Grave Risk – Art. 13(1)(b)
The mother claimed that during her relationship with the father she was regularly exposed to domestic violence in presence of the child. If the child were to return to Australia this would place her in an intolerable situation as referred to in Article 13(1)(b) of the Convention. The father explicitly denied the mother’s allegations of domestic violence, stating reasons.
The court was of the opinion that the mother failed to adequately substantiate her claims. The photographs submitted by the mother cannot serve as evidence in this respect, since it is not clear when they were taken and since the cause of the injuries they show cannot be ascertained. The Court has found no other indications that the child’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation. Therefore, the mother’s invocation of this ground for refusal fails.
As an obiter dictum the Court considered that, even had the domestic violence as alleged by the mother been established, this in itself would not be sufficient to conclude that the minor’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation. In assessing whether the minor’s return would place him/her in an intolerable situation as referred to in Article 13(1)(b) of the Convention, the court found that the left-behind parent’s claims of being regularly exposed to domestic violence in presence of the child was insufficient for a finding of grave risk, since ?all circumstances must be duly taken into consideration, including whether child protection measures or other adequate arrangements can be made to ensure that the consequences of domestic violence do not pose a risk to the minor (or no longer pose a risk)”. In this case, it had not been proven that there is no alternative but to keep the child from returning to Australia in order to avoid the alleged risk of domestic violence. The Court noted that – as was also clear from the mother’s contentions and exhibits – Australia has institutions and facilities available for protecting victims of domestic violence. It is also possible to take legal measures to avoid or combat the risk of domestic violence there. It had not been established that the Australian institutions were unable to provide adequate help to the mother and child; indeed, the file documents show that the mother did not pursue the requests and measures initially taken.
