“There is a backlog, they are now saying from start to finish a matter can take up to 4 years. I believe your matter in Sydney if its running will probably take another two years noting you have already applied for an urgency at the beginning and it was denied. Your matter is currently waiting the allocation of a judge and has been waiting since last year once a judge is appointed we will then be directed to obtain an expert report which could take 6 to 8 months or more because many experts have a back log and are difficult to get into. If Boland is used her wait list is enormous, so after that we would then be allocated a hearing. The Court may give you a slight preference for urgency at that stage as often they will for relocation but you have to wait to get to that point. It would be far better for you to remain in England and have your matter determined. How does the court think you will survive financially if you return to Sydney as I recall you had very limited savings and were not working, the rental here will be expensive especially on the northern beaches, you have no support as I am assuming your mother has returned to England, and he pays minimal child support.. good luck”
“The chief justice of the Family Court says some parents are facing “unacceptable delays’’ as disruption caused by COVID-19, unfilled vacancies and judges being unable to keep up with their workloads stretch the bench to breaking point. At least two Federal Circuit Court judges have put off hearings to clear case backlogs, and a third family law judge is on indefinite leave, with some parents being told their cases will only be heard before Christmas if they fall into the most urgent categories, ¬ including child safety and homelessness. Three Federal Circuit Court judges who recently retired have not been replaced — Melbourne-based Ron Curtain who finished last week and two general federal law judges — while the position of Family Court judge Ian Loughnan, whoretired in July, is yet to be filled. Chief Justice Will Alstergren, who has been the head of both the Family Court and lower-level Federal Circuit Court since December 2018, said Sydney was facing the biggest backlogs. The Federal Circuit Court handles almost 90 per cent of family law disputes as well as general federal law cases. “There is no doubt there is a backlog in Sydney and we’re desperately trying to do something about it,”
“Dear Madam, Currently, dates for interim hearings are available from mid-January 2021. However, upon the filing of an Application in which urgency is sought, there may be capacity for the matter to be over-listed at short notice, that is, less than 28 days from the date of filing. Consideration is given on a case-bycase basis and having regard to the evidence filed in support of the urgent application. Thankyou, 0n Behalf of The Registrar Case Co-ordinator Family Court and Federal Circuit, Sydney Registry Phone: 1300 352 000 Fax: 02 9217 7189 Website:www.familycourt.gov.au www.federalcircuitcourt.gov.au”
“The Law 71. The law in respect of Article 13(b) is well-established and I set out only a brief summary. I would also point to the recent Guide to Good Practice on Article 13(1)(b) published by the Hague Conference on Private International Law. 72. The only authorities to which I propose to refer are In re E (Children)(Abduction: Custody Appeal)[2012] 1 AC 144 and In re S (A Child) (Abduction: Rights of Custody)[2012] 2 AC 25 7. 73. In In re E, the Supreme Court addressed the scope of Article 13(b) and the correct approach to its application. The essence of its conclusion, as set out below, is that the wording of Article 13(b) itself restricts its scope. I would add that, sometimes, as in the Guide to Good Practice, at [25], it is suggested that this Article, as an exception to the obligation to order a child's return, is to be "applied restrictively". Sometimes, as in In re E, it is suggested that the Article is "of restricted application". These are nuanced not substantive differences because the underlying principle is the same, namely the Article has a high threshold for its application and, as a result, the scope for its application is limited. 74. The approach set out in In re E, was explained as follows, at [31], in the judgment of the court delivered by Lady Hale and Lord Wilson. There is "no need" for Article 13(b) to be "narrowly construed" because, "By its very terms, it is of restricted application. The words of article 13 are quite plain and need no further elaboration or 'gloss'". 75. After dealing with the burden of proof, this is further explained as follows: "33 Second … the risk to the child must be "grave". It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm. 34 Third, the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in In re D[2007] 1 AC 619 , at para 52, "'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: e g, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child." 76. The judgment then makes a further observation which is of particular relevance to the present case: "35 Fourth, article 13(b) is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home. Mr Turner accepts that if the risk is serious enough to fall within article 13(b) the court is not only concerned with the child's immediate future, because the need for effective protection may persist." 77. In In re S (A Child), the judgment of the court was given by Lord Wilson. The case dealt with the question of whether, in the context of the effect on a parent's mental health for the purpose of Article 13(b), there needed to be an objectively reasonable or realistic risk or whether the parent's subjective perception of the risk could be sufficient. Lord Wilson said: "27 In In re E[2012] 1 AC 144 this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child's situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this court's clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by Mr Turner QC, who was counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, "the source of it is irrelevant: eg, where a mother's subjective perception of events lead to a mental illness which could have intolerable consequences for the child". Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found "no reason to doubt that the risk to the mother's mental health, whether it be the result of objective reality or of the mother's subjective perception of reality, or a combination of the two, is very real". 78. Later, in response to Thorpe LJ's suggestion that the "crucial question" had been whether "these asserted risks, insecurities and anxieties [were] realistically and reasonably held" by the mother and his dismissal of the mother's case founded on her "clearly subjective perception of risk", Lord Wilson said: "34 In the light of these passages we must make clear the effect of what this court said in In re E[2012] 1 AC 144 . The critical question is what will happen if, with the mother, the child is returned. EMPHASISADDED: If the court concludes that, on return, the mother willsuffer such anxieties that their effect on her mental health willcreate a situation that is intolerable for the child, then the childshould not be returned. It matters not whether the mother'sanxieties will be reasonable or unreasonable. The extent to whichthere will, objectively, be good cause for the mother to be anxiouson return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned”” (Abduction: Rights of Custody)[2012] 2 AC 25 7. "33 Second … the risk to the child must be "grave". It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm. 34 Third, the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in In re D[2007] 1 AC 619 , at para 52, "'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: e g, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child." "35 Fourth, article 13(b) is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home. Mr Turner accepts that if the risk is serious enough to fall within article 13(b) the court is not only concerned with the child's immediate future, because the need for effective protection may persist." "27 In In re E[2012] 1 AC 144 this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child's situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this court's clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by Mr Turner QC, who was counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, "the source of it is irrelevant: eg, where a mother's subjective perception of events lead to a mental illness which could have intolerable consequences for the child". Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found "no reason to doubt that the risk to the mother's mental health, whether it be the result of objective reality or of the mother's subjective perception of reality, or a combination of the two, is very real". "34 In the light of these passages we must make clear the effect of what this court said in In re E[2012] 1 AC 144 . The critical question is what will happen if, with the mother, the child is returned. EMPHASISADDED: If the court concludes that, on return, the mother willsuffer such anxieties that their effect on her mental health willcreate a situation that is intolerable for the child, then the childshould not be returned. It matters not whether the mother'sanxieties will be reasonable or unreasonable. The extent to whichthere will, objectively, be good cause for the mother to be anxiouson return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned””
“…the following form key features of the “exception”: i) The burden of proof lies with the person who opposes the child’s return. The standard of proof is the balance of probabilities; ii) Article 13(b) is not to be constructed narrowly; by its very terms, it is of restricted application. The words of the Article were plain and needed no further elaboration or gloss; iii) It is rarely appropriate to hear oral evidence of the allegations made under article 13(b); iv) The risk of the harm must be “grave”; it was not enough for the risk to be “real”
“42. In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the Contracting States and respect for one another's judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the Contracting States. 43. My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para 32 above, save for the word "overriding" if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.”
“(1) Factual matters 35. It is established that whether a child objects to being returned is a matter of fact, as is his or her age, see for example Re S [1993] at 782 and Re T at 202. It seems to me that the degree of maturity that the child has is also a question of fact. 36. The authorities reveal a mild debate over whether, once the child's age and degree of maturity have been established and the court moves to the question of whether it is appropriate to take account of his views, it is making a finding of fact or exercising judgment. I am not sure that it would be of great assistance to get involved in this debate over how to categorise the process. What matters is how to go about it in practice, and I will undoubtedly have to address that later. (2) No chronological threshold 37. A second established feature is that there is no fixed age below which a child's objections will not be taken into account. However, the younger the child is, the less likely it is that he or she will have the maturity which makes it appropriate for the court to take his or her objections into account, Re R (Child Abduction: Acquiescence)[1995] 1 FLR 716 at 729/730. (3) Objections and not anything less 38. A further feature about which I think there is, in fact, no real difficulty is that the child's views have to amount to objections before they can give rise to an Article 13 exception. This is what the plain words of the Convention say. Anything less than an objection will therefore not do. This idea has sometimes been expressed by contrasting "objections" with "preferences". 39. The word "preference" made an appearance in the jurisprudence of the Court of Appeal as long ago as Re S [1993] at 782. Balcombe LJ quoted what Bracewell J said of Article 13 in in re R (A Minor: Abduction)[1992] 1 FLR 105 , namely: "The wording of the article is so phrased that I am satisfied that before the court can consider exercising discretion, there must be more than a mere preference expressed by the child. The word 'objects' imports a strength of feeling which goes far beyond the usual ascertainment of the wishes of the child in a custody dispute." Balcombe LJ commented that there was "no warrant for importing such a gloss on the words of Article 13, as did Bracewell J" and that the right course was to take the "literal words" of Article 13 "without giving them any such additional gloss". 40. It is not clear whether Balcombe LJ was intending to outlaw the idea that an objection was something "more than a mere preference", or whether his disapproval was confined to Bracewell J's statement that "objects" imports a strength of feeling going far beyond the wishes of a child in a custody dispute. There may not be much to be gained from speculating about this, as I think it is fair to say that matters have moved on since then. 41. To demonstrate this proposition, I move to the present and the Supreme Court decision in In the matter of LC[2014] UKSC 1 [2014] AC 1038 (Re LC). The focus in the Supreme Court was principally on whether, when determining the habitual residence of a child, the court may have regard to the child's own state of mind. However, there had been argument in the Court of Appeal (see Re LC (Children)[2013] EWCACiv 1058 [2014 1 FLR 1458 at §§87 to 97) about whether Cobb J had been wrong to find that the wish not to return to Spain expressed by two of the children had the character of a preference rather than an objection. No attempt was made to persuade the Court of Appeal that reference to "preferences" was inappropriate in this context and, in the Supreme Court, Lord Wilson referred to the phraseology without apparent disapproval (see §8 and §17). I do not see it as a gloss on the Convention or as a term of art but rather as one way of summarising that, for reasons which will differ from case to case, the child's views fall short of an objection. (4) Objection to return to country of habitual residence 42. It is said that the child has to object to returning to the country of habitual residence rather than to returning to particular circumstances in that country, although it has been clear from early on that there may be difficulty in separating out the two sorts of objection. 43. The ground for this acknowledgment of the potential difficulty was laid in what Balcombe LJ said Re S [1993] at 782D. However, it may be convenient to rely upon what he said a little later in Re R (ChildAbduction: Acquiescence)[1995] 1 FLR 716 . Commencing at 729, he set out the principles which he considered were to be deduced from the authorities dealing with child's objections. He described the second of these as follows: "The second principle to be deduced from the words of the Convention itself, and particularly the preamble, as well as the English cases, is that the objection must be to being returned to the country of the child's habitual residence, not to living with a particular parent. Nevertheless, there may be cases…. where the two factors are so inevitably and inextricably linked that they cannot be separated. Support for that proposition will be found in the judgment of Butler-Sloss LJ in Re M (AMinor)(Child Abduction)[1994] 1 FLR 390 at p 395…." 44. In Re M [1994], Butler Sloss LJ had said: "It is true that article 12 requires the return of the child wrongfully removed or retained to the State of habitual residence and not to the person requesting the return. In many cases the abducting parent returns with the child and retains the child until the court has made a decision as to the child's future. The problem arises when the mother decides not to return with the child. It would be artificial to dissociate the country from the carer in the latter case and to refuse to listen to the child on so technical a ground. I disagree with the contrary interpretation given by Johnson J in B v K (Child Abduction) [1993] Fam Law 17. Such an approach would be incompatible with the recognition by the Contracting States signing the Convention that there are cases where the welfare of the child requires the court to listen to him. It would also fail to take into account article 12 of the United Nations Convention on the Rights of the Child 1989. From the child's point of view the place and the person in those circumstances become the same….I am satisfied that the wording of article 13 does not inhibit a court from considering the objections of a child to returning to a parent." 45. Ward LJ's approach in Re T was similar. Listing the matters that had to be established in a child's objections case, he began with the following (at 203): "(1) Whether the child objects to being returned to the country of habitual residence, bearing in mind that there may be cases where this is so inevitably and inextricably linked with an objection to living with the other parent that the two factors cannot be separated." (5) Objections are not determinative 46. I referred earlier to the House of Lords decision in Re D. One of the things which it and Re M together made quite clear was that the fact that a child’s objections to being returned does not determine the application. I will set out in full §§57 and 58 of Baroness Hale's speech in Re D but the message is summed up in the final sentence of the latter paragraph:- hearing the child is not to be confused with giving effect to his views. “57. There is evidence, both from the CAFCASS officer who interviewed him after the Court of Appeal refused him leave to intervene, and from the solicitor who represents him, that A is adamantly opposed to returning to Romania. Yet until the case reached this House, no defence based on the child's objections was raised. This is not surprising. A was only four and a half when these proceedings were begun. At that age few courts would accept that he has "attained an age and degree of maturity at which it is appropriate to take account of its views". But he is now more than eight years old and he was more than seven and a half when these proceedings were heard by the trial judge. As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child's views and doing what he wants. Especially in Hague Convention cases, the relevance of the child's views to the issues in the case may be limited. But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents' views. 58. Brussels II Revised Regulation (EC) No 2201/2003 recognises this by reversing the burden in relation to hearing the child. Article 11.2 provides: "When applying articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity." Although strictly this only applies to cases within the European Union (over half of the applications coming before the High Court), the principle is in my view of universal application and consistent with our international obligations under article 12 of the United Nations Convention on the Rights of the Child. It applies, not only when a 'defence' under article 13 has been raised, but also in any case in which the court is being asked to apply Article 12 and direct the summary return of the child - in effect in every Hague Convention case. It erects a presumption that the child will be heard unless this appears inappropriate. Hearing the child is, as already stated, not to be confused with giving effect to his views." 47. §§43 and 46 of Re M, quoted above, explain how, at the discretion stage, the court considers the child's objections alongside the other relevant factors. I will need to return to this but for the moment draw from it confirmation that the child's objections cannot be presumed to be determinative of the application; once the court's discretion arises, it is at large””
"When applying articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity."
“…R was immediately and notably excited and affectionate to see his father and brothers… I observed the parents behave warmly and civilly to one another. Also A behaved warmly and affectionately to the boys and gave each of them a hug, as did her mother and the boys reciprocated those hugs openly. The maternal grandmother and father were also warm and polite towards one another. Throughout all these greeting R was observing and gravitating towards his brothers…The group observation was noisy, active and very positive.”
“I found that she had a very good capacity and a high degree of willingness to facilitate R’s relationship with both his father and his brothers. Despite nervousness and somewhat elevated anxiety, the mother spoke of the importance of him having a relationship with his father, the benefits that the father can bring to R and the importance of him having a relationship with his brothers.” positive.”
“Has an issue with anxiety. shortness of breath, at worst will get chest pain (has had prior) – nil since 2016 the mother has had bilateral shoulder pain which she puts down to her anxiety. But the medical records note that on26 August 2019 she told the doctor: she “…does remember using the car jack a few weeks prior to pain starting on L side” and later “Injected 28/1 and 31/1/20 with very good effect”
“My dad is being sort of bullying, and one of my brothers is bullying me in Australia and I want to stay here and they’re forcing me to come back. I want to stay here because I like it here…. I don’t want to [return] want to stay in England…because I have nicer family here… I like this country more; it is more peaceful…. I have lots of fun here.”
“…because we want to get there safely first.”
“my mother said we can go to England if you want…” such is his devotion to his mother and she knows it, as any parent would, he was being beguiled into agreeing to the move and still is. By the time of the Cafcass interview, this boy who had had extensive contact with his father up until the day of departure, could not bear to see his face on the mobile phone for contact, came into the interview citing the word “aggressive” and then not knowing what it meant, and stating to Ms Jolly “…he does not know if he loves him…”.Other signs of recruitment to the mother’s cause and believing her narrative are the way that he spoke rapidly, which caused Ms Jolly to ask him to pause: “R would do so only momentarily before continuing his account.”
“There are many beaches and lots of deadly animals ‘…and other stuff I can’t really remember because I have been here for 2 months…and its really hot there’.”
“I think that these sibling relationships are very important for R’s sense of identity, integration into his wider family, ability to cooperate and get on well with others, solve conflict and compromise. Such sibling relationships are also important buffers in terms of parental separation and the ensuing stress that can occur. Despite the age difference between R and his brothers, I think he has a strong sense of integration with them and that this is an important and significant sibling relationship.”
“I don’t want to show my face that much to him just because I don’t really want to.”
“On20 Jul 2020 , at 12:10 10pm, A wrote: B R told me that L keeps saying I wear diapers and that he needs to go and change as they are full of wee. R said he kept telling him to stop and that he doesn’t wear diapers but said he goes on and on and won’t stop. He also said he keeps knocking on the front door, creeps down the side of the house and through the back of the house and comes up behind him and hits him really hard on the head with a pillow. R told me he said to L if he doesn’t stop he will get a knife out of the kitchen. L replied “OK”
“…he would just tell them to stop their behaviour, or otherwise he would run away and hide somewhere in the house.”
“Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.”