Secretary, Department of Families, Fairness and Housing & Golshani
[2023] FedCFamC1F 179
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Families, Fairness and Housing & Golshani [2023] FedCFamC1F 179
File number(s): NCC 2955 of 2022 Judgment of: WILLIAMS J Date of judgment: 23 March 2023 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where the respondent father retained the five year old child in Australia – Where the child was habitually resident in Switzerland immediately prior to the date of retention – Where the date of retention and all other jurisdictional facts except habitual residence were conceded – Where the jurisdictional facts are satisfied to establish the child was wrongfully retained in Australia – Regulatory exception – Grave risk argument – Where the father asserted there is a grave risk the return of the child would expose the child to physical and psychological harm because he contended the mother may relocate to Country F with the child in the future – Where the father has not discharged his onus – Child to return to Switzerland – Return order made. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15, 16
Cases cited: De L v Director General, NSW Department of Community Services (1996) 187 CLR 640
DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401
HZ & State Central Authority [2006] FamCA 466
In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145
State Central Authority & Sigouris [2007] FamCA 250
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147
Division: Division 1 First Instance Number of paragraphs: 137 Date of hearing: 6–7 February 2023 Place: Melbourne Counsel for the Applicant: Ms Fisken Solicitor for the Applicant: Department of Families, Fairness and Housing Solicitor for the Respondent: Forty Four Degrees ORDERS
NCC 2955 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
Applicant
AND: MR GOLSHANI
Respondent
order made by:
WILLIAMS J
DATE OF ORDER:
23 march 2023
THE COURT ORDERS THAT:
1.The child, X, born 2017 (“the child”), be returned to Switzerland pursuant to the Family Law (Child Abduction Convention) Regulations 1986, noting that the requesting mother will travel to Australia to accompany the child to return to Switzerland.
2.The Australian Central Authority notify the Swiss Central Authority of the mother and child’s date of departure.
3.Order 4 of the orders made 3 October 2022 is hereby discharged and the mother or her nominee authorised in writing is permitted to collect the child’s passport and the father or his nominee authorised in writing is permitted to collect the father’s passport.
4.Pending the child’s departure from Australia for return to Switzerland, the respondent father continue to be restrained and an injunction issue restraining him from causing or permitting or suffering the child:
(a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b)to apply for any further or other passport or passports for the child, subject to Order 10 of these orders;
(c)to be removed from Victoria;
(d)to reside anywhere other than his/her present residential address or any other residence at which the applicant has agreed that the said child may reside.
5.Order 4 of these orders remain in force, until a letter from the applicant is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to Switzerland AND IT IS REQUESTED that the Australian Federal Police remove the name of the child, X, born 2017 from the Airport Watch List upon presentation for boarding the nominated flight to Switzerland on the date nominated for the said travel.
6.A sealed copy of these orders be provided forthwith to the Marshal of the Federal Circuit and Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
7.The Marshal of the Federal Circuit and Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
8.Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
9.Otherwise, the Application of the Secretary, Department of Families, Fairness and Housing be and is hereby dismissed.
10.The mother is requested to forthwith do all acts and things necessary to obtain an Australian passport or other travel document or permission for the child in order to facilitate the return of the child to Switzerland and the father do all acts and things necessary and required of him to authorise, consent to and support the mother’s application for the passport or other travel document or permission for the child’s travel.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Families, Fairness and Housing & Golshani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J:
INTRODUCTION
This is an application by the Secretary, Department of Families, Fairness and Housing (“the State Central Authority”) filed on 28 September 2022 seeking the return of the child, X born 2017 to Switzerland, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Mr Golshani, is the father of the child. The requesting parent, Ms B who lives in Switzerland, is the mother of the child.
The relevant regulations are made pursuant to s 111B of the Family Law Act1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal/retention of a child from his/her country of habitual residence. Both Australia and Switzerland are signatories to the Convention.
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child to his country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
Note 1:In considering whether the matter mentioned in paragraph (3)(b) is established:
(a)the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and
(b)the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and
(c)the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.
Note 2:For the definition of family violence, see section 4AB of the Act.
(4)For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
(6)If:
(a)the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and
(b)a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):
(i)in a return order for the child; or
(ii)in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;
the court must consider whether it would be appropriate to include the condition.
(7)In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).
(8)Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed/retained from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, counsel for the State Central Authority cross-examined the father and the solicitor advocate for the father cross-examined the requesting mother.
The State Central Authority asserts that the child has been wrongfully retained from Switzerland, in accordance with regs 16(1) and (1A), on the following basis:
(a)the application was made within one year of the child’s retention;
(b)the child is under the age of 16;
(c)the child was habitually resident in Switzerland immediately prior to the date of retention;
(d)the requesting parent, the mother, has rights of custody in relation to the child, which she was exercising immediately prior to the child’s retention; and
(e)the retention of the child was in breach of the requesting mother’s rights of custody.
Issues in dispute
In his Form 2A Response, the respondent challenged the child’s habitual residence, denied the mother had “sole parental responsibility and rights of custody of the child” or that she was exercising such rights when the child was removed to, or first retained in Australia, asserted the mother had consented to the child being taken to and remaining in Australia and/or had subsequently acquiesced and there was a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
In her opening address, the solicitor advocate for the father advised the court the father conceded the mother had rights of custody which she was exercising at the time of retention, and that the father abandoned the regulatory exceptions of consent, acquiescence and intolerable situation for the child.
The following issues therefore required determination:
(a)whether the child was habitually resident in Switzerland or Australia immediately prior to the date of retention;
(b)whether there is a grave risk that returning the child to Switzerland would expose him to physical or psychological harm.
Onus of proof
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
The State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401. The only jurisdictional fact in dispute was whether the child was habitually resident in Switzerland immediately prior to the date of retention.
The respondent bears the onus of proof to establish the regulatory exceptions to return.
Preliminary Matters
The hearing was conducted as a hybrid trial with the requesting mother appearing electronically from Switzerland and all others attending in-person.
Evidence and Documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)Form 2 Application filed on 28 September 2022;
(b)Affidavit of Ms B filed on 20 January 2023;
(c)Affidavit of Ms C filed on 20 January 2023;
(d)Affidavit of Ms D filed on 20 January 2023;
(e)Affidavit of Ms E filed on 20 January 2023;
(f)Outline of Case document filed on 2 February 2023.
The respondent relied upon the following documents:
(a)Form 2A Response filed on 2 November 2022;
(b)Affidavit of Mr Golshani filed on 22 December 2022;
(c)Outline of Case document filed on 17 January 2023.
No documents were tendered documents during the course of the trial.
Credit of Witnesses
The requesting mother was cross-examined by the solicitor advocate for the respondent father. The mother was a frank and forthright witness who directly answered questions asked of her and her responses were corroborated by contemporaneous documents. She did not attempt to craft answers in a manner that appeared self-serving and I consider her to be a witness of truth.
None of the mother’s other witnesses were required for cross examination and I accept their evidence as unchallenged.
The respondent father was cross-examined by counsel for the State Central Authority. He was often unresponsive to questions, evasive, and dismissive of the mother’s evidence. In particular, I found his evidence regarding the nature of child’s extended trip to Australia between late 2020 and mid-2021 to be implausible and contradicted by contemporaneous text messages. He did not impress as a candid or truthful witness and where the father’s evidence differs from the mother’s, I prefer the evidence of the mother.
Background
The requesting mother is aged 38 and is a dual citizen of Australia and Country F. She has resided in City G, Switzerland since early 2018. The respondent father is aged 41 and is also a dual citizen of Australia and Country F. He has resided in Australia since late 2018.
The parents married in Country F in 2006, separated in September 2020, although both were living in different countries and were divorced by an Australian Court in 2022.
The parents lived in Australia between 2009 and 2014. In 2014, the father was offered and accepted a three year job in the United Kingdom, where he subsequently moved. In 2015, the mother followed the father to the United Kingdom after she resigned from her job and sold the family apartment and car. In 2016, the mother received a scholarship to undertake tertiary studies at H University, which commenced in late 2016.
In late 2016, the family moved to Country J to enable the father to accept an employment offer from K Organisation. The mother’s plan at that time, was to move back to the United Kingdom in late 2016 to commence her studies.
In late 2016, the mother applied for another scholarship at L University. The eligibility criteria required the mother to live and work in City G, Switzerland. In late 2016, the mother successfully applied for a job at K Organisation (where the father worked). She was offered a one year position and commenced work the following month. She withdrew from the offer at H University.
In mid-2017, L University offered the mother a placement to pursue her studies, commencing late 2017. The mother deferred the commencement date until 2018, to enable her to give birth to the child. It was contentious whether the duration of her studies was to be three or four years.
The child, X was born in 2017 in Country J. The child is a dual citizen of Australia and Country F and also holds residency status in Switzerland.
Shortly after the family relocated to City G in 2018, the father accepted a job at M Organisation in Australia, which commenced in late 2018.
The mother took maternity leave from 2017 to 2018 before commencing full-time work and studies at L University. The father took parental leave from early 2018 until mid-2018, whereupon he moved back to Country J for a period of two months. In late 2018, he permanently relocated to Australia to pursue employment. He currently resides in Australia.
Since 2018, the mother and child have remained living in City G in the same family apartment. In late 2018, the child travelled with the mother to Australia to visit the father for approximately one month. Another visit took place between late 2019 and early 2020, with the mother accompanying the child.
In late 2020, the child travelled with his father to spend time with him in Australia. The agreement between the parents was that the mother would travel to Australia in late 2020 to collect the child and accompany him on the return journey to City G in early 2021. Due to Covid-19 travel restrictions the mother was unable to obtain flights to and from Australia until mid-2021 and the child remained with the father until his return to Switzerland in mid-2021.
The father asserts the discussions around this time culminated in an agreement for the child to live nine months with each parent and the child’s return to City G in mid-2021 was a visit. The mother denies any such agreement.
In late 2021, the parents agreed the father would collect the child from City G in early 2022 and the child would travel to Australia with his father, where he would remain until late 2022. The mother asserts in early 2022, when the father was in City G, the agreement reached in late 2021 was varied so that the child would return to City G in mid-2022. The mother relies on subsequent contemporaneous documents to support her assertion.
In early 2022, the child travelled to Country F with the father for a brief period before arriving in Australia a month later.
In mid-2022, the father sent a message to the mother advising that the child would remain with him in Australia and would not be returning to live in City G .The child has since remained in Australia with the father.
Thereafter the mother consulted the Swiss authorities and on 28 September 2022, the State Central Authority filed the Form 2 Application.
The hearing commenced on 6 February 2023.
JURISDICTIONAL FACTS
I will first address the issue of jurisdictional facts required to establish that the child was wrongfully retained in Australia.
The following jurisdictional facts were conceded by the father:
(a)The application was filed within one year after the child’s retention in Australia (reg 16(1)(b));
(b)the child born in 2017 is under the age of 16 years (reg 16(1A)(a));
(c)Switzerland is a convention country (reg 16(1A)(b));
(d)the requesting parent, the child’s mother possesses rights of custody in respect of the child and was exercising rights of custody (reg 16(1A)(d)); and
(e)the requesting parent was exercising rights of custody as at the date of retention and would have exercised those rights if the child had not retained (reg 16(1A)(e)).
The father did not concede that the child was habitually resident in Switzerland immediately prior the date of retention in Australia, as submitted by the State Central Authority. He contended the child was habitually resident in Australia.
RELEVENT LEGAL PRINCIPLES - HABITUAL RESIDENCE
The question of whether a person is habitually resident in a particular country is a question of fact, not an artificial legal construct, and requires an evaluation of all relevant circumstances.
The law in relation to habitual residence in Australia is well settled. The seminal authority is the High Court decision of LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”). French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:
23.… First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
…
25.… it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities". Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.
…
27.When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
28.… examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
…
34.… when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
35.It follows … that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
…
45.Moreover, the approach described in [Punter] accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
The authorities establish two fundamental propositions relevant to the Australian position as to habitual residence.
Firstly, the general rule is that one parents cannot achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility: see LK. Secondly, to find a person is habitually resident in a place, they must have generally lived there for an appreciable period.
In Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147 at [82]–[83] the Full Court of the Family Court stated the task of a judge was twofold:
82.In our view, the observations made by Beaumont and McEleavy sit very comfortably with what the High Court has said most recently in LK. Accordingly, we consider the task of the Judge was twofold. The first was to ascertain whether the parents had a shared intention that the child would live in Poland with a sufficient degree of continuity that their purpose could properly be described as settled. The second was to determine whether the period of time spent in Poland was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and Poland was such as to justify a finding he was habitually resident in that country.
83.In approaching this task, the Judge was obliged to construe the Regulations having regard to the principles and objects of the Convention, recognising “that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence”.
As explained below, the father conceded the date of retention of the child was 31 May 2022. I will therefore consider the child’s habitual residence as at that time.
In 2016, the family moved from the United Kingdom to City N, Country J, where the father accepted employment with K Organisation. The child was born in City N in 2017. Shortly prior to his birth, the mother, with encouragement and support from the father, applied to undertake a course at L University. In 2017, L University offered the mother a placement to commence in late 2017, which she accepted .The mother deferred the commencement date until 2018, in order to enjoy maternity leave with the child.
In early 2018, the family moved to City G to enable the mother to commence her studies. The parents relinquished the lease on their furnished two bedroom apartment in City N and moved all their belongings to City G. The parents entered into a rental agreement for a two-bedroom apartment in City G commencing in early 2018. The father contended the move to City G was for a period of three years, whereas the mother contended tertiary students generally require four years to complete studies. In any event the mother completed her studies in late 2022. According to the mother, at the time of the move to City G, both parents knew the mother and child would be living in City G for at least the next four years and that the father would obtain an extension of his contract at K Organisation.
In early 2018, the child commenced attending childcare at one of the L University childcare centres, with the consent of both parents. The child attended day care between April and December 2018 (nine months), January to December 2019 (12 months), January to September 2020 (nine months) and June to December 2021 (six months). He initially attended part time and then progressed to more days of care. The exposure to local language and culture started when he was less than one year old and commenced day care. The father continued to contribute to the day care fees following his move to Australia.
In early 2018, whilst employed with K Organisation, the father was offered a position with M Organisation in Australia, which he accepted although he deferred the commencement to late 2018. The father’s evidence was he and the mother considered Australia a better place to raise a family and for long term settlement, so he started looking for jobs in Australia, with the mother’s knowledge and approval. According to the mother, the father applied for the M Organisation position to use it as leverage to secure permanent employment with K Organisation.
The mother’s evidence was the father accepted the job offer from M Organisation without involving her in the decision-making process, there was no parental discussion about the family’s long-term plans until after the father relocated to Australia and there was no agreement about any arrangements until after separation in September 2020 when the father became determined to settle permanently in Australia.
During cross-examination the mother agreed she showed the father the advertisement for the M Organisation job in 2017. Her evidence was she said to the father during the course of his application “if you take this job and move to the other side of the world, leaving me alone with a baby here, I am not sure if I will ever forgive you”.
I accept and prefer the mother’s evidence about this issue, to the evidence of the father, particularly because of the statements at paragraph 88 of the mother’s affidavit of 20 January 2023 where she particularises examples of the father’s comments about the instability of his job at M Organisation and not deciding to settle in Australia prior to September 2020. She was not challenged about that evidence.
In late 2018, the father relocated to Australia. The mother and the child continued to live in the family apartment in City G.
Between late 2018 and late 2020, the child visited Australia on two occasions to visit his father. The first occasion was in late 2018 (23 days) and from late 2019 to early 2020 (1 ½ months). On each occasion, he was accompanied by his mother. The table at paragraph 25 of the father’s Form 2A Response describes the travel as “mother visited and brought child to spend time with [the] father”.
Around May 2020, the mother and father had discussions, both orally and via WhatsApp to arrange a time for the child to again visit his father in Australia. Agreement was reached the child would visit from late 2020 until early 2021, with the father collecting the child from City G in late 2020 and the mother travelling to Australia a few months later, prior to returning to City G with the child in early 2021. The agreement between the parents is reflected in the WhatsApp messages exchange between the parents on 26 and 27 of May 2020, which are annexed to the mother’s first affidavit and includes the following:
Mother:You wanted to spend 6 months with [the child], with this plan it will be 5 months… I wanted not to be away from [the child] for more than 2 months, with this plan it will be 3 months.
Father:2 months after you left
Mother: Who is quibbling now
Father:What 5 months?
Mother:From [late 2020] until [early 2021] will be 5 months
Mother:If [X] is not back in Switzerland in [early 2021], his [residence] permit will be terminated
Mother:He must be in Switzerland at least the last two days of January to get his permit extended.
Father:OK, in any case, [the child] should be here from [late 2020] so that he goes to daycare from the first of August, OK?
Mother: You mean the first of October?
Father:The first of October
Father:Until [early 2021]
(Form 2 Application, filed 28 September 2022, Pages 107–111)
Due to Covid-19, the borders in Victoria were closed and the mother was unable to obtain flights in late 2020, as had been agreed. In late 2020 the only flights the mother could obtain were for March 2021 and subsequently June 2021.
The following text message dated 14 December 2020 demonstrates the ongoing discussion about Covid-19 disruptions to international flights:
Mother:[Mr Golshani], the only available flight with reasonable duration and appropriate price is that I arrive in Melbourne [in March] and return with [the child] [the next day]
Mother: Is that ok? Should I buy this flight?
Father:Should I bring [the child] to the airport?
Mother:There’s no other choice
Father:ok
Father:I’ll pick him up in [late 2020]
Mother: ok
(Form 2 Application, filed 28 September 2022, Page 42)
At paragraph 25 of his Form 2A Response, the father does not refer to his perception of the child’s stay in Australia from late 2020 until mid-2021. Rather, he describes it as “Parties separated on or around this time”.
In late 2020, during Covid-19 lockdowns and whilst the child was in Australia visiting the father, the parents exchanged text messages on 31 December 2020:
Father:Hi,
I don’t want to annoy you. Of course [the child] would like to be with you. But you said yourself that due to our bad decisions, [the child] has to be raised in this situation. We can still do something to reduce the harm to [the child]. These are my reasons for [X] to stay here for the time beings.
1.Covid is widespread in Europe and nobody cares. This can be dangerous for [the child]. You had Covid yourself and know what I’m talking about. The situation is better in Australia and more support is provided.
2.[The child] is right now very attached to me. To bring him to airport and leave him is cruel and I won’t do it. I made a mistake when I said I’d do it. Experience shows that one has to avoid mistakes immediately otherwise it will become out of control.
3.The quarantine rules in Australia will probably still hold until next year. This means [the child] and I have to go through it again when we come back to Australia. This is not fair to us since we did it once and we don’t want to do it again. You also prefer not to go into quarantine.
4.[The child] is settled here. I saw how difficult it was for him when he didn’t know the language and had no friends. Now putting him in this situation again is [c]ruel. He himself understand this and sometimes says he wants to stay in Melbourne, or he wants to celebrate his birthday in Melbourne or says that one of his friends must be present at his birthday party. Or he says that I have to go to Switzerland with him. He has grown enough that one cannot trick him or expect him to forget.
5.If you want to separate, no problem. But if you want to stay in Europe with [the child], it is cruel to me and [the child] since we cannot see each other. If [the child] is your priority, move back to Australia. He will have access to both of us and suffers less. We can agree on custody. But Europe and Australia and not reconcilable and one of us must be separated from [the child]. I want to try to be with [the child].
6.My suggestion is for you to arrange (academic) visit or take holiday and come here to stay with [X] for a while. He will be happy. This means prioritizing [the child]. I will pay for your quarantine fees, you should only change your ticket.
You know that raising [the child] alone is not easy and I am not doing this out of revenge. I’ll do it for [the child’s] peace. You cannot expect me and [the child] to bear the consequences of your decision and you choose the easy way out.
Mother: In summary, you decided to break all our agreements?
(Form 2 Application, filed 28 September 2022, Page 46) (Bold emphasis added)
During the proceeding, the father asserted the agreement between the parents somehow changed from the child residing primarily with his mother in City G and visiting the father in Australia, to an agreement whereby the child would spend nine months with each parent. He relies on his “hope” of the child residing permanently in Australia, which he deposes he held in late 2020.
At paragraph 31 of his affidavit, the father attempts to rely on the new agreement, and refers to him allowing the child to go to Switzerland for a nine month “visit” from mid-2021 to early 2022.
As can be seen from the text exchange of 31 December 2020, the mother did not agree to any such arrangement and I find accordingly. Her collection of the child from Australia in early 2021, in accordance with the agreement reached between the parents in mid-2020, was hampered by Covid-19 and her inability to secure international flights, and not because of any agreement the child would live nine months with each parent. I also take into account an exchange of text messages between the parents on 29 November 2021, where the mother denies any long term agreement, which is referred to below.
Eventually the mother managed to travel to Australia in mid-2021, collected the child and returned to City G with him where he resumed living with his mother in the family apartment, attended day care in City G and was assigned a German language teacher. He also received German language lessons once every two weeks at the day care centre.
In November and December 2021, the parents commenced negotiating by telephone and text message the terms for the child to spend time with the father in Australia. The parents agreed the child would visit the father in Australia on a temporary basis, from early 2022 and return to City G in late 2022. The return date was subsequently amended to mid-2022.
The mother insisted that during the visit to Australia the child would have ongoing exposure to a Swiss/German language to enable him to enter school when he returned to Switzerland. As can be seen from the text messages below, the father agreed he would “do [his] best to get him a German tutor”.
Between 20 November 2021 and 1 December 2021, the parents exchanged a number of WhatsApp messages regarding the upcoming arrangements for the child’s travel to Australia in early 2022.
On 20 November 2021, the parents had the following WhatsApp message exchange:
Father:My flight is booked for [early 2022] and as we agreed I’ll pick up [the child] for his time with me. 9 months in Australia 9 months in [City G]. If you don’t let [the child] come with me to Australia I’ll get a court order.
Mother:[The child] has to be back in time to start kindergarten here in [City G]. I will need guarantee that he will be that he will be back in time and that he will have German classes. I have no objection for [the child] to spend time with you anywhere as long as these conditions are met.
Father:If 1 pick him up in [early 2022] you can get him back 9 months after. If you want him back earlier then I am happy to pick him up before [early 2022].
(Form 2 Application, filed 28 September 2022, Pages 113–114)
The parents have the following further conversation on 26 November 2021:
Mother:[The child] can come with you in [early 2022]. All I need is guarantee that he will be back in [mid-2022]. If I tell you that I take [X] and you can only see him in the country where I live, would you let him go with me?
…
Father:If you want him in [mid-2022] you can but I'll pick him up in [early] 2023 for his preschool
(Form 2 Application, filed 28 September 2022, Page 121)
A few days later, another exchanged occurred between 29 November and 1 December 2021:
Father:I have been thinking about your proposed pick up date for [the child], and here's my response:
1.my pickup date in [early] 2022 is nonnegotiable since I already planed the trip.
2.I can work with your proposed pickup date in [late] 2022 / [early] 2023 but we need to agree on the long term plan starting from [early] 2023…
Mother:I have today until 17:00 [City G] time to give the required notice to end [the child’s] daycare contract from [early 2023]. I will do it, provided that the following conditions are agreed upon:
1.I will pick up [the child] in [late] 2022.
…
3.Since [the child] will not be here in [mid-2022] to start school, I have to deregister him from city of [City G]. Therefore, before my pick up date in [late] 2022, you have to go to Swiss embassy in Canberra and apply for a new visa for him. Otherwise, he cannot enter school when he arrives in Switzerland.
4.He has to have enough exposure to Swiss/German language while in Melbourne so that he can enter school when he is back…
Father:… I do my best to get him a German tutor.
(Form 2 Application, filed 28 September 2022, Pages 122–125)
Lastly, the mother sent the following message to the father on 1 December 2021:
As we agreed on the phone conversation, I'll give notice to [the child’s] daycare today. He will spend [early] to [late] 2022 with you. In [late] 2022 I will pick him up. Thanks for agreeing to finding him a German tutor.
(Form 2 Application, filed 28 September 2022, Page 127)
As to the father’s contention the parents had a revised long term arrangement for the child, on 1 December 2021, the parents exchanged messages (in context of the early 2022 visit to Australia) as follows:
Mother: And what about the pick up date?
Father:That will be part of the long term plan
Mother:There is no long term plan discussion right now. I'll have that discussion when I have my next job. Right now, I want to know about the duration of this visit.
(Form 2 Application, filed 28 September 2022, Page 126)
The preceding WhatsApp message makes it clear, from the mother’s perspective, there was no long term plan about the child’s living arrangements.
Counsel for the State Central Authority submitted the message exchange between the parents demonstrated the child’s trip to Australia in early 2022 was a visit with various conditions imposed by the mother and that there was never any agreement for the child to live nine months with each parent, as contended by the father. I accept that submission.
According to the mother, in early 2022 when the father was in Switzerland to collect the child, the parents had verbal discussions and reached a further agreement that the child would be returned to Switzerland by mid-2022, rather than late 2022.
The mother wanted the child to return to City G before mid-2022, prior to the commencement of the school year, to ensure his Swiss registration would remain valid, he would be able to attend school and he would not need to reapply for residency in City G. The child has been a registered resident of City G since 2015 and his registration remains valid.
On 15 February 2022, the mother submitted a form to the City G Municipal office “Temporary absence from the country without giving up residence”. The form advised the relevant authorities the child would be temporarily absent from his place of residence for a period of six months, between early 2022 and mid-2022 (Form 2 Application, page 141).
At the time of the child’s departure to Australia, the mother provided the father with a signed document dated 24 February 2022, titled “Consent for a child travelling with his father” (Form 2 Application, Page 57). The consent form provides for the duration of the child’s visit to Australia from early 2022 and mid-2022 and was required to enable the father to depart Switzerland with the child.
Ironically, the father sought to rely on the consent form to assert the mother took no active steps to prevent the child from leaving Switzerland and indeed consented to the child’s departure, which she obviously did, but for a limited period. During cross-examination, the father’s evidence was he was only provided with the consent form 48 hours prior to departure and was therefore unable to negotiate the dates of travel, but reluctantly accepted it’s terms as having some time with the child was better than none at all. Sensibly, the father’s solicitor advocate did not attempt to rely on the regulatory exception of consent.
During cross-examination, the father conceded at the time he departed Switzerland with the child in early 2022, he had already formed the subjective intention to permanently reside in Australia with the child. That admission is relevant to both habitual residence and date of retention.
The father contended the mother did not have any intention to permanently settle in Switzerland, after the conclusion of her studies. He relied on an email from the mother dated 16 May 2022:
On top of that, I have explained to you that, in case I decide to move to Australia permanently, this will happen early next year (2023). In this case, it is best if [the child] comes back to Switzerland in [mid-2022] so that [the child] and I can spend some meaningful time together prior to this move. When I move back to Australia, it is in [the child’s] best interest to live with you while I settle there. Therefore to honour our agreement for [the child] to spend 50% of his time with each parent, it is best if [the child] spends the last few months of 2022 with me.
(Form 2 Application, page 24)
At paragraph 193(b) of her January 2023 affidavit, the mother provided relevant context to the email. She deposed to a conversation with the father in early 2022 during which she said “I’ll give it until the end of April 2023 to find a job in Switzerland. If I don’t have a job by then, I’ll move to Australia”.
The mother contended the email referred to a contingency plan, in the event she had not secured employment in City G by April 2023. The mother ultimately received a job offer in mid-2022, prior to the completion of her studies and received confirmation of permanent employment on a full-time basis as at late 2022 (Affidavit of the mother, filed 20 January 2023, Annexure “AJ”). I accept the mother’s evidence about her contingency plan as it is plausible and because of my findings about her credibility as a witness.
Discussion
During her opening address, the solicitor advocate for the father conceded that the child was habitually resident in Switzerland until late 2020. Thereafter, she submitted his habitual residence changed to Australia. The reason proffered for the change of habitual residence was the child’s time in Australia, when he remained here because of Covid-19 related border closures. It was submitted he developed a connection to the community during that time, his English fluency improved and he spoke Country F language. She was unable to point to any evidence about change of the mother’s intention, which is relevant to a finding of habitual residence.
It is difficult to reconcile that concession with the father’s evidence about the joint intention of the family when they moved to City G, his evidence about having discussed his job application to M Organisation with the mother and the discussions and decision that ultimately the family would relocate to Australia at the conclusion of her studies.
In any event, I accept the mother’s evidence the family moved from City N to City G to enable her to complete her studies irrespective of whether her studies completed within three or four years. I also accept her evidence about the circumstances of the father’s application to M Organisation and in particular her comments after reviewing the father’s application, to the effect that if he moved to the other side of the world and left her alone with the baby, she was not sure she would ever be ever forgive him. I accept her evidence because she impressed me as a witness of truth and it is inherently plausible that a woman in her situation who had a young baby and who had recently committed to tertiary study, would express such sentiments when faced with the prospect of her husband moving to the other side of the world.
After the father’s departure for Australia in late 2018 the child continued to reside with the mother in City G and was integrated into the community. Indeed the father describes his return to Switzerland on two occasions, late 2018 to early 2019 and late 2019 to early 2020, as visits. I can infer from that description that the father intended the child to remain in the care of the mother in City G, as had been the original intention of the family when they moved from City N to City G.
Because of the father’s concession that the child was habitually resident in Switzerland until late 2020, it is necessary to assess the intention of both parents and the actual living circumstances of the child after that time.
There was no dispute the parents agreed the child would travel with the father to Australia in late 2020 and the mother would travel to Australia a few months later, prior to returning with the child to Switzerland in early 2021.
It was also common ground that Covid-19 restrictions severely impacted international air travel and that the mother was unable to obtain an affordable flight to Australia until mid-2021. The exchange of messages between parents in December 2020, which are referred to earlier in these reasons, demonstrates the mother was making concerted efforts to travel to Australia to collect the child, but was thwarted in her attempts by Covid-19. She eventually managed to travel to Australia in mid-2021.
The father was unable to point to any objective evidence the mother’s intention about the nature of the visit changed during the time the child was in Australia, simply because the visit was extended by Covid-19 circumstances, which were completely outside the control of the parents. I find the mother’s intention at that time was that the child would remain living with her in Switzerland and would be habitually resident in that country. As to the father’s intention, I find his intention was to abide by the agreement reached by the parents prior to late 2020, so that the child’s habitual residence would be Switzerland, however once the child was delayed in Australia due to Covid-19, his intention became more ambiguous and opportunistic.
During late 2021, the parents entered into further discussions about the child’s travel to Australia. The mother’s evidence during cross examination was that she agreed to the child visiting the father again because she had obtained legal advice that the child would likely be permitted to travel by a court.
The father’s assertion that sometime around the end of 2020 the parents reached an agreement for the child to live with each party for nine months is contradicted by both the mother and the contemporaneous documents. The mother’s position was there was never any such agreement, which is corroborated by the messages between the parents. I refer to the text messages between the parents on 1 December 2021 and find there was no such agreement. The father’s attempt to assert the agreement does not sit comfortably with the documentary evidence nor with the mother’s plausible evidence, which I prefer to that of the fathers.
As to the intentions of the parents’ relevant to habitual residence, I find that as from mid-2021 the father’s intention was for the child to be habitually resident in Australia, but the mother’s intention was unequivocally for the child to remain habitually resident in Switzerland. The parents’ respective intentions remained consistent until immediately before the child’s retention in mid-2022.
Another disagreement is whether the visit to Australia in early 2022 was to conclude in mid‑2022 or late 2022. I accept the initial agreement was for the child to visit his father until late 2022. The mother’s intention, as corroborated by the text messages was clearly for the child to visit the father in Australia and return to live with her in City G where he would commence school. I find the agreement for the child to visit Australia had no bearing on the mother’s steadfast intention that the child would remain living with her in Switzerland. That is particularly so because of her subsequent objections to the child returning in late 2022, as opposed to mid-2022.
According to the mother, and I accept, when the father arrived in Switzerland to collect the child, there was a conversation about and subsequent agreement reached for the child to return to Switzerland in mid-2022. The reason for the earlier return date was to ensure the child’s residency registration would not be adversely affected and he could commence his education in City G at the start of the new school term.
Again the contemporaneous documents relied upon by the mother, including the “Temporary absence from the country without giving up residence” form which the mother submitted to the City G authorities and the Consent to travel form, which she provided to the father to enable the child to exit Switzerland, demonstrate the mother anticipated the child would return to her in mid-2022 and not late 2022. I do not accept the suggestion by the father that there was something underhanded in the manner in which he was provided with the consent form. The mother’s evidence about this was direct and credible.
As to the circumstances of the child, the child lived in the family apartment in Switzerland from early 2018, was enrolled in day care from 2018 to 2020 and from mid-2021 to early 2022. The enrolments occurred with the consent and knowledge of the father and the child was allocated a place for kindergarten in mid-2022, again with the knowledge and consent of the father.
The child speaks both English and German and apparently some Country F language, and the mother has demonstrated, in the contemporaneous messages, her concern that the child remain fluent in German whilst absent from Switzerland. The child has benefitted from integration in Switzerland including since early 2018 living in the former family apartment with his mother, continuing to hold Swiss residency registration and healthcare, attending day care and engaging with a German tutor.
The evidence of the child’s integration into Switzerland, as attested to by the mother’s witnesses, was not challenged and I accept that evidence.
On the other hand, the father contends the degree of integration of the child in Australia is sufficient to establish habitual residence in Australia. I accept the father’s evidence about the child’s daily life in Australia. The father has attempted to include the time spent in Australia subsequent to retention, as relevant to consideration of the child’s habitual residence, when it is not. For the purpose of the regulations (reg 16(1A)(b)), the relevant date for consideration of habitual residence is immediately before the child’s removal to, or retention in Australia.
Objectively, the child lived in City G with his mother from the age of less than six months and remained there for most of his life prior to retention. The two earlier visits to Australia were exactly that, and were of limited duration. The longer time in Australia between late 2020 and mid-2021 was not with the explicit consent of his mother, but due to closure of international borders. Although he left Switzerland with the father in early 2022, he travelled to Country F and did not arrive in Australia until a month later.
Prior to his retention in Australia in mid-2022, the child has lived in City G since early 2018, a period of just over four years, with visits to Australia of around 14 months duration. I consider his time living in City G constitutes an appreciable period.
I find the child has been integrated to a high level in Switzerland from early 2018, when he was an infant and that the only periods of prolonged absence from Switzerland, immediately preceding the child’s retention in Australia, arose not from a settled intention, but to circumstances outside the parents control arising from Covid-19 restrictions.
After considering and weighing all of the relevant factors, including parental intention and the statements in DL, and the child’s integration and daily life and time spent in both countries, I conclude that immediately prior to retention, the child was habitually resident in Switzerland.
REPUDIATORY RETENTION
I have found, contrary to the father’s submission, the agreement between the parents as at early 2022 was for the child to live with his mother in City G and to visit his father in Australia, from early 2022 until mid-2022 and not to live nine months with each parent on a rotating basis.
Counsel for the State Central Authority submitted the evidence clearly establishes there was a repudiatory retention of the child by the father in breach of the parents’ agreement for the child to return from Australia to Switzerland, either in mid-2022 or late 2022 and that either occurred in early 2022 or mid-2022.
Repudiatory retention occurs when a retaining parent forms a subjective intention not to return the child to the state of habitual residence at the expiration of the period which was agreed between the parents as the date upon which the child would be returned: see In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1.
Counsel for the State Central Authority relied upon both the father’s admission during cross‑examination that in early 2022, he formed the subjective intention not to comply with the prior agreement to return the child to City G in either mid-2022 or late 2022 and the following WhatsApp message sent by the father to the mother on 31 May 2022:
I'm going to get sole custody of [X]. Shared custody is not practical at the moment and I don’t think another move is in [X’s] best interest. He likes it here and wishes to stay in Melbourne, and I'm going to grant his wish. If you moved back to Australia we can negotiate on shared custody then. This is my final decision now and I won't negotiate. You can either agree on giving his custody to me now or I take the matter to court. If latter happens then you will have to go through court to get shared custody when you're back in Australia.
(Form 2 Application, page 36) (Emphasis added)
Counsel for the State Central Authority submitted not much turned on whether the date of retention was early 2022 or mid-2022. I agree with her submission.
During the trial, the father’s solicitor advocate conceded there was a repudiatory retention in mid-2022 and I therefore accept that date as the date of retention of the child.
Have the jurisdictional facts been satisfied
Consequential upon my finding that the child was habitually resident in Switzerland prior to his retention in Australia in mid-2022, and the father’s concession the child was retained in mid-2022, I am satisfied that all the requirements of reg 16(1A) have been satisfied. I find his retention, which occurred in mid-2022 was wrongful.
REGULATORY EXCEPTIONS TO RETURN
Having determined that the child is habitually resident in Switzerland, and that the child’s presence in Australia on the date of retention was wrongful, I will now address the exception to return raised by the father.
Grave risk that the return of the child would expose the child to physical or psychological harm (reg 16(3)(b))
Relevant legal principles
The leading authority in Australia pertaining to this regulatory exception is DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401 (“DP”). Gaudron, Gummow and Hayne JJ stated:
39.… Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry…
…
41.… On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.”
42.Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43.Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44.These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
45.That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
In DP at paragraph [130], his Honour Justice Kirby, in a dissenting judgment stated:
… Inevitably…the application of the exception provided for in reg 16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law…It should not therefore be surprising that they (the exceptions) have only been invoked successfully in comparatively rare instances.
Further at paragraph [132], his Honour Justice Kirby considered the language used in reg 16(3)(b) and said:
The adoption of the word “grave” to qualify “risk” plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not “grave”) risk of the kinds of harm contemplated. Similarly, the use of the word “otherwise” in reg 16(3)(b) indicates that the types of “physical or psychological harm” referred to must also be such as to place the child concerned in an “intolerable situation”. Therefore, the language in question, as well as its appearance in a provision enumerating limited exceptions to the general rule, make it clear beyond argument that orders of return will be made to uphold the principal object of the law in circumstances where, were the matter simply a custody dispute (however described), in all likelihood, on the evidence provided, the child's current arrangements would not be altered. Only a circumstance where the party resisting the order can establish, in the context presented by the ordinary rule of return, that that result would expose the child to a grave risk that was “intolerable … extreme and compelling”, will invite the application of the exception.
(Citations omitted).
Ryan and Aldridge JJ in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [58] referred to comments of Gaudron, Gummow and Hayne JJ, at paragraph [40] of DP:
So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 at 1154, the Court of Appeal stated that:
…There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which may be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence”
In State Central Authority & Sigouris [2007] FamCA 250, Bennett J said at [79]:
In order for the respondent mother to make out the exception under Regulation 16(3)(b) of the regulations (Article 13(b) of the Convention), it is necessary to establish at the risk of exposure to physical or psychological harm or the children being placed in an intolerable situation in the event of their return to Greece forthwith is not only very real but “grave”.
Discussion
At trial, the basis of the father’s argument about the grave risk of harm was his fear the mother may relocate to Country F at some unspecified time in the future. His affidavit also refers to the child’s limited German language skills and risk of possible psychological harm if he is returned to City G, because of his inability to communicate. The latter asserted risk was not pursued, and even if it had been, there is no evidence to support the bare assertion other than the child pulled out some of his hair. Having regard to the authorities, and the level of risk required to sustain the regulatory exception of grave risk of harm, I would not have been persuaded that constituted a grave risk of harm to the child.
The father’s concern for the child arises from the mother’s Country F citizenship, her lack of Swiss citizenship, some of her family members live in Country F and the fact that the mother visited Country F in 2018 and 2022. Ironically, the father travelled to Country F with the child in early 2022.
Counsel for the State Central Authority vehemently opposed the submissions on behalf of the father. Contrary to the father’s concerns, the mother’s evidence was she was concerned about the father’s threats he would kidnap the child and take him to Country F, where custody rights solely belong to the father.
The mother was cross-examined about her future residency proposals. Her unequivocal evidence was she had no intention to permanently reside in Country F as she currently has a permanent job in Switzerland with visa and residency rights linked to her employment. She will also be eligible to apply for permanent residency in another two years. As for visiting Country F, the mother stated she is yet to obtain a divorce in Country F and consequently would not consider a visit there because it is almost impossible for a mother to get custody rights for a child. Travel to Country F would not be worth the risk.
I accept the mother’s evidence that she does not have any intention whatsoever of living in Country F or visiting there in the immediate future. Her reasons were compelling and obvious. She has resided in the same City G apartment since early 2018, has full-time employment and is well settled in City G. The mother’s evidence was she could remain in Switzerland even if she were to not be granted permanent residency, so long as she was able to provide evidence of her financial stability.
I find that the father has failed satisfied me to the requisite standard, or at all, that there is a grave risk of harm to the child if a return order is made and this defence must fail. Thus, there is no need to consider the circumstances in which my discretion to return is enlivened.
Conditions to return – reg 16(6)
As I am required, I intend to make an order for the immediate return of the child to Switzerland.
The solicitor advocate for the father sought leave of the Court to make submissions at a later date for any conditions to return as she had not yet been able to obtain any instructions as at the date of trial.
I will consider an application, if made, when I deliver these reasons.
However, this is not a matter where the father asserted at trial any grave risk of harm to the child if he were placed in the care of the mother, nor did he assert any parental incapacity on the part of the mother. His grave risk assertion was confined to his fear the mother would relocate to Country F with the child at some time in the future. I have found the father’s fear is contrary to the mother’s evidence, which I accept and indeed the mother’s evidence was, it was the father who had threatened to abduct the child to Country F.
Counsel for the State Central Authority informed the Court that should an order be made for the child’s return to Switzerland, the requesting mother would travel to Australia to accompany the child’s return to Switzerland. The child will thereafter return to his family home and resume his life in City G. There does not seem to be any reason for conditions to return if the mother travels to Australia to collect the child, as she has advised she will do.
Passport
Counsel for the State Central Authority alerted the Court to the fact that the child’s Australian passport expired in late 2022. She sought that an urgent request be made to the Australian Central Authority for an expedited Australian passport to be arranged for the child, prior to his return to Switzerland. The father did not oppose to a new Australian passport being issued for the child.
I therefore intend to make orders providing for an expedited passport application to be made, and request the State Central Authority to assist, if possible, and for the child’s new passport to be released to the mother.
I will make orders accordingly.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 23 March 2023
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