Department of Communities and Justice and Kingsley (No. 2)
[2021] FamCA 308
•17 May 2021
FAMILY COURT OF AUSTRALIA
Department of Communities & Justice & Kingsley (No. 2) [2021] FamCA 308
File number(s): SYC 5852 of 2020 Judgment of: REES J Date of judgment: 17 May 2021 Catchwords: FAMILY LAW – CHILD ABDUCTION –
Hague Convention proceedings – Application by the mother to discharge a return order – Consideration of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the Court found the mother’s failure or refusal to fund the child’s return to Canada does not constitute an ‘exceptional circumstance’ – Where the Court found the COVID-19 pandemic alone does not constitute an ‘exceptional circumstance’ – Where the Court found the mother is not unable to travel to Canada – Application dismissed.Legislation: Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 19A(2)
Hague Convention on Civil Aspects of International Child Abduction
Cases cited: Baker v the Queen (2004) 223 CLR 513
C & C (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All ER 465; 1 WLR 654
Department of Family and Community Services Secretary & Smollett (No. 2) [2018] FamCA 372
FamC 10701-04-20 M.B.R. v Y.R., District Court in Tel Aviv-Yaffo, Court of Civil Appeals, 17 April 2020
FamC 52595-02-20 The Father v the Mother, Family Court in Tel Aviv-Yaffo, 5 April 2020
Jena Local Court, 47 F 632/16, 17 March 2020 reported in (2020) 1 UF 11/20
Re PT (a child) (summary return) KR v HH [2020] EWHC 834 (fam)
Number of paragraphs: 84 Date of hearing: 11 May 2021 Place: Sydney Counsel for the Applicant: Mr Anderson Solicitor for the Applicant: Kilpatrick Hatton Solicitors Counsel for the Respondent: Ms Hartstein Solicitor for the Respondent: DCJ Legal, Department of Communities & Justice ORDERS
SYC 5852 of 2020 BETWEEN: MS KINGSLEY
ApplicantAND: DEPARTMENT OF COMMUNITIES & JUSTICE
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
17 MAY 2021
THE COURT ORDERS:
1.That the application of Ms Kingsley filed 9 December 2020 to discharge, pursuant to Regulation 19A(2) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), orders made on 11 November 2020, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kingsley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
On 11 November 2020, orders were made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), on the application of the Department of Communities & Justice (“DCJ”), for the return of a child X who was born in 2019, to Canada.
X is a citizen of Canada and of Australia.
The mother of the child, Ms Kingsley, has appealed against those orders and has also filed an application pursuant to Regulation 19A of the Regulations.
Regulation 19A, relevantly, provides that if a court makes a return order, pursuant to the Regulations, the court may make an order discharging the return order, or part of the return order.
Regulation 19A(2) relevantly provides:
(2)The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:
(a) all the parties consent to the return order being discharged; or
(b)since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or
(c)exceptional circumstances exist that justify the return order being discharged; or
(d)the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.
The mother relies on subsections (b) and (c).
In applying the provisions of Regulation 19A(2) there are a number of matters to be borne in mind.
Firstly, I adopt, with respect, the reasoning of McClelland J in Department of Family and Community Services Secretary & Smollett(No. 2) [2018] FamCA 372 where his Honour stated:
…in applying Regulation 19A, it is necessary for the court to have regard to the statutory context. That is, the Regulations are made pursuant to section 111B of the Family Law Act 1975 (Cth) which relevantly provides that the purpose of the Regulations is to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the Convention”).
In DP v Commonwealth Central Authority (“DP”) Gleeson CJ said;
…the concern of the Convention is to reserve to the jurisdiction of the contracting state which is the place of habitual residence of the child the determination of rights of custody and of access. This was said to entail a degree of self-denial, the natural inclination of any court before which such a question comes being to make its own assessment of the interests of the child. The objective is to secure the prompt return of children who have been removed wrongfully, or are being retained wrongfully, so that issues of custody and access may be dealt with according to the laws of their place of habitual residence.
9.In respect to the task before the Court, in Re DP, Kirby J noted that applying the principles of the Convention;
…requires decision makers to face up to what will necessarily, on many occasions, be an unpleasant obligation where there may be a suspicion that the child's best interests, viewed purely as a custody determination, might suggest the child's retention within the jurisdiction, although the proper operation of the Regulations, implementing the Convention, requires an order of removal.
(Footnotes omitted)
Secondly, I note that, for the purpose of Regulation 19A(2)(b), it is necessary that the circumstances upon which reliance is placed must be circumstances which arose after the order for the return was made, in this case, after 11 November 2020.
Thirdly, in considering Regulation 19A(2)(c), the word “exceptional” is to be given its ordinary meaning.
In Baker v the Queen (2004) 223 CLR 513 at 173, Callinan J stated:
…Legislative requirements that a judicial determination depend upon the demonstration of exceptional or special matters, events, circumstances, or reasons, are far from unique and have been the subject of much judicial deliberation. Regularly this Court is called upon to decide whether special leave to appeal should be granted. Speaking of the expression "exceptional circumstances" in s 2 of the
(UK) required for a decision not to impose a sentence of life imprisonment, Lord Bingham of Cornhill CJ said in R v Kelly (Edward):
Crime (Sentences) Act 1997We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
(Footnotes omitted)
With those matters in mind, I now turn to the mother’s case.
The various contentions advanced by counsel for the mother are set out in his Summary of Argument. Although counsel for the mother did not group the contentions referable to each sub-regulation, I will attempt to do so.
REGULATION 19A(2)(b)
From the Summary of Argument and from the oral submissions, I understand the contentions to be:
·The Government of C Province has extended a provincial State of Emergency until at least 11 May 2021.
·The mother cannot afford to pay the cost of the travel to return the child and the cost of quarantine.
I propose to deal with each of those contentions.
The Government of C Province has extended a provincial State of Emergency until at least 11 May 2021.
The document upon which the mother relied is annexed to her affidavit sworn 4 May 2021 at page 34. It was conceded that, whatever may be the effect of the State of Emergency, and the document does not disclose what that effect may be, the State of Emergency has been in place now since 18 March 2020 and cannot be relied upon as a circumstance that has arisen since 11 November 2020.
The mother cannot afford to pay the cost of the travel to return the child and the cost of quarantine.
It was not clear from the submissions on behalf of the mother how it was asserted that her financial position had changed since 11 November 2020.
As I understand her evidence, the mother is employed working Monday to Thursday between 8 am and 5 pm, earning about $800 per week. That was her employment before 11 November 2020. She asserts that she has no significant savings or assets. That was her position before 11 November 2020. She is living with her partner. That was her position in November 2020.
Further consideration will be given to the evidence in relation to the mother’s financial position later in these reasons.
I do not accept that any ground for discharging the order under Regulation 19A(2)(b) has been made out.
REGULATION 19A(2)(c)
The mother’s contentions are:
·The mother cannot afford the cost of travel to return the child and the cost of quarantine.
·The mother is not eligible for a visa which would allow her to enter Canada and work in Canada.
·The Smartraveller website advises, in relation to Canada “Do not travel”.
The mother cannot afford the cost of travel to return the child and the cost of quarantine.
Counsel for DCJ disputed both the mother’s evidence about her financial position and her evidence about the costs of travel and quarantine.
In the substantive proceedings, the mother’s position was that, if the return of the child were ordered, the mother would return to Canada with the child.
The orders made on 11 November 2020 provided, relevantly:
2.That the respondent pay the costs of the return of the child, including airfares and any other necessary travel expenses to Canada.
3.That the respondent pay the costs of her own airfares and expense of the return trip to Canada.
In the Summary of Argument, counsel for the mother summarised her evidence, found in her affidavit sworn 9 December 2020 that the costs of her returning with the child to Canada would be not less than $23,298.
In cross-examination, the mother said that the estimate was based on her research in December 2020 and that, at that time, she only looked at the cost of business class airfares. Further, the mother had estimated the costs of hotel quarantine for 14 days to be $2,458.
In cross-examination, the mother said that she had not made any recent inquiry into the cost of airfares to D City.
Counsel for the DCJ tendered a document from a booking website which indicated that economy flights to D City on United Airlines and Air Canada are currently available for $3,726.
Further, in relation to quarantine, evidence provided by DCJ establishes that the government of C Province no longer requires incoming travellers to undergo hotel quarantine for 14 days. The current requirement is three days in hotel quarantine and the remaining 11 days in self quarantine.
The father’s evidence is that he will vacate his premises, where the mother and X lived with him, and that the mother can finish her quarantine in those premises. The mother, in
cross-examination, said that she was aware of that proposal but did not feel comfortable accepting it. She said that she would quarantine in the father’s premises, but only if she did not succeed in this application and in the substantive appeal. This determination cannot turn on the mother’s preferences.
I do not accept the evidence of the mother about the likely costs of the airfares and the hotel quarantine. There is no other evidence other than the evidence in relation to economy airfares.
However, the real gravamen of the challenge to the mother’s evidence was in relation to her financial circumstances.
The mother has been represented throughout these proceedings, both in the substantive proceedings and in this application, by a solicitor and a senior junior counsel.
There is no evidence of how much she has spent in legal fees in her efforts to avoid returning the child to Canada.
There was no evidence of the income or assets of the mother’s partner with whom she lives and has lived since about February 2020.
The mother’s bank statements for the relevant periods were in evidence. DCJ relied on a number of transactions as evidencing that the mother had funds other than those she earned from her work.
·In August 2020, the mother and her partner bought a car for $8,000. The mother paid half of the purchase price.
·On 10 September 2020, there were transfers into the mother’s account totalling $11,000. Of that amount, $6,000 came from the mother’s partner and $5,000 came from her parents. The mother, in cross-examination, said those funds were to pay her legal costs. I assume that the transfer out of the account of $10,000 on the same day was to her lawyers.
·On 8 October 2020, the sum of $7,000 was transferred into the mother’s bank account from her partner.
·On 9 October 2020, the mother’s parents paid $1,300 into her bank account.
·On 9 October 2020, the mother paid her lawyers $10,000.
·On 9 October 2020, the mother’s partner paid $2,000 into her account and that sum was transferred to her lawyers.
·On 24 October 2020, $2,900 was transferred into the mother’s account from another account with the same bank numbered #...80 and $2,860 was transferred to the mother’s lawyers.
As at 11 November 2020, the date of the orders, the balance of the mother's account was $1,312.50, her wages of $951.14 having been credited that day.
The mother swore an affidavit on 7 December 2020 in which she deposed:
As of 7 December 2020, I have a total balance of $739 in my bank accounts to meet expenses associated with supporting both myself and X.
In that affidavit, the mother made no disclosure about the amounts she had received from her partner and her parents or of the level of support for her living expenses provided by her partner.
I was not directed to, and was unable to find, any payment from the mother’s account for rent which I infer is paid by someone on her behalf.
The account also shows funds being transferred into the mother’s account from accounts numbered #...72; #...77 and transfers from the mother’s partner.
The bank statements record payments totalling $24,860 to the mother’s lawyers. In the absence of evidence, it is not possible to know the total amount of legal fees which she has paid.
Thus the mother’s case appears to be that she is able to arrange funding to pay her legal fees, in an unknown amount but not less than $24,860, but she is unable to arrange funds to comply with the orders of 11 November 2020.
In C & C (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All ER 465, Butler-Sloss LJ said:
… I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parents who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent. …
I consider that the present situation is analogous to that which Butler-Sloss LJ there considered.
The purpose of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) is to facilitate the speedy return of a child to the place of his or her habitual residence to allow that jurisdiction to determine the appropriate parenting arrangements. To allow the mother in these proceedings to spend her available funds on trying to avoid return and decline to fund her return would, similarly, “drive a coach and four through the Convention”.
That the remedy provided in Regulation 19A(2) is discretionary is evidenced by the use of the words “The Court may…”. It was incumbent upon the mother, if she sought the exercise of discretion in her favour and to demonstrate that she could not fund the return, to give full and frank disclosure of her financial position, including the position of her partner, the amount she has paid in legal fees and the resources available to her whether by borrowing or from other sources. She did not do so.
In the circumstances where the mother has been able to fund her representation to date in the Family Court of Australia, I do not consider that her failure or refusal to fund her return is an exceptional circumstance within the objects of the Convention.
There are two other aspects of this submission that must be considered.
Firstly, neither counsel addressed the issue of whether impecuniosity alone is an exceptional circumstance. Experience suggests that, in matters arising under the Convention, impecuniosity “is regularly, or routinely, or normally encountered”.
Lastly, although the mother, in the substantive hearing, told the Court that she would return to Canada with the child, the orders are not conditional on her doing so.
The father is willing to come to Australia to collect the child. DCJ will facilitate the re- introduction of the child and the father and do what is necessary to facilitate the resumption of their relationship.
The orders are not frustrated by the mother’s unwillingness or inability to fund her own return to Canada.
Her failure to do so, however, places her in the precise position which Butler-Sloss LJ considered.
The mother is not eligible for a visa which would allow her to enter Canada and work in Canada.
The mother asserted, but did not prove, that she will be unable to obtain a visa to enter and remain in Canada.
That assertion was disputed by DCJ.
On a number of occasions, counsel for the mother was invited to indicate what documents in evidence were relied upon to prove that assertion but he did not do so.
Annexed to the mother’s affidavit sworn 4 May 2021 at page 50 is a document issued by the Canadian government titled “Coronavirus disease (COVID-19): Who can travel to Canada”.
The preface to the document reads:
To protect Canadians from an outbreak of COVID-19, the Prime Minister announced travel restrictions that limit travel to Canada. Until further notice, most foreign nationals cannot travel to Canada, even if they have a valid visa or electronic travel authorisation (eTA).
These restrictions stop most non-essential (discretionary) travel to Canada.
Under the heading “Foreign nationals who are eligible to travel to Canada” the document states that the categories of eligible foreign nationals include “an immediate family member of a Canadian citizen”. The mother is an immediate family member of the subject child who is a Canadian citizen.
The document states:
To be eligible, you must be both
•an immediate family member of a Canadian citizen…
•staying in Canada for 15 days or more
You must have a quarantine plan that shows how you’ll quarantine for 14 days when you arrive in Canada. This plan is mandatory.
(Emphasis in original)
The document upon which the mother relied also states that there is a separate category of foreign nationals who are eligible to travel to Canada which is “a foreign national travelling to Canada for compassionate reasons”. Authorisation from the Public Health Agency of Canada is required.
The mother has not sought such authorisation.
The mother has not demonstrated that she will be unable to travel to Canada and this ground must fail.
Does the COVID-19 Pandemic constitute an exceptional circumstance?
When the application for the return of the child was heard in November 2020, the mother did not rely on the COVID-19 pandemic to invoke the grave risk exception found in Regulation 16(3)(b). By November 2020, the pandemic was world-wide and had been for many months.
The Smartraveller website as at 4 May 2021, advised:
We continue to advise: Do not travel to Canada due to the health risks from the
Covid-19 pandemic and the significant disruptions to global travel.(Emphasis in original)
I was not directed to any evidence of the current state of the pandemic in Canada, such as a publication by a Canadian government, or C Province instrumentality. Although no reference was made to it by counsel in submissions, there was annexed to the mother’s affidavit sworn 4 May 2021, a newspaper article published on 11 April 2021. Whilst the rules of evidence do not apply in proceedings such as these, it is nevertheless necessary that facts in issue be proven by evidence that is cogent, credible, reliable and capable of proving the fact. I do not consider that an article in a newspaper falls into that category.
Neither was there any evidence of the risk to this child posed by the pandemic if she were returned to Canada.
Counsel for DCJ referred the Court to a document produced by the Permanent Bureau of the Hague Conference on Private International Law (“HCCH”) entitled “Toolkit for the 1980 Child Abduction Convention in times of COVID-19”. Australia is a member state of HCCH, as is Canada. The toolkit provides information about “Addressing the practical challenges due to COVID-19” and specifically:
…
Where feasible and permitted under the relevant laws and procedures of the individual Contracting Party, considering the availability of practical arrangements that allow for the safe return of the child, such as the placement of the returning child on flight priority lists, considering the purchase of medical and travel insurance in the case of COVID-19 infection, and where necessary, quarantine facilities at the destination.
Continually re-evaluating any practical arrangements
put in place to ensure that they are up-to-date and can adequately address newest developments in the
COVID-19 situation.Considering and addressing potential parental and child anxiety with regards to travel in the light of the COVID-19 situation, especially in situations where the parent cannot travel with the child.
(Emphasis in original)
That such a Toolkit exists suggests that the particular exigencies created by the pandemic have been the subject of consideration among signatories to the Convention and that the question of return to a country where there is COVID-19 is “regularly, or routinely, or normally encountered” in courts exercising jurisdiction in relation to the Convention.
I was not directed to any authority where a court in a signatory state has found the existence of the pandemic to be an exceptional circumstance for the purpose of Regulation 19A(2)(c).
I was referred to a number of cases where courts have considered whether to make orders for return considering the pandemic.
In Re PT (a child) (summary return) KR v HH [2020] EWHC 834 (fam) the High Court of England and Wales stated:
46.A final argument relates to the risk of physical harm that is presented by the current coronavirus pandemic. This risk presents itself in two ways:
(1)The pandemic is more advanced in Spain than in the UK. As at the date of the preparation of this judgement (29 March) the official death toll stood at 1,228 in the UK and 6,528 in Spain. It could therefore be argued that PT would be at greater risk of contracting the virus in Spain than in the UK.
(2)The increased risk of infection that is posed by international travel at this time.
Dealing with each of those considerations, his Honour stated:
(3)Although the course of the pandemic is clearly more advanced in Spain than in the UK, I do not have any evidence from which I can draw a conclusion that either country is any more or less safe than the other. It is clear that the pandemic is a serious public health emergency in both nations and that the number of cases in the UK is expected to continue to rise in the coming weeks. Both countries have imposed significant restrictions on their citizens in an effort to control the pandemic. I am simply not in a possession [sic] to make any findings as to the relative likelihood of contracting the virus in each country. On the material before me, all that I can conclude is that there is a genuine risk that PT could contract the virus whether she remains in England or returns to Spain.
(4)I accept that international travel at this time potentially carries with it a higher prospect of infection than remaining in isolation. However, I understand that limited international flights between the UK and Spain continue to be permitted by those governments for essential travel. From that I infer that the risk of infection posed by air travel, whilst no doubt significantly greater than normal, is not so high that either government has felt it necessary to end flights altogether.
Taking all of those matter into account, whilst I accept that the travel associated with a return is likely to increase the risk that PT could contract coronavirus, I do not consider that such a risk, when considered in the context of the likely harm that would be suffered by PT should she contract the virus, is sufficient to amount to the “grave risk” of harm required by Art. 13(b).
In M.B.R. v Y.R. FC 10701-04-20 the District Court in Tel Aviv-Yaffo serving in its role as Court of Civil Appeals stated:
As the lower court has ruled, it has not been proven that the situation in California in respect of the Minor is more severe than that in Israel in terms of the Minor contracting the virus.
On 17 March 2020, the 1st Family Chamber of the Higher Regional Court of Thuringia in Jena in proceedings 47 F 632/16 [name redacted] held:
According to the information collected by the Chamber, there are currently no impediments to the child entering Australia with her mother; despite the coronavirus pandemic. The respondent and [name redacted] are merely obligated to undertake
self-isolation for 14 days upon their arrival in Australia. This protective measure does not endanger the child’s well-being. The brief stop-over in Dubai… does not change anything about this.On 5 April 2020, the Family Court in Tel Aviv-Yaffo in The Father v the Mother FC 52595- 02-20 stated:
The HCC Guide to Good Practice document includes reference also to the issue of the claim regarding a health risk posed to the minor due to his return to the country of origin, and it has been ruled that the focus should be on whether it is possible to provide the minor with medical care in the country of origin. Additionally it had been set forth that the grave concern will occur only when the minor requires urgent or special treatment that is not provided in the country or origin or that the minor’s medical condition does not enable his trip back.
(Emphasis in original)
The consideration of the decisions set out above does no more than to give account to the manner in which courts in other jurisdictions, considering the Convention, have approached this issue.
The pandemic has affected Australia and the world since the beginning of 2020. In the courts exercising jurisdiction over Family Law matters in Australia, the existence of the pandemic and the ramifications which flow from it is “regularly, or routinely, or normally encountered”.
I do not accept that the existence of the pandemic alone constitutes an exceptional circumstance.
In order to enliven the provisions of Regulation 19A(2)(c), the mother must show that there is some circumstance, arising out of the pandemic, which is exceptional by reference to the subject child and to the subject order for return.
Such circumstances might, without limiting the categories of relevant circumstances, include a particular medical or physical vulnerability of the child; evidence that the risk of infection is substantially greater for the subject child in the country of return or evidence that the medical care available for the child in the country of return is not of an acceptable standard.
I am not satisfied that the mother has demonstrated that there are exceptional circumstances which justify the discharge of the order made on 11 November 2020 in relation to the subject child.
The application will be dismissed.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 17 May 2021
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