20 July 2020
Grave riesgo - art. 13(1)(b)
Apelación desestimada, restitución ordenada
Evidence Act 1995 (Cth) s 79
Family Law Act 1975 (Cth) ss 4AB, 93A(2)
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)
Family Law Rules 2004 (Cth) Pt 15.5, rr 15.41, 22.39(1)
1 child wrongfully removed at age 7 – Unmarried, separated parents – Joint parental authority, mother primary carer – Child lived in France until 31 December 2018 – Return ordered – Main issue: Article 13(1)(b): a decision of refusal to return a child should be based on the risk of 'exposure' to harm. Where a fellow signatory to the 1980 Convention has found that there was no such grave risk of exposure to harm it would be rare to find the opposite.
The parents began a relationship in 2008 in France. The child was born in France in 2011. In late 2016 the parents separated and the mother filed criminal complaints against the father for sexual acts involving the child and the paternal grandmother for physical abuse.
In October 2018 a psychologist raised concerns of psychological abuse of child due to the parent’s acrimonious relationship.
On 31 December 2018 the mother left for Australia without informing the father.
At the time of the child’s removal from France, civil litigation commenced by the mother was well under way in a French court and a series of interim orders had been made to regulate the child’s care.
The father made an application for the return of the child under the 1980 Convention. The mother contested the application, arguing that there was a grave risk of harm to the child if returned to France.
The first instance court ordered the return of the child. The mother appealed this decision.
The mother’s appeal was dismissed. Return ordered. The court did not find that the child would be at grave risk of harm if returned to France.
The 1980 Convention states that a court may refuse to order the return of the child if it would ‘expose the child to physical or psychological harm’. The difference between a grave risk of exposure to harm and a grave risk of suffering harm may be important, because the former test is an extension of the latter.
In situations where, upon the child’s return to the country of habitual residence, there will be a judicial determination of questions concerning the child’s care, it will often be the case that assertions of risk of exposure to harm will not be established, though the Australian court is not relieved of its obligation to give proper effect to the provisions of the Regulations.