denies he asked the mother to terminate the pregnancy, which he says is contrary to Catholic doctrine. The father also disputes the mother’s claim he disappeared for about twelve hours subsequent to that conversation, and returned twelve hours later inebriated. The father asserts he has abstained from drinking alcohol for the past 20 years and that was desirable, from the mother’s perspective.
The mother contends that in 2018 the parents agreed to raise their child in Australia because both parents held Australian citizenship and the mother had no right to stay in Mexico due to her lapsed tourist visa. The father disputes there was any shared intention to raise the child in Australia.
The mother and father married in Region E in 2018. During this trip to Region E, the mother became suspicious about the fathers drug use. She deposes in her affidavit of 26 May 2023 that on the return flight to Mexico, via the United States of America, the father required a wheelchair because of the large quantity of substances consumed by him and the father’s uncooperative behaviour caused a two hour delay at a Mexican airport. The father denies these allegations.
In 2019 the parents travelled from Mexico to Western Australia for the child’s birth. X was born in 2019. During the time in Australia, the mother alleges she observed the father using drugs, including the consumption of multiple tablets on a daily basis. She further asserts that after Australian doctors would no longer supply the father with his drugs of choice, the father purchased an illicit drug from a street dealer in Suburb F and used it in their hotel room while the mother was nursing their child. The father denies these allegations, but concedes to having used medication when prescribed by a doctor in 2013/2014 following an operation.
The family returned to Mexico shortly after in 2019. Upon their return, it was the mother’s belief this would be a temporary stay and they would return to live in Australia “within a couple of years”. This belief was not shared by the father.
The mother deposes that the father confided in her in late 2019 that he purchased several thousand dollars’ worth of illicit drug crops and that their gardener was an associate of an organised crime group. At this time, she also suspected the father was a member of the organised crime group. The father denies these allegations.
The father asserts that during this month in late 2019 the mother overdosed on medication and alcohol and assaulted him. Police were called as a result of this incident and the mother was admitted to a local hospital prior to being transferred to a psychiatric hospital in City G. Whilst in hospital, the mother made a complaint to the police that the father had hit her and the child, which she subsequently withdrew.
The mother’s evidence is the events referred to in the preceding paragraph occurred around late 2020, subsequent to her making a report to local Mexican police about the father’s alleged drug use and involvement in drug cultivation. According to the mother, after the father became aware of the police report, he was overwhelmed by rage, forced her into a car and drove her to a psychiatric facility where she remained for three days. The mother asserts when she arrived home from the psychiatric facility, the father showed her a firearm and said words to the effect of “if you go to the police again, I will shoot you and [X] in the head”. The father denied the allegation.
The father alleges that in 2021 the mother became violent and verbally abusive towards him and told him she wanted to end the relationship and return to Australia. The father deposed that because of the “volatile mental state” of the mother, he investigated the possibility of selling his home and immigrating to Australia, however, realised it was prohibitively expensive and no agreement was reached to relocate to Australia.
In mid-2021, the father left the home he shared with the mother and child to attend an appointment. Upon his return, the electricity breakers and security cameras were switched off and the mother and child were missing. The father also asserted money, valuables and documents were missing. The missing documents included the mother and child’s passports, the deed to the house and their marriage certificate. The father contacted the police who issued an amber alert for the child.
The following day, the mother and child flew to the United States of America, without the consent or knowledge of the father. Thereafter, the mother received consular assistance from Mexican, American and Australian consular staff. The mother and child travelled onwards to Australia about two weeks later where they have since remained.
On 30 September 2021, the father made an application under the Convention to the Mexican Central Authority and on 16 February 2022, the applicant commenced proceedings in this Court for the return of the child.
Because the mother was “trying to live off the grid with [X]” in Australia due to her belief the father posed a risk to the safety of herself and the child, the application was not served on the mother until 23 February 2023.
The mother remains the subject of an arrest warrant in Mexico for abduction, retention and concealment of a minor.
REGULATORY EXCEPTIONS TO RETURN
Grave risk of physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b))
The mother relies on the regulatory exception in reg 16(3)(b) and asserts there is a grave risk the return of the child will expose him to physical or psychological harm or otherwise place him in an intolerable situation.
Relevant legal principles
The leading authority in Australia pertaining to this regulatory exception is DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401 (“DP”) Gaudron, Gummow and Hayne JJ stated [39]:
39.… Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry…
…
41.… On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.”
42.Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43.Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44.These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
45.That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
In DP at paragraph [130], his Honour Justice Kirby, in a dissenting judgment stated:
… Inevitably…the application of the exception provided for in reg 16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law…It should not therefore be surprising that they (the exceptions) have only been invoked successfully in comparatively rare instances.
Further at paragraph [132], his Honour Justice Kirby considered the language used in reg 16(3)(b) and said:
The adoption of the word “grave” to qualify “risk” plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not “grave”) risk of the kinds of harm contemplated. Similarly, the use of the word “otherwise” in reg 16(3)(b) indicates that the types of “physical or psychological harm” referred to must also be such as to place the child concerned in an “intolerable situation”. Therefore, the language in question, as well as its appearance in a provision enumerating limited exceptions to the general rule, make it clear beyond argument that orders of return will be made to uphold the principal object of the law in circumstances where, were the matter simply a custody dispute (however described), in all likelihood, on the evidence provided, the child's current arrangements would not be altered. Only a circumstance where the party resisting the order can establish, in the context presented by the ordinary rule of return, that that result would expose the child to a grave risk that was “intolerable … extreme and compelling”, will invite the application of the exception.
(Citations omitted).
Ryan and Aldridge JJ in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [58] referred to comments of Gaudron, Gummow and Hayne JJ, at paragraph [40] of DP:
So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 at 1154, the Court of Appeal stated that:
…There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which may be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence”.
In State Central Authority & Sigouris [2007] FamCA 250, Bennett J said at [79]:
In order for the respondent mother to make out the exception under Regulation 16(3)(b) of the regulations (Article 13(b) of the Convention), it is necessary to establish at the risk of exposure to physical or psychological harm or the children being placed in an intolerable situation in the event of their return to Greece forthwith is not only very real but “grave”.
In Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65, Watts J at [90] made it clear that the regulations are to be interpreted according to Australian legal standards and the fact that in DP the High Court did not give a restrictive meaning to the defence of grave risk made clear the words of reg 16(3)(b) are to be given their natural meaning and not a narrow construction.
In this case the mother relies upon three issues which she submits pose a grave risk of harm to the child. These are the father’s drug and alcohol use, physical violence inflicted on the mother and the father’s involvement in a Mexican organised crime group. I will address each of the allegations.
Drug and alcohol use
In her affidavit of 26 May 2023, the mother referred to multiple occasions during the relationship when she considered the father was drug affected and involved in illegal drugs. These were as follows:
(1)in 2019 when the parents were returning from their honeymoon in Region E, the mother observed the father struggled on the flight back to Mexico via the USA and required wheelchair access because of the amount of substances consumed by him;
(2)in 2019 when they were having dinner at a restaurant the father fell asleep at the table and when awoken was confused, agitated and could barely walk;
(3)in 2019 when they arrived in Australia for X’s birth, the mother recalled the father consuming multiple tablets on a daily basis from medications he had brought in his luggage from Mexico and the father explained that he was concerned as he did not want to be seen as seeking to many prescription narcotics;
(4)in 2019, subsequent to the child’s birth, the mother asserts the father used an illicit drug in the presence of the child in their hotel room in Perth;
(5)in 2019, whilst staying in a hotel in Perth, the father consumed the mother’s medication and was in an inebriated state while caring for the child;
(6)flight home from Australia to Mexico, following X’s birth the father was either alcohol or substance affected to the extent that he had to be checked by paramedics prior to being permitted to board the flight;
(7)in late 2019 or early 2020 upon return to Mexico, the mother observed the father no longer taking steps to hide his drug use and saw empty boxes of tablets around the home;
(8)in 2020 during the Covid-19 pandemic the mother “stood passively by” while the father used narcotics on a daily basis;
(9)the father purchased several thousands of dollars’ worth of illicit drug crops.
The father denied the mother’s allegation he is addicted to drugs. He conceded from time to time in 2013/2014 he had used prescription medication on occasions such as after surgery, for injuries resulting from accident or sport and to treat the lingering symptoms of a medical condition. His use of medication was at all times prescribed by his treating doctor or specialist. The mother’s asserted proof of the father’s drug addiction, Annexure MD2 to her affidavit, is a letter dated 2013 from H Medical Centre. According to the father, the letter was obtained by him to enable him to travel overseas with his prescribed medication and does not support the mother’s contention of recent drug addiction.
As to the mother’s allegation of the father yelling at airport staff and being uncooperative causing flight delays, the fathers’ evidence was that if this had been the case he would likely have been arrested and taken into custody, which did not occur. Similarly, he denied the mothers allegations about being checked by paramedics and they did not miss any return flights to Mexico. Rather, the airline lost one of their suitcases which contained a variety of items, for which they later received compensation.
The father denies prescription medications have rendered him unconscious on occasions and says he would not have been able to attain operation roles and executive positions if that had been the case. He would not have been able to work if he had been under the influence of prescription medications, because drug testing occurs regularly in that environment.
He also denies the mother’s allegations of falling asleep at a restaurant table, being dishevelled, delirious, stumbling into furniture to the point the mother felt unsafe and attempting to get prescriptions for various medications.
The mother’s allegations about the father’s alleged use of an illicit drug in Perth are also denied by the father. He denies ever having tried the illicit drug and according to him, does not even know what the drug looks like.
Similarly, the father denies that Annexure MD3 to the mother’s affidavit demonstrates photographs of medication packets strewn throughout the house. The photograph is of a box of medical tape, a box of powders to make a saline solution for sinus rinsing, a ceramic container to hold the saline solution and mouthpieces used to prevent snoring.
Lastly the father denies that he has ever spent any money purchasing drug crops and was never involved in the primary manufacturing of an illicit drug.
Physical violence
The mother relies on the following incidents of physical violence:
(1)in 2019 during the mother’s pregnancy, after she told the father she was pregnant, the father yelled at her and slammed items on the kitchen bench prior to leaving the house for approximately twelve hours;
(2)at the end of 2022, subsequent to the mother making a police report about the father’s activities he flew into a rage, pushed her, struck her across the face and locked her in a room. X was present in the house whilst this occurred. On the same day, the father forcibly took the mother to a psychiatric facility where she was detained against her will for three days and medicated;
(3)when the mother arrived back at the family home after her time in the psychiatric facility, the father showed her a firearm and threatened to shoot the mother and X in the head.
The father denied all of the mother’s allegations of family violence. The father’s evidence about the circumstances of her admission to a psychiatric hospital is referred to earlier in these reasons and he contends the mother’s hospitalisation was caused by her attacking the father after consuming a large amount alcohol and medication. According to the hospital admission records produced by the father, which the mother alleged were forgeries, the incident occurred in late 2019 and not late 2020, as recalled by the mother.
Membership in an organised crime group
The mother alleges the father is a member of a Mexican organised crime group and that his employment, housing and medical care are all provided by the group. She further asserts that the organised crime group regularly uses murder, abduction and torture as a means to control outsiders. She deposes if orders are made for the child to return to Mexico, she will not be able to have any relationship with her son because she will be murdered by the organised crime group upon return to Mexico.
The father denies the allegation. He deposes to having worked for M University for two years, N Company for over 15 years, P Company for three years, Q Company for one year, R Company for one year and as an international consultant for several years in between his various jobs. He also established his own consultancy firm which operated as a “private Australian registered company”. His salary and medical care has been provided by the companies who have employed him and not by an organised crime group. His roles in the companies have been diverse.
The father acknowledged (in his affidavit of 31 May 2023, Annexure L to the affidavit of Tara Shenoy filed 1 June 2023) that organised crime for the supply and distribution of drugs exists in Mexico, however, he considers the mother is attempting to use that information to her own benefit and is trying to justify her abduction of X to Australia as she offers no proof as to her claim.
The father’s evidence is that none of his family has ever been convicted of a crime in Mexico or elsewhere. Further, he has lived in Mexico, the USA, Country J and Australia and has never been convicted of a crime in any of those countries and has been a productive member of society.
The mother was also cross-examined about her allegations against the father. Her evidence during cross-examination was problematic, at times contradictory to her sworn evidence and frequently embellished and elaborated the allegations in her affidavit.
The mother was comprehensively cross-examined about her allegations against the father.
In relation to the father’s alleged drug use, the mother’s oral evidence was as follows:
(1)she could not produce any evidence of the father’s need for a wheelchair on the flight home from Region E because her funding did not enable her to obtain such information from the members lounge at the City K airport;
(2)she was sure the father had taken a prescription medication and multiple tablets in Perth, in 2019 and that the video surveillance records of the L Hospital and their hotel would show the father leaving and driving back in the middle of the night after he had obtained drugs;
(3)she had observed the father talking to, and exchanging numbers with, a dishevelled man in the street outside a pharmacy in Perth, Western Australia whom she described as a “street dealer”. Her evidence was that if she could obtain video surveillance footage it would establish the father exchanged phone numbers with the man, however, her funding did not enable her to obtain such footage;
(4)she resiled from her position that she and the child were present when the father was using an illicit drug in the hotel room and instead said she returned to the hotel room where it was obvious the father had been using an illicit drug;
(5)rather than alleging the father used the illicit drug on one occasion, the mother referred to the father doing so on multiple occasions - in the hotel room, in a nearby park toilet and in their rental car;
(6)when it was put to her that her additional oral was evidence was inconsistent with her prior affidavit, she said she had seen the illicit drug and she knew her evidence to be true because she had lived through it;
(7)she agreed the evidence of the father’s prescription medication, Annexure MD2 to the mother affidavit of 26 May 2023, was a letter from a doctor dated 2013 and was consistent with the father’s evidence that he had not used the medication since 2013/2014 following an operation;
(8)she said the document she produced relating to the medication, referred to above, was obtained by her because the father left documents around the house when he was substance affected, and she wanted to obtain evidence which would assist the potential rehabilitation of the father in the future;
(9)she agreed that none of the matters referred to in the preceding paragraphs had been included in her affidavit.
As to the allegations of the father’s involvement in an organised crime group, she repeatedly said it was safer for her and X if she did not comment on the group. When directed by me to answer questions about what she had deposed to her affidavit, she answered such questions.
The mother was unable to explain the inconsistency in the dates of the alleged report to the police which resulted in her incarceration in a psychiatric hospital. In her affidavit of 26 May 2023 she deposed to first becoming aware of the father’s involvement in the organised crime group in 2019 and 2020 when the family returned to Mexico from Australia, although she did not decide to go to the police until the end of 2020.
When questioned why she delayed in reporting the father’s activities to the police, her evidence was that she tried to report it and police cars would drive around the house to check what was going on. When that happened, the gardener held her down so the police could do not do anything. She also agreed none of that was in her affidavit.
As to her allegation that following her report to the police the father had drugged her and engineered her detention in a psychiatric hospital, she stated that had occurred on one occasion and it was in 2020. She did not accept the veracity of the hospital documents annexed to the father’s affidavit that the events occurred in late 2019 and claimed the documents were not a correct record of the hospitalisation. She explained her difficulties with obtaining police documents from Mexico to verify the date she alleged she had reported the father to the police, which included her inability to speak Spanish properly.
Her evidence about the circumstances of her obtaining the photograph of the father’s alleged weapon was confusing and contradictory. In oral evidence she initially said the father had left the photograph of the weapon displayed on his computer screen as an intimidation tactic to keep her silent. She then contradicted this by saying she had taken a photograph of the weapon and emailed that image to her solicitor. She was subsequently not sure how she had obtained the image and thought maybe she did not take a photo of the weapon. Despite deposing in her affidavit of 25 May 2023 the photograph was “found on [Mr B’s] phone”, there was no mention of this being a possible explanation as to how the photo came to be. She also referred to multiple weapons, whereas in her affidavit she referred to a single weapon.
Counsel for the applicant cross-examined the mother about the records regarding the mother’s involvement with the Australian Consulate in Mexico, which were produced to the court in response to a subpoena issued by the mother’s lawyers.
The records of the embassy demonstrate the mother first contacted the Australian Consulate from Mexico by telephone in mid-2021 about her options to return to Australia, when she knew the father did not agree. The diary note of the consular official records the mother said she felt “she was held against [her] will”, wanted to leave “quietly and delicately”, and the father had two unregistered weapons. During the first contact with the embassy the mother did not mention the father was a member of an organised crime group, although she agreed it would have been a very significant issue for her.
During a second telephone conversation on the following day, the mother told Consular staff the father had bought two unregistered weapons. She agreed this was inconsistent with evidence in her affidavit. During this conversation, the only reference to the father’s involvement in the organised crime group was that the father “had spoken to a low-level [group] member”. She agreed this account was incongruent with her allegation the father was a member of an organised crime group which provided his housing and income. She repeatedly said she may have mentioned in another conversation that the father was involved in an organised crime group, but she was unable to recall and her main priority was to get out of Mexico alive. When it was suggested to her that had she told the embassy of the father’s involvement in the criminal group, it was likely the embassy would have prioritised assisting her, she initially did not answer responsively, but then agreed with the proposition.
When confronted with the diary note which said she wanted to take 30 pets to Australia, she said it was a typo, although elaborated she was very concerned about the treatment of her animals if she left. She did not agree the discussion about protecting animals was more consistent with somebody trying to quietly leave the country, as opposed to a person facing a threat from an organised crime group.
She also agreed she had asked the Australian Embassy to provide a letter advising Australians in Mexico to leave, however, all that she was able to obtain was a generic letter drawing on information from the Smart Traveller website. She also agreed she had asked the Consulate to speak to the father to explain the merits of a return to Australia. It was put to her by counsel for the State Central Authority that this request was wholly inconsistent with the father finding out about her plans. Her evidence was that she was exploring different ways to return to Australia and thought that was one possible option.
She denied constructing an extravagant lie to exaggerate the father’s involvement with an organised crime group.
Conclusion
The mother’s presentation during cross-examination was unusual, heightened, and she frequently repeated a mantra justifying her actions for the safety of herself and the child.
There seemed to be some element of fantasy in the elaboration of the mother’s oral evidence as opposed to her affidavit evidence, including her evidence about the father’s substance abuse during travel, alleged illicit drug use in Perth and the father’s alleged membership of an organised crime group. Her oral evidence during cross-examination was florid, exaggerated and frequently conflicted with contemporaneous documents from the DFAT file, which she had subpoenaed.
I agree with counsel for the applicant that it is highly unlikely the mother would fail to tell a Consulate staff member of her concerns about the father’s involvement with an organised crime group, if she was seeking to quietly and clandestinely leave Mexico. Also inconsistent with the mother’s assertions is her request to the Consulate for a letter recommending Australians leave Mexico because of Covid-19 implications and that the Consul speak directly with the father.
The mother is asking the court to believe she was in fear of her life and had no other option other than to leave Mexico without the father’s knowledge or consent, whilst she was at the same time inviting the Consul to speak to the father directly about the prospect of returning to Australia. The two propositions are inherently contradictory.
As mentioned during the trial, it is extremely difficult for the mother to prove the father is a member of an organised crime group, absent a criminal record or any information from the Mexican police, just as it is almost impossible for father to prove he is not a member of the criminal group. There is really no way to prove a negative, other than provide evidence, as the father has done of his lack of criminal proceedings and his history of respectable international employment and unremarkable residence in a number of countries.
In the circumstances of this case I consider the mother’s evidence to not be particularly reliable or persuasive, mainly because of the significant inconsistencies and omissions of relevant evidence, in both her affidavit and inconsistencies between her oral evidence during cross‑examination and contemporaneous documents. I cannot be entirely satisfied to the requisite standard of the mother’s allegations levelled against the father about drug use, physical violence and being a member of a Mexican organised crime group. I am unable to reach a conclusion that the mother’s allegations in this regard are sufficiently reliable to persuade me, either individually or collectively, that there is a grave risk of harm to the child upon return to Mexico.
Intolerable situation
The remaining issue is whether the return of X to Mexico will place him in an intolerable situation.
There is a presumption in convention matters that a co-signatory has the capacity to adequately protect the child upon their return unless shown otherwise, as explained in Gsponer v Director Gen, Department of Community Service (Victoria) [1989] 94 FLR 164 at [178].
Notwithstanding this presumption, the court must nonetheless undertake an assessment of the grounds asserted to give rise to a defence of grave risk or intolerable situation. The High Court said in DP v Commonwealth Central Authority; JLM v Director – General New South Wales Department of Community Services (2001) 206 CLR 401 at [41]:
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 enquiry and prediction that will inevitably involve some consideration of the interests of the child.
Apart from the matters raised by the mother in the context of grave risk exception, the mother also raises that she is a subject of an arrest warrant in Mexico for abduction, retention and concealment of a minor. According to the father, the mother may be “pardoned” at his instigation. There was no independent expert evidence about this legal issue.
The father refers to obtaining an arrest warrant in Mexico against the mother. At page 14 of the affidavit of Tara Shenoy filed on 1 June 2023, he states:
There is now an Arrest Warrant in Mexico against [Ms Darvall]
(Please treat this is confidential)
In the original documents filed with my application, I informed that a law suit and a police investigation were started the day that [Ms Darvall] illegally removed our son from our home ([mid-2021]). I stated that investigation number… had been opened and that an Amber Alert for the abduction of baby [X] was issued with number…
The Police investigation has now resulted in an Arrest Warrant just issued against [Ms Darvall]. The District Attorney has informed us that this warrant has to be kept strictly confidential, specifically from [Ms Darvall]. Warrants are usually issued with this requirement so as to prevent the suspect from evading the authorities or worse hiding or disappearing.
The District Attorney has also asked that we provide an address for [Ms Darvall] in Australia so that they can commence the extradition protocol with the Australian authorities.
It is important to note that I have a say in suspending or withdrawing the charges against [Ms Darvall]. As the offended party, I understand that I can say whether to proceed with the warrant or suspend/withdraw the charges.
Counsel for the mother submitted it is unlikely “the mother will enter Mexico in the face of the arrest warrant and the position of control the father would exercise over her”. The arrest warrant raises two relevant issues. First, if the mother chooses to accompany the child to Mexico it is uncertain whether she will be permitted to enter the country, or if she was so permitted, would she be arrested and incarcerated. Secondly if she does not choose to accompany the child to Mexico, he will return without his mother. As to the second limb, ordinarily a parent should not be permitted to rely upon the circumstances of their own creation to establish the defence of grave risk: see Re C (A Minor) (Child Abduction) (1999) 2 FLR 478.
However, there may be instances where the circumstances of the child’s return would expose the child to a grave risk or place them in an intolerable situation, including because of the prospect of separation from their primary carer as a result of incarceration: see StateCentral Authority v Papastavrou [2008] FamCA 1120; Secretary, Department of Communities and Justice & Caladine (No 2) [2022] FedCFamC1F 51.
Both scenarios raise a real issue of the impact upon X of separation from the mother, who his primary carer, either as a result of her potential imprisonment for the abduction of the child or because she refuses to accompany the child.
It is common ground the mother has been the primary carer and attachment figure of X since his removal from Mexico in mid-2021 when he was around two years old. He is now four years old and has not seen or had any contact with his father for the past two years or so. Irrespective of the father’s parental competency, regrettably, his father would likely be a complete stranger to the child.
The impact of separation from his mother on the child’s emotional and psychological wellbeing is self-evident. He would not be at a stage of cognitive or emotional development to understand any explanation why he would be separated from his mother and usual environment and placed in the primary care of his father, particularly when there are no firm proposals or arrangements in place to ensure any time between the child and his mother.
The applicant did not adduce any evidence as to whether the father would suspend or withdraw the charges against the mother, nor if he were inclined to do so how that could be implemented to ensure protective measures for the child’s return be enforceable in Mexico. Indeed there was no expert evidence about the Mexican legal process confronting the mother if she chose to return to Mexico with the child.
Neither party adduced evidence about the mother’s rights to enter or indeed remain in Mexico, if a return order were made and if she chose to accompany the child, nor how she would support herself if she accompanied the child to Mexico. Both parties seem to agree the mother’s previous tourist visa which enabled her to remain in Mexico prevented her from working in that country. The father specifically refers to the mother’s account of where they met as being incorrect and designed to avoid any admission she was actually illegally working at a business in City C, where they met.
There is limited evidence about the mother’s historical right to remain in Mexico. The mother’s evidence is at the time she fell pregnant she had no rights to stay in Mexico and she had already overstayed a tourist visa. According to the father, he believed at the time that mother’s tourist visa was valid and she had rights to remain in Mexico. He also deposes that prior to leaving Mexico for Australia in 2019, they paid the required fee at the airport immigration office in City G so her tourist Visa was extended. Clearly the mother was able to re-enter Mexico at the end of 2019, but that does not provide any evidence or comfort that the mother would be able to re-enter Mexico or remain there now. There is also a void of evidence about the mother’s capacity to work in Mexico and to financially provide for herself and X.
If a return order were made, accepting the mother would face the full force of Mexican law enforcement arising from the outstanding arrest warrant, I consider there is a grave risk the child would be separated from his mother, because she would or could not accompany the child to Mexico, her rights to enter and remain in the country are unknown and whether or not she would be incarcerated upon her arrival in Mexico is possibly dependent upon the father’s inclination and ultimately unknown. It is also unknown whether the mother would be able to obtain employment in Mexico, if she were permitted to enter the country and not incarcerated and if she were not permitted to work, how she would financially provide for herself and the child. Lastly, I do not have any evidence about the Mexican family law system and all the rights and obligations of the child and the parents.
For these reasons, I am satisfied to the appropriate standard, the return of the child constitutes an intolerable situation for him and places the child at grave risk of emotional and psychological harm and I so find.
DISCRETION TO RETURN
If an exception is found, as it has been in this matter, I am now required to address whether I should exercise my discretion to return the child to Mexico.
In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 the majority of the High Court said at [46]:
…The regulations are silent as to the matters to be taken into account in the exercise of that discretion and the discretion is, therefore, unconfined except insofar as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
At [29] of HZ & State Central Authority [2006] FamCA 466, the Full Court of this Court referred to the factors relevant to the exercise of discretion to refuse return as follows:
… In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c) the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”
If a return order is not made, the forum which would determine the child’s future in substantive proceedings is Australia, which is a jurisdiction where the best interests of the child and the child’s welfare are paramount in proceedings. Both parents are Australian citizens, speak English and are able to access proceedings in Australia, including electronically or attending personally.
There was no expert evidence about the suitability of Mexico to determine the child’s future nor the likely outcome of any substantive proceedings between the parents in Mexico.
It is not known what impact the mother’s removal of the child from Mexico will have on the substantive proceedings. If the proceedings were determined in Australia then the father is entitled to seek orders that the child return to Mexico. The mother would be entitled to seek orders that the child live with her in Australia and to spend time with the father, both electronically and in person. The father would be able to participate electronically in such an application in Australia even if he were unable to travel to the country, as he participated electronically in these current proceedings.
The consequence of exercising discretion in favour of the mother is that the child would remain with his mother in Australia, where they have lived since the removal of the child from Mexico in mid-2021, until further order of the Court in substantive parenting proceedings. It may be helpful in the future parenting proceedings, which will be determined according to the child’s best interests, that an order is made for the mother to be psychiatrically assessed. I make that comment because of the mother’s florid and heightened presentation during cross-examination.
As referred to in these reasons, the situation which would await the absconding parent and the child if a return order were made, is entirely uncertain. There was no expert evidence about the mother’s right to enter or remain in Mexico, the capacity to find employment if she were permitted to enter and remain in the country, whether it is correct that the warrant for her arrest may be withdrawn by the father, the family law system in Mexico nor any evidence about the practicalities relevant to the mother establishing a home for herself and the child in Mexico.
The very real possibility of the child’s separation from his mother and removal from her primary care would have a significant and immediate detrimental impact on the emotional and psychological well-being and functioning of the child.
In terms of the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order is not made, there was no evidence or indeed any submissions by either counsel. However, in this case an exception to return, as provided by the regulations, has been satisfied.
For the reasons set out herein, I propose to exercise my discretion not to return the child to the Mexico and will make the relevant orders dismissing the application.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 31 August 2023
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