State Central Authority & Papastavrou [2008] FamCA 1120
If there exists clear evidence of grave risk of harm to the child should the child be returned to its home country, the court may prevent the child from being returned. This is a high standard to meet, and will only apply in exceptional circumstances.
In the Papastavrou case, there was an Australian mother and a Greek father who had two children, both born in Greece. The mother, who was experiencing emotional and medical problems, was instructed by her doctor that she should return to Australia because she required the physical and emotional support of her family.
During the proceedings regarding whether the children should be returned to their home state of Greece, the mother put on compelling evidence of family violence. The evidence showed that the father repeatedly abused her, occasionally in front of the children, and had abused one of the children as well. After hearing the evidence the judge decided to reject the father’s application seeking to have the children returned to Greece.
The evidence allowed the judge to conclude that the father’s history of violence constituted a future risk of harm to the children. The mother convinced the judge that the Greek authorities would do little or nothing to protect her and the children, as they had failed to take action when she had called them in the past. The mother also provided the court with expert testimony discussing inherent issues with laws enforcing domestic violence in Greece. Additionally, the mother had developed a medical condition making her more vulnerable to future violent attacks, and this also compounded the impact future violence may have on the children.
In this case the judge was able to ultimately conclude that there was in fact a serious risk of harm to the mother and children if they were to be returned to Greece, and denied the father’s request for such.
