Facts
The parties are the unmarried parents of two children, [C.] (born in 2011) and [D.] (born in 2013), both of Swiss and Australian nationality. The father, [A.] , is an Australian national; the mother, [B.] , holds Swiss and Australian nationality. The family lived in [U.] in Western Australia.
In 2017, the parents concluded an unsigned agreement ("Minute of consent orders") providing for joint parental authority and shared custody, together with a maintenance contribution agreement. In September 2017, the mother learned that her mother, who was established in Switzerland, was suffering from a terminal illness. The parties then decided to settle temporarily in Switzerland, with the mother and the children to stay there, and the father planning to join them after obtaining a visa.
On 28 March 2018, the parties signed, in the presence of their Australian counsel, a "Parenting plan". It provided in particular that the children were to return to [U.] to settle there permanently by 14 April 2020 at the latest, that the mother could leave Australia with them on 2 April 2018, and that any period of stay of the children in Switzerland after 14 April 2020 would constitute a wrongful non-retention and an infringement of the father's custody rights. The exclusive forum for interpreting the agreement was the Family Court of Western Australia, except for proceedings based on the Hague Convention.
On 2 April 2018, the mother and the children left for Switzerland and settled in the municipality of [V.] (Vaud). The children were enrolled in school. The mother's mother died in October 2018. The State Secretariat for Migration notified the father of a refusal of a residence permit.
A first application for return, filed by the father in November 2018 and then before the Chamber of Guardianship of the Vaud Cantonal Court in February 2019, was dismissed on 26 March 2019. By judgment 5A_301/2019 of 25 June 2019, the Federal Supreme Court upheld that dismissal, holding that the sole ground of wrongfulness was the expiry of 14 April 2020, the date on which the father would regain joint custody.
On 21 April 2020, the father filed a new application for return before the Chamber of Guardianship, accompanied by immediate protective measures (Skype contacts twice a week, surrender of identity documents, prohibition on leaving Switzerland). A curator for the representation of the children was appointed. The Child Protection Service (SPJ) concluded, in its report of 25 May 2020, that no protective measure was necessary, that the children were well integrated in Switzerland and that they opposed a return to Australia. The mother requested dismissal, asked for the children to be heard, and stated that she was willing to mediate. The curator requested dismissal and, by way of counterclaim, that the children remain domiciled in Switzerland with their mother. The father's request to be heard by video conference was dismissed. At the hearing of 4 June 2020, the mother and the curator left the matter to the court's discretion as regards the hearing of the children; conciliation failed.
By judgment of 25 June 2020, the Chamber of Guardianship ordered the return of the children to Australia, directed the mother, under threat of the penalty under art. 292 SCC, to ensure this return by 15 August 2020, failing which the SPJ would be responsible for repatriation, and maintained the protective measures until the effective return.
The mother (proceedings 5A_548/2020) and the children (proceedings 5A_551/2020, who requested legal aid and suspension of the return pending a child psychiatric expert report) each lodged a civil law appeal with the Federal Supreme Court. The cases were joined and the return order was suspended by order of 24 July 2020.
The Federal Supreme Court dismissed both appeals to the extent they were admissible, levied no court costs, and awarded fees of CHF 2,500 each to the counsel of the mother, of the father and to the children's curator, payable by the Federal Supreme Court's Treasury. It ordered the mother, under threat of the penalty under art. 292 SCC, to ensure the return of the children to Australia by 30 August 2020.
Considerations
The Federal Supreme Court notes that the decision on the application for return is a final decision (art. 90 FSCA) in a matter connected with civil law (art. 72 para. 2 let. b no. 1 FSCA). The Chamber of Guardianship ruled as the sole cantonal instance under art. 7 para. 1 ACAA, which constitutes an exception to the principle of double instance (art. 75 para. 2 let. a FSCA). The appeals, lodged in time by persons with standing to appeal, are admissible. The Federal Supreme Court reviews only the grounds raised (art. 42 paras. 1-2 FSCA), and findings of fact may be challenged only if they are arbitrary (art. 97 para. 1 and 9 Cst.). The medical certificate of 2 July 2020 from the child psychiatrist constitutes a novum and is inadmissible (art. 99 para. 1 FSCA).
As regards the children's right to be heard, the mother, who had left the matter to the court's discretion at the hearing, does not validly challenge this finding; her complaint is therefore dismissed. The Federal Supreme Court further recalls that the children do not contest the wrongful nature of their non-retention from 14 April 2020 onwards.
On the merits, the CLaH80 requires immediate return where the removal or non-retention is wrongful (art. 3, 12 CLaH80). Australian law confers on the parents joint parental authority, including the right to decide on the child's place of residence; the father is therefore the holder of a custody right within the meaning of art. 3 and 5 let. a CLaH80. The mother cannot dispute the binding force of the Parenting plan when she relied on it to justify her departure…