DEPARTMENT OF FAMILY AND COMMUNITY SERVICES AND BERNEY - [2015] FamCA 383

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES AND BERNEY

[2015] FamCA 383

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – WRONGFUL REMOVAL AND RETENTION – PRECONDITIONS TO RETURN ORDER – Where the parents lived in Canada with the child – Where, with the consent of the father, the mother left to Australia with the child after receiving a removal notice issued by the Canadian Border Service – Where the father asserted that he understood the mother would make an application for permanent residence and return to Canada – Where the mother informed the father some time after her arrival in Australia that she did not intend to return – Where the mother relied upon the defence of “grave risk” pursuant to Regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the mother has now been offered a Canadian temporary residence permit which is valid for six months – Where the mother raised concerns about how she would be supported in Canada whilst awaiting the determination of custody proceedings – Where the report of the Family Consultant showed that the child would suffer considerable psychological harm if separated from the mother – Order made for the return of the child to Canada upon the satisfaction of preconditions regarding the support of the mother and the child in Canada.

Family Law (Child Abduction Convention) Regulations 1986 (Cth), regs 15(1)(c), 16(3)(b)
Hague Convention on Civil Aspects of International Child Abduction 1980

Director-General of the Department of Family and Community Services v Davis (1990) (1990) FLC 92-182
DP v Commonwealth Central Authority (2001) 27 Fam LR 569
McDonald & Director-General, Department of Community Services NSW (2006) FLC 93-297
Re M (Abduction: Undertakings) [1995] 1 FLR 1021
SCA v Sigouras (2007) 37 Fam LR 364
Wolford & Attorney-General’s Department [2014] FamCAFC 197

APPLICANT:

Department of Family and Community Services

RESPONDENT:

Ms Burney

FILE NUMBER:

SYC

862

2014

DATE DELIVERED:

22 May 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

8 May 2014; 27 February 2015; 8 May 2015.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harper

SOLICITOR FOR THE APPLICANT:

Department of Family and Community Services

COUNSEL FOR THE RESPONDENT:

Ms Boyle

SOLICITOR FOR THE RESPONDENT:

Legal aid NSW

Orders

The applicant and the respondent mother make such arrangements as are necessary to ensure the return of the child B (“the child”) born … 2012 to Canada, in the company of the respondent mother, upon the following conditions having first been met.
The pre-conditions to be met before the child is to be returned to Canada pursuant to these Orders are as follows:
(a)That Mr C (“the father”) pay for the airfare for the respondent mother and the child to travel from Australia to Canada.
(b)That the father have commenced proceedings in the Canadian court and served the respondent mother with a copy of those proceedings so that she might enter an appearance and file a response before she returns to Canada.
(c)That the father move the Canadian court in which he has instituted parenting proceedings to appoint a date for the urgent hearing of necessary interim orders providing for the proper support of the respondent mother and the child, together with any other interim orders which each party might seek in that court. Upon the court allocating such a date, the father is to provide notice of such date, together with a copy of any court order made relevant to that date, prior to the respondent mother being required to leave Australia for Canada with the child pursuant to the other Orders made herein.
(d)The father is to provide the sum of CAD $1,000 to the respondent mother by depositing that sum to a bank account nominated by the respondent mother in Canada or, in the event of the respondent mother not having access to a bank account in Canada, the funds are to be deposited in the equivalent of Australian dollars to an Australian bank account nominated by the respondent mother. This fund is intended to cover the accommodation costs of the respondent mother and the child upon their immediate arrival in Canada during the period it may take to find suitable and affordable rental accommodation for them to occupy.
(e)The father is to pay to his lawyer the sum of CAD $2,094. Such sum to be retained upon trust for the father and the respondent mother and to be paid to the respondent mother at the rate of CAD $349 per week as and from the time of the arrival of the respondent mother and the child in Canada until such time as the Canadian court is ceased with the matter and makes some other order in relation to the fund and/or the maintenance payment to be made to the respondent mother. The father’s lawyer is to advise the respondent mother in writing that he holds such funds and has instructions to pay same out to the respondent mother as required by this pre-condition before the respondent mother and the child are to be required to travel to Canada pursuant to the Court’s Order.
Each party has liberty to relist in the event of any further order being required to implement to the return order.
In the event of the return order not having been implemented by the expiration of six calendar months from the date hereof because of a failure of the conditions set out herein being met, then the return order will from such date stand discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services v Berney has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 862/2014

Department of Family and Community Services

Applicant

And

Ms Burney

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (hereafter referred to as “the Regulation”) for the return of a child to the convention partner State of Canada. The applicant is the delegate of the Australian Central Authority, namely the Director General of the NSW Department of Family and Community Services (“the Department”). The respondent is Ms Burney, the mother of the child, B (“the child”) born in 2012. Specifically, the Department seeks an order that the Department and the mother make such arrangements as are necessary to ensure the return of the child, B (“the child”), born in 2012 to Canada, forthwith, in the company of such person and upon such conditions as the Court deems necessary.
The application was filed on 18 February 2014 and for reasons which will be seen below, the application has not been able to be afforded the expeditious determination which the Regulation requires. The matter was listed for hearing before me on 8 May 2014. On that day there was an adjournment for a number of reasons, one of which was for the preparation of a report by a Family Consultant. Further, both parties agreed there was no purpose in the Department pursuing the application until the Court could be informed if the mother was to be permitted by the Canadian Government to return to Canada, at least for the purpose of allowing that country’s courts to determine whether she be permitted to remove the child permanently from Australia. That circumstance alone is a most unusual feature of this case.
The matter was next before the Court on 19 June 2014 for further direction. The following Consent Orders were made:
BY CONSENT IT IS ORDERED THAT
1.That the existing passport of the mother, Ms Berney, held by the Registry of the Family Court of Australia, be released to the mother's legal representative, for the purpose of applying for a Canadian visa NOTING that this passport has expired.
2.That simultaneously with order 1, the mother be required to apply for a new Australian Passport on an urgent basis.
3.That within 3 working days of receipt of her new Australian passport, the mother is to provide the new passport to her Legal Representative.
4.That the mother's Legal representative attempt to apply for a Canadian visa for the mother with the new Australian Passport.
5.That when order 4 has been complied with, the mother's Legal Representative lodge the mother's new Australian passport with the Family Court Registry in Sydney.
6.Leave is given to the applicant to release the report prepared by Ms D dated 5 June 2014 to the Commonwealth Central Authority, the Canadian Central Authority, the father’s legal representative and the father.

The matter was listed for further hearing at the request of the parties before the end of 2014 however, due to unavailable court dates, the matter was finally heard on 27 February 2015. The parties’ further written submissions were to be provided by 13 March 2015.

Background Facts

The father, Mr C, was born in 1992 and is currently 22 years of age. His occupation is listed as “[tradesman]”. He resides in E Town , F State, Canada.
The mother was born in 1993 and is currently 21 years of age. Her occupation is listed as “home duties”. She resides in G Town, a rural town in the State of New South Wales, Australia.
The child was born in 2012 in E Town , H State, Canada and is currently three years of age. He is both a Canadian citizen and an Australian Citizen.

Affidavit evidence

The Department filed a Form 2 Application on 18 February 2014. In that document, they alleged a “wrongful retention”, within the meaning of the Regulation, occurred on 18 September 2013.
The parents met in January 2011, and commenced cohabitation in E Town in March 2011. the child was born in E Town in 2012. The parents and the child lived in E Town until the mother travelled to Australia with the child on 23 July 2013.
On 9 January 2013, the mother told the father that her visa did not permit her to remain in Canada. On that same day the mother’s (Australian) passport was confiscated by Canadian authorities. On 25 February 2013, the mother, assisted by the father, submitted an application for residency to the Canadian Department of Citizenship and Immigration, which was acknowledged on 23 April 2013. The mother received a removal notice issued by the Canadian Border Service on 27 February 2013.
The mother and the child left Canada for Australia on 23 July 2013. The father signed a handwritten letter giving consent for the child to travel to Australia with the mother. The father asserted that he understood the mother would return to Canada and make an application for permanent residence.
On 18 September 2013, the father asserts that the mother informed him (through Facebook) that she did not intend to return to Canada, and that she intended to apply for Australian citizenship for the child.
On 6 November 2013, a further conversation took place via Facebook, where the mother reiterated her intention to remain in Australia.
On 11 April 2014 the mother filed a Form 2A “Answer and Cross Application”. In that document she sought that the application filed by the Department on 18 February 2014 be dismissed. She identified that she relied upon the Regulation 16(3)(b) defence of “grave risk”. That regulation provides:
(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
…
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation
The mother filed an affidavit on 11 April 2014, in which she set out the following.
The mother travelled to Canada in about 2009 to reside with her mother and her mother’s new husband, who is a Canadian citizen. The mother attended school for two periods of time and undertook cash-in-hand work. She at no time held the appropriate visas to live and work in Canada.
The mother states that she wished to return to Australia, however, neither her mother, or her father in Australia, said they could afford the air fare.
The mother’s relationship with her mother deteriorated at about the time the mother started a relationship with the father. The mother moved into the home which the father shared with his father. The mother and father obtained their own accommodation on two occasions; however, they had trouble meeting the household bills and were consequently unable to live independently from the father’s father.
The child was born in 2011. The mother was not entitled to Canadian health care. She believes there is a CAD $10,000 hospital bill outstanding for the birth of the child.
In January 2013, the mother was contacted by the Canadian immigration authority and was informed that she was residing in the country illegally. Her passport was confiscated and she was required to attend the immigration office in City F each week. She lodged an application for permanent residency, naming the father as her sponsor.
In April 2013, the mother says she was advised that she was required to leave Canada. She said she was told she would need to make her application for residency in Canada from outside Canada. She says she was also told she would not be able to enter Canada again before the expiration of 12 months of her departure from Canada. The mother reports the Canadian authorities said they would pay for the airfares to enable her to leave Canada.
The mother and father became engaged in about June 2013.
The mother left Canada on 23 July 2013. The mother says the father signed a form to allow the child to leave with the mother.
The mother has resided in G Town, NSW since her return to Australia. She lives with her father and his wife. She receives financial support from the Australian Government.
The mother states that after two months, she did not wish to be in a relationship with the father anymore, and told him so via Facebook. She also told him that she wished to stay in Australia.
The mother set out that the child had difficulties with delayed speech, and was on a waiting list to see a paediatrician for further treatment.
The mother also set out her concern about being permitted to re-enter Canada should a return order be made. She also raises concerns about how she would be supported there whilst awaiting the determination of custody proceedings in relation to the child.
On 28 April 2014, the Department filed a further affidavit. It attached documents which set out the following information.
Annexure “A” contained a letter from the State H Central Authority in relation to the mother’s ability to obtain permission to re-enter Canada during the period of exclusion to which she was subject. The exclusion period was stated to be one year from 23 July 2013.
The letter stated that the mother could make an application for an “Authorisation to Return” to Canada or a “Temporary Resident Permit”. The letter advised that the Canadian Central Authority could send a copy of any Australian Court Orders to Citizenship and Immigration Canada and seek that they expedite any such application; however, there was no ability to state that her application would be granted.
Annexure “C” of the affidavit contained another letter from the State H Central Authority, which provided more information:
a)In relation to an Authorisation to Return (“ARC”), the letter stated that an ARC did not entitle the recipient to any rights to work, study, or receive social benefits. It also noted that if the Canadian government spent money to remove a foreign national from the country, they would be required to repay the money spent on their removal. They further stated that an ARC merely permitted the recipient to enter the country.
b)In relation to a Temporary Residence Permit (“TRP”), the letter stated that the permit was issued for a maximum of three years, and expired when the recipient left the country, unless permitted to leave and re-enter. A TRP holder may obtain a work permit if their TRP is valid for longer than six months. Extensions may be granted on TRPs, however, these are processed on a case-by-case basis.
c)A permanent residency application would be dealt with on a case-by-case basis.
d)Entry to Canada following the expiration of the exclusion period on 23 July 2014 would be dependent on the mother satisfying a visa officer of a number of factors, including that she has enough money to support themselves and family members while in Canada.
Annexure “D” to the affidavit filed by the Department on 28 April 2014 was an affidavit by the father sworn 24 April 2014. This affidavit, amongst other things, answered the affidavit which the mother had sworn on 11 April 2014. Importantly, for this determination the father says:
·He has not paid the hospital bill which arose from the birth of the child. I note the child was born in 2012 and as at 24 April 2014 (more than two years later) the father’s evidence suggests he has paid nothing towards satisfying the debt. He says “I am making arrangements to have the bill paid in full”.
·The child has medical insurance with the Medical Services Plan of State H.
·He did not sign any form, rather he signed a piece of paper, allowing the child to travel to Australia.
·The father was living with the respondent’s mother in Canada.
·The father asserts at the time the child was removed from Canada the mother was to make application to return to Canada with the child at the expiration of 12 months.
·The father says he “will pay for the bills that [the mother] and I have had in the past.” I take this to be an offer to support the mother in Canada. The father says the mother may be eligible for a government payment because she cares for a Canadian child. Other reliable evidence will need to be provided in relation to that assertion.
·The father works 15 to 20 hours per week in winter and 35 hours per week in summer.
On 1 May 2014, the mother filed an affidavit of Ms I (“Ms I”) sworn 30 April 2014. Ms I is a Canadian lawyer specialising in Canadian Immigration Law. Ms I attached documents which set out the following information.
Exhibit “C” to the affidavit contained a letter addressed to the Family Court of Australia from Ms I of Corporate Immigration Law Firm in Canada. That letter set out the mother’s potential eligibility for permanent residency in Canada. It set out that:
a)The mother was not eligible for permanent residency as a spouse as she was not in a relationship with the father, and he may have been an ineligible sponsor when the parties were in a relationship.
b)The mother’s mother would not be an eligible sponsor for the mother’s application for permanent residency, as there is no indication that the mother’s mother disclosed the mother as a dependent at the time she made her own application for residency in 2013. Consequently, the mother would not be considered a member of the family class.
c)The mother may make an application for permanent residency based on Humanitarian and Compassionate grounds. The Canadian Citizenship and Immigration Department could take into account the hardship to the father, the child and the mother’s mother should the application not be granted. Canadian law requires the “best interests of the child” to be given substantial weight in such an application, however, that consideration may not outweigh other considerations such as the mother’s previous disregard for Canadian Immigration Laws.
The letter also addressed the mother’s options for returning to Canada temporarily. Ms I set out the concerns an immigration officer might have when considering whether the mother should be allowed into the country under an ARC (Authorization to Return to Canada) or a TRP. These included:
a)The mother has insufficient financial means to support herself whilst in Canada;
b)The mother previously overstayed her visa in Canada;
c)There might be a perceived concern that the mother wishes to stay permanently due to the father and the child’s nationality and her previous Permanent Residency application;
d)The mother has limited ties to Australia by way of property, job, or education enrolment; and
e)The mother did not pay the costs of her removal from Canada.

In relation to an application by the mother to reside temporarily in Canada and obtain a work permit, Ms I set out that the mother may be refused as she may not be perceived be a genuine temporary resident, due to her previous over-stay. Further, any non-payment of her previous costs of removal from Canada could result in inadmissibility on the basis that she did not comply with Immigration Regulations requiring payment.
Whether the mother would be able to claim social benefits was a matter outside Ms I’s experience, being a Provincial rather than a Federal matter.
I note that the mother has now been offered a multiple entry Temporary Resident Permit which is valid for six months. The evidence of such offer was contained in a letter dated 24 February 2015 annexed to the affidavit of Mr J affirmed 25 February 2015. There are conditions which attach to the issue of the permit. The TRP document will be issued to the mother upon arrival in Canada. The mother may apply for an extension of the TRP, may apply for a work permit and may apply for permanent residence on the humanitarian and compassionate grounds.

Hearing 8 May 2014

The matter was listed for final hearing on 8 May 2014.
At that hearing, it became apparent that there was insufficient evidence before the Court in relation to:
a)The ability of the mother to return to Canada, should the Court require that the child be returned.
b)The effect on the child of being removed from the mother’s care, should the mother not return to Canada with the child if the Court required the child’s return.
I made the following Order in relation to obtaining a report by a Family Consultant:
1.   The family consultant is requested to prepare a report that provides an opinion regarding these matters:
a.   given the circumstances in which the child [B], born … 2012, now lives, and given the history of his care and exposure to carers thus far in his life,
i.   assess the nature and extent of the bond if any which is observed between the child and his mother [Ms Berney] born … 1993;
ii.   opine the impact upon the child of separation from the mother;
iii.opine the impact upon the child of an increasing time of separation from mother;
iv.opine whether the child would be exposed to psychological harm if removed from the care of the mother so as to be in a different country to her:
1.   for any time at all;
2.   for a period of about one week;
3.   for a period of about 2 weeks;
4.   for a period of in excess of 2 weeks
For the purpose of providing the opinion in point (iv) assume the child would be cared for by the father possibly with the assistance of the maternal grandmother with whom the father is expected to reside with the child
v.opine the level of psychological harm the child could sustain (if any) if removed from the mother’s care for periods of time referred to in point (iv) above
vi.in any circumstance of separation between the mother and the child, would you opine whether there would be a grave risk of exposing the child to psychological harm in circumstances where the mother would remain in Australia and the child would be in Canada. If the answer to this question is in the affirmative please provide expert opinion to explain why you assess the risk at that level.
b.   Is there any other circumstance foreseen in the facts available to you which you opine could create an intolerable situation for the child if the order for return is made?
The parties also agreed that they would contact the Canadian Authorities in order to obtain information as to the mother’s previous application for permanent residency as well as obtaining information as to the ability of the mother to return to Canada for the purpose of litigating parenting proceedings in that court.
I stood the matter out of the list whilst these matters were addressed.

Further Evidence after the First Hearing

Direct Judicial Communication

On 29 May 2014, with the consent of the parties, I caused an email to be sent, to a judge in the State H jurisdiction by way of a direct judicial communication via the International Hague Network of Judges. I made a direct request to the Australian network judge (Justice Bennett), who then forwarded my request for information to the Canadian network judge. Via that same route I received a reply. The request contained the following questions, which were agreed to by the parties:
1. We are seeking to ascertain how quickly a contested parenting case could be determined in the circumstances where a child is returned to Canada pursuant to a Hague Convention Order. Could you provide details of the length of time estimated to determine such an application?
2. If it be a condition on the return order being made that the Canadian Parent commence parenting proceedings before the child is returned to Canada, is it possible for those proceedings to be allocated to a particular judge who could ensure that the proceedings are given expedition?
3. In the absence of the mother obtaining the assistance of Legal Aid, is there any assistance that could be provided by the court in the course of the other’s parenting proceedings litigation? (i.e. pro-bono assistance referral)
4. Whether the mother could participate by electronic means in the event that she cannot return to Canada?
On 30 May 2014, Justice Butler of the Supreme Court of State H sent, via Justice Bennett, the following responses to the questions:
1. We are seeking to ascertain how quickly a contested parenting case could be determined in the circumstances where a child is returned to Canada pursuant to a Hague Convention Order. Could you provide details of the length of time estimated to determine such an application?
A. I cannot answer this with any precision because it depends on which court the application is brought to, and also on the particular steps required for the case which won’t be apparent at this stage. There are two levels of court in State H where such a case could be brought. I am a judge of the State H Supreme Court which can deal with all issues arising in any family dispute. The State H Provincial court can also hear all of the parenting issues and so it is a possible forum for the case. It would be a less expensive route for the parties. I cannot give you the timelines it would take but will pass this email with all of the questions in it to Judge Nancy Phillips of that court who can give you better answers on what would happen if the action is brought to her court. The Supreme Court can provide relief in relation to property and divorce and also has inherent jurisdiction so if the father needs to seek relief in these areas he would want to pursue the case in our court. It is up to the filing party to make the decision as to the court in which to file the action. In the Supreme Court it would ordinarily take several months to get an interim custody application heard and longer for a final trial. However, it is possible to have the case expedited where there is a reason to do so. I will deal with this more in response to your second question.
2. If it be a condition on the return order being made that the Canadian Parent commence parenting proceedings before the child is returned to Canada, is it possible for those proceedings to be allocated to a particular judge who could ensure that the proceedings are given expedition?
A. The short answer to that question is yes. I would have to ask the Chief Justice to direct that a case management judge be appointed but this is often done. It would then be up to the judge in consultation with the parties to set schedules for filing of the pleadings and to set the hearing of any interim applications and the trial.
3. In the absence of the mother obtaining the assistance of Legal Aid, is there any assistance that could be provided by the court in the course of the other’s parenting proceedings litigation? (i.e. pro-bono assistance referral)
A. The mother could apply for legal aid but the court is not involved in that process. I would suggest she make initial contact with our Central Authority, [Ms K]. I know that [Ms. K] frequently assists parties filing Article 16 applications in [State H] to access legal aid. She may provide similar assistance to someone who has been faced with an article 16 application in a foreign jurisdiction. If not, the best alternative is to contact the [State H] Justice Access Centres which are funded by the province of [State H]. They do provide legal advice and information about accessing pro bono services. They also provide assistance to litigants who are representing themselves in court.
4. Whether the mother could participate by electronic means in the event that she cannot return to Canada?
A. it might be possible for her to attend a hearing by phone or by video if the proper facilities are available. The decision as to whether the litigant could appear and participate by electronic means would be made by the judge assigned to the case.

Report of the Family consultant

The Family Consultant produced a report dated 5 June 2014.
The Family Consultant observed the mother and the child over the space of an hour. She observed that the mother interacted well with the child, and that the mother and the child appeared at ease with each other. The Family Consultant stated that the observations she made suggested the child was attached to the mother.
It was observed that the child has a problem with language. The mother told the Family Consultant that the child was on a waiting list to see a paediatrician in relation to his speech and eating issues.
The mother appears to have been the child’s primary carer from birth. Although the Family Consultant declined to comment on the precise nature of the child’s attachment to the mother after so short an observation, she stated that
[B] is attached to his mother and that having regular frequent and loving contact with her while he is young is the greatest predicator of his psychological and emotional health as he grows older. The corollary to that is that separation from her would be a high predicator of the opposite.
The Family Consultant opined it is likely that the child experienced significant loss when he left his father behind in Canada, and that if he were to be separated from the mother now he would feel an enormous loss akin to that felt when a loved one dies. Even though the father loves the child and may be a competent carer, the loss experienced by the child could not be compensated by the father’s presence.
The Family Consultant stated that separation from the primary carer begins to be felt by a child within one day. She stated that the child would be significantly and negatively impacted upon by separation from his mother. She said:
Grief does not necessarily increase or lessen in impact as time goes by. Its pathway is not linear. Its greatest impact, especially for children, may be in the beginning when the shock of it does damage which may be irreparable. Sudden and monumental loss in childhood, particularly early childhood, and especially when there is not a relationship with a secondary carer to serve as a buffer, usually has a lifelong impact, physiologically as well as psychological.
The Family Consultant said that electronic communication would not comfort the child, were he to be separated from the mother. It could in fact cause his grief to become worse as it may cause him to ask why she is not choosing to be with him.
The Family Consultant concluded:
a)B would be significantly and negatively impacted by separation from the mother;
b)Separation for a period longer than a day will cause distress, which will worsen over time;
c)The loss of the mother and exposure to unfamiliar people, rather than any change in location, would be the cause of the child’s distress;
d)The length of separation, of any period longer than one day, would not a relevant factor in the child’s grief. The relationship between the child and the father has eroded during their separation, to the extent that he would not see the father as a buffer against the pain of losing the mother. The maternal grandmother is likewise not currently a significant attachment; and
e)The level of psychological harm to the child would be considerable.

Further Affidavit Evidence

On 4 November 2014, the Department filed an affidavit of Mr L, which attached the following documents.
Annexure “A” contained a letter dated 10 October 2014 from the State H Central Authority to the Australian Central Authority. That letter set out that the mother no longer needed to apply for an ARC or a TRP as her exclusion period had expired and she would be eligible into Canada on the basis of her Australian passport. However, it was not certain that her admission into Canada is certain. The non-payment of the mother’s removal costs was a matter which they advised would be best addressed before any attempt to return was made. They further stated that employees of Canada Border Services Agency, the agency that controls entry into the country, have discretion to allow a person into Canada as a temporary resident and the duration of that permit. In light of that, it is possible that the mother may be denied entry to Canada.
The letter advised that the mother should state, on her return to Canada, that she has a valid reason for returning and that she does not wish to reside there permanently. It further advised that she should carry with her orders of the Court for the return of the child, and be in a position to show that she can support herself financially during her stay.
On 25 February 2015, the Department filed an affidavit sworn by Mr J which attached the following documents.
Annexure “A” to the affidavit contains a letter dated 24 February 2015 to the Central Authority from Citizenship and Immigration Canada. That letter stated that a multiple entry TRP valid for six months had been authorised for the mother, and would be issued on the mother’s arrival to Canada. The mother would also have the ability to extend that permit and apply for a work permit. Further, the letter stated that the mother may be able to apply for permanent residence on humanitarian and compassionate grounds.
The mother filed an affidavit on 18 November 2014. Therein, she set out her current living arrangements with her partner and the child. She stated that the child is attending day-care two days per week and that his speech has improved since commencing there. She stated that his eating has improved also.
The mother said that the she had been contacting the father by Skype on her phone once per fortnight so that he could talk to the child. She said each session was about 20 minutes long, and that the child played with his blocks during that time and the father watched and “didn’t say much to him”. Since September 2014, the mother had a series of issues with her phone which prevented the sessions. She set out the alternatives she had attempted to facilitate contact.
In relation to her financial situation, the mother set out the benefits she receives from Centrelink, which total $1,175 per fortnight. She stated that some of those payments would cease if the child does not become a temporary Australian resident or a dual Australian/Canadian citizen. The mother set out her expenses and bank balance, and stated that she has no savings. She says she is not able to pay the bill of CAD $1,500 for her removal from Canada. The mother states that she received a letter on 16 September 2014 from the Canadian Consulate General which stated that she would not be eligible for government benefits in Canada. She said she has no way of supporting herself should she travel to Canada.
On 20 February 2015 the Department filed a further affidavit by the father. In that affidavit the father said he is 22 years of age, he has been employed by M Pty Ltd for three years. The father says he will take full responsibility for the mother’s living expenses when she “comes to Canada with the child”. The father said he will take full responsibility for the payment of the CAD $1,500 “bill from the Canadian Immigration”.

Submissions

The Department

The Department made the following submissions on 28 May 2014. These submissions were made before the circumstance of the mother’s ability to return to Canada was known. Nonetheless the Department relies on these submissions and so I summarise them as follows.
In relation to the mother’s assertion that there would be a grave risk of harm to the child should he return to Canada in the mother’s absence, the Department set out the following.
Counsel referred to DP v Commonwealth Central Authority (2001) 27 Fam LR 569 which states:
“Narrow construction”?
[41] In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a “strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed”. Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
[42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
[43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence.³¹ The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
[44] These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
[45] That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
It was submitted that there was nothing in the mother’s material which would support a submission that there would be grave risk to the child. It was submitted that the Canadian authorities would deal appropriately with issues arising from the child’s return.

It was submitted that the mother’s case must be that the absence of the mother would of itself place the child in an intolerable situation. The Court’s attention was drawn to Director-General of the Department of Family and Community Services v Davis (1990) (1990) FLC 92-182 (“Davis”), which set out at 78,228 (per Nygh J) (emphasis added):
In any event since the Convention is concerned with the allocation of judicial responsibility for determining issues regarding the welfare of the child, that issue, as the Full Court also pointed out in Gsponer is a matter for the appropriate court which, under the terms of the Convention, is the English court not in this country.
It was also alleged before her Honour and before this Court that the child, as a result of the order for return, would be separated from the mother because the mother would not be able to accompany the child. To a certain extent, that is a situation which presents some analogy to the situation which was before the Court of Appeal in C. v. C. As her Lordship, Lord Justice Butler Sloss pointed out at p. 661, that is obviously a serious consideration. But it is a factor which, if it exists, and in this case I stress that there is no evidence that it does exist, was created through the unilateral conduct of the applicant, and it would ill behove a party to rely on the fact that he or she has created the very situation which would prevent compliance with the Convention. That would, as her Lordship pointed out: ``drive a coach and four through the Convention at least in respect of applications relating to young children''.
In my view, there is no difference in principle between a person who feels psychologically unable to return to the country of habitual residence and a person who is financially unable, as is alleged in this case, to return to the United Kingdom. It is clearly desirable and I hope that it can be arranged, either through the central authority or in other ways, that the child should return to the United Kingdom in the company of his mother. But it is my view that if it were not possible to arrange this, and I sincerely hope it will be, that the fact that the mother cannot accompany the child is no reason for non-compliance with the clear obligation that rests upon the courts of this country under the terms of the Convention.
I note that in Davis the evidence relied upon by the trial judge to determine the child would be at “grave risk” of psychological harm if a return order was made was substantially different to the evidence of the Family Consultant provided in the subject case.
It was submitted that if the mother established that she could not travel to Canada with the child, that fact alone would not enliven the Court’s discretion to decline an order to return. I don’t know that I would agree with that submission, however, as it has transpired, the mother is able now to return to Canada (i.e. permitted to do so by the Canadian Government Authorities) and so that case does not have to be determined.
On 6 March 2015, the Department provided further submissions.
It was submitted that the report of the Family Consultant added nothing of substance to the case. While agreeing that removing a child of less than three years of age from the primary carer would cause harm, it was submitted that paragraph 19, which states that the harm to the child would be “major psychological harm” and a “huge psychological blow to him”, should be disregarded as not being matters within the Family Consultant’s expertise. Again I do not accept that submission. No challenge was made to the qualifications of the Family Consultant who prepared the report. No objection was taken to the report, or any part thereof, on any basis let alone that the report was outside the expertise of the expert.
It was submitted that to decline to return a child based only on the age to the child and the separation of said child from his carer undermines the efficacy of the Hague Convention on Civil Aspects of International Child Abduction 1980 (“the Convention”). It was submitted that there was nothing novel about this case, and that if the possibility of a separation from a primary carer was all that was needed to subvert an application, the Convention would be unworkable. It was submitted that a circumstance where children under the age of four might be separated from a carer would have been exempt from the Convention had that been the intent of the Convention writers.
I pause here to note the submission that “there is nothing novel about this case”. I my view there is a most unusual fact in this case which in my experience is novel. That fact is that the Canadian authorities caused the mother (and it transpires, the child, who was at the time, on any objective view, inextricably attached to the mother) to be removed from Canada. The government paid for the mother and the child (B probably travelled for free) to fly to Australia. The father consented to the child travelling with the mother. It would have been interesting to know whether the Canadian authorities would have deported the mother in the event of the father not consenting to the child accompanying the mother to Australia. Nonetheless, that did not eventuate.
In the circumstances of the mother’s removal from Canada the father could not have known whether the mother would at a future time have been permitted to re-enter Canada. He no doubt had an expectation that would occur after the expiration of 12 months relying on information gleaned at the time.
The consequence of the above is that the Canadian Central Authority, an instrument of the Canadian Government, now seeks the Australian authorities apply the Convention in circumstances where another instrument of that government deported the mother (and a child clearly emotionally dependant upon the mother accompanied her) from Canada. All parties in this case recognise the attachment of the child to the mother and the desirability of not unnecessarily breaking their bond given his tender age. Consequent upon that realisation the case has taken much longer to determine than the usual disposition of an application filed under the Regulation. To her great credit the mother has agreed to return to Canada with the child, and, to that end has made all necessary applications to the Canadian Government to permit her admission to that country for the purpose of participating in parenting litigation in that country.
Counsel drew the Court’s attention to SCA v Sigouras (2007) 37 Fam LR 364 at 384, where Bennett J said in relation to Reg 16(3)(b) of the Regulation:
That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
It was submitted that the above statement represents “the high water mark” of enquiry into arrangements for a child on their return to the requesting jurisdiction. It was submitted that it may be legitimate for the Court to consider the harm the child would suffer in the period between his departure from Australia and the hearing of the matter by a Canadian court, however, once the matter is before a Canadian court, any delays or inefficiencies by that court are not for the Australian Court to judge.
It was submitted that the evidence makes it clear that the mother will be able to enter Canada with the child, and that the father has promised to take full responsibility for the mother’s living expenses in Canada. It was submitted that in those circumstances there is no grave risk to the child and the child should be returned to Canada.

The mother

The mother relied on a case outline dated 28 May 2014 and updating submissions dated 6 March 2015.
The case outline dated 28 May 2014 set out the following submissions. The mother submitted that to return the child to Canada would put him at grave risk of physical or psychological harm and would place him in an intolerable situation. This is due to the mother’s inability to return with the child,.
It was submitted that the mother’s residential situation in Canada was not of her own making, but was due to the mother’s mother and step-father not making proper application to the Canadian authorities.
It was submitted that the father was content for the mother to take the child with her to Australia without an agreed return date, knowing that the child would not be returned for at least a year. It was further submitted that the father offered no conditions were the Court to order a return. It was submitted that there were financial bars to the mother returning to Canada.
The mother further submitted that there are no conditions that the Court could make which would protect the child from a grave risk of psychological harm. As it is outside each party’s power to ensure that the mother obtains a visa to enter Canada, the Court should exercise discretion and not order that the child be returned.
Subsequent to the above submission being made, the mother was offered a Temporary Resident Permit to enter Canada and remain for six months. The mother has been “temporarily exempt to pay the removal costs for the validity of the Temporary Resident Permit” (see exhibit R3).
Other evidence provided states that the mother, once in Canada, can apply for other permissions to remain in Canada which would, if granted, give her access to Government based financial benefits (pension) and medical services.
On 6 March 2015, the mother made further submissions.
In relation to the report of the Family Consultant it was submitted that the report demonstrates that the child would be exposed to a grave risk of psychological harm if separated from the mother. Counsel for the mother drew the Court’s attention to the Family Consultant’s report in relation to the effect on the child’s physical and psychological development in the event of such a separation.
It was submitted that in the event that the mother travels to Canada with the child, as permitted by the Temporary Residence Permit, she is only permitted to remain in Canada for six months, and is not permitted to work (I note other evidence that she can apply for a work permit). The mother has no savings and is reliant on Centrelink payments. It was submitted that the father’s assertion that he will meet the mother’s living expenses in Canada has not been supported by evidence that can to afford to do so.
Counsel for the mother drew the Court’s attention to the mother’s affidavit filed 11 April 2014, which set out the financial difficulties the mother and father experienced when living together. It was submitted that the father conceded a number of points in relation to this matter, including:
a)His work is weather dependent;
b)The mother and father had problems paying bills while together;
c)They lived with each of their parents at different times because they would not afford to pay the rent;
d)CAD $10,000 is owed to the hospital for the costs of the child’s birth (the father has said he will meet this cost); and
e)The mother owes CAD $1, 500 to the Canadian government for the cost of her removal from Canada. The father has said he will meet this cost.
It was submitted that the mother is not eligible for legal aid in Canada, should proceedings take place.
It was submitted that there is no timeframe for the completion of the hearing in Canada. It is further submitted that mother’s visa is only valid for six months, with no guarantee of an extension or the mother being permitted to remain in Canada following a hearing of the parenting matter.
It was submitted that in light of the following facts the Court would be satisfied the mother has established that a return order would expose the child to grave risk of psychological harm:
a)that the mother would not be able to support herself financially in Canada, and that there is no evidence that the father is able to support her financially;
b)that the child would suffer actual psychological harm if separated from the mother, which the father could not ameliorate;
c)that there are no conditions the court could make which would ameliorate the risks to which the child would be exposed if the Court orders his return; and
d)that the father agreed to the mother leaving Canada with the child, aware that she would not be eligible to return for at least one year; and
It was submitted that the Court should accordingly dismiss the application by the Department.

Discussion

The evidence satisfies me that were the mother unable to enter Canada accompanying the child on a return to that country pursuant to this Court’s order, there is a grave risk that the return order would expose the child to psychological harm and otherwise place him in an intolerable situation. Equally, a return order which placed the mother in a position where she was unable to be supported by the provision of sufficient and adequate housing, funds to attend to the personal needs of herself and the child pending the Canadian court being able to hear her case and medical costs indemnification would also expose the child to a grave risk of physical and psychological harm. It is possible, if not probable, that conditions could be made as prerequisites for a return order which would cause the Court to make a return order, notwithstanding the mother making out the defence above referred to. All those matters need to be considered by the Court with the assistance of further submission and possibly evidence.
I have reached that determination relying on the evidence of the Family Consultant together with the incontrovertible fact that all the potential carers for the child in Canada are virtual strangers to him.
Having so concluded, the reality is that the mother is now permitted to travel to Canada and so she can accompany the child to Canada on the return trip. That fact therefore means, and I do so find, there may no longer be the grave risk which would have prevailed had the mother been unable to enter the country, provided that satisfactory arrangements can be made for the support of the mother and child in Canada pending the Canadian court being able to hear the parties’ parenting proceeding.
As will be seen hereafter I have a concern that the father will not be able to satisfy the necessary conditions and, in such circumstances, there should be a time specified to enable to father to comply with any conditions imposed. In the event of his failing to do so, the order for return will lapse or be discharged.
As discussed at the time of the last hearing in this matter I propose to list the matter for further submission and evidence if necessary, relative to the imposition of conditions to be satisfied as a prerequisite to the implementation of the return order.
The mother argues that the Department has not established that the mother and the child can be properly supported in Canada while awaiting the Canadian court’s determination of the custody and access arrangements for the child’s future. The mother says there is no evidence that the father could fulfil his ambitious promise to support the mother and the child in Canada. She says the evidence shows that the father was unable to properly provide for the care of the mother before the child was born. The evidence is that the father has the same job he had whilst the mother resided with him in Canada before the child was born.
I accept what the mother says about the father’s financial circumstances and his apparent inability to support the mother and the child on his own, however that does not mean that, given the opportunity, he could not prevail on family or others to assist him in doing so for the time necessary to have the Canadian court hear their parenting case.
There are aspects of the father’s evidence which suggest disingenuousness. Those matters are as follows:
·There is no evidence he has contributed financially towards the support of the child since the child left Canada.
·The father has offered to pay the Canadian Government deportation costs for the mother of CAD $1,500, yet there is no evidence that he has done so.
·Notwithstanding that the child was born in 2012 the father has paid nothing towards the hospital bill generated by the birth. He said in his affidavit he was making arrangements to pay that account. On the evidence before the Court it seems the mother is primarily responsible to meet that payment. Thus upon her return it is reasonable to assume the hospital authorities will seek to pursue her for payment.
·Notwithstanding the evidence from both the father and the mother about the financial circumstances of their cohabitation before the mother was deported from Canada, the father has not provided any acceptable evidence which might satisfy the Court that he has the capacity to financially provide for the mother and the child upon their return to Canada.
The scope of conditions has been the subject of decisions of Australian and other convention countries’ courts.
In McDonald & Director-General, Department of Community Services NSW (2006) FLC 93-297 (“McDonald”) the Full Court considered the decisions dealing with the imposition of conditions. The Full Court said:
26.The extent of the jurisdiction to impose conditions was discussed in the majority judgment of the High Court in De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640; 139 ALR 417; 20 Fam LR 390; FLC 92–706, where Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said (citations omitted):
It should also be noted that, in its present form, the effect of reg 15(1) is to provide that, in making an order in relation to the return of a child from Australia, the court may include in its order a condition the court considers appropriate to give effect to the Convention.
In delivering the leading judgment in the Supreme Court of Canada in Thomson v Thomson, La Forest J said:
Given the preamble’s statement that “the interests of children are of paramount importance”, courts of other jurisdictions have deemed themselves entitled to require undertakings of the requesting party provided that such undertakings are made within the spirit of the Convention: see Re L [(Child Abduction) (Psychological Harm)], C v C [(Minor: Abduction: Rights of Custody Abroad)], P v P (Minors) (Child Abduction); and Re A (A Minor) (Abduction). Through the use of undertakings, the requirement in Art 12 of the Convention that “the authority concerned shall order the return of the child forthwith” can be complied with, the wrongful actions of the removing party are not condoned, the long-term best interests of the child are left for a determination by the court of the child’s habitual residence, and any short-term harm to the child is ameliorated.
Both the Supreme Court of Canada and the English Court of Appeal in C v C (Minor: Abduction: Rights of Custody Abroad) were concerned with Convention applications raising an issue as to whether the return of the child would expose the child to grave risk of psychological harm. In the latter decision, undertakings were given to the Court of Appeal by the father seeking return of the child to Australia. Butler-Sloss LJ said:
These undertakings are crucial to the welfare of the child, who has been sufficiently disrupted in his removal from his home and his country and needs as a priority an easy and secure return home. The mother has been the primary caretaker throughout his short life, and since the parting of the parents when he was three for all but access periods his sole caretaker. If possible, she should for his sake and not for hers be with him and help him to readjust to his return. The father should not be instrumental in putting obstacles in the way of that easy return, or make difficulties once the child is back. It is essential that the judge hearing the future issues of custody and access or indeed the Australian Family Court should have the opportunity to consider the welfare of the child as paramount without emergency applications relating to the manner of the return of the child.
It is impossible to identify any specific and detailed criteria which govern the exercise of the power whereby the court may impose such conditions on the removal of the child “as the court considers to be appropriate to give effect to the Convention”. Many of the criteria which may be applicable in a particular case are illustrated in the above passages from the Canadian and English decisions. The basic proposition is that, like other discretionary powers given in such terms, the court has to exercise discretion judicially, having regard to the subject matter, scope and purpose of the regulations.
27.In Re M(Abduction: Undertakings) [1995] 1 FLR 1021 at 1025 Butler-Sloss LJ explained the role of undertakings in eliminating and alleviating the risk to a returning child when her Ladyship said:
It is perhaps helpful to remind those engaged in Hague Convention applications about the position of undertakings or conditions attached to an Art 12 order to return. Such requirements are to make the return of the children easier and to provide for their necessities, such as a roof over the head, adequate maintenance, etc, until, and only until, the court of habitual residence can become seized of the proceedings brought in that jurisdiction... This court must be careful not in any way to usurp or to be thought to usurp the functions of the court of habitual residence. Equally, the requirements made in this country must not be so elaborate that their implementation might become bogged down in protracted hearings and investigations... Undertakings have their place in the arrangements designed to smooth the return of and to protect the child for the limited time before the foreign court takes over, but they must not be used by parties to try to clog or fetter, or, in particular, to delay the enforcement of a paramount decision to return the child.
It would be helpful if realistic time-limits for the compliance with the undertakings were included in the orders to return the child, but in the absence of a specified time, clearly the court would consider a reasonable time and not allow the case to drag on with repeated applications to the court.
28.At the Fifth Meeting of the Special Commission to Review the Operation of the Hague Convention held at The Hague in November 2006, at which both Australia and Belgium were represented, the Commission noted:
1.8.1Courts in many jurisdictions regard the use of orders with varying names, eg stipulations, conditions, undertakings, as a useful tool to facilitate arrangements for return. Such orders, limited in scope and duration, addressing short term issues and remaining in effect only until such time as a court in the country to which the child is returned has taken the measures required by the situation, are in keeping with the spirit of the 1980 Convention.
29.It seems to us that if conditions are to be imposed to alleviate what would otherwise be a grave risk for the return of the child, then those conditions need to be clearly defined and be capable of being objectively measured as to whether or not the conditions have been fulfilled. The conditions need to be met before the return can take place. In the event that they are not met, the order needs to contain a mechanism that clearly recognises the return is no longer required to take place. All this needs to be done within a tight timetable to meet the requirements of the Convention that is founded upon the concept that prompt return to the place of habitual residence is appropriate to protect a child from the harmful effects of its wrongful removal or retention.
30.Recently the House of Lords in In re D (a child) [2006] UKHL51 set aside orders that required the return of a child to Romania four years after he had been removed from that country. Lord Hope of Craighead said:
4.…As the preamble to the Convention indicates, its purpose is to protect children from the harmful effects of their wrongful removal. The assumption on which the remedy of prompt return proceeds is that the state to which the child will be returned is the state of his habitual residence. Through no fault of his own, the child whose return is being sought in this case has now been settled for so long in this country that this assumption is scarcely tenable.
31.Whilst the delays in this case do not parallel the decision of the House of Lords, S, then barely six months of age, was removed from Belgium more than 18 months ago. The assumption that her return to Belgium will now best advance her welfare cannot be so readily made.
32.In the same case Baroness Hale of Richmond, when discussing the application of the exceptions to the mandatory return of the child said:
51.…there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention to require it.
33.Baroness Hale went on to say in par 52:
…Thus the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there. In many cases this will be sufficient. But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so. … No-one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm.
34.Her Ladyship seems to contradict the proposition advanced that in appropriate cases undertakings or conditions may be sufficient to alleviate an Article 13B defence when she says at par 55:
…It is common in article 13 cases to divide the issues into two. First, is one of the so-called “defences” there provided made out on the facts? Secondly, if it is, should the court exercise its discretion not to order the summary return of the child? It is possible to envisage circumstances in which a child should be returned despite the consent or acquiescence of the other party or the child’s own objections. But, as my noble and learned friend, Lord Brown of Eaton-under-Heywood, pointed out in the course of argument, it is inconceivable that a court which reached the conclusion that there was a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate.
35.Baroness Hale concludes at par 68 by reminding the reader that the Convention does not require the return of each and every child brought to this country without the consent of the other parent. There are some cases, albeit few in number, where this is not required.

Ultimately in McDonald the Full Court took the view that there were so many difficulties involved in establishing satisfactory preconditions to enable the return of the child to Belgium that the only proper exercise of discretion, once the grave risk exception had been established, was to refuse the return order.
What matters therefore need to be put in place as a pre-condition of return and which will ensure the “grave risk” established will be guarded against until such time as the Canadian court can exercise the jurisdiction there reposed?
Some of the matters which emerge as probably requiring consideration when the Court is looking at possible pre-conditions to the return order are as follows:
·Provision of sufficient funds to meet the reasonable accommodation costs of the mother with the child during the period they will be required to be in Canada before the courts of that land can make orders (albeit interim) to deal with parenting and financial support.
·Provision of funds sufficient to meet the other reasonable living costs of the mother during that time.
·A determination of the amount the father should contribute by way of child support.
·Provision for the meeting of any of the mother’s medical costs which arise during the time she is in Canada.
The mother submits that she will need the assistance of a lawyer to represent her in the Canadian courts. The evidence suggests that she will not be eligible for legal aid in that country.
I propose to make the return order sought by the Department subject to the preconditions first being met. The mother says there are so many conditions that the Court should in the circumstances dismiss the application. If it is not possible to set preconditions then the application should be dismissed.
Regulation 15(1)(c) of the Regulation reminds the Court of the obligation to “give effect to the convention” when considering the imposition of conditions for a return order:
(c) include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
The effect of the above regulation, together with the objects of the Regulation does require, in my view, that the Court formulate conditions in circumstances such this case, if that be possible, and not so wide ranging as to require the discretion to be exercised by a refusal to make a return order.

Conditions:

Having concluded that there should be a return order made subject to appropriate conditions being imposed so as to remediate the potential of the child being exposed to risk of emotional danger, the matter was relisted in order for each of the parties to address any further evidence and submissions to deal with the question of conditions.

Hearing 8 May 2015

The mother relied on a further affidavit sworn by her solicitor, Ms Maitland, on 30 April 2015. In that document she specified the conditions which she would ask to Court to impose. Those conditions deal with the following matters:
a)That the father be required to commence parenting proceedings in the relevant Canadian court and with the court being notified that upon the mother’s arrival in Canada, she will move the court to relocate the child to Australia. The father is also to provide written confirmation of the father’s commencement of these proceedings within 14 days of the orders of this Court.
b)That the father meet the outstanding costs of CAD $1,500 to the relevant Canadian authorities, such cost being imposed upon the mother’s deportation from Canada on 23 July 2013;
c)That the father cover the cost of air travel from Sydney to Canada for the mother and the child;
d)That the father pay for and provide to the mother an open ticket for air travel from Canada to Sydney for the mother and the child, such air travel to be used by the mother only in the event of the Canadian court permitting the mother to relocate with the child to Australia, or with the written consent of the father;
e)That the father pay CAD $2,755 per month during the time that the mother is required to remain in Canada for the determination of the parenting proceedings in the Canadian court. The mother seeks a payment by way of lump sum advance to cover a period of 12 months residence in Canada during the currency of the parenting proceeding; and
f)That the father pay the mother’s legal costs of the proceedings in Canada and an amount of CAD $30,000 be paid by way of advance.
The mother requests that if she is required to return to Canada, she have sufficient funds to meet her reasonable costs of living and those of the child. She asks for (expressed in Canadian Dollars) $940 per month to cover a two bedroom apartment, $1,215 per month to cover food costs, $300 a month for utility expenses, $200 a month for health insurance and $100 a month for public transport. This constitutes a total sum of CAD $2,755 per month. The mother annexed to her affidavit a list of advertisements for rental accommodation in the E Town area, ranging from CAD $722 a month for a one bedroom apartment to CAD $939 a month for a two bedroom apartment. The mother sets out details of how she has calculated expenses for food and household expenses, phone and data utilities, and the other costs which she has sought.
The Department relies on a number of affidavits, the first being that of Ms N (“Ms N”) sworn 6 May 2015. She is legal counsel for the Ministry of Justice in the province of State H. She has met with the father. He informed her that he agrees to commence a family law proceeding in the Provincial Court of State H, Canada, within 14 days of return order being made by the Australian Court. She confirms that the mother has been approved for re-entry into Canada without payment of the CAD $1,500 bill. A member of the father’s family has paid the CAD $200 fee required for the temporary resident permit to be issued to the mother. She attaches to her affidavit an email dated 6 May 2015 from acting director Immigration Division case management branch in Canada, confirming, upon payment of the CAD $200 fee, the CAD $1,500 repayment is no longer required in order for the mother to re-enter Canada.
The father agrees to pay the airline ticket for the child to return to Canada if a return order is made. He says that he cannot afford to pay the flight for the mother as well. He will not provide the mother with an open-ended ticket to return to Sydney for Canada. He says the mother should apply for an order for him to meet that flight cost if she obtains an order enabling her to remove the child from Canada to Australia. He will comply with that court order. I note such offer or statement to comply with a court order seems incongruous with his other statement that he could not afford to meet such a cost.
In relation to the monthly amount sought by the mother for her support, the father says the amount is greater than he makes in wages each month. It is suggested that the mother could apply for citizenship and for a work permit when she arrives in Canada. She could also apply to the Canadian courts for a support order.
Ms N says that, in relation to legal expenses, the father does not agree to pay legal expenses. She suggests the mother might apply for legal aid from the Legal Services Society of State H. She points out that parties can appear for themselves in proceedings in the Provincial Court of State H. She says that Duty Counsel provide legal assistance to those who do not qualify for legal aid free of charge.
The Department also relied on an affidavit from the father sworn 29 April 2015. He attached a copy of a maintenance calculation prepared by his solicitor. He says he is able to pay the amount stated in calculation one, as well as the child’s medical services plan monthly premium. He also attached a statement of remuneration paid to him during the 2014 tax year. Annexure A to the affidavit of the father is somewhat difficult to follow, however, it seems that a monthly payment of spousal support of CAD $217 may be indicated and a child support payment of CAD $172 per month may be indicated.
The father’s statement of remuneration paid to him during 2014 year shows his gross income as CAD $19,779 with income tax deducted of CAD $1,581. However, other evidence of the father is that during the winter months his work as a “roofer” is restricted and his income reduces accordingly. In the winter months he may not have sufficient income to meet a payment based on an annualised income figure.
The Department relied on an affidavit of Ms K (“Ms K”). She is a legal counsel with the Ministry of Justice for State H. She is the delegated Central Authority for State H for the purpose of the Convention. She advises that the medical services plan (“MSP”) in place for State H residents has been paid in respect of the child by his father during the entire time he has been in Australia. If the child is returned to State H, his MSP insurance will be in place on his return.
Further, Ms K says the Provincial and Federal governments in Canada provide non-taxable monthly payments to low income families. The website indicates that a person does not have to be a permanent resident or citizen of Canada to receive these benefits. If the mother returns to State H with the child and is found to be a resident of Canada for tax purposes (different to the residency required for immigration purposes), she may be entitled to receive funds on account of the child. These include Canada Child Tax Benefit, National Child Benefit Supplement, State H Early Child Tax Benefit, Goods and Services Tax Credit. Ms K says that the benefits which could flow to the mother are described in exhibit A to the affidavit of the father, sworn 24 April 2015, showing an entitlement of CAD $395 in government benefits and credits per month. She further advised that the general minimum wage in State H is CAD $10.25 per hour.
The Department on 8 May 2015 filed further submissions in relation to conditions which the Court may impose as pre-conditions to the return order being affected. The Department argues that the conditions sought by the mother are onerous and mostly unable to be met by the father. It is submitted that the conditions sought invite an inappropriate interference with the matters which will properly be before the Canadian courts. It is submitted that the conditions go well beyond that which is proper and necessary to protect the child from a grave risk that his return will expose him to physical or psychological harm or otherwise place him in an intolerable situation.
The Department referred the Court to the 2014 decision of the Full Court in Wolford & Attorney-General’s Department [2014] FamCAFC 197. In that case, the Full court referred to the decisions in McDonald. The Full Court set out at paragraph 75 that “It follows that in making it easier for children in their place of habitual residence, undertakings or conditions should not be imposed which are unnecessary or, rather than give effect to the abduction convention undermine it.”
The Department referred to the words of Butler-Schloss LJ in Re M (Abduction: Undertakings) [1995] 1 FLR 1021 at 1025 that:
Such requirements are to make the return of the children easier and to provide for their necessities, such as a roof over the head, adequate maintenance, etc, until, and only until, the court of habitual residence can become seized of the proceedings brought in that jurisdiction.
In the oral submissions of the Department, it was put that the father might be required to file an application and obtain a return date for the parenting proceedings in Canada. The Department confirmed the father’s position is that he has no money to pay a bond. It was submitted that a period of six to eight weeks is all that is required to be the subject of financial conditions. That is the time it might reasonably be predicted it would take to have the parenting applications before the Canadian courts. It was submitted that the mother’s Australian pension payments will continue for a period of six weeks following her departure from Australia and she now has about CAD $1,240 per month from that source.
The Department conceded that the orders to be made by the Court for return could be constructed around the proximity to the return date to the father’s application. Further, it was conceded that the father could be required to pay child support to the mother before she departs.
The mother provided further submissions. The mother will need an up-front payment to obtain housing immediately when she steps off the plane in Canada.
In answer to my question, the mother said it is not clear whether she is able to open a bank account in Canada before she arrives in that country into which any payments required as pre-conditions could be made.

Conclusion

The conditions which are, in my opinion, required to be imposed in order to uphold the Convention, meet the needs of the child (determined to be at grave risk of harm, should he be returned without his mother) and the mother until the Canadian court can hear the parenting case are as follows:
a)That the father pay for the airfare for the mother and the child from Australia to Canada.
b)That the father have commenced proceedings in the Canadian court and served the mother with a copy of those proceedings so that she might enter an appearance and file a response before she returns to Canada.
c)That the father move the Canadian court in which he has instituted parenting proceedings to appoint a date for the urgent hearing of necessary interim orders providing for the proper support of the mother and the child together with any other interim orders which each party might seek in that court. Upon the court allocating such a date the father is to provide notice of such date, together with a copy of any court order made relevant to that date, prior to the mother being required to leave Australia for Canada with the child pursuant to the other orders made herein.
d)That the father is to provide the sum of CAD $1,000 to the mother by depositing to a bank account nominated by the mother in Canada or in the event of the mother not having access to a bank account in Canada the funds are to be deposited in the equivalent of Australian dollars to an Australian bank account nominated by the mother. This fund is intended to cover the accommodation costs of the mother and the child upon their immediate arrival in Canada during the period it may take to find suitable and affordable rental accommodation for them to occupy.
e)The father is to pay to his lawyer the sum of CAD $3,210. Such sum to be retained upon trust for the father and mother and to be paid to the mother at the rate of CAD $535 per week as and from the time of the arrival of the mother and the child in Canada until such time as the Canadian court is ceased with the matter and makes some other order in relation to the fund and or the maintenance payment to be made to the mother. The father’s lawyer is to advise the mother in writing that he holds such funds and instructions to pay same out to the mother as required by this pre-condition before the mother and the child are to be required to travel to Canada pursuant to the courts order.
The mother will need a fund immediately available to meet her accommodation costs in Canada. The provision of CAD $1,000 in my view will be sufficient to obtain hotel or motel accommodation for a few days while the mother searches for an apartment or other rental accommodation.
If the mother is to receive all the income as predicted in these reasons, then she will have CAD $ 1,240 per month from her Australian pension for a period of six weeks. She will receive CAD $172 per month child support from the father and CAD $217 per month spouse support from him. She will receive CAD $395 per month as a Canadian government payment, making a total of CAD $2,024 per month.
The mother estimated monthly requirements in Canada as follows (expressed in Canadian dollars):
(i) two bedroom apartment $940 per month;
(ii) food for the mother and the child of $1,215 per month;
(iii) phone $300 per month;
(iv) health insurance the mother and the child of $200 per month and;
(v) public transport $100 per month.
That then makes a total of CAD $2,755 per month.
Thus it can be seen that the available income is short of her reasonable needs.
The only expense which might reasonably be considered reducible is the cost of rental with the mother opting for a one bedroom accommodation. However, even in those circumstances, her expenses will be more than her available income. She will therefore have a need of CAD $731 per month (CAD $169 per week) assuming she is able to access immediately all the Canadian benefits and payments from the father for spouse maintenance and child support.
In my assessment it is reasonable that the mother be able to access from a fund the sum of CAD $349 per week for a period of six weeks following her arrival in Canada (being the weekly difference between the amount she will receive from her Australian Government payment and her weekly expenses as calculated above). In calculating that sum I have assumed there will be certainty of the mother receiving her Australian Government assistance during that six week period and therefore she will have CAD $1,240 per month from that source (CAD $286 per week). However there is no certainty that she will have immediate access to any payments emanating from the Canadian Government or the father’s child support and spouse maintenance. It is reasonable to assume that those payments may take some weeks to be processed by the Canadian Government and its’ agencies. In that circumstance the sum to be lodged with the father’s legal representative is to be CAD $2,094 which represents six weeks of CAD $349 per week.
Clearly if the mother is permitted by the Canadian courts to remove the child from Canada again for the purpose of returning to Australia, she will face a hurdle in meeting the cost of air transport. I do not consider it appropriate to pre-empt the decision of the Canadian court and require the father meet the costs of return travel to Australia for the mother and the child as a pre-condition to their return.
I propose to order the return of the child the child in the company of the mother to Canada upon the pre-conditions being met as outlined above.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 22 May 2015.

Associate:

Date: 22 May 2015