Secretary, Department of Communities and Justice & Handley

[2023] FedCFamC1F 1063

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Secretary, Department of Communities and Justice & Handley [2023] FedCFamC1F 1063

File number(s):

BRC 4399 of 2023

Judgment of:

WILLIAMS J

Date of judgment:

13 December 2023

Catchwords:

FAMILY LAW – CHILD ABDUCTION - HAGUE CONVENTION – Return application to the United States of America – Where there is an allegation of wrongful removal – Regulatory exceptions to return raised by the mother – Where there is a history of significant litigation in the United States of America – Ineffective conditions to return – Intolerable situation demonstrated – Discretion to return – Application dismissed

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act1975 (Cth) s 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15(2), 16(1), 16(1A), 16(2), 16(3), 16(4), 16(5), 16(6), 16(7), 16(8), 25A(1), 26

Convention on the Civil Aspects of International Child Abduction

Cases cited:

Director-General, Department of Communities, Child Safety and Disability Services & Pelt [2012] FamCA 343

DP v Commonwealth Central Authority; JLM v Director–General, NSW Department of Community Services (2001) 206 CLR 401

HZ & State Central Authority [2006] FamCA 466.

De L v Director General, NSW Department of Community Services & Anor (1996) 187 CLR 640

Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145

State Central Authority & Sigouris [2007] FamCA 250

State Central Authority & Del Rosario [2019] FamCA 607

Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65

Division:

Division 1 First Instance

Number of paragraphs:

129

Date of hearing:

24-25 July 2023 and 5, 22 September 2023

Place:

Melbourne

Counsel for the Applicant:

Ms Tabbernor

Solicitor for the Applicant:

Secretary, Department of Communities and Justice

Counsel for the Respondent:

Dr Barnett SC

Solicitor for the Respondent:

Rowlandson & Co Solicitors

Counsel for the Independent Children's Lawyer:

Ms McMullen

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

BRC 4399 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

Applicant

AND:

MS HANDLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	13 DECEMBER 2023

THE COURT ORDERS THAT:

1.The Application filed by the State Central Authority on 11 April 2023 is hereby dismissed.

2.The State Central Authority release to the respondent mother or her nominee all current passports relating to the child and the respondent.

3.All previous orders are discharged.

THE COURT REQUESTS THAT:

4.The Australian Federal Police remove the names of the respondent mother, Ms Handley born 1980 and the child, X born 2022 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 Secretary, Department of Communities and Justice & Handley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

WILLIAMS J

INTRODUCTION

1. This is an application by the Minister, Department of Children, Youth Justice and Multicultural Affairs filed on 11 April 2023 seeking the return to the United States of America of the child, X, born 2022 pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Secretary, Department of Communities and Justice were substituted as applicant on 21 April 2023 by court order.

2. The respondent, Ms Handley, is the mother of the child. The requesting parent, Mr D, who lives in the United States of America is the father of the child.

3. The relevant regulations are made pursuant to s 111B of the Family Law Act1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention (“the Convention”).

4. 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 the United States of America are signatories to the Convention.

5. 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 the child to her country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.

6. 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.

7. 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.

   Note 1:In considering whether the matter mentioned in paragraph (3)(b) is established:

   (a)the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and

   (b)the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and

   (c)the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.

   Note 2:For the definition of family violence, see section 4AB of the Act.

   (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.

   (6)If:

   (a)the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and

   (b)a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):

   (i)in a return order for the child; or

   (ii)in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;

   the court must consider whether it would be appropriate to include the condition.

   (7)In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).

   (8)Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).

8. The Regulations require that applications for 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)).

9. In De L v Director General, NSW Department of Community Services & Anor (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.

10. In this case, the father was cross-examined by senior counsel for the mother and the mother was cross-examined by counsel for the State Central Authority. Both the father and mother were cross-examined by in-house counsel for the Independent Children’s Lawyer.

11. All three counsel cross-examined the two expert witnesses, Ms M, criminal lawyer and Ms N, family lawyer.

12. The State Central Authority asserts that the child has been wrongfully removed from the United States of America 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;

    (b)the child is under the age of 16;

    (c)the child was habitually resident in the USA as at the date of removal;

    (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.

13. The mother conceded the jurisdictional facts, and that the removal was wrongful but opposed the application for return. She relied on reg 16(3)(b) to assert there is a grave risk the return of the child to the USA would expose her to physical or psychological harm or otherwise place her in an intolerable situation.

    Onus of proof

14. The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.

15. The State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v Commonwealth Central Authority; JLM v Director‑General, NSW Department of Community Services (2001) 206 CLR 401.

16. The mother bears the onus of proof to establish the regulatory exceptions to return.

    Preliminary matters

17. The hearing was conducted electronically via Microsoft Teams, which enabled the father to participate in the proceedings.

18. I wish to express my appreciation to all counsel for the professional and courteous manner in which the proceedings were conducted.

    Evidence and documents relied upon by the parties

19. The State Central Authority relied upon the following documents:

    (a)Form 2 Application filed 11 April 2023.

    (a)Affidavit of Ms J filed 11 April 2023.

    (b)Affidavit of Ms P filed 14 April 2023.

    (c)Affidavits of Mr D filed 5 September 2023.

    (d)Affidavit of Ms Q (paternal grandmother) filed 20 June 2023.

    (e)Regulation 26 Report by Court Child Expert, Ms R, dated 11 May 2023.

    (f)Single Expert Report of Ms S filed 18 July 2023.

    (g)Affidavit of Mr T filed 13 September 2023.

    (h)Application in a Proceeding filed 13 September 2023.

    (i)Outline of Case document filed 19 July 2023.

20. The respondent relied upon the following documents:

    (a)Form 2A Answer filed 5 June 2023.

    (b)Affidavits of Ms Handley filed 4 June 2023 and 21 September 2023.

    (c)Affidavit of Ms U (maternal grandmother) filed 20 July 2023

    (d)Regulation 26 Report by Court Child Expert, Ms R, dated 11 May 2023.

    (a)Single Expert Report prepared by Ms S filed 18 July 2023.

    (b)Affidavit of Ms N filed 20 July 2023.

    (c)Affidavit of Ms M filed 20 July 2023.

    (d)Response to an Application in a Proceeding filed 21 September 2023.

    (e)Outline of Case document filed 19 July 2023.

21. The Independent Children’s Lawyer relied upon the following documents:

    (a)Regulation 26 Report by Court Child Expert, Ms R, dated 11 May 2023.

    (b)Single Expert Report of Ms S filed 18 July 2023.

    (c)ICL1 Tender Bundle comprising documents from the US proceedings.

    (d)ICL2 Tender Bundle comprising medical and counselling records.

    (e)Affidavit of Ms N filed 20 July 2023.

    (f)Affidavit of Ms M filed 20 July 2023.

    (g)Outline of Case document filed 19 July 2023.

    Witnesses

22. The father was cross-examined by senior counsel for the mother and counsel for the Independent Children’s Lawyer. His evidence was problematic and at times duplicitous. He was unnecessarily argumentative, reluctant to accept basic premises and his “don’t recall” answers stretched the limits of credibility. Despite repeatedly professing his position as professional he was lacking in candour and did nothing to assist the Court.

23. The paternal grandmother, Ms Q, swore an affidavit which was filed on 20 June 2023. She was not required for cross-examination.

24. The mother was cross-examined by counsel for the State Central Authority and counsel for the Independent Children’s Lawyer. Whilst she endeavoured to answer questions in a responsive manner and made concessions against interests, her evidence was also problematic. For example, she conceded there was significant inconsistency in her evidence in these proceedings compared with both the Temporary Restraining Order (TRO) and parenting proceedings in the USA, although her explanations for the discrepancies differed. Her various explanations included her evidence had been limited because of advice provided by her lawyer and that she did not want to paint the father in a poor light in the domestic violence proceedings in the USA. The mother was clearly not forthright in the USA proceedings on two occasions in early 2023. She conceded it was a mistake to convey to the USA Court that she was in the country on the earlier occasion and the redacted airline tickets provided to the court on the latter occasion, did not accurately reflect her whereabouts. Nevertheless, I prefer the mother’s evidence about other matters to the father’s, because of the matters referred to in my assessment of the father’s evidence.

25. The maternal grandmother, Ms U, swore an affidavit which was filed on 20 July 2023. She was not required for cross-examination.

26. Ms M is a criminal attorney practising in State G, who was instructed by the Independent Children’s Lawyer to address the criminal implications of the mother’s removal of X from State G. Ms M was cross-examined by all three counsel. She was an impressive professional witness and I accept her evidence.

27. Ms M had doubts about the validity of the purported arrest warrant and whether law enforcement agencies would enforce the warrant. She said the warrant for arrest was not something that could be moved upon immediately because of deficiencies, however, she said the warrant could be reissued should the mother re-enter the USA. With reference to State G legislation, her evidence was that as the mother’s conduct is criminal in nature, a criminal charge could be brought within three years, and it could be refiled and “tolled”. She said that even if the father promised to this Court that he would not cause a criminal investigation to recommence, “a very, very remote risk” remains that the City F Police Department of the District Attorney’s Office would nevertheless continue with an investigation and pursue a criminal complaint (Transcript 25 July 2023, p.87 line 13).

28. Ms N is an attorney in State G who practises exclusively in family law. The Independent Children’s Lawyer requested her to provide a report about the family law implications arising from parenting orders made in early 2023 and steps which could be taken to prevent the risk of the mother travelling with the child to a third country following her arrival in the USA. She also was an impressive professional witness and I accept her evidence.

29. Ms N gave evidence that Ms M and Mr D could agree to a stipulation to vary the current interim orders and that it “is almost always the case” that if parties agree to such a stipulation that the USA Court would make orders in accordance with that agreement (Transcript 25 July 2023, p.94 line 27). She confirmed that this could include orders to prevent the mother from leaving the jurisdiction again. When asked about rectifying the deficiency in the arrest warrant, Ms N stated that the Superior Court of State G and the Judge “have the ability, if made aware, of a deficiency or clerical error, that they can on their own motion revise or amend it” (Transcript 25 July 2023, p.96 line 24). She explained that if both parents were to agree to a stipulation that an arrest warrant will not be reissued, “the likelihood is that on the Family Court Judge’s end, he would comply with the party’s agreement in that respect” (Transcript 25 July 2023, p.97 lines 9-10).

1. Regulation 26 enables the Court to direct a Family Consultant to report to the Court on such matters that are relevant to the proceedings as the Court considers to be appropriate and that such a report may be received in evidence in any proceedings. In this matter, a regulation 26 report was ordered and prepared by Ms R on 11 May 2023. Ms R was not required for cross‑examination, and I accept her unchallenged evidence.

2. A further report was prepared by Ms S, Educational and Developmental Psychologist, pursuant to an order made on 12 May 2023 appointing her as a single expert witness. Ms S was requested to address the following issues:

   (a)The impact on the mother’s mental health of returning with X to the United States of America in the event a return order is made; and

   (b)X’s attachment to her mother.

3. Her report is annexure A to her affidavit filed 18 July 2023. Ms S was not required for cross‑examination, and I accept her unchallenged evidence.

   Background

4. The father was born in the United States of America and is aged 45 years. He is an American citizen. The mother was born in Australia and is aged 43 years. She moved to City F in 2003 to pursue her career and is an Australian citizen. There is one child of the relationship, X, who holds American citizenship and is the subject of this proceeding.

5. The parents met in City F towards the end of 2020 in circumstances unknown to the court. Shortly thereafter, the parents commenced fertility treatment through the V Health Service in 2021. The parents were engaged in 2021 but never married.

6. In late 2021, the father moved into the mothers’ residence at W Street, City F, State G. The mother deposes that upon moving into the property, the father’s behaviour towards her deteriorated and she was subjected to family violence including verbal abuse, social isolation, intimidation, financial abuse, and physical violence. She asserts the abuse frequently coincided with the father consuming alcohol, which he did around four days a week in the period between late 2021 and mid-2022. This is denied by the father.

7. In 2022, it was confirmed to the mother she was pregnant with X. The mother asserts that in the ensuing months the father became increasingly jealous, possessive, and belittling towards her.  According to her, this resulted in several incidences of family violence in 2022. The father denies the allegations of family violence.  They separated on a final basis in 2022 which was prior to X’s birth.

8. On the following day the mother approached a lawyer to obtain a temporary restraining order (“TRO”) against the father, which was granted by the Superior Court of State G, County of City F around one week later. An order was also made requiring the mother to have a third party notify the father when she was admitted to hospital for labour and to allow the father to be present for the birth of the child. Notwithstanding the TRO, the mother asserts she observed the father walking the perimeter of the home and staff working at the property had seen the father watching the house from his car. As a result of these incidents, the Superior Court of State G, County of City F extended the TRO and adjourned the matter to the following month.

9. X was born in 2022 after a difficult labour, during which the mother experienced a complication. Despite the requirement in the orders of 2022 for the father to be notified and present for the birth, he was not. According to the mother, this was due to the advice of her medical team.

10. In 2022, when X was nine days old, the father commenced parenting proceedings by filing an application for sole legal and physical custody, visitation and child abduction prevention orders in the Superior Court of State G, County of City F.

11. In late 2022, the previously adjourned TRO hearing took place. The mother was unable to attend as she was still recovering from a complication following the birth of X.  The TRO was extended.

12. Two days later, the first hearing of the parenting proceeding took place and consent orders for interim child custody and visitation were issued by the Superior Court of State G, County of City F. The orders provided for the mother to have custody of X and the father to have supervised visitation three times a week from 2.00pm - 4.00pm. The mother deposed to being advised by her attorney she “had no choice” other than to agree to the orders and felt pressured to agree to the arrangements.

13. In late 2022, when X was an infant, the paternal grandmother collected X from the mother’s property whilst the father waited in the car. This was the first time the father met and spent time with X. According to the mother, upon X’s return she was unresponsive, limp and her eyes were rolling back. The mother immediately obtained medical assistance and upon her presentation to the Children’s Hospital, she asserts that the doctor suspected that X had “shaken baby syndrome”. This incident and diagnosis are denied by the father. The child’s hospital discharge summary does not refer to that diagnosis. Two days after this incident, the father sent the mother a message via OurFamilyWizard suggesting she stop breastfeeding because of alleged medical concerns he held for the child.

14. Around one week later, the father’s application for hearing came before the Superior Court of State G, County of City F. In support of this application, he argued the mother was suicidal, and the child was in danger in her care. The mother denied these allegations and the father’s application was dismissed. He was subsequently sanctioned and ordered to pay the mother’s court costs.

15. Five days later, the mother’s application for a restraining order against the father again came before the Superior Court of State G, County of City F but was adjourned for another week. Two days later, prior to the conclusion of the hearing, the mother withdrew her application “with prejudice”. She deposes to doing so because the father agreed she would have full custody of the child and his time with the child would be professionally supervised at her home. The father denies any such agreement.

16. The following month, when the parties began to mediate the family law proceedings, the father made it clear he was still seeking full custody.

17. Further orders were made in Superior Court of State G, County of City F in early 2023. The orders provided for the parents to share legal custody of X, and for the mother to hold sole physical custody. These orders also increased the father’s time with the child and required the mother to surrender the child’s passport.

18. In early 2023, the mother and child left City F and arrived in Sydney. Three days later, the mother’s lawyer submitted an ex parte motion appealing the orders made in early 2023. This motion was denied.

19. Upon being informed of the mother’s departure from the USA, the Superior Court of State G, County of City F, granted the father temporary full custody of X during an ex parte proceeding in early 2023. The District Attorney Recovery Unit was ordered to locate and return X to the USA. The mother deposes that she was not served nor notified of the motion despite her personal email and phone number remaining active.

20. The following month, the Superior Court of State G, County of City F ordered that a warrant for the arrest of the mother and child be issued.

21. Between early and mid-2023, the father made nine applications to the Superior Court of State G, including requests for the mothers’ assets to be frozen, reimbursement for the cost of fertility treatments which resulted in X’s conception and for a default judgment.

22. The trial of the State Central Authorities application for return in this Court commenced on 24 July 2023 and was listed for two consecutive days. The matter was part heard on 25 July and scheduled to resume on 5 September 2023.

23. On 5 September 2023, the applicant sought leave to rely on a further affidavit. Paragraph 2 of the affidavit stated the father had filed documents in the State G Court, seeking to withdraw the arrest warrant.

24. Prior to the resumption of the hearing, the Independent Childrens Lawyer called for production of the documents referred to in that paragraph. In response to the call, counsel for the applicant conceded no documents had been filed in the State G Courts since 24 July 2023, when the matter was first before this court. Leave was granted to the applicant to rely on the affidavit, noting the concession about the contents of paragraph 2 and for counsel for the Independent Childrens Lawyer to cross-examine the father. The applicant’s request to adduce further evidence was denied. The matter was again adjourned part heard to 14 September 2023, to enable counsel for the applicant to make final submissions.  

25. On 13 September 2023, the State Central Authority filed an Application in a Proceeding and supporting affidavit. The application sought leave to reopen the applicant’s case and leave to rely on the affidavit of Mr T filed 13 September.

26. Mr T’s affidavit detailed the father’s application for Temporary Emergency (Ex Parte) orders which he filed in the Superior Court of State G in late 2023, and which were supposedly served on the mother by email at 4.00pm on the same date.

27. At 8.30am the next morning, orders were made by whereby the custody and visitation orders of early 2023 were rescinded, and the prior visitation schedule was reinstated. The orders also revoked, withdrew, and quashed/vacated the arrest warrant issued in early 2023.

28. On 13 September 2023, the parties jointly sought a short adjournment of the proceedings to enable each party to consider the Application in a Proceeding filed 13 September 2023. An adjournment was granted, and the trial was further adjourned to 22 September 2023.

29. On 22 September, senior counsel for the respondent advised she was content for the applicant to rely upon the affidavit of Mr T and sought to rely on a further affidavit of the respondent mother filed 21 September 2023. She did not seek to rely on the affidavit of Mr Y which was filed by the mother on 21 September 2023, in response to the Application in a Proceeding. No further cross-examination was required by the parties. Further submissions were made by senior counsel for the respondent and counsel for the Independent Children’s Lawyer and final submissions were made by counsel for the applicant.

    REGULATORY EXCEPTIONS TO RETURN

    Grave risk of physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b))

30. The mother relies on the regulatory exception in reg 16(3)(b) and asserts there is a grave risk the return of the child, X, will expose her to physical or psychological harm or otherwise place her in an intolerable situation.

    Relevant legal principles

31. 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.

32. 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.

33. 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).

34. 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.

35. 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”.

36. 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 of Australia did not give a restrictive meaning to the defence of grave risk that made clear that the words of reg 16(3)(b) are to be given their natural meaning and not a narrow construction.

37. In this case, the mother relies upon multiple issues which she submits pose a grave risk of psychological harm and intolerable situation for the child. These are the child’s likely separation from her mother because of the orders of the US Court made in early 2023, the father’s parental capacity, the possible incarceration of the mother, the family violence perpetrated by the father on the mother during the relationship and the father’s alcohol abuse.

38. I will now turn to each of the issues.

    The child’s separation from her mother

39. Prior to the departure of the mother and child from the USA in early 2023, the operative orders for X’s parenting arrangements were made by the Judge in the Superior Court of State G, County of City F in early 2023. The orders provided for the parents to have shared legal custody of X, X to live with her mother and for the father to spend time with X for three tranches of three hours per week, with time to occur at the mothers’ home.

40. Subsequent to the father discovering the mother’s departure from the USA, in early 2023 the Superior Court of State G made orders for the District Attorney Recovery Unit (in conjunction with Federal law enforcement if necessary) to locate and return the child to the USA. The Court also found on a provisional basis the father was the presumed parent of the child, despite him not being named on the child’s birth certificate and awarded him sole legal and physical custody of her on a temporary basis. An order was also made for the child to have no visitation with her mother until further order.

41. The report of Ms R addresses the profound adverse effect on the child if she were separated from her mother because of her age, vulnerability, and attachment to her mother as her primary carer.

42. Ms R states at paragraphs 7 and 8 of her report dated 11 May 2023 that:

    [X] would effectively respond to [Mr D] in the same way she would respond to a stranger. At [less than one year] of age [X’s] brain is not fully formed, she does not possess the cognitive capacity to recognise or understand the concept that [Mr D] is her father…

    In the event [X] moved to [Mr D’s] primary care, her sense of safety and security is likely to be threatened and she is likely to experience anxiety as a consequence of being separated from [Ms Handley]. A severance in an infant’s relationship with a primary attachment figure can have a profound impact on the young child.  In such circumstances [X] may feel fearful, confused, become hypervigilant and hyper aroused, particularly if the separation was not supported and if her relationship with [Ms Handley] is disrupted for a prolonged period.  This is likely to have a detrimental impact upon [X’s] mood, behaviour, learning and cognitive development, as well is her ability to trust and bond with both her mother and her father.  Amongst other things, it is also likely to lead [X] developing a negative internal working model of the world, which influences how she interacts and builds relationships with others as she grows.

1. I accept Ms R’s unchallenged evidence about the detrimental effect to X if she were to be removed from her mother’s care, as was contemplated by the orders of early 2023, and consider those arrangements pose both a grave risk of harm to the child as well as an intolerable situation for her.

2. However, the father’s subsequent ex parte application of late 2023 to the Superior Court of State G seeking emergency orders reinstated the earlier orders of early 2023, which provide for X to remain living with her mother and spend limited time with her father.

3. The Application in a Proceeding filed by the applicant on 13 September 2023, addresses the sequence of events of the father’s ex parte application of late 2023. I will refer to the circumstances of that application, later in these reasons.

   The father’s parental capacity

4. It was common ground that the father had only spent time with the child for a couple of hours since her birth, which was apparently supervised and therefore the father’s parental capacity is largely untested.

5. The parties’ evidence about X’s presentation after spending time with her father on the first occasion in late 2022 was wildly divergent. The mother’s evidence was X appeared to have shaken baby syndrome after spending time with the father, which the father vehemently denied. The hospital records of X’s attendance did not refer to shaken baby syndrome. The two grandmother’s versions of events were also divergent and neither grandmother was required for cross-examination. I am unable to make a positive finding about this incident and indeed it is not necessary to do so, given the evidence which came before the court stemming from the Application in a Proceeding filed 13 September 2023.

6. Despite the child’s lack of attachment to him, throughout the proceedings the father demonstrated a profound lack of insight and concern about the child’s needs.

7. During the parenting proceedings in the USA, the father was provided with evidence from the child’s paediatrician, Dr Z, about suitable spend time arrangements for a young, breastfed baby, although he was unable to recall during cross-examination that he had received that information. A message sent by the father to the mother, dated late 2022 was put to him during cross-examination, wherein he suggested to the mother the child could be at risk if breastfeeding continued (Annexure L to the affidavit of Ms Handley dated 4 June 2023).

8. Subsequent to the preparation of Ms R’s report about the profound impacts on the child if she were separated from her mother, the father’s evidence during cross-examination was that he thought an immediate equal time regime upon the child’s return to the USA would be in her best interests. Although he later resiled from this position, the father’s evidence in this regard raises considerable doubts about his insight and parental capacity.

9. This lack of insight is further demonstrated by the father’s application for sole legal and physical custody of the child when she was a newborn, at a time when the mother was still recovering from a traumatic birth.  

10. I agree with the comments of senior counsel for the mother that the father’s attitude is aptly described as a “rights-based stance”. The father was clearly overly focused on his “parental rights” rather the best interests of the child.

11. It is difficult to have any confidence that in the future the father will refrain from his right’s‑based attitude and rather consider what arrangements are in the child’s best interests.

    The father’s alcohol abuse and family violence perpetrated against the mother

12. The mother deposes to concerns about the father’s alcohol abuse and the violence perpetuated by him during the relationship. She refers to incidents when the father threw a phone at her, held a knife to her, and a physical altercation which left her with a bruised arm. The father denied the allegations of alcohol and violence. Counsel for the applicant submitted the mother’s allegations in this proceeding were far more florid and concerning than the allegations levelled at the father in both the TRO proceedings and the State G parenting proceedings. The mother’s explanation for the changing evidence is referred to in my observations of the mother as a witness. Notwithstanding the difficulty in making findings about particular incidents, which I am not required to do, it seems clear the parental relationship was characterised by some degree of volatility and discord.  

13. It was conceded by senior counsel for the mother that the allegations of the father’s lack of parental capacity and family violence are not the basis for the grave risk of harm should the child be returned to the USA, but rather form “part of an explanation of the factual circumstances as to where we find ourselves now” (Transcript 5 September 2023, p.207 lines 36-37). I agree with and accept the concession.

    The mother’s potential incarceration

14. In early 2023, the Superior Court of State G ordered that a warrant for the arrest of the mother and child be issued. This was not opposed by the father.

15. On 5 September 2023, six weeks after the commencement of trial, on what was scheduled to be the last day of trial, the applicant sought leave to rely on a further affidavit, detailing apparent documents which had been filed in the State G Court by the father. The affidavit was sworn by the father on 4 September 2023 and at paragraph 2 stated:

    I have filed papers with the [State G] courts to withdraw the arrest warrant against the respondent.

16. At the time of swearing the affidavit, no such documentation had been filed by him in the State G Court. Counsel for the applicant correctly conceded the father’s evidence was not correct.  

17. According to the affidavit of Mr T dated 13 September 2023 filed in support of the applicant’s Application in a Proceeding, the orders obtained by the father in the Superior Court of State G in late 2023 included an order to revoke, withdraw and quash/vacate the arrest warrant issued early 2023.

18. It was the evidence of Ms M that notwithstanding the revocation of an arrest warrant, it could be reissued with reference to State G legislation. She stated a charge could be brought within three years, and it could be refiled and “tolled”, whereby the mothers time spent outside of the jurisdiction could be added onto the three-year period.

19. Although it was Ms M’s evidence that it would be highly unlikely that the mother would face arrest upon her return to the USA as the outstanding warrant for arrest was defective, she was clear that the mothers conduct is in breach of the State G penal code and can be prosecuted.

20. Senior counsel for the mother, in her supplementary final submission drew the court’s attention to Order 3(c) made by the State G Court in late 2023, which states:

    The party or parties with temporary physical custody, care, and control of minor children must not remove the minor children from [State G] unless the court allows it after a noticed hearing.

21. Senior counsel submitted the fact that the mother continues to be at odds with an order which has been reaffirmed or made as recently as late 2023, must raise concerns that further criminal proceedings and a possible warrant for her client’s arrest may eventuate.

22. I accept the possibility of both criminal proceedings and/or the issue of an arrest warrant, but that must be considered in the context of the evidence of Ms M.

23. There is no evidence to suggest a further arrest warrant could not be issued and indeed, the speed in which the father can access a judge to amend orders demonstrates the ease in which he could do so. I have no confidence the father will not take matters in his own hands, as he has done throughout this matter.

24. If the mother were to be incarcerated or removed as primary carer of X by any means, it would leave the child in an intolerable situation.

    Conclusion as to grave risk and intolerable situation

25. The respondent bears the burden of satisfying the Court about the grave risk of harm and intolerable situation the child will face upon her return to the USA.

26. There is a presumption that co-signatory states have the capacity to adequately protect the child upon return, unless shown otherwise. This presumption is discussed in Gsponer at [178]:

    There is no reason why this court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child’s welfare. Indeed, the entry by Australia into this convention with the other countries may justify the assumption that the Australian government is satisfied to that effect.

27. The Regulations reflect the objects of the Convention to settle issues of jurisdiction between the Contracting States by favouring the forum which has been the habitual residence of the child. The underlying premise is that, once the forum is located in this way, each Contracting State has faith in the domestic law of the other contracting states to deal in a proper fashion with matters relating to the custody of children under the age of 16.

28. In this case, whilst I retain faith in the domestic law of the USA to deal with this matter, I do not necessarily have faith in the bona fides of the father.

29. After the seismic change in evidence following the father’s application to the State G Court in late 2023, the central issue is now whether the father can be trusted to comply with undertakings to, or orders of this court, as proposed by counsel for the Independent Children’s Lawyer and adopted by the applicant, or whether he will again seek to change the orders in the State G Court, including whilst the mother and child are in transit, and seek to reissue an arrest warrant.

30. On 21 September 2023 counsel for the Independent Childrens Lawyer proposed the following conditions of return at [5] in an Amended Proposed Minute of Order for Return:  

    a)Within 7 days, provide a written undertaking confirming that he has not, and will not, file any further criminal complaint against the mother arising out of her actions in removing the child from the United States of America prior to [early] 2023, nor cause any other person to do so.

    b)Within 7 days, provide a written undertaking that he will not seek the issuance of any warrant in the proceedings before the Superior Court of [State G], County of [City F].

    c)Within 28 days, cause his Attorney to prepare and provide to the respondent (or her Attorney if so instructed) a signed stipulation, agreeing to interim parenting orders that provide for the mother to have sole physical custody of the child and for the father to have supervised visitation with the child three times each week for no more than one hour, with such orders remaining in operation in [State G], until at least 28 days following the return of [X] to the United States of America.

    d)In the event that the respondent (or her Attorney if so instructed) returns a signed stipulation to the father’s Attorney within 7 days, the father cause his Attorney to file the signed stipulation with the Superior Court of [State G], County of [City F] within 7 days and provide written confirmation to the mother (or her Attorney if so instructed) that the document has been filed.

    e)In the event that the respondent does not return a signed stipulation, the father is to instruct his Attorney to take all steps and do all things necessary to make an ex parte application to vary the custody orders in the terms of 5(c) above, within 28 days.

    f)Upon the Superior Court of [State G], County of [City F] making parenting orders as set out in paragraph 5(c) above, (either in accordance with the stipulation signed by the parties or in the terms of the ex parte application made by the father to vary the custody orders) the father (and or his Attorney) is to provide a sealed copy of the orders by email to the applicant, the respondent and the independent children’s lawyer.

31. Senior counsel for the respondent mother opposed an order for return and made extensive submissions about why the proposed undertakings and orders should not provide any comfort to the court that the father would comply with this court’s orders purporting to regulate his conduct in the State G Courts, or whether he will once again “take matters into his own hands”.

32. Senior counsel directed the court’s attention to the application and orders annexed to the affidavit of Mr T filed 13 September 2023.

33. An examination of the father’s Application for Temporary Emergency (ex parte) Orders (Annexure A) demonstrates the father’s application was electronically filed in the Superior Court of State G at 6.39pm on a date in late 2023. His application was dealt with by the court at 8.30am the next day. The application was heard and determined by the court within fourteen hours of filing. Senior counsel for the mother submitted fourteen hours is roughly equivalent to the flight time between Sydney and City F.

34. The application prepared by the father’s State G attorney states at paragraph 3(e)(2) that the responding party was given notice and an opportunity to be heard as provided by State G.

35. Annexure A to the affidavit of Mr T dated 13 September 2023 is an email purportedly sent by the father’s attorney to the mother advising her of the father’s application to be heard the following day. The email was supposedly forwarded to the mother at 9.53am, when the application was filed at 6.39pm the day before and did not attach a copy of the proposed application.

36. The mother’s evidence regarding service as outlined in her affidavit filed 21 September 2023, was that she did not receive notice regarding the father’s application of late 2023. Despite that, the fathers US attorney, Ms K, signed a declaration regarding notice and service of request which states the documents were served both on the respondent and the respondents attorney via electronic means with the email “…@...”. This raises several issues. Firstly, despite the document stating that an attorney was served on her behalf, the respondent is not currently represented in the USA. Secondly, due to a typographical error in which a letter was omitted from the respondent’s name, it is clear the respondent did not receive notice and even if she did, would have been unable to adequately respond given the limited timeframe. I accept the mother’s evidence she was not served with the father’s application.

37. I agree with and accept the submissions of senior counsel for the respondent that these actions undermine the veracity of the father and his representation in the USA and form part of the “factual matrix” as to why the orders made by the Superior Court of State G might be amended by the father, once again, without notice to the mother.

38. The Independent Children’s Lawyer conceded she shared the concerns of the respondent that the father may renege on his current position and seek to amend the orders to more favourable terms for himself. However, despite that concern she considered the evidence did not satisfy the threshold for an intolerable situation and a return order could be crafted to ameliorate the risk. These submissions were effectively adopted by counsel for the applicant, who conceded the Minute proposed by her on 5 September 2023 was effectively otiose because of recent events.

39. Counsel for the applicant also conceded the concerns of the court about the fourteen-hour timeframe it took for the father to obtain the most recent orders in the State G Court and the fact that the orders were obtained without the mother having an opportunity to be heard or possibly without notice.

40. I do not accept the submissions of counsel for the applicant and Independent Children’s Lawyer because the proposed undertakings are unenforceable against the father in this Court as he is not in the jurisdiction and never has been. There was no submission about the enforceability of the undertakings in the USA.

41. Self-evidently, the orders made by the Superior Court in State G permitting the mother to have sole custody and revoking the arrest warrant will be effective only if the father can be trusted to comply and not resort to changing them. As a result of the father’s prior conduct, I have no confidence that the father, assisted by his US attorney, will refrain from further applications to the Superior Court of State G within the stipulated period, including orders being sought and made on an ex parte basis, as has previously occurred. Despite his latter protestations, it is evident his ultimate intention is to obtain orders for the primary care of the child, which he initially sought when the child was a newborn.

42. The father’s principal reason for revocation of the arrest warrant and change in custody arrangements, is referred to in his affidavit in support of his most recent application in the State G Court where he states:

    … On the advice of the Solicitors in Australia, specifically the office of Civil Litigation, Dispute Resolution and Public Law Department of Communities and Justice-Legal, it has been suggested that the current custody orders and arrest warrant makes the situation more complicated and may affect the decision to return Respondent [sic] and my daughter back to [State G].

43. He does not depose to any change in his attitude about the child’s best interests, but rather focuses on what will achieve his ultimate goal. The father’s evidence during cross-examination further diminished my confidence that he would comply with undertakings of this Court, despite his protestations to the contrary.

44. Thus far, the father’s modus operandi has been to relentlessly engage the mother in proceedings in the USA including placing the child in his primary care, property proceedings and seeking recovery of fertility treatment expenses from the mother. His past actions do not provide me with comfort or confidence he will in the future comply with any undertaking or order of this court.

45. I have no faith that the father will refrain from seeking further amendment to the current orders, whilst the mother and child are in transit or within the 28-day period. By his own admission, he is prepared to do and say anything to secure the return of the child. A recent example is his affidavit of 4 September 2023. At paragraph 2 of that affidavit, he deposed to having “filed papers with the [State G] courts to withdraw the arrest warrant against the Respondent”.

46. Examination of annexures to the affidavit of Mr T filed 13 September 2023 demonstrates the application to the State G court was in fact made subsequent to the date of swearing the affidavit. Because of the father’s occupation, the court would expect him to be particularly truthful, accurate and forthright in his evidence, whereas he was not. I refer to my earlier comments about the veracity of the father’s evidence and submissions by counsel for the Independent Children’s Lawyer about his evidence stretching the limits of credibility.

47. The ineffectiveness of the proposed protective measures for the child arises primarily from my lack of trust the father will comply with the undertakings. I do not have any confidence the father will comply with the proposed undertakings. The proposed protective measures are found in the Amended Minute proposed by counsel for the Independent Children’s Lawyer as outlined in paragraph 101.

48. I accept the unchallenged evidence of both Ms R and Ms S about the effect on the child of removing her from her mother, her primary carer. If the father ignores the proposed undertakings to this court, then it is axiomatic the child would be placed at grave risk of psychological and emotional harm and an intolerable situation.

49. Taking into consideration all relevant matters, I find the factors which senior counsel for the respondent asserts, create a grave risk of exposure to psychological and emotional harm or otherwise place the child in an intolerable situation.

    DISCRETION TO RETURN

50. 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 the United States of America.

1. 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.

2. At paragraph 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.”

3. If a return order is not made, the forum which would determine the child’s future in the 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 speak English and can access proceedings in Australia, although it may be electronically.

4. If the proceedings were determined in Australia, then the father is entitled to seek orders that the child return to the USA. The mother would be entitled to seek orders that the child live with her in Australia and spend time with the father, both electronically and in person. The father would be able to particulate electronically in such an application in Australia even if he were unable to travel to the country, as he has participated electronically in these current proceedings.

5. As referred to in these reasons, the situation which would await the absconding mother and the child if a return order were made, is entirely uncertain and in the hands of the father. I have little faith in the fathers bona fides and consider it likely, given the fathers history of litigation that his position will revert once the opportunity arises.

6. The very real possibility of the child’s separation from her 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.

7. 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.

8. For the reasons set out herein, I propose to exercise my discretion not to return the child to the USA and will make the relevant orders dismissing the application.

I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.

Associate:

Dated:13 December 2023