STATE CENTRAL AUTHORITY; DEPARTMENT OF HUMAN SERVICES AND KROBAS

[2013] FamCA 450

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY; DEPARTMENT OF HUMAN SERVICES AND KROBAS [2013] FamCA 450

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Child ordered to be returned to Greece

Family Law Act 1975 (Cth); Family Law (Child Abduction Convention) Regulations 1986

C v C (Abduction: Rights of Custody) [1989] 1 WLR 654
De L v Director General & NSW, Department of Community of Services & Anor (1996) FLC 92-706
Department of Community Services & Harris [2010] FamCA 261
Director-General, Department of Families and RSP (2003) FLC 93-152
Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011
Director-General, NSW Department of Community Services & JLM [2000] FamCA 1502
Director-General of the Department of Community Services & Timms (aka Black) (2008) FLC 93-376
DJL v Central Authority (2000) 201 CLR 226
DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401
Gazi and Gazi (1993) FLC 92-341
Gsponer v Director General, Department of Community Services, Vic (1989) FLC 92-001
Panayotides v Panayotides (1996) 21 Fam LR 446
Re F (A Minor) (Child Abduction) [1992] 1 FLR 548
SCA v Sigouras (2007) 37 Fam LR 364 at para 138

APPLICANT: State Central Authority; Department Of Human Services

RESPONDENT: Ms Krobas

FILE NUMBER: MLC 11991 of 2012

DATE DELIVERED: 14 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stoikovska

SOLICITOR FOR THE APPLICANT: Department Of Human Services

COUNSEL FOR THE RESPONDENT: Mr Stanley

SOLICITOR FOR THE RESPONDENT: Zenith Lawyers & Consultants

Orders

1. That the child S born … August 2002 (‘the child’) be returned to Greece pursuant to the Family Law (Child Abduction Convention) Regulations 1989 within 21 days of this order.

2. That the respondent purchase a one way ticket to enable the child’s return pursuant to paragraph 1 and provide the applicant with a copy of the e-ticket or itinerary of the flight four business days prior to the intended departure.

3. That upon receipt of the e-ticket or itinerary referred to in paragraph 2 the State Central Authority provide a copy of the same and a sealed copy of these orders to the Marshal of the Family Court of Australia and the Australian Federal Police.

4. That paragraph 1 of the orders made on 3 January 2013 be discharged and the Australian Federal Police remove the child’s name from the Airport Watch List immediately prior to the child’s return to Greece in accordance with paragraph 1.

5. That paragraph 2 of the orders made 3 January 2013 be and is hereby discharged.

6. That liberty is reserved to the parties to apply urgently in relation to the implementation of this order.

7. That all extant applications be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC11991 OF 2012

State Central Authority; Department Of Human Services

Applicant

And

Ms Krobas

Respondent

REASONS FOR JUDGMENT

1. The State Central Authority through the Secretary to the Department of Human Services filed an application on 31 December 2012 under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking final orders for a child S, born in August 2002, to be returned to Greece.

2. S was called T throughout the proceedings, referred to as “the child”.

3. The Regulations made under the Family Law Act 1975 (Cth) (“the Act”) give effect to the Convention on the Civil Aspects of International Child Abduction and again, for ease of convenience, I will refer to the Convention as the Hague Convention. 

4. Mr B is the child’s father. He lives in Greece and is the person who made the request under the regulations for the return of the child to Greece which in turn activated the process commenced by the State Central Authority.

5. The Respondent to this application is the child’s mother, Ms Krobas.  In these reasons, I shall refer to her as the respondent. 

6. On 3 January 2013, ex parte orders were made restraining the movement of the child from Australia and requiring that his and his mother’s passports be handed in to the registrar.

7. Service of the orders occurred quickly and the respondent appeared by counsel on 18 January 2013. By that date, the respondent had responded to the application and filed a number of affidavits. Much of that affidavit material was emotive and unhelpful but counsel indicated that, given an opportunity, the prolixity and irrelevancies would be addressed. The matter was adjourned to 15 February 2012 at which time, a variety of subpoenae had been issued and responded to. The material so produced was inspected.

8. The respondent filed new material much of which was still, at best, unhelpful and at worst, simply inadmissible. The material relied upon by the applicant was ultimately not a lot better but that could be explained by the fact that it had to come through various channels to Australia from Greece. Ultimately, the evidence is what it is and I have done the best I could.

9. On 25 March 2013, the positions of the respective parties were clear and I made an order for the preparation of a family report having regard to two significant issues. They were said to be that:

   (a)The child was expressing a strong wish not to return to Greece; and

   (b)The respondent was expressing her position that, regardless of an order for return of the child to Greece, she would not return there.

10. The family report was prepared by Dr C and her evidence is referred to further in these reasons.

11. The matter was set down for trial and was heard on 1 May 2013.

12. A number of matters were not in issue in this case but they need to be mentioned. The child is under the age of 16 years. He habitually resided in Greece, a Convention country, immediately prior to his removal to Australia. The application of the State Central Authority was filed within one year after the child’s removal. There is no suggestion that the father as the requesting parent consented to the child’s removal to Australia.

13. The Regulations embody the principles and objects of the Convention which recognises “that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence”. Here, courts do not decide which parent will have ‘custody’ of the child. It is important to make the distinction between returning the child to the country of habitual residence, and returning the child to the other parent: DJL v Central Authority (2000) 201 CLR 226; Director-General, NSW Department of Community Services & JLM [2000] FamCA 1502.

14. The respondent opposes the return of the child on three grounds. The first is that of grave risk of psychological harm to the child. The second is that an order returning him to Greece would create an intolerable situation. The third is that the child has an objection to returning to Greece.

15. Regulation 16(1) provides the power to make a return order. The Regulation mandates an order for return if the Court finds that the child’s removal was wrongful as defined in the regulations.

16. By Regulation 16(1A), the Applicant has the onus of establishing that the child’s removal to Australia was wrongful but even so, Regulation 16(3) provides that the Court has a discretion to refuse to make a return Order if the child’s mother establishes one or more of the matters identified in that sub-regulation.

17. The Applicant still bears the burden of proving each of the elements in Regulation 16(1A). Each of those elements needs to be established for a finding that a removal or retention was wrongful. Only then is the power enlivened to make a return order.

18. This application, along with most such applications, was dealt with on affidavit evidence alone.  The reason for that approach can be seen in the Full Court decision in Gazi and Gazi (1993) FLC 92-341 at 79,623. The process is designed as a summary one to deal with the speedy return of children found to have been wrongly removed from their habitual residence.

19. Whilst the process is summary and requires expedition, the Court has been cautioned about an “over-hasty and insufficient hearing” (see De L v Director General & NSW, Department of Community of Services & Anor (1996) FLC 92-706). The child came to Australia in October and as such a long period has elapsed to obtain this determination. That time however, enabled the respective parents to gather evidence about the disputed events leading up to the child’s trip to Australia. On the other hand, the delay has meant the child has lost touch with his paternal relatives and the friends from his habitual residence. Delay in a case such as this was unfortunate.

20. In cases such as this one where there is a distinct conflict in the evidence about what happened in the parents’ lives which forms the basis of the evidence giving rise to the removal, the Court can and sometimes should, allow cross-examination.

21. If, as here, there are evidentiary conflicts and the Court does not have the benefit of cross-examination, the solution lies as discussed in Panayotides v Panayotides (1996) 21 Fam LR 446 at 475. In that case, Jordan J at first instance said he had to do the best he could. His Honour said:

    I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.

    On the appeal in the Full Court, Fogarty and Baker JJ with whom Finn J agreed did not have a difficulty with the approach taken by Jordan J. That same sort of approach was endorsed in Director-General of the Department of Community Services & Timms (aka Black) (2008) FLC 93-376.

22. The approach set out above is that which I have taken with controversial facts some of which are made more difficult to comprehend because of the language and possible cultural differences.

23. On 16 October 2012, the child’s maternal grandmother was holidaying in Greece. That holiday seems to have been the precipitating event for the removal of the child to Australia. The respondent said that the child left Greece voluntarily with her after she had notified the Australian Embassy of her situation and the Embassy had approved the child’s visa. She then said that the father knew exactly where they travelled to. Having regard to all of the evidence, and to the extent that it matters anyway, I find that the child did not come to Australia voluntarily. It is agreed that the child’s father did not consent to the removal.

24. In her evidence, the respondent alleged:

    ·the father owned a gambling shop where he arranged illegal gambling games;

    ·the shop was an internet café and bar but that was a “front” for the gambling venue;

    ·the shop had no licence to permit gambling but tournaments were held and the husband collected money;

    ·the father is a person who had been unfaithful in the marriage relationship, made friends with and interacted with drug dealers and illegal gamblers as well as people of other nationalities of whom she did not approve;

    ·she was isolated from her family and friends and if she defied him the father would scream abuse at her, criticise her and physically push and shove her. She said he “stalked” her, continually checking her telephone records and having unnamed people watching her. She said that the child would corroborate the abuse;

    ·she was denied access to money and if she did use it she had to “report” what she had acquired including producing receipts. She said that he did not make funds available for her to run the household requiring her to beg for money from her own parents;

    ·the father made threats to kill her.

The background

1. The respondent and the father were married in Greece in 1999 and the child was born in August 2002.  The respondent describes herself as 38 years of age and a housewife by occupation.  The father has a variety of occupations but predominantly conducts a café which holds gambling tournaments but he is also a tradesman.

2. It would seem the respondent was born in Australia and undertook courses qualifying as a make-up artist.  The father connected the make-up artist issue with a matter that is referred to below.  The respondent produced a photograph purporting to portray injuries to her face and the father drew on not only her experience as a make-up artist but also significant photographs were tendered to show that she had previously used her skills with make-up to graphic effect.  I am unconvinced that I can draw any conclusion from any of that material.

3. In September 2012, the respondent’s mother went to Greece where she detected distinct unhappiness in her daughter and as I shall mention below, was very critical of the behaviour of the father.  That precipitated inquiries being made of the Australian Embassy in Athens and on 16 October 2012 without the knowledge of the father, the child was removed from Greece and brought to Australia.  The removal from Greece coincided with the issuing by the Australian Embassy in Greece of a visa for the child and that had been something that the respondent had been waiting on.  During the pending period after the application for the visa was made, life seems to have gone on as normal including the respondent’s mother having a meeting with the father’s parents at which no suggestion was made of any problems in the marriage nor more importantly, the impending departure of the child to Australia.

The respondent’s evidence

1. The affidavit filed on 1 February 2013 runs to 129 pages.  Much of it is conjecture, comment and statements hardly admissible on the grounds of relevance.  No objection was taken by either party to the material to be used for determination of these proceedings having regard to the fact that each side had the same dilemma.

2. The respondent’s evidence was that after she fell pregnant with the child, the father lost interest in her and he began an affair with the child’s godmother.  The father provided an affidavit by the godmother denying any impropriety and an affidavit by the godmother’s husband.  The respondent’s evidence on that issue, leaving aside the question of relevance, has therefore little weight.

3. The respondent also said that after she fell pregnant with the child, the father made friends with and interacted with people from a variety of cultures as well as drug dealers and illegal gamblers.  Nothing was said to support those allegations of impropriety and indeed, the father produced evidence to show he had no criminal history.  The respondent claimed that the police system was corrupt but again the evidence did not support such a conclusion.

4. The respondent asserted that these inappropriate people had worked for the father “years ago” and they would return favours for him such as “harming people, recovering monies, drug dealing”.  Nothing corroborated that accusation.  It was denied by the father.  The father’s denial was supported by a number of people whose evidence is referred to below.

5. The respondent said that she could only see her parents secretly and her parents were only allowed to see the child when she was at work at a shop that she owned.  She asserted that the father would not give her any money and everything was under his name.  Not only was that denied by the father but there was objective evidence of him purchasing a motor car and a motor cycle for her and a photograph tendered of the parties’ very significant home.  It was the respondent’s assertion that she had no money but that too flew in the face of documents provided by the father.

6. The respondent referred to a specific incident that has significance in endeavouring to work out who to believe. In June 2012, on her birthday, the respondent described a “brutal bashing” by the father. She said he dragged her by the hair, pushed her to the ground where she hurt her knee, spat on her, tore her clothes off and proceeded to slap and punch her over 30 times. He then took a knife and put it to her throat. Her own words describe what then occurred:

   (he) told me that he will kill me if I didn’t swear that I would take care of our son and that I never cheated on him, which I forcibly “swore” which is against my religion and it is a blasphemy.

   The respondent produced a photograph said to have been taken the following morning.  This was the photograph that the father urged had been taken after make-up had been applied.  Even assuming it had been, I am not in a position to find there is any consistency between any injury (if there was any) and the allegations by the respondent of having been assaulted.

7. The father’s version was entirely different. Apart from denying any violence ever in the relationship, the father said that on the respondent’s birthday, he and the child waited up for her because they had organised a surprise party but she did not arrive. He alleged that the respondent was with a lover and that he had text messages to support that. Some text messages were annexed to the father’s affidavit but just exactly what they mean and by whom and to whom they were written was hard to say but the respondent did not respond to any of the allegations.

8. The father did not mention what confrontation (if any) occurred after the respondent did arrive home but I have concluded that at least the respondent was content for the father to care for the child whilst she was absent. The cryptic nature of the respondent’s quote mentioned in paragraph 33 above enables me to infer that something happened and there was an argument. The extent of the argument is difficult to assess. I have the father’s evidence corroborated by witnesses that this was a normal happy family and there was no violent abusive relationship.

9. Curiously, the photograph tendered in evidence by the respondent appears to have been taken by another person. That person could have corroborated what was seen. No such evidence was forthcoming.

10. The respondent referred to her knee being injured and her clothes being torn. Each of those would appear to be objectively capable of being established yet no photograph of the knee or the clothing was produced. No evidence was led of an attendance upon a doctor for the knee injury if indeed that occurred.

11. Having regard to the approach that I earlier indicated I would take, I find on the balance of probabilities that the father’s version is the more probable and I therefore reject the evidence of the respondent about a “brutal bashing”.

12. The respondent then said that there were examples of occasions in front of the child where she was verbally abused and threats were made to kill her.

13. The child reported to the family consultant that he remembered his father often yelling and swearing at his mother and making a threat once in the night.  It is conceivable therefore that what the respondent reported about the nature of her relationship with the father was correct.  That has to be seen in the context of what this dispute is really all about.  This is not a parenting dispute and the question needs to be asked as to whether or not that evidence supports a conclusion that returning the child to Greece would create an intolerable situation for him or for the respondent.  Because of the overall findings I shall make in this case, I do not accept that it is.

14. The respondent’s position was that the father openly interacted with numerous lovers and she was too frightened to confront him yet the father produced photographs indicating happy times together.  The respondent described herself as a slave emotionally and physically but those emotive words were not supported by any evidence she presented and was contrary to the picture painted by neighbours, relatives, friends and even an employee of the father’s business. 

1. The respondent said that financially things were so bad that over the 13 year period she was pressured by the father to ask her parents for money and that these sums were paid on numerous occasions.  The respondent’s mother provided an affidavit making reference to the fact that the respondent had no money but she said nothing, and nor did the respondent’s father, about providing money.

2. The respondent said that the father was not involved in family life and whilst to some extent that was corroborated by the child in talking to the family consultant, he also indicated significant activities with his father.  A lot of pictures were tendered of those activities and affidavit material was provided by the father to show that the community certainly saw the parties as a family.

3. The respondent alleged that the child was involved in:

   gambling, hunting, mixing with thugs, making the child [gamble] with 60 or 70 year olds with money and making the child look out for police and to alert his father when [gambling] tournaments were in progress.

4. None of that evidence was corroborated by the respondent and indeed it is inconsistent with the statements the child made to the family consultant.  Importantly, this gambling business was a registered organisation and the respondent was very much part of seeking that legalisation for the reasons set out below.

The respondent obtains a visa in Greece

1. It was the respondent’s evidence corroborated by the maternal grandmother that she obtained assistance from Australian authorities in Greece.  The respondent had clearly gone to consular officials requesting assistance telling them she feared for her safety and that of her son.  Physical security was something that the government indicated it could not provide.

2. The consular official advised the respondent of the Hague Convention and told her that the father could apply to have the child return to Greece.  The respondent acknowledged that she was aware of that possible legal repercussion and thanked the consular official.  In a subsequent telephone conversation, the subject of the Convention was again raised and the respondent responded that she was aware of it and that she would deal with the matter when it came up.  This conversation involved the maternal grandmother. 

3. Thus, to the extent that the respondent’s argument was that she was provided assistance by the Australian authorities in Athens in the way she described, I have grave doubts about the accuracy of her evidence.  Nothing in the consular records indicated any support for the respondent’s version about a swift removal of the child to protect him from violence.

Guns

1. One of the issues raised by the respondent to show her fear of returning the child to Greece was the father having access to weapons.  Indeed, two guns were registered to her.  She produced photographs of the child holding guns and the products of hunting trips.  She made assertions that the child was effectively loose and in danger with all these weapons.

2. The father denied all of that and indicated that at all times the child was supervised but more importantly, said that he loved sports and that the child was also playing football and judo. He said the child liked to take photos of the guns as well as the products of the hunting.  He had made sure to point out to the child the dangers of handling a hunting gun and that he was not allowed to handle such a gun until he became an adult.  Again, the respondent did not deny such an allegation.  Her evidence including the photographs does little to assist me in relation to any of the issues here in dispute.

The gambling establishment

1. The respondent’s evidence about the gambling establishment was clear.  Not only did she assert the activity was illegal but that the child seemed to think so as well.  What puts that evidence into doubt is the father’s evidence of the formal establishment of the gambling club.  The document appears similar to the Articles of Association as they are known in Australia of a corporate entity.  Curiously, the respondent was one of the applicants to the relevant authority.  This application was only made in March 2012.  It will be remembered that this entire relationship was problematic from the respondent’s point of view.  In her evidence, the respondent made no mention of the connection she had with the club and her own mother’s evidence was that the respondent was required to work there in a capacity that could only be described as menial.

2. The respondent’s assertion that this was an illegal operation does not fit with the documentation produced by the father.

3. It is also significant that the respondent alleged that the father was associating with criminals yet not only did he produce evidence of his good character from the local police but also that his guns were licensed. 

Greek police and Greek authorites 

1. As earlier indicated, the respondent asserted that the father had criminal connections and was able to manipulate the relevant authorities.  She said that if she had remained in Greece to file charges against the father and sought custody of the child, it was so corrupt that it would take a long time and she would probably be found dead under a gutter.  She said the child heard these death threats.

2. The respondent asserted that the environment in Greece was “totally corrupt and pathetic”.  She said the father had abused every human right against her including holding her as a “slave”, depriving her of her liberty and freedom, dignity and security.  She said she was not able to obtain assistance of the Greek legal system because it was corrupt and the father had his own connections with the police and other agencies and was “complicit” in the corruption.  None of that evidence was corroborated by any document.  None of that evidence was supported by any of the father’s witnesses.  All of them described him as a model citizen and good family man.  Nothing was pointed to by the respondent to show that the Greek legal system cannot, and does not, efficaciously handle disputes involving children.  Nothing the respondent pointed to suggested that the law treats families differently to the law of Australia.  Indeed, the father pointed to the fact that family violence in Greece was treated seriously.

3. Having regard to the emotive nature of the assertions all of which were uncorroborated and my earlier comments about the implausibility of the respondent’s evidence, I again reject the assertion by the respondent that the child would be exposed to a lifestyle involving guns, criminal activity and corruption within the legal system.

The father’s evidence

1. All allegations of violence, abuse, illegal activity and poor parenting were denied by the father.  He produced evidence to show that the respondent and he jointly owned a house and that he bought her a car and a motor cycle.  None of that evidence was challenged by the respondent.  As for isolation, the father said that the respondent attended weight loss programs and indeed produced receipts for those programs.  It was said by the father that the weight loss programs were 240 kilometres away from the home.  None of that evidence was challenged by the respondent.  The maternal grandmother swore an affidavit in these proceedings in which she said that she used to live in Greece but because of the father’s “cheating” he would not allow the respondent to see her family until 2010 when the maternal grandfather had major brain surgery in Greece.  It was unfortunate that the affidavit of the maternal grandmother was replete with emotive conclusions rather than fact.  This was a long marriage and the statements of the maternal grandmother were therefore unhelpful to the respondent.  It is unfortunate that the solicitors who prepared those documents failed to act as a filter for the evidentiary purposes of their clients.

2. Having rejected the respondent’s assertion about the birthday incident and finding the evidence about the isolation implausible, wherever there is a conflict in the evidence of the father and the respondent on issues relating to conduct, I have accepted the evidence of the father.

The father’s death threat

1. One piece of evidence brought by the respondent and corroborated by the maternal grandmother was that the father made a death threat on a telephone call subsequent to the respondent’s arrival in Australia.  It was transcribed and translated and quite confronting.

2. The first batch of calls over the days after the child left Greece appear demanding but in so far as they were directed to the child, they were an emotive request for an opportunity to speak to him.  The calls that were directed to the respondent appear different.  They were forceful and at times threatening whilst also demanding a response and an explanation.  One such call was made on 22 October 2012 directed to the respondent’s father.  It said that the father had signed a contract for the respondent’s father’s death “if” he had taken the child to Australia.  It is clear that this telephone call was immediately after the removal of the child in circumstances where there had been an orchestrated campaign to get the child out of Greece over the preceding weeks and the father was oblivious to it all.  The message to the respondent’s father went on in a threatening tone.  In his evidence, the father acknowledged the call although he seemed to refer to it as having been made on 27 October.  He said that he made the call “because of my agony and anxiety about my child”.

3. Little turns on the rest of this evidence; it repeats the father’s assertions of denials. I accept that the threat to the respondent’s father was vivid but in the context of the numerous calls and recorded messages, it was difficult to see any other similar message directed to the respondent herself and certainly nothing but expressions of love for the child. Having regard to the timing of that telephone call, the threatening nature has limited weight and does not assist me in relation to the question of any of the respondent’s defences or exceptions as she is required to establish under the Regulations.

4. Each of the matters raised by the respondent mother is extremely serious. Each has consequences for the child. Allegations of family violence in its many forms arise in this case and if accepted would explain and justify why the respondent could not face the task of her own return to Greece. If so accepted, her inability to return has a serious impact on the child. Whilst the test for the determination of which version of the evidence is accepted remains the balance of probabilities, the words of Butler-Sloss LJ in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 resonate. Her Ladyship said that if there was extraneous evidence to support one version or the other, it had to be compelling before a party’s evidence was rejected unless of course, that party’s affidavit evidence was inherently improbable and so unreliable that it could be rejected. That is the case here.

The father comes to Australia

1. In his affidavit, the father referred to trying to come to Australia but being forbidden to enter.  The objective evidence mostly from the Department of Immigration records clearly shows that the father did make an attempt to come to Australia.  On 29 October 2012, the father arrived at Tullamarine Airport.  He was refused an immigration clearance because he was described as a “non-bona fide visitor”.  This curious document indicated that the relevant authorities conducted a baggage search and located a picture on a mobile phone of the father holding firearms and a printout of a Google map setting out the respondent’s address.  The relevant authority was in possession of information indicating that the father was coming to Australia to see his estranged wife but someone determined that he was acting aggressively.  It was not clear to me whether he was aggressive at that time but the notes go on to say that he remained “compliant” during any interview.

2. When interviewed, the father said with the assistance of a Greek speaking interpreter, he was coming to see his wife and son who were living with the maternal grandparents.  He told the officer that his solicitor was at the airport to pick him up and he acknowledged that he had had a fallout with his wife and she had decided to stay permanently in Australia but he wanted to take his son back to Greece.  He said for that purpose, he had engaged a lawyer.  The inference I have drawn from the document is that the relevant officer decided that it was inappropriate for the father to be admitted to the country.  He was then sent straight back to Greece.

3. I would not draw any adverse inference against the father in relation to that incident.

The respondent’s return to Greece

1. The respondent made her position very clear to the Court in her affidavits and to the family consultant to whom I shall refer below that she would not under any circumstances be returning to Greece if the Court ordered that the child return. Counsel for the State Central Authority submitted that the respondent’s stance was not genuine. It was submitted that her position was taken with knowledge of the Convention. With that submission I agree. It was submitted that everything the respondent had done had been directed towards mounting evidence as required by the Regulations but that the evidence did not meet the relevant standards. With that submission I also agree.

2. Whilst the maternal grandmother was very much involved in arranging the transfer of her daughter and the child to Australia, most of what she said in evidence arose from what she had been told but she too had been in touch with the relevant consular officials and well knew what was required to defend what was then expected to be a claim by the father for return of the child to Greece.  Accordingly, the evidence of the maternal grandmother must have little weight.

The evidence of the family consultant

1. An order was made for the parties to attend upon a family consultant and Dr C undertook that task.  Dr C noted the order was made to address issues generally but also to look at the impact upon the child of being returned to Greece without his mother having regard to the respondent’s assertion that she was the primary attachment figure for him.  She was also requested to look at the wishes including the strength of those wishes of the child.

2. Dr C knew the respondent’s position.  The respondent told her that she would not return to Greece even if the child was ordered to be returned.  She said she could not go there and would not be able to go.  She reiterated the threat by the father to which I have already referred.

3. Of the child, the family consultant said that he presented as a polite and friendly child who was nervous but he was able to articulate his feelings thoughtfully and fluently and spoke of matters of which he had first hand experience.  He said that both parents had encouraged him to tell the truth but that his father had been more insistent about talking to the family consultant about issues. 

4. It is of some significance that the child reported that his mother had surprised him with the trip to Australia telling him when he arrived that he would not be returning to Greece.  When the child was asked whether there was anything he missed in Greece, he said that he missed his friends a lot and his father “of course” and his dogs.  He repeated that noting that his mother was kind and loved him a lot just like his dad.  All of that seems to fly in the face of the respondent’s assertion that the child was in some form of danger.

5. Dr C examined the gaming activities and said that the child told her it was illegal.  The importance of this was that the child understood that if he saw police coming, he had to run and tell his father.  Having regard to the evidence of the father’s witnesses, that sounds remarkably like the child being influenced by the respondent.  It is consistent with the respondent’s assertion that the father was running an illegal establishment but the evidence of the father is entirely the opposite.

6. In relation to family violence, the child reported remembering his father often yelling and swearing at his mother including one night in which his father used words about killing his mother.  He reflected that his mother was sad all of the time but he did not know why.  He denied every experiencing physical discipline from his father.

7. As to the child’s reaction when he learned of coming to Australia and not returning, he said he was angry and wanted to know why.  It was his mother who had explained to him that she had been scared in Greece and when the family consultant inquired about how the child knew of the threats and the violence, the child said that his mother had told him.

8. On the issue of a return to Greece without his mother, the child said that he would feel “so bad” and on saying so, became teary.  He then elaborated indicating that he did not want to go by himself because he did not know who would look after him but then proffered that it might be his grandparents in the village.  He said it would be fine for him to return if his mother went as well.

9. Of the respondent, in interview, Dr C described that she was cooperative and somewhat anxious but presented also as fearful of the father and was adamant that her decision not to return would stand even if the child had to return under a court order.  She said her reason was that she feared for her life. 

10. The father too was interviewed by the family consultant by telephone with the assistance of a Greek interpreter and he thought that it was best for everyone to go back to Greece but sensibly, acknowledged that the long term impact of the child living without his mother was obviously not good.  He thought that he could provide for the child and his paternal grandparents would provide all the support he needed.  He said he felt that he could look after the child as he had done when the child’s mother had taken extended holidays in the past.  He did acknowledge however that during those periods of time he had assistance.  He described his ability to care for the child as fine even though he had work commitments.

11. Dr C said that if the child was ordered to return to Greece without his mother, it would likely result in significant distress for him and undermine his sense of safety and security but her observations of the child were that he was a resilient child with an even temperament who was well equipped to manage change.  She said he had no evident cognitive or behavioural difficulties that would pose further challenges for him over and above those expected of a ten year old child being separated from a primary caregiver.  She noted strong relationships with family and friends in Greece including his father and he would be returning to the place that he had lived all of his life.  It was those factors in Dr C’s opinion, that mitigated against the severity of the impact of the separation from the mother.

12. Dr C said that the child’s sense of safety and stability was likely to be increased if the planning around his caregiving arrangements were made which included regular communication with his mother.  That led to this statement:

    It is the writer’s view that, overall, [the child] is well placed to manage a change to his circumstances if his relationship with his mother is genuinely supported in the event of separation. 

13. In relation to the strength of the wishes of the child, Dr C noted that although the child demonstrated a capacity for independent thought, his views were based on the immediate rather than the long term consequences of returning or not returning to Greece.  She was of the view that the child had not reached an age or level of maturity whereby his views could be given any significant weight in determination of this particular case. 

Other witnesses

Ms A

1. Ms A is the respondent’s aunt.  She received telephone calls from the father in November 2012.  She said that the father asked her to tell the child quietly that he had been abducted by his mother.  Little else was said that was of relevance to this litigation.

Ms D

1. Ms D is the respondent’s mother.  She set out what her daughter had told her about the father’s alleged violence.  The descriptions were vivid so she told her daughter to contact the Australian Embassy in Greece who she said, granted her permission to leave the country and come to Australia as she had no-one to protect her in Greece.  As earlier mentioned, that evidence does not sit comfortably with the records of the Australian Government tendered in evidence.  I must find on the evidence that Ms D exaggerated the truth.

2. Ms D also made sweeping allegations against the father.  She said she could make them because she had witnessed these things yet the evidence did not go so far as to detail what she did see.

3. It was Ms D who contacted a variety of authorities in Australia including police who she said, took out an intervention order just in case the father came to Australia.

4. Ms D described her daughter as distraught and when she saw her, she had no clothes and nothing in the refrigerator.  That evidence does not sit comfortably with the observations of other people who seemed to know the family very well.

5. Overall, the evidence of Ms D has little probative value.

Mr E

1. Mr E is the respondent’s brother.  This evidence wandered through the brother’s conclusions about his mostly absent sister.  He was opinionated, lacking in facts and unhelpful.

Mr F

1. Mr F is the respondent’s father.  Apart from receiving the inappropriate message on the telephone from the father, this witness heard the father talk to the child on the telephone.  In unhelpful and emotive language, and without being explicit, the respondent’s father said that the father spoke to the child in a disgusting way, teaching the child to swear, making threats and manipulating him.  I do not know what that means but I find more cogency in the evidence of the family consultant who spoke to the child about his conversations with his father in positive tones.  Thus, this evidence too, did not address the relevant Hague Convention issues.

Ms G

1. Ms G is a hotel administrator who observed the respondent in Greece as a caring mother.  At the same time, the father was said to hardly ever be home.  Bearing in mind the focus of the family consultant, this evidence is more appropriate to a parenting dispute and does little to assist the respondent.

Ms H

1. Ms H swore an affidavit.  Her only connection with the father was that he did jobs for her.  She referred to the lifestyle she observed including holidays that the father and respondent and the child had as a family.  She described them as a loving couple and that the child had been spoilt by them.  This evidence has some relevance because of its objectivity.

Mr J

1. Mr J swore an affidavit.  He is a family friend who visited the family many times.  He did not see any problems in the parties’ relationship.

Mr K

1. Mr K said that his wife and the respondent were said to be friends for 12 years.  He described the respondent as happily married although in the last four years, he was critical of her as a homemaker.  Little turns on this evidence because it gives little credence to what was really going on in the father’s household.

Ms L

1. Ms L worked at the café business.  She said it was not illegal.  She described seeing the family at dinner and taking trips.  This evidence had objectivity about it even though the witness worked for the father. 

Ms M 

1. Ms M is a neighbour of the father who saw the father and the respondent visit almost every weekend for 13 years.  She described a happy family and a man who donated his money to his local church.  This evidence appeared objective and inconsistent with that of the respondent.

Mr N

1. Mr N is the paternal grandfather of the child.  His evidence was that the father gave the respondent large amounts of money.  While there is nothing to corroborate that, there is certainly evidence to show that in a material sense, the respondent did not seem impoverished.  As indicated earlier, there is a significant house and the father had purchased her a car and a motor cycle.  When she wished to attend weight loss programs, he paid for those expenses.

2. Mr N pointed out that the respondent visited him only just before the removal of the child to Australia and her mother was present.  He said no complaints were made and the mother and the respondent made no mention of this visit in their evidence.  This evidence gives weight to the applicant’s submission that the respondent’s evidence was less than plausible by comparison to that of the father.

Other witnesses

1. Other witnesses said much the same sorts of things as those set out above.  Nothing I read supported the respondent’s version.  Several of these witnesses appeared sufficiently objective to satisfy me that the respondent has embellished her evidence to such a degree that I could not find on the balance of probability that she was a truthful witness.   

2. I am satisfied that the applicant has established the threshold requirements thus placing the onus on the respondent to establish one or more of her grounds. I turn then to those grounds.

3. The respondent alleged that the child’s return would expose him to a grave risk of psychological harm from being separated from his primary carer and to some extent from the effect of witnessing the distress caused to his respondent through abuse from the father.

4. Both counsel referred to DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401 (“DP”). Gleeson CJ observed that ‘[t]he nature and degree of physical or psychological harm is unspecified, but guidance as to what is in contemplation is given by the words “or otherwise place the child in an intolerable situation”’; DP, supra, 407. See also C v C (Abduction: Rights of Custody) [1989] 1 WLR 654 at 664 (“C v C”), per Lord Donaldson of Lymington MR.

5. The gravity of the risk is a factual assessment made by reference to the intolerable situation.

6. The nature of the harm must be clearly established on the evidence to be of a significant level. That is, one that would create an intolerable situation for the child. The harm must be of a substantial or weighty kind (Gsponer v Director General, Department of Community Services, Vic (1989) FLC 92-001). Relevantly, distress that the child may suffer by returning to Greece is not sufficient to meet this threshold but rather a natural result of upheaval of his (and his mother’s) regular living circumstances. (DP at 418) It follows that the defence will be made out only in exceptional circumstances: see Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011 at pp 87,227–8. See also discussion re Director-General, Department of Families and RSP (2003) FLC ¶93-152 at p 24-360; SCA v Sigouras (2007) 37 Fam LR 364 at para 138.

7. In DP, Gaudron, Gummow and Hayne JJ considered Regulation 16(3)(b) and at pp 417-418 said:

   …What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is return. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.

   Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description ‘grave’. Leaving aside the reference to ‘intolerable situation’, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.

8. As pointed out by the High Court, the gravity of the harm involves a predictive assessment of the existence of the risk. The evidence on that issue comes from two areas. First, I have the respondent and her witnesses all of whom portray a dangerous physical and psychological situation in Greece but against which is the father’s portrayal of a functioning family life. On the balance of probabilities, I have accepted the father’s version. The second area of evidence lies in the expert views of the family consultant mentioned below. The child’s own assessment of the situation in Greece was more like that of his father. It is difficult in those circumstances to find there is any significant risk in the physical sense.

9. On the issue of the psychological risk to the child by being separated from the respondent, I have the objective evidence of the family consultant which in my view, supports a predictive conclusion that the child will be fine with the absence of the respondent depending upon how the transition is handled. I have no reason to doubt the father would handle that appropriately but I am unsure what role the respondent would fulfil as she has adamantly indicated that she would not return to Greece regardless of the decision of the Court. The difficulty with that approach is that in the short term, she would be leaving the transition entirely to the father and in the long term, her refusal to return would mean that there would be little prospect of any proceedings in Greece seeking the child be moved to Australia.

10. I accept that the inability (as distinct from a refusal) of the opposing parent to return to the child’s country of habitual residence could cause an intolerable situation for the child (see Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011; [2000] FamCA 253) but I do not accept that that is the situation here. The standard of care proposed by the father seems adequate so I could not find that returning the child to Greece would be intolerable on that basis. On my findings on the evidence here I could also not find that the respondent’s refusal to return to Greece arises from a well-reasoned fear of exposure of the child to violence between the parents (see Department of Community Services & Harris [2010] FamCA 261). Based on those findings, the Court must be cautious against accepting a situation in which the parent has created the psychological problem for the purposes of relying upon it. (see DP per Gleeson CJ at 410)

11. The Respondent has thus not discharged the onus of proof which she bears in establishing a ground of exception within the meaning of Reg 16(3).

12. In those circumstances, I am satisfied that a return Order for the children is required to be made under the Regulations, and for these reasons I make Orders in terms of the Orders set out at the commencement of these reasons.

13. I am therefore not satisfied that she establishes such a ground under Reg 16(3) so as to enliven the discretion in the Regulations to refuse to make a return Order.

I certify that the preceding One Hundred and Nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 June 2013.

Associate: 

Date:  14 June 2013