State Central Authority & Del Rosario

Case [2019] FamCA 607

FAMILY COURT OF AUSTRALIA

State Central Authority & Del Rosario [2019] FamCA 607

FAMILY LAW – CHILD ABDUCTION – Hague Convention – return to Brazil – where wrongful removal conceded.

FAMILY LAW – CHILD ABDUCTION – Hague Convention – grave risk of harm and intolerable situation exception – where grave risk of harm could be ameliorated by conditions to return – conditions included suspending recently obtained parenting order in Brazil whereby the child would be placed in the care of the father (whom the child has never met) and have only supervised time with the mother.

FAMILY LAW – CHILD ABDUCTION – Hague Convention – reliance on exception that father was not actually exercising rights of custody immediately before the wrongful removal – where father had never met child – where father had a right to determine child’s residence – where particular right of custody could be exercised passively.

FAMILY LAW – CHILD ABDUCTION – Hague Convention – how discretion to refuse return would have been exercised had the court been satisfied that an exception to return was made out

FAMILY LAW – CHILD ABDUCTION – Hague Convention – direct judicial communication.
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Evidence Act 1995 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.
De L v Director General, NSW Department of Community Services (1996) 187 CLR 640
DP v Commonwealth Central Authority (2001) 206 CLR 401
Friedrich v Friedrich 78 F.3d 1060
H v H (Abduction: Acquiescence) [1996] 2 FLR 570
HZ and SCA [2006] FamCA 446
JLM v Director-General NZW Department of Community Services [2001] HCA 39
King Investments Solutions Pty Ltd v Hussain and Another [2005] NSWSC 1076
McCarthy v McCarthy (1994) SLT 743
MW v Director-General, Department of Community Services [2008] HCA 12
Re C (Abduction: grave risk of physical or psychological harm) [1999] 2 FLR 478
Re D (A Child)(Abduction: Rights of Custody) [2007] 1 AC 619
Re E (Children) (FC) [2011] UKSC 27
State Central Authority & Young (Rights of Custody) [2012] FamCA 843
TB v JB [2000] EWCA Civ 337
W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211
APPLICANT: State Central Authority
RESPONDENT: Ms Del Rosario
Independent children’s lawyer: Ms Kourtis
FILE NUMBER: MLC 1460 of 2019
DATE DELIVERED: 14 August 2019
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Bennett J
HEARING DATE: 8, 9 and 10 April, 20 and 21 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Julia Greenham
SOLICITOR FOR THE APPLICANT: Department of Health and Human Services, Legal Services Branch
COUNSEL FOR THE RESPONDENT: Ms Sarah Fisken
SOLICiTOR FOR THE RESPONDENT: Melbourne Family Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Eleanor Mallett
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

IT IS ORDERED THAT

The order for return

  1. Subject to compliance with paragraphs 2, 3, 5, 8 and 12 of this Order on or before 1 April 2020, the child X born … 2016 be returned to Brazil.

Conditions to return

  1. The father forthwith do all acts and things necessary to suspend the operation of the order made by Judge … of the Third Family and Probate Court in the Court of Appeals in the state of City A, Brazil on … February 2019 (“the Brazilian Order”) so that the order remains suspended until the happening of whichever of the following two events last occurs:

    a)The expiration of four weeks following the return of the child X born … 2016 to Brazil;

    b)A competent court in Brazil becoming seized of the matter and making an interim determination to the contrary.

  2. The father forthwith do all acts and things necessary to obtain orders in the same proceedings in which the Brazilian Order was made which provides that, until a court in Brazil makes orders to the contrary:

    a.The child live with the mother;

    c)The father have no access or contact with the child by direct or indirect or electronic means without the prior written consent of the mother, and for the avoidance of doubt, this applies where the child is in Australia or Brazil or in transit;

    d)The father not approach within 50m of the child and/or the mother or within 50m of the premises at which the child and/or the mother live, work or attend for day care or kindergarten, whether in Australia or Brazil;

    e)Neither the mother nor the father cause, permit or suffer the removal of the child from Brazil without the prior written consent of the other;

    f)The mother and the father be each restrained from causing, permitting or suffering any proceedings to which the other party is a party to be initiated, issued, re-activated or prosecuted;

    i)Otherwise than on notice to the other party; and

    ii)Which requires the other party to attend or appear at court and/or prepare documents for a period of 4 weeks following the return of the child to Brazil.

    g)The father forthwith do all acts and things necessary to obtain a Brazilian passport or other travel document or permission for the child in order to facilitate the return of the child to Brazil and the mother do all acts and things necessary and required of her to authorise, consent to and support the father’s application for the passport or other travel document or permission for the child’s travel;

    h)The father book, and pay, or cause to be paid, the cost of return airfares for the mother and the child to return to Brazil, via the United States of America or on such other route as contemplates the disembarkation of the child and the mother only in countries for which the 1980 Hague Abduction Convention has entered into force with Brazil.  The date for travel be not less than 30 days after the prosecuting Victorian State Central Authority has provided copies of this Order to:

    iii)The mother’s legal representative – …

    iv)The Independent Children's Lawyer – …

    v)The Associate to the judge seized of the Hague proceedings in Australia – …

    i)The mother reimburse the father for such travel costs within 30 days of the return of the child to Brazil;

    j)Upon the arrival of the child in Brazil, the mother cause any passport issued to the child to be delivered to a registrar in a court in Brazil for safekeeping pending further order of the court in Brazil;

    k)To verify the return of the child to Brazil the mother notify her solicitor, the Independent Children's Lawyer and the applicant State Central Authority in writing that the child has arrived safely in Brazil and do so within 4 hours of disembarkation of the child in Brazil by email to the addresses set out in paragraph (g) above.

Provisions to secure return

  1. The mother do all acts and things necessary and required to support and facilitate the father obtaining orders from a court in Brazil as provided by paragraphs 2 and 3 of this Order including, but not limited to, providing her consent to such orders being made.

  2. The father forthwith do all acts and things necessary to obtain a Brazilian passport or other travel document or permission for the child in order to facilitate the return of the child to Brazil and the mother do all acts and things necessary and required of her to authorise, consent to and support the father’s application for the passport or other travel document or permission for the child’s travel.

  3. Forthwith upon receipt, the applicant State Central Authority send or otherwise provide the passport, other travel document or evidence of travel permission to the Independent Children's Lawyer for safe keeping and provide a copy to the mother’s solicitors and the Independent Children's Lawyer make arrangements for delivery of the passport, other travel document or evidence of travel permission to the mother to facilitate the return of the child to Brazil. 

  4. Upon compliance with paragraph 2 and 3 the application State Central Authority provide a copy of the orders as issued by the court in Brazil to:

    a.The mother’s legal representative – …

    b.The Independent Children's Lawyer – …

    c.My Associate – …

  5. Once the father has complied with paragraph 2 and 3 of this Order, the father book, and pay, or cause to be paid, the cost of return airfares for the mother and the child to return to Brazil via the United States of America. 

  6. To the extent that it is possible to do so, the mother not cause permit or suffer either herself or the child to pass through immigration in the United States of America, en-route to Brazil, and/or to leave the international terminal.

  7. The mother reimburse the father for the cost of the airfares for herself and the child within 30 days of the return of the child to Brazil.

  8. The airfares be booked for travel from Australia not less than 30 days after compliance by the State Central Authority with paragraph 7 of this Order.

  9. In addition to paragraph 7 of this Order, immediately on purchasing the airfares the father provide evidence of same and details of travel to the Independent Children's Lawyer.  The Independent Children's Lawyer notify the parties of the booking and provide tickets to the mother and copies of tickets and payment to the State Central Authority. 

  10. The State Central Authority (through the Australia Central Authority) conduct a movement records search to confirm the child’s offshore status after the child has departed Australia.  The State Central Authority (through the Australian Central Authority) seek a Brazilian Central Authority confirmation that the child has landed in Brazil.

Continuing injunctions

  1. The mother forthwith notify the applicant State Central Authority and the Independent Children's Lawyer in the event that she will not accompany the child back to Brazil.

  2. Pending the child’s departure from Australia for return to Brazil:

    (a)       The respondent mother by herself, her servants and/or agents continue to be restrained and an injunction issue restraining her, her servants and/or agents from causing or permitting or suffering the child, X born … 2016:

    (i)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;

    (ii)To be removed from the State of Victoria; and/or

    (iii)To reside at any place other than her present residential address or any other residence at which the applicant has agreed that the child may reside.

    (b)       A representative of Department of Health and Human Services (“DHHS”), Victoria be and is hereby entitled to contact the mother, visit the child’s residence and/or require the mother to attend with the child at a specified office of DHHS.

  3. The Australia Federal Police retain the name of the child X, female, born … 2016 on the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia until a letter from an officer of DHHS, State Central Authority is received advising of the travel arrangements made for the child’s return to Brazil from 12.00am on the date nominated for the said travel.

  4. All and any watch list orders or orders restricting the movement of the child in Australia be and are hereby discharged upon the presentation of the child for boarding the flight as advised in the preceding paragraph of this Order.

  5. IT IS DIRECTED that a sealed copy of this Order be provided forthwith by my Associate to the Marshal of the Family Court of Australia, the Commission of the Federal Police and 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.

  6. The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australia 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 this Order.

Other matters

  1. The translation of the evidence of the Family Consultant Ms J be annexed hereto.

  2. There be liberty to apply on short notice in relation to the implementation of this Order and variation, discharge and amendment of the machinery provisions of this Order (being all provisions apart from paragraph 1 of this Order).

  3. The mother, father and any lawyer, representative or advocate appointed to act on behalf of the child or to represent the interests of the child in Brazil be and is hereby at liberty to use these reasons for decision, this Order and documents filed or exhibited in this Hague return proceeding in any parenting proceeding concerning the child in Brazil but not otherwise.  For the purpose of ensuring that any documents sought to be relied upon in Brazil is an accurate and complete copy of the original, an officer of a court in Brazil which is seized of the parenting matter may request my Associate,   … to provide a copy of any document in this proceeding by email AND IT IS DIRECTED that my Associate provide same.

  4. The application of the State Central Authority filed 13 February 2019 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Del Rosario has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

Family Court of Australia at Melbourne

FILE NUMBER: MLC 1460 of 2019

State Central Authority 

Applicant

And

Ms Del Rosario

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

CONTENTS

Orders

REASONS FOR JUDGMENT

Introduction

Legal and procedural structure

Jurisdictional facts (pre-requisites to summary return)

Exceptions to return

Actually exercising rights of custody

Grave risk of harm

Expert social science evidence

Matters which inform the exercise of the court’s discretion to refuse return upon one or more exceptions to return being made out

Conditions to return

Consequence of failure to comply with a condition of return

Enforceability of conditions to return

Onus of proof

Standard of proof

Findings of fact

Relevant family history

Procedural Background

Evidence

Credit & Impression of Witnesses

The mother and the father

The Family Consultant

Discussion about the application of the law to the facts

Exception: father was not actually exercising rights of custody when the child was first removed to Australia and those rights would not have been exercised if the child had not be so removed (reg.16(3)(a)(i))

Exception: there is a grave risk that the return of the child to Brazil under the Convention would expose the child to physical and psychological harm or otherwise place the child in an intolerable situation (reg.16(3)(b))

Discretion to refuse return

Conclusion

Orders

Introduction

  1. By application filed on 13 February 2019, the applicant State Central Authority seeks the return of the child X, also known as X, to Brazil pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).

  2. The Regulations implement the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”) which entered into force between Australia and Brazil on 1 January 2000.

  3. The mother opposes the return on the basis that the father was not actually exercising rights of custody at the relevant time and that the return of the child to Brazil would expose the child to a grave risk of harm or place the child in an intolerable situation. The risk of harm arises most significantly from the implementation of an order obtained by the father, without notice to the mother, which provides for the child to live with the father and have limited supervised time with the mother, upon her return to Brazil.

  4. X is three years old and, in spite of living in Brazil until she was nearly two years old, she has never met the father.

  5. All Counsel presented their case succinctly and I was much assisted by their thorough written outlines of argument, sensible concessions and concise oral submissions.  Later in these reasons I will discuss the practical difficulties that beset the hearing but Counsel were not responsible for any of them.  I wish particularly to commend counsel who represented X’s interests.

Legal and procedural structure

Jurisdictional facts (pre-requisites to summary return)

  1. Not every unilateral removal of a child across international borders qualifies for a return of the child under the 1980 Convention.  The 1980 Convention applies only to removal or retentions which are wrongful within the meaning of reg. 16(1A).  In this case, the respondent concedes that the removal was wrongful.  That is:-

    a)   the child is under 16 years (reg.16(1A)(a));

    b)     the child was habitually resident in the Brazil immediately prior to her removal to Australia (reg.16(1A)(b));

    c)   immediately prior to the removal, the father had rights of custody[1] in relation to the child under the law of Brazil (reg.16(1A)(c));

    d)     the removal of the child was in breach of the father’s rights of custody (reg.16(1A)(d));

    e)   at the time of the removal the father was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights had the child not been removed (reg.16(1A)(e)).

    [1] Rights of custody is defined by Reg 4 and include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.

  2. Regulation 16(1A)(e)) implements Article 3(b) of the 1980 Convention.

Exceptions to return

  1. Once the jurisdictional facts are established, as is the case here, the return of X to Brazil is mandatory unless the Court is satisfied that one or more of the exceptions to return is made out.  In the running of this case, the relevant exceptions to return have been identified as:-

    a)   The father was not actually exercising rights of custody when the child was removed to Australia and that those rights would not have been exercised if the child had not been so removed within the meaning of reg.16(3)(a)(i).  This implements Article 13(a) of the Convention;

    b)     There is a grave risk that the return of the child to Brazil would expose her to physical or psychological harm or otherwise place X in an intolerable situation within the meaning of reg.16(3)(b).  This implements Article 13(b) of the Convention.

Actually exercising rights of custody

  1. Rights of custody is a term defined in Article 5(a) of the Convention as including rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence. The definition finds expression in reg. 4 of the Regulations. All measures relating to the care and upbringing of a child, access to or spending time with a child and the right to veto the removal of the child from the contracting state, fall within the widely defined scope of rights of custody under the Convention, irrespective of the names or labels given to those rights in any state’s domestic law.

  2. Reg. 4(3) provides that rights of custody may arise by operation of law, by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under a law in force in Australia or a convention country. 

  1. The concept of a requesting parent as a person who “was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights if the child had not been removed or retained”, is invoked twice in the Regulations. Regulation 16(1A)(e)(i) provides that the rights are a necessary component of a wrongful removal. It is also a necessary component in reg.16(3)(a)(i) which provides that proof that the requesting parent was not exercising such rights constitutes an exception to return.

  2. A ready distinction between the two provisions is that the applicant State Central Authority bears the onus of proving the actual exercise of rights of custody, as a jurisdictional fact, under reg.16(1A)(e)(i).  In the context of an exception to return, the respondent mother bears the onus of proving that the requesting parent was “not” actually exercising such rights under reg.16(3)(a)(i).  The court might find the actual exercise of rights of custody to be proved in the context of the removal being wrongful.  However, the court may effectively arrive at the opposite view, if the respondent raises the non-exercise of rights of custody as an exception.  The duplication preserves to the taking parent a second opportunity to have the court examine whether the relationship between the requesting parent and the child is the kind of relationship that the Convention is designed to protect in respect and of which the mandatory remedy can be involved in exceptional cases. 

Grave risk of harm

  1. Regulation 16(3)(b) provides an exception to mandatory return where the court is satisfied that there is a grave risk that the return of the child will expose the child to physical or psychological harm or otherwise places the child in an intolerable situation. This regulation implements Article 13(b) of the Convention.

  2. In our High Court, in DP v Commonwealth Central Authority; JLM v Director-General NZW Department of Community Services[2] the majority (Gaudron, Gummow and Hayne JJ) held that in interpreting r.16(3), it is “to be given the meaning its words require”.  They elaborated:-

    “That is not to say, however, that r.16(3)(b) will find frequent application.  It is well nigh inevitable that a child, taken from one country to another without 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 Article 13(b) of the Convention intend to refer to more than this kind of result when the speak of grave risk to the child of exposure to physical or psychological harm on return.”

  3. With two modifications for local conditions, I find the four step approach to Article 13(b) approved of by Baroness Hale and Lord Wilson, delivering the judgment of the Supreme Court, in Re E (Children) (FC) [2011] UKSC 27 to be helpful. It accurately reflects the appropriate application of the grave risk exception. Baroness Hale and Lord Wilson observed:-

    32. First, it is clear that the burden of proof lies with the “person, institution or other body” which opposes the child’s return.  It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13(b) and so neither those allegations nor their rebuttal are usually tested in cross-examination.

    33. Second, the risk to the child must be “grave”. It is not enough, as it is in other contexts such as asylum, that the risk be “real”. It must have reached such a level of seriousness as to be characterised as “grave”. Although “grave” characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm.

    34. Third, the words “physical or psychological harm” are not qualified. However, they do gain colour from the alternative “or otherwise” placed “in an intolerable situation”. As was said in Re D, at para 52, “‘Intolerable’ is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’”. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. […]if there is such a risk, the source of it is irrelevant: eg, where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child.

    35. Fourth, article 13b is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home. […] if the risk is serious enough to fall within article 13b the court is not only concerned with the child’s immediate future, because the need for effective protection may persist.

    36. There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.” (my emphasis)

  4. The first Australian modification relates to the onus of proof and the capacity to adduce evidence.  I observe the comments of Callinan J in the High Court in DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services[3] that:

    “despite the language of regulation 16(3), the ordinary rules in relation to the onus of proof in civil litigation may not always be able to be applied in an entirely unqualified way in an application brought under the regulation.[…] one of the rules of evidence is the rule in Blatch & Archer and referred to recently in this Court in Vetter & Lake Macquarie City Council and Marshall & Director‑General, Department of Transport, that all evidence is to be weighed and assessed by courts having regard to the capacities of the parties to adduce it.”

    [3] (2001) 206 CLR 401 [186] – [187]

  5. The second Australian modification relates to summary returns.  Our apex court has made clear that Hague return cases cannot be process driven.  Our High Court endorses Hague return cases being dealt with as expediently as possible but, at the same time, has expressed reservations about disposition of them summarily and without an opportunity to test relevant evidence in cross examination.  As was observed in De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 at 660-661:

    The Convention requires the judicial or administrative authorities of Contracting States to “act expeditiously in proceedings for the return of children” (Art II). The system established for Australia by s 111B and the Regulations is one which engages the judicial power of the Commonwealth. Regulation 15(2), in its present form, obliges a court, so far as practicable, to give to an application such priority “as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows”. Prompt listing for hearing is one thing; an over-hasty and insufficient hearing is another. That point is made in the concluding terms of reg 15(2) set out above. Further, there may be cases where, consistent with those precepts, some, even if restricted, cross-examination upon affidavits is appropriate to assist the court to reach a decision whether to refuse an order for the return of the child.

  6. The plurality of Gummow, Heydon and Crennan JJ of the High Court in the decision of MW v Director-General, Department of Community Services [2008] HCA 12, a case about rights of custody for a New Zealand father, warned against “inadequate, albeit prompt, disposition of return applications.” Their Honours’ observed at [46] to [49] that (footnotes omitted):

    … an application for a return order … is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in In re M (Children) (Abduction: Rights of Custody). The oral evidence in that Convention application was heard over two days.

    Regulation 15(2) [Article 11] obliged the Family Court, "so far as practicable", to give to the application by the Authority "such priority" as would "ensure that [it was] dealt with as quickly as a proper consideration of each matter relating to the application allows". If within 42 days of its filing the application had not been determined, the Authority would have been empowered by reg 15(4) to seek from the Registrar a written statement of the reasons for the absence of a determination. Regulation 15 reflects the exhortation in Art 11 of the Convention that "judicial or administrative authorities" act "expeditiously" in these matters and the reference in Art 7 to "the prompt return of children".

    The judicial or administrative authorities which decide return applications in some Convention countries may not, under their legal systems, have the obligations to provide the measure of procedural fairness and to give reasons which generally apply in common law systems and which were observed here by the Family Court. Thus, in this country, the requirement of promptitude can be an onerous one.

    Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another.

  7. Other valid observations to the application of the reg.16(3)(b) exception drawn from earlier cases include:-

    a.In Re D (A Child)(Abduction: Rights of Custody) [2007] 1 AC 619; [2006] UKHL 51 Baroness Hale commented that the “authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child.”

    b.It is settled that the assessment of grave risk of harm must be exposure to harm as a consequence of return and not exposure to harm which might emerge at some later time if, after return, an unsatisfactory situation is allowed to persist without alteration, per Lord Prosser in McCarthy v McCarthy (1994) SLT 743, 747.

    c.The exception needs to be weighed both in the light of history and comparatively to ensure that the respondent opposing return is not, in reality, relying upon elements of their own wrongdoing to build up a statutory defence.  In testing the validity of the grave risk exception, judges should ask themselves what were the intolerable features of the child’s family life immediately prior to the wrongful abduction, and if the answer was scant or non-existent, then the defence is in difficulty, per Thorpe LJ in Re C (Abduction: grave risk of physical or psychological harm) [1999] 2 FLR 478 [487-8].

  8. The harm or intolerable situation cannot be assessed in isolation. It is appropriate to have regard to the extent that the respondent can help herself and the child as well as what the requesting parent and the state of habitual residence can provide to alleviate harmful and intolerable circumstances for the child.

Expert social science evidence

  1. This Court has its own Child Dispute Services section. It is comprised of expert psychologists and social workers with a high level of training and experience in child development and parenting after separation and divorce who are employed directly and exclusively by the Court and are located within the Registry. Regulation 26 provides that in proceedings under the Regulations, such as these, the Court may direct a family consultant to report to the Court on such matters relevant to the proceeding as the Court considers appropriate. This service is provided free of cost to the parties. Once the potential impact of the father’s recently obtained parenting order became known, it was agreed by all parties that a Family Consultant be ordered to provide an oral report to the Court about the impact on X of the parenting arrangements now in force in Brazil in the event she was to return to Brazil. The report was delivered on the second day of the hearing. The Family Consultant was available for cross examination but no party sought to cross examine her. This report is substantially set out at para 117 of these reasons.

Matters which inform the exercise of the court’s discretion to refuse return upon one or more exceptions to return being made out

  1. If an exception is found to apply, the Court has a discretion to refuse return.  The matters relevant to the exercise of that discretion include the best interests of the child. In TB v JB [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children to New Zealand. Hale LJ (as she then was) accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574. The factors were:-

    a.the comparative suitability of the forum to determine the child's future in the substantive proceedings;

    b.the likely outcome (in whichever forum) of the substantive proceedings;

    c.the consequences of the acquiescence;

    d.the situation which would await the absconding parent and the child if compelled to return;

    e.the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and

    f.the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.

  2. The Full Court of this Court, in HZ and SCA [2006] FamCA 446, approved the application of the factors in TB v JB to the exercise of the discretion to refuse return.  It should now be expressly added to the above factors whether the country of habitual residence permits relocation internationally.  That is, if a child is repatriated under the 1980 Convention, is it realistic for the taking/returning parent to apply to the courts of the state of habitual residence for permission to remove the child for the purpose of the child residing out of that jurisdiction permanently?  This was clearly a matter contemplated by all members of the Court in TB v JB who were satisfied that it would be possible for the mother to make an application to the courts in New Zealand for permission to relocate to the United Kingdom.

Conditions to return

  1. From the perspective of the child who is subject to the return order, it is usually incautious for the court to rely on parents to do, or to refrain from doing, an act or thing which is against their interest, absent some compulsion of law or a serious consequence for non-compliance.

  2. Regulation 15(1)(b) and (c) provides that the court may, if it is satisfied that it is desirable to do so, make any order or impose any condition “that the court considers to be appropriate to give effect to the Convention.”  These arrangements are often called “safe harbour orders” or “safe harbour arrangements”.  Safe harbour orders typically set up conditions in the child's country of habitual residence to safeguard the child upon her return and until the parents resolve parenting arrangements or a court of appropriate jurisdiction becomes seized of the matter.  

  3. Safe harbour arrangements can be imposed without actually determining underlying issues such as historical allegations of violence, parental alienation and parental capacity.  The purpose is to facilitate return of children which is both safe and relevantly prompt.  A detailed examination and assessment of the allegations which would be regarded as justifying the imposition of conditions could jeopardise a prompt return and start to emulate the hearing of a domestic parenting case.  It is more expedient to construct conditions around alleged risks which are prima facie plausible (or at least not implausible) and proceed with an abundance of caution.  This is what Baroness Hale and Lord Wilson referred to in Re E (Children) (FC) [2011] UKSC 27, extracted at para 15 above at [36].

  4. Conditions to return should be carefully crafted and operate only until a court of competent jurisdiction in the other state can be seized on the matter.  Conditions properly imposed on return orders should respect the operation of law in the requesting state whilst providing for the reasonable needs of the returning parent and child in the immediate to short term.  They should:

    a.be simple;

    b.be realistic;

    c.be necessary and proportionate to the circumstances of the case (not a consolation or reward for return);

    d.usually, not place the respondent in a better position than they were prior to the wrongful retention or removal of the child;

    e.not usurp the regular functions of courts and state of habitual residence;

    f.be directly enforceable in the jurisdiction which the best interests of the child require the condition to be effective.

  5. Of course parties are entitled to be accorded procedural fairness in relation to the imposition of conditions to return.  Where, as in Australia, return proceedings are prosecuted by the Central Authority directly or on delegation to a State Central Authority (as in this case), it is the applicant State Central Authority, and not the requesting parent, who must be given an opportunity to be heard and to test the other parties’ cases on the imposition, reasonableness and practicality of conditions to return.  However, in practical terms, if the requesting parent is not on board with the conditions, there is likely to be trouble with compliance and a return order could be defeated, sometimes unnecessarily.  In this case the requesting parent was taken through proposed conditions to return in detail.  The proposed conditions were also provided to him overnight in printed form and he was asked to comment on them in evidence given by video link.

Consequence of failure to comply with a condition of return

  1. Conditions to return are usually framed as pre-conditions to return.  That is, unless a condition is fulfilled, there will be no return.

  2. Where conditions operate prospectively, it is necessary to have the conditions reflected as enforceable obligations in the contracting state where the person who is obliged to satisfy the condition is present and where the condition is to be performed.  The pre-condition to return is that a left behind parent must do all acts and things necessary to obtain orders which are enforceable against themselves and/or the taking parent in the country of habitual residence.

  3. The consequence of failure to comply with a condition to return, including a failure to obtain enforceable orders which reflect conditions which operate prospectively, is that the return order will be frustrated.  That is, the child will not be returned.

Enforceability of conditions to return

  1. Any conditions imposed should have force of law in both Australia and Brazil, as required.  The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) provides for recognition and enforceability of protective measures between Contracting States.  Australia has been a party to the 1996 Convention since 2003.  Information was accessed through central authorities and confirmed by direct judicial communication.  The direct judicial communication was conducted in accordance with Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges[4].

    [4] of proof

    1. The applicant SCA bears the onus of proving the jurisdictional facts which characterise a removal as “wrongful”.  The respondent concedes that the applicant has discharged this onus.

    2. The respondent mother bears the onus of proof in relation to whether the exceptions relied upon by her are made out.  

    3. On the separate issue of the exercise of any discretion to refuse to return X to Brazil, which arises in the event that an exception to return is found to exist, the parties bear the onus of proof for the result for which they contend.

    Standard of proof

    1. As required by section 140 of the Evidence Act 1995 (Cth) I will apply the balance of probabilities as the standard of proof.

    Findings of fact

    1. A statement of fact is a finding of fact.

    Relevant family history

    1. The father is 55 years and was born in City A, Brazil.  The mother is about to turn 36 years of age and was born in City B, Brazil. 

    2. The parents started a relationship in July 2014.  They commenced living together in September 2014.  On 3 June 2015, and whilst the parents were cohabiting “more uxorio” (as married), they entered into a steady union agreement.  This agreement designated that the parent’s relationship involved them living as if they were married to one another and provided that they would keep their property totally separate from each other.  The mother alleges she agreed to the financial arrangement because the father threatened to end the relationship otherwise.

    3. The mother became pregnant with X in around late June or July 2015.  The mother’s evidence is that she and the father separated in July 2015 when the father moved out of the residence in which they had been living and which he owns.  There is documentation executed by the father in May 2016 in which he states that separation occurred in May 2015.  It was subsequently held by the Court of Appeals of the State of City A 8th Probate and Family Court that the couple separated in July 2015 and I will adopt that date.

    4. On 30 July 2015 an incident report was made by the father to the Civil Police of City A.  The father states that a series of misunderstandings between himself and the mother had begun to occur three months prior and that the mother had threatened the father several times.  The father claimed that the mother would allege being a victim of physical aggression by him with the intention of having the father arrested under the Brazilian family violence legislation.  Four days later on, 3 August 2015, the mother made an incident report to the Civil Police of City A, alleging that she was physically attacked and that her life was threatened by the father whilst she was an inpatient at F Hospital.  She alleged that the father had threatened to kill her and had slapped her in the face at the F Hospital, had made threats to kill via telephone and had followed her.

    5. Also in August 2015, the mother made an application to the Brazilian Central Civil Court (3rd List of Family and Successions) for pregnancy alimony to assist with the costs associated with the pregnancy and upcoming birth of the child.  She sought BRL$35,000 monthly and a value of BRL$100,000 for costs of items for the baby.  On 10 August 2015, the mother’s obstetrician Dr G provided evidence concerning the mother’s mental and physical health whilst pregnant.  In the certified translation of the report, Dr G commented that the mother “has presented with maternal-fetal risk” due to “placental abruption, with considerable clinical change that causes hyperemesis gravidarum, requiring inpatient treatment for the total of 12 days.”  Dr G also commented that the mother presented with an “eating disorder mainly connected with emotional stress, and therefore requires therapeutic treatment with a psychologist to improve gestation.”

    6. In August 2015, the father filed an application in the Family Court of Brazil for DNA testing of the foetus to determine paternity and an application for separation, as well as three other applications.  The Family Court of Brazil declined to order the DNA testing in utero.  The father amended his application, for the testing to take place after the birth, which application was then granted.

    7. On 1 September 2015, the Court of Appeals of City A Central Court of Domestic and Family Violence Against Women made a finding that an application by the mother for urgent protective measures was rejected based on the lack of evidence provided by the mother over and above her unilateral “declarations.”

    8. The mother brought another application for an urgent protection order on 22 October 2015.  It was supported by evidence of the mother’s obstetrician, Dr G in a witness statement on 21 September 2015.  The doctor said that the mother had presented with multiple issues including both physical and emotional issues.  He affirmed that the issues were “interfering with her obstetric wellbeing, putting at risk her own life and that of the foetus, requiring psychological treatment to improve her gestation.”  The mother’s application for an urgent protection order was rejected.  

    9. On 23 October 2015 the mother sought a review of the dismissal of her application for an urgent protection order which order was then granted by the Court of Justice of the State of City A[5].  The Judge found that the “high level of animosity between the parties and the legal disputes between them only reinforces the need to keep them apart.”  The resultant order made on 23 October 2015 prohibited the father from being within 300m of the mother, from making contact with her by any means and from appearing at her place of residence.  The mother was in the second trimester of her pregnancy.

      [5] annexure “[DR]6” of the mother’s affidavit sworn 13 March 2019

    10. On 26 October 2015 the Brazilian Central Civil Court (3rd List of Family and Successions) made a decision to grant the mother’s application for provisional pregnancy alimony in the fixed amount of BRL$10,000, as provided by annexure C of the father’s complimentary document affirmed 18 February 2019. 

    11. In late 2015 the mother travelled to City D, USA where she leased an apartment.  The mother says that she intended to stay in City D until the child was born, however her then lawyer insisted that the mother return immediately to Brazil.  The mother’s evidence is that, upon her return to Brazil, her lawyer ceased to act for her.  The mother had been in City D for one month.

    12. X was born in 2016 in City A, Brazil.  The mother’s former husband Mr H delivered the child.  The mother’s lawyer contacted the father’s lawyer to inform the father of the birth. 

    13. X is not the mother’s only child.  Her eldest daughter Y is nearly 18 years old having been born in 2001.  The mother married Y’s father in September 2008.  They separated in or about 2011 and divorced in December 2015.  Mr H pays approximately AUD$1000 per month to the mother to support Y.  The mother’s evidence is that she and Y’s father remained friends following their separation.  He is medically trained and delivered X.  The mother says that X’s father has since turned Y’s father against the mother.

    14. On 15 March 2016 X’s birth was registered by the mother without provision of information about the father.

    15. On 29 March 2016, the first birth certificate for X Del Rosario was issued without the father being listed as the father.  

    16. On 30 March 2016, a passport for X was “confirmed” for a period of 12 months, without the father having signed the form authorising the issuance of a passport for a minor.  Had the father been noted on X’s birth certificate, his consent would have been a pre-requisite to the issuance of a passport for the child.

    17. On 3 May 2016 a 10 year visa to the United States of America was issued to X on application by the mother and without the father’s knowledge.

    18. On 6 May 2016 the father’s application for a dissolution of the Steady Union was granted by the Court of Appeals Eighth Probate and Family Court.

    19. Shortly after finding out about the birth of X, the father attended the 17th Civil Registry Office of District C, a sub district of where X was born, to verify her birth registration.  He ascertained that the mother had listed “no father” on the birth certificate.  The father sought paternity recognition by way of a DNA test to allow him to be registered as the father on the birth certificate.  The 7th Family and Probate Court granted the father’s request for a DNA test which was then undertaken when X was a few weeks old.

    20. In late March or early April 2016 the father and X were present at the same facility to give blood for the DNA test.  The mother alleges, but the father denies, that the mother’s lawyer offered the father an opportunity to meet X and that the father declined to do so.

    21. On 14 May 2016 the DNA results were published and confirmed that X was the biological child of the father. The mother was in Brazil.

    22. On 22 May 2016 the mother departed Brazil for City D, USA.  She returned on 7 June 2016.  X did not travel with the mother.   

    23. On 24 June 2016 the 7th Family and Probate Court ordered the father be recognised, along with the paternal grandparents, on X’s birth certificate.  The mother deposes at paragraph 29 of her affidavit sworn 13 March 2019, that she was not present for this determination and that she did not receive the order.

    24. From 5 to 13 July 2016 the mother, X and Y travelled to City E, USA to celebrate Y’s upcoming 15th birthday. 

    25. On 29 June 2016 the father’s appeal of the October 2015 alimony order for BRL$10,000 was denied by the Central Civil Court (3rd List of Family and Successions).  The Court did not accept the father’s argument that he could not afford to pay.  The Court also ordered the father’s arrest and imprisonment if the outstanding alimony debt was not paid within 30 days.

    26. On 17 August 2016 a further appeal by the father to reduce the alimony order to BRL$2,000 was partially upheld.  The father was ordered to pay alimony in the assessed amount of approximately BRL$2,600.  

    27. On 28 August 2016 the mother travelled overseas without her daughter X.

    28. On 8 September 2016 the second birth certificate was issued for X with both the father and mother’s details appearing therein.  The mother’s evidence is that she did not receive the second birth certificate and did not know of its existence. 

    29. In September 2016 the mother met her current partner, an Australian citizen, and they commenced a relationship, which was continuing at the time of this hearing before me.

    30. In October 2016, the father commenced paying alimony of BRL$2600 per month but did not make payments towards the arrears of alimony.  Exhibit “SCA1” are receipts for alimony payments from January 2016.  The mother asserts that the father owed arrears of BRL$141,311.40 as at 19 December 2016. [6]

      [6] A table composed by the mother’s solicitors and annexed to the affidavit of the mother sworn 13 March 2019 as “[D R] 8”.

    31. The mother returned from her overseas travels on 25 November 2016 before leaving Brazil again and travelling overseas on 28 January 2017 without X.

    32. On 29 March 2017, X’s first passport expired.  The mother’s evidence is that X could not travel once her passport had less than 6 months to run, that is after November 2016. On 6 April 2017 the mother made an application for X to get another passport which was granted for 2 years. The mother deposes that she went to the Federal Police Station and presented X’s first birth certificate.  The mother’s and X’s identity were checked and the passport was granted without there being any recourse to the father or requirement for his consent. Unbeknownst to the officials, the first birth certificate had been superseded by the second birth certificate issued on 8 September 2016, on which the father was noted as the father.

    33. X’s second and most recent passport expired on 5 April 2019.  She is currently without a passport or travel documents.

    34. On 22 April 2017 the mother went overseas without X and returned on 16 June 2017.

    35. On 2 June 2017, the Prosecution’s Office of the State of City A requested that the police investigation be closed due to a lack of evidence to “accurately indicate as perpetrator of the investigated offense Mr K”.

    36. On 21 June 2017, the father successfully appealed the order of the Court on 29 June 2016 that he be imprisoned for not paying the alimony debt.

    37. On 6 August 2017 the mother travelled overseas without X and returned on 12 December 2017.

    38. On 1 December 2017, it was declared by the Court of Appeals Central Court of Domestic and Family Violence against Women that there had been a “material error” in the granting the mother’s application for urgent protective measures to the mother in October 2015.  The protective measures were revoked with the effect that the father is no longer restrained from being within 300m of the mother.  There is currently no protective measures or restraining order in force for the mother’s benefit. 

    39. The father’s evidence is that he was not notified of the revocation of the restraining order on 1 December 2017 until 20 January 2018 due to the closure of his solicitor’s office for the Christmas break.  

    40. The mother was absent from Brazil, without X, from 29 December 2017 to 10 January 2018.  Unbeknownst to the father, the mother left X in the care of her mother, X’s maternal grandmother.

    41. On 17 February 2018 the mother and X left Brazil for the United States of America, to visit the mother’s partner, and then they travelled to Australia.  The mother and X arrived in Australia on 19 February 2018 and remained until 22 March 2018.  They then travelled to Country L where Y (then 16 years old) was attending school.  Between March and September 2018, the mother based herself and X (then 2 years old) in Country L and, from there, travelled to Country M, Country O and Country P. 

    42. The mother and both daughters left Country L for Australia on 3 September 2018.  They have remained here since. 

    43. On 6 March 2018 the Prosecution’s Office of the State of City A filed a complaint with the 21st Criminal Court of the Capital alleging that the mother initiated a police investigation against the father when she knew that he had not committed any crime.  The application was made under Article 339 of the Brazilian Criminal Code and remains outstanding.  On 26 March 2018, the 21st Criminal Court of the Capital made an order that the complaint be accepted as an “official letter, writ and letter of request” and that it be served on the mother to allow her to file a defence and nominate her witnesses.  This order is document marked “Attachment K” to the father’s complimentary document and also provides that the matter has been classed as “defamation proceedings”.

    44. On 14 August 2018, the mother says that she received a notification of the father’s attempt to contact her through LinkedIn by way of adding the mother’s profile to his list of LinkedIn contacts or connections.

    45. On 11 September 2018 the mother’s former husband (and father or Y) advised the father that Y had told him that X would not be returning to Brazil.

    46. On 8 November 2018, the father attended the Brazilian Federal Police to report that X had left Brazil and that he believed she was then residing in Australia. He confirmed that the child’s absence from Brazil was without his consent.  The father executed a statement with the Brazilian Federal Police for X’s return.

    47. On 18 January 2019 the Brazilian Central Authority advised the Australian Central Authority that X had departed Brazil on 16 February 2018 and had not returned.  The Brazilian Central Authority also advised that Interpol had not issued a Yellow Notice in relation to the child, although the father was working on obtaining this restriction.  INTERPOL identifies a Yellow Notice as:[7]

      “a global police alert for a missing person.  It is published for victims of parental abductions, criminal abductions (kidnappings) or unexplained disappearances… Police in one of our member countries request a Yellow Notice via their National Central Bureau and provide information on the case.  The Notice is then published by the General Secretariat in our database, which alerts police in all our member countries.”

      [7] INTERPOL,Yellow Notices,

    48. On 13 February 2019 the International Legal Co-operation form for the father’s request under the 1980 Convention was finalised. 

    49. The present application of the SCA was filed in the Family Court of Australia on 13 February 2019. It is an application filed within one year after the day on which the X was first removed to Australia so no issue arises about X being “settled” within the meaning of reg.16(2).

    50. In February 2019 the father travelled to Australia, he says, to attempt to retrieve his daughter.  He began “the process of repatriation” of X and swore or affirmed a complimentary document on 18 February 2019 upon which the SCA rely.

    51. On 27 February 2019, the Prosecution’s Office of the State of City A on behalf of the father, made an application to the 7th Family and Probate Court for urgent guardianship to be granted to the father and for search and return orders to return X to Brazil.

    52. On 28 February 2019, the 7th Family and Probate Court granted urgent guardianship to the father of X.  These proceedings were ex-parte the mother.  The decision is part of the bundle of documents marked SCA-1.  The Court was apparently satisfied that the mother removed X from Brazil without the father’s consent to reside abroad and that there was the “danger of harm” for the child to be in the mother’s care.  The Court made provisional orders that upon the return of X to Brazil, she is to reside with the father and that the mother may only spend time with X on alternate weekends at the father’s house from 10am to 6pm whilst accompanied by a trustworthy person nominated by the father.

    Procedural Background

    1. The application of the SCA was filed in the Family Court of Australia on 13 February 2019.

    2. On 14 February 2019 I made Orders in Chambers which included the following:

      a.That leave be granted to the SCA to proceed ex-parte with the orders restraining the mother and X from leaving Victoria or moving residences, and requiring the mother to deliver the passports to the Registry;  

      b.That the matter be adjourned until 21 February 2019 to allow for service of the application on the mother;

      c.That Officers of the Department of Human Services, Victoria, be authorised and permitted to visit and enter the mother’s place of residence and to have access to X for a welfare check; 

      d.That an Independent Children’s Lawyer be appointed to represent X’s interests in the Hague return proceedings;

      e.That the prohibition against the removal of X applies mutatis mutandis to the father and directed that the SCA bring the Orders to the attention of the father;

      f.The father have liberty to apply to vary or set aside or discharge any of the ordered injunctions which affect him or as he may be advised; and

      g.For the SCA to ascertain whether the father is prepared to participate in specialised Hague mediation.

    1. On 21 February 2019 the parties consented to direct judicial communication between myself and the judge designated to the International Hague Network of Judges for Brazil.  That communication was placed but did not progress the matter until I was introduced to the judge actually seized of the proceedings in Brazil, Judge … of the Third Family and Probate Court in the Court of Appeals in the State of City A.

    2. The Department of Health and Human Services conducted a welfare check on the child at the mother’s residence on 15 March 2019 and found everything to be satisfactory.

    3. The parents had a Hague mediation on 2, 3 and 4 April 2019.  This was provided by Victoria Legal Aid free of charge to the parties.  The matter was not resolved.   

    4. The final hearing commenced on 8 April 2019, estimated to take three days. Because the respondent mother conceded that X had been wrongfully removed, the mother had conduct of the case which related to exceptions to return.  It was arranged for the father to attend via video link and he was scheduled to give evidence early on the first day to accommodate international time zones.

    5. It cannot be too strongly emphasised that a party, in this case the SCA, who relies on the evidence of a witness situated overseas, is responsible for ensuring that the witness is properly prepared to give evidence electronically.   Variously, this involves:-

      a.Setting a time for the evidence which is appropriate in Australia but not when the witness located overseas would usually be expected to be asleep;

      b.Confirming that the technology is functioning and compatible. The ability to see and assess the witness giving evidence is fundamental;

      c.Instructing the witness to comport himself as if he were in court including acting respectfully, being appropriately dressed, not eating or chewing;

      d.Participation from a controlled environment such as a court in that jurisdiction or, if that is not available, a location from which anyone else can be excluded and evidence can be given without interruption;

      e.Ensuring that no other person is present when evidence is being given so there can be no suggestion or potential for the witness to be prompted with answers to questions;

      f.The witness having a copy of any document to which he may be referred, appropriately paginated, so reference to it is effortless;

      g.Ensuring that the witness is aware of concepts which are likely to arise such as conditions to return and measures of protection or that the return of the child will not necessarily resolve the matter particularly where the taking parent proposes to access the courts in the home state for permission to relocate back to Australia;

      h.Educating the witness about the role of legal representatives in proceedings in Australian courts, in particular, that they are officers of the court and should be respected as such.  In particular, Counsel cannot be insulted or abused for asking questions which the witness perceives as contrary to his/her interests;

      i.Ensuring that the interpreter is an interpreter that the witness can understand.

    6. A number of test runs to check connectivity were scheduled for this matter before the first day of hearing but the father failed or neglected to participate.  It transpired that the father’s computer equipment was underpowered or incompatible in some respect with the equipment used by this Court.  We could see and hear the father and the father could see but not hear us.  Had the technological problems been known before the hearing commenced, the father could have been required to give evidence from another and better equipped location.

    7. I hold to the view that it is preferable for a remote witness to give evidence from a secured environment such as a court room attended by a court officer.  However, those conditions are frequently not available and we must do the best we can. I note that we cannot provide such facilities everywhere in Australia. 

    8. In this case, the father repeatedly tried to refer to Counsel for the wife as a “scammer”.  As soon as the father was asked, on behalf of the SCA, about his ability to comply with conditions to return, it was apparent that the father had no concept of the purpose of protective measures in the relevant sense.  Protective measures are a nuanced concept.  The left behind parent is asked to cooperate with, or to obtain, an order that precludes him from doing something that he is entitled to do or to refrain from doing something he maintains he has not done or will not do.  The left behind parent usually considers himself aggrieved by considerable wrongdoing by the taking parent and has difficulty understanding why he should co-operate with or obtain protective measures for the benefit of the taking parent.  In this case, Counsel for the Independent Children’s Lawyer was required to explain the concept of a protective measure to the father, and did so admirably.  However, the explanation should have been given in an environment in which the left behind parent did not have to be self-conscious about asking questions or appearing not to understand a feature of the proceedings.   

    9. The mother and father each required Portuguese interpreters.  Two interpreters were booked for the entirety of the trial.  The father’s interpreter proved unsatisfactory on the first day and a replacement interpreter was booked for the second day.  On the second day, only one interpreter attended Court and the video link to the father did not work.  It was not possible to proceed with the evidence and the matter was adjourned until 20 May 2019 estimated to take three days. 

    10. The father was not adequately prepared to give evidence electronically.  I do not know whether that is because he would not cooperate or because he was given insufficient opportunity to be informed.  Concepts with which the father should have been familiarised during the Hague mediation, did not appear to be understood by him.  Time was lost due to technological malfunctions and problems with interpreters.  Apart from delay, the requesting parent’s dislocation from proceedings must have been bewildering and distressing and are likely impact to some degree on his ability to accept as legitimate aspects of the outcome which are not favourable to him.

    11. I mention these practical difficulties because they had a real impact on the decision.  Had the matter been able to be concluded, as estimated, in the first three days of hearing, there was time available for me to write the decision.  As it was, I had to find further days for hearing when I would be in this Registry and further judgment writing time.  Three days was a responsible estimate but turned out not to be adequate for this case due to practical difficulties.  Hague cases are run under pressure of time and time also has to be found to write the decision.  As Campbell J observed in King Investments Solutions Pty Ltd v Hussain and Another [8] “[the realities of] the case listing procedures of the Court force judges to write reasons in whatever odd corners of time left over from the other duties ..”. That was the case here.

      [8] [2005] NSWSC 1076 at [164]

    12. All time was not lost. When taking of evidence from the father was not possible on the first day, some potential conditions for return were drafted and then sent to the father for consideration by him prior to giving evidence on the second day. I discuss the conditions in detail later in these reasons.  It is suffice to say that all parties agreed on the appropriateness of the conditions and that the SCA did so in the face of the father’s lack of enthusiasm for them.  The conditions were tendered and marked Exhibit “C1”.

    13. I originally listed this matter for judgment on 26 July 2019.  However, shortly before the matter was to commence an application was filed by the mother to reopen their case.  In broad terms she relied on matters which she said were not known to her at the hearing and on what she characterised as the lack of confidence she had in her legal representation.  The factual matters on which the mother relied was the possibility that an Interpol Red Notice had been issued which would cause her to be arrested immediately upon arriving in Brazil and that X was in need of an operation to insert grommets.  The mother also stated that X had been diagnosed with developmental delays.  There were two further dimensions of the matter.  Ultimately the mother consented to the application being dismissed.  The criteria governing the exercise of the court’s discretion to permit a party to reopen his or her case to admit further evidence, after the hearings concluded but before judgment has been delivered, are:

      ·the further evidence is so material that the interests of justice require its admission;

      ·the further evidence, if accepted, would most probably affect the result of the case;

      ·the further evidence would not by reasonable diligence have been discovered earlier;

      ·no prejudice would institute the other party by reason of the late admission of further evidence.

    14. Having regard to the matters which inform the court’s discretion, and on the facts as revealed in the mother’s material (such as it was), the mother’s decision to discontinue her application appears to be sensible and sound.  At this juncture it is appropriate for me to say that I found the conduct of the mother’s case by Ms Fisken to be skilled and entirely competent. 

    Evidence

    1. At trial the State Central Authority relied upon the following evidence:

      a.Form 2 filed 13 February 2019;

      b.The affidavit of the father dated 18 February 2019 and filed 4 March 2019;

      c.The affidavit of Ms Q affirmed 3 April 2019 which annexes the father’s affidavit dated 29 March 2019;

      d.The case summary filed 4 April 2019;

      e.The letter from Ms Martins, State Attorney for the Federative Republic of Brazil and Head of the Brazilian Central Authority, to the Australian Central Authority, dated 18 April 2019.

    2. At trial the respondent mother relied upon the following evidence:

      a.Her affidavit sworn/affirmed 13 March 2019;

      b.Form 2A filed 14 March 2019;

      c.Her affidavit sworn/affirmed 19 March 2019;

      d.The case summary filed 5 April 2019.

    3. At trial the Independent Children's Lawyer relied upon the case summary filed 5 April 2019.

    4. There was no consultation or Hague Convention report undertaken by a Family Consultant.  However, Family Consultant Ms J gave viva voce evidence, as in accordance with the next page, on the second day about the effects on X’s childhood development if she were to return to Brazil.

    5. There were also numerous Exhibits.

    Credit & Impression of Witnesses

    1. There were only three witnesses of substance, the requesting parent, the respondent mother and the Family Consultant.

    The mother and the father

    1. Neither the mother nor the father were witnesses in whose evidence I place much confidence.  That said, the facts in that case speak for themselves.  The appropriate place to test the veracity of their evidence is from the best interest of the child perspective of parenting proceedings, which these are not.

    2. There were obvious language issues but, even making allowance for comprehension, my overall impression of both was unfavourable.

    3. The mother was overly emotional. Whilst mostly on the brink of tears, she gave non-responsive answers to why she did not include the father’s details on the child’s birth certificate. My impression was that she was motivated to be overly emotional to avoid answering simple questions.  Her evidence to the effect that she applied for a second passport to issue for the child on the basis of the first birth certificate because she did not know that a further birth certificate which identified the father, had issued, was implausible.  It also does not explain why she did not provide the father’s details on the second application anyway. 

    4. An example of the mother’s failure to respond was in relation to the mother’s ability to pay airfares. I ordered that, unless the mother admitted the capacity to pay the return airfares for herself and the child to Brazil, she must file a Financial Statement by a specific date.  No Financial Statement was filed.  At a subsequent mention of the matter, the Court was informed by counsel for the mother that the mother could and would pay for the return airfares for herself and X if X’s return was so ordered.  However at the trial, this position changed and counsel then appearing for the mother said that she did not have the capacity to pay.  The mother still did not file a Financial Statement. In being cross-examined about her financial circumstances, the mother gave evidence that she had an investment with the bank.  When asked approximately how much she was receiving from this investment the mother said that she could not give an exact amount as it was not a consistent amount.  When asked on average what she received, the mother again did not give an answer but said that she did not want to say an amount that is not a “concrete amount”.  The mother did not provide a responsive answer. 

    5. The father was vague, argumentative and non-responsive.  He was crude and insulting to Counsel for the mother who comported herself in a dignified and professional manner.  An example of the father’s responsiveness was calling Counsel for the mother a “scammer” on two occasions,[9] stating that Counsel was not of “good character”[10] and that Counsel was a liar.  [11]

      [9] Transcript in Confidence, 20 May 2019, p 173, 34-47.

      [10] Transcript in Confidence, 20 May 2019, p 177, 15.

      [11] Transcript in Confidence, 20 May 2019, p 178, 1.

    The Family Consultant

    1. Family Consultant, Ms J, gave viva voce expert evidence about the effects from a childhood development perspective on X of implementation of the ex parte parenting order obtained by the father.  That order provides that X live with the farther and have fortnightly access with the mother.  A transcript of Ms J’s evidence, was later translated into Portuguese and provided to the parties and tendered into evidence as Exhibit “C2”.  

    2. The Family Consultant was provided with the facts of the matter prior to giving evidence.  The Family Consultant was asked to summarise the facts to show her understanding of the matter, which she did accurately.

    3. The Family Consultant said that she had not met the child and so her evidence was from a purely child developmental perspective.

    4. The Family Consultant provided her opinion about X’s opportunity to form relationships with more than one primary carer, being the maternal great aunt and, I think, the maternal grandmother.  The Family Consultant observed that, due to the mother’s travelling, there were a number of occasions when X was in the care of the maternal aunt.  A table was included in the father’s evidence which purported to summarise the mother’s absences from Brazil since the birth of X, both with and without X.  The father’s table of travel was not challenged.  A simplified version of the father’s table is as follows:

    Mother’s Travel

    (p. 10 of the Father’s Affidavit annexed to Ms Q’s Affidavit affirmed 3 April 2019 (pg 16))

    Date of Exit

    Date of Return

    Days

    X’s Age

    With/Without X

    22 May 2016

    6 June 2016

    16

    2 and a half months

    Without X

    5 July 2016

    13 July 2016

    8

    4 months

    With X

    17 July 2016

    22 July 2016

    5

    4 months

    Without X

    28 August 2016

    11 November 2016

    89

    8 months

    Without X

    28 January 2017

    21 March 2017

    52

    10 months

    Without X

    22 April 2017

    16 June 2017

    53

    1 year and 5 months

    Without X

    6 August 2017

    12 December 2017

    128

    1 year and 5 months

    Without X

    December 29 2017

    10 January 2018

    12

    1 year and 7 months

    Without X

    16 February 2018

    Travel to Country L then Australia

    -

    1 year and 10 months

    With X

    Total Travel Days

    765

    Total Travel Days without X

    355

    1. I asked the Family Consultant what she would foresee as being the difficulties or otherwise faced by a child in X’s position, transitioning into the father’s primary care and only seeing the mother for no more than two supervised consecutive days each fortnight.  The Family Consultant replied:[12]

      “Well, your Honour, if X were to experience such an abrupt separation from her mother as the provisions of the Brazilian courts orders provide, it is likely that this will impact adversely on her emotional and psychological well-being, both in the short-term and longer term.  A secured attachment relationship with one or more primary carers is crucial for successful mastery of developmental tasks in terms of children’s emotional and psychological development.  X has never met her father or any members of his family or anyone in his household and they remain strangers to her, but for a young child to be able to manage this transition from her mother’s care to her father’s care will be effective not only by her age and developmental stage, but also by her unique personality and her own temperament.  So it is likely that any distress that she might experience of being separated from her mother will either be externalised or internalised.  So, for example, the levels of distress may result in significant hyperarousal.

      …

      Increased emotional state resulting in her becoming increasingly unsettled and not being able to self-sooth.

      …

      It is also likely that this could increase to the point where the people who are not familiar to her will not be able to comfort her and provide her with the security that she perceives that she has lost.  This would be an external manifestation of her distress.  Alternatively, a child in this situation may internalise their distress and, in fact, shut down emotionally.  This response would not easily be recognised by people who do not know her and her observed behaviour may wrongly be interpreted as her being seen as a quiet child or a good child, a child who is no trouble at all, seeming not to miss or ask about her mother.  She may seem to be quite compliant and quite settled.  However, such behavioural responses could be an indication of significant emotional distress which, if not managed, may have prolonged and adverse impacts for the child.  But significant and prolonged emotional distress are also likely to impact on the child’s physical well-being.  For example, the child may stop eating, her sleep may be significantly disrupted and she may engage in self-harming behaviours which initially could appear to be attempts to sooth herself; for example, rocking, head banging, and biting herself.”

      [12] Transcript in Confidence, 9 April 2019, p 3-4, 10-15.

    2. I asked the Family Consultant about the impact of the child seeing the mother each fortnight for two days during the day.  The Family Consultant replied, “…it’s possible that each time she spent with her mother would re-traumatise her on separation.”[13]  I asked what the impact of such successive re-traumatisation would be and the Family Consultant replied, “In a general sense, your Honour, given that I don’t know this child, it’s likely to be significant and ongoing emotional and psychological trauma which will impact her development.” [14]

      [13] Transcript in Confidence, 9 April 2019, p 4, 15.

      [14] Transcript in Confidence, 9 April 2019, p 4, 20.

    3. I asked if X would be impacted into the medium term of three years.  The Family Consultant stated, “Specifically it’s likely to impact her ability to form trusting relationships with carers, with adults, and it’s also possible that her ability to moderate her own emotions will be significantly impacted.” [15]  The Family Consultant clarified that the effect on X’s ability to form trusting relationships in the medium term would be extremely damaging on her ability to start school, to leave the father’s home to attend school, to make friends and to accept the authority of teachers.  The Family Consultant said that this was likely.   

      [15] Transcript in Confidence, 9 April 2019, p 4, 25.

    1. I asked if the Family Consultant was able to say, from a child developmental perspective, what an appropriate arrangement might look like for X to be introduced to the father, in the event that I ordered the child’s return.  The Family Consultant responded:[16]

      “There’s several parts to that question.  So ideally a child-focused gradual introduction to her father at her place would need to be considered.  And given her age, short, more frequent visits are preferable rather than longer visits with a longer interval between them.  So initially visits could be as short as 10 to 15 minutes.  In terms of the experience for X, if her mother is indeed stressed, anxious, not wanting to be present, X is likely to be aware of those feelings and perhaps mirror them herself, and so some consideration would need to be given to a neutral person, ideally somebody that’s known to X or familiar to X to facilitate these initial visits.  As well as short, frequent visits are taking place, increasing gradually at the child’s pace, it would also be essential for communication to occur between the parents, specifically for the mother to be able to inform the father about the child’s routines, the child’s likes and dislikes, the child’s – the food that the child likes, toileting arrangements, effective soothing strategies and effective limit setting strategies.”

      [16] Transcript in Confidence, 9 April 2019, p 5, 5-20.

    2. Counsel for each party did not have any questions for, or cross examination of, the Family Consultant. I regard the evidence of the Family Consultant as unchallenged.

    3. It was agreed by all parties that it is important that the authorities in Brazil have access to the Family Consultant’s evidence.  I will direct that it be provided.  To avoid allegations on editing or impropriety, I will direct that a transcript of the Family Consultant’s evidence and the translation of it be annexed to these reasons when they are uploaded onto the court’s internet from where they will be able to be accessed in an anonymised form[17].

      [17] about the application of the law to the facts

      Exception: father was not actually exercising rights of custody when the child was first removed to Australia and those rights would not have been exercised if the child had not be so removed (reg.16(3)(a)(i))

      1. As mentioned above, the concept of actual exercise of custody rights appears twice in the Regulations. Once as a component of a wrongful removal in reg.16(1A)(e)[18]and then as an exception to mandatory return in reg.16(3)(a)(i)[19].  Discussion of the relationship between reg.16(1A)(e) and reg.16(3)(a)(i) has been far ranging appearing in early and relatively recent judicial decisions and in commentary by learned authors including Nigel Lowe QC (Hon) and Michael Nicholls QC[20], Rhona Schuz[21] and Paul Beaumont and Peter McEleavy[22].  It features in the Explanatory Report by Professor Elisa Perez-Vera, which Articles 31(2) and 32 of the Vienna Convention on the Law of Treaties[23] provide that it is permissible to consult.  The discourse contemplates how the requested court can be satisfied that the requisite right of custody was being exercised as a component of the wrongful removal or retention but also stand to be satisfied that the right of custody was not being actually exercised within the meaning of an exception to return.  Particularly as, by definition, the applicant has already established that the rights of custody were actually being exercised at the time of the removal or retention.  The predominant view is that the onus of proof rests with the applicant under reg.16(1A)(e), in whose hands it is reasonably easily discharged, to the respondent under reg.16(3)(a)(i) for whom the bar is set high.  There is also a distinction about who can hold the requisite right of custody.  Under reg.16(1A)(e) the right may repose in a number of people, an institution or a court whereas, under reg.16(3)(a)(i), the right of custody must belong to the person or entity requesting the return of the child.  As interesting as the discussion is, the distinctions are not relevant in this case.

        [18] Which implements Article 3b

        [19] Which implements Article 13a

        [20] Nigel Lowe and Michael Nicholls, International Movement of Children: Law, Practice and Procedure (LexisNexis, 2nd ed, 2016) Ch 19 and Ch 23. 

        [21] Rhona Schuz, The Hague Child Abduction Convention; A Critical Analysis (Hart Publishing, 2013) Ch 7 [III F].

        [22] Paul R. Beaumont and Peter E. McEleavy, The Hague Convention on International Child Abduction (Oxford University Press, 1999) Ch 6 [V].

        [23] United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.

      2. It was agreed[24] that the process for determining whether a left behind parent has the requisite right of custody involves three steps, as follows:

        a.First to establish what right the father had in relation to the child under Brazilian law immediately prior to the child’s removal to Australia (16 February 2018);

        l)Second, to resolve according to Australian law whether those rights amount to rights of custody within the meaning of reg.4, which includes rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child;

        m)Third, to determine whether or not the removal was in breach of the rights of custody including whether the left behind parent was actually exercising the rights of custody (as identified) or would have exercised them but for the removal of the child.

        [24] The parties adopted the process described in State Central Authority & Young (Rights of Custody) [2012] FamCA 843.

      3. The SCA’s position is that the father had rights of custody in relation to X under the law of Brazil.  The SCA relies on the affidavit of Ms Martins, Head of the Brazilian Central Authority, annexed to the Form 2 filed 13 February 2019 in which she states:

        “According to the Brazilian Civil Code, even if a parent is granted the sole custody rights over his/her child, it does not imply that the other parent has been deprived of parental responsibility, which includes the right to decide about any changes in their place of habitual residence.”

      4. Pursuant to Brazilian law, custody and parental responsibility are different in that custody refers to day to day care and parental responsibility refers to a broader decision making power such as the right to decide the child’s place of habitual residence.  The SCA submitted, and I accept, that where the left behind parent has a right to be consulted and to veto a change to the child’s habitual residence, that right amounts to a right of custody. 

      5. The SCA also relied on Article 1.634 of the Brazilian Civil Code, which provides that “both parents have the responsibility of exercise full family authority over their children” which includes decision making about the upbringing and education of the children, exercising custody, granting or denying consent to marry, granting or denying consent to travel abroad, granting or denying consent to change residence.  If there is no agreement between the parents about custody and both parents are able to exercise such rights, then pursuant to Article 1.584 of the Brazilian Civil Code, shared custody is implied. 

      6. The mother and the Independent Children’s Lawyer conceded that the father had the requisite rights of custody according to Brazilian law and Australian law.

      7. The mother alone contended that the father was not actually exercising his rights of custody when X was removed to Australia and would not have exercised such rights if X had not been removed. Ms Fiskin (for the mother) submitted, and I agree, that the relevant test is not whether the father had, as at 16 February 2018, abandoned his rights of custody or the exercise of them but whether, as a matter of fact, he was actually exercising his rights of custody or would have exercised those rights but for the removal (JS v SS 2003 SLT 344). For this purpose Ms Fisken relies on the father’s actions from the date of the child’s birth until 16 February 2018. Ms Fisken submitted, and I agree, that the focus is not on the mother’s conduct or her intentions and, in particular, whether the mother was adequately facilitating a relationship between the child and the father. Rather, it is an examination of the father’s conduct, and what actually occurred.

      8. There is no definition of “exercising” in the Regulations or the 1980 Convention. No party developed an argument about the meaning of “actually”. I am comfortable with the consideration given to the exercise of custody rights by the United States Court of Appeals for the Sixth Circuit in the 1996 decision of Friedrich v Friedrich 78 F.3d 1060 which concerned an interpretation of Article 3. There it was considered that the word “exercise” is to be given a liberal meaning and not be interpreted in a narrow manner. This is because the court which is requested to make a return order is the least equipped court to assess parental behaviour in the context of the law of the country of habitual residence. In my view, in the context of reg.16(3)(a)(i), once it is established that the rights of custody were being exercised, this court should feel similarly constrained and avoid making an assessment of how well or poorly the left behind parent has exercised rights of custody. An in-depth assessment of parental behaviour and the propriety of the parents, vis a vis each other and the child, are matters which fall appropriately to the court of the state of the child’s habitual residence as part of a best interests determination of parenting arrangements.

      9. Counsel for the mother relied on the inclusive description of family authority under Brazilian law. Family authority under Brazilian law includes: the right to direct the child’s upbringing and education, the right to exercise unilateral shared custody, to grant or deny the child consent to marriage, to grant or deny the child consent to travel abroad, to grant or deny the child consent to change the residence to a different municipality, to appoint a tutor, to represent the child in acts of civil life and to retain the child from those who may legally detain the child and to require the child to give obedience. It was submitted that as at 16 February 2018 the father was not actually exercising any of those rights of family authority.

      10. The mother relied on the following circumstances in support of her contention that the father was not actually exercising rights of custody as at 16 February 2018:

        a.the father has not met X or spent any time with X;

        n)the father had declined the opportunity to meet X when she was born and when the DNA testing was being conducted;

        o)the father was aware of her email address and had attempted to contact the mother via LinkedIn but he had made not attempts to arrange for time with X or ask about X or how she was;

        p)the father was aware of the address of the mother’s  apartment in City A, but that she received no correspondence from the father to this address;

        q)the father had not made any application to a court for access with the child.  

      11. The SCA relies on the father’s right to determine the child’s place of residence as his right of custody. In response, Ms Fiskin (for the mother) submitted that the father was not maintaining that right as at 16 February 2018 because he understood that the mother had removed X from Brazil without his consent as early as July 2016.  In cross examination Ms Fisken established that the father had made allegations that the mother was travelling to and from the United States of America for the purpose of taking money out of Brazil.  The father’s response was also that he assumed that X was probably in the care of the mother.  I am not satisfied that the husband had actual knowledge of the mother taking X from Brazil without his consent.  The father’s evidence was that he understood that the child could not be removed from Brazil without his consent. That understanding conforms with the law.

      12. I find that the father was exercising his ne exeat right immediately prior to the child’s removal to Australia and would have continued to do so had it not been for the wrongful removal. It does not matter that the particular right relied upon by the SCA is a right that can be exercised passively.  All that is relevant is that it was actually being exercised or would have been exercised but for the removal.

      13. I am not satisfied on the evidence that the father had any opportunity to meet the child either shortly after her birth or on the occasion of the DNA test.  However, even if he had failed to avail himself of any such opportunities, I would still find that he was exercising his right to determine the child’s place of residence at the relevant time.

      14. Ms Fisken relied upon the fact that the father said that he was not prepared, even hypothetically, to spend supervised time with the child in a contact centre. In cross examination, the father said that he considered the environment to be unsuitable. Ms Fisken submitted that this was indicative of the father not having played any meaningful role in X’s life.  I do not accept this submission.  Until 1 December 2017 a restraining order in force which precluded the father from approaching the mother.  There is no evidence that the father was at liberty to approach the child in the absence of the mother.  I accept the father’s evidence that he was not aware of the dissolution of the restraining order until January 2018.  There are many reasons why a father in the position of the requesting parent would elect not to have supervised access in a Contact Centre.  Ms Fisken’s reliance on this argument runs counter to her submission, which I accepted, that the focus is not on the father’s motivations but on what he actually did.

      15. Ms Fisken conceded that the father had paid child support although stressed that there was still arrears of child support outstanding.  Ms Fisken submitted that the father was not motivated by filial responsibility or family authority to contribute to the financial support of X by payment of child support.  Rather, the father paid child support in order to avoid a term of imprisonment which had been imposed on him.  I do not accept this submission.  Again it runs counter to Ms Fisken’s earlier submission, which I accept, that I should look to what the father actually did and, in this instance, he has been contributing to the financial support of X by payment of child support.

      Exception: there is a grave risk that the return of the child to Brazil under the Convention would expose the child to physical and psychological harm or otherwise place the child in an intolerable situation (reg.16(3)(b))

      1. The mother’s grave risk contention is multifaceted and particularised[25] by her as follows:-

        [25] Mother’s outline of Argument sealed on 5 April 2019 commencing page 5 paragraphs [2(i)]  to paragraph[2(ix)]

        a.The father harmed the mother at and after separation and a continuation of those behaviours would harm the child;

        b.On 23 October 2015 a judge hearing an urgent application by the mother found a “high level of animosity between the parties and legal disputes between them only re-enforces the need to keep them apart”;

        c.The father obtained a revocation of the protective orders (1 December 2017) without procedural fairness to the mother and there is currently no order in force;

        d.Parenting orders sought by the father, granting him custody of the child, were made on 28 February 2019 without the mother being served with the application or having notice of the proceedings;

        e.The parenting orders appear to have been granted ex parte the mother on the ‘untested evidence of the father, and on the unsubstantiated statement made by the mother’s 17 year old daughter of the mother”, Y;

        f.The father has made allegations against the mother of neglect of Y based on hearsay conversations between Y and the father;

        g.The parenting orders made on 28 February 2019 provide that the mother may have supervised access with the child for two periods of 8 hours twice a fortnight;

        h.The child has just turned three years old.  She has always lived with the mother spent no time with the father.  She has no familiarity with the other members of the father’s family that the  father deposes live in his household; and

        i.The father’s applications and affidavit material disclose a punitive approach and extreme hostility towards the mother and are not focused on the child.

      2. In my assessment, the allegations of grave risk as articulated in (a) and (b) above do not constitute a grave risk of harm or approximate an intolerable situation.  A return of X to Brazil will not require the parents to cohabit.  It is a sad fact that many children are exposed to toxic levels of parental conflict. High parental conflict is not new; it is our increased knowledge of child development that has led to a new and better appreciation of the negative impact of the conflict on children. The solution is not to avoid parental conflict by removing any and all interaction between the parents and/or between one parent and the child.  It is an examination by the courts of competent jurisdiction, with access to the best evidence, of what parenting arrangements will best protect a child from exposure to parental conflict.  That determination involves many things including an evaluation of each parent, their capacity to parent, their attitude to the other parent and their attitude to the child having a meaningful and positive relationship with both parents.  The remedy may be that the child is parented predominantly or exclusively by one parent which would necessarily involve a fine point assessment of which parent would be preferable.  Alternatively it may involve education of both parents with the view to changing their behaviour and/or appreciation of the impacts of their behaviour on the child.  However, this is not an exercise to be undertaken in a forum chosen by one parent to the detriment of the other or remotely from where relevant evidence and witnesses are located.  

      3. Allegations (c) and (f) above reference significant orders which operate to the mother’s detriment having been made without the mother having been accorded procedural fairness or on an imperfect record.  There is, however, no evidence to suggest that the mother could not apply for a further protective order or that she is precluded from seeking a review or discharge of the decision on 28 February 2019 on procedural fairness or other grounds including adducing evidence in response to direct evidence from the eldest daughter.  These are matters which point more to deficits in the mother’s ability to litigate responsibly rather than to deficits in the legal system in Brazil.

      4. I accept that the mother would benefit from the comfort of a protection order and a discharge of the recent parenting order but there is no evidence of her having taken any action to help herself in either respect. It appears that the mother initiated litigation against the father but took no proactive step in any litigation after the order was made for the paternity test by DNA sample. The mother cannot rely on the fairly predictable consequences of her actions, including her wrongful removal, in order to construct an intolerable situation for the child or for the child through her. As Butler-Sloss LJ cautioned in Re C (Abduction) [1999] 2 FLR 478 at 484 “how easily problems which arise in many child abduction cases caused by the actions of the abducting parent can be demonstrated by that parent to come within Art.13(b) and thereby frustrate a return under Art. (12).”

      5. Allegations (g) to (i) above concern the impact of the extant parenting order obtained by the father on 28 February 2019.  I accept the family consultant’s unchallenged evidence and I accord it significant weight.  I am satisfied that the return of X to Brazil and into the full time care of the father whom she has never met, would be fraught with danger and be intolerable.  However, what the child can reasonably be expected to tolerate upon return is to be assessed in light of any protective measures which can be put in place to ameliorate the perceived harm or intolerable situation.  That is what Baroness Hale and Lord Wilson referred to in their joint reasoning in In Re E (Children) (FC) [2011] UKSC 27, extracted at length above [15] in the following terms “the situation which the child will face depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home.”

      1. I will now consider protective measures or conditions to return as discussed during the case.  The proposed conditions to return, settled with the input of counsel, were as follows:

        “1. The father forthwith do all acts and things necessary to suspend the operation of the order made by Judge … of the Third Family and Probate Court in the Court of Appeals in the state of City A, Brazil on 28 February 2019 (“the Brazilian Order”) until the happening of whichever of the following two events last occurs:

        a.the expiration of four weeks following the return of the child X born … 2016 to Brazil;

        b. a competent court in brazil becoming seized of the matter and making an interim determination to the contrary.

        2.Until a competent court in Brazil otherwise orders:

        a. The child live with the mother;

        b. The father have no access or contact with the child by direct or indirect or electronic means without the prior written consent of the mother;

        c. The father not approach within 50m of the child and/or the mother or within 50m of the premises at which the child and/or the mother live, work or attend for day care or kindergarten;

        d. neither the mother nor the father remove the child from Brazil without the prior consent of the other.

        3. The mother and the father be each restrained from causing, permitting or suffering any proceedings to which the other party is a party to be initiated, issued, re-activated or prosecuted;

        a. otherwise than on notice to the other party; and

        b. which require the other party to attend or appear at court and/or prepare documents for a period of 4 weeks following the return of the child to Brazil.

        4.The father do all acts and things necessary to obtain a Brazilian passport for the child urgently and to facilitate the return of the child to Brazil pursuant to this order and the mother do all acts and things reasonably required of her to authorise, consent to and support the father’s application for the passport for the child.

        5. The father pay or cause to be paid the reasonable cost of return airfares for the mother and the child to return to Brazil via the United States of America or on such other route as contemplates the disembarkation of the child and the mother only in countries for which the 1980 Hague Abduction Convention has entered into force with Brazil.  The mother reimburse the father for such travel costs within 30 days of the return of the child to Brazil.

        6. Upon the arrival of the child in Brazil pursuant to this order, the mother cause the child’s passport to be delivered to …………. for safekeeping pending further order of the competent court in Brazil.

        7. The child not be required to be returned to Brazil until such time as the father has obtained orders from a competent court in Brazil which are equivalent to paragraph 1, 2 and 3 of this Order and the father has otherwise complied with paragraphs 4 and 5 of this Order.

        8.Without limiting the operation of the foregoing paragraph of this Order, if the father does not obtain orders from a competent court in Brazil which are equivalent to paragraphs 1, 2 and 3 of this Order within 90 days, the return order be and is hereby discharged.

        9. To verify the return of the child to Brazil:

        a. the mother notify her solicitor, the independent children’s lawyer and the applicant State Central Authority in writing by email that the child has arrived safely in Brazil;

        b. the State Central Authority (through the Australian Central authority) conduct a movement records search to confirm the child’s offshore status after the child is departed Australia stop the State Central authority (through the Australian Central authority) seeking a Brazilian central authorities confirmation that the child has landed in Brazil.”

      2. With the permission of the parties, I asked the Brazilian Hague Network Judge about the enforceability of orders made by the Family Court of Australia.  I also sought to ascertain whether the above conditions of return, if they were agreed to by the parties, could be ordered by the appropriate Brazilian Court.

      3. On 23 April 2019 the applicant SCA provided a letter dated 18 April 2019 from Ms Martins, head of the Brazil Central Authority.  The letter was in response to questions that the SCA had put to Ms Martins about the enforceability of the conditions as described in the direct judicial communication.  The questions and answers were as follows :

        1. Can the parties file consent orders in the Family Court in Brazil that can be made into interim court orders regarding temporary rights of custody and visitation in terms of the proposed conditions 1 to 3 above?

        ANSWER: Yes, they can present the conditions above to the Family Court, in the form of a provisional agreement signed by both parents, in order to have the Brazilian State Family Judge decide on its homologation/registration. Mr K’s attorney – or any other of their choice – can present a petition to the Court, on behalf of both parties, informing about the signing of the provisional agreement. Each party can also be represented by its own attorney, confirming his and her consent to the agreement to the same Family State Judge where the custody lawsuit is already taking place. The judge, after hearing the Public Prosecutor´s Office representative, that acts as a “guardian ad litem” on behalf of the interests of the child involved, may then homologate/register this provisional arrangement about custody and visitation. Once there is a judicial homologation of this order, its legal nature equates it to a judicial order. Custody (judicial) decisions can always be reviewed (they are not final), as the material circumstances related to the life of the child can change during time. The review of a custody judicial order can be filed by any parent, represented by a lawyer. In Brazil, there is a wide network of free legal aid available, at State and Federal levels, that any person – especially residents in Brazil – can access, if they do not have financial means to bear the costs of a private attorney to act on his/her behalf.

        Regarding the condition 2 (d), it is already forbidden in Brazil to remove a child from the country without both parent’s consent. The father or the mother may also cancel the passport of the child, if they prefer. The request to cancel a child´s passport can be presented by any of his/her parent, at any time, without the need of an attorney, directly at any unit of the Brazilian Federal Police. Any parent can also ask the State Family Judge to issue an order prohibiting that the child leave the Brazilian territory and this order will be communicated to all unites of the Brazilian Federal Police at airports and dry borders.

        Condition number 3 can be tricky, as the father does not have the power to interfere in any criminal investigation or prosecution against the mother. He can refrain from presenting new claims, but he cannot stop criminal proceedings if the Prosecutor’s Office decides to continue prosecution.

        In Brazil, as a Civil Law country, we do not have the legal institute of “mirror orders” or “safe harbour orders”. Any foreign judicial order, then, shall be homologated in Brazil (only if they are firm and final decisions) by a Superior Court (called Superior Court of Justice), in order to be enforced in Brazil. From you part, we do not recommend the use of this mechanism, for the following reasons: a) if this Court considers that another decision (on the merits of custody of the child) has already been taken in Brazil, the foreign decision may not be homologated, prevailing the Brazilian judicial decision; b) this procedure (homologation by this Superior court) can take more de 12 months to be completed, unfortunately.

        If the Australian Judicial decision including conditions to the return of the child is not “replicated” in the form of an agreement taken to homologation by the Brazilian Family Judge, this Australian decision will only be enforceable in Brazil after the homologation by the Brazilian Superior Court.

        That is why we strongly encourage the parents to sign an agreement replicating the conditions for the return of the child eventually included on the Australian decision, as long as this conditions do not create unnecessary obstacles to the fulfilment of the Hague Convention on International Child Abduction, or excessive burden on the parties and, finally, these conditions do not infringe the Brazilian legal system. 

        2. Is there any other means by which an order could be obtained in the Family Court in Brazil in terms of the proposed conditions 1 to 3 above?

        ANSWER: At this point and theoretically, we also envisage the possibility that Mr. K presents, throughout his private attorney, to the State Family Judge, a request to grant the mother the provisional custody of the child until they reach another solution for the case or until the 1st instance State Family Judge reaches a final decision to the case. This scenario is not very common on Family Law cases, though.

        3. Does the mother have to be present before the Court for the order to be made and if not present personally would she need to be represented?

        ANSWER: If they want to present a mutual petition she must be represented by an attorney. They can agree on using the same attorney, or she may hire a private attorney to represent her. She does not need to be personally in Brazil, though, to take part on the proceedings, as long as she is represented by an attorney of her choice. Of course, if the Brazilian Family Judge decides to have a hearing, it can consider more adequate to have the mother participating personally.

        4. Does the Court have any facility for holding the child’s passport in safe custody pursuant to an order of that Court?

        ANSWER: Yes, the Court may seize the passport of the child when she returns to Brazil, at any of the parent´s request. The court, as mentioned, can also request the Federal Police to impede the child to leave the Brazilian territory. And any of the parents can reach any unit of the Brazilian Federal Police to present a request for cancelling the child´s passport.

        5. Can the Brazilian Central Authority investigate whether there is any outstanding warrant for the arrest of the mother or is she facing criminal charges?

        ANSWER: BCA can ask for criminal records and eventually questioning the Prosecutor’s Office about any pending order, but they do not have any legal obligation to inform us about confidential proceedings. The father can also inform the Australian Court whether he has presented any criminal charges against the mother. It is highly unlikely, though, to have someone arrested by the child abduction charges brought against the mother in this case, as there is a wide consensus that when parents share custody of a child any of them can commit child abduction. It is unknown, to our Central Authority, that a parent has been arrested in Brazil as a result of international abduction of his/her own child.

        Please be informed that, in Brazil, the lack of payment of maintenance can also be a motive to arrest the debtor. This is the only case of civil imprisonment in our legal system. It is also de State Family Judge who decides on this issue, after a request of the parent that has the custody of the child. We strongly encourage the father to inform the Australian Court whether he has presented to a Brazilian Judge any requests of maintenance against the mother and, if so, whether he can withdrawal this request until the Brazilian State Family Judge of 1st instance reaches a final decision on the merits of custody (custody, visitation, parental responsibility and child support).

      4. By the time the above letter was provided to my Chambers and the parties, the Hague Network Judge from Brazil had put me in contact with the Brazilian Judge, Judge ., who had made parenting orders in Brazil on 28 February 2019.  The correspondence from the SCA was then provided to the Hague Network Judge and Judge ….  Judge … replied to the correspondence stating that “all the questions have been answered by Ms Martins” and added no further information concerning the matter.  

      5. A full history of the overall communication between myself and the Network Judge for Brazil and the trial judge, Judge …, was distributed to the parties and tendered into evidence as Exhibit “C3” and remains on the Court file. 

      6. I express my sincere appreciation to the judges from Brazil for their cooperation.  

      7. It is my assessment that, if orders as described above are obtained in Brazil, the impact of the recently obtained parenting orders will be neutralised.  That is not to say that engaging in parenting proceedings will be easy for the mother (or the requesting parent, for that matter) but the child will not be removed from the mother’s care arbitrarily or immediately upon the child’s return to the jurisdiction. 

      8. In the context of the mother’s abandonment of her application to reopen her case to admit fresh evidence, including fresh evidence of grave risk of harm or intolerable situation, I asked counsel for the mother whether the mother wanted to include a further safe harbour order which would provide for an alternative carer, other than the father, in the event that the mother was for some unforeseen circumstances separated from the child.  The answer was that the mother sought no such further condition.

      9. On the basis of the above, the mother’s contention that a return of X to Brazil will expose the child to a grave risk of harm or otherwise place the child in an intolerable situation, must fail.

      Discretion to refuse return

      1. Having found that there is no exception to return made out by the mother, I am required to order that the child be returned forthwith to Brazil and I will do so subject to the conditions for return being implemented.  However if I am wrong in relation to either exception to return relied upon by the mother, I can indicate that I would in the circumstances of this case, decline to exercise my discretion to refuse return.

      2. I have identified above the matters which inform the exercise of the court’s discretion to refuse return.  No evidence has been adduced about the unsuitability of Brazil as a forum to determine the parenting arrangements for X.  Brazil is the forum where extensive evidence is located.  The mother and father are both experienced litigators in proceedings in Brazil.  I am unable to say what the outcome of parenting proceedings is likely to be in Brazil other than they are to be determined with X’s best interests being a factor taken into account.  To the extent that I did have concerns about the situation which would await the mother and child if compelled to return, those concerns are ameliorated by the conditions which I will impose.  In particular the suspension of the recently obtained parenting order.

      3. In the context of my discretion to refuse return, I would also give consideration to the purpose and underlying philosophy of the 1980 Convention.  At first blush it may seem counterintuitive to order that X be promptly returned to the jurisdiction on the request of the left behind parent whom she has never met.  I accept that this is not the factual matrix that it is said the 1980 Convention was primarily envisaged to address.  At the time of negotiations, fewer countries would have contemplated that the ne exeat right could constitute right of custody per se and the recognition of the rights of ex-nuptial fathers was less prevalent than it is today. However, on my analysis this case is not a factual matrix which is excluded from the return remedy provided by the 1980 Convention.  The observation by authors Paul Beaumont and Peter McEleavy[26] is particularly apposite.  They say, and I agree:

        A custody right represents an identifiable legal link between an individual and a child.  If that right is breached, the legally responsible individual who has been disadvantaged will be able to petition for its restoration.  Moreover, this re-establishment of the status quo ante should be in the child’s interests, for he would be returned to his ‘home’ environment and possibly be reunited with his primary carer.  Indeed, when the Convention was drafted it was believed that this would occur in the overwhelming majority of cases.  Therefore, there was near total unity of purpose in protecting the breached custody right and in protecting the abducted child.[27]

        With the rise in shared parenting arrangements and the wide interpretation attributed to custody rights this is no longer the case.  The breached right may now be a very minor right, while the individual in possession of that right may have had a very limited relationship with the child in question.  Consequently, the unity of purpose which characterised the original stereotype and which inspired the drafters may no longer be present.

        Where this is the case and the breached right is the right to determine the child’s place of residence, the child’s link with his former home may be less and his sense of loss may also be more limited.  Nevertheless, a return order should still be made.  If a right of custody has been breached, no matter if it is only perceived to be a limited right, the child should be sent back to his home environment for his future to be decided there in accordance with objective criteria.  This is the only means of ensuring fairness to all parties involved.  Furthermore, it upholds the child’s right not to be wrongfully removed or retained abroad and it provides an appropriate basis for the child to have meaningful contact with both parents.[28]  

        [26] Op cit [86]

        [27] This is moreover conceded in the Official Report where it is affirmed that: ‘it can be regarded as one single object considered at two different times’.

        [28] Paul R. Beaumont and Peter E. McEleavy, The Hague Convention on International Child Abduction(Oxford University Press, 1999) Ch 6 [V].

      4. Accordingly, if I am in error about the applicability of either or both of the two exceptions to return relied upon by the mother, I would not have exercised my discretion to refuse to return X to Brazil.

      Conclusion

      1. For the above reasons I am satisfied that X was wrongfully removed to Australia by the mother and that no exception to return is applicable in this case.  Accordingly, I will order that X be returned forthwith to Brazil.

      Orders

      1. Drafting the orders will take some care.  At the conclusion of the hearing I announced that I would deliver these reasons for decision together with draft orders and I have done so.  I anticipate that over the next day or so the parties will have input into the drafting of the orders to include practical details not known to me such as flight details. 

      2. The mother has been a frequent traveller to destinations with and without X.  It is my strong preference that, if practicable, X be returned to Brazil on a route which would see the mother and X disembarking only in countries which are contracting states to the 1980 Convention.  However that may not be possible and is a matter upon which I would take further submissions from parties.   The father should be responsible for payment of the airfares subject to right to argue that they should be recovered from the mother in subsequent proceedings in Brazil.

      I certify that the preceding one hundred and sixty two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 August 2019.

      Associate: 

      Date:  29 August 2019

      ANNEXURE


Details
AGLC
State Central Authority & Del Rosario [2019] FamCA 607
Case
[2019] FamCA 607
Decision Date

CaseChat Overview and Summary

The case involved the State Central Authority and Del Rosario, concerning an application for the return of a child to Brazil under the Hague Convention. The wrongful removal of the child was conceded by the respondent mother. The primary dispute revolved around whether exceptions to the child's return, specifically the grave risk of harm or an otherwise intolerable situation, applied.

The court was required to determine if the respondent mother could establish an exception to the child's return to Brazil. This involved considering whether the father, who had never met the child, was exercising rights of custody at the time of the removal, and whether a grave risk of harm could be ameliorated by conditions imposed on the return. The court also considered how it would have exercised its discretion to refuse return had an exception been made out.

Bennett J found that while the mother had established a grave risk of harm, this risk could be mitigated by imposing specific conditions on the child's return to Brazil. These conditions included suspending a recently obtained Brazilian parenting order that would have placed the child in the father's care with only supervised time with the mother. The court reasoned that the father, despite never meeting the child, possessed a right to determine the child's residence, which could be exercised passively. The court ultimately ordered the child's return to Brazil, subject to a comprehensive set of conditions designed to protect the child and mother, including suspending the existing Brazilian order and requiring the father to obtain new orders from a Brazilian court that would grant the child residence with the mother and restrict the father's contact.

Orders

Orders of the court

IT IS ORDERED THAT

The order for return

1.

Subject to compliance with paragraphs 2, 3, 5, 8 and 12 of this Order on or before 1 April 2020, the child X born … 2016 be returned to Brazil.

Conditions to return

2.

The father forthwith do all acts and things necessary to suspend the operation of the order made by Judge … of the Third Family and Probate Court in the Court of Appeals in the state of City A, Brazil on … February 2019 (“the Brazilian Order”) so that the order remains suspended until the happening of whichever of the following two events last occurs:

a) The expiration of four weeks following the return of the child X born … 2016 to Brazil;

b) A competent court in Brazil becoming seized of the matter and making an interim determination to the contrary.

3.

The father forthwith do all acts and things necessary to obtain orders in the same proceedings in which the Brazilian Order was made which provides that, until a court in Brazil makes orders to the contrary:

a. The child live with the mother;

c) The father have no access or contact with the child by direct or indirect or electronic means without the prior written consent of the mother, and for the avoidance of doubt, this applies where the child is in Australia or Brazil or in transit;

d) The father not approach within 50m of the child and/or the mother or within 50m of the premises at which the child and/or the mother live, work or attend for day care or kindergarten, whether in Australia or Brazil;

e) Neither the mother nor the father cause, permit or suffer the removal of the child from Brazil without the prior written consent of the other;

f) The mother and the father be each restrained from causing, permitting or suffering any proceedings to which the other party is a party to be initiated, issued, re-activated or prosecuted;

i) Otherwise than on notice to the other party; and

ii) Which requires the other party to attend or appear at court and/or prepare documents for a period of 4 weeks following the return of the child to Brazil.

g) The father forthwith do all acts and things necessary to obtain a Brazilian passport or other travel document or permission for the child in order to facilitate the return of the child to Brazil and the mother do all acts and things necessary and required of her to authorise, consent to and support the father’s application for the passport or other travel document or permission for the child’s travel;

h) The father book, and pay, or cause to be paid, the cost of return airfares for the mother and the child to return to Brazil, via the United States of America or on such other route as contemplates the disembarkation of the child and the mother only in countries for which the 1980 Hague Abduction Convention has entered into force with Brazil. The date for travel be not less than 30 days after the prosecuting Victorian State Central Authority has provided copies of this Order to:

iii) The mother’s legal representative – …

iv) The Independent Children's Lawyer – …

v) The Associate to the judge seized of the Hague proceedings in Australia – …

i) The mother reimburse the father for such travel costs within 30 days of the return of the child to Brazil;

j) Upon the arrival of the child in Brazil, the mother cause any passport issued to the child to be delivered to a registrar in a court in Brazil for safekeeping pending further order of the court in Brazil;

k) To verify the return of the child to Brazil the mother notify her solicitor, the Independent Children's Lawyer and the applicant State Central Authority in writing that the child has arrived safely in Brazil and do so within 4 hours of disembarkation of the child in Brazil by email to the addresses set out in paragraph (g) above.

Provisions to secure return

4.

The mother do all acts and things necessary and required to support and facilitate the father obtaining orders from a court in Brazil as provided by paragraphs 2 and 3 of this Order including, but not limited to, providing her consent to such orders being made.

5.

The father forthwith do all acts and things necessary to obtain a Brazilian passport or other travel document or permission for the child in order to facilitate the return of the child to Brazil and the mother do all acts and things necessary and required of her to authorise, consent to and support the father’s application for the passport or other travel document or permission for the child’s travel.

6.

Forthwith upon receipt, the applicant State Central Authority send or otherwise provide the passport, other travel document or evidence of travel permission to the Independent Children's Lawyer for safe keeping and provide a copy to the mother’s solicitors and the Independent Children's Lawyer make arrangements for delivery of the passport, other travel document or evidence of travel permission to the mother to facilitate the return of the child to Brazil.

7.

Upon compliance with paragraph 2 and 3 the application State Central Authority provide a copy of the orders as issued by the court in Brazil to:

a. The mother’s legal representative – …

b. The Independent Children's Lawyer – …

c. My Associate – …

8.

Once the father has complied with paragraph 2 and 3 of this Order, the father book, and pay, or cause to be paid, the cost of return airfares for the mother and the child to return to Brazil via the United States of America.

9.

To the extent that it is possible to do so, the mother not cause permit or suffer either herself or the child to pass through immigration in the United States of America, en-route to Brazil, and/or to leave the international terminal.

10.

The mother reimburse the father for the cost of the airfares for herself and the child within 30 days of the return of the child to Brazil.

11.

The airfares be booked for travel from Australia not less than 30 days after compliance by the State Central Authority with paragraph 7 of this Order.

12.

In addition to paragraph 7 of this Order, immediately on purchasing the airfares the father provide evidence of same and details of travel to the Independent Children's Lawyer. The Independent Children's Lawyer notify the parties of the booking and provide tickets to the mother and copies of tickets and payment to the State Central Authority.

13.

The State Central Authority (through the Australia Central Authority) conduct a movement records search to confirm the child’s offshore status after the child has departed Australia. The State Central Authority (through the Australian Central Authority) seek a Brazilian Central Authority confirmation that the child has landed in Brazil.

Continuing injunctions

14.

The mother forthwith notify the applicant State Central Authority and the Independent Children's Lawyer in the event that she will not accompany the child back to Brazil.

15.

Pending the child’s departure from Australia for return to Brazil:

(a) The respondent mother by herself, her servants and/or agents continue to be restrained and an injunction issue restraining her, her servants and/or agents from causing or permitting or suffering the child, X born … 2016:

(i) 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;

(ii) To be removed from the State of Victoria; and/or

(iii) To reside at any place other than her present residential address or any other residence at which the applicant has agreed that the child may reside.

(b) A representative of Department of Health and Human Services (“DHHS”), Victoria be and is hereby entitled to contact the mother, visit the child’s residence and/or require the mother to attend with the child at a specified office of DHHS.

16.

The Australia Federal Police retain the name of the child X, female, born … 2016 on the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia until a letter from an officer of DHHS, State Central Authority is received advising of the travel arrangements made for the child’s return to Brazil from 12.00am on the date nominated for the said travel.

17.

All and any watch list orders or orders restricting the movement of the child in Australia be and are hereby discharged upon the presentation of the child for boarding the flight as advised in the preceding paragraph of this Order.

18.

IT IS DIRECTED that a sealed copy of this Order be provided forthwith by my Associate to the Marshal of the Family Court of Australia, the Commission of the Federal Police and 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.

19.

The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australia 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 this Order.

Other matters

20.

The translation of the evidence of the Family Consultant Ms J be annexed hereto.

21.

There be liberty to apply on short notice in relation to the implementation of this Order and variation, discharge and amendment of the machinery provisions of this Order (being all provisions apart from paragraph 1 of this Order).

22.

The mother, father and any lawyer, representative or advocate appointed to act on behalf of the child or to represent the interests of the child in Brazil be and is hereby at liberty to use these reasons for decision, this Order and documents filed or exhibited in this Hague return proceeding in any parenting proceeding concerning the child in Brazil but not otherwise. For the purpose of ensuring that any documents sought to be relied upon in Brazil is an accurate and complete copy of the original, an officer of a court in Brazil which is seized of the parenting matter may request my Associate, … to provide a copy of any document in this proceeding by email AND IT IS DIRECTED that my Associate provide same.

23.

The application of the State Central Authority filed 13 February 2019 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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