No grave risk
Sieger & Department of Communities and Justice
Family Court of Australia,
20 July 2020, FamCAFC 172
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 Appeal Court concluded:
In June 2017, December 2017, and July 2018 the French court made interim orders for the child to live with the mother and to spend time with the father. Such orders were made in full knowledge of the allegations made against the father and the paternal grandmother between October 2016 and April 2018.
The French court ordered the preparation of social science reports in January 2018 and October 2018. The social scientists reported upon the past allegations of family violence, the child’s sexual abuse, and the child’s physical abuse. The overall theme of the two reports was that the child was not at risk of harm in the father’s care and the social scientists recommended that he play an integral role in the child’s continuing care. The mother realised that was the state of the evidence. Her dissatisfaction with it motivated her abduction of the child.
The evidence adduced before the primary judge and the further evidence adduced in the appeal is, in large measure, merely repetition of evidence well known to the French court and authorities. It would be surprising indeed if an Australian court, seized of substantially the same evidence, could find that the child’s return to France would carry the grave risk of her exposure to harm or otherwise place her in an intolerable situation when the French court has already found the opposite.
Seperate consideration of the evidence
Nevertheless, this Court must still fulfil the mandate of the Regulations and separately consider the evidence when measured against the statutory tests upon which the mother relies and in relation to which she bears the burden of proof. The mother relied upon the same evidence and the same arguments to make out the alternate tests under reg 16(3)(b) of the Regulations. Applying those tests, the mother fails to establish there is a grave risk that the return of the child to France would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
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