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Children – Hague Convention – grave risk – mother’s anxiety – depression – abduction
In Hilton & Department of Family and Community Services  FamCAFC 223 (26 November 2015), the Full Court heard the mother’s appeal against an order that was made earlier by McClelland J to return her son to Norway pursuant to the Family Law (Child Abduction Convention) Regulations 1986. At first instance, the mother argued that if her son was returned to Norway, he would be exposed to a great risk of physical harm and psychological harm due to her anxiety and depression which was supported by psychological reports that showed her treatment of depression and suicidal thoughts.
Although McClelland J was satisfied that there was a risk of psychological harm to the child as a result of the mother’s mental illness, he was not satisfied that the risk was sufficiently grave enough to invoke a regulation 16(3)(b) defence to the return of the child and as such, an order to return the child was made.
The reasoning at First Instance
It was found that although the mother was depressed, she did not exhibit symptoms of being acutely suicidal. Although she suffered from thoughts about death every day, she did not have a serious psychotic illness or was clinically depressed.
The reasoning at the Appeal
The Full Court stated that McClelland J made an error on the summary of the law. His Honour used the case of Director-General, Department of Families, Youth and Community Care & Bennett in order to conclude that regulation 16(3)(b) was to be narrowly construed. As such, the exception that a child does not need to be returned to a country that Australia has entered into the Child Abduction Convention with can only be used if a ‘grave risk’ of harm to the child is present.
However, the ‘narrow construction’ of this exception was rejected by the High Court in DP v Commonwealth Central Authority  HCA 39; (2001) 206 LR 401. Although there must be ‘grave risk’ associated with the defence listed in regulation 16(3)(b), the assessment of this requires some prediction of what may happen if the child was returned. In this prediction, certainty is not required. This means that the risk that is relevant is not only limited to harm that will actually occur, but also to a risk that the return would expose the child. Despite the prediction, the Court will still need clear and compelling evidence that this is likely to happen. Once a risk is found to exist, the risk must be assessed as to whether it warrants the qualitative description ‘grave’.
In the appeal, the Full Court took into account whether the mother’s evidence had been excluded as a result of a ‘narrow construction’ of regulation 16(3)(b). In doing so, it heard the argument that McClelland J failed to consider the risk that would be subjected to the child if the mother were to take her own life. Although the risk was slight, the consequences for the child would be grave. However, the Court did not find evidence to support that this was remotely possible. As such, McClelland J made no error in failing to consider what was merely speculation. Furthermore, His Honour took into consideration the fact that the mother would continue to have access to appropriate health services in Norway to treat her depression.
The decision of the Full Court
As such, the Full Court held that McClelland J was correct in his finding that the mother had failed to establish that there was a grave risk of psychological harm to the child on a return to Norway, which was entirely supported by evidence.
Although His Honour incorrectly referred to authorities that supported his approach, the Full Court was not satisfied that he followed it. As a result, the appeal was subsequently dismissed.