FAMILY LAW ACT 1975 FAMILY COURT OF AUSTRALIA AT SlDNEY [WMH FN 1] IN THE MARRIAGE OF: JOHN LINDSEY BROWN (Father) and SHELLEY ANN STARK BROWN (Mother) No. SY9391 of 1992 REASONS FOR JUDGMENT BEFORE: The Honourable Justice A.R.O. Rowlands HEARD : l5th & l6th December 1992 JUDGMENT: 18th December 1992 APPEARANCES: Mr. Porter, Q.C. and Ms. Ainslie-Wallace (instructed by Gillis Delaney Brown, Solicitors, Temple Court, 75-85 Elizabeth Street, Sydney NSW 2000) appeared for the husband. Ms. Nash (instructed by The State Crown Solicitor, 8-12 Chifley Square, Sydney NSW 2000) appeared for the wife. These are proceedings brought by the Director General of the Department of Community Services, the State Central Authority, appointed pursuant to regulation 8 of the Family Law (Child Abduction Convention) Regulations seeking the return to Austria of a child of the marriage of the husband and the wife, Soshana Rae Brown born on 16 January 1992, who was removed from that country to Australia by the husband in contravention of the convention on the civil aspects of international child abduction which I will call "the convention". The child's habitual residence immediately prior to her removal was Austria. Austria is, with Australia and other countries, a party to the convention which came into force in 1987. The convention is an expression of international concern to protect children from wrongful removal from one country to another. It is designed to ensure the swift return of an abducted child to the country from which it has been abducted so that the authorities in that country, in particular the courts, may determine the issue between the parties concerning the child and the welfare of the abducted child. The clear policy of the convention and the municipal law made following it is to deter abductions and encourage lawful local determination in relation to children's welfare. Regulation 15(1) empowers the central authority to seek from this court an order for the return of the child. Regulation 16(1) provides: Subject to sub-regulation 3 a court shall order the return of a child pursuant to an application made under sub-regulation 15(1) if the day on which the application was filed is a date less than one year after the date of the removal of the child to Australia. An application for return by an authority has been properly made within time. Regulation 16(3)(b) states: (3) A court may refuse to make an order under sub-regulation (1) if it is satisfied that ... (b) there is a grave risk that the child's return to the applicant would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In fact, in these proceedings the husband concedes an abduction of the child but seeks to rely on Regulation 16(3)(b), asserting the court should refuse to make a returning order because of a "grave risk" which he establishes on the evidence. There is no dispute in these proceedings other than upon that issue. The authorities in this court determine that the onus of establishing the ground under Regulation 16(3)(b) lies upon the party opposing the return; in this case the husband. They also acknowledge the strength of the words employed in the regulation, "grave risk" and "intolerable situation" while indicating that the three categories of potential "grave risk" are to be read separately. The Full Court of the Family Court of Australia, the appeal court, has emphasised further that it is not merely a grave risk of 'any' physical or psychological harm which should satisfy the provision. The harm must be of a substantial or weighty kind. The husband and the wife lived together in Austraia prior to the husband taking the child from the babysitter's home on 15 November 1992. Their residence in that country extended over some years although the parties were something of an international couple. The husband left his parents in Australia in his teens. He has business interests in various countries in Europe but claims the Philippines as a resident for "tax purposes". The wife has family in California and went, with the husband, to that state of the United States of America for the birth of the child. The wife is a student of photography although she is also substantially engaged in home duties. She, the husband and the child lived at Spiegelgeld, 2/43 1010 Wien, Austria. Under Austrian law it appears that the parties were joint custodians of the child prior to any court orders altering that situation. The law in Australia is similar. On 19 November 1992 the District Court for Inner District of Vienna, granted the wife sole custody of the child following an ex parte application by her. rndeed, the husband later obtained an ex parte order in this Court. It does not appear that the merits have been looked at in detail with an opportunity for both sides to present their case by the courts in either country. The husband's taking of the child from the home of the babysitter followed first his discovery of photographs of the child naked with a naked man and his consideration of that situation. It appears that he determined to end the marriage and take the child out of Austria as he contends, to safety. In the event he obtained an Australian passport for the child in Belgium, and took her to his parents home in East Roseville near Sydney in New South Wales, a state in Australia. The husband says he found a series of photographs with the child naked with an older naked man and a series of photographs of the child naked with a younger naked man. Both sets of photographs with enlargements of some of them were exhibits in the hearing before me. The wife admits she took the photographs including the older man but denies she took those including the younger man. She seeks to excuse the older man photographs on artistic grounds, saying they are appropriate presentations of youth and age. She planned them for presentation to a photographic academy she sought to enrol in. In regard to one photograph which included the child astride the old man's leg and penis she sought to excuse that as accidental, the child having slipped into that position. Perhaps this is the most disturbing of the older man photographs. The taking of the photographs was wholly inappropriate and suggests an arrogant extension of artistic licence by the mother beyond acceptable limits. The child is entitled to look to a parent as a protector at least until such time as the child has the age and maturity to make up her own mind upon the forms of art appropriate for her. The child may not, at the time, have been in physical danger or, because of her age, at risk, then, of psychological harm, she not appreciating her situation; but that is not absolutely clear. In any event, the child was in an intolerable situation. The photographic record continues in existence and as the child grows up she may well have to come to terms with the knowledge of the act of her mother in taking such photographs of her as a child in such circumstances. The mother absolutely denies taking, or indeed any prior knowledge of, the photographs including the younger man. These, she suggests, were taken by the husband to "frame" or dishonestly implicate her or perhaps they were taken by some other unknown person. Certainly the nature of these photographs makes the artistic argument more difficult to sustain, at least in what might be described as the normal community. These photographs include the child approaching, indeed reaching out for the young man's genital area in a manner which cannot be explained by accident or slip. I am inclined to the view that the mother took the photographs involving the young man although it is certainly a possibility that the husband or some other person created them. Neither the husband nor the wife impressed me as wholly credible witnesses. Each I think was prepared to avoid the truth if they thought they would advance their interests thereby. The reasons on balance why I think the wife took the younger man set of photographs include: (a) the fact that she took the older man set and her diary records her apparent fascination with the male penis; (b) the fact that the negatives were developed at the business she frequently attended to have negatives developed, namely Messrs Jobst; (c) the fact that they were lodged in a name -Scarlett- -- she used as a lodging name on occasions. This is written in a hand similar to her demonstrated hand; (d) the fact that the husband's denial was not challenged in cross-examination by the authority or to any substantial degree by the wife. I should however record that the wife points to the exclusion of the face from the photographs as uncharacteristic of her work and the different background for the photographs. These, it is said, suggest that they are not hers. The husband's case is that both sets of photographs demonstrate that to allow the wife to receive the child for the return to Austria and to have her awaiting and during proceedings there poses a grave risk of the child being exposed to harm of the kind demonstrated by the photographs. Assuming in his favour that further similar photographic sessions wourd create a grave risk of exposure to substantial harm, I am unable to be satisfied that there is a grave risk that such events or anything similar to them would be repeated between now and the Austrian authority's determination of the matter. Indeed the high prospect is that the wife will not, in the short term, endanger her prospects of continuing interim custody and final custody by pursuing further such activity even if she personally finds it artistically worthwhile. She did not strike me as being that silly. This finding is supported by my assessment that she has a fervent desire to succeed in her custody case. Whether or not she can in the longer term resist her predilection is an entirely different matter. This will be an issue for the custody court in Austria which will have to determine: (a) the interim custodian and; (b) the final custodian of the child. In order that the Austrian authorities are promptly informed about the matter and to encourage their prompt attention to firstly the question of interim custody I will direct that a copy of this decision, my orders and the exhibited photographs of the child with the older and the younger man, including blow-ups be transmitted to them by the authority before me. I accept that both parties sought psychological or psychiatric assistance because of problems in their marriage but there has been no serious attempt to demonstrate a risk posed by the wife's temporary custody beyond the evidence I have canvassed. Indeed after finding the photographs, the husband both delayed and left Austria before determining upon the abducting action. The evidence of the husband's mother who visited the couple and the baby in Vienna supports the wife's evidence that she, apart from the issue discussed is a good and loving mother. I propose to make orders along the lines contended for by the authority for the return of the child to Austria and will now discuss with practitioners their final form. -------------------- 1. Contributed by the Hon. Justice Peter E. Nygh, Family Court of Sydney, Australia. Justice Nygh advises that an appeal was filed by later withdrawn.