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Orders

1.Pursuant to paragraph 6 of the orders of the Honourable Justice Forrest made 4 May 2012 and in order to give effect to paragraph 1 of the orders made by Justice Forrest on 23 June 2011 as amended by the orders made by Justice Forrest on 24 June 2011:

And upon the giving of an undertaking to this Court by the father that he will withdraw any criminal complaint he has made to Italian authorities against the mother for her actions in wrongfully retaining their four children in Australia in 2010 and that he will not re-enliven any such complaint after the mother returns to Italy, if she does

It is ordered

(a)that paragraphs 1 and 2 of the orders made by Justice Forrest on 4 May 2012 be discharged;

(b)that paragraph 5 of the orders made by Justice Forrest on 4 May 2012 be discharged, such discharge not to re-enliven paragraph 3 of the orders of Justice Forrest made 23 June 2011;

(c)that paragraphs 4 to 11 inclusive of the orders made by the Honourable Justice Murphy on 6 July 2012 be discharged;

(d)that paragraph 1 of the orders made by Principal Registrar Filippello on 6 August 2012 be discharged;

(e)that paragraph 2 of the orders made by Principal Registrar Filippello on 6 August 2012 be discharged and in lieu thereof it is ordered:

(i)that subject to sub-paragraph (ii) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent mother and the said children on the All Ports Watch Alert System at all international departure points in Australia;

(ii)that the said children, and the respondent mother 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 Unit, of the 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;

(f)that a warrant (in accordance with Regulation 31 in Form 2C of the Family Law (Child Abduction Convention Regulations) issue authorising and directing the Marshal of the Family Court and the Commissioner and all federal agents of the Australian Federal Police and officers of the Queensland Police Service and all other police officers in all other States and Territories of the Commonwealth of Australia to take possession of the children E born … June 1997, C born … August 1998, D born … December 2001 and L born … May 2003 and deliver the said children to an officer of the Department of Communities, Child Safety and Disability Services or if the said children are located in another State or Territory of the Commonwealth, to a person nominated by the Director-General, Department of Communities, Child Safety and Disability Services, and that for the purposes of the exercise of the foregoing powers to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place where the said children may be or where there is any reasonable cause to believe the said children may be;

(g)that the Registrar of this Court serve a sealed copy of the warrant on the Australian Federal Police forthwith;

(h)that the children E born … June 1997, C born … August 1998, D born … December 2001 and L born … May 2003 be returned to the country of Italy at a time and from a place to be nominated by an officer of the Department of Communities, Child Safety and Disability Services as soon as practicable and Ms T (an officer of the Department of Communities, Child Safety and Disability Services) or such other persons nominated by the Director-General, Department of Communities, Child Safety and Disability Services, shall accompany the children to give effect to their return to Italy;

(i)that the applicant do all acts and things necessary to coordinate the making of the arrangements that are necessary to give effect to the return of the said children to Italy.

REASONS FOR JUDGMENT

Introduction

In June last year, I ordered the return of four children to Italy, where they had lived all their lives until they were brought to this country by their mother and wrongfully retained here against their father’s wishes.

After their father, who thought the children had been brought here for a four week holiday, learned that the girls were not going to be returned to Italy by their mother, he invoked the provisions of the Convention of the Civil Aspects of International Child Abduction signed at The Hague in the Netherlands in 1980. Australia and Italy are but two of many states that have signed the Convention and enacted it into their own domestic law. Unsurprisingly, the father desperately wanted the children returned home to Italy and the Italian Government took steps to have the Australian Government bring proceedings in this Court, through the responsible authority here in Queensland, for their return pursuant to that Hague Convention.

The mother opposed the return order being made. However, after a consideration of the evidence that was before me, and of the various arguments made by the mother as to why the children should not be returned to Italy, I determined that the preconditions for a mandatory return order had been made out, and that the mother had failed to make out any of the exceptions to mandatory return that the Regulations provide for. I also determined that even if the mother had made out one or more of the exceptions to mandatory return, I would nevertheless still have made a return order in the exercise of the discretion that would have then been enlivened. My judgment in the proceedings was published on 23 June, 2011.

I did not, in that judgment, determine that the four children are better off living with their father. I did not determine that it is in the children’s best interests to return to live in Italy. That was not my responsibility. Indeed, had I determined either of those things, I would have erred at law. That is because the multitude of nations that negotiated the terms of the Hague Convention determined, by the provisions written into the Convention, that when children are wrongfully removed or retained away from the country of their habitual residence, court proceedings to determine which parent they should live with, and in which country their best interests are met, should take place in that country of their habitual residence, from which they were wrongfully removed or from which they were retained away.

Many Australian parents whose children are wrongfully removed or retained away from Australia every year benefit from the application of the provisions of the Convention and have their children promptly returned to Australia. But for the existence of the Convention and its observance by the Courts of the signatory states throughout the world, this might not happen. Child abduction as between separated and conflicted parents, particularly in its international form, has long been recognised as abhorrent and, in itself, not in a child’s best interests. What has happened with the four children in this case, in the last year particularly, in my view demonstrates the correctness of that recognition.

After my original decision, the mother appealed against the return order I had made. On her application, I stayed that return order pending determination of her appeal. Senior Counsel argued her appeal, but the Full Court of this Court dismissed it. The mother then filed an application in the High Court for special leave to appeal against the Full Court’s decision to dismiss her appeal. Again, I gave her time to finalise her argument and to apply to the High Court for a stay of my return order pending determination of her application for special leave to appeal. For reasons not known to me, the mother withdrew her application for special leave to appeal to the High Court and did not apply to that court for a stay of my return order.

Then, as the time for the return of the children to Italy approached, the children were taken into hiding by an adult or adults known to them. The full details of those events have never been made clear to this Court. I issued an order for their recovery and, whilst they were being hidden, the mother boldly applied for me to discharge my return order, without giving any evidence that assisted in the recovery of the children. The children’s maternal great-aunt also applied to be given leave to intervene in those proceedings as the children’s litigation Case Guardian. I refused to hear the mother’s application whilst the children remained hidden, and I determined that the maternal great-aunt had no standing, pursuant to the Regulations, to be an applicant, even on behalf of the children, for a discharge order.

The maternal great-aunt then made application directly to the High Court seeking prerogative relief against me and asserting constitutional invalidity of a provision of the Family Law Act that I note had not even been raised, relied upon, or referred to until then at any stage in the proceedings in this Court. The State Central Authority agreed not to act on my return order pending the determination of those High Court proceedings.

The children were soon found by police. They were, when found, staying in the home of a person apparently unknown to them, being cared for by their mother’s grandmother. Their great-grandmother had taken steps, clearly known to the girls, to reduce the chances of them being found, in clear contravention of this Court’s orders.

At the commencement of the hearing in the High Court, where the Solicitor-General for the Commonwealth appeared for the Commonwealth Attorney-General who had intervened to argue for the constitutional validity of the provision of the Family Law Act, joined by several state Attorneys-General with the same intent, Queen’s Counsel for the maternal great-aunt immediately dropped the constitutional argument. The High Court, for reasons it has not yet published, quickly dismissed the balance of the maternal great-aunt’s application for prerogative relief against me.

The mother then again applied to this Court for the discharge of my return order. I set that application down for hearing on 27 September and, yet again, stayed the return order pending determination of the application. I also ordered that the children be re-interviewed by the same Family Consultant who had interviewed them in May last year, prior to my original decision. That happened on 29 August, 2012, and a written report issued by the Family Consultant soon after.

The Family Consultant reports that the four children all strongly object to being returned to Italy. Were the determination I now have to make as simple as considering whether the children object to being returned to Italy, this process would probably stop here. However, it is not that simple.

The legal basis upon which a previous return order can be discharged

Australia is one of the only signatory states to the Hague Convention whose enactment into domestic law of the Convention provides this Court with the power to discharge a return order. I shall not even begin to speculate on why that might be. Suffice to say that the power is enlivened if the Court is satisfied of at least one of four express pre-conditions. If so satisfied, discretion to discharge a return order is enlivened. Discharge is not mandatory on such satisfaction. Regulation 19A of the Regulations is where the power is found. It reads:

(1)If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.

(2)The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:

(a)all the parties consent to the return order being discharged; or

(b)since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or

(c)exceptional circumstances exist that justify the return order being discharged; or

(d)the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.

(3)In considering whether to make an order discharging a return order, the court must have regard to section 111CE of the Act if the convention country from which the child was removed is also a Convention country within the meaning of subsection 111CA (1) of the Act.

Clearly, the pre-condition provided for in paragraph (2)(a) of Regulation 19A is not satisfied in this case, as the State Central Authority opposes discharge of the return order.

Whilst the Court need only be satisfied that one of the remaining three express pre-conditions provided for in paragraphs (2)(b),(c) and (d) of Regulation 19A is made out by the mother, her case is that all three are in any event.

But before I turn to consider the mother’s case further, it is necessary to consider what is meant by the word “impracticable” in paragraph (2)(b) and the words “exceptional circumstances” in paragraph (2)(c) of Regulation 19A. Then, regardless of the outcome of my determination of the mother’s argument that both of those pre-conditions are made out, I will have to go on and determine if her argument that the pre-condition provided for in paragraph (2)(d) is also satisfied is correct or not.

What is the meaning of “impracticable” in the context of paragraph (2)(b)?

The meaning of “impracticable” in this context has been judicially considered in very few discharge decisions. Dawe J in State Central Authority & Ustinov (No.4) [2008] FamCA 987 considered it, as did Thackray CJ in Soysa & Commissioner, Western Australia Police [2012] FCWA 28.

Dawe J in Ustinov, at [11], determined that “impracticable” requires something that makes it “unmanageable or unable to be carried out”. However, in Soysa, at [148], Thackray CJ expressed the view that the formulation ““unable to be carried out” comes too close to “impossibility” which is clearly not the test”. His Honour went on to reason that “unmanageable” is the more apt synonym in the context of the Regulations “because it allows “some degree of reason” to enter into the process of determining whether the discretion to discharge the order has been enlivened”. I respectfully agree with Thackray CJ’s approach.

What is the meaning of “exceptional circumstances” in the context of paragraph (2)(c)?

In Ustinov, at [11], Dawe J considered that “exceptional circumstances” “requires the finding of something unusual or something in the nature of exception.” In Soysa, at [174]-[178], Thackray CJ respectfully discussed the issue further. Whilst he pointed out that there is “eminent authority to support her Honour’s view”, his Honour went on to say that he “would be inclined to treat the everyday meaning of the word “exceptional” in reg 19A, as being something more than “unusual”. His Honour gave his reasons for that at [177], saying:

When construing the word “exceptional” in the context of reg 19A, I consider it would be proper to have regard to the strength of the language employed in those other parts of the Regulations that allow a court discretion not to order the return of a child. ….The strength of the language used elsewhere leads me to conclude that accepting something “unusual” as sufficient to activate the discretion in reg 19A would not be a construction that pays regard to the objects of the Convention. This is particularly so because, in my experience, cases arising under the Regulations commonly already possess “unusual” elements.

His Honour had earlier, at [86], already remarked that “it is only by comparison with other cases that a court could determine if the circumstances of a particular case are “exceptional”.”

Again, I find myself respectfully drawn to agree with Thackray CJ’s considered views. The fact that I have to be satisfied that the “exceptional circumstances” actually “justify” the return order being discharged fortifies my own view that to justify discharging a return order the “exceptional circumstances” must be something more than just “unusual”. Return orders made after due consideration of the evidence and principled application of the Regulations having regard to authority that remain untouched after appeal should not readily be discharged because “unusual” circumstances have emerged. That would too easily lead to defeat of the Convention’s purpose. Filing an application for special leave to appeal to the High Court from the decision of the Full Court of the Family Court, then subsequently withdrawing it after the first instance judge refuses a stay of the return order, before then again going to the High Court on a constitutional point that is immediately dropped at the start of the hearing in the High Court could only be described as “unusual”, yet these circumstances could hardly be considered such as to “justify the return order being discharged”. The circumstances need to be quite different from those that generally present in this sort of case to make them “exceptional” and there clearly must be something about the “exceptional circumstances” that makes it appropriate to discharge the return order; that justifies, substantiates or warrants doing so, particularly having regard to the purpose and scheme of the Convention and the basis upon which the return order was originally made.

Whilst paragraph (2)(b) expressly requires the circumstances that make a return order “impracticable” to be carried out to have arisen since the order was made, there is no requirement that the “exceptional circumstances that justify the return order being discharged” must have arisen since the order was made. Thackray CJ accepted that in Soysa at [180]. I respectfully accept that as correct.

The mother’s arguments

In her written submissions, counsel for the mother contended that much of the evidence that supports the “impracticability” ground also supports the “exceptional circumstances” ground. Having regard then to the evidence presented by the mother, as well as the written and oral submissions of her counsel, the mother’s case, as I discern it, is that against the backdrop of the mother’s stated intention not to return to Italy with them, the children’s objections to return to Italy, the manner of their expression of those views and the behaviour they have demonstrated since the return order was made all combine to produce exceptional circumstances that justify the discharge of the order and to make it impracticable for the order to be carried out.

Is it impracticable for the return order to be carried out?

I consider this ground first as it is first in order in Regulation 19A, but also for the same logical reason given by Thackray CJ, at [138], in Soysa. If it is impracticable for the return order to be carried out then it is simply impracticable and should be discharged. As such, if this ground is established there is little point then going on to consider whether there are exceptional circumstances that also justify the discharge of the order.

Counsel for the mother, in her written submissions, began by contending that the Court “has evidence of impracticability already – they disappeared to make [the Court’s] order of 4 May 2012 impracticable to be carried out”.

Paragraph 1 of the order of 4 May 2012 required the mother to deliver the children to the Brisbane International Airport at a time and date, not before 16 May 2012, nominated by an officer of the Department of Communities (the responsible State Central Authority in Queensland). Of course, that did not happen as the children were taken into hiding less than 48 hours prior to the time nominated for them to be delivered to the airport.

I acknowledge that the mother, in her evidence, continues to deny knowledge or involvement in the hiding of the children. However, her counsel conceded that there is no evidence before the Court that would support a finding that the children took matters into their own hands and went into hiding by themselves. Quite to the contrary, as I have pointed out already, the evidence satisfies me that the children’s maternal great-grandmother was hiding the children at the time that they were found by police, and had taken steps, such as confiscating the children’s mobile telephones, to reduce the prospects of them being found. Furthermore, there is no evidence that the children resisted going into police and Departmental care upon being found, knowing that they could be put on a plane to Italy in that care. Indeed, there is evidence that one of the girls, C, the second oldest, actually asked one of the Departmental officers in whose care they were placed if she could just gather up some of her possessions to take with her in the event that they were put on a plane to Italy that night. I am absolutely satisfied that the girls did not run away and go and hide themselves for days to avoid getting on a plane to Italy.

As such, I do not consider that the actions of adults who are members of the children’s family, or otherwise close to and known by the children, done in deliberate defiance of the Court’s orders, can be relied upon by the mother as circumstances that make it “impracticable” for the return order to be carried out simply because the date and time that the children were to be delivered to the airport has passed. To find that would make a mockery of the Hague Convention legal process and do nothing but encourage such actions in similar circumstances in the future by parents as equally determined to continue to wrongfully retain their children in this country.

That said, there is evidence before me that in the months since the children were found they have actually said things that suggest that it might be problematic getting them on to a plane to Italy in the future. The same child who I noted had asked the Departmental officer to let her gather up some possessions to take with her in case they were put on a flight the day after they were found by police, apparently wrote a letter to “Dear Someone” in late June, whilst living in the care of a Department appointed foster-carer. That letter has been put into evidence by the mother. In that letter the child has said “I’d refuse to get on the plane to Italy. I’d do absolutely anything to stay here.” The maternal great-aunt also gives evidence that the girls have told her, including in a meeting and discussion she had with them only seven days before the Family Consultant interviewed them for her updated report, that they would resist any attempts to be forced on a plane to Italy. She deposes to the youngest child telling her that she “would kick and scream” if anyone tried to force her on to a plane. She deposes to the oldest child telling her that she “wouldn’t even go in the car to the airport ... they would have to drug and handcuff me.” She deposes to the second youngest child telling her “I would cry and try to get away”.

As well as this evidence of the children’s statements adduced by the mother, the Family Consultant also reported in her latest report that the children told her that they would not get on the plane and that the second eldest child stated that she would run away. Given that the two eldest children are 15 and 14 years old, such statements must be taken to reflect strongly held sentiment.

However, I note that the evidence of the children’s statements about these matters contrasts quite dramatically with the evidence of the Departmental officer’s observations as to the apparent calm and compliant nature all the children displayed in the immediate aftermath of being found in hiding in May this year, a time when the prospect of them being put on a plane loomed high, particularly, I accept, in the minds of the children. I further note that neither the mother nor the maternal great-aunt deposes to how they each responded to such statements by the children. Neither gave evidence that they offered any discouragement of such expressed intentions to any of the children when such statements were made, and such discouragement, in my view, could be expected to be reasonably influential.

This evidence of the children’s statements must also be seen in the context of the mother’s stated intention, apparently made abundantly clear by her to the children over a period of several months at least, that she will not return with them to Italy. For reasons I will discuss further on, I do not go as far as making a positive finding that the mother will not return to Italy, although she currently says that she will not. Accordingly, whilst I cannot rule out the possibility that the mother will adhere to her stated position, it may yet be the case that the mother would decide to accompany the children on the return to Italy.

In any event, it is a matter of common ground that all four children are very polite, well-mannered, respectful and strong of religious faith. If the mother was to return to Italy with them, or even encourage them to go in her absence, I expect there would be no question about the practicability of the return order. At the same time though, even if the mother does not accompany them, there is no evidence that causes me to consider that the children would not be treated sensitively and appropriately by Departmental officers prior to and at the time of being put on a flight. I certainly do not accept that they will be “drugged and handcuffed” as it is said the children assert that they have been told by “caring” persons might happen to them. Further in respect of that issue, I do not accept the submission of counsel for the mother that because the Departmental officer told the girls it “would not be likely” that they would be “drugged and handcuffed” to be put on the plane, that it must, therefore, be a possibility that confronts them. Even if their mother does not go with them, having regard to all of the evidence, I am not convinced that the girls will not go on a plane, although I accept that they will probably not be happy to do so.

In all these circumstances, I am not persuaded that since the order was made, it has become impracticable for the return order to be carried out.

Are there exceptional circumstances that justify discharge of the return order?

Before I made the return order last year, the Family Consultant had reported that the children all expressed a wish to remain living in Australia with their mother but that they had all indicated they would accept returning to Italy if their mother accompanied them. The Family Consultant also reported that each of them identified missing aspects of their lives in Italy, including school, their friends and family members and that they identified a family friend with whom they and their mother could live if they returned accompanied by their mother.

I also had evidence that the mother put before me from an Italian speaking psychologist the children had seen at the mother’s instigation for a report to be prepared not long before they were interviewed by the Family Consultant. That report also proffered the factual observation that the three eldest children expressed views that they wanted to continue to live in Australia and to go back to Italy for holidays to visit their father and for him to visit them for holidays in Australia. Of note though, was that expert’s report that the youngest child had stated a preference for returning home to Italy to live because she liked the place where they lived in the Tuscan countryside and the activities she used to do with her father and friends. Quite remarkably, in my view, she did not repeat that same preference to the Family Consultant when interviewed only a few weeks later, after the mother had the report of the psychologist in her possession.

I considered all that evidence of the children’s objections to returning to live in Italy in the course of determining the State Central Authority’s application for a return order, particularly in the context of the mother’s arguments that a Regulation 16(3) exception was made out. I did not find that the children’s objections showed the required strength of feeling, being beyond the “mere expression of a preference or of ordinary wishes” required by the Regulation, or that all of the girls had reached an age, and a degree of maturity, at which it was appropriate to take account of their views.

Now, as I have observed, the same Family Consultant reports, after having interviewed the children on 29 August this year, that all four children strongly objected to returning to Italy and told her that they would not get on the plane.

More alarmingly yet, the Family Consultant reports that the second eldest child stated she would run away and that she said “I’d probably end my life I’m feeling so strong.” This child was also reported to have told the Family Consultant that when she had been in foster-care she had considered cutting herself “with a knife … anything that cuts.”

That last statement reported by the Family Consultant was consistent with other evidence that the child had confirmed to her foster-carer that she had communicated notions of self-harming to her mother and third parties whilst she was in foster-care in the period after being found in hiding in May this year, before the girls were put back in the care of the mother by order of Murphy J of this Court in early July.

The same child wrote the “Dear Someone” letter that I have already referred to during that same period of time. In that, she also said “I don’t think I could even survive in Italy. I would just cry and cry all day. I’d die of pain.”

Of note also, is the fact that the youngest child, now 9 years old, who was reported in May last year by the Italian speaking expert to have expressed the preference for returning home to Italy, is reported by the Family Consultant to have now said “Italy’s a scary place. I don’t feel comfortable….. I feel more Australian than Italian.”

Apparently, the level of the children’s expressed objection to returning toItaly has increased since their views were independently assessed and considered last year. That is, in my view, not at all surprising. They are all more than a year older, they have been living on the Sunshine Coast enjoying the lifestyle that this country and that locality has to offer, they have been building relationships with their maternal extended family, they have been building friendships with peers, they have acquired a far greater command of the English language and, importantly, they have been made absolutely aware of their mother’s expressed intention not to return to Italy with them in circumstances where their attachment to her is now clearly far stronger than their attachment to their father. That they would be disappointed about returning to Italy and object to doing so, in all these circumstances, is neither surprising nor, in the context of Hague Convention proceedings and cases like this, hardly exceptional.

The case for the mother though, as I understand it, is that the apparent strength of the children’s objections to return to Italy, manifesting itself in escalating psychological distress, and, particularly in so far as one of them is concerned, in threats of self-harm, constitutes the “exceptional circumstances” that justify discharge of the order.

Certainly, evidence of threats of self harm is seriously concerning and demands extremely careful consideration. The Family Consultant reports that she explored the particular statements that she reported had been made to her by the second eldest child further with the child. Thankfully, the child is reported to have said that she had received good advice from her friend and her mother and that she does not intend to self harm. The Family Consultant then went on to express the opinion that the likelihood of the child harming herself is low based upon her presentation at interview.

The mother had also deposed in an affidavit that the child had earlier spoken words to the effect of an expression of intent to cut her wrists, but the mother added that the words were used as an “expression” and that the child was “not really going to harm herself”. As I have already noted, there is also evidence that the child had confirmed to her foster-carer when asked by her that she had written something to the effect of “what do I have to do to get back home, [into her mother’s care] do I have to kill myself”. Thankfully again though, the evidence about that, is that the foster-carer then reported that the child had told her she did not really mean it and that she would never act on such a statement.

The Family Consultant reports that the mother told her at interview of the child’s threat to self harm by cutting herself, but rather remarkably, in the light of the affidavit evidence the mother gave about it, the Family Consultant says the mother was “unable to elaborate because she has not explored these statements with [the child]”. That assessment of the Family Consultant was not challenged by counsel for the mother when she cross-examined her. It is strangely inconsistent with the evidence that the mother gave in the affidavit I just referred to, as well as the reporting of the Family Consultant that the child had said she had received good advice from her mother about this.

The mother also deposes to the youngest child having written in an Ipad story that she created that she would stab herself if she had to go back to Italy.

I do not trivialize threats of self-harm made by a 14 year old girl or a 9 year old girl. It is very troubling. But as the Family Consultant has said, the circumstances in which these girls have found themselves directly involved in the efforts of their mother, and other members of the mother’s extended family, to keep them in Australia, notwithstanding the decisions of the Court, have had a significant emotional impact upon the children. The very public nature of the campaign has been very disturbing. I am satisfied that they have definitely not been shielded from the dispute and have clearly, I find, been significantly influenced in their views and their conduct by their mother and other members of her family. Examples of extremely inappropriate and sometimes bizarre things said to and in the presence of the children can be found in statements made by the maternal great-grandmother that were recorded by police in the immediate aftermath of the children being found after being hidden by her. Unashamedly, she was recorded saying to one of the children “How exciting. Who’s going to play you in the movie? They will have to find a good little dark-haired actress to play you when they make the movie.” She also said to the police, in the presence of the children, “everyone is on their side except their father …….He doesn’t love them. He just owns them. They’re chattels.” She then went on to say “… because he is a liar – please tell me you’re not Italian – because he is a liar, and all Italians are bloody liars…”.

The fact that the youngest child could go from stating in May last year that she wanted to go home to Italy to her home in the Tuscan countryside to now asserting that “Italy’s a scary place. I don’t feel comfortable” and writing that she would stab herself if she was sent back to Italy, when she has not been back to Italy in the meantime, causes me to conclude that she has probably been subjected to considerable influence by persons close to her. That could have been her mother, or her older sisters, or other members of her extended maternal family. It does not really matter who. Having regard to the sorts of things the maternal great-grandmother was saying to and in the presence of the children, even in the company of police, I am satisfied that little restraint in respect of these matters is likely to have been demonstrated around these children and that this has impacted upon them in significant ways.

That the four children were inexplicably permitted to meet with the maternal great-aunt and to have a very detailed discussion with her about their wishes and desires for the future, including their thoughts in relation to the previous family report and the report that was going to be prepared only days later, when the mother had given an undertaking given to the Court on 6 July 2012 not to permit such a thing to happen, in my view, gives further credence to the State Central Authority’s submissions that not too much weight should be given to the asserted increased strength of the children’s objections in this case and that the reported threats of self-harm made by the children ought not too readily be elevated beyond the realms of attention seeking behaviour.

It is very important to remember that the children’s objections to returning to Italy are principally founded in a belief that their mother cannot return with them. The Family Consultant confirmed as much. Notwithstanding the submissions of counsel for the mother criticizing the nature of the inquiry the Family Consultant was directed to and did undertake in respect of ascertaining the children’s views, I am left in no doubt that the children do not want to return to Italy, whether there are further proceedings in that country that might result in them being allowed to return to Australia or not, principally because of a belief, instilled in them by their mother, that she cannot and, therefore, will not return to Italy with them. The current strength of their views about returning to Italy cannot be considered in isolation from that fact.

In Ustinov, at [42], Dawes J was quite strong in holding that the correct interpretation of the Regulations, taking into account the purpose behind the Convention, does not allow the absconding parent to hold out as a circumstance that would justify the discharge of a return order the fact that she will not return to the country of origin. In Soysa, at [150] to [159], Thackray CJ carefully discussed the same issue.

His Honour began with reference to the quote from the judgment of Butler-Schloss LJ in Re C (A Minor)(Abduction) [1989] 1 FLR 403 that is well known to all who have considered the jurisprudence around the Hague Convention. In considering at the trial stage, whether a mother could rely on the “grave risk of harm” exception by asserting that the risk to the child’s wellbeing arose because of the mother’s own refusal to accompany the child home to its country of habitual residence, her Ladyship said at 410:

The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him… Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent…

The same approach has been endorsed by the Full Court of this Court, but as Thackray CJ pointed out, the Full Court of this Court has more recently accepted that there may be personal or other circumstances which genuinely preclude an absconding parent from returning with the child to the country of former habitual residence. Given these contrasting positions, I consider it best to be mindful of the words of Warnick J, the trial judge in Director-General, Department of Families v P [2003] FamCA 691, who said:

Courts will understandably have a real concern about the disingenuous adoption of stances designed to achieve the purposes of abductors in resisting orders for the return of children. But the response to this concern cannot be to disregard evidence, but rather to scrutinise it with great care.

This careful scrutiny is clearly required where the evidence is that the children would readily accept returning to their home country if their mother accompanied them, as I accept it is in this case.

The mother continues to assert, as she did when I determined the original application for a return order, that she is unable to return to Italy. She maintains that economic reasons prevent her from returning, but also the fear of being arrested, criminally prosecuted and imprisoned in Italy for her actions in wrongfully retaining the children in Australia in the first place. Having informed the children of her concerns about those things, it is hardly surprising that such factors add strength to their objections to returning to Italy.

In my original decision, I considered and dealt with the mother’s case that economic reasons prevent her from returning. The evidence now is that she is undertaking full-time tertiary studies in Australia and receives income in the form of Centrelink payments from the Commonwealth Government which she uses to support herself and the four children. In Italy, between the separation from the children’s father and the time of their departure from that country, the mother had employment in a few different unskilled jobs. Although she asserts that it would be difficult to get employment if she returns, and that Italian social security is problematic and unreliable, I cannot say that I completely accept that evidence or, if I did accept it, that I consider it as anything other than the basis for a preference not to return, as opposed to a complete and real impediment. My original return order did also condition the mother’s return with the children on the payment by the father of AUD$8,000 to assist in the immediate financial support of the mother and the children upon their arrival and he has provided that.

As to the fear of being arrested and imprisoned, I am in no doubt that the mother dreads there being some criminal law consequences for her actions if she were to return to Italy now. Not to do so would be unnatural. However, quite apart from the obvious question as to whether the fear of a consequence for one’s own wrongdoing should be part of circumstances that an applicant seeks to set up as exceptional so as to justify discharge of a return order, I am not satisfied, on the evidence before me, that arrest, charge and imprisonment actually awaits the mother on return to Italy.

On the mother’s own evidence, her inquiries of an Italian lawyer have produced advice that if she is charged and convicted of the relevant offence prescribed by Italian law it is more probable that she would be entitled to probation and would not be imprisoned. On the other hand, the State Central Authority has put evidence before the Court that it submits supports a finding that the mother will not be arrested and charged with any criminal offence on her return.

Copies of some documents produced in English by the Italian Ministry of Justice and conveyed to the State Central Authority through the two countries’ respective Central Authorities have been put into evidence. The first one is exhibited to an affidavit of Departmental officer, Ms O, filed 18 September 2012 and marked ‘HT1’. It is dated 23 May 2012 and signed by Justice Luciana Sangiovanni, Head of Central Authority and says:

With reference to your request on the possible risks of adoption of a restrictive measure by the Italian Judicial Authority against Mrs [Garning], please be appraised as follows:

No criminal proceedings are pending against Mrs. [Garning] upon her breaching of her obligations resulting from the separation agreement by mutual consent signed by her and Mr [V] and validated by the Juvenile Court in Florence, and no restrictive measure against her personal freedom has been issued.

Mr [V] has never lodged any criminal complaint against Mrs [Garning];

In the Italian legal system, the illegal removal and retention abroad of a child is considered as an offence under Section 574 bis of the Criminal Code; the assessment as to whether such an offence was actually perpetrated or not falls within the sole jurisdiction of the competent Judicial Authorities and is conditioned upon the assessment that the appropriate legal requirements have been met and upon the complaint of the offended person;

The absence of any criminal complaint against Mrs. [Garning] by Mr. [V] (in spite of the long time elapsed since his daughters’ removal by their mother) as well as the absence of any criminal proceedings against Mrs. [Garning] make all her alleged fears of being arrested, should she come back to Italy with her four children, specious and delaying.

The second document was tendered into evidence at the hearing of this discharge application and is exhibit 1 in the proceedings. It is dated 25 September 2012 and is also signed by Justice Luciana Sangiovanni, Head of Central Authority. It says, relevantly:

All this being said, we take this opportunity to advise that the competent Italian Judicial Authority in the criminal proceedings pending against Mrs. [Garning] for international child abduction just informed us that the relevant preliminary investigations came to their end and no restrictive measure was ordered against Mrs. [Garning] by the competent Public Prosecutor in Florence, nor any further evidence arose to modify such decisions since the end of the preliminary investigations. …

In our opinion, this notice coming directly from the Judicial Authority should exhaustively answer all the concerns formulated by Mrs [Garning’s] solicitors. In addition, it should also allow to easily overcome all the children’s concerns about their possibility of maintaining meaningful relations with their mother, once returned to Italy.

Attached to and part of exhibit 1 is an English translation of a document from the Office of the Public Prosecutor of the Court in Florence. It is headed ‘Notice to the Person under Investigation and his/her Solicitor at the end of the Phase of the Preliminary Investigations’. It records that the Public Prosecutor has read the case file in proceedings against the mother for the offence under Par 574 bis of the Italian Criminal Code and has concluded preliminary investigations and that the mother is entitled to submit her own brief and documents, and to appear in Court with legal representation and experts to, as I understand it, effectively put on her case in defence.

The second document that is exhibit 1 in the proceedings does not appear to me to be entirely consistent with there now being no criminal proceedings against the mother. Although the documents do reflect an apparent lack of current intent or even a right on the part of the Italian authorities to arrest the mother upon her return to Italy, and they do provide support for finding that it is currently uncertain whether the mother would face prosecution and imprisonment upon conviction, I respectfully do not accept the submission of counsel for the State Central Authority that these documents should provide me with confidence that the mother will not be charged with an offence. I do, however, note the submission of counsel for the State Central Authority that additional conditions could be imposed on the return order if it is not discharged, such as requiring an undertaking from the father that he would withdraw any criminal complaint he may have lodged against the mother and not press for any prosecution of the mother. That might assist, but I still cannot, on the evidence, find that I am satisfied that the mother would not be prosecuted in the absence of criminal complaint against her lodged by the father.

Nevertheless, I am not satisfied that the mother’s concern that she will be arrested, charged with an offence, convicted and imprisoned on return to Italy, is one that “genuinely precludes” her from returning. Not even the evidence that she herself has put before the Court supports such a finding.

I am satisfied that the level of attachment between the children and the mother is very strong and that the mother’s commitment to the welfare of the children is such that when faced, ultimately, with the prospect of them returning to Italy being real, she might very well determine to travel with them. Whilst I do not find that she would definitely decide to return with them, as counsel for the State Central Authority submitted I should, I do not consider that I must do so in order not to be satisfied that the circumstances constitute exceptional circumstances justifying discharge of the return order. I am, however, satisfied that I cannot find that the mother will not return to Italy if the return order is not discharged. As to this point, I note that solicitors acting for the mother previously informed the State Central Authority in September last year, whilst reserving her rights to appeal against the return order, that the mother would return with the children and requested the payment of the AUD$8,000 by the father, which the father made available.

If the mother does determine not to return, even in the face of the return order remaining in place, then that is her decision, but it is not one that I accept she has no personal choice but to make. In my original decision last year, I considered but rejected the mother’s argument that returning the children would expose the children to a grave risk of physical and psychological harm or otherwise place them in an intolerable situation. Included in my reasons for rejection was my satisfaction that the girls did not object to return to Italy if their mother also returned and my inability to find that the mother could not and would not return.

The mother now points to evidence that the children’s emotional well-being was adversely affected by their separation from her when they were in foster-care earlier this year, and then, effectively, says to the Court that they will suffer in the same way if they return to Italy without her, which she alone currently says they must do. She asserts that the Court would be satisfied that these circumstances are exceptional and that they justify discharge of the return order. I am not so satisfied.

At this point in my judgment, I consider it appropriate to make some remarks about the impact of the effluxion of time on this case.

Rather unfortunately, particularly for the children at the heart of the dispute, more than two years have passed since their mother “wrongfully retained” them in Australia, as that term is understood within the context of the Hague Convention. Clearly, the process of the father engaging the Italian Central Authority and the Australian Central Authority to seek a return order from this Court took several months. That should not be too surprising and is hardly exceptional. That a return order is mandated by the Hague Convention and the Regulations, if the preconditions are satisfied, in respect of any application filed in the Court within 12 months of the wrongful removal or retention, demonstrates that the signatory states all considered that amount of time unexceptional.

Notwithstanding the considerable pressures on the judicial resources of this Court, the matter was heard and determined at first instance within a few months of the proceedings being commenced. There was some delay in that process, but that was at the request of the mother to enable her to get her case prepared.

After the original decision, at the outer limits of the appeal period, the mother appealed against the return order to the Full Court of this Court. The hearing of her appeal was expedited by the Full Court. Seven months delay between the hearing and delivery of the written judgment dismissing her appeal, regrettable as it is, is hardly exceptional having regard to the then state of judicial resources available to the Full Court and I note that is something that has been very recently addressed with the appointment of 2 more judges to the Appeal Division of this Court.

The mother, unsuccessful in her appeal to the Full Court, then filed an application for special leave to appeal to the High Court. Without even declaring her proposed arguments on such appeal, the mother sought from me, but was refused, a stay of the return order. Instead, she was given time to apply to the High Court for a stay, as she could have done. She did not do that. Then, the children were hidden and the mother filed another application in the High Court. Although that was heard and determined against the mother expeditiously, another 3 months passed.

The mother continued proceedings. This application was filed and was listed as expeditiously as judicial resources allowed, but yet another 2 months passed.

Due process in the Courts of this country takes time. In all the circumstances, the passing of over 2 years since these four children were wrongfully retained here does not constitute exceptional circumstances that justify discharge of the return order, as difficult as that becomes for the children who are the unfortunate ones at the centre of the dispute, particularly the older ones who, at a fairly critical stage of their development, have become quite settled in their Australian environment. To consider this amount of time that has passed, in these circumstances, as exceptional circumstances justifying discharge of the return order would, in my view, simply encourage absconding parents to take whatever steps might be available to them in the litigation process to seek to delay return orders being made and implemented. I accept the submission that to so decide would do a grave injustice to the many hundreds of parents who faithfully put their trust in the rule of law to effect the return of their children who have been wrongfully taken away from them. The legislative recognition of this can be seen in paragraph (2)(d) of Regulation 19A that I now turn to consider.

Does paragraph (2)(d) of Regulation 19A apply?

Paragraph (2)(d) says:

The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.

The mother filed her application for the discharge of the return order on 26 June, 2012 and an amended application on 17 August, 2012. The return order was first made on 23 June, 2011, more than 1 year before the mother’s discharge application was filed. For the mother, it is submitted that on a proper construction of paragraph (2)(d) the pre-condition is satisfied.

In any event, counsel for the mother submits that the State Central Authority is bound by a concession said to have been made by the Queensland Solicitor-General in the recent High Court proceedings in respect of this issue when he appeared for the State Central Authority in response to the maternal great-aunt’s application

Mr Sofronoff QC said to the High Court, after reading out Regulation 19A paragraph (2)(d):

So we are reaching that stage – I think we have reached that stage now – where at least one of the grounds will now have been triggered. That raises a discretion. It does not answer what ought to be done but because of the time, that will now have been triggered.

The State Central Authority does not accept that it is bound in these proceedings by the statement made by Mr Sofronoff QC in the High Court. Counsel for the State Central Authority submits that the particular point was not even in issue in the High Court and that where the question is one of the proper construction of the Regulation, it cannot now be incorrectly construed against a party simply because counsel representing that party elsewhere, in proceedings where the point was not even in issue, asserted a position based on an incorrect construction of the provision.

I do not consider that the case is one in which the principle of res judicata applies. The application of Regulation 19A was not in issue in the High Court proceedings and, therefore, the determination of the High Court of those proceedings does not dispose of once and for all of this issue. In any event, I do not understand that to be the argument for the mother.

I understand counsel for the mother’s submission to be more that the State Central Authority has waived the right to argue for a different construction or that it is estopped from changing its position. I do not accept either submission.

I consider that the terms of the Regulation under consideration go to the existence of the power of the Court to discharge a previous order and do not confer personal or private rights on a party that can be waived by the party. The provision clearly rests on the public policy of imposing a period of time that must expire before, absent any other pre-condition being satisfied, the Court has a discretion to discharge an existing return order. As such, one party can not simply say, whether intentionally, or mistakenly, that the pre-condition is satisfied if it is actually not. Courts are not bound by the positions adopted by counsel when it comes to statutory interpretation.

I consider the same answer disposes of any estoppel point the mother is making. In addition, I am satisfied that the mother “may reasonably be expected to appreciate that [she could not] safely rely” upon the statement made by the Solicitor-General in proceedings where the point was not in issue, that the words of the Solicitor-General did not, expressly or implicitly, make it clear that the State Central Authority had no intention of ever changing its mind on the construction point in future proceedings where it actually was in issue, and that the mother did not, in any event, in reliance upon the statement, suffer detriment of a kind that would support the remedy of estoppel.

The issue is to be determined then by considering the proper construction of Regulation 19A paragraph (2)(d). The question is then of determining the meaning the relevant words used in the Regulation require.

Counsel for the mother submits that the use of the word “or” between the words “the return order was determined” and the words “any appeal in relation to the return order was determined” compels a disjunctive interpretation of the provision. Such an interpretation, if correct, would mean that the mother’s application, filed as it was more than 1 year after my return order was made, satisfies the pre-condition and triggers a discretion to discharge.

On the other hand, counsel for the State Central Authority submits that it was the last variant of the return order, made in May this year, after the Full Court’s dismissal of the mother’s appeal against the original return order that is the relevant return order within the meaning of the section and, therefore, the pre-condition is not yet satisfied.

I do not accept that submission, so shall firstly dispose of that argument. There was an application filed in the first part of last year by the State Central Authority for a return order. After a trial, a return order was made and it survived appeal. Necessarily, having regard to requirements imposed by those original orders and also the Regulations in respect of the timeliness of return being implemented being overtaken by events such as appeals, procedural aspects of the return order have had to be varied, as permitted by the Regulations, from time to time. It is clearly, in my view, the substantive return order, made after hearing of the original application for a return order, that is the relevant return order for the purposes of Regulation 19A(2)(d). I do not accept that the provision provides for the 1 year time period to start to run from the date when the original return order is so varied.

As to the mother’s submission, it is true that in ordinary speech the word “or” is used disjunctively. However, this does not mean that a disjunctive interpretation must always be given to statutory and regulatory provisions where it is used. Statutory interpretation requires words used in legislation to be construed by reference to the “statutory context in which they appear, the word ‘context’ being used in the broad sense of encompassing not merely the legislation as a whole, but the legislative history and parliamentary purpose as evident in the legislation or, where appropriate, extrinsic material”.

Had the legislature intended the two different events to be genuine alternatives to each other, at least in my view, the word ‘either’ would have been inserted between ‘after’ and the words ‘the return order’ that follow it. I interpret the words as meaning that for this pre-condition to be satisfied the application for discharge of the return order must have been made more than one year after it was made if there was no appeal in relation to the return order, but if there was an appeal in relation to the return order, then it is only satisfied if the application for discharge of the return order was made more than one year after any such appeal was determined. To interpret the provision otherwise, would not, in my view, be giving effect to the clear legislative intent. To interpret the provision as counsel for the mother submits would give rise to the absurdity that the second of the asserted alternative events would be completely superfluous to the provision in cases where there was an appeal against a return order. To interpret the provision that way would do nothing but encourage absconding parents who were unsuccessful in return order proceedings to file appeals to the Full Court and the High Court, irrespective of merit, and do other things, to delay implementation of return orders for at least one year. I do not interpret it that way.

The date of the delivery of the judgment of the Full Court of this Court on the mother’s appeal against the return order, namely 9 March, 2012, is the date on which the requisite 1 year period began to run. As that 1 year has not yet passed, I am not satisfied that the pre-condition provided for in Regulation 19A(2)(d) is met.

Accordingly, I must dismiss the application to discharge the return order.

How would I have exercised the discretion had I found it had been open to be exercised?

Although I have found that the discretion has not been enlivened, it is important that I indicate how I would have exercised it if it was determined that I am wrong in finding that.

Of course, as I have said, if I am wrong in my determination as to the ‘impracticability’ ground, a finding of impracticability would, no doubt, result in discharging the return order. However, in respect of the other two grounds, I would not have exercised the discretion to discharge the return order even if I was wrong in finding that I was not satisfied that they had been made out.

I acknowledge that the matter, if it got to the exercise of the discretion, is extremely finely balanced. Certainly, consideration of the children’s best interests, which is able to be done at this point, albeit not as the paramount consideration, points to the need to consider the strength of the views expressed by the girls and the extent to which they have apparently settled where they have been living and going to school for the last two years. However, letting them stay here denies all four of the girls the regular company of their father and all of the members of his family. They might say they do not care about that but I am satisfied, particularly in so far as the younger two girls are concerned, that they are not all mature enough to understand the significance of such an outcome. I am also mindful of the fact that there is no principle that requires the discretion to be exercised entirely in accordance with what the subject children say they want.

The evidence supports a finding that the girls all do indeed love their father, even though they might be very unhappy with him for insisting they return to Italy. It also supports a finding that they have a strong attachment to him, as well as to other members of their extended paternal family. Whilst I acknowledge that the views of the two older children, who are said to be ‘young women’ ought to be given significant weight at this point, which I do give them, I am very concerned that the best interests of the two younger ones, who have a lot more of their childhood before them, not be swamped or disregarded in the process, by greater consideration being given to the views of the older girls. I am mindful of the fact that the two elder girls are not far away from reaching the age where they could actually make their own choice about their parenting arrangements and act upon them without any involvement of the Hague Convention. The younger two though are not. Here I hasten to add, there is absolutely no question of making orders that separate these four siblings. I understand no party to countenance such a notion.

I take into account my inability to find that the mother will not return to Italy and the evidence that the children would accept return to Italy if their mother was returning with them. As I have said before, these four girls were all born in Italy and lived in the same locality all of their respective lives until abruptly brought here and wrongfully retained in this country two years ago. They were apparently well adjusted, polite and compliant children who were talented at sport, having made it to Italian national competitive level. They had sound relationships with family and friends. They did not know life in Australia.

I take into account the time that has passed since they have been here, with regard to the impact that alone has had on the lives of the family, but also particular regard to the reasons for that passing of time that I have already discussed.

I have regard to the fact that proceedings between the parents about the appropriate parenting arrangements in respect of these children can take place in the Italian courts and could result in orders that permit the mother to relocate the girls to Australia. Of course, I acknowledge that such proceedings may not ever take place, but if they do not, that is, I am satisfied, probably going to be because the mother chooses not to initiate or participate in any such proceedings, which, as I have said, is a matter of her choice.

As Thackray CJ pointed out, at [224], in Soysa, the Regulations direct the Court to recognise that the effective implementation of the Convention depends on reciprocity and mutual respect between judicial authorities of Convention countries. His Honour went on to say:

It is important to remember that the Regulations were promulgated to “obtain for Australia any advantage or benefit, under the Convention”. The advantage to Australia of ensuring that children wrongfully brought to this country are sent home, is because Australia can then more confidently predict that Australian children wrongfully taken to [another signatory country] will also be sent home.

Counsel for the State Central Authority emphasised this point, effectively, in his submissions. It is a matter I give considerable weight to.

After considering all of the evidence and all of these matters, and being acutely aware of the fact that I am making difficult decisions involving the lives of four children who have expressed strong views that they do not want to return to Italy, I have determined that I would not set aside the return order, even if I had an entitlement to do so after determining the ‘exceptional circumstances’ point or the one year timing point.

What orders should now be made?

The State Central Authority has, by way of filing an Application in a Case on 24 September 2012, put before me orders that it submits I should now make to give effect to the order for the return of the children to Italy. Essentially, they provide for the children to be taken back into the care of the Department of Communities, Child Safety and Disability Services as soon as practicable and for the officer of the Department already known to the children to accompany them to Italy as soon as is practicable.

In all the circumstances, and particularly having regard to the conduct of the maternal great-grandmother and, I am satisfied, other adults known to the children, in May this year, I am satisfied that the orders proposed by the State Central Authority should now be made. Should the mother determine to return to Italy with the children, as I seriously hope she does, that will now be a matter between her, the State Central Authority and the father.

I make the orders set out at the commencement of these reasons subject to the father giving an undertaking to this Court that he will withdraw any criminal complaint he has made to Italian authorities against the mother for her actions in wrongfully retaining their four children in Australia in 2010 and that he will not re-enliven any such complaint after the mother returns to Italy, if she does.

I certify that the preceding one hundred and five paragraphs (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 October 2012.

Associate:

Date: 3 October 2012