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A recent appeal case in the Federal Circuit and Family Court of Australia, Cullen & Secretary, Department of Families, Fairness and Housing [2023] FedCFamC1A 46 (13 April 2023), regarding child custody and international child abduction was filed by the mother against the primary judge’s decision. That being, to order the return of the child from Australia to Poland under the Hague Convention on the Civil Aspects of International Child Abduction.  The court affirmed the primary judge’s decision for reasons indicating that the child’s habitual residence had been agreed to be in Poland, and the child had been brought to Australia without the father’s prior knowledge and consent. As well as this, the court highlighted the ongoing divorce proceedings between the parents.

In this particular case, the child, who was 15 years old at the time of the trial, had been, in no doubt, caught in the midst of a high-conflict situation involving her parents. The child’s mother sought to adduce further evidence in the appeal, including reports from a psychologist and an affidavit. The court denied the applications to adduce the additional evidence, stating that it did not support a ground of appeal. Regardless of the mother’s efforts to attempt to demonstrate an error on the part of the primary judge, Australia’s obligations under the Hague Convention require the return of the child to Poland.

In efforts to improve the child’s relationship with her father, the child had been undergoing court-ordered therapy, whilst her mother had made allegations of family violence. The situation had become even more complex when the therapy process was interrupted after the child was removed from the jurisdiction of Polish courts. The child’s distress and emotional vulnerability were apparent during the proceedings, displaying significant anxiety, uneasiness, and persistent feelings of worry. Not only was the child experiencing and exposed to uncertainty, instability and conflict, she also disclosed feelings of suicide ideation. In which, she would repeatedly state that she would “kill herself” if she were required to return to Poland. The child’s expression of distress and suicidal ideation underscores the urgency of addressing the impact of these disputes on children and the need for appropriate support and intervention.

Professionals involved in complex custody disputes such as this, play a critical role in safeguarding the well-being of children and must carefully assess the emotional and psychological impact on the child. Appropriate measures to mitigate harm and provide necessary support, such as therapeutic interventions, can help these children navigate the emotional challenges associated with custody disputes.

This case sheds light the immense pressure and turmoil that children can experience when caught in the middle of custody disputes, and may feel torn between their parents, torn between two homes, and uncertain about what will happen next. In extreme cases, children may even contemplate self-harm or harbor thoughts of ending their own lives, as seen in this distressing situation. By considering and understanding the emotional and psychological toll that custody disputes could have on children, we can advocate for measures that prioritise their well-being, ensure that their needs are met, and their rights are protected throughout the legal process.

By Chichi Lopez, Law Student