State Central Authority Secretary to the Department of Human Services and LeBeau
[2013] FamCA 715
•12 September 2013
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES & LEBEAU | [2013] FamCA 715 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – where the children were habitually resident in Greece – where the children have been wrongfully removed to Australia by the mother – where the mother has not established any exceptions to a return order – orders made returning the children to Greece. |
Family Law Act 1975 (Cth) s 111B
Hague Convention of 22 October 1980 on the Civil Aspects of International Child Abduction
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 8, 14, 16
| Re F (a minor) (Child Abduction) [1992] 1 FLR 548 Quarmby v Director General, Department of Community Services (NSW) (2005) 34 Fam LR 8 |
| APPLICANT: | State Central Authority Secretary to the Department of Human Services |
| RESPONDENT: | Ms LeBeau |
| FILE NUMBER: | MLC | 2533 | of | 2013 |
| DATE DELIVERED: | 12 September 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 19 and 20 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Stoikovska |
| SOLICITOR FOR THE APPLICANT: | Legal Services Branch, Dept of Human Services |
| COUNSEL FOR THE RESPONDENT: | Mr Stanley |
| SOLICITOR FOR THE RESPONDENT: | Nicholes Family Lawyers |
UPON NOTING the following undertakings of Mr Pappas:-
A.That he will not seek to remove the children from the care of the mother other than as may be permitted pursuant to any order of an appropriate Greek Court;
B.That he will pay all reasonable psychological and counselling fees incurred in respect of the said children.
Orders
That the application of the State Central Authority filed 3 April 2012 for the children B born … 2002 and C born … 2005 to be returned to Greece pursuant to Regulation 16 (1) of the Family Law Regulations be granted.
That the respondent mother Ms Lebeau do all things necessary to ensure the children are returned to Greece in forty five (45) days of the date of this order and to notify the applicant of the date and time of the departure and return not later than ninety six (96) hours prior to departure.
That pending the children returning to Greece the mother be restrained and an injunction is granted restraining her from removing or attempting to remove the children from the Commonwealth of Australia.
That the Commissioner of the Australian Federal Police and all Federal Agents and Australian Federal Police shall retain the name of the children on the All Ports Watch Alert System at all international departure points in the Commonwealth of Australia.
That the said children be removed from the All Ports Watch Alert System by Officers/Agents of the Australian Federal Police upon receipt of a letter from an Officer/Agent of the Department of Human Services on behalf of the State Central Authority advising on the travel arrangements for the said children to return to Greece on a date nominated for the said travel in the letter.
That the Marshall of the Family Court of Australia and Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Force and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders.
That if the respondent has not complied with the order of Justice Cronin made 5 April 2013 and in particular in respect paragraph 10 thereof THEN the respondent shall forthwith deliver up to the Registrar of the Family Court of Australia for safe custody any and/or passports held in the names of the children or upon which the children appear and be restrained from applying for any other further or other passports for the children pending further orders of this Court.
That paragraph 10 of the orders made by Justice Cronin on 5 April 2013 and the preceding order made this day be discharged as and from twenty one (21) days prior to the return of the children and that the respondent mother be forthwith entitled to collect any and all passports in respect of the said children lodged with this Court.
That immediately prior to the departure of the children from Australia paragraph 8 of the order made by Justice Cronin on 5 April 2013 be discharged.
That a sealed copy of these orders be provided forthwith to the proper Officer of the Australian Federal Police as soon as is practicable.
That there be liberty to apply.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCA & LeBeau 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 |
FILE NUMBER: MLC 2533 of 2013
| State Central Authority Secretary to the Department of Human Services |
Applicant
And
| Ms LeBeau |
Respondent
REASONS FOR JUDGMENT
Introduction
On 5 April 2013, proceedings were issued pursuant to the Family Law (Child Abduction Convention) (Regulations) 1986)(Cth)[1] by the Secretary to the Department of Human Services (“State Central Authority”)[2] seeking orders for the return of B and C (“the children”) to their place of habitual residence in Greece.
[1] Hereafter referred to as “The Child Abduction Regulations”. The Child Abduction Regulations are the means by which the Commonwealth of Australia has elected to give effect to its obligations of a signatory to the Hague Convention of 22 October 1980 on the Civil Aspect of International Child Abduction Regulations (hereafter referred to as “The Child Abduction Convention”). The Child Abduction Regulations are made under Section 111B of the Family Law Act 1975 (Cth) (hereinafter referred to as “The Act”).
[2] The Attorney General of the Commonwealth has appointed the Secretary to the Department of Human Services for the purposes of the Child Abduction Regulations pursuant to Regulation 8 of the same.
The children currently reside in Australia with their mother Ms LeBeau (“the mother”).
The children’s father Mr Pappas (“the father”) continues to live in Greece. He has signed an authority empowering the State Central Authority to act on his behalf in respect of the application at hand.
Regulation 14 provides:-
(1)If a child is removed from a convention country to, or retained in, Australia:-
(a)the responsible Central Authority may apply to the Court, in accordance with Form 2, for any of the following orders:-
(i)a return order for the child;
(ii)an order for the delivery of the passport of the child, and the passport of any other relevant person, to the responsible Central Authority, and member of the Australian Federal Police or a person specified in the order, on conditions appropriate to give effect to the Convention;
(iii)an order for the issue of a warrant mentioned in Regulation 31;
(iv)an order directing that:-
(A)the child not be removed from a specified place; and
(B)members of the Australian Federal Police prevent the child being removed from that place;
(v)an order requiring that arrangements be made (as necessary) to place the child with an appropriate person, institution or other body to secure the welfare of the child, until a request under Regulation 13 is determined;
(vi)any other order that the responsible Central Authority considers appropriate to give effect to the condition; or
(b)a person, institution or other body that has rights of custody in relation to the child for the purposes of the Convention may apply to the Court in accordance with the Form 2, for an order mentioned in subparagraph (a) (i), (ii), (iii), (iv) or (v).
Accordingly, sub-regulation (1) is directed to a circumstance where a child is removed to Australia (or retained in Australia) from a convention country. In the current circumstances Greece is the “requesting State” in which it is alleged that the children were habitually resident at all relevant times but in the circumstances of this case, at the time of their retention by the mother.
If the circumstances of the removal or retention of the children satisfy the conditions precedent under the regulations, an order for the return of the children to the requesting State must be made unless one or more of the exceptions to mandatory return pursuant to Regulation 16 (3) is or are established. If one of the exceptions to mandatory return is established consideration to the exercise of discretion must be undertaken pursuant to Regulation 16(5) which provides:-
The Court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
The tension in Hague Convention proceedings is the extent to which a court considering an application for return of a child to a requesting country should take into account matters that might be considered relevant to a consideration of the best interests of the child. Matters that would normally involve the interests of the child as “the paramount consideration” do not apply in proceedings under the regulations. Regulation 16 requires that in some circumstances the obligation to make a return order is mandatory. Even though there is some scope to exercise discretion as to whether a return order should be made, any such consideration does not involve considerations of the best interests of the child as “a paramount consideration”.
In Quarmby v Director General, Department of Community Services(NSW) (2005) 34 Fam LR 8 the Court was faced with an application for contact by a sibling of a child the subject to a return order to the USA. The court was required to consider whether the contact application took priority over the Hague Convention application. Ultimately the court disposed of the issue in the following manner:-
[63] ultimately this case is about selecting the forum in which it is appropriate that issues relating to S‘s future residence be determined. The Hague Convention and the Abduction Regulations mandate that in the circumstances of this case, the child having been wrongfully removed from the USA, the appropriate forum is a court in the USA. The issue of contact raised by A in relation to her ongoing relationship with her sister will no doubt be matters that will be properly considered in the USA in relation to any application brought by the mother for a residence order and permission to bring the child to live in Australia.
The relationship between convention proceedings and parenting proceedings has been the subject of significant judicial consideration. The remarks of Kirby J in DP v Central Authority; JLM v NSW Department of Community of Services (2001) FLC 93-081 at [128] are apposite:-
It is in this sense that provisions such as those in the regulations are properly to be classified not, as such, as laws searching for the best interests of the child but rather as laws for selecting the forum where that search is to be undertaken and concluded. It is easy enough to slip back into a factual enquiry into the child’s best interests, that having for centuries been the duty of common law courts in disposing of analogous cases. That such a tendency must be resisted or otherwise the attainment of the main point of the regulations and the convention will be frustrated.
The mother concedes that the retention of the children in Australia is wrongful having regard to the Child Abduction Regulations. Importantly, the following matters are conceded and therefore do not require judicial determination:-
a)The children were habitually resident in Greece immediately before their retention in Australia;
b)The father exercised a right of custody in respect of the children and that their retention was in breach of those custodial rights; and
c)The proceedings were filed within one year of the wrongful removal.
Issues of agreement and contention between the parties
Outlines of Argument were filed on behalf of the State Central Authority and the mother. These documents helped to crystalise the matters that were agreed and the matters that remained in dispute between the parties.
As such, I will turn to the applicable regulations of the Child Abduction Regulations to highlight the areas in which the parties are in agreement and where they are not.
Subject to the mother being able to satisfy one or more of the exceptions contained in sub-regulation 16(3) of the Child Abduction Regulations, sub-regulation 16(1) provides that an order for the return of the children to Greece must be made.
Sub-regulation 16(3) of the Child Abduction Regulations provides:-
(3)A Court may refuse to make an order under sub regulation (1) or (2) if a person opposing return establishes that:-
(a)the person, institution or other body seeking the child’s return:-
(i)was not actually exercising rights of custody when the child was removed to, or first retained in Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:-
(i)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity at which it is appropriate to take account of his or her views; or
(d)…
The exceptions provide a means by which a respondent may resist an application for a return order despite the applicant establishing the factors referred to in sub-regulation 16(1) of the Child Abduction Regulations (and by necessary corollary, by establishing a wrongful removal or retention of a child has occurred with reference to the factors in sub-regulation 16(1A) of the Child Abduction Regulations.
As discussed previously the mother concedes that at the time of retention the father was exercising rights of custody and further she does not raise any argument that the father either consented or subsequently acquiesced to the child being removed to or retained in Australia. It should be noted that in the response and cross application the mother alleged as follows:-
·That the father consented and subsequently acquiesced to the removal and retention of the children in Australia.
·That a grave risk exists if a return order is made.
·That the children object to being returned and that it would be proper to have regard to their wishes and maturity, and
·The return of the children would not be permitted by fundamental principles of Australia relating to the protection of human rights and fundamental freedom.
The mother however abandoned all other grounds of opposition other than as arises under sub-regulation 16(3)(b) of the Child Abduction Regulations which provides:-
13.A court may refuse to make an order under sub-regulation (1) or (2) [for the return of a child] if a person opposing return establishes that:-
(b) there is a grave risk that the return of the child to the country in which he or she habitually resides immediately before the removal or retention, would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The Summary of Argument prepared on behalf of the mother focused on three purported aspects to grave risk namely:-
(a)there is a grave risk to the children of psychological harm from sexual abuse and the absence of facilities in Greece to assist victims of such trauma;
(b)there is a grave risk to the children of psychological harm and being placed in an intolerable situation through their mother being adversely impacted upon by the effects of domestic violence;
(c)that a grave risk of psychological harm arises if the mother is incarcerated upon her return to Greece for “parental child abduction under the Greek Penal Code”.
The above matters are summarised by the mother in her affidavit filed 9 May 2013:-
86. That I oppose the return of the children to Greece for the reasons as set out in my answer filed contemporaneously herewith.. The only reason for not returning to Greece is my concern as to the physical and psychological health of the children. The children will be irreparably psychologically harmed if they are required, against their wishes, to return to Greece where the alleged sexual abuse occurred. They will be placed in an intolerable situation because of the fact that they are petrified of their father and other perpetrators and due to the disclosures which have been made by them as to the physical and psychological harm inflicted upon them in Greece.
87. The question of the children’s disclosures ought to be addressed in Australia rather than in Greece as the children have already made disclosures to a number of authorities in Australia and the psychological impact and risk of ordering the return of the children to Greece is unacceptable. It would be inappropriate for the children to be required to be re-interviewed by the Greek police or sexual assault units or for the investigation to take place in the country where the alleged sexual assaults occurred.
88. That in addition, the children will suffer severe psychological harm if required to return to the place where the events disclosed have occurred.
89…
90…
91. That I reiterate, that my actions have solely been motivated by the disclosures made by the children. Prior to disclosures being made, when I first arrived in Australia with the children, I would send the husband photographs of the children….
Accordingly, whilst the mother initially raised consent or acquiescence as a defence to a return order, any reliance on Regulation 16 (3)(a)(ii) has been abandoned.
Similarly, at trial there was no reliance on Regulation 16 (3)(c) or (d).
Whilst the initial reliance upon Regulation 16(3)(c) was ultimately abandoned, the Family Consultant Mr D at page 27 of his report considered the maturity, cognitive and emotional development of the children, their views and their willingness to return to Greece in the following terms:-
C. [B] and [C] would appear to have developed mentally age appropriate verbal and cognitive skills. However overall this writer does not form the view that either child has reached an age or level of maturity whereby their views could be given any significant weight by the court in determining current issues before the court, especially taking into account the added complexities of the case. There were no indications, observations or other evidence to suggest that the children’s views were influenced by any outside influences however, this cannot be totally discounted at this stage.
D. [B] and [C] both stated that they did not wish to return to Greece, citing fear of being further abused by their father. If there is credence to their assertions this stance is totally normal and acceptable. Both children indicated however that if they had to return to Greece their level of psychological comfort would be greatly increased if they remained in the care of their mother. Often, children experience difficulty separating their feelings in relation to a person and a place. In this instance the children appear to have vivid and fond memories of Greece and their social and personal interactions there. However, they state they do not wish to return because of the way their father treated them. Therefore it is not entirely clear to the writer that the children are objecting to returning to Greece per se. In addition it was noted that the strength of both children’s objections were not overly demonstrative, dramatic or entailing excessive emotional content indicative of an inordinate and severe objection.
Whilst not pressed by the mother, her evidence put before the court by would fall significantly short of the proof needed to establish on the balance of probabilities a defence under Regulation 16(3)(c) and (d).
The remaining issue for determination is whether the mother can establish that there is a grave risk that a return of the children to Greece would expose them to physical or psychological harm or otherwise place them in an intolerable situation. As part of the entirety of the mother’s case I am obliged to assess evidence as to the following matters:-
·The allegations relied upon by the mother of sexual abuse in respect of the children;
·Allegations of domestic violence;
·The extent to which if the mother returns with the children to Greece upon the making of a return order she is at risk of incarceration;
·The availability of professional, emotional and/or psychological support for the children in Greece (including the financial resource of the mother to be able to pay for same);
·The prospect if any of the mother being incarcerated following any charge of child abduction pursuant to Greek law;
·The ability of the mother (and the children) to be protected under Greek law from further violence by the father.
At the outset of the proceedings the mother has made it clear that if there is any return order made she will accompany the children as their primary carer. It is also accepted that the maternal grandfather will accompany the mother back to Greece and will provide a significant level of support. The mother has also submitted that she will bring proceedings seeking parenting orders either in Australia if allowed to remain or in Greece if the children are the subject of a return order. Importantly, I am not required to consider the consequences of a return order being made which would see the children being placed in the care of the father.
Background
The father is 48 years of age and born in Greece. The mother is 40 years of age and born in Australia. She holds both Australian and Greek citizenship. Her father Mr LeBeau Snr (“the paternal grandfather”) and Ms Lebeau Snr (“the maternal grandmother”) were born in Greece but moved to Australia. The family lived in Melbourne until their return to Greece in 1988.
The father and mother met in 1998 and married in Greece in 1999. The parties lived in a marital relationship in Greece until the wife travelled with the children to Australia.
Both the children were born in Greece.
According to the father the parties experienced no disharmony until 2009 when the mother began to accuse the father of having an extra marital relationship. The father alleges that the mother started to consult with a psycho-therapist namely Ms E on an ongoing basis until July 2012. In summary, the father denies that there was any cause for the wife’s concern and that it was her behaviour which became increasingly hostile, irrational and unpredictable.
The mother denies that the marriage was harmonious until 2009. She alleges that the husband was “extremely controlling, aggressive and physically abusive”.
In paragraph 11 of the wife’s affidavit filed 9 May 2013 the wife sets out various events which on her case demonstrates the extent of the husband’s abusive and threatening behaviour. The allegations of abuse are extreme and involve verbal denigration of the wife in front of the children, various attempts at strangulation on a frequent basis and about once a week, attempts at suffocation, numerous assaults and threatening behaviour with a knife. In the proceedings the wife did not resile from the extreme nature of the allegations and relies upon them to support her contention that the husband was domestically violent whilst the parties were together and that she is fearful for her safety and that of the children if she is required to return to Greece following any return order made in respect of the children.
The husband denies the wife’s allegations both in respect of any threatening or aggressive behaviour towards the wife or as later alleged in respect of any sexual abuse of the children.
In February 2011 the wife’s parents returned to Australia. It seems that it was their intention to leave Greece and reside permanently in Melbourne. In June/July 2011 the wife experienced panic attacks and consulted a psychiatrist Dr F. Importantly, the wife was accompanied on at least some of the consultations by her sister Ms G LeBeau (“the wife’s sister”). I mention the involvement of the wife’s sister because it is later alleged by the wife that she was involved in and integral to the sexual abuse and assault perpetrated on the wife and the children. The fact that the wife alleges that her sister was involved is a matter of adverse comment by the Central Authority who submitted that the very suggestion of the wife’s sisters’ involvement casts significant doubt on the entirety of the allegations raised by the mother.
Between April 2012 and early July 2012 the father admits that there was serious marital difficulties between the parties. The mother continued to seek professional help from Ms E and in an attempt to reconcile their differences the mother proposed that she travel to Australia over the Greek school summer holidays and spend time with her parents. The expectation of the father was that the mother and children would return to Greece at the end of the holiday period. It was contemplated by the father that he would join the family in Australia.
It would seem that it was the expectation of the children that they would also return to Greece at the conclusion of the holidays. The father sets out a narrative penned by his daughter on 24 May 2012 in the following terms:-
How I plan to spend my summer:-
I can’t wait for beautiful summer to come. I will go to Australia for 3 months. I will see my grandma and my cousin [H]. Then I will return to Greece. Then I will see my grandpa and my friends and [Ms I] (teacher). I will see my aunt and my uncle and [Ms J] and my cousins [K] and [L]. I will go to the beach and I will swim in my mum’s, aunt’s pool. My brother will have a party on the beach.
On 4 July 2012 the mother and the children left Greece and travelled to Australia. The father submits that the mother did not at any stage indicate an intention to permanently reside in Australia with the children. As can be interpreted from the affidavit of the mother she also intended to return to Greece with the children in August 2012. It is however a submission of the Central Authority that when the mother left Greece, contrary to her evidence, she had no intention to return and the allegations raised by her both as to domestic violence perpetrated upon her and sexual abuse upon the children are allegations concocted to achieve a plan of leaving Greece with the children.
The father had difficulty in contacting the mother and the children and eventually when contact was made the mother informed the father of serious allegations of sexual abuse and misconduct possibly in the presence of the both children but certainly in the presence of the parties’ son. It was further alleged that the children had made serious allegations of sexual abuse against the father.
At paragraphs 26, 27 and 28 of the father’s affidavit sworn 27 December 2012 filed in support of the application, he sets out allegations made by the mother in telephone conversations on 1 and 2 August 2012. In particular it is asserted by the father that the mother alleged that he was having sexual relations with the following people:-
(1)His 75 year old mother who resides in the country;
(2)A 26 year old male employee of the father;
(3)A patient of the father; and
(4)Someone called Mr M.
It is also alleged that the father took part in sexual orgies with the abovementioned people in his physiotherapy clinic in the presence of their son. At paragraph 36 and 37 of the mother’s affidavit filed 9 May 2013 she admits the entirety of the allegations. Consistent with my view of allegations involving domestic violence against the mother and the sexual abuse of the children, I find the allegations to be both bizarre and incredible.
On 2 August 2012 the father was advised that the mother would not return to Greece with the children and further bizarre allegations were made including an assertion that the father was a Satan worshipper, had tried to suffocate the mother with a pillow, was planning to marry her sister, was wearing her clothes, had raped the children, was consuming drugs and was engaged in sexual acts and orgies. The mother does not resile from these allegations and again I find them to be both bizarre and incredible.
The father sought assistance from the relevant authorities under the 1980 Convention, swore his affidavit in support of the application on 27 September 2012 and the application was ultimately filed on 5 April 2013.
Documents relied upon
By the Central Authority:-
(a)Form 2 Application dated 3 April 2012
(b)Affidavit of the father sworn 27 September 2012
(c)Affidavit Ms O sworn 31 July 2013
As to the mother:-
(a)Form 2A Answer sworn 8 May 2013
(b)Affidavit of the mother sworn 8 May 2013
(c)Affidavit of Ms P sworn 29 July 2013
(d)Affidavit of Dr Q sworn 12 July 2013
(e)Affidavit of Dr R sworn 24 July 2013
(f)Affidavit of Mr S
(g)Affidavit of Mr T sworn 30 July 2013
(h)Affidavit of Ms U sworn 30 July 2013
(i)Affidavit of Mr V sworn 30 July 2013
(j)Affidavit of Ms W sworn 30 July 2013
(k)Affidavit of Ms Lebeau Snr sworn 31 July 2013
(l)Affidavit of Mr Lebeau Snr sworn 31 July 2013
(m)Form 2A Amended Answer of mother sworn 31 July 2013
(n)Affidavit of Ms Lebeau Snr sworn 31 July 2013
(o)Affidavit of Dr X sworn 30 July 2013
(p)Affidavit of Ms LeBeau sworn 31 July 2013
(q)Affidavit of Ns Y sworn 31 July 2013
(r)Affidavit of Mr Z sworn 10 August 2013
(s)Affidavit of Dr AA sworn but undated
The Central Authority and the mother provided written submissions by way of summaries of argument.
I have also had extensive reference to exhibits 2 and 3 being the handwritten notes of Ms Y, Sexual Assault Centre Worker produced by subpoena on 9 May 2013 and 16 August 2013.
Procedural history
The proceedings first came before Cronin J on 5 April 2013 when the matter was further adjourned to 9 May 2013 at which time the wife was represented. Procedural orders were made by Cronin J as to the filing of documents and subpoenae with an order as to the preparation of a Section 62G(2) Hague Convention Report to be prepared. Upon the release of the report dated 26 June 2013, the matter was listed for hearing before me on 19 August 2013 as a defended matter.
At the commencement of the proceedings I invited submissions from counsel representing the Central Authority and the mother as to the extent to which ,if any, there should be cross examination of any of the deponents to affidavits.
Given that the mother’s case focussed entirely upon the grave risk exception and with the acceptance of counsel that the father (who was present in court having travelled from Greece) would continue to deny the allegations of domestic violence and sexual abuse as alleged by the wife, I did not consider that there was any prospect that cross examination would assist me in reaching a judicial determination as to whether the mother was able to satisfy the requisite burden of proof in respect of the exception of grave risk. I specifically raised with counsel whether the author of the Hague Convention Report was required for cross examination and no application in that regard was made.
Regulation 15 (2) of the Child Abduction Regulations provides that:-
The court must so far as is practicable give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each of the matters relating to the application allows.
Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in their judgment of De L v The Director-General, NSW Department of Community Services (1996) FLC 92-706 at page 83,458:-
Prompt listing for hearing is one thing; an over hasty and insufficient hearing is another. That point is made in the concluding terms of Regulation 15 (2) set out above, further, there may be cases where, consistent with those precepts some, even if restricted cross examination on affidavits is appropriate to assist the court to reach a decision whether to refuse an order for the return the child.
This is not a case where the evidence put before the court could be considered succinct. The affidavit material is extensive and contains significant allegation and counter allegation. Much of the affidavit material is inadmissible and is replete with hearsay and assertions of opinion.
As Ellis, Nygh and Ross-Jones JJ (sitting as the Full Court of the Family Court of Australia) held in their joint judgment in Gazi & Gazi (1993) FLC 92-341 at page 79,623:-
The primary purpose of the Convention, the relevant legislation and regulations is to provide a summary procedure for the resolutions of proceedings, and, where appropriate, a speedy return to the country of their habitual residence of children who are wrongly removed or retained in another country in breach of rights of custody or access …accordingly, whilst there may be cases in which it is appropriate to allow cross examination of deponents of affidavits, such cases would be rare. The majority of the proceedings for the return of children, pursuant to the Convention, should be dealt with in a summary manner and cross examination of the deponents of affidavits would not be appropriate.
As noted there has been significant material produced under subpoena. In particular I was referred by counsel for the mother to the handwritten notes of Ms Y, the Sexual Assault Centre worker who had an ongoing “therapeutic” relationship with the children (and the mother) from 21 August 2012 through to the present date. I raised with counsel that without specific reference to any particular note in exhibits 1 and 2, I did not consider that it appropriate that I should be asked to range widely through the notes and form my own view in the absence of direction and/or submission. Notwithstanding my misgivings, counsel for the mother submitted that there would be no objection to my general consideration of the notes and that I could make of them as I thought appropriate.
Notwithstanding the invitation, any reference to the notes of Ms Y arise in circumstances where counsel drew my attention to a note in particular, or a particular note was the subject of consideration and submission.
Grave risk – Regulation (16)(3)(b)
The mother raises the exception of “grave risk”. Regulation 16 (3) of the Child Abduction Regulations provides:-
A court may refuse to make an order under sub-regulation (1) or (2) [then for the return of a child] if a person opposing return establishes that:-
(a)…
(b)there is a grave risk that the return of the child to the country in which he or she habitually resided immediately before the removal or retention, would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;
The wording of the subregulation is such that the use of the “grave risk” exception is to be used sparingly. More is required for the exception to be made out than a concern as to the child’s welfare or safety if the child is returned to the habitual place of residence.
More is required than a finding that the interests of the child would be better served in Australia than a return to Greece. Such a consideration would of necessity involve a consideration of parenting issues and there could be significant disadvantage to the father in these proceedings simply arising out of the efflux of time, the children becoming settled in their new environment and the significant disruption to the relationship between the father and the children than may have thereby arisen.
The mother clearly has the burden of proof in establishing that on the balance of probabilities, that, if a return order is made pursuant to the regulations the children (or either of them) would be exposed to a grave risk.
The manner in which Regulation 16 (3) is to be applied has been the subject of clear interpretation by the High Court in DP v Commonwealth Central Authority (2001) FLC 93-081 by the majority comprising Gaudron, Gummow and Hayne JJ:-
[41]…on its face reg 16 (3) (b) prevents no difficult question of construction and is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified; that there is a grave risk that the return of the child will expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the court of the country to which or in which a child has been removed or retained to enquire into the best interests of the child. The exception requires courts to make the sort of enquiry and prediction that will inevitably involve some consideration of the interests of the child.
[42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, that to observe that certainty is not required; what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
[43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
[44] These considerations, however, do not warrant a conclusion that Regulation 16 (3) (b) is to be given a “narrow” rather than a “broad” construction…the exception is to be given the meaning its words require.
[45] That is not to say however that Regulation 16 (3) (b) will find frequent application. It is wellnigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16 (3)(b) an article Art13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
Matters relied upon by the mother
The mother alleges the following matters in support of her contention that the “grave risk” exception is made out:-
(a)Direct physical violence perpetrated by the father against the mother;
(b)Direct physical violence and sexual abuse of the children;
(c)That under Greek law if a return order is made the mother and the children would not have recourse to adequate protection;
(d)That there exists the possibility that the mother may be prosecuted in Greece arising out of the “abduction of the children”.
Domestic violence and sexual abuse
The mother relies upon her affidavit material filed on 9 May 2013 and 1 August 2013. As previously set out, the principal allegations in respect of domestic violence arise from paragraph 11 of the first affidavit. Essentially if true, the allegations would at the extreme end of the scale of violence that could be perpetrated by the father against the mother. The allegations are both repeated and further added to in paragraph 13 of the affidavit of 1 August 2012. The mother relies upon the evidence of the maternal grandmother Ms Lebeau Snr. I do not find the matters raised in the affidavit of the maternal grandmother to be persuasive. In a general sense the matters raised are hearsay and accordingly of little weight. The only allegation of a direct observation of alleged violence by the father towards the mother is as set out in paragraph 20 of the affidavit of the maternal grandmother. This incident is alleged to have occurred in or around Christmas 2009 and involves an argument between the father and the mother where the mother was shaken violently. It is the subject of denial by the father and even if true would not in or of itself support the contention that if the children were returned to Greece in the company of their mother she would need to be protected from the father in circumstances where allegedly such protection may not be available under Greek law.
I note however paragraph 18 of the affidavit of the maternal grandmother:-
I told Ms [LeBeau] many times that she needed to call the police. However, [Ms LeBeau] told me that she was too scared of [Mr Pappas] and how he might react if she were to call the police, and that she was fearful he might kill her.
It is notable that there is no medical evidence or police involvement in circumstances where I find the allegations made by the mother against the father to be at the extreme edge of the spectrum.
The more serious allegations made by the mother is that in some way the father was able to drug her in the presence of the children, the paternal grandmother and the maternal aunt and it was during those occasions that there was sexual and physical abuse of the mother and the children by the father. The report writer records the alleged recollections of the children reported at paragraph 13:-
Asked to elaborate further on this issue, [C] stated that she had seen her father “many times” placing an oval shape (showing by shaping her fingers) “white and yellow” pill in her mother’s orange juice and that [C] sometimes would take the juice to her ([C] was very clear that she had only ever seen one single pill being used). [C] further elaborated that after taking this drugged juice her mother “was unconscious for 3 hours and then she would wake up”. Whilst her mother had ‘fainted’ [C] stated that her father “did bad things, he hit her and he put his penis in [B’s] bottom and jumped on her (mother’s) shoulders”. [C] was asked whether anyone else was present when these events were taking place and she replied “I don’t remember”. Asked whether she had witnessed the above events [C] nodded in assent. [C] was unable to elaborate where these events took place within the home, despite repeated attempts to elicit this information.
B had his own version of the events as reported at paragraph 21:-
In relation to why he thought he was being interviewed [B] replied with no hesitation “my dad did very bad things very bad”. [B] did not hesitate in elaborating, by stating that his father “put his penis in my mouth and my bottom”. He added that “he had some other friends that were four” and named “[Mr S], [Mr M], [Mr BB], [Mr CC] and the other the sister of my mother [Ms G LeBeau]. [Mr S] and [Mr M] did the same as my father. [Ms G LeBeau] was watching us laughing. My mother’s sister didn’t do many things but she was in on the deal”. This information by delivered by [B] spontaneously in a calm manner and it was observed that he did not maintain eye contact with the report writer, instead looking down or at other features in the room. His affect was very matter of fact with no indications whatsoever of distress or excitement. Further probing resulted in [B] indicating that such events occurred “many times” and sometimes “every day”. [B] added during another phase of the interview that he was abused in the manner described “since 2006 when I was 4”. He state he knew this because “I remember it”. Asked when precisely during which particular part of the day these events took place [B], replied that he could not recall but it was during a variety of times (non specified). Asked where his mother was during such events, [B] stated that she was either “out” or his father had given her “tablets”.
There was further allegation by the children that in addition to the alleged abuse of the mother whilst she was “drugged” she was also urinated on by the father.
These allegations were not raised by the mother and only appear in the context of the alleged disclosures by the children. It is inconceivable that the extent of the alleged abuse perpetrated on the mother could have taken place over the period as alleged without the mother having even the slightest inkling that something was amiss. It is difficult to accept that whatever the state of knowledge of the mother was in respect of the alleged behaviour of the father towards here, that the disclosures made by the children of sexual abuse by their father were made for the first time in early August 2012.
At paragraph 49 the report writer evaluates the allegations of domestic violence and sexual abuse against the children and the mother and says:-
…However this writer does have significant concerns (emphasis of report writer) about certain scenarios that the children have apparently depicted to their mother. Whilst one cannot discount or dismiss the physical and/or sexual abuse of the children and/or the mother may have occurred many of the scenarios and allegations described by the children to their mother and other professionals are on the extreme far end of the abnormal human psycho social behaviour spectrum. One is very challenged to believe that some of the alleged events and scenarios are based on reality. It would be of significant concern if the events as portrayed by the children occurred (and the children were exposed to them), and equally concerning if these scenarios did not occur, and have been manufactured, embellished and/or are believed to be real by the children and their mother when they may not be. The report writer found that the inability or unwillingness of the mother to at least entertain the possibility that the events were extremely far fetched (or that they did not occur) is somewhat concerning.
The Central Authority relies upon the affidavit of Dr AA tendered to the Court at the commencement of the proceedings. Dr AA was the treating doctor of the mother and the children from 28 September 2012 until 26 June 2013. Annexed to his affidavit are the complete records of his involvement with the mother and the children. The notes record the following entries relevant to the matters under consideration:-
Tuesday October 2 2012 13; 44; 24 1 PT returns – the patient is planning to make contact with [Mr DD] shortly. 2 PT does not have medication with her today – began these in June. PT describes that she would be raped following medication administered by husband (children support these allegations). PT unable to recall any of these events. States that family members accused of “paranoid schizophrenia”. Has been on medication since June and patient unable to comment on what things were like prior to this. 3 child (Ba) states that he has scars on shoulder secondary to being stabbed with knife. Children are presently with [Sexual Assault Centre].
Tuesday January 7 2013 14; 15; 48 patient presents today with her children; has ongoing issues at home; feels like everybody is against her. Her children await further sessions with [Sexual Assault Centre]. The patient has stopped taking her paroxetine of her own accord and has subsequently experienced panic attacks. Has seen [Mr DD] on several occasions and is due to see him again tomorrow.
My impression is that this patient relays several encounters in which she is the innocent victim. She continues to be obsessing about her husband’s treatment and continues to have some contact. Is arguing with all her friends and with her parents. Describes events involving her children as bizarre activities that her children in fact deny in front of me. Elements of psychosis and ocd. [my emphasis].
The Central Authority also rely upon the affidavit of Dr Z filed 12 August 2013. Dr Z is an Associate Professor of Psychiatry and reviewed the mother at the request of Dr AA. He produced a report dated 4 February 2013 being annexure BM1 to his affidavit. Dr Z records the allegations of alleged physical and sexual abuse by the father towards the mother but reports as follows:-
Rather more bizarrely, she told me that the children had told her that her husband used to drug with her with tablets during the day and then allow multiple people to come around and have sex with her. How the children would know this and how she could not know it had happened to her struck me as very strange. I questioned her a little further about that but she was adamant that it was true. I asked about psychotic symptoms and she denied them. There was nothing else to suggest that she had a psychosis. I am concerned the children are describing false memories… I am afraid that I was rather sceptical about the children’s claims. I am not doubting that there was physical abuse, and possibly sexual, but the added allegations about [Ms LeBeau] being drugged and raped without her knowledge, and with the children’s knowledge seems rather far fetched.
The State Central Authority rely upon the psychiatric assessment of the mother as undertaken by Dr X and as annexure RO2 to his affidavit filed 1 August 2013. The mother was referred to Dr X for a psychiatric assessment and report by the mother’s lawyers pursuant to an order made on 3 July 2013.
The report would appear to be a thorough assessment and records the allegations made by the mother and the children in respect of the domestic violence and sexual abuse perpetrated by the father. In addition, Dr X had the advantage of the Hague Convention Report.
Dr X summarises the mother’s presentation as follows:-
[Ms LeBeau] appears to believe the children’s account of the abuse they experienced. She states that she is simply acting protectively in applying to remain in Australia with the children. Of concern is the somewhat bizarre nature of the allegations. In particular, the abuse is said to have involved the children’s maternal aunt and paternal grandmother, at least witnessing the abuse and doing nothing to protect the children, even if they were not more directly involved. There was nothing in the sexual history provided by [Ms LeBeau] that raised concerns about [Mr Pappas] been sexually aroused by children in general or their children in particular. As indicated previously, the allegations of sexual abuse of [B] by his father only arose when they were about to return to Greece in time for the 2012-2013 school year.
I now turn to the affidavit of Ms Y filed 1 August 2013 (“the Y Affidavit”). Ms Y is a “counsellor advocate” in the employ of the Sexual Assault Centre (“Sexual Assault Centre”). Ms Y saw the children on a regular basis as and from 21 August 2013 arising out of a referral through the Federal Police for “therapeutic counselling” following a report made to the police in relation to allegations of sexual and physical abuse. Somewhat extraordinarily, the children were seen on almost a weekly basis until February 2013 and thereafter on a fortnightly basis. The matters raised by Ms Y and reference to her notes (to the extent that they were the subject of direct reference by counsel) is important in forming the view that I have come to, namely, that either the allegations of domestic violence and sexual abuse of both the mother and her children did not occur, or in the alternative that the evidence in support of the allegations is so unsatisfactory that I can give it little or no weight.
Paragraph 2 of the affidavit of the Y Affidavit records that the counsellor saw the children on 21 August 2012 by reason of a referral from the Federal Police for therapeutic counselling. Clearly, by the time of the referral the children had already been interviewed by the relevant police authority in respect of physical and sexual abuse.
The counsellor records that the children made disclosures of physical and sexual assault and suffered emotional abuse by “witnessing their father physically hurting their mother; and have witnessed him sedating her”. These disclosures were the subject of detailed notes. The counsellor records in paragraph 6 of the said affidavit that “whilst the disclosures by the children may appear bizarre and fantastic” in the experience of the counsellor it was possible that they were representative of a form of sexual abuse. The counsellor then considers the aggressive behaviour between the siblings, in particular by the son towards the daughter and concludes that the children “often presented in a traumatised psychological... The notes of the initial intake are difficult to decipher. It would appear however that the history upon which the counsellor undertook the therapeutic intervention thereafter with the children arises from a detailed history given by the mother. At page 6 of the notes it is recorded:-
MGMo one day mentioned to son – if you go to Greece – son became increasingly angry, mother confided in a friend. Friend suggested ask children if their father had done something to them. Mother took son for a walk and asked if his father had done anything to him.
This is inconsistent with the history given by the mother as to the spontaneous disclosures by the children in particular her son.
The notes records the matters alleged by the children to have occurred namely that in their presence the mother was drugged by the father by the dissolving of pills in orange juice and then getting the children to take the juice to the mother. It was further alleged on some occasions the mother was drugged on two occasions in each day, IN circumstances where the mother at no time had any sense that she was allegedly being drugged by the father.
At various times it was alleged by the mother to the counsellor that “the father would have sex with his male colleague – made son watch – daughter sometimes”.
At page 10 of the notes the mother recited to the counsellor what she considered to be the allegations made by her son which involved his sexual abuse by the father involving oral intercourse sometimes in the presence of a colleague or a client in the absence of the mother but sometimes in the presence of the paternal grandmother and maternal aunt.
There was a recitation of further florid and bizarre sexual conduct by the father.
It would not appear that at any stage the counsellor sought either to challenge the mother and/or the children or consider that the allegations had no basis in fact and were possibly explained as an invention by the children in circumstances where the more dramatic the disclosure and allegation the more attention was paid to them by the mother at first instance and those professionals who then became involved.
Note 28/8/12
The children were seen by the counsellor for the first time on 28 August 2012. It was recorded by the counsellor when she asked the children whether they were aware of the reason for their attendance that “we are here because my father (alleged perpetrator) would cut me on my back and dig his finger nails into my testicles”. “He would rub vaseline into my anus and stick things into it”.
The child also repeated the allegation that the paternal grandmother would also do bad things and when asked to talk about his father the son referred to him as “the devil” or “my past father”. The notes also confirm that the mother had by 28 August 2012 contacted the Child Protection Unit of the Federal Police with the apparent purpose of organising statements so that they could be sent to Greece via Interpol. There was apparently a communication with a Federal Agent in Belgrade and information was to be forwarded to the appropriate authorities in Greece.
It would appear that the reference to the police was not just of an historical or background nature. The notes contains emails dated 17 and 18 October 2012 between the counsellor and a member of the Victorian Police. The inference to be distilled from the email communication is that the counsellor was integral to the ongoing police investigation but in particular in terms of the gathering of evidence which may assist in the overseas prosecution of the father arising out of the disclosures by the children and the mother. The counsellor was in regular and inclusive contact with the mother and it is recorded in the email of 17 October 2012 that:-
Hi [Mr EE], thank you for all the information and direction you have given me re the above named family. As per our phone conversation this morning and after having consulted with the Greek Consulate (Mr FF) he suggested to go ahead and invite the family in to make the statements. Ms [LeBeau], the children’s mother wishes to report that her two children were allegedly sexually assaulted in Greece earlier this year. She would like the Greek authorities to investigate the allegations. Accordingly to [Mr FF], from the Consulate, the Greek government does accept statements from Australia and you can either send them through via Interpol or get them translated in Greek and the Consulate will confirm their authenticity. I rang [Ms LeBeau] today and explained the above. She was delighted that we can move forward and await your instructions.
The further email on 18 October 2012 forwards potential evidence to the counsellor for her opinion.
The clear implication is that the counsellor was not acting in a strictly therapeutic role in circumstances where there had been an appropriate finding that the alleged sexual abuse had occurred but rather was actively involved in the forensic investigation of the allegations for the purpose, at least in part, of assisting the mother bring criminal proceedings in an overseas jurisdiction. In short, the counsellor has significantly confused her role and to that extent the matters raised by her are unlikely to have any real forensic credibility but rather present an unfortunate and biased opinion.
Note 23/4/13
On this occasion (as on other occasions) the counsellor interviewed the children together.
The notes record that the purpose of this interview was:-
To explain to children the discussion they have had at home between themselves and their grandparents is not to upset or anger them.
The counsellor reinforced that the children would understand the difference between right and wrong, truth and lie and they have nothing to fear while they are telling the truth. The children asked the counsellor questions about leaving their home, their new friends and the maternal grandparents. Clearly the children had been the subject of discussion in their home as to the possibility that their father may wish them to return to Greece. It was in relation to the distress experienced by the children that they were further interviewed on 23 April 2013. The counsellor gave clear support to the children in respect of the truthfulness of their allegations and the potential consequence namely that they would not have to return to Greece.
Note 30/7/13
On this occasion the counsellor saw the mother and the children together. It is recorded that the purpose is to focus on “protective behaviours”, create safe environment and “to focus on their emotions”. The questioning of the children focussed on how they feel about living in Australia with their report answers as being “happy”. The views of the children with respect to remaining in Australia are reinforced by the process to better reinforce the point the following is recorded in the notes:-
Why do you feel happy in Australia. Answer – I have heaps of friends.
I play footy
I am in the production at school and I have never been in a production.
I am not bullied in Australia.
What would you like the judge to do to your father. Both children said – to put in gaol. We finished by playing outside.
In summary, I consider that the process undertaken by the counsellor was predicated upon the assumption that the disclosures made by the children and the allegations promoted by the mother were established fact. The involvement of the counsellor with the children was not therapeutic but rather investigative and the focus on the children’s attitude towards their father and their views as to their life in Australia was misguided in circumstances where a Hague Convention Report was the subject of order by Cronin J on 9 May 2013 in part into that very topic.
Paragraph 10 and 11 of the counsellor’s affidavit record the disclosure by the son that he had a “sore bum and there is white stuff coming out of it”. The child was subsequently taken by the mother to hospital on 22 May 2013and it would appear that he had an anal fissure marked by recent anal bleeding. Whilst the report records that such a lesion can be due to complex past medical history of sexual abuse and self abuse, it is equally as likely that the cause is benign or the result of the child’s own behaviour.
I do not find that the affidavit of the counsellor assists the mother in establishing either that sexual and/or physical abuse occurred or that the children would not be able to cope psychologically if returned to Greece.
It is conceded by the mother that she would accompany the children back to Greece if a return order was made and in addition she would have the support of her father and the familiarity of her parents’ former home in Greece.
If it is an issue that the children would require professional, emotional and psychological counselling and support in Greece then I find that this is readily available in circumstances where the mother had accessed psychological support for a significant period of time prior to her departure from Ms E.
I have given careful consideration to the evidence of the mother, the counsellor (together with her notes), various witnesses including the maternal grandmother and grandfather, medical evidence both as to the psychiatric functioning of the mother and the physical examination of the children but in particular the son, the Hague Convention Report and the detailed and comprehensive denial by the father of the allegations.
Clearly, there was no cross examination of the parties and other witnesses but given the narrow compass of the enquiry ie whether a grave risk had been made out by the mother, cross examination would not have been of any assistance.
Butler-Sloss LJ in Re F (a minor) (Child Abduction) [1992] 1 FLR 548 at page 553 provides the following helpful commentary:-
If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgement, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbably and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.
I have come to a decision that I am entitled to reject the allegations of sexual abuse, and physical abuse as promoted by the mother. If I am not entitled to reach that position, I find that the strength of the evidence put forward by the father is at least as credible as that put forward by the mother and accordingly the mother has not satisfied the standard of proof on the balance of probabilities.
I have also had regard to the student evaluation reports by the teachers of the children namely Mr GG and Ms I both dated 28 May 2013. Those reports or annexures to the affidavit of Ms O filed 20 June 2013. In respect of the son the teacher records that:-
During those two years (2010 – 2011 and 2011 – 2012) he has been an exceptional child willing to cooperate and eager to help his fellow students who needed help. He was polite with excellent manners, diligent and he was always nicely dressed and clean.
As for his performance in school he was an A student. His homework always done, he participated in class by sharing his opinion showing a wide range of knowledge.
It was also recorded that “his cooperation with his parents was excellent and I often communicated with them about their son’s performance”.
In respect of the daughter it was recorded that:-
The child was always wearing nice clothes and she was clean and tidy. She was calm, adjusted and well mannered. She would cooperate with her class mates perfectly…her mother would always come to parents meetings and was pleased by her daughter’s advancement and behaviour. Specifically during one of our meetings I expressed my admiration for the daughter’s overall outlook in our school “on a student level as well as in regard to her upbringing”. And jokingly I commented on the particularly beautiful clothes that she would always wear. I specifically remember her answer:-
We are lucky because my husband has a good job and we have no problems.
Based on my numerous years or experience nothing bad ever seemed to cross her mind, on the contrary she seemed to be living a calm, happy, normal life within a healthy family environment.
To the extent that my findings need any positive reinforcement I find the evidence of the teachers to be persuasive in that in the period leading up to the children’s departure from Greece they showed no behaviour or engaged in conduct which would have been consistent with children the subject of extreme physical and sexual abuse both in respect of themselves and as observed towards their mother that is now alleged by the mother.
Accordingly I do not consider that it is likely that the mother and the children have been the subject of violence and sexual abuse as alleged.
Greek Law
Notwithstanding that I am satisfied that the mother has failed to establish that the children would be at “grave risk” if a return order is made, the affidavit material relied upon by the mother and the submissions of her counsel emphasise as part of my general consideration of the matter or in particular when considering whether a grave risk exists, I should have regard to the following:-
·The risk of incarceration;
·Systemic problems in Greece with enforcement, prosecution and support.
Paragraph 57 of the mother’s affidavit filed 31 July 2013 provides:-
Although I do not have confirmation from any official source that [Mr Pappas] has filed criminal charges against me in Greece as a result of my retention of the children in Australia, he has threatened to do so. [Mr Pappas] has sent me a number of emails where he has threatened me with gaol or other such consequences. These emails from [Mr Pappas] are in Greek. Due to time constraints I have not been able to have the above emails independently translated as yet.
In summary, the mother is concerned that if she is returned to Greece she will be incarcerated and as a result the children would necessarily be distressed. Such an event, if it occurred, might well see the children in the care of their father. On the mother’s case that would be contrary to the wishes of the children and may in and of itself present to the children a “grave risk”.
The mother’s case did not present any evidence that the father had commenced any proceedings in Greece against the mother. The father’s evidence is that he has not filed any criminal complaint and through counsel for the Central Authority was prepared to give an undertaking that he would not do so. A further issue arose when I posed a question to the mother’s counsel as to whether I can be directed to any evidence which established that a wrongful retention as opposed to a wrongful removal from Greece, under Greek law, even raises the prospect of the mother having committed a crime.
The mother relied upon the affidavit evidence of Dr Q filed 31 July 2013. At paragraph 8 the deponent states:-
If the father has filed a criminal complaint against the mother here in Greece for abduction of their children, there would be a risk to her to be incarcerated upon her return to Greece and this, of course, would affect her ability to protect the children from the alleged child abuse. I have to stress out that since criminal proceedings, in this kind of case, according to Greek Penal Procedural Law, are ex officio the husband could not withdraw these proceedings (or give up his criminal complaint) notwithstanding that he has commenced this complaint. The criminal complaint will only be a matter for the judge and the public prosecutor to deal with and from this point of view incarceration of the wife would not be under the control (and will) of the husband.
The purpose to which I could use the above paragraph was a matter of discussion with the mother’s counsel. I put him on notice that I did not consider the paragraph to suggest anything other than the laying of a criminal complaint against the mother was a matter for the father rather than a process that could be commenced independently of the father. That proposition was the subject of agreement. Furthermore, the wife’s counsel reserved to the wife the right to tender further evidence if it came to the wife’s attention during the course of the proceedings that the father had in fact filed a criminal complaint. No further evidence was tendered.
Accordingly I find that until and unless the father files a criminal complaint, there is no risk to the mother of incarceration and as a further overlay, I was not presented with any evidence that suggests the mother’s actions would satisfy the elements necessary to see her convicted of a criminal charge.
At paragraph 59 the mother states:-
As I stated above, on a number of occasions in 2010, after a violent incident had occurred, I tried to contact a Women’s Help Line but they never answered my telephone call and it just rang out. I say that this experience is typical of Greek public services and I have experienced similar difficulties with the post office, the tax department and other government or not for profit services in Greece.
The mother raises a general concern that neither she nor the children could gain adequate protection from the violent or aggressive behaviour exhibited by the father because the Greek system of law and the relevant support services do not function adequately, efficiently or at all.
The mother relies upon the affidavit of Dr Q as referred to support the contention that whilst the provisions of the penal law in particular 500/2006 would in theory provide protection, the practice is that the law is rarely applied.
Dr Q says that in his experience criminal proceedings under domestic law in relation to domestic violence take two years to prosecute and victims of family violence cannot be protected effectively even when orders are issued. In short he says “the relevant infrastructure is essential for minimal, under sourced, in terms of financial and human resources, resulting in full inaction or in considerable lengthy delays.”
The mother also relies upon the affidavit of Dr R filed 31 July 2013. Dr R agrees with the content of the affidavit of Dr Q which says as follows:-
2. The police is attending to reports of child sexual abuse or domestic violence, but people is not often complaining to the police, because there is not really help for the victims. In case of reporting they are obliged to arrest the accused.
3. Protective orders made by the Greek Courts relating to domestic violence or child abuse cannot be enforced, because there is not really existing the protection possibilities provided by law. The only existing is consultation centres or assistance lines for the crisis period. I am uncertain whether [Dr R] directs himself to whether the police will take action if a report child sexual abuse or domestic violence is made or whether the import of his affidavit is as to the adequacy or otherwise of what might be described as the support network that is available to support women and children who have experienced violence.
To the extent that the mother relies upon her inability to access appropriately qualified professionals to provide emotional and psychological support for herself and the children, I find that the mother’s evidence of consultation with a psychologist Ms E and a psychiatrist Dr F demonstrates that the facility for professional assistance exists and is available to the mother but she raises her financial ability to access those services.
I am not satisfied that the financial position of the mother is so dire that the relevant services are not able to be afforded. She has the significant support both physically and financially of her parents both prior to the mother’s departure from Greece and also upon her arrival in Australia. It was conceded by the mother’s counsel that her parents are meeting her legal costs in respect of these proceedings and in any event the father through the Central Authority is prepared to give an undertaking that he will meet the reasonable costs of counselling and therapeutic support for the children.
I note that in the further paragraph 2 of his affidavit Dr R he confirms that there are existing independent psychologists, psychiatrists and counsellors who could provide the required counselling but they are not publicly funded or provided.
The Central Authority relies upon the affidavit of Mr HH to establish that the Greek Penal Code provides appropriately for the protection of women and children in circumstances where there are allegations of domestic violence and sexual abuse and also for the prosecution of an alleged offender.
There are serious criminal sanctions for rape, indecent assault, domestic violence, assault and sexual abuse.
Chapter 6 of the Penal Code provides for victim support and there would appear to be a prospect of counselling and therapeutic services together with a scheme that enables an impecunious litigant to bring proceedings.
Dr R agrees that the legal situation as set out in the affidavit of Mr HH accurately describes the legal situation.
In Murray & Director Family Services(ACT) (1993) FLC 92-416, the Full Court of the Family Court held:-
As His Honour pointed out, New Zealand has a system of family law and provides legal protection to persons in fear of violence which is similar to the system in Australia. It would be presumptuous and offensive in the extreme, for a Court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand Courts or that relevant New Zealand authorities would not enforce protection orders which are made by the Courts.
The mother relies upon the affidavit evidence of Dr R and Dr Q to support the contention that no effective criminal law jurisprudence exists in Greece to provide protection to the mother and the children upon their return, but if it does then the Greek authorities would not enforce any orders made.
I do not consider that the mother has established that the Greek authorities would not be able to provide adequate and appropriate protection for the mother and the children. Such a consideration is somewhat academic in circumstances where I am not satisfied that the allegations made by the mother against the father either occurred at first instance or have been the subject of satisfactory proof to the requisite standard.
The findings as to grave risk
I am not satisfied that the children have been the subject of sexual abuse as alleged by the mother nor that she has suffered physical and sexual assault as alleged.
It is the mother who bears the burden of proof in establishing the exceptions contained in sub regulation 16 (3) of the Child Abduction Regulations. In circumstances where I am unable to accept the mother’s version of events, I must find that the mother has failed to establish the matters spoken of in the exception to a return order.
I am not persuaded that there is a grave risk that returning the children to Greece would expose them to physical or psychological harm or otherwise place them in an intolerable situation for the purposes of this exception. Equally, the mother has not demonstrated that Greece is incapable of protecting its citizens from threatened or actual violence.
Indeed I am persuaded that the preparedness of the mother to return to Greece with the children in the company of their paternal grandfather would significantly ameliorate any concern, anxiety or distress on the part of the children occasioned by a return order.
In summary, the mother has failed to establish the matters referred to in the exceptions to a return order pursuant to sub regulation 16 (3) (b) of the Child Abduction Regulations.
Objections of the children
This exception was not pressed to any significance and whilst not in the Summary of Argument prepared on behalf of the respondent mother, it was raised in the context of the mother’s reliance upon the evidence of Ms Y.
The report writer at para 50 records the following:-
There is no doubt that the children appear to have settled reasonably well in Australia, and appear to be progressing at school. There is however no doubt whatsoever that they do have a strong sense of having lived in Greece. Both children and in particular the older child relate positively and warmly to their family and friends in Greece. The statements that they miss family and friends attest to their links with the country that they spent their formative years and the majority of their lives in. Therefore based on the children’s statements and observations, the view of this writer is that whilst the children are progressing well in Australia they also continue to have a psychological and functional attachment to their country or origin and the relationship and experiences that they built there over the major part of their lives.
The report writer also considered the maturity and emotional development of the children. He reports:-
The children would appear to have developmentally age appropriate verbal and cognitive skills. However overall this writer did not form the view that either child has yet reached an age or level of maturity whereby their views could be given any significant weight by the court in determining the issues before the court, especially taking into account the added complexities of the case. There were no indications, observations or other evidence to suggest that the children’s views were influenced by any outside influences. However this cannot be totally discounted at this stage.
Accordingly I am not able to find that the exception under Regulation 16 (3) (c) arising out of any objection of the children to return is made out.
Conclusion
Given my findings concerning the inapplicability of any of the exceptions to a return order contained in sub regulation 16 (3), I do not consider that I need to have regard to the residual discretion as provided for in sub regulation 16 (5) of the Child Abduction Regulations.
In summary, the State Central Authority has established the matters referred to in sub regulation 16 (1) and 16 (1A) of the Child Abduction Regulations. As such my obligation to make the requested return order has been enlivened. The mother has not established any of the exceptions to a return order as referred to in sub regulation 16 (3) of the Child Abduction Regulations.
I note the undertaking of the father not to remove the children from the care of the mother upon return and his preparedness to meet reasonable expenses in respect of any counselling and/or therapy for the children upon their return. On balance Greece is the appropriate forum to consider the future circumstances of the children in terms of the time they will spend with each of their parents.
Whilst I accept that the children have to some degree settled in Australia in circumstances where I have found that the children should be the subject of a return order I am satisfied that any distress and/or anxiety will abate particularly given that the children will be in the company of their mother, maternal grandfather and that any professional intervention necessary to provide appropriate psychological and/or emotional support is available to the mother.
I certify that the preceding one hundred and thirty seven (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 September 2013.
Associate:
Date: 12 September 2013
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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Judicial Review
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