FAMILY COURT OF AUSTRALIA DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & GARNING [2012] FamCA 485

FAMILY LAW CHILD ABDUCTION Hague Convention Whether the children should be returned to Italy Whether the childrens retention in Australia by the mother was wrongful Where the mother alleges that the father consented to her relocating with the children to Australia Where the father states that he only consented to the mother taking the children to Australia for a holiday Court does not find that the father acquiesced in or consented to the childrens retention in Australia Whether returning the children to Italy would expose them to a grave risk of physical and psychological harm because of the fathers state of mental health Court finds that there is insufficient evidence to determine that the father poses a grave risk Court does not find that the children have reached an age and a degree of maturity at which it is appropriate to take account of their views Order that the children be returned to Italy. Family Law Act 1975 (Cth) s 111D Family Law (Child Abduction Convention) Regulations 1986 reg 15, reg 15(1), reg 16(1), reg 16(1A), reg 16(3), reg 16(1A)(a), reg 16(1A)(b) and reg 4(2) Italian Civil Code 2006 article 316 and article 155 Regino and Regino (1995) FLC 92-587 Department of Child Safety and Stratford (2005) FLC 93-249 Director General of Community Services v Crowe (1996) FLC 92-717 Panayotides (unreported, 31 May 1997, BR1272/95) referred to in (1997) FLC 92-733 Re F [1992] 1 FLR 548 Jones v Dunkel (1959) 101 CLR 298 In Ray H (Minors) (Abduction; Acquiescence) (1998) AC 72 Department of Communities and Clementine (unreported [2010] FamCa 746, delivered on 12 August 2010) Department of Communities (Child Safety Services) v Rowe-Dalley (unreported, delivered on 29 April 2011) Department of Health and Community Services v Casse (1995) FLC 92-629 APPLICANT: Director General Department of Communities (Child Safety Services) Ms Garning BRC 1387 2011

RESPONDENT: FILE NUMBER:

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DATE DELIVERED: PLACE DELIVERED: PLACE HEARD: JUDGMENT OF: HEARING DATE: REPRESENTATION COUNSEL FOR THE APPLICANT: SOLICITOR FOR THE APPLICANT: COUNSEL FOR THE RESPONDENT: SOLICITOR FOR THE RESPONDENT:

23 June 2011 Brisbane Brisbane Forrest J 16 May 2011

Mr M. Green Crown Law -

ORDERS
(1) That the children E born June 1997, C born August 1998, D born December 2001 and L born May 2003 be returned to Italy within thirty (30) days upon receipt by the mother, should she determine to return to Italy with the children, of the sum of AUD$8,000, to be provided by the father for the financial support of the mother and the children. That pending the said children being returned to Italy, the respondent mother, Ms Garning, continue to be restrained and injunction is hereby issued, restraining her from removing or attempting to remove the said children from the Commonwealth of Australia. That pending the return of the said children to Italy, the respondent mother continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said children from the premises where she and the said children are currently residing.

(2)

(3)

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(4)

That subject to sub-paragraph (5) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent mother, Ms Garning, and the said children E born June 1997, C born August 1998, D born December 2001 and L born May 2003 on the All Ports Watch Alert System at all international departure points in Australia. That the said children E born June 1997, C born August 1998, D born December 2001 and L born May 2003 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 of the Court Services, Department of Communities advising of the travel arrangements made for the said children to return to Italy, from 12:00 am on the date nominated for the said travel in the letter. That the Marshall of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders. That to facilitate the return of the said children E born June 1997, C born August 1998, D born December 2001 and L born May 2003 to Italy, Ms F, Department of Communities or her nominee be at liberty to release to the Respondent all current passports relating to the children for the purposes of the said childrens return to Italy, and release the respondent mothers passport to her or her nominee upon request. That the respondent mother, Ms Garning born September 1979, pay all the necessary expenses associated with returning the children to Italy, including the cost of airfares and departure taxes (if any) for the children to travel from Brisbane International Airport to Italy, and in the event that the respondent mother fails or refuses to pay these expenses the father, Mr V, pay them. That there be liberty to apply.

(5)

(6)

(7)

(8)

(9)

IT IS NOTED that publication of this judgment under the pseudonym Department of Communities (Child Safety Services) & Garning is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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FAMILY COURT OF AUSTRALIA AT BRISBANE FILE NUMBER: BRC 1387 of 2011 Department of Communities (Child Safety Services) Applicant And Ms Garning Respondent

REASONS FOR JUDGMENT INTRODUCTION

1. On the 18th of February 2011 the Director-General of the Queensland Department of Child Safety filed an application initiating proceedings under the Family Law (Child Abduction Convention) Regulations 1986 (the regulations). The regulations were promulgated to give effect to s 111D of the Family Law Act 1975, which section provides that the regulations may make such provision as is necessary or is convenient to enable the performance of the obligations of Australia under the Convention of the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Hague Convention). The applicant is the responsible central authority in the State of Queensland as that term is defined in the regulations. By this particular application the central authority applies for orders that the children, E born in June 1997, C born in August 1998, D born in December 2001 and L born in May 2003, be returned to Italy. The respondent is Ms Garning. She was born in this country in 1979 but went to study Italian language, art and culture in City 1, Italy, at the youthful age of 16. During that stay she fell in love with Mr V when she was living as a guest of his family in the vicinity of a small village on the outskirts of City 1. Ms Garning, at the relatively young age of 17, married Mr V, then taking up permanent residence in Italy and mastering the Italian language.

2.

3. 4.

Brief background facts 5.

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6.

Ms Garning and Mr V had five daughters, the third of which, sadly, died as an infant due to birth abnormalities. The surviving four girls are now 14, 12, 9 and 8 years old respectively. For much of their married life the couple lived in a separate half of Mr Vs family villa. The other half of that villa was the residence of Mr Vs parents. The evidence appears to establish that after the death of their third child, Mr V experienced some mental health problems, becoming depressed. That contributed to deterioration in the couples relationship that ultimately led to a separation in or around January 2007. At that time, a serious incident of domestic violence perpetrated by Mr V against Ms Garning precipitated the separation. Ms Garning left the family villa and took up residence in an apartment in the village. The four girls went with her, no doubt a reflection of the principal care that she had provided them with to that point in time. On the 27th of November 2008, the couple obtained what translates into English as a consensual separation agreement with the sanction or approval of a Judge of the law courts of City 1. By that separation agreement, the couple agreed to have joint custody of the four girls and that the girls were to reside mostly with their mother with visitation rights to their father on one afternoon per week after school until after dinner and from after school each Friday until Monday morning. Soon thereafter, Ms Garning decided that she would prefer to return with the girls, to live in Australia. She was, thereafter, in regular contact with Australian Consular staff based in the Australian Embassy in Rome seeking their assistance to obtain Australian citizenship for the four girls, passports for the four girls and, ultimately, travel to Australia for permanent relocation. In 2010 Ms Garning was able to secure Mr Vs consent to the issue of passports for the four girls and on the 23rd of June 2010 Ms Garning and her daughters travelled from Rome Airport to Brisbane. They have been in Australia ever since. Their father, however, remains in Italy and through the use of the provisions of the Hague Convention now seeks their return. The central authority applies for a return order under regulation 15. Subparagraph (1) of that regulation gives the Court the power, if it is satisfied that it is desirable to do so, to make a return order, make any other order that it considers to be appropriate to give effect to the Hague Convention and to include in any such order a condition that the Court considers to be appropriate to give effect to the Convention.

7. 8.

9.

10.

11.

12.

13.

Consideration of the Application pursuant to the Regulations 14.

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15.

Critically, regulation 16(1) mandates a return order in certain circumstances. If the Court is satisfied that an application for a return order for children is made and has been filed within one year after the childrens removal or retention and the central authority satisfies the Court that the childrens removal or retention was wrongful under sub-regulation (1A) of regulation 16, then the Court must make the order returning the children. That mandatory return is made subject to the conferral of discretion not to order the return of the children if the person opposing the return of the children establishes one or more of the matters prescribed in sub-regulation (3) of regulation 16. In this case the evidence clearly establishes that: An application for a return order for the children has been made. The application has been made within one year of the childrens alleged retention in Australia, which date is said by the central authority to have been 20 July 2010.

16.

17.

The responsible central authority will satisfy the Court that the childrens removal from Italy or retention in Australia was wrongful under sub-regulation (1A) of regulation 16 if certain prescribed criteria are met. In respect of those criteria there is no dispute between the central authority and the respondent mother in this case that: a) b) c) d) all four of her children are under 16 years of age (regulation 16(1A)(a)); all four children habitually resided in Italy immediately before they were removed to and retained in Australia (regulation 16(1A)(b)); Italy is a convention country (regulation 16(1A)(b)); that the childrens father had rights of custody of the children in Italy immediately before their removal to and retention in Australia (regulation 16(1A)(d)).

18.

There is no dispute that the father had rights of custody in relation to the children under Italian law immediately before the children were removed to and retained in Australia. That is clear from the terms of the consensual agreement that the father asserts, and the mother accepts, was made in the courts of City 1 in November 2008. Regulation 4(2) says that rights of custody attributed to a person in the convention country in which the children habitually resided before their removal or retention include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child. The terms of the consensual separation agreement made by the couple, and sanctioned by the law courts of City 1, giving the parents joint custody of the four girls whilst expressly recognising that they reside mostly with their mother with the father having certain visitation rights, prove that rights of custody, insofar as Italian law

19.

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is concerned, include rights other than just determining with which parent a child resides on a day to day basis. 20. Furthermore, the central authority placed before the Court extracts from Italys civil code and, relevantly, article 316 of that Code states that:
[a] child is subject to parental authority until he/she comes of age or becomes emancipated. The authority is jointly exerted by both parents by mutual agreement.

21.

Article 155 of the Italian Civil Code of 2006 states:

[i]t shall prioritise the opportunity of leaving the childrens custody to both parents; it subordinately grants their custody to either parents and fixes the terms of children staying with each parent as well as each parents contribution to their support, education and upbringing. The Judge shall acknowledge any agreement between the spouses unless it conflicts with the childrens interests. The exercise of parental responsibility shall rest with both parents. Major decisions concerning childrens health, upbringing and education shall be jointly made by both parents considering the childrens inborn attitudes and wishes.

22.

In my opinion, a combination of the provisions of these articles and the terms of the consensual agreement of the parties sanctioned by the court in City 1 in November 2008 provided the father of the four girls with rights of custody within the relevant meaning of that term insofar as the regulations are concerned. In particular, the father had rights, existing jointly with those of the mother, to determine the place of residence of the girls, including the country in which the four girls were to reside. After consideration of the matters that are not in dispute, I am left in a position where I consider I must order the return of the four girls to Italy if I am satisfied that: a) b) Their removal to or retention in Australia was in breach of the fathers rights of custody; and At the time of their removal or retention the father:
i)

23.

was actually exercising his rights of custody either jointly with the mother or alone; and would have exercised his rights of custody if the children had not been removed or retained; and

ii) c) 24.

None of the matters prescribed in regulation 16(3) apply.

The respondent mother had no legal representation at the hearing of the central authoritys application. She had filed an Answer and several Affidavits upon which she relied in defending the applications. She made oral submissions at the conclusion of the hearing.

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25.

From all that the mother put before me, I was able to discern various arguments made by her in respect of the remaining matters upon which I must be satisfied before making an order returning the four girls to Italy. They were as follows: That at the time she brought the four children to Australia the father was not actually exercising rights of custody. That the removal of the children to Australia or their retention in Australia was not in breach of the fathers rights of custody because he agreed to let them come. That, in any event, after the children came to Australia the father has acquiesced in their being retained here. That there is a grave risk that the return of the children to Italy would expose them to physical or psychological harm or otherwise place them in an intolerable situation. The children object to being returned.

The childrens removal to, or retention in, Australia not being in breach of rights of custody 26. The first argument the mother advances is based on what she asserts is the fathers consent to her bringing the four children permanently to Australia. It was clear that the mothers argument encapsulated the proposition that has been previously considered by the Court where consent to removal has been argued as nullifying the notion that removal has been in breach of rights of custody: see Regino and Regino (1995) FLC 92-587 per Lindenmayer J and Department of Child Safety and Stratford (2005) FLC 93-249 per OReilly J. In the first of those cases, Lindenmayer J, though not having to actually decide the point for the purposes of determining the outcome of that case, opined that the then wording of the regulations really did not allow for an argument to be raised by the respondent that an application is not one to which the provisions of the Convention apply because, on the facts as found by the Court, there was no wrongful removal or retention. In the latter of those two cases Justice OReilly, in a lengthy consideration of the point, determined that once the applicant simply establishes that the removal or retention is contrary to or interferes with rights of custody then the removal or retention will be held to be wrongful and that the question of consent or acquiescence is not to be considered at that stage, but rather, as the regulations provide, as a matter for the respondent to raise and prove so as to give rise to a discretion not to order return of the children notwithstanding the wrongful removal. I respectfully accept the reasoning of their Honours in those two cases. Effectively, as Justice OReilly indicated at [39]:

27.

28.

29.

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For the purposes of presenting a competent application it would simply need to be averred and sworn that at the time of a childs removal, or retention, there was actual exercise of the rights of custody or that they would have been exercised if the child had not been removed or retained, without more.

30.

The onus of proof in founding a competent application lies with the central authority. The onus of proof then shifts to the respondent if he or she seeks to establish, by a consent or acquiescence, the removal or retention was not actually in breach of rights of custody as provided for in regulation 16(3) which, if proved, then simply enlivens the discretion not to order the return of the children. In this case, in meeting the onus of proof, the central authority relies on the fathers evidence that he only consented to the four children being brought to Australia for a holiday, leaving Italy on the 23rd of June 2010 and being scheduled to return to Italy on 20 July 2010. His evidence is that he was a joint custodian of the children pursuant to the consensual agreement sanctioned by the court in City 1, that he was actually exercising those rights of custody, albeit jointly with the mother, or, at least, would have exercised those rights of custody at the time the children were retained in Australia contrary to his wishes, that being 20 July 2010. That evidence satisfies the onus of proof on the central authority and the breach of rights of custody is established for the purposes of regulation 16(1) and (1A).

31.

At the time of the childrens retention the father was not actually exercising rights of custody 32. With respect to the mother, her argument on this particular point is rather illconceived. She asserted in evidence that the father was not always spending time with the girls on the weekends in the period leading up to their departure from Italy in June 2010, as he would sometimes forego weekends with the girls in favour of other activities. Further, the mother relies on evidence that was put before the Court that even when the girls went to the father for weekends he would often not spend much of the time with them, preferring to play computer games on his computer. I consider that those matters of fact go more to the nature of the relationships between the father and his four daughters rather than to the question of whether or not he was actually exercising rights of custody. Clearly, by continuing to spend time with the children of whatever nature, and having involvement in decision making in respect of their travel to Australia the father was exercising his rights of custody. Clearly, the retention of the children in Australia by the mother interfered with the right of the father to determine the place of residence of the children and, as the Full Court said in Director General Department of Community Services v Crowe (1996) FLC 92-717 at 83,637:
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33.

34.

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[It] was an interference with another incident of the [fathers] right of custody which would have been exercised but for the retention of the [children].

35.

Accordingly, I determine that the father was actually exercising rights of custody as at 20 July 2010 and that the retention by the mother of the children in Australia at that date was in breach of his rights of custody. It follows, therefore, that I am satisfied that a wrongful retention of the children in Australia occurred on 20 July 2010 as contended for by the central authority. As a consequence, the enquiry turns to one of consideration of the evidence to determine whether or not the mothers case that one or more of the matters prescribed in regulation 16(3) is proven by her so as to enliven the discretion given to me in such circumstances by the regulations to determine whether or not the children should be ordered to be returned to Italy. The mother gave evidence that the father consented to her bringing the children to Australia on a permanent basis prior to their removal. She asserts, clearly, to the extent that he now asserts in evidence that he did not, that he is not telling the truth about that and that he has merely changed his mind after the event. The fathers evidence is that the mother told him on the telephone one day in early 2009 that she wanted to go back to Australia, taking the four girls with her, with the intention of allowing the father to see his daughters for a month each year. He says that he told her that if she wanted to leave and return to Australia she was free to do that but that his daughters would have to remain in Italy with her being free to visit them whenever she wanted. His evidence is that the mother persisted with her request for some time but assured him thereafter that she would never ask him again. The father says that some time thereafter, around the end of 2009, the mother again began to talk about returning to Australia to live. His evidence is that she even began to ask him to go there and live there with her. He denies that he expressed any interest in doing so or intention to do so. His evidence is that the mother then proposed to him that they both travel with the girls to Australia in June 2010 for a visit. The fathers evidence is that he told her that he believed that once she was in Australia with the girls she would not return them to Italy and so he refused to sign documents permitting that to happen. He says that the mother assured him that she had absolutely no intention of remaining in Australia, that she knew that the lives of the girls were based in Italy and that she only wanted to take them for a holiday to Australia for about four weeks. The father says that he continued to refuse to give such permission and then the mother arranged for him to meet with her lawyer to discuss the subject. The fathers evidence is that they met with the lawyer and that on this occasion the mother made it clear that she intended to only spend one month in Australia with the girls. The father contends that it was

36.

The fathers alleged consent 37.

38.

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asserted to him that the Court would give the mother permission to take the children to Australia for a holiday and that, therefore, he should consent. He says, consequently, he relented and agreed to sign the passport applications for the four girls. He says that a few days later he met up with the mother in a caf in their village in the presence of a very dear friend of the mothers who witnessed his signature on the four passport applications. He said he did all this on the expectation that the children would be returned to him after the month in Australia to spend the Summer holiday month of August with him before school resumed again in Italy in September. 39. The fathers evidence goes on further to say that he asked his employer for leave so that he could travel with the mother and girls to Australia for the holiday but that he was unable to obtain that leave and so was unable to make the trip. The father says that he was aware that the mother had bought return tickets for herself and the four girls, that they would be leaving Italy for Australia on the 23rd of June 2010 and leaving Australia to return to Italy on the 20th of July 2010. The fathers evidence is that in the first week or so of the girls visit to Australia he was able to communicate with them readily by telephone but that after a short while his ability to communicate with them as such became impeded. He said that their phones were turned off, the mothers mobile phone was out of reach and that the mother never called him. He says that when he did call to speak to the children that he was told they were not available to speak to him because they were either sleeping or out playing. His evidence is that on or about the 18th of July he received a call from the mother who told him to prepare himself for bad news and that she and the girls were not going to be returning to Italy. He says that he told the mother in that call that she could do what she liked but that the girls must be home in Italy come the 20th of July. After the 20th of July he says that he confirmed that the return ticket reservations with the airlines had been cancelled and that the children were not returned to Italy. His evidence is that he then began the process that has culminated in the application before the Court. As counsel for the central authority submitted in his written submissions, there is some common ground between the mother and the father in respect of these matters. The mother agrees that when she initially broached the subject of returning to Australia and taking the girls with her, that the father simply refused permission for the girls to be relocated. The mother also agrees that she raised with the father the prospect of the entire family, the father included, relocating to live in Australia. The mothers evidence is that the father did, from time to time, agree to move with the family to Australia and on one occasion he even spent some time at her apartment on the internet looking to see what sort of work he might be able to obtain in Australia. The mothers evidence is that, ultimately, the father agreed to the mother taking the children to Australia to live and signed the passport applications for the children in the presence of her friend. The

40.

41.

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mothers evidence is that when signing the passport applications in the presence of her friend who witnessed the signatures on the applications, the father readily made it clear that his agreement was to the children being relocated permanently to Australia. 42. The mothers evidence is that once she obtained that permission she set about obtaining the passports for the four girls as quickly as possible and putting in place the travel ticketing arrangements to leave for Australia as soon as possible. The mother concedes that return air tickets were purchased for her and the four girls and paid for by members of her extended family in Australia. Her evidence is that the return airfares were purchased after research revealed that such fares were cheaper than the fares for one way tickets. The mothers evidence is, effectively, that the father then simply changed his mind and determined that he wanted her to return to Italy with the children some weeks after they had arrived in Australia. Clearly, these are critical matters of disputed fact, the determination of which can turn the outcome of this application. The summary nature of Hague Convention proceedings that take place, usually, between locally based legal representatives of the central authority representing a left behind parent who remains far removed in a country from whence the children came and the locally based removing or retaining parent who is, very often, unrepresented does not readily lend itself to an easy and simple resolution of critical factual disputes. Although cross-examination is, in appropriate cases, a matter for the trial judge, the absence of the moving party back in the country of origin makes it impossible for the Trial Judge to observe and consider the demeanour of the principal protagonists under cross-examination in the witness box, an often effective means of assessing credibility and determining where the truth might lie. Nevertheless, the provisions of the regulations and the availability of defences upon which the respondent parent may rely, clearly gives rise to the necessity, in many cases, to make those critical findings of fact in respect of evidence that is contradictory. These matters have been well considered by the Court over the years. Justice Lindenmayer in Regino (1995) FLC 92-587 at page 81,814 gave some cautious advice that care must be taken not to unfairly disadvantage the absent party by presumptively giving greater credit to the testimony of the other party who happens to be within the jurisdiction before the Court. Justice Jordan in the case of Panayotides (unreported, 31 May 1997, BR1272/95) made some comments that were referred to with apparent approval by the Full Court in its decision in the appeal from the decision of Justice Jordan, reported at (1997) FLC 92-733 at page 83,897. His Honour said:
It would generally be inappropriate to absolutely reject the filed testimony of a deponent that was submitted by counsel for the central authority. I

43.

44.

45.

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simply must do the best I can. I look to the versions of each of the parties, I find their 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.

46. 47.

With respect, that is sound advice. In the English Hague Convention case of Re F [1992] 1 FLR 548 at pages 533544, Lord Butler-Sloss said:
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 dispute 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 the 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 judgment, to be compelling before the Judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may itself be inherently improbable 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 have established his case.

48.

I respectfully agree with all of those observations. In this case, I must simply look to all the evidence that is before me, including the sworn affidavit evidence of both the mother and the father as well as all of the other evidence that both parties have deigned to file and rely upon. The mother put into evidence many pages of documents that she had obtained by way of freedom of information request from the Australian Governments Department of Foreign Affairs and Trade (DFAT). She attached those to an affidavit that was filed by her on the 13th of May 2011. Those documents are documents from the Departments file in respect of its dealings with the mother and others in respect of the mother over a number of years between the separation of the mother and the father and the mothers return to Australia with the children. Material in those documents clearly reveals that the mother was seeking the assistance of the Australian Embassy in Rome over several years. The thrust of the assistance the mother was seeking was clearly directed at ultimate return to Australia and relocation of the four children by the mother on a permanent basis to Australia. Assistance was sought in the process of having the four girls Australian Citizenship confirmed, having passports issued for them and in organising their return. The documents reveal that the mother made her intentions of permanent relocation to Australia clear to Australian Embassy staff. The mother asserted in her evidence that she had the assistance of Australian

49.

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Government officials in relocating the children to Australia and, as I understand her submissions, she asserts that the Court should take from that the implication that the Australian Government has somehow sanctioned her actions even if she has somehow wronged the father. 50. I have read through the hundreds of pages of the DFAT documents put into evidence by the mother and have found nothing that supports a finding that any Australian Government official somehow knowingly assisted the mother to do something that was wrong. On the contrary, the documents support a finding that Australian Government officials repeatedly made it clear to the mother that a permanent return to Australia which involved relocation of the four girls to Australia would only be able to be achieved with the informed consent of the father. The documents also record that the mother assured the same Australian Government officials when she obtained the fathers signature on the girls four passport applications that she had gained the relevant consent. Indeed, not even the assistance of Embassy officials in helping the mother and girls to change their flights out of Rome Airport, from those that the father had been informed about to a different flight, is evidence that Australian Government officials were somehow involved in a conspiracy with the mother to do the wrong thing by the father. The material in those documents highlights Embassy officials concerns for the wellbeing of the mother and her daughters, gained over dealings with the mother throughout the years, based on the mothers reports of the fathers behaviour towards them. I do not find on the evidence contained in those documents that any Australian Embassy officials who helped the mother did so knowing that the mother did not have the fathers consent to remove the girls permanently from Italy. In fact, the documents put into evidence by the mother support a finding that the mother grew more and more desperate to remove herself and her four children permanently from Italy through 2009 and the first half of 2010. When a person becomes desperate, whether with objective justification or not, they can sometimes consider that the desired end result justifies all means, however desperate. In her affidavit evidence the mother asserted that a very good friend of hers was present when the father signed the passport applications for the four girls, witnessed the fathers signature on those applications and clearly heard and understood the fathers actual consent to the mother relocating their four daughters permanently to Australia. The fathers evidence, as already observed, corroborates the mothers assertion that that particular friend was present when the passport applications were signed. As a matter of note, upon which I place some weight in this process of determining where the truth lies on this disputed factual issue, I point out that in the mothers affidavit evidence she asserted that her dear friend who had

51.

52.

53.

54.

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witnessed the fathers asserted consent would be providing an affidavit of evidence to that effect corroborating the mothers version. No such affidavit was filed by the mother and no explanation was given by the mother for that. 55. I am immediately mindful of the rule in Jones and Dunkel as in Australia the principles arising out of the High Court decision of Jones v Dunkel (1959) 101 CLR 298 are commonly termed. According to Cross on Evidence, Butterworth, 1996, volume 1, paragraph 12.15, those principles can be summarised as follows:
[T]hat unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that partys case.

56.

I consider, in circumstances where the mother asserts that the particular person is her very dear friend and that she would be providing an affidavit in which she deposed to matters very relevant to this critical factual dispute and there is an unexplained failure to put such an affidavit before the Court, that the rule in Jones and Dunkel has some application in this case. Additionally, although the mother said in her evidence that members of her extended family paid for the airfares for her and the girls to return to Australia and that it was they who purchased the return tickets because they were cheaper than one-way fares, no affidavit evidence of such persons deposing to matters corroborating the mothers evidence in that regard was filed by the mother. Again, the unexplained absence of such evidence brings into focus the rule in Jones and Dunkel in this regard as well. Further, the Court had before it a report of the Courts family consultant, Ms E, who interviewed the four girls pursuant to an order made by me on an interlocutory basis. That was attached to an affidavit filed 13 May 2011. In paragraph 11 of her report, Ms E says this:
[Mr Vs] position is that he consented to the children travelling to Australia with [the mother] for a holiday only. The childrens statements appear to support [Mr Vs] understanding.

57.

58.

59.

Ms E does not elaborate, or give any actual specifics of statements made by the children upon which she bases that opinion evidence, but I consider it safe to infer that the children said something to her to support her view that when they came to Australia they, too, thought they were only coming for a holiday. In any event, when I put Ms Es opinion evidence to the mother during the course of her submission for her considered response, the mother clearly confirmed that her four daughters had only been told by her that they were coming to Australia for a holiday before they came. The mother indicated to the Court that she had not told them that she was bringing the children permanently

60.

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to Australia because she was concerned to avoid them raising the matter with their father in such a way that might cause him to change his mind once the mother had gained his consent for the permanent relocation. 61. Another telling piece of evidence put before the Court by the central authority was an article downloaded from the Sunshine Coast Daily newspaper linked website bearing the date 22 July 2010 which was attached to an affidavit of Ms F filed on 10th of May 2011. Although it is not absolutely clear to me, I infer this article appeared at that time in that daily newspaper circulating in the area where the mother and children relocated to. The article is titled Family Flees to Safety of Coast. It reveals the story of the mother and the children and, relevantly to the point under immediate consideration, says this:
What followed was a delicate mission as [Ms Garning] planned a secret escape from Italy with her girls. It took three years and the help of the Australian Embassy in Rome to get the family out. After we divorced I knew I wanted to come back to Australia but it was so hard to escape [the father], [Ms Garning] said. He would not sign the girls passports and I had to coax him over time. I convinced him to let me take the girls to Australia for holiday and as soon as we got to Rome the Embassy looked after us and made sure we got out.

62.

When I put that evidence to the mother for her considered response during her submissions she told me that I should not rely on the quote as evidence of the truth of what it contained as it was taken out of context and she was misquoted. She gave no further explanation. At this point, I note that my determination of this disputed factual issue is not one that I make based on absolute acceptance of the truthfulness of all of the evidence deposed to by the father. Indeed, there is cause to consider that the father has not been entirely truthful in his evidence that the central authority has put before the Court. The best example of that is his evidence in an affidavit sworn by him on the 14th of December 2010 that was filed as an attachment to the original application of the central authority, more particularly, paragraph 19, where he deposed to the following:
I have not been able to contact my daughters by telephone or by any other means since August 2010.

63.

64.

To the contrary, Ms Es report includes details of information given to her by the girls of communication with their father, more particularly by Skype and also receipt by them of presents posted to them at their residential address on the Sunshine Coast by their father and his mother from Italy. I have no cause at all to doubt the veracity of the statements in this regard, as reported by Ms E, emanating from the children. Those statements suggest that the father was not being truthful in his evidence that he had not been able to contact the girls or in other evidence he gave as to not knowing of the girls whereabouts.
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65.

Nevertheless, weighing up all of the evidence, and particularly that which I have referred to, I am satisfied that the father did not consent to the mother permanently relocating the four girls to Australia at any time, or to their retention in Australia at the 20th of July 2010. I accept that the mother merely had the fathers consent to bring the children to Australia for a holiday and that he had the expectation, engendered by the actions and words of the mother, that they would be returned to Italy at the conclusion of the holiday on or about the 20th of July 2010. I do not accept the mothers evidence to the contrary. On the 11th of May 2011, just a few days before the trial, the mother filed two affidavits sworn by Ms S. Ms S is a NAATI credited translator of the Italian language into English. Attached to her affidavit were original messages in Italian sent by text from the father to the mother very late on the 28th of April 2011 and also a letter that the father had sent to the mother by way of email very early on the 29th of April 2011. Ms S had translated all of those messages and the emailed letter and the translations were attached to the two affidavits as well. The English translation of the text messages sent on the 28th of April 2011 is as follows:
[The mother] I need to speak to you, please, I want to stop this whole business and assume more responsibility for myself. Use this SMS if you need it as evidence. But please answer me. I will ring you now. A kiss. [The father].

Has the father acquiesced in or consented to their retention in Australia? 66.

67.

68.

The mother responded with the simple message What?, to which she received a further response from the father which translates as follows:
I will stop everything and I will write to the Judge saying you must stay with the girls in Australia. Please answer me on the ph.

69.

The translation of the letter that the father sent to the mother by email on the 29th of April 2011 is as follows:
Hi [the mother], Well, I spoke to Corsinovi and Serena not long ago. [They are said to be the parties respective lawyers in City 1.] I explained to them what I said to you on telephone or rather that Im stopping everything. Corsinovi told me now to put myself in stand-by, now they have to see how to solve the situation. Therefore I also told them that you would also like to speak to them, therefore, I leave you the number the number for Serenas studio and that of Corsinovi and their telephone numbers.

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Call them, so you can also explain properly and the reality of the facts otherwise well make a mess of it, of what could happen to you and the girls. Therefore well try to find a way for everyone to get out of this peacefully. In the case, as I was explaining to you on the telephone, anyone here has to appear as being mad or a jerk, I will do it, I take all the responsibility, even at the price of seeing my parental rights invalidate, both in Italy and Australia. Now Ill wait for them to call me back late afternoon and well see how to consequently proceed with my affidavit. Ill let you know in my next email what my next steps will be. In the mean while advise your lawyers but dont give them too many explanations, tell them that I called you and briefly explain that Im only looking for an agreement exclusively for visitation rights of the girls and therefore it is my intention to stop the whole proceeding. So wait to give them too many in depth explanations, well wait to see what Serena and Corsinovi do, that way we can line up our lawyers, mine and yours, to resolve this mess. Perhaps talk about it with people that you can trust, I would exclude your family, as I am doing, because too bias. I ensure that what Im doing now derives from a profound consciousness and I wont permit anyone to interfere in it, with advice on what to do and what not to do. This desire of mine is exclusively MINE, even if, I bet everything I have, I will find my family and my friends against me, seeing as they wont support me in my choice and decision. But I do not care. What I want is that you and the girls have a peaceful and happy life and that you could still consider me a father, maybe good, maybe not good. I love you all, as soon as I can I will write a letter to the girls, Ill send it in advance to you via email and then I will send it by post. With all my heart, [The father].

70.

The mother, not unjustifiably, points to those texts and that email letter from the father and says, effectively, regardless of everything, there, the father now consents to the retention of the girls in Australia. That should be the end of it. In response, counsel for the central authority submits that those documents are not determinative. Counsel pointed to his instructions from the central authority,
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taken since the texts and email message were put into evidence and in the light of those documents, that the father pursues the application, clearly having changed his mind. He has also pointed to the fact that the fathers latest lengthy affidavit in support of the return of the children to Italy was sworn on the 10th of May, that is, several days after those texts and that email were sent. 71. Further, counsel for the central authority submitted that the fathers email actually indicated a prospective intention to discontinue the proceedings if some arrangements with respect to visitation could be agreed upon. Clearly, no such detail has been agreed upon. Counsel for the central authority submitted that acquiescence is a subjective state of mind. He referred me to a decision of the House of Lords in the case of In Ray H (Minors) (Abduction; Acquiescence) (1998) AC 72 as authority for that proposition. In that case at page 87 Lord Browne-Wilkinson said that the use of the term acquiescence in the regulations applicable in Hague Convention applications in England was actually looking to the subjective state of mind of the wronged parent. His Lordship went on to say, relevantly, in my respectful view, as follows:
It is a feature of all developed systems of law that there are circumstances in which party A has so conducted himself as to mislead the other party B as to the true state of the facts. In such a case A is not allowed to assert the true facts against B. It follows that there may be cases in which the wronged parent has so conducted himself as to lead the abducting parent to believe that the wronged parent is not going to insist on the summary return of the child. However in my judgment these will be strictly exceptional cases. in my judgment these exceptional circumstances can only arise where the words and actions of the wronged parties show clearly and unequivocally that the wronged parent is not insisting on the summary return of the child; they must be wholly inconsistent with the request for the summary return of the child.

72.

73.

It seems, to me, reasonably clear that in that very short space of time within which the father sent the texts that are in evidence that he could, at least, be said to be consenting to or acquiescing in the retention of the girls in Australia. Certainly, too, on my reading of the English translation of the email letter sent to the mother a few hours after those texts, the father still appears to be of the view that he will stop the Hague Convention proceedings and that he was only looking to negotiate visitation rights for the girls with the mother. Interestingly, the mother put no other texts or emails sent by her to the father or by the father to her following those ones that she put into evidence.

74.

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75.

Is the evidence of that momentary acquiescence sufficient to determine the matter? Commendably, counsel for the central authority referred me to the decision of OReilly J in Department of Communities and Clementine (unreported [2010] FamCA 746, delivered on 12 August 2010) in which, at paragraph 70, her Honour said as follows:
Mr Edwards [for the respondent] submitted that once acquiescence is demonstrated, it cannot subsequently be retracted. I accept that submission.

76.

Counsel for the central authority went on, respectfully, to submit that I should not so readily accept that proposition in this case. He referred me to the decision of Barry J in Department of Communities (Child Safety Services) v Rowe-Dalley (unreported, delivered on 29 April 2011) in which his Honour considered that view of OReilly J just referred to. In paragraph 109 of that decision Barry J said:
I do not wish to engage in semantics, but it is a question of fact in each case whether the so called acquiescence is unequivocal if shortly after it was given, a contrary view was expressed and effectively the acquiescence is withdrawn.

77.

The view expressed by Barry J seems in accord with the view expressed by Kay J sixteen years ago in his decision of Department of Health and Community Services v Casse (1995) FLC 92-629 where at page 82,311 his Honour said:
In my view there cannot be true acquiescence where the parties are in a state of confusion and emotional turmoil being hopeful of a reconciliation in this case the husband was prepared to pamper the wifes demands over the weeks following 27 March. The wifes counsel was unable to point to any conduct on his behalf after that time which could clearly and unequivocally amount to an acquiescence by him.

78.

Further, of relevance, to my mind, is the undisputed evidence that is before me that the father has over the years since the death of the couples third daughter, suffered from mental health issues. The mothers evidence is full of assertions that the father has continued to suffer from the ill-effects of a mental health problem and that it has caused him to equivocate in respect of his views over time. In the light of (a) that evidence and (b) the evidence that the father has pursued his Hague Convention remedies over a period of ten months following the mothers wrongful retention of the children in Australia on 20 July 2010 and (c) the fact that the only evidence put before the Court to support an argument that he has acquiesced or consented to their continued retention is that displaying his feelings within a two hour window just weeks before the hearing of this application, where after he clearly presses for the return of the children, I cannot determine that the fathers alleged acquiescence as evidenced by the texts and the email letter demonstrated a clear, well thought out, unequivocal position
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maintained by him in such a way that it would be unjust to prevent the mother from relying upon it. 79. It seems to me that the mothers failure to put any other evidence before the Court as to any follow up with the father and/or lawyers, either in Australia or Italy, of the sentiments asserted by the father in those texts and that email, suggests that it is most likely that the mother knew that the fathers position as demonstrated by those documents was not unequivocal and, further, that she knew that it was withdrawn soon thereafter. Clearly, I do not accept, with respect to OReilly J, the proposition that once acquiescence is demonstrated, no matter how fleeting, it cannot be withdrawn. In any event, if I am wrong about that, the discretion as to whether to order the return of the children or not would be enlivened and I shall return to a discussion of that later. At least as I understood the mothers case, she put her arguments in respect of this asserted defence as high as, if not higher than, her arguments about consent. I understood the mothers case to be that returning the children to Italy would expose them to a grave risk of physical and psychological harm because of the fathers state of mental health, his history of physical and verbal violence towards the mother and, indeed, towards the children, and that returning them to Italy would place them in an otherwise intolerable situation because of the fathers lack of financial support for them in circumstances where the mother is not financially well off or able to support herself and the girls without employment, which she finds difficult to get. There is no doubt, on the evidence, that the father has had some mental health issues in past years. Attached to the affidavit of the father that was filed on the 10th of May 2011 by the central authority as attachment 3 is a translation of a letter from a Dr C dated 16 August 2010. Dr C is a psychiatrist and says that he treated the father as a psychiatrist and psychotherapist from 2007 after he had been hospitalised at the Department of Psychiatry on three separate occasions. Those hospitalisations were attributed to what is translated as imbalances depressive. Dr C says that from March 2007:
[The father] has been followed only with outpatient controls, recovering in full the work that has not since then interrupted and expressing a condition of good compensation, despite the difficult situation caused by separation and his wife.

80. 81.

The grave risk exception 82. 83.

84.

85.

He goes on to say:

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At present his mental condition is good, apart from the severe distress caused by the conduct misleading and inappropriately punitive damages [whatever that means] against him by his wife.

86.

In contrast, the mothers evidence is that the father has suffered from a bipolar disorder. Without more, I must accept on the evidence of the translation of the doctors note that the father apparently suffers from a recurrent depressive illness that has caused him to require hospitalisation in the past but from which he has been relatively symptom free in the most recent years. There is simply insufficient evidence for me to determine that the fathers state of mental health poses a grave risk of physical or psychological harm to the girls in itself. The mother asserts a history of quite serious physical, verbal and emotional abuse at the hands of the father. Counsel for the central authority submits that the evidence really establishes that that is mostly historical, occurring prior to separation in 2007. He further asserts that the father denies the allegations in any event. Ms Es reporting of the information conveyed to her by the girls provides support for the mothers evidence that she was subjected to violence prior to separation. I am inclined to accept the mothers evidence that she was subjected to emotional, verbal and physical violence prior to, and up to the point of, separation in 2007. The mother gives evidence that since separation she has been subject to some harassment and further verbal abuse by the father and even death threats. She does not assert that he has been physically violent to her since she moved away from the villa they shared in early 2007. Of course, there can be no condoning of any ongoing harassment, threats or verbal abuse but the nature of these Hague Convention applications is such that a court in this country has, to a significant degree, accept the capacities of the Courts and the law enforcement agencies of countries, such as Italy from whence these children came, to provide suitable protection and remedies for the mother in such circumstances. Conscious of this, I simply cannot accept the mothers evidence that the Italian system is such that she cannot get such protection and remedial support. Indeed, although the mother put before the Court a report from a psychologist who she had seen here in Australia, the evidence, including that psychologists report, does not, in my mind, go so far as providing any evidentiary basis for the view that the mothers own state of health is such or at such risk as creating in itself a grave risk to the psychological or physical wellbeing of the four children if the girls are ordered to return to Italy. Indeed, I discern from the mothers case that she was not so much as relying upon the submissions that the fathers behaviour towards her was such that it placed the children at grave risk of physical or psychological harm or otherwise

87.

88. 89.

90.

91.

92.

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in an intolerable situation, but rather that his behaviour towards the children placed them at such risk. 93. In particular, the mother referred to a number of specific incidents that she outlines in her affidavit as evidence supporting her submission on this point. She said that the evidence established: That the father had hit the girls in the back of the head in the past and on at least one occasion one of the girls had hit her head on the table as a consequence. That the father had gone to hit one of the girls on the back of the head on one occasion when she put her hand up and his hand bent her thumb back such that it caused her quite a degree of pain. That one of the girls had asked the father to help her move the table when at the villa one weekend, which request he had unreasonably refused, causing the child to attempt to move the table herself, whereupon it collapsed on her fingers crushing them. That on one occasion when one of the girls was wearing a plaster cast on her ankle, having suffered a sprain injury whilst participating in Sport 1, the father inappropriately removed the cast during the weekend visit causing the child unnecessary pain. That in early 2010 the father crashed his motorcycle into a car with one of the children riding pillion in circumstances where, the mother asserts, the father was taking medication for his mental health issues, was speeding and driving with reckless disregard for his own safety and the safety of his daughter who was riding pillion and not appropriately dressed for motor bike riding. The girl suffered some minor injuries and was taken to hospital by ambulance. 94. The evidence of the mother in respect to all of the above matters is corroborated, at least to some extent, by the reporting of Ms E of the information conveyed to her by the girls during her interviews of them. Indeed, Ms E says at paragraph 32 of her report:
Information provided by the children corroborates [the mothers] perspective to some degree.

95.

Ms E points out though that the mothers position in this regard was internally contradictory because although she alleges that the children would be at grave risk of physical and psychological harm if returned to Italy she nevertheless proposes that they could spend holiday time each year with the father in Italy if they are allowed to stay in Australia. Additionally, Ms E points out that the mother had asked the father to accompany her and the children to Australia. That is truly inconsistent with a belief that the children spending time with their father exposes them to a grave risk of physical or psychological harm.
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96.

Ms E ultimately opined that she considered that the children have experienced a degree of inappropriate physical disciplining by their father and that he can also be described as having an authoritarian parenting style and she also considered that the children may not experience a strong or healthy relationship with him. Nevertheless, Ms E went on to opine that the childrens experiences of their father have certainly been more positive since the separation of their parents in 2007 and that there was a level of attachment demonstrated between the children and their father evidenced by the children warmly describing positive memories and activities that they participated in together. The mother also put into evidence a report that she commissioned by Mr A, an Italian speaking psychologist, who saw the girls in Brisbane in March and April 2011. Interestingly, Mr As report does not contain any reported information given to him by the girls of any physical violence directed towards them or as to any information of the matters complained of by the mother that I have set out above. He does say that the older three girls describe their time in Italy spent with their father as unpleasant and not particularly fun, whilst the youngest child, L, seems to have conserved only beautiful memories of her time in Italy spent with her father. Mr A reports that the girls all agreed that when they were spending time with their father at their fathers place, he spent most of the time playing some video game by himself or that they were forced to do chores such as cleaning around the cottage or picking up wood. His report clearly confirms that the girls were well aware of the conflict between their parents but I do not read it as providing any real level of support for the argument that returning the girls to Italy places them at a level of risk of physical or psychological harm that would meet the assessment of grave or equal to what might be regarded as intolerable. Significantly on this point, although it was a course available to the mother, she had taken no steps prior to leaving Italy to seek to have amended the terms of the consensual agreement that was sanctioned by the Court in City 1 in November 2008, as a consequence of any concerns she held for the childrens wellbeing in the regular weekly care of the father assisted by his mother. With all due respect to the mother, in all of these circumstances, although I am concerned that the fathers authoritarian style of parenting might not create the ideal environment for a completely healthy development of these four young girls, I cannot find on the evidence that is before me that returning the girls to Italy, where their ongoing parenting arrangements can clearly be the subject of further consideration in the courts of Italy, places them at a risk of physical or psychological harm that can be described as reaching the level of grave. As I have already mentioned, I discern from all the evidence in this case and the mothers submissions that one of the factors motivating the mother to seek to
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97.

98.

99.

100.

101.

102.

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return to Australia was the paucity of her financial circumstances. Although married to the father for just over 10 years, she apparently obtained no division of property as a consequence of the dissolution of their marriage in the consensual agreement they reached and had sanctioned in the court in City 1 in November 2008. She asserts that she effectively was forced by pressure from the father to agree to the terms of the consensual separation agreement that did not provide for a property division or any form of alimony and included a term that the parties agreed that they were economically self-sufficient when, apparently, the mother was not. At that time, on the evidence she was, however, employed earning an income which she used to support herself and contribute towards the support of the girls. 103. Pursuant to the terms of the consensual separation agreement, Mr V agreed to pay child support for his daughters equal to 700 Euros per month, to be re-valued each year according to the cost of living, as well as 50% of extraordinary expenses such as schooling. The mother asserted in her affidavit evidence that the father only paid her child support in accordance with this agreement on four or five occasions since that agreement was sanctioned. The mother says, as a consequence of that, her inability to find and retain suitable employment and her inability to access adequate levels of social security in Italy, her financial circumstances were dire enough to be one of the main motivations in seeking to return permanently to Australia, where she believed she could get work and, as it subsequently transpires, she has been able to. The fathers evidence in his affidavit in reply that was filed on the 10th of May 2011 is that:
I have always paid to [the mother] the monthly amount provided for in the separation for the maintenance of the children, equal to 700.00, in addition to reimburse all the extra expenses incurred by her for the daughters to sport activities, medical care specialists, etc. I also take this to the court that the Italian legal system provides very effective mechanisms to allow the subject of maintenance creditor to obtain quickly to pay what is due. To mention only some examples, if the spouse does not pay the services concerned child support, the other spouse can take a very short time in the seizure of the assets of a spouse, or his or her salary, or enter a mortgage on property he owned, and so on In fact, the spouse which is responsible for the child support can be achieved very quickly that the employer of the debtor spouse verses directly to him or her the amount of maintenance allowance, deducting from the salary every month.

104.

105.

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106. 107.

I am simply not in a position to say that I accept the wifes evidence and reject the husbands evidence in respect of these matters. I have been able though, from a reading of all the DFAT documents put into evidence by the mother, to discern that the mothers allegation, that she only received the agreed child support from the father on four or five occasions since that agreement, appears to be somewhat exaggerated. It would seem, at least on that evidence, that for much of the time since the consensual separation agreement was sanctioned by the court in Italy, the mother has received child support from the father. In addition, although it appears to require some effort on her part on a regular basis, it does appear that she has been able to access some financial support from Italian Social Security in that period. Since separation, the mother has held employment in a hotel frequented by international guests which, on her evidence, she left because of harassment by her employer. She has also had other employment which she left. Clearly the mother speaks, reads and writes fluent Italian. Indeed, I was surprised in court when she informed the Court that she speaks better Italian than she does English, particularly given that I considered her English to be very well spoken. It would surprise me if the mother, with those bilingual skills, could not find employment of some sort in a city with as much focus on international tourism as City 1. In any event, however, I fully understand and appreciate the mothers desire to continue to parent her four girls and I am also conscious of the evidence that school breaks over lunch time in Italy requiring the girls to return home for lunch which would impact on the mothers capacity for employment. Ultimately though, I cannot be satisfied that even if the father is not paying his child support pursuant to the agreement that the mother could not do anything to remedy the situation through the courts of Italy. I am just simply not satisfied to the requisite degree necessary in respect of these matters pertaining to finances that returning the children to Italy will, because of financial circumstances, place the children in a situation that could be described as intolerable. Accordingly, I find that the mother has not made out the defence provided for in regulation 16(3)(b). In her Answer and Cross-Application, the mother made out a case that the defence provided for in sub-regulation 16(3)(c) was satisfied. Expressly, that defence is only made out if each of the following applies: a) b) The child objects to being returned; The childs objection shows a strength of feeling beyond the mere expression of a preference or ordinary wishes;

108.

109.

110.

111.

The children object to being returned 112.

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c) 113.

The child has obtained an age, and a degree of maturity at which it is appropriate to take account of his or her views.

At the end of the trial, I did not really understand the mother to be relying strongly on this defence. This was because she did not make submissions that this defence was indeed made out on the evidence. I have already referred to the report of Mr A that the mother commissioned and put into evidence as well as the report of the family consultant, Ms E, that was prepared pursuant to my interlocutory order. Although the youngest child, L, expressed a wish to Mr A to return to Italy, when she later was interviewed by Ms E along with her three elder sisters, she had changed her view and all four girls are reported to have expressed a wish to remain in Australia with their mother. Certainly though, I get no impression from either of those reports, more particularly from Ms Es report, that the girls objection to being returned to Italy shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes, as is the requirement in order to give rise to the defence. Ms E reports that the children each identified missing aspects of their lives in Italy, including school, friends and family members. She reports that they each identified being happy in Australia, that they enjoyed their school and they were making friends. They reported that their mother is happier in Australia. Ms E recorded her view that the basis for the girls objections to returning to Italy was predominantly related to their perception that their father had historically perpetrated violence against their mother, that he has subjected each of them to inappropriate physical disciplining and that in their opinion he was not an active or involved father. She reported also that each expressed a fear of potential repercussion of returning to Italy after disclosing negative sentiments about their father. Finally, in respect of this point, Ms E reported that the girls had stated that if the Court ordered their return to Italy for a decision about the parenting issue to be made in the Italian Courts that they did not want to live with their father in his villa and that they would accept returning to Italy if their mother accompanied them. Considering all of this evidence, I do not find that the childrens objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes. Further, Ms E expresses the opinion that the two youngest girls, D and L:
lacked the cognitive sophistication for their views to be taken into consideration fully. At their age they do not possess the capacity for abstract thought or for future forecasting. Therefore, they are likely to lack the ability to truly predict what impact their choices or views will have for their future relationship with their father.

114.

115.

116.

117.

118.

119.

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120.

Indeed, whilst Ms E declares that the two oldest girls, E and C:

have reached more advanced degree of maturity their ability for abstract thought and future forecasting would not have fully formed. As such, they too would lack the ability to truly predict what impact their choices or views would have for their future relationship with their father.

121.

As such, I do not find that all of these girls have reached an age, and a degree of maturity, at which it is appropriate to take account of their views. Accordingly, the defence provided for in regulation 16(3)(c) is also not made out by the mother. Out of respect for the mother, I shall turn briefly to the other defence she asserts in her Answer and Cross-Application which is that the children are settled in their new environment. Unfortunately, the mother has asserted this defence apparently, in my view, on a misunderstanding of the provision of the regulations. The determination of whether or not a child has settled in his or her new environment only arises in the context of regulation 16(2). Pursuant to that sub-regulation, the Court only has to consider whether or not the person opposing the return has not established that the child has settled in his or her new environment in circumstances where the application is filed more than one year after the day on which the child first removed to, or retained in Australia. See regulation 16(2)(b) and (c). In this case, the children were wrongfully retained at 20 July 2010 and the application was filed on the 18th of February 2011, well within the 12 month period. Accordingly the provisions of sub-regulation 16(2) do not apply at all to this case. No consideration is to be given, therefore, in this case, to the issue of whether or not the children are settled in their new environment. If indeed I am wrong in my determination that the mother has not made out any of the defences on the evidence, I would nevertheless, in the exercise of the residual discretion that would then arise, determine in this case to still order a return of the four children to Italy. These four girls were all born in Italy and have lived in the same village since their birth until coming here to Australia. They spoke little English before they arrived in Australia. They were, the evidence establishes, talented at Sport 1, having made it to national competitive level. When their family was intact they lived in the same villa as their paternal grandparents. Since separation they have had extensive weekly contact, including over weekends, with their father and their paternal grandparents. On the evidence, they appear to be reasonably happy, fairly well adjusted young children who have coped remarkably well with their parents separation in circumstances appearing to be of fairly high conflict.
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The children settled in their new environment 122.

123.

124.

Exercise of discretion 125.

126.

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127.

In my opinion, the mothers unhappiness with the parenting arrangements that pre-existed her return to Australia should, most appropriately, be dealt with, if at all, through the courts of Italy where the family habitually resided. I would, in all the circumstances, order the return of these four girls to Italy even if my discretion not to was enlivened. Conscious of the fact that I have the power to order any conditions that I consider necessary to give effect to the Convention, mindful of the mothers evidence about her financial circumstances prior to leaving Italy and noting the submissions of counsel for the central authority that I could make orders returning the children subject to a condition that some financial provision for the mothers needs be put in place to secure the return of the children to Italy, I have determined that I will make an order returning the children to Italy conditional upon the provision to the mother, prior to her departure for Italy and, only on the basis that she actually is returning to Italy with the girls, of the sum of AUD$8,000 for her and the childrens immediate support upon return to Italy. I consider that amount of money such as shall allow her to immediately reaccommodate herself and the four girls and support herself and them whilst she is resolving, in the short term, ongoing parenting and financial support arrangements with the father.

Conditions 128.

129.

I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 23 June 2011. Associate: Date: 23 June 2011

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