Secretary, Department of Families, Fairness and Housing & Ivanovska
[2025] FedCFamC1F 39
•30 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Families, Fairness and Housing & Ivanovska [2025] FedCFamC1F 39
File number(s): MLC 12230 of 2024 Judgment of: CARTER J Date of judgment: 30 January 2025 Catchwords: FAMILY LAW – PARENTING – Where the father seeks the return of the child to the Netherlands pursuant to the Hague Convention – Where the mother asserts grave risk of harm – Where the mother asserts intolerable situation – Where the mother may not accompany the child back to the Netherlands in the event that a return order is made – Where the exception is not made out – order for return made. Legislation: Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: De L v Director General, NSW Department of Community Services v Anor (1996) FLC 92–706
Department of Families, Fairness and Housing v Cullen (No 2) [2023] FedCFamC1F 176
Director-General, Department of Community Services v Harris (2010) 43 Fam LR 170
DP v Commonwealth Central Authority (2001) 206 CLR 401
Gsponerv Director-General of Community Services (Victoria) (1989) FLC 92–001
Harris v Harris (2010) FLC 93–454
In re B (Children) [2022] EWCA Civ 1171
Re C (A Minor) (Abduction) [1989] 1FLR 403
Re C (Abduction: Grave Risk of Psychological Harm) (1999) 1 FLR 1145
Secretary, Department of Communities and Justice v Handley [2023] FedCFamC1F 1063
Walpole v Secretary, Department of Communities and Justice (2020) 60 Fam LR 409
Division: Division 1 First Instance Number of paragraphs: 90 Date of hearing: 20 January 2025 Place: Melbourne Counsel for the Applicant: Mr Moore Solicitor for the Applicant: Legal Services Branch, Department of Families, Fairness and Housing Counsel for the Respondent: Ms Foy Solicitor for the Respondent: Umbrella Family Law ORDERS
MLC 12230 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
Applicant
AND: MS IVANOVSKA
Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
30 JANUARY 2025
THE COURT ORDERS THAT:
1.The child X, born 2020 (“the child”), be returned to the Netherlands pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
2.The respondent mother (“the mother”) be at liberty to accompany the child to the Netherlands.
3.The mother notify the applicant in writing within seven days of these orders as to whether she intends to accompany the child to the Netherlands.
4.In the event the mother elects to accompany the child:
(a)the requesting father, Mr B, (“the father”) do all acts and things necessary to ensure the sum of 7,000 EUR is paid into the trust account of the mother’s solicitors;
(b)the child leave the Commonwealth of Australia within 14 days of compliance with Order 4(a) of these orders by the father;
(c)Order 5 of the orders made 30 September 2024 is discharged and the mother or her nominee authorised in writing is permitted to collect the child’s passport immediately upon receipt of a sealed copy of this order;
(d)the mother notify the applicant of her proposed date of departure as soon as practicable upon making such arrangements and within 24 hours of booking the flights provide a copy of the flight itinerary to the father and to the applicant;
(e)the applicant notify the Netherlands Central Authority of the mother and child’s date of departure; and
(f)the father is hereby restrained from making any application for parenting orders relating to the child to a court with competent authority in the Netherlands for the first 28 days following the child’s return with the mother to the Netherlands.
5.The mother is at liberty to use the funds paid by the father into trust as follows:
(a)prior to departing from Australia to secure economy flights for the mother and child from Melbourne airport to the Netherlands with such transits to be only through Country D and/or countries which are both members of the European Union and in respect of which the 1980 Hague Convention on the Civil Aspects of International Child Abduction is in force with the Netherlands; and
(b)following the arrival of the mother and the child in the Netherlands as confirmed by the Netherlands Central Authority via the applicant, to accommodate and support herself and the child in the Netherlands.
6.In the event the mother elects not to accompany the child, or fails to make an election in accordance with Order 3 herein the said child leave the Commonwealth of Australia on or before 13 February 2025 and to facilitate same;
(a)the father’s obligations pursuant to Order 4(a) are discharged;
(b)the father is at liberty to travel to Australia to collect the child, at his expense;
(c)the father notify the applicant of his proposed date of arrival in and departure from Australia as soon as practicable upon making such arrangements and provide a copy of the flight itinerary to the mother and to the applicant;
(d)the mother do all acts and things necessary to cooperate with the applicant to facilitate the return of the child, including but not limited to preparing the child’s clothes, toys, medication, and other belongings with same to be provided to the father at the handover pursuant to Order 6(e) herein;
(e)the mother cause the child to be delivered to the Melbourne Registry of the Federal Circuit and Family Court of Australia (Division 1) Child Minding Centre at such date as is nominated by the applicant and immediately leave the Court complex, with the child thereafter to be placed in the care of the father;
(f)Order 5 of the Orders made 30 September 2024 be hereby discharged upon the father’s attendance at the Melbourne Registry and the registry release to the father any and all passports held at the registry in the name of the child; and
(g)The applicant notify the Netherlands Central Authority of the child’s date of departure.
7.Pending the child’s departure from the Commonwealth of Australia for return to the Netherlands, the mother continue to be restrained and an injunction issue restraining her 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;
(c)to be removed from Victoria;
(d)to reside anywhere other than his present residential address, being E Street, Suburb F, Victoria or any other residence at which the applicant has agreed that the said child may reside.
8.Order 7 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 the Netherlands AND IT IS REQUESTED that the Australian Federal Police remove the name of the child, X, born 2020 from the Airport Watch List, and:
(a)upon the mother presenting with the child to board the nominated flight to the Netherlands pursuant to the itinerary referred to in Order 4(d) of these orders; or
(b)upon the father presenting with the child to board the nominated flight to the Netherlands pursuant to the itinerary referred to in Order 6(c) of these orders.
9.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.
10.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.
11.Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
12.All applications be otherwise dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CARTER J
INTRODUCTION
This is an application by the State Central Authority, Secretary to the Department of Families, Fairness and Housing (“the applicant”) filed on 26 September 2024 seeking the return to the Netherlands of the child, X born 2020 pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent is the mother of the child. The requesting parent is the father. He lives in the Netherlands.
In this matter there is no dispute as to the existence of the requisite jurisdictional facts as prescribed in reg 16(1A) of the Regulations. The application was also brought within 12 months of the child being wrongfully retained in Australia. I am satisfied:
(a)the convention is in force between Australia and the Netherlands;
(b)the application was filed within one year after the child’s retention in Australia;
(c)the child is under 16;
(d)the child was habitually resident in the Netherlands immediately before his removal to and retention in Australia;
(e)the father had rights of custody in relation to the child under Dutch law;
(f)the retention of the child in Australia is in breach of those rights of custody; and
(g)the father was actually exercising those rights, or would have, but for the retention of the child in Australia.
The proceedings focussed on the mother’s assertion that there is a grave risk that returning the child to the Netherlands would expose him to physical or psychological harm or otherwise place him in an intolerable situation. This exception is articulated at reg 16(3)(b). The mother did not assert any other exception to return.
The exceptions to mandatory return are to be read in the context of the fundamental obligation under the Regulations to return the child to its place of habitual residence. If an exception is made out, the Court’s discretion as to whether or not to order the return of the child is enlivened.
As noted by Strum J in Department of Families, Fairness and Housing v Cullen (No 2) [2023] FedCFamC1F 176 at [2];
…it is important to recall, the Regulations implement into law in Australia this country’s obligations under the Convention on the Civil Aspects of International Child Abduction (“Convention”) signed at The Hague on 25 October 1980, pursuant to s 111B of the Family Law Act 1975 (Cth) (“Act”). The Convention recites, at the commencement thereof that the signatory states desire (inter alia) “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence”. Further, in proceedings under the Regulations, the best interests of the child are not the paramount consideration, although they may be of relevance in the event a discretion not to return the child is enlivened. Rather, such proceedings are merely to determine the forum in which parenting issues in relation to the child will be litigated by the child’s parents.
Evidence and documents relied upon by the parties
The applicant relied upon the following documents:
(a)Form 2 Application filed 26 September 2024 containing, inter alia:
(i)an affidavit of Ms G dated 26 September 2024;
(ii)the application made for the child’s return;
(iii)an affidavit of the father dated 9 September 2024;
(iv)a supplementary affidavit of the father also dated 9 September 2024; and
(v)an affidavit of Ms H (legal officer with the Dutch Ministry of Justice and Security at The Hague) dated 24 September 2024.
(b)three affidavits of the father dated 10 December 2024 (responding separately to the mother’s affidavit, the affidavit of the maternal grandmother and the affidavit of the maternal uncle);
(c)an affidavit of Ms J filed 16 December 2024 annexing:
(i)an affidavit of Ms H dated 10 December 2024 and annexures to that affidavit; and
(ii)documents providing information about existing legal protection mechanisms for victims of family and domestic violence in the Netherlands.
(d)an affidavit of Ms J filed 16 December 2024 annexing:
(i)an affidavit of the father dated 10 December 2024; and
(ii)a number of translations of annexures to previously filed affidavits; and
(e)an Outline of Case document filed 16 December 2024.
Only the father was required for cross examination.
The mother relied upon the following documents:
(a)Form 2A Answer and Cross Application filed 26 November 2024;
(b)affidavit of the mother filed 6 December 2024;
(c)affidavit of Mr K filed 6 December 2024;
(d)affidavit of Ms L filed 6 December 2024; and
(e)Outline of Case document filed 13 January 2025.
The mother, her mother and brother were all required for cross examination.
A regulation 26 report was prepared by Court Child Expert Ms N, dated 2 December 2024. Ms N was also required for cross examination.
Credit of witnesses
Both the mother and father appeared to be reasonably forthright in their evidence. At times they each had to be directed to answer the question asked. The maternal grandmother and maternal uncle also appeared to give credible evidence. I note the maternal uncle (and mother) inaccurately deposed that the mother spoke no Dutch. Under cross-examination he said he meant she spoke limited Dutch.
The assessment of the veracity or otherwise of the witnesses was impacted by the fact that the mother, father and maternal grandmother gave evidence via interpreters. I also note that there are cultural factors that may have impacted the quality of the evidence, particularly that given through interpreters.
Background
The father is 39 years old. The mother is 30 years old. They are both from Country M and married there in 2017. This marriage was arranged by their respective families.
The father had been living in the Netherlands since 2009. He is a Dutch citizen. He works in hospitality.
The mother is not a citizen of the Netherlands. Her visa will not lapse until sometime in 2026. The mother said in her responding material that there are certain conditions she needs to meet to retain her visa in the Netherlands and there may be issues with her ability to return. However no submissions were made that there would be any impediment for the mother to return and this was not a matter ventilated at trial.
After the parties were married, the mother moved to the Netherlands. She travelled there on a partner visa in about mid-2017. By that time she had sat and passed the Civic Integration Exam conducted by the Netherlands’ authorities. The mother acknowledged this required her to demonstrate a basic proficiency in Dutch – which she had been studying for some months before the exam.
It is the mother’s evidence that the father subjected her to coercive control shortly after she arrived in the Netherlands. She said he did not allow her to leave the house without his approval, and never allowed her to go out alone. She also deposed that the father subjected her to physical and verbal assaults. She said she was too frightened to report his abuse as the police would not believe her, and she would be deported back to Country M.
According to the police records produced by the applicant, police attended at the home in mid-2019. Those records record the incident as “fight/argument (no follow-up)”. This is inconsistent with the father’s evidence that the police were never called to the home.
In 2019/ 2020 the mother undertook one year of a three-year vocational course in the Netherlands. That course was conducted in Dutch. She attended classes two to three days each week. The mother passed the subjects she sat. There is no suggestion that the father accompanied her to those classes. The mother’s affidavit evidence is not correct where she deposed he never allowed her to leave the house without him.
The child was born in 2020 in the Netherlands.
It is the mother’s evidence that when the child was around three months old the father took the child and mother to the police station and accused her of neglecting the child. This is denied by the father and there is no record of this in the police records produced by the applicant.
It is the mother’s evidence that after the child was born, the father’s abusive behaviour towards her escalated. She said he regularly pulled her hair, banged her head into walls, spat in her face, kicked her and on one occasion pushed her to the floor and stood on her neck. She said the abuse occurred in front of the child on many occasions. She said the father threatened that she would be deported if she reported the abuse, leaving the child with the father. She said he also threatened to harm their child and kill her.
The mother’s brother deposed that “on more than one occasion” the father contacted him by telephone and admitted to having assaulted the mother. The father denied any such conversations.
At some stage the child commenced attending kindergarten.
In 2022 the mother travelled with the child to Country M to visit her family for a couple of months. It was the mother’s evidence that she had to beg the father to let her travel at that time.
Upon her return, the mother commenced working in hospitality. It is her evidence that the father did not want her to be in paid employment and this was a source of argument between them. She said he did not provide her with funds and accordingly she needed to generate money to meet her needs. It is not in dispute that the father cared for the child while the mother was at work and that he did not accompany her to or from work. The mother said she worked nightshift and felt safer leaving the child home when both the child and the father would be asleep.
At some point in 2022 the mother’s brother travelled to the Netherlands to visit the family. He stayed at the home. He acknowledged in his oral evidence that he did not observe directly any abusive behaviour by the father towards the mother. He had also previously stayed with the family in 2019 for about two months. Again, there was nothing in his affidavit material to suggest he witnessed any abusive or controlling behaviour perpetrated by the father against the mother during that earlier visit.
It is the mother’s evidence that by the end of 2022 the marriage was in significant difficulties. She said the parties separated under the one roof from around September 2022. Her evidence was that separation occurred following what she described as a severe incident in which the father assaulted her.
It is not contentious that the parents agreed that the mother and child could leave the Netherlands for the mother to visit her family in Country M, departing in mid-2023, to return in late 2023. The tickets were booked in early 2023.
It is the mother’s case that whilst in Country M the father’s family demanded she return to the Netherlands, threatened to remove the child from her care, threatened her “with death” if she did not comply with their demands, and bribed the police to support their efforts to return the child to the Netherlands. The maternal grandmother said the Country M police failed to take any action against the father’s family when reports were made of their threatening behaviour and indeed vandalised her home. The mother’s brother said he also received a call from the father’s sister who threatened to kill the mother. In those circumstances the mother said she felt unsafe in Country M.
The mother failed to return the child to the Netherlands in late 2023. She travelled with the child to Australia – without the father’s consent – arriving in late 2023. The mother wrongfully retained the child in Australia thereafter.
In early 2024 the mother sent the father a message via WhatsApp advising that she and the child would not be returning to the Netherlands.
The mother is currently residing in Suburb F, with her brother, her brother’s wife (from whom he has separated), the child, her brother’s children, and the maternal grandmother. It is a three-bedroom property.
In early 2024 the Australian government granted the mother, the child and the maternal grandmother protection visas. The child has been enrolled in kindergarten here. The mother says he is forming connections with other children and his community here.
EXCEPTION TO RETURN
Grave risk of physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b)) of the Regulations
As noted, under reg 16(3)(b), the Court has the discretion to refuse to make an order for the child’s return if there is a grave risk that to do so would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation.
The Court is to consider the cumulative effect of the allegations as to risk and intolerability to evaluate the gravity of that risk, as well as considering what protective measures might be available to address any such risk; see In re B (Children) [2022] EWCA Civ 1171 per Moylan LJ at [70].
Even if risk is established the Court can consider the extent to which the child can be protected from risk in the event a return is ordered, and the conditions that could be appropriately included on any return order to reduce the level of risk to the child or any other measures that could reasonably be anticipated to reduce the risk.
In summary it is the mother’s evidence that:
(a)the father subjected her to coercive control, including verbal and physical violence during the marriage. It is her evidence that this was witnessed by the child on multiple occasions;
(b)during the period the mother was in Country M the father’s family threatened her and her family;
(c)the mother left Country M as she felt unsafe there and unable to be properly protected by the authorities who were supportive of the father and his family;
(d)the mother feels unable to return to the Netherlands as she is very fearful of the father and his family, and feels she would not be safe or protected there;
(e)in the Netherlands, the mother has no housing, speaks limited Dutch, has no income and would be isolated without any family members to assist her;
(f)if the mother does not return with the child, separating the child from her would cause the child significant psychological harm and place him in an intolerable situation. She is his primary carer and he is unable to emotionally manage separating from her. The child’s difficulties in managing a separation from the mother were observed by the Court Child Expert; and
(g)if the child was returned to the father’s care, he would be at grave risk of physical or psychological harm given the mother’s allegations of family violence.
It is the mother’s case that these matters taken together establish a grave risk that returning the child to the Netherlands will expose him to physical or psychological harm, or otherwise place him in an intolerable situation.
The father acknowledges the parties had some disagreements and arguments. However he strenuously denies having subjected the mother to any form of violence or coercive control. He further deposed he was a caring and engaged father.
There was some testing of the evidence. The mother was quite compelling regarding her description of family violence, particularly regarding the incident she described as occurring in late 2022. But that does not in and of itself give rise to the exception.
Relevant legal principles
The following propositions can be distilled from DP v Commonwealth Central Authority (2001) 206 CLR 401 (“DP”) [39–44]:
(a)the party opposing the return bears the onus of proof;
(b)whether returning a child will expose them to certain types of harm or otherwise place the child in an intolerable situation will require some prediction, based on the evidence, of what may occur upon the child’s return;
(c)the Court is not required to be certain that the child will be exposed to harm – but will need to be persuaded that there is a risk of such exposure to harm that warrants the qualitative description “grave”;
(d)usually that will require some clear and compelling evidence that there is a grave risk of exposure to harm if the child is returned, rather than bare assertions to that effect made by the respondent; and
(e)the words in the Regulations are to be given their natural meaning, and neither a narrow nor broad construction.
Their Honours also observed at [45]:
45.That is not to say, however, that reg16(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. Reg16(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.
The risk of placing the child in an intolerable situation must also be such that it warrants the qualitative descriptor “grave”.
More recently the observations made by the Full Court in DP were quoted with approval by Ryan and Aldridge JJ in Walpole v Secretary, Department of Communities and Justice (2020) 60 Fam LR 409 (“Walpole”) at [58] as follows:
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.
That is, if I am satisfied that the conditions in reg 16 of the Regulations are met, I must then consider whether a return order should be made. In considering whether or not to exercise the discretion the Court will consider whether there are readily enforceable conditions that might ameliorate the risks to the child.
I note the observations of the Full Court in Harris v Harris (2010) FLC 93–454 (“Harris”) at [140] that when considering reg 16(3) of the Regulations and allegations of family violence:
…it may often involve a careful balancing of relevant considerations having regard to the purpose for which the Convention was established, and the giving due recognition of the systems and protections afforded by the country from which the child was removed or wrongfully retained. Appropriate recognition must be afforded to the serious and invidious nature of domestic violence, its effect on the victim and the corresponding actual or potential effect on a child, or the consequences of requiring the returning child (and perhaps a primary care giver) being isolated and living in impoverished circumstances until parenting proceedings are determined.
I note further the remarks of the Full Court in Harris in which their Honours said [at 142]:
We think the problems which confront a judge such as confronted the trial Judge in this case were eloquently explained by Hale LJ (as her Ladyship then was) in her dissenting judgment in TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515 at paras 43 & 44 and 57 & 59 as follows:
[43] … when the Hague Convention was first drafted, the paradigm abductor was not the children’s primary carer, but the other parent who ‘snatched’ them away from her. Hence a deliberate distinction was drawn between rights of custody and rights of access. Summary return was not the remedy to protect mere rights of access. Now, however, in 72% of cases, the abductor is the primary carer: the parent who has always looked after the children, upon whom the children rely for all their basic needs, and with whom their main security lies. The other parent is using the Hague Convention essentially to protect his rights of access. He can do this because “rights of custody” include the right to veto travel abroad, and most such parents now enjoy that right. But return to the home country may be a sledge hammer to crack a nut, because however much the children need contact with the other parent, they need a secure happy home with a competent and caring parent even more. There is often good reason to believe that the home country will allow them all to emigrate. It is therefore regarded as a real risk by the Hague Conference that spurious Art 13(b) defences will be raised in such cases: there is equally a real risk that the courts of the requested states will either succumb too readily to such defences, out of the kindness of their hearts and a natural reluctance to do anything which does not appear to them to be in the best interests of the children, or alternatively become unsympathetic and fail to recognise those few which should succeed.
[44] It is important to remember that the risks in question are those faced by the children, not by the parent. But those risks may be quite different depending upon whether they are returning to the home country where the primary carer is the ‘left behind’ parent or whether they are returning to a home country where their primary carer will herself face severe difficulties in providing properly for their needs. Primary carers who have fled from abuse and maltreatment should not be expected to go back to it, if this will have a seriously detrimental effect upon the children. We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it…
…
[57] But it cannot be the policy of the Convention that children should be returned to a country where, for whatever reason, they are at grave risk of harm, unless they can be adequately protected from that harm. Usually, of course, it is reasonable to expect that the home country will be able to provide such protection. But in this particular case, it is the totality of the situation in which the children found themselves, a combination of serious psychological and economic pressures, which creates the risk. A protection order, were it to be readily available, would not solve all their problems…
…
In that case Hale LJ determined that
[59] … It would require more than a simple protection order in New Zealand to guard the children against the risks involved here…
Regulation 16(4) of the Regulations
When considering the exceptions, pursuant to reg 16(4) of the Regulations:
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.
As already noted it is not in dispute that the child was at all relevant time habitually resident in the Netherlands. He had commenced kindergarten there. He travelled with his mother from the Netherlands to Country M in mid-2023 to visit family and remained there until he arrived in Australia in late 2023. He has been in Australia since that time. According to the mother he commenced pre-school in Australia in 2024 and is generally progressing well.
It is apparent from the Hague Report that the child speaks mostly Country M language.
Discussion as to grave risk and intolerable situation
Having had the opportunity to hear evidence from the father, the mother and her witnesses, it seems likely there have been occasions when the father has subjected the mother to family violence. This will have had an effect on the mother. If witnessed by the child as asserted by the mother it will also have impacted him. It is clear that the mother does not wish to return to the Netherlands, and she is fearful to do so. She will feel isolated there, without her mother or her brother. She will have limited funds – unless provided for by the father. She currently does not have employment in the Netherlands – although she was previously employed.
However, for the reasons that follow, on balance, I am not satisfied that taken as a whole the evidence supports a finding that there would be a grave risk to the child being exposed to harm or an intolerable situation – either in the case that he returns accompanied by his mother, or unaccompanied by her.
I note that in cases such as Harris and Walpole it was determined that there were limits on the ability of the requesting country to properly provide for the safety of the mother and child upon return. In Harris the primary judge regarded the evidence in that case to support a finding that the type of violence the father may inflict was “not amenable to the type of constraints which the interim orders and the criminal law would impose”; see Director-General, Department of Community Services v Harris (2010) 43 Fam LR 170 at [189]. Her Honour was persuaded that “this is one of those rare occasions” where the facts supported a refusal to return. The father in that matter had broken the mother’s arm on two occasions, given her a black eye, and threatened to kill the mother, the child and the maternal grandparents. The father did not deny the threats to kill. There was corroborative evidence including hospital records regarding the father’s physical violence. The judgment was not disturbed on appeal.
In Walpole the children had been exposed to very serious violence, including potential lethality. The father had been deported from Australia to New Zealand as a result of his criminal offending and the Court found there were real concerns that the New Zealand authorities may be unable to properly protect the mother and children.
I do not wish to diminish the mother’s experiences. However, in the present case the father has not been charged with any family violence. There is little corroborating evidence. The police records produced by the applicant do not support the mother’s assertion that the police were called to their home on multiple occasions in response to concerns of family violence. She recalled the police attending on one occasion. That is consistent with the documents produced – which indicate police attendance at the home in mid-2019, which was described as “fight/argument (no follow-up)”.
Further, there is no evidence that any risks could not be readily addressed by the mother obtaining orders for her protection and that of the child from the appropriate court in the Netherlands. Indeed, this Court can assume the courts in the Netherlands can make suitable arrangements for the child’s welfare. This presumption was discussed in Gsponerv Director-General 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.
Similar observations were made by The High Court of Australia in De L v Director General, NSW Department of Community Services v Anor (1996) FLC 92–706 at 658:
The Regulations reflect the objects of the Convention to settle issues of jurisdiction between the Contracting States by favouring the forum which has been the habitual residence of the child. The underlying premise is that, once the forum is located in this way, each Contracting State has faith in the domestic law of the other Contracting States to deal in a proper fashion with matters relating to the custody of children under the age of 16.
Accordingly, in the absence of any evidence to the contrary, I can presume that the Netherlands has the ability to adequately protect the mother and the child upon their return there.
Similarly, there are services and supports in the Netherlands which can be accessed by the mother. That much is clear from the affidavit of Ms H filed 10 December 2024. In her unchallenged evidence Ms H refers to the O Family Servicesas a service that can provide advice, primary care and referrals where necessary. That service can investigate reports and intervene in unsafe situations. The mother is able to speak basic Dutch which should enable her to communicate sufficiently with the support service.
Further information was provided by Ms H regarding the ability of victims of family violence to obtain restraining orders. It is apparent that restraining orders can be obtained reasonably quickly, and social services may then become engaged with the family. The documents provided include the names and contact details of support services which can be accessed by the mother.
The mother has failed to adduce any evidence that would demonstrate the absence or deficiency in services available to her, that she would experience real difficulties in accessing those services, or that would support any concern that the authorities in the Netherlands would be unresponsive to her needs. There is no evidence that there has been any failure by the courts in the Netherlands, or by police or child protection there to take appropriate steps to ensure the safety of the mother and child.
The mother said she was fearful to return to the Netherlands – and in her oral evidence she said thinking about doing so makes her ‘body shake’. However, she did not adduce any evidence as to the psychological impact on her and her parenting in the event she accompanied the child to the Netherlands, nor any evidence that she was psychologically unable to consider returning.
Moreover, the mother’s concerns about lack of housing and financial support can be addressed by requiring the father to provide the mother with adequate funds to enable her to accommodate the child and herself upon return to the Netherlands.
In addition, the father denies the mother was isolated in the Netherlands. He deposed that the mother’s brother travelled there in 2019 and 2022 to visit, she has two uncles who live close by in Country C who often visited, and she had friends in the Netherlands. These matters were not the subject of any significant challenge.
I was not advised as to any legal barriers to her return. She has a visa that is valid for at least another 12 months. There are no criminal proceedings on foot that could jeopardise her freedom upon return.
If the mother does not return
At the commencement of the hearing the mother’s counsel advised the mother would not return with the child in the event a return order was made.
During the course of the proceedings, it became evident the mother misunderstood the nature of a return order. She appeared to believe that if she returned with the child they would be compelled to reside in the house with the father. It was explained to her that this was not correct – and that she could choose to live anywhere within the Netherlands upon returning there. Moreover, it became apparent that the mother was unaware of the supports and services that would be available to assist her if she elected to return with the child. Nor had there been any consideration of the provision of financial support that might be made available to her.
At the conclusion of the hearing counsel for the mother was unable to obtain clear instructions as to whether the mother would return with the child in the event of a return being ordered, or whether she would not. Counsel for the mother said the mother’s “cultural framework” meant that she relies entirely on her family for support (being her mother and brother who reside in Australia) and that her client did not really understand the nature of the supports and services that might be available to her in the Netherlands.
The greatest risk to the child’s wellbeing would be if the mother refused to return to the Netherlands with him. The Court Child Expert observed the child to experience significant distress when it was attempted to separate him from his mother. She reported as follows:
[the child] appeared to experience significant difficulty and distress separating from his mother. [The child] was observed to cling to her and cry and scream in the absence of any noise, whereby his face was expressing screaming and crying but no sounds were audible. The interpreter informed the writer that [the mother] was encouraging [the child] to engage with the writer and attempting to facilitate [the child] separating from her in [Country M language]. After a long period of time and [the child] experiencing significant distress, with repeated episodes of silent screaming and crying he agreed to separate from [the mother] for the purposes of drawing and talking with the writer, facilitated by the interpreter.
[The child] tolerated approximately twenty minutes away from his mother whereby he sat with the writer doing colouring in…
The mother attributes the child’s distress at being separated from her as a result of him having experienced trauma from exposure to family violence perpetrated by the father. Notably the mother has not sought any psychological support for the child notwithstanding his unusual presentation.
In the event the mother determined not to return with the child, that would no doubt be extremely difficult for the child to manage. The Court Child Expert further observed:
Based on [the child’s] presentation and difficulty separating from [the mother] along with him having lived in her exclusive full-time care for the past 18 months, any sudden and significant separation from [the mother] is likely to cause [the child] significant and enduring distress and would likely have a negative impact on his emotional well-being, sense of stability and safety and development.
The Court Child Expert continued:
[The child] made vague comments about his father…and reported that he enjoyed speaking to his father however he simultaneously appeared distressed, silent screaming and crying when brief discussions occurred in relation to [the father]. It is unclear what the nature of their relationship was, however, it was apparent that he was familiar with [the father] historically and aware that it has been a significant time since he has spent any time with him. However, in the context of the passage of time and [the child’s] young age it would appear unlikely that there is a current meaningful relationship between [the child] and [the father] and thus whilst he may have been impacted by his separation from his father 18 months ago, it would seem unlikely that he is currently impacted by this separation now.
The Court Child Expert was unable to hypothesize with any certainty as to the genesis of the child’s ‘silent screaming’ and separation issues. However, the Court Child Expert was concerned that the child has already experienced significant upheaval in his life. That included having travelled to Country M and then to Australia, and a cessation of any time and communication with his father. These changes and disruptions to his routine, she noted, could have an adverse effect on his development, resilience and over all well-being. The Court Child Expert suggested it would be important for the child to be “shielded from exposure to childhood adversity or any further avoidable upheaval”.
In the event the mother elects to remain in Australia and the child is returned to the Netherlands without her, I accept the evidence of the Court Child Expert that will cause the child considerable and enduring distress.
I note there are cases in which a separation of a child from their primary carer has been held to expose the child to a grave risk of harm or place them in an intolerable situation; see Secretary, Department of Communities and Justice v Handley [2023] FedCFamC1F 1063. However, allowing an abducting parent to create the risk to the child by her own conduct of refusing to return may in many cases be antithetical to the aims of the convention. As observed by Butler-Sloss LJ in Re C (A Minor) (Abduction) [1989] 1FLR 403 at 410:
If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parents who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations.
The mother in this case is able to return. As observed, she has a visa allowing her to be in the country at least until 2026. The father is able to provide her with funds to return, secure accommodation and meet the basic needs of herself and the child until the courts in the Netherlands are seized of the matter. Whilst the mother said the thought of returning made her fearful, she did not adduce any medical or psychological evidence as to the impact on her mental health and/or her parenting in the event she returned with the child to the Netherlands. As already observed, the mother’s evidence regarding at least the incident in late 2022 was compelling. However, she is not being compelled to return to the former matrimonial home, and she will have the ability to obtain orders for her protection.
I have much sympathy for the mother. It was not envisaged that the implementation of the Convention would in many cases require the return of women who have endured family violence to a place they no longer wish to reside. However, I remain bound by the Regulations and the authorities.
In the event the mother elects not to accompany the child, I remain of the view that the exception has not been established. Whilst it will be upsetting, distressing and confusing for the child to be removed from the mother’s care and placed with his father I am comforted by the following observations:
(a)whilst being interviewed by the Court Child Expert the child identified the father to the Court Child Expert as someone with whom he did not feel safe. Thereafter the child became distressed and experienced a further episode of silent screaming and crying. It took an extended period for him to become emotionally regulated. However, this comment and response must be seen in the context that at that time, the communication with the father had not re-commenced. The child had not seen or spoken to his father save possibly very briefly on one or two occasions since July 2023;
(b)since meeting with the Court Child Expert the child has resumed having regular electronic communication with his father. The mother acknowledged that this has progressed well – with the communications taking place every second day, for generally up to one hour. The frequency and duration of those communications, particularly in light of the child’s age, suggest that the child’s relationship with the father is progressing well;
(c)whilst the child said he did not feel safe with his father, he also told the Court Child Expert that he missed his father and enjoyed talking with him; and
(d)the father’s evidence was that he was an engaged father prior to the child leaving the Netherlands and he was ready and able to resume parenting duties. The father has also remained in the former matrimonial home, which may provide the child with some comfort. The mother acknowledged she worked night duty prior to leaving the Netherlands – and that she left the child in the father’s care when she attended her employment.
Whilst distressing for the child – and certainly not ideal – I am not of the view that separation from the mother will in all the circumstances expose the child to a grave risk of harm, or otherwise place him in an intolerable situation.
DETERMINATION
Taking into consideration all relevant matters, I find the evidence relied upon by the mother does not support a finding that the level of the predicted risk to the child has reached a degree of seriousness such that it could be categorised as grave nor that the situation upon his return would be intolerable.
First, there are protective measures which could be put in place and services accessed by the mother upon a return to the Netherlands to ameliorate the asserted risks in the event she elected to return. The concerns the mother has expressed in relation to housing and finances can be ameliorated by crafting conditions for the mother’s return that would ensure those needs are met until such time as the courts in the Netherlands can be seized of the matter. Additionally, a moratorium can be placed on the father’s commencement of parenting proceedings in the Netherlands to give the mother an opportunity to make urgent applications on her own behalf, as well as to access support services.
I accept that it would be disruptive, distressing and confusing for the child to be returned to the Netherlands – particularly if this is without his mother. However the grave risk of harm or other intolerability must be more than this type of disruption and anxiety; see Re C (Abduction: Grave Risk of Psychological Harm) (1999) 1 FLR 1145. It would not be ideal that the child be separated from the mother and returned to the father. However, I am not satisfied that it would expose him to a grave risk of harm or place him in an intolerable situation.
The mother has not satisfied the threshold test of “grave risk” or “intolerable situation”, and this regulatory exception must fail. Thus, there is no need to consider the circumstances in which my discretion to return is enlivened.
CONDITIONS OF RETURN
The father’s evidence was that he had savings of between 7,000 to 8,000 EUR. He said he would assist the mother to meet her costs at least initially in the Netherlands and the applicant proposed the father make the sum of 5,000 EUR available to the mother.
I am satisfied that it is appropriate that if the mother elects to return with the child the father shall provide the mother with 7,000 EUR. That will be held on trust by her solicitors and used to purchase flights for the mother and child. The balance will be released to her upon confirmation that she and the child have returned to the Netherlands. This will provide with mother with sufficient funds to accommodate herself and the child pending the courts in the Netherlands hearing any further application.
By restraining the father from making any parenting applications for the first 28 days that the mother and child are back in the Netherlands the mother will have the opportunity to access services and supports and, if necessary, obtain orders for her personal protection.
In the event the mother does not elect to return with the child the father will need to travel to Australia at his expense to collect the child.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 30 January 2025
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