FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Communities and Justice & Mercado [2023] FedCFamC1F 874
File number(s): SYC 4170 of 2023 Judgment of: CHRISTIE J Date of judgment: 17 October 2023 Catchwords: FAMILY LAW – HAGUE CONVENTION – CHILD ABDUCTION – Where the children are habitually resident in the United Kingdom – Where the respondent wrongfully removed the children to Australia – Whether under reg 16(1)(b) of the Family Law (Child Abduction Convention) Regulations there is a grave risk the return of the children to the United Kingdom would expose the children to physical or psychological harm or otherwise place the child in an intolerable situation – Family violence – First Nations children – Separation from primary carer - Where the respondent is unable to establish the "grave risk" defence – Order that the children be returned to the United Kingdom. Legislation: Acts Interpretation Act 1901 (Cth) s 13
Family Law Act 1975 (Cth) Pt VII, ss 4AB, 111B
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Family Law (Child Abduction) Convention Amendment (Family Violence) Regulations 2022 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.02, 7.10
Hague Convention on the Civil Aspects of International Child Abduction
Matrimonial Causes Act 1974 (UK)
Division: Division 1 First Instance Number of paragraphs: 184 Date of last submission: 3 October 2023 Date of hearing: 26-27 September 2023 Place: Sydney Counsel for the Applicant: Mr Guterres Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice Counsel for the Respondent: Mr Kremer Solicitor for the Respondent: Hague Convention Legal Practice ORDERS
SYC 4170 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
ApplicantAND: MS MERCADO
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
17 OCTOBER 2023
THE COURT ORDERS THAT:
1.The applicant and respondent, Ms Mercado born 1996, make arrangements to ensure the return of the children X (female) born 2011, Y (male) born 2015 and Z (female) born 2016, forthwith pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for return of the children: X born 2011, Y born 2015 and Z born 2016 (“the children”) from Australia to the United Kingdom (“UK”).
The proceedings are brought by the Central Authority filing a Form 2 Initiating Application on 13 June 2023. The Central Authority brings the application at the request of Mr C (hereinafter “the requesting parent” or “the father”).
On 28 July 2023 Ms Mercado, the respondent (hereinafter also referred to as “the mother”) filed a Form 2A Response.
The proceedings are brought under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Regulations are made pursuant to s 111B of the Family Law Act 1975 (Cth) (“the Act”) with both instruments functioning to implement Australia’s obligations under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
The Central Authority contends that the conditions necessary for the making of a return order have been met and asks the Court to find that matters relied upon by the Respondent do not establish a defence.
The respondent accepts that the conditions precedent to return are satisfied but relies upon a defence under reg 16(3) and, in particular, submits that the “grave risk” exception is invoked in the circumstances of this case. The respondent has the evidentiary onus to establish a defence.
BACKGROUND
In 2011 X was born. At the time of this hearing X is 11 years old.
In 2015 Y was born. At the time of hearing Y is eight years old.
In 2016 Z was born. At the time of hearing Z is six years old.
The respondent and children visited Australia in 2018 at which time the respondent says that they were introduced to their First Nations Australian heritage via the respondent who is a descendant of a First Nations tribe. The father agrees that the respondent’s Indigenous heritage was recognised during this trip but he does not recall the children being introduced to their cultural heritage during this trip.
In 2019/20 the respondent’s parents moved to Australia. The affidavit material of the parties does not squarely address it but it seems that the parents separated some time in 2020 and on 21 December 2020 the father gave his (incorrectly dated) consent in writing to the respondent taking the children with her to Australia permanently; that consent was later withdrawn.
An incident occurred in mid-2021 which resulted in action being taken by the mother at which time a police report was made. I will return to this incident later in detail as it was a significant focus of the evidence.
The father was arrested two days later but released on bail on conditions that expired the following month.
From that time there have been a series of applications for non-molestation orders either as between the mother and the father or as between the mother and the paternal grandfather who she continued to share premises with after the parents’ separation.
In mid-2021 the mother filed an application for a non-molestation order and sole occupation order. The following month, an interim non-molestation order was made for a period of 12 months providing that the father not return to the former matrimonial home pending further hearing. In late 2021 those proceedings resolved by consent upon the father providing an undertaking he would not attend the former matrimonial home. The undertaking expired in mid-2022.
On 8 June 2021 the mother caused her solicitors to write to the father to seek the permission of the father or, absent that, the court to change the children’s place of residence from the UK to Australia.
On 3 September 2021 the lawyers acting for the mother in proceedings in the UK wrote to the father informing him that the mother no longer sought permission to relocate the children’s place of residence to Australia as she did not intend to move.
The paternal grandfather remained living in the former matrimonial home with the mother while the father was no longer residing there. In late 2021 the mother caused her solicitors to write to the father’s solicitors indicating she wanted his father to leave the premises which she and the children occupied. One week later the paternal grandfather filed proceedings to protect his occupation of the property and obtained a non-molestation order. The mother and paternal grandfather eventually agreed the paternal grandfather could remain in the house.
In late 2021 the mother filed an application for financial remedies under the Matrimonial Causes Act 1974 (UK). The application was dismissed in mid-2022 but has since been reinstated and proceedings remain on foot. At the time of this hearing the mother was to take the next formal step by 4 October 2023.
In mid-2022 the mother filed a further non-molestation order application and occupation order application as against the father. The application was dismissed when her legal representatives did not attend the hearing.
The respondent’s lawyers sought to reinstate the application and it was dismissed in mid-2022.
On 1 August 2022 the lawyers acting for the father sought an undertaking from the respondent that she not remove the children from the jurisdiction.
In late 2022 the father moved back into the former matrimonial home.
The children informed the father that they were going with the mother to visit the maternal grandparents in the UK in late 2022 but, when the children had not returned and their school had reconvened following school holidays, the father realised that the children had left the UK.
It is an agreed fact that that the mother travelled to Australia from the UK in late 2022. It is agreed that the removal of the children was wrongful in accordance with reg 16(1A) of the Regulations.
The respondent indicated, both in her affidavit material and during cross-examination that if a return order were made she would not accompany the children to the UK.
CONSIDERATION
The case is principally concerned with what is referred to as the “grave risk” defence.
Regulation 16(3) of the Regulations relevantly provides:
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
…
(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; …
…
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 s 4AB of the Act.
Section 4AB of the Act provides as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The respondent’s counsel submits that the recent amendments to the Regulations changed the position which existed prior to their amendment. The written submissions within the case outline filed on behalf of the respondent say that the notes to reg 16(3) introduced by the Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022 (Cth) are part of the Act pursuant to s 13(1) of the Acts Interpretation Act 1901 (Cth) and further they provide that:
…the Court may have regard any risk that the return of the child under the Convention that would result in the child being exposed to family violence (as defined in s 4AB), regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.
(Original emphasis)
I accept that the notes to reg 16(3) do have that effect. It is difficult to conceive of circumstances in which the court could conclude that risk of return would expose the child to a grave risk of physical or psychological harm (based on allegations of family violence) if the court was not satisfied that family violence had occurred, would occur or is likely to occur. Those matters would inevitably impact on the assessment of whether there was a future risk.
However, to the extent that the respondent’s submissions provide that the court may have regard to any risk that the return of the children under the Convention would result in the children being exposed to family violence, the risk that is being considered is a “grave risk”. It therefore is necessary to turn to consider the evidence of each of the parties and that collateral evidence attached to the affidavits which supports or refutes the respondent’s contention that she has in the past been subject to family violence and the children’s return would expose them to grave risk of future harm. The father for his part denies that he was violent and sets out in his affidavit material a history of the mother behaving in ways which he describes as violent, harassing and controlling.
The parties sought that they be permitted to cross-examine. While proceedings brought pursuant to the Convention are intended to be dealt with in a summary fashion in deference to the obligation that they are heard and determined expeditiously, it has been recognised that, where their disposition relies upon findings of fact in circumstances where evidence is contested, limited cross-examination should be permitted.
In MW v Director-General, Department of Community Services (2008) 39 Fam LR 1 (“MW”) the High Court said:
45.Section 98 of the Act states that the rules of court may provide for evidence of any material matter to be given on affidavit at the hearing of proceedings other than divorce or validity of marriage proceedings. The Family Law Rules 2004 (the Rules) are so drawn as to require evidence-in-chief to be given by affidavit: r 15.05. But exercise by the Family Court of its general powers expressed in Pt 1.3 of the Rules would have allowed an order permitting cross-examination of the appellant; such leave might properly have been limited by the Family Court to particular areas of dispute.
46.Cross-examination in interlocutory applications generally is not to be encouraged. But an application for a return order under reg 16 of the Regulations is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country…
The introduction of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and the Federal Circuit and Family Court of Australia Act 2021 (Cth) have not altered the legal position set out by the High Court in MW.
Here I accept that the case is said to turn on whether return would expose the children to “grave risk” arising out of events which are disputed as between the respondent and the requesting parent. Accordingly, cross examination limited to that issue was appropriate and permitted.
At the conclusion of the evidence the parties made submissions about credit. I am not persuaded that either parent has deliberately misled this Court (or the courts in the UK) about the central events. I think that the mother has viewed her relationship in retrospect through the prism that the relationship was one in which she was the target of family violence. The father in contrast has seen the relationship as one in which the mother was consistently berating him as inadequate. The effect of their individual perspectives on their failed relationship has coloured the way in which they recollect the events. Accordingly, except as referred to specifically below, I make no general findings concerning credit.
In my disinclination to make findings as to credit I am conscious of the guidance of the Full Court in Adamson & Adamson (2014) FLC 93-622 (“Adamson”) in which it was held that, in parenting proceedings in particular, a trial judge should refrain from making adverse credit findings unless it is necessary to determine the real issues in the case and that credit findings should be soundly based with due allowance to the limitations of credibility assessments. I do not consider this matter to fall within the category of cases in which credit findings are necessary to determine the real issues in dispute. Those issues can otherwise be legitimately achieved in the absence of credit findings. I am also mindful of, in Adamson, the Full Court’s approval of Kent J’s observations in Carlson & Fluvium [2012] FamCA 32 which include:
165. As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
166.To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.
167.Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal.
168.These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
169.Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
Having allowed cross-examination, for reasons that follow, the respondent has not discharged her evidentiary onus of establishing a defence and accordingly I am unable to find on the balance of probabilities that there is a “grave risk” to the children posed by return to the UK.
There are a number of matters set out in the affidavit of the respondent which, if accepted, would meet the definition of family violence in s 4AB of the Act. Those allegations that would fall within a category of physical violence are:
(a)The mother asserts that in late 2020 the father grabbed her forcefully during an argument;
(b)The mother asserts that on another occasion in late 2020 the father grabbed and pushed her causing her to bruise; and
(c)The mother asserts that in mid-2021 the father threw her down the stairs (or swept her feet out from under her causing her to fall down the stairs or pushed her down the stairs), grabbed her and pinned her to the floor, hit her in the head repeatedly with his mobile phone and stuck his fingers in her mouth and kicked her.
The allegations of physical violence advanced by the respondent concerning the children are that:
(a)In early 2019 the father grabbed X’s arm and “yanked” her with excessive force; and
(b)In mid-2021 (preceding the incident referred to at [39(c)] the father smacked Y.
I have not included in the above list the mother’s allegation that the father played roughly with the children because I am not satisfied, even taking her case about this at its highest (together with the video she relied upon) those matters may be regarded as physically violent but I will return to whether they are relevant to my assessment about whether the orders for return which the Central Authority seeks would place the children at grave risk or otherwise place them in an intolerable situation.
Those allegations that, if accepted, may fall within a category of coercive and controlling family violence are:
(a)In late 2012 the parents had a heated argument which resulted in the respondent overdosing on medication and being hospitalised;
(b)In early 2021 the respondent’s mother asserts that the father said to her during a telephone call “maybe I’ll hurt [the respondent] bad”;
(c)In mid-2022 the father suddenly demanded payment within 28 days from her father in relation to several loans totalling £16,343; and
(d)In late 2022 the father through his solicitors threatened to install CCTV cameras in communal areas of the former matrimonial home.
I have read the records which relate to the mother’s hospitalisation in 2012. This event did not assume particular significance in the cross-examination of either parent. The evidence falls short of establishing that this event is an example of coercion and control by the father.
I understand, from the evidence, the father had lent his father-in-law money. The father’s request for repayment, without more, cannot be construed as an act of violence as against the mother.
The mother’s complaint about the father’s proposal to install video cameras at the former matrimonial home needs to be seen in light of all the other evidence about video surveillance. The father indicated an intention to install cameras in the communal areas of the house to protect himself against future accusations (in much the same way as he says he earlier sought to video tape the parents’ fraught interchanges). The proposal seems objectively ill-conceived but not because it presents as consistent only with the conclusion that the father was seeking to control the actions of the mother. Further, the father was not asked questions about this in cross‑examination and at the conclusion of the case no particular submissions were addressed to this issue.
Those allegations of coercive and controlling family violence that, if accepted, would fall within a category of financial control are:
(a)The respondent asserts that in 2019 the father insisted that she stop working and started paying her a “salary” through his company;
(b)In late 2020 the father reduced the respondent’s “salary” from £1,000 per month to £500 per month;
(c)In mid-2021 the father ceased paying the respondent a salary and took her off the company’s books;
(d)In mid-2021 the father withdrew £5,000 from their joint account leaving only approximately one week’s worth of funds for expenses; and
(e)In late 2021 the father stopped paying utilities for the former matrimonial home and the children’s extracurricular activities.
I will turn to consider each of the above matters (not already discussed) although they are not equal in significance.
Physical violence
The mother’s case is premised on the acceptance of the evidence outlined in her affidavit to ground the conclusion that the father has been violent towards her and that this history supports the submission that a return order would place the children at grave risk or otherwise expose them to an intolerable situation.
Allegations of physical violence by the requesting parent against the respondent
The relationship between the parents of the subject children was experienced by each of them as difficult. The father in his affidavit describes the relationship as “fraught with difficulties”. The respondent says “[w]e often argued. I felt alone and unsupported.” Each paints a picture of a difficult married life after the birth of their children.
The respondent says she and the husband argued in late 2020 about her accessing the husband’s phone and in the course of that argument, she says he forcibly grabbed her and sat her down. I am concerned that the respondent did not understand that her own desire to inspect the husband’s phone may be regarded as controlling behaviour. The husband was cross-examined about this incident and denied grabbing the respondent by the arm. The agreed facts included that the father tried to leave the home and the mother pursued him. This is a theme of the arguments detailed in the evidence. The father trying to avoid the confrontation: examples of that are seen later in Exhibit 1 – video 4: “can you move”, “can you stop coming in my space”. The evidence falls short of establishing that the late 2020 events were an incident of family violence as opposed to an unfortunate argument.
The parents argued on another occasion in late 2020. The presence of the paternal grandfather in the home was a cause of tension. The mother says the father required her to cook for her father-in-law notwithstanding she was ill with covid. The father took video footage of their argument which continued into the following day. It centred on a request to clean a bathroom. The mother tells the father “Why are you so scared, you’re the one that’s beat me up”. Importantly, the mother does not say in her affidavit that the father “beat her up” on the previous day. There is some video footage of the parties’ interactions on that day in evidence and I will discuss it in more detail below.
The mother appears to goad the father to hit her, saying among other things: “I want you to hit me. I want to get a bruise. I want to see you hit me”. She moves closer to him. The father repeatedly asks her to move away. Eventually the father pushes the mother away.
Following this argument the father reached out to his brother-in-law (the mother’s brother) Mr D via text message.
He sent Mr D a copy of a handwritten letter granting permission for the mother to take the children to Australia. The father wrote a series of text messages to Mr D who was at the time living in Australia – I have set out some of the messages which were the subject of cross‑examination, but have omitted the responses and some of the father’s other messages. They were before me in their entirety in Exhibit 4 and I have had regard to the whole of the interchange not merely those messages set out below:
Please take her man, I am happy to be the villain. This can’t go on
…
I wish you can understand me here, she has made me a monster man. She is so head strong.. I only called you before I fear I will punch her or go mental. She just won’t let go.
…
…I don’t want her trying to be tactile and starting engaging in [a] war of word[s]…
…
What ever you need to do just get her over. I don’t want a divorce but I can’t fucking live with her at the same time. If that makes any sense. She’s so hard and [a] difficult person. We will see what happens later but get her to give out to Aus. I need like 6 months away from her. I love my kids which is going to be painful. I’ve kept calm to now but I can’t do it anymore. I don’t care what people think or say I don’t even care now what my kids think for my sanity.
Sorry for the emotional shit but I’ve kept it for my kids for long I can’t do it..
My dad bit was the last straw
…
I know it's gonna get worse
It's not.. The kids watching me swearing because she brings the bad side out so quick.
I can't control myself, I've become nasty and horrendous. She's too much..
She needs attention constantly.. if it's not her way the whole world has to die
The father’s text exchanges with Mr D are telling. He chronicles the end of the couple’s relationship and his fears about conflict with the mother. Counsel for the mother submitted that the messages were concessions that the father had acted violently. I disagree. The messages were plainly consistent with the father’s recognition that the mother brought out the worst traits in him and made him behave badly such that he feared he was “nasty and horrendous” when confronted with his wife.
Four videos tendered by the Central Authority became Exhibit 1. The first three videos relate to the events of mid-2021 and the fourth video the events of late 2020. Following the hearing the parties provided an agreed transcript of the four videos, save for what is referred to as a “break in video” discussed later in these reasons which is not conceded by the Central Authority.
Mid-2021
“[MC]-Video1” depicts the mother speaking to the person who is holding the camera – in context that would appear to be the father. It is plain that there is a disagreement. The mother is seen on a staircase with the children. She is confrontational in tone and demeanour. It is not plain (from the video) what has taken place beforehand but it may be inferred that it has caused the father to start a recording. The mother calls the father a “narcissist”. The mother moves towards (as opposed to away from) the father until she appears to grab the phone and the video ends.
“[MC]-Video2” begins with the father speaking to the phone and the camera is focused on his thumb. He is indicating some slight bleeding and repeating “[the mother] bit me”. The mother is at the bottom of the stairs having fallen down. The father is telling the recording that the mother fell when she was attacking him and pulling at his collar. The mother is telling the recording that the father pushed her. Each appears to be enlisting X to adopt their position on video. The mother ascends the stairs and continues to approach the father and struggle with him and the father continues to yell “look what she is doing”. Both X and it would appear the paternal grandfather are present and endeavouring to bring the confrontation to an end. The mother is heard to say “you’re an animal…” The father is heard to repeatedly say “let go of me…let go of my top” and later “I cannot breathe”.
The video does not depict what has occurred between MC-Video1 and MC-Video2. But the parties agree that during the scuffle over the father’s phone the mother ended up at the base of the stairs and at some point managed to gain possession of the father’s phone. The parents wrestled over the phone and the father regained possession of it and during this altercation the father’s hand ended up in the mother’s mouth and was bitten by the mother.
The area of dispute is whether the father either deliberately pushed the mother down the stairs or in the alternative swept her feet out from under her so that she fell down the stairs (such events being the mother’s versions) or whether she fell when the father pushed her during their continued struggle over the phone (being the father’s version).
The parties are also in issue about what occurred between the taking of MC-Video2 and MC‑Video3. The mother asserts that the father repeatedly hit her in the head with his mobile phone. The father denies same.
The medical records from the mother’s attendance at the hospital in mid-2021 record: “Head – no bruises/dents/swellings/wounds to the head” and “[s]oft tissue tenderness to the […] side of face”. The presence of a visible injury (or in this case the absence of a visible injury) is not conclusive as to whether the father did indeed hit the mother with his phone but it is relevant in the assessment of whether the evidence taken as a whole supports this proposition.
In “[MC]-Video3” the parents are plainly involved in a struggle but it is as a consequence of the mother endeavouring to get hold of the father’s phone. The mother continues to pursue the father in an effort to obtain access to his phone. The father is seen walking away.
The following day the respondent reported these events to police and the father was arrested.
The police record of that day reads:
Multiple incidents of verbal abuse were reported today by the VIW1 [the mother]. This escalated into physical violence. [At] approximately 1930 hours VIW1 had a disagreement with SUS1 [the father] were [sic] SUS1 started to record VIW1 on his mobile phone. VIW1 tried to snatch the phone, however SUS1 grabbed and pinned VIW down onto the floor and stuck fingers in VIW1 mouth. VIW1 then bit down on the fingers. SUS11 then went upstairs and VIW1 followed. VIW1 then went to grab the phone again and SUS 1 grabbed VIW1, swiped her legs from underneath and pushed VIW1 down the stairs were [sic] they hit the back of there [sic] head […]. VIW1 then got back up and went upstairs. SUS1 then pinned VIW1 on the floor again and starting kicking her. [Redacted]then came upstairs to try and de-escalate the situation by pulling VIWI1arm away. SUS1 then grabbed VIWI arm and pulled the other was, heading towards the stairs. SUS1 then hit VIW1 with his mobile phone repeatedly on the head. SUS1 then dragged VIW1 into the sons bedroom and pinned VIW1 down to the floor and knee[le]d on VIW1 neck. [Redacted]then pushed SUS1 off. VIW1 then got up from the floor and SUS1 started to grab VIW1 and push the hand towards his face. This continued for approximately twenty (20) minutes. SUS1 then left the house and later returned.
The father was released from custody after providing police with the videos referred to above. It was accepted in cross-examination that the three videos provided to the police are the same three videos provided to the Court in these proceedings referred to above. There is no suggestion in the material filed by the applicant or the respondent that any issue about video editing or deleting was raised in the context of the proceedings in the UK and the father gave evidence in cross-examination before me that he had provided the videos to the police at the police station directly from his phone.
The following exchange happened between the father and counsel for the respondent:
COUNSEL: Now, what you call a domestic incident lasted for quite a long time, didn’t it?
THE FATHER: Yes.
COUNSEL: It lasted over half an hour?
THE FATHER: I believe so. Yes.
COUNSEL: And in fact, it probably lasted for about 45 minutes; isn’t that right?
THE FATHER: Yes.
COUNSEL: And you recorded the whole 45 minutes of that incident on your phone, didn’t you?
THE FATHER: It was – it was recorded. The videos were – there were – I think there was 20 minutes, 10 minutes and the other one – I’m not sure how many minutes that was.
COUNSEL: And so you say that there were three separate videos; is that right?
THE FATHER: Yes.
COUNSEL: And those – I withdraw that. The videos that you attach with your affidavit – that’s – you call them videos 1, 2 and 3; that’s right, isn’t it?
THE FATHER: Yes.
COUNSEL: Now, those videos are cut-down versions of the three videos you just referred to, aren’t they?
THE FATHER: No.
COUNSEL: Well, video 1 doesn’t go for 20 minutes, does it?
THE FATHER: I don’t recall how many minutes that goes for.
COUNSEL: Well, take it from me it goes for about 29 seconds. And video 2 - - -?
THE FATHER: Okay.
COUNSEL: - - - goes for about one minute and 38 seconds, and video 3 goes for about three minutes and 58 seconds. And if you add those up, it’s just over six minutes of footage?
THE FATHER: Yes.
COUNSEL: And so you accept, don’t you, that you’ve cut down the videos that you just told us 10 about before to produce videos 1, 2 and 3?
THE FATHER: Nothing was cut. I didn’t cut anything. I sent the videos – the – the police had the videos as well.
COUNSEL: Well, [Mr C], the three videos that you’ve given the court go for just over six minutes. What has happened to the additional footage that you recorded? You haven’t given it to this court, have you?
THE FATHER: The incident was altogether up to 30 minutes to 45 minutes.
HER HONOUR: That’s not a direct - - -?
THE FATHER: Well, that’s - - -
HER HONOUR: - - - answer to the question. You’re being asked what happened - - ?
THE FATHER: Sorry.
HER HONOUR: - - - to the other footage?
THE FATHER: Sorry, your Honour. That’s the footage that I’ve got.
COUNSEL: And so are you saying you’ve deleted some of the footage you took?
THE FATHER: No.
COUNSEL: So how do you - - -?
THE FATHER: No.
COUNSEL: - - - take a 20-minute video – is the first one that you told this court about – and how 30 come we only have, in this proceeding, six minutes? What has happened to the remaining 14 minutes if all of that footage came from the 20 minutes?
THE FATHER: I don’t know.
COUNSEL: [Mr C], you cut down those videos to cut out recordings of you assaulting [Ms Mercado], didn’t you?
THE FATHER: No.
COUNSEL: And you only gave the police the cut-down videos that you’ve called videos 1, 2 and 3?
THE FATHER: No.
(Transcript 26 September 2023, p.45-6 lines 29-39)
I have set out the exchange in full because it forms the basis for the submission on behalf of the respondent that that footage was edited or doctored.
It was later put to the father that in the approximately 24-hour period between the event in mid‑2021 and the father’s arrest he edited out large portions of the footage and saved smaller files to the cloud service eventually provided to the police. The father maintained that he did not delete any footage but accepted that the relevant cloud service has video-editing capacities.
The respondent referred to the decision in Allen v Tobias (1958) 98 CLR 367 and therein the High Court’s reference to the opinion of the Privy Council in The Ophelia [1916] 2 AC 206. It was ultimately submitted that I am entitled to apply the principle omnia praesumuntur contra spoliatorem and the “strongest possible presumption” that a document destroyed by deliberate act would, if produced, have told against him.
I am left without any explanation as to why approximately only six minutes of video footage has been produced when the father agreed the incident lasted longer and he had filmed it. However, the evidence does not allow me to make a finding that he deleted footage.
Applying the “strongest possible presumption” that the allegedly deleted videos would have told against the father ignores that the father made significant concessions against his own interests about what happened when there is no footage. The father accepted he had pushed the mother in their struggle. The father agreed he pinned the mother down in an effort to retrieve his phone. The father agreed he had his fingers in the mother’s mouth. There is no footage of these events. I accept the father was truthful in agreeing that they had occurred. I understand the evidence the father gave about wanting to have a record to protect himself against the mother’s allegations. That does not change his conduct either.
At its highest the three videos seem to demonstrate how dysfunctional and conflictual the living arrangements between the parents had become in the latter part of their relationship. To the extent that the father was endeavouring to take video footage (either to demonstrate problems with the mother’s conduct or for protection of his own lawful interests), the mother for whatever reason was unable to remove herself and plainly contributed to the escalation of these events.
Having watched this footage it is understandable that the proceedings in the UK resulted in undertakings as opposed to the non-molestation orders sought by the mother. That is not a suggestion that the father acted appropriately but rather a recognition of the fact that the mother’s relentless pursuit of the father’s phone resulted in an altercation.
The respondent attended the hospital (at the suggestion of the police). She did not require treatment. The notes record injuries but there is no evidence whereby I could determine whether what was observed arose from the agreed facts (falling down the stairs) or from the events for which the respondent contended.
In approaching the evidence concerning the respondent’s allegations of violence I have had in mind that the mother’s conduct seems incongruous with her asserted fear – she pursues the father when she could back away, she abuses the father when she could stay silent. She relentlessly seeks to obtain possession of the father’s phone (and is unable to explain her actions in that regard). I am conscious the mother seeks to explain her conduct in this regard as a reaction to the father’s violence (a “survival” mechanism). Here her conduct appears less like self-defence and she is plainly actively pursuing the father and in doing so prolonging their interaction as opposed to bringing it to an end. It is difficult to reach a safe conclusion about this topic in the absence of expert evidence. Doing the best I can I find that the mother and father each engaged in conduct in mid-2021 which was abusive and they did so in the presence of the children. Both parents were reckless to engage in a struggle over the father’s phone at the top of the stairs. I am unable to find that the father swept the mother’s feet out from under her. I accept that in the struggle his push was responsible for her fall and her injuries just as the mother was responsible for biting the father. The actions of the parents on that day do constitute family violence. In order to appreciate the potential risk it is necessary to understand whether or not the conduct on that day is a pattern of conduct and hence likely to be repeated or arose in the situation in which the mother and father placed themselves at the time.
If the evidence allowed me to find either that the father had swept the mother’s feet out from under her or in the alternative “thrown her” down the stairs then I accept that it would be a more significant act. What I am left with is a serious incident in which it is plain that the mother suffered some injuries which did not require treatment. It would have been a frightening incident for all family members, especially the children and it certainly meets the definition of family violence per s 4AB of the Act.
Late 2020
I return now to consider the earlier argument between the parties which led to them living in the same house but not communicating for several months. The video from late 2020 was marked “[MC]-Video4”. This video again appears to be taken by the father on his phone. The mother is nearby and the father says she wants access to his laptop and the two are at issue because he has not cleaned the bathroom as she has requested. The mother appears unprepared to leave the father’s room and eventually goads the father into pushing her away as she comes further and further into his personal space when he has made plain that he would like her to leave. It is disturbing to watch but it does not, without more, support the mother’s argument that the conduct depicted signals a future grave risk of harm to the children (upon return).
The respondent raised a similar complaint with this video as with the first three. Here the respondent asserted that the father doctored the video by editing two videos together such that I would apply the strongest possible presumption that the “break” produced between the videos would have told against the father. The following played out in cross-examination of the father by counsel for the respondent:
COUNSEL: Now, if we can play until about one – we might need to go back to about one minute and eight seconds and then play to about one minute and 12. Now, I will ask you, [Mr C], to focus on the video of what’s happening at the moment. So if we can play for about the next – I don’t know, four or five seconds. I want you to see what’s happening. So if we could play, please.
RECORDING PLAYED
…
COUNSEL: … In that few seconds that we just showed you, there was actually a break in the recording, and it resumed, didn’t it?
THE FATHER: As she grabbed the phone, I believe, yes.
COUNSEL: So what has happened is you had one recording that stopped and then another recording that then started?
THE FATHER: No, she grabbed the phone. So it’s going to – that’s what’s going to happen.
COUNSEL: All right. Just so that there’s no doubt; what I’m suggesting is that when she – when [the mother] grabbed for the phone, it actually stopped recording and then you started it again somewhat afterwards. That’s what happened, wasn’t it?
THE FATHER: No. The – I believe the video was – there was no breaks in between this video.
COUNSEL: All right. If we could then play again until about one minute 16. So it’s only about three seconds. And before we do, I will ask what I’m looking for. I’m going to suggest to you that there’s another break in the video in this point. So please have a look at that. All right. If we can play.
RECORDING PLAYED
…
COUNSEL: No[w], I suggest to you, [Mr C], before the words, “That’s my work”, there was another break in the video?
THE FATHER: Okay.
COUNSEL: Do you accept that?
THE FATHER: If that’s what it is, yes.
COUNSEL: And what has happened is you’ve joined two separate videos together at that point, to continue a single video?
THE FATHER: [the mother] was grabbing the phone. So the phone was - - -
HER HONOUR: No, no. I’m going to stop you. A specific proposition has been put to you, that what you have done is edited two videos together?
THE FATHER: No.
COUNSEL: Thank you, your Honour … If we can play until about one minute 48 and I’m going to ask you just a couple of questions about what’s said, [Mr C]. So please pay attention to what was said. And, again, if you need to go back, let me know. So if we can play now until one minute 48.
RECORDING PLAYED
COUNSEL: Now, [Mr C], in that break that I asked you about that you denied, when you denied editing the two videos together, you punched [the mother], didn’t you?
THE FATHER: No.
COUNSEL: And you hear her saying, “You punched me”, didn’t you?
THE FATHER: Yes.
COUNSEL: And you said, “No, I didn’t”; that’s correct?
THE FATHER: Yes.
COUNSEL: And then, [the mother] is saying, “What did you just do?” Do you remember her saying that?
THE FATHER: Yes.
COUNSEL: And you said, “Can you move”?
THE FATHER: Yes.
COUNSEL: And she said, “What did you just do”?
THE FATHER: Yes.
COUNSEL: And then, a little bit later than that, she’s saying – sorry, [the mother] says to you, “Record it. Record it. Go on, record it. Record it, record it, record it.” Do you remember her saying that?
THE FATHER: Yes.
COUNSEL: Now, what [the mother] was – I will withdraw that. What you understood [the mother] was suggesting to you was you had just punched her off the recording and she wanted you to record you punching her. I’m sorry, I didn’t hear that?
THE FATHER: Yes, yes.
HER HONOUR: To both propositions?
THE FATHER: No, I did not punch [the mother], your Honour.
COUNSEL: When I asked you, you understood what [the mother] was saying to you. She was saying to you that you should be recording yourself punching her. You understood that, didn’t you?
THE FATHER: That’s what she’s saying on the recording, yes.
COUNSEL: And then, do you recall [the mother] saying on the video, “Record it, record it, record. Look how big he is. Look how physical this man is”?
THE FATHER: Yes, that’s what she said.
COUNSEL: And then you said, “I’m pushing you. Look, because what are you doing”?
THE FATHER: Yes.
COUNSEL: And she says, “Look how physical this man is”?
THE FATHER: Yes.
COUNSEL: You say, “It doesn’t matter”?
THE FATHER: Yes.
COUNSEL: And she repeats, “Look how physical he is”?
THE FATHER: Yes.
COUNSEL: And I suggest to you that you understood [the mother] was continuing to accuse you of having punched her?
THE FATHER: That’s what she said, yes.
COUNSEL: And she said it because you had punched her?
THE FATHER: No, I did not punch her.
COUNSEL: Now, I think, just to make sure that there are no issues with it, if we can continue to play and it will probably go until the end. It’s about 40 seconds worth. Again, if you have any issues about any of the questions – and I don’t think I have very many – again, we can replay it. So if we can now play until the end.
RECORDING PLAYED
COUNSEL: Now, again, you understood what [the mother] was suggesting to you was that if you were going to hit her, you should do it on video?
THE FATHER: Yes.
COUNSEL: And when you said, “What are you doing” – sorry, I should ask you; do you recall then saying, “What are you doing”?
THE FATHER: Yes.
COUNSEL: And you said that several times?
THE FATHER: Yes.
COUNSEL: You were trying to create an impression on the video that you didn’t know why she was asking you this?
THE FATHER: No.
COUNSEL: Because you knew exactly what she was doing; she was trying to get you to record abuse.
(Transcript 26 September 2023, p.24-7 lines 1-10)
Evidently the father does not deny that there appear to be breaks in the video. I am unable to determine whether the video as it came into evidence was doctored in the way the respondent asserts. Regrettably I was without the aid of expert evidence on this point. I certainly could not observe anything on viewing which caused concern that the footage had been doctored or altered. This does not preclude the possibility that the recordings stopped and started (perhaps as a consequence of the altercation) but I am unable to conclude that this occurred in an effort to suppress some other recording or part of a recording.
It was submitted that the missing footage would show the father hitting the mother. However, I consider it highly significant that the mother’s affidavit evidence does not say she was hit by the father during this argument. I cannot find that an assault occurred on the evidence before the court.
I turn now to consider the evidence which the respondent’s mother gave about her conversation with the father concerning the mother in January 2021. In the mother’s affidavit filed in the proceedings in the UK, she recounted that the father and maternal grandmother had had a telephone conversation during which the mother alleged that the father had said to the maternal grandmother “that he was going to kill [the mother] and that he had that much hatred for [the mother]”. This is inconsistent with the maternal grandmother’s evidence in this court and overstates the nature of the father’s comment. It is not clear whether the mother deliberately or inadvertently exaggerated the nature of the father’s remarks in the UK proceedings.
The maternal grandmother Ms E gave evidence at [7] of her affidavit that in January 2021 she and the father had a telephone conversation:
[Mr C]: “I separate [Ms Mercado]”
[Ms E]: “[Mr C] don't do it it's bad for your children”
[Mr C]:“No I break my marriage I don't want to go forward with marriage. Maybe I'll hurt [Ms Mercado] bad.”
(As per the original)
The maternal grandmother was cross-examined about her evidence, and it was put to her that if the father had said he would kill the mother she would have included that in her affidavit. The maternal grandmother responded: “No, not murder. He said that he could do something.” (Transcript 26 September 2023, p.88 line 26).
The father was cross-examined by counsel for the respondent about the conversation to the following effect:
COUNSEL: Do you accept saying to her you don’t want to go forward with your marriage?
THE FATHER: I – When we had a conversation it was about. It was an emotional conversation, and I was speaking to [Ms Mercado’s] mother, and I said the marriage is breaking down and then [Ms Mercado’s] mother – because [Ms Mercado’s] mother speaks [one language] and I speak [another language] broken, so sometimes the communication isn’t that clear.
COUNSEL: Well sorry, do you accept saying to [Ms E] that you were – sorry, that “maybe I will hurt [Ms Mercado] bad”?
THE FATHER:No.
COUNSEL: And I suggest you that you did say that. Do you have a response? You - - -?
THE FATHER: No.
(Transcript 26 September 2023, p.44 lines 7-16)
The fact that the father in conversation with the maternal grandmother about the continuation of the parents’ relationship conveyed to her his concern that if the parents’ remained together, he could do something, even potentially hurt the mother, is consistent with the father’s text messages to his brother-in-law, Mr D. I consider that it is more likely than not, that the father said to the maternal grandmother words to the effect “I might do something”. That is the nature of Ms E’s evidence.
Allegations of physical violence against the children
The mother did not say the father was generally abusive to the children – either physically or verbally. She focused on two specific incidents where she said the father had acted in a physical manner which concerned her and that he played with them in a manner which she said was overly aggressive. I will deal with the specific allegations the mother makes in her material.
In early 2019 the mother said the father “yanked” the arm of the child X to pull her into her bedroom (or the house). The mother believed the father had used excessive force and contacted the police.
The mother’s affidavit records this incident as having occurred on one date. There is a police record of the mother having contacted the police about a week prior to that date and said her husband was “being abusive towards my child, me and him are arguing and he has yanked my child by the arm”.
The incident details as set out in police material are as follows:
VIW1 has called police as she has had enough with the way her husband speaks to her and the children and has been driven to call on this occasion, and she was not happy with the way he has pulled their daughters arm.
VIW1 and 2, are a husband and wife and they have been having issues where VIW1 believes VIW2 talks to her disrespectfully. She has never called before, but today it became too much when she was going out and their daughter went to follow her out and he has pulled her back in by her arm. VIW1 believes the way he did it was a bit too excessive but she was not injured nor does she believe he meant to hurt her.
This is a NCD as he has only prevented his nine year old daughter walking out of the house, she has not been hurt and he did not intend to hurt her. Before and during this, the VIW’s have argued. The parties live there with their three children and VIW2’s dad. There is no intimation of any violence or risk at the house.
On the mother’s account the child was not hurt and she did not believe the father intended to hurt her. It is an example of the children becoming embroiled in parental conflict as opposed to the father being generally abusive towards the child. It should not in these circumstances be called to aid in establishing that the children are at prospective risk.
In mid-2021 Y who was five years old at the time saw a fly on the light fixture. He went and got a broom and climbed on the table to swat the fly. His father intervened and disciplined Y physically which led to the argument between the parents discussed in detail above.
The mother accepts that the child was doing something dangerous. The father accepted (in retrospect) that he should not have used physical punishment. Y told his teacher that the father had hit him on his side with the broom (the contemporaneous video recording suggests it may have been a slipper). Y told the Court Child Expert: “Dad [is] not that nice, [and] whacked me on the butt when I was getting a fly.” The incident in isolation does not persuade me (even taken at its highest) that the children would be at grave risk if they were returned to the UK.
A related issue is whether the incident where the father hit Y when viewed alongside other evidence creates a picture which does indicate that return would expose the children to grave risk. The mother’s case was that she believed the father used physical discipline (she gave only the two examples discussed) and that his play was overly heightened.
The video which was relied upon in the respondent’s case (which was marked “230904” and became Exhibit 2) depicted the father and two of the children. The video appeared to depict the father playing with the children which was boisterous and from time to time the children did seem somewhat distressed by the interaction. However, it was also plain that the children were enjoying themselves and laughing from time to time and encouraging the father to continue the play. At best it is my view having watched this video without any further context that it demonstrates that there may be potential deficiencies in the father’s parenting style, capacity to read his children or the like but they do not, absent any further evidence, amount to something that would give the court cause to conclude that an order for return to the UK would place the children at grave risk. The risk posed by rough play is plainly a matter for the courts of the children’s place of habitual residence and not a matter capable of satisfying the definition of “grave” risk.
I have considered the examples upon which the mother relies individually and collectively and conclude that they do not suggest a future prospect of the children being at grave risk if orders for return are made.
The mother may seek parenting orders (including foreshadowed orders for relocation to Australia) whether she elects to return to the UK or not. The issues which she has raised about the father’s parenting style are properly a matter for the court of the children’s habitual residence.
It must be remembered that proceedings under the Convention are summary in nature and designed not to adjudicate the merits as would be the case in proceedings under Pt VII of the Act but rather to determine whether, according to the Regulations, an order for return to the place of habitual residence to allow that court to determine the matter, should be granted or refused.
Coercive and controlling family violence
The mother places the incidents of alleged physical violence within a broader framework, where she asserts that the father behaved in manners, which would constitute coercive and controlling family violence, including limiting her access to employment and funds.
Financial control
The Act includes reference to examples of financial conduct which may meet the definition of “family violence” in s 4AB:
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; …
In this case the mother contended that the father had required her to cease work and submitted that this conduct was indicative of control amounting to family violence.
The mother had qualified as an educator while married to the father. She agreed that the father had financially supported her during her studies and had not opposed her obtaining the qualifications. In cross-examination she told the court the father had encouraged her studies.
The mother worked as an educator. In cross-examination she agreed that her wages were paid to the credit of a bank account in her sole name which she operated. The mother worked as an educator between 2015 and 2019.
In 2019 the mother says the father insisted she cease work.
In cross-examination the mother accepted that at the time she and the father discussed her resignation she thought the decision was better for her family. She agreed that at the time she resigned she agreed with her husband “this was best for our children as my culture frowned upon women who were separated from their husbands and children”. The mother characterised this decision in cross-examination as having been undertaken by her willingly at the time because it was expected in her culture. She explained that it was in hindsight that she now characterised that decision as controlling.
The father provided her with an allowance sourced from his business. That allowance was initially £1,011.71 net (as reflected in a pay slip which was in evidence). Those monies were paid into her bank account.
In late 2020 the amount was reduced to £500 per month. The mother asks the court to find that the reduction was an incident of financial control. To do that I would have to discount the possibility that the father’s financial position was not capable of supporting the greater payment at that time. If as the father contended the funds were required to be allocated elsewhere because of competing demands then his reduction could not be regarded as unreasonable.
The mother’s affidavit material did not make reference to the fact that she returned to paid employment prior to the parents’ separation. This is inconsistent with her assertion that the father had effectively prevented her from working. Again the funds, which the mother earned from this employment, were deposited to the credit of her bank account.
In retrospect the mother submits the father’s action were controlling but objectively the father’s actions in providing the mother with funds when their family circumstances were such that she had exited the paid workforce do not appear financially controlling.
Part of the definition of family violence as it relates to financial control requires a finding that the actions of the father were “unreasonable”. In order to make such a finding it is necessary to understand how the family’s finances (and the finances of the father’s business) were functioning at the time/s at which changes were made to the financial arrangements as between the parents. The cross-examination did not establish that the father’s actions were unreasonable as required by the definition in s 4AB of the Act.
Similarly, after separation, after assessment of child maintenance, after the father moved into separate premises the financial circumstances of the family changed and I am unable to find the father’s changes to the previous arrangements were unreasonable.
The facts in this case and the submissions of counsel require me to consider the effect of the Family Law (Child Abduction) Convention Amendment (Family Violence) Regulations 2022 (Cth).
What does it mean to require a court to take into account family violence even if the court is not satisfied it “has occurred”, “will occur” or “is likely to occur”?
Doing the best I can in the absence of any previous judicial consideration and having regard to the Explanatory Statement (“ES”) and the very helpful submissions of counsel, I have formed the view that if I were to conclude that family violence had occurred then I would be obliged to take it into consideration when evaluating prospective risk of exposure to “grave risk”. In those circumstances I would likely take into account the nature of the family violence, such as, whether the incident was a one-off event or a pattern of conduct, whether the children exposed directly or indirectly and/or what the perpetrator has done since. While I accept as a general proposition that amendments to regulations would ordinarily be thought to affect change I am not satisfied that the Regulations as previously drafted precluded consideration of allegations of violence. In a similar vein, I am satisfied that under the Regulations which existed prior to amendment I would have been obliged to consider evidence relating to family violence in any case where a party said that history was relevant to a defence.
If I were to take into account family violence absent evidence it had occurred, or will occur I am at a loss as to how I would evaluate the absence of evidence in terms of what it means for the assessment of risk. Given my findings in this case this issue does not, fortunately, arise. It is also necessary to consider the submission that the notes to the Regulation require the court to have regard to “any risk” when evaluating the evidence. This is not novel.
The Appeal Division of this Court in Isles and Nelissen (2022) 65 Fam LR 288, a matter concerning risk of sexual abuse, observed :
7.…Such risks, like all prospective events, are capable of classification in only one of three mutually exclusive categories: possibilities, probabilities, or certainties. Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 … at [151]), but are instead postulated from known historical facts and present circumstances.
This is the framework in which we must consider the evidence of what has occurred to make an assessment of what is likely to occur.
Counsel for the respondent in the case outline placed emphasis on the ES and in particular the following passage for the Statement of Compatibility with Human Rights:
…The proposed Regulations enhance the right of the child and family to protection by the State.
The Instrument serves to enhance the safety of women and children fleeing family violence by clarifying the protections available to them against any arbitrary or unlawful interference that could be associated with a return to intolerable situation. Where allegations of family violence are substantiated, these amendments affirm that the court has discretion not to return children to an unsafe environment, which positively engages the right of the children to be protected by the law from unlawful interference.
The Instrument further provides a non-exhaustive list of guiding principles that the court may consider when imposing protective conditions upon return orders. The codification of these principles provides additional safeguards against conditions being used arbitrarily, disproportionately or unlawfully to hamper the return of a child under the Convention.
The Instrument would not undermine the family as the natural and fundamental group unit of society. Instead, the instrument seeks to clarify the protective measures available to family units who are subject to unlawful interference in the form of family violence.
The Instrument is not arbitrary and it seeks to lawfully protect individuals and children from violence within their family units.
…
The codification of the court’s treatment of family violence in the context of the grave risk defence will positively engage the right of women to not be discriminated against and ensure that equal treatment in the course of resolving disputes under the Convention involving allegations of family violence.
This expressed codification will ensure that litigants and their representatives are aware of how the court considers family violence in Convention cases. This clarity will primarily benefit women as they are disproportionately subjected to family and domestic violence.
While there is no reference to gender or sex in the Instrument or in the Primary Regulations, the practical effect of the amendments will be to enhance the right of women to be protected from discrimination on the grounds of gender-based violence.
(Emphasis in original submissions)
I accept that the introduction of specific reference to “family violence” as defined by s 4AB of the Act does enhance the rights and safety of women and children, not by introducing substantive change to the law relating to reg 16(3)(b) of the Regulations, but rather by, as the ES itself makes plain, codifying and clarifying the manner in which the issue can be raised and considered. The plain terms of reg 16(3)(b) of the Regulations remain unchanged. The notes provide guidance about consideration of the subject matter which may constitute the asserted grave risk or intolerable situation. This is consistent with the observations in the Statement of Compatibility of Human Rights as part of the ES to the effect “[w]here allegations of family violence are substantiated, these amendments affirm that the court has discretion not to return children to an unsafe environment.” This discretion has always existed if the court concluded that a return order would expose the child to a grave risk or otherwise place the child in an intolerable situation: see Walpole & Secretary, Department of Communities and Justice (2020) 60 Fam LR 409; Harris & Harris (2010) FLC 93-454.
The respondent submitted at [26] of the case outline that “if she establishes family violence has occurred and there would be a risk of an unsafe environment on return, the court should conclude that a grave risk has been established.”
I accept that in a case where the Court finds that there has been family violence that will impact on assessment of future risk. But not every finding that there has been an incident of family violence will result in a finding that return would pose a grave risk.
I accept without hesitation, as set out above, that the parents of the subject children behaved in a manner which was abusive to one another in the presence of the children and each endeavoured to involve the children in their dispute which would have been frightening. This recognition alone would not, without more, mean that return would expose the children to an intolerable situation or place them at grave risk.
I must turn to consider what the events of the past say about future risk. I am acutely aware that I am being asked in this case to determine where the line is to be drawn between poor behaviour in a dysfunctional relationship and conduct which meets the definition of family violence.
The heated arguments filmed by the father took place in the context of the parents continuing to occupy the same premises. The relevant questions are: on the basis of the admissible evidence, is this conduct likely to be repeated? Does this conduct suggest a pattern? Finally, are the authorities of the country to which return is proposed able to adequately address any remaining risk?
Following the incident in mid-2021 the mother contacted the police and the police took action on her behalf. This is relevant since it is important to consider whether the mechanisms which are in place in the country to which it is proposed return will be ordered are adequate to ameliorate any potential risk.
This principle is most usually associated with the decision of the Full Court in Gsponer v Director-General, Department of Community Services, Victoria (1989) FLC 92-001 at 77,160:
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.
The mother has contacted the police in the UK on a number of occasions. She does not complain that they have failed to take action. The mother’s application for a non-molestation order came before the Family Court sitting at Town F in mid-2021. The Deputy District Court Judge made orders as follows:
8. The respondent must not use or threaten violence against the applicant and must not instruct, encourage, or in any way suggest that any other person should do so.
9. The respondent must not intimidate harass or pester the applicant and must not instruct, encourage or in any way suggest that any other person should do so.
10. The respondent must not telephone, text, email or otherwise contact or attempt to contact the applicant (including via social networking websites or other forms of electronic messaging) except through her solicitors.
11. The respondent must not go to, enter or attempt to enter the family home or any property where he knows or believes the applicant to be living, and must not go within 100 metres of it.
12. Paragraph 8–11 of this order shall be effective against the respondent immediately.
13. Paragraph 8–11 of this order shall last until [mid-2022] unless it is set aside or varied before then by an order of the court.
On behalf of the respondent it was contended that the actions of the father’s family following the incident in mid-2021 were indicative of a future risk – in so far as they felt entitled to attend at her home at a time when the father was excluded by police action. The context is important. The paternal grandfather also resided at the home. The father had been (temporarily) excluded. The parents had had a significant altercation and according to the mother’s report to the police five days later: “[the father’s] sisters were in the property today when she got home with the children and they offered the children food and drink. [The mother] is concerned they are doing too much in the house.” In the mother’s affidavit filed in the UK non-molestation proceedings around one week later the mother said that her sister-in-law “came to my face to try to attack me”. The mother does not say that she was actually attacked by the sister. In cross-examination she said that the father’s sister, Ms G, was prevented physically from hitting her by others present. While the mother says the sisters were at the home at the direction of the father it is not possible to conclude that any actions of his sister on that day can be directly attributable to the father.
The respondent was not wrong to be cautious in the immediate period after the father left the parents’ home, but I would be wrong to conclude that this event is part of a picture whereby she (and significantly, the children) would be unsafe in the UK.
In late 2021 the following orders were made by consent:
1. The non-molestation order made [in mid] 2021 is discharged.
2. The draft undertakings are recorded and the respondent shall within seven days of this order being sealed, sign the draft undertakings and file them with the court.
3. The pre-trial review listed for [late] 2021 is vacated and the parties excused from attending the hearing.
4. There shall be no order as to costs.
The effect of those orders was that there was no longer a non-molestation order in place but the father was bound by his undertakings.
The undertakings made by the father were:
1.That I must not use or threaten violence against the Applicant and must not instruct, encourage or in any way suggest that any other person should do so.
2.That I must not intimidate, harass, or pester the Applicant, and not instruct, encourage, or in any way, suggest that any other person should do so.
3.That I must not telephone, text, email, or otherwise contact or attempt to contact the Applicant (including via social networking websites, or other forms of electronic messaging) except for the purposes of arranging contact with the children; for all other matters through her solicitors.
4. That I must not go to, enter or attempt to enter the family home at [H Street, Town J] (‘the Family Home’) or any property where I know or believes the Applicant to be living, and must not go within 100 metres of it.
In late 2021 the respondent contacted the police to indicate that “she believed [the father] had breached his court order by talking to [her] about something other than their children.”
The contact the mother was detailing was an email she had received from the father. The police record says:
On this occasion, V1W2 [the father] had sent a lengthy email to VIW1 [the mother] about child contact and seeing his kids. At the end of the email on the last two lines, VIW2 said he was returning a jewellery box belonging to VIW1 and asked if VIW1, if she wouldn’t mind giving something to his father as his father lives at VIW1’s home address with her and her children.
The email was in evidence (Exhibit 5). This email does not persuade me that the father’s conduct on this regard poses a prospective risk to the children.
The police confirmed the “General Form of undertaking which has no legal power of arrest”.
The undertakings were in force until mid-2022. The respondent says that when the undertakings were no longer in force the father came to the former matrimonial home a few days later. The undertakings no longer precluded his attendance and she does not claim that he breached them by attending at the home during the period they were in force.
At the home he engaged with his father who lived there and the children. The mother indicated his attendance made her apprehensive and she sought to obtain a further non-molestation order. Her application was supported by evidence of the father’s attendances at the home. She did not claim that he had been violent or threatening. The mother (and her lawyer) failed to appear and her application was dismissed. A subsequent appeal against that determination was also dismissed.
I am confident that the evidence does not establish that the father engaged in conduct which meets the definition of family violence at the time the undertakings expired or since.
The mother says the father (through his lawyer) indicated an intention to return to living in the former matrimonial home (with his father and the respondent and their children). This appears objectively ill-conceived but that does not mean that this conduct can be categorised as family violence. The mother’s lawyers were engaged in correspondence about this issue and set out, on her instructions, some guidelines about how this would work and foreshadowed that she would be seeking alternate accommodation.
It follows that I do not accept that the father engaged in conduct in the period after the undertakings expired such that would ground a concern about return posing a grave risk.
I have also had regard to the parenting arrangements which were in place by agreement during this period in reaching my conclusion. On 10 August 2022 the mother offered for the children to spend from Friday evening overnight to Saturday in his care. This is inconsistent with an assertion that the children would be at risk in his care.
On 10 September 2022 at 5.33 pm the father sent the mother an email in which he said “[t]he kids would like to stay until 8pm as they want to spend more time with me. Any issues please let me know” The mother responded at 5.40 pm “[t]hat is fine. Please can you give them dinner before returning.”
The mother’s counsel submitted that the risk arose from spending any lengthy period in the father’s care because the mother was concerned both that he was not available to provide care and that an extended period may tax him such that he may react or overreact when it was necessary to provide discipline. There is no evidence to support the stated concern that a longer period would be more likely to produce this issue. The mother contends that an extended period of time is untested. This is true. But that is not the same as being able to positively conclude that it would place the children at risk, let alone grave risk.
It follows, having considered the various matters raised in the respondent’s case as relevant to the assessment of risk, that I consider that the children did experience a serious incident of family violence in mid-2021. I have taken that into account when considering whether their return would expose the children to a grave risk of physical or psychological harm. I do not think that a return order would expose the children to a grave risk. The statutory note has directed my attention to the relevance of past events. As to the future – the parents are separated and each of the events to which I was taken in the evidence seemed to pivot on their struggle over the father’s phone, housework or discipline of the children. The evidence did not suggest that the return of the children would expose the children to such conduct on an ongoing basis and this is further underlined by the mother’s decision not to return.
Having considered and rejected the submissions that the asserted history of family violence would constitute a future “grave risk” it is also necessary for me to have regard to two further factors which arise in this case: whether the children’s identity as First Nations Australians and/or the fact that their mother has elected not to accompany them to the UK in the event a return order is made together or individually constitute “a grave risk that [their] return … would expose the child[ren] to physical or psychological harm or otherwise place the child[ren] in an intolerable situation”.
First Nations Identity
I accept that in the context of a bests interests determination of parenting arrangements for children it is necessary to have regard to the impact of any proposed orders on the children’s capacity to experience their culture.
Here the argument is framed as relevant to the question of whether the Court should make a return order and how if the discretion to dismiss the application is enlivened, that discretion should be exercised.
In Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 270 CLR 152 the reasoning of the majority of the High Court illustrated the ways in which Australian courts have characterised the special relationship First Nations Australians have with the particular country they inhabited and how it is that the descendants of those custodians claim “connection” with that country in the context of a matter which related to deportation of an adult non-citizen with First Nations heritage.
In Bamfield v Secretary, Department of Communities and Justice [2022] FedCFamC1A 35 the Full Court were dealing with an appeal against a return order which required return of a First Nations child to Belgium. As in this case the situation arose when the child was taken from her place of habitual residence to Australia and return was resisted on the basis that it would expose the child to an intolerable situation.
The expression “intolerable situation” on its face is not ambiguous: DP v Commonwealth Central Authority (2001) 206 CLR 401 at [41]. In itself “intolerable” is a high bar and in keeping with the approach to statutory interpretation of the Convention in the authorities it is not necessary to give the expression a special meaning not evident from its plain words: LK v Director General, Department of Community Services (2009) 237 CLR 582 at [23].
Baroness Hale in Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 observed:
52.“Intolerable” is a strong word, but when applied to a child must mean “a situation which this particular child in these particular circumstances should not be expected to tolerate”. It is, as article 13(b) [of the Convention] makes clear, the return to the requesting state, rather than the removal from the requested state, which must have this effect.
Article 13(b) finds its articulation in similar terms in reg 16(3)(b) of the Regulations.
The evidence in this case does not establish that return would be a circumstance which the children would find intolerable on the basis that the children would be required to live somewhere other than Australia.
The mother plainly had it in her contemplation prior to separation that her First Nations children would be raised outside Australia. It was still the mother’s position that the children should live in the UK when she instructed her lawyers to write to the father’s lawyers on 3 September 2021 and say:
We write to inform yourselves that due to changes in circumstances, our client no longer seeks permission from your client to relocate to Australia as she does not intend to move.
Our client’s position from the onset was that it is in the children’s best interest that your client has regular and consist[ent] contact with the children.
I accept that it is likely that the children have developed a stronger appreciation of their First Nations heritage since arriving in Australia at the end of last year. I am not clear whether or not this strengthens of diminishes the argument that not being able to maintain that identify (in the same way) would constitute an intolerable circumstance. By that I mean that the children have had a better opportunity to learn about their cultural heritage which may be important to its maintenance.
The children’s appreciation of their cultural heritage is likely to be best achieved by living with or spending time with a parent who is able to share the culture with the child. The mother says she does intend to accompany the children to the UK but has not indicated that she would not seek orders from the UK court to have the children live with her.
This is not a case where the mother is living in the geographical area of her ancestors or even in close proximity. I accept that that is not the end of the inquiry since logic suggests that maintaining a connection to culture may be more easily achieved if there is some association with other First Nations peoples even if they do not share the same tribal association or connection to country.
The mother sought to rely on a report by Mr K. The Central Authority opposed leave being granted to rely upon the report. I granted leave for the following reasons:
·Generally expert evidence should be given by a single expert appointed by the Court: r 7.02 of the Rules;
·Sometimes a party will be given leave to adduce adversarial evidence: r 7.10 of the Rules;
·In this case I accept that Mr K has relevant qualifications and experience. The objection to receipt of his evidence by the Central Authority was on the basis of relevance;
·The mother contends that an order for return would place the children in an intolerable situation at least in part because they would be living somewhere other than Australia in circumstances where she contends they would have significant difficulty developing and maintaining their First Nations Identity.
·Mr K’s evidence goes to the issue of capacity to maintain First Nations identity but eschews expertise in respect of any attendant issues of risk or harm. I find that it is relevant to the defence for which the mother contends and accordingly permitted her to rely on it.
Mr K addressed the issue about these children living in Australia but remote from their ancestral lands indicating that “contemporary evolving Aboriginal cultures” recognise that [Aboriginal] communities are now likely comprised of several different traditional language groups and hence remaining in Australia (even if away from their traditional lands) would be more likely to reinforce their First Nations culture and identity than would be the case if they were to live in the UK.
The expert properly acknowledged that he does not have expertise in respect of assessment of risk and harm but did feel comfortable to observe that if these children had a strong attachment to their identity then they may experience separation from its associated practices as deprivation. There is no direct evidence of the strength or otherwise of the children’s attachment to their First Nations identity. These children have a rich multi-cultural family of origin on both sides and it is likely that they identify to some extent with each aspect of their make up. The evidence about their First Nations heritage while plainly significant is not such that I could conclude that an order for return to their country of habitual residence would place them at grave risk of psychological harm or otherwise in an intolerable situation.
Separation from primary carer
On 4 September 2023 the mother set out in her affidavit that she has given consideration to the possibility of returning to the UK if the Court made orders requiring the children to return and has concluded that she cannot return.
The mother details her thought process in reaching this conclusion. It is primarily centred on the short term arrangements for return such as where she will live and how she will support herself.
The mother and father are yet to finalise a formal property settlement following their separation. Proceedings are on foot between the parents in the Family Court at Town F and the next formal step was to be taken by the mother on 4 October 2023.
The matters upon which the mother says she has founded her conclusion about return are, in the main, financial. In cross-examination the following exchange occurred as between the mother and counsel for the Central Authority:
COUNSEL: All right. Your affidavit suggests, doesn’t it, that you wouldn’t be able to afford to return?
THE MOTHER: Yes, that’s correct.
COUNSEL: Is that the reason why you wouldn’t return with the children?
MOTHER: It puts me in a very difficult position to be mentally strong, to be physically strong, to be financially strong to maintain the kind of lifestyle that I’ve maintained for my kids now.
COUNSEL: So lifestyle?
THE MOTHER: The lifestyle that my kids have now.
(Transcript 26 September 2023, p.167 lines 34-41)
The mother’s focus on her capacity to maintain the children’s lifestyle as the basis for resisting accompanying the children were a return order made flies in the face of her primary argument – that the children would be at grave risk.
I accept that the mother may be daunted by the prospect of seeking new accommodation and employment but this is not an unusual situation. The mother is qualified and has work experience. The mother and father have assets which in due course will be adjusted. The mother’s financial position in a relative sense is not dire. The fact that the mother has taken this position, given her case is premised on the children being either at grave risk or placed in an intolerable situation if returned, is curious.
When considering the mother’s reasons for declining to accompany her children they are reminiscent of the reasoning in C v C (Abduction: Rights of Custody) [1989] 1 WLR 654 where Butler-Sloss LJ expressed the concern that refusing to make a return order "because of the refusal of the mother to return for her own reasons, not for the sake of the child … would drive a coach and four through the Convention”.
The mother’s reasoning focuses on the immediate practical arrangements. The mother does not engage with the temporal nature of her reasoning. She is in essence saying “I cannot in the short term see a practical way to return so I have concluded that I will not return”. The purpose of a proceeding under the Convention is to make an order for return to permit the courts of the country of habitual residence to hear and determine proceedings in respect of the children. Here that Court is already seized of proceedings in respect of property adjustment. The mother may, should she choose, seek parenting orders in the UK which permit her to make the children’s place of residence in Australia.
I accept, without hesitation, that the mere fact that the mother has refused to accompany the children is not a bar to her arguing or the court finding that return would subject the children to a grave risk or intolerable situation. It is with this in mind that I have approached the evidence conscious of the guidance of Warnick J agreed with by the Full Court in Director-General, Department of Families & RSP (2003) FLC 93-152 being:
80.…Courts will understandably have a real concern about the disingenuous adoption of stances designed to achieve the purposes of abductors in resisting orders for the return of children. But the response to this concern cannot be to disregard evidence, but rather to scrutinise it with great care.
Each case will turn on its own facts and circumstances and it is therefore important to turn then to the evidence about the nature of the children’s relationship with the father to evaluate whether return without their primary carer would ground the defence.
This is not a case where the mother contends she cannot return. She is entitled to live and work in the UK. The mother is involved in ongoing family law proceedings in the UK.
The mother paints a picture of a father who was unavailable and abusive. This may not be the whole story when regard is had the collateral evidence. In the father’s text exchanges with his brother in law (relied upon by the mother as the father speaking candidly) he said “…I take them [to sports]..I am an active dad. i love it but now with her and my mental state I can’t do it”.
The children were interviewed by a Court Child Expert for the purpose of preparation of a report for the Court. In that report the children’s views were canvassed by the report writer.
X, who was 11 years old at the time of the interview, was recorded to have said “she feels worried that “when the Judge will ask who I want to live with, I want to say Mum but I don’t want Dad to feel sad.” X explained the arrangements which were in place for her to see her father in the UK and explained that while her mother provided care to her and her siblings her father “takes us out to do fun things”. This is an accurate appreciation of the division of labour and the care arrangements which were in place. Importantly, the Court Child Expert recorded: “[X] reported no fears or worries in relation to either parent.”
While X clearly expressed a preference to remain in Australia to the court child expert, she said it would be “okay to stay in [the] UK”. The issue of return to the UK without the mother was not raised in the report because the evidence which had been filed to date did not include this possibility.
As discussed above Y spoke to the Court Child Expert about the incident where his father hit him with the broom but also discussed enjoying visiting the park with his father.
Z, when interviewed by the Court Child Expert did not have clear memories of living with both parents but reported no fears or worries in relation to either parent. She said she misses her father a little and if she returned to UK (presumably without her mother) she would miss her “a lot.”
The Court Child Expert concluded his report by observing it:
appears that the expressed preferences by the children to remain living in Australia are inextricably linked to their relationships with their mother. In this context, the court could give weight to the apparent relational preference of each child to continue to live with their mother, in that each child indicated a primary care relationship with her, and each child is likely to experience significant distress of separated from [Ms Mercado] for an extended period, in the circumstances that the children are required to return to the UK. It is likely to assist them, if [Ms Mercado] is able to travel and remain with them in the UK.
I must take into account the likelihood of “significant distress” when considering the proposed return order. It is in this context that I return to the topic of the mother’s decision not to return. The mother can alleviate the distress. The mother has had the benefit of the Court Child Expert report. The mother is educated and articulate. She has indicated a position to the Court that she will not return. As discussed above this fact is relevant but not determinative. The mother is not prevented from returning to the UK, she has elected not to return. The mother similarly elected not to pursue a foreshadowed application to relocate. That is her right but it cannot be that those elections require this Court to in effect give imprimatur to her decision unless the evidence establishes that the children will be placed at grave risk or in an intolerable situation. I do not find that the mother is bluffing when she says she will not return. I accept she genuinely thinks it is untenable but I am cognisant of the fact that when confronted by the possibility of being separated from her children she may reconsider her election.
If the mother does not reconsider then the children’s pre-existing relationship with their father will assist them to cope with the distress. The father has extended family who are also known to the children who will similarly provide familiarity to the children on their return. The children had a good relationship with the paternal grandfather (according to records from L Children Services).
Because I have concluded that the defence is not established I am obliged to order that the children be returned to the UK.
Conditions
There are proceedings before the Family Court at Town F in the United Kingdom. The parents may wish to seek parenting orders from that Court since I understand the proceedings relate only to property settlement.
If the Court is making an order for the return of the children then it may also make some orders designed to assist with return. Those additional orders are often referred to as “conditions”. If it is proposed to make an order for return subject to conditions it is important to ensure that the conditions are designed to facilitate the return and do not usurp the jurisdiction of the country to which the children are being returned.
Ordinarily conditions will not be lengthy or complicated since the general wisdom is that if the conditions are too extensive the court may have fallen into error in ordering return.
In this case because the mother has indicated that she does not intend to return I am not minded to make conditions but the parties may wish to be heard about the mechanics of return in which case the matter will be listed for submissions.
I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 17 October 2023
- AGLC
- Secretary, Department of Communities and Justice & Mercado [2023] FedCFamC1F 874
- Case
- [2023] FedCFamC1F 874
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the respondent had established a grave risk defence under regulation 16(3)(b) of the Regulations. The respondent claimed that returning the children to the UK would expose them to physical or psychological harm, particularly due to the family violence that had occurred, and the children's separation from their primary carer. The respondent also argued that the children would face an intolerable situation due to their separation from their First Nations heritage in Australia. However, the court found that the respondent failed to provide sufficient evidence to establish this grave risk. The court also noted the possibility of protective measures that could be put in place to safeguard the children if they were returned to the UK.
The court ordered that the children be returned to the United Kingdom forthwith. The order was made under the authority of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) and was subject to review or variation as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The court emphasised the importance of adhering to the Hague Convention on the Civil Aspects of International Child Abduction, which seeks to protect children from wrongful removal and retention across international borders.
Orders
Orders of the court
SYC 4170 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND:
MS MERCADO
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
17 OCTOBER 2023
THE COURT ORDERS THAT:
1. The applicant and respondent, Ms Mercado born 1996, make arrangements to ensure the return of the children X (female) born 2011, Y (male) born 2015 and Z (female) born 2016, forthwith pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
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.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The respondent indicated, both in her affidavit material and during cross-examination that if a return order were made she would not accompany the children to the UK.CONSIDERATION The case is principally concerned with what is referred to as the “grave risk” defence. Regulation 16(3) of the Regulations relevantly provides:(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:…(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; ……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 s 4AB of the Act. Section 4AB of the Act provides as follows: (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.(2)Examples of behaviour that may constitute family violence include (but are not limited to):(a) an assault; or(b) a sexual assault or other sexually abusive behaviour; or(c) stalking; or(d) repeated derogatory taunts; or(e) intentionally damaging or destroying property; or(f) intentionally causing death or injury to an animal; or(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.