A woman who unlawfully took custody of her daughter from her German husband has successfully argued in court that she and the child should remain in Australia because returning to Germany would expose her to “psychological harm”.
The 35-year-old Australian woman travelled to Melbourne from Germany with her 61-year-old husband and five-year-old daughter in December last year to visit her family.
But when it was time to return to Germany, she told her husband she wanted a separation and refused to leave the country.
When the father refused to leave, the woman and her family called the police and obtained an interim intervention order against him.
Soon after arriving back in Germany, the father formally sought return of the child to Germany and launched proceedings for custody, armed with expert evidence that he had “a close and loving relationship with the child”.
However, the mother presented evidence that she had been anxious and depressed since 2007 and this was so severely exacerbated by returning to Germany there was a grave risk her daughter would be “exposed to an intolerable situation”.
“[I] had frequent anxiety attacks, was experiencing feelings of intense fear and worry, my heart would race,” the woman told a psychiatrist of her experience of being in Germany.
She said her husband was “unsympathetic and dismissive” of her illness and, as a result, she had to abandon taking medication or seeking therapy and her condition began to deteriorate.
The woman said she had been a victim of violence and emotional abuse by the father, who drank heavily and tightly controlled her access to the family’s finances.
He also allegedly isolated her from her family and made it difficult for her to make friends in Germany.
The husband strenuously denied these allegations and argued that mental health treatment was available in Germany, which would at least enable her to return to take part in a custody hearing.
But Justice Kirsty Macmillan of the Family Court of Australia disagreed.
“I am satisfied … it is not possible to fashion safeguards which would adequately protect the mother from a major depressive episode and ultimately from the effects of a major deterioration in her mental health,” Justice Macmillan found.
This was “likely to impact on the mother’s parenting capacity”.
Her honour rejected demands that the mother returned to Germany, allowing her and the child to remain in Australia.
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