Kingsley and Secretary, Department of Communities and Justice (No. 2)
[2021] FamCAFC 144
•6 August 2021
FAMILY COURT OF AUSTRALIA
Kingsley & Secretary, Department of Communities and Justice (No. 2) [2021] FamCAFC 144
Appeal from: Department of Communities and Justice & Kingsley [2020] FamCA 937;
Department of Communities and Justice & Kingsley (No. 2) [2021] FamCA 308
Appeal number(s): EAA 164 of 2020
EAA 59 of 2021File number(s): SYC 5852 of 2020 Judgment of: STRICKLAND, TREE & GILL JJ Date of judgment: 6 August 2021 Catchwords: FAMILY LAW – APPEAL – HAGUE CONVENTION – Appeal from orders requiring the return of the child from Australia to Canada pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) – Habitual residence – Adequacy of reasons – Where the primary judge made no error in determining the child’s habitual residence as Canada at the date of wrongful retention – Grave risk – Where the mother could not establish grave risk upon the child’s return – Appeal dismissed.
FAMILY LAW – APPEAL – HAGUE CONVENTION – Appeal from an order dismissing an application to discharge the return order pursuant to reg 19A of the Regulations – Leave to appeal – Where circumstances have not arisen since the return order was made which make it impracticable for it to be carried out – No exceptional circumstances – Where COVID-19 pandemic by itself and without more would not compel the discharge of return orders generally – Appeal dismissed.
FAMILY LAW – APPLICATIONS IN AN APPEAL – FURTHER EVIDENCE – Where the further evidence was only relevant if this Court re-exercised the discretion – Where there is no re-exercise – Applications dismissed.
Legislation: Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 16, 19A
Family Law Regulations 1984 (Cth) reg 15A(2)
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Department of Communities and Justice & Kingsley (No. 2) [2021] FamCA 308
Department of Communities and Justice & Kingsley [2020] FamCA 937
Genish-Grant v Director-General, Department of Community Services (2002) FLC 93-111; [2002] FamCA 346
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kingsley & Secretary, Department of Communities & Justice [2021] FamCAFC 10
LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
Division: Appeal Division Number of paragraphs: 77 Date of hearing: 26 July 2021 Place: Heard in Sydney, delivered in Cairns Counsel for the Appellant: Mr Anderson Solicitor for the Appellant: Kilpatrick Hatton Solicitors Counsel for the Respondent: Ms Hartstein Solicitor for the Respondent: DCJ Legal, Department of Communities and Justice ORDERS
EAA 164 of 2020;
EAA 59 of 2021
SYC 5852 of 2020APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS KINGSLEY
Appellant
AND: SECRETARY, DEPARTMENT OF COMMUNITIES & JUSTICE
Respondent
ORDER MADE BY:
STRICKLAND, TREE & GILL JJ
DATE OF ORDER:
6 AUGUST 2021
THE COURT ORDERS THAT:
1.The appellant’s Application in an Appeal filed 22 January 2021 be dismissed.
2.The respondent’s Application in an Appeal dated 28 January 2021 be dismissed.
3.Appeal EAA 164 of 2020 be dismissed.
4.Appeal EAA 59 of 2021 be 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 & Secretary, Department of Communities and Justice (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, TREE & GILL JJ:
INTRODUCTION
On 11 November 2020, a judge of the Family Court of Australia made orders pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) requiring the return of X, born in 2019 (“the child”) from Australia to Canada.
Ms Kingsley (“the mother”) filed an Amended Notice of Appeal against those orders (“the first appeal”). That appeal was originally listed to be heard by the Full Court on 5 February 2021, however, at the outset of that hearing, the Court was advised that the mother had filed an application pursuant to reg 19A(2) of the Regulations, in which she contended that since the order was made, circumstances had arisen that made it impracticable for it to be carried out, and/or exceptional circumstances existed, that justified the return order being discharged. In those circumstances, the Full Court adjourned the hearing of the appeal to a date to be fixed to allow the reg 19A application to be heard and determined (Kingsley & Secretary, Department of Communities & Justice [2021] FamCAFC 10).
On 11 May 2021, the primary judge heard that application and on 17 May 2021 gave reasons for ordering that the mother’s reg 19A application be dismissed. The mother thereafter also appealed that order (“the second appeal”).
On 25 June 2021, the appeal registrar ordered that both appeals be consolidated and heard at the same time.
The Secretary, Department of Communities and Justice (“the Secretary”) resists both appeals. Mr B (“the father”) did not participate in either appeal.
On 26 July 2021, this Court heard both appeals and reserved its decision in relation to them. This is that decision and the reasons for it.
BACKGROUND
The mother is an Australian citizen and is resident in Australia. The father is a Canadian citizen and is resident in Canada.
The parents commenced cohabitation in late March 2019, after the mother travelled to Canada on about 19 May 2018 on a two year Working Holiday visa.
In May 2019, the parents travelled together to Australia to visit the mother’s family. Whilst on this visit, and after their return to Canada, the parents had discussions about them moving to live permanently in Australia.
In 2019, the child was born in Canada.
In late November or early December 2019, the parents booked tickets for the mother and the child to travel to Australia in February 2020 to visit the mother’s family. In order to facilitate this travel, both parents signed a consent letter for the mother and the child to travel to Australia from 30 January 2020 until 2 March 2020. Also, around this time, the parents were in the process of applying for permanent residency for the mother in Canada, and a solicitor had been instructed and fees paid for this purpose.
On 1 February 2020, the mother arrived in Australia with the child. The child and mother have remained in Australia since.
After 2 February 2020, the parents engaged in various communications surrounding the mother’s wish to remain in Australia with the child.
On 18 February 2020, the child was granted Australian citizenship by descent.
On 30 April 2020, the mother emailed to the father a document titled “Parenting Agreement” which ultimately provided for the child to live with the mother in Australia. In response to that email, the father then emailed to the mother a similar document, but which provided for the child to return immediately to Canada whilst their co-parenting agreement was being finalised.
On 19 May 2020, the mother’s Canadian Working Holiday visa expired.
On 17 June 2020, the father applied for a return order through the relevant Central Authority, and on 25 August 2020 an application was filed in the Family Court of Australia by the Secretary.
REASONS FOR JUDGMENT
The first appeal
The primary judge outlined in her first set of reasons for judgment (Department of Communities and Justice & Kingsley [2020] FamCA 937 at [6]) the relevant provision of the Regulations which mandates when the Court must make a return order for a child between contracting states to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). The provision is reg 16 of the Regulations and provides as follows:
16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(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; or
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
As the primary judge acknowledged (at [7]), she was under an obligation to make a return order for the child if the conditions for a return order were satisfied under subregulations (1) and (1A), unless one of the matters in subregulation (3) had been established.
At the trial, the mother resisted the making of a return order on four bases, those being:
·that at the time of the retention, the child was habitually resident in Australia;
·that the father, before the child left Canada, had consented to her remaining permanently in Australia;
·that the father, after the child left Canada, had acquiesced to her remaining permanently in Australia; and
·that there was a grave risk that the return of the child would expose her to physical or psychological harm.
The primary judge considered the evidence of the events leading up to the mother and child leaving for Australia, and what occurred whilst they were in Australia (at [9]–[49]). Her Honour then considered the four matters relied upon by the mother in light of that evidence.
In considering the habitual residence issue, the primary judge determined that the date of the wrongful retention of the child in Australia was 2 March 2020, which was the date her Honour determined the mother told the father she did not intend to return the child to Canada (at [58]).
Her Honour found that by the retention date, neither the child nor the mother had become settled or assimilated in Australia (at [59]–[60]), and that until 16 February 2020, the mother regarded herself as being in a committed relationship with the father (at [61]). In concluding the habitual residence issue, the primary judge rejected the proposition put by the mother that “on 16 February 2020, the child was habitually resident in Australia” (at [63]).
As regards to the three positive defences relied upon by the mother, these were all rejected by the primary judge. Therefore her Honour made the return order the subject of the first appeal.
The second appeal
In the primary judge’s second set of reasons (Department of Communities and Justice & Kingsley (No. 2) [2021] FamCA 308), her Honour recited reg 19A(2) of the Regulations and indicated that the mother was relying upon subparagraphs (b) and (c) of that provision, as follows:
5 …
(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) …
(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 primary judge addressed the mother’s contentions in relation to each of those matters. In relation to reg 19A(2)(b), her Honour found that the circumstances relied upon by the mother had not arisen since the making of the return order (at [14]–[20]), and hence the question of impracticability did not arise.
Turning to the matters relied upon under reg 19A(2)(c), the mother’s contentions were:
·she could not afford the costs of travel to return the child and herself and the costs of their quarantine in Canada;
·she is not eligible for a visa permitting her to enter and work in Canada; and
·the Australian Government Smarttraveller website advises in relation to Canada “do not travel”.
The first contention was not accepted as proved by the primary judge, due to the mother not providing full and frank disclosure of her financial circumstances (at [47]). Particularly, her Honour noted that the mother had been able to fund her legal fees of not less than approximately $24,000, and thus her failure or refusal to fund her return was neither a matter which frustrated the order (at [53]) nor an exceptional circumstance (at [43]–[48]). Her Honour also noted that in any event, it was not a condition of the return order that the mother also travel to Canada with the child (at [51]).
As to the second matter upon which the mother relied, the primary judge found the mother had not demonstrated that she was unable to travel to Canada (at [64]).
Her Honour then considered the third contention, namely, whether the COVID-19 pandemic constituted an “exceptional circumstance”. The primary judge observed that the pandemic had not been relied upon in support of the mother’s grave risk contention at the November 2020 hearing, despite its then prevalence. Her Honour further held that she was directed to no cogent “evidence as to the current state of the pandemic in Canada, such as a publication by a Canadian government, or C Province instrumentality” (at [67]). Rather, her Honour found, the mother had sought to rely upon a newspaper article which her Honour found to be less than “cogent, credible, reliable and capable of proving the fact” (at [67]). Nor was her Honour directed to any evidence of the risk posed to the child if she were to return (at [65]–[68]). After referring to a number of cases where courts have considered making return orders during the pandemic, her Honour could not find “that the existence of the pandemic alone constitutes an exceptional circumstance” (at [80]).
APPLICATIONS TO ADDUCE FURTHER EVIDENCE
The mother’s application filed 22 January 2021
On 22 January 2021, the mother filed an application to adduce further evidence in the first appeal. That further evidence comprised of an affidavit filed on the same date together with an affidavit filed previously on 9 December 2020 in relation to the mother’s stay application. Those affidavits depose to the then current situation regarding the COVID-19 pandemic, the travel restrictions in place between Australia and Canada, and the costs of the mother and the child returning to Canada.
Subsequently, the mother (and the Secretary) updated the evidence in the course of the mother’s application to discharge the return order. Before us, both parties sought that the material in the second appeal be part of the material considered in the first appeal. We were content to permit that course. However during the course of argument, it became apparent that the real purpose of at least the material sought to be included by the 22 January 2021 application, was only in relation to any re-exercise of the discretion being exercised by the primary judge. As we shall shortly explain, the occasion for re-exercise does not arise, and it follows that the mother’s application should be dismissed.
The Secretary’s application dated 28 January 2021
On 28 January 2021, the Court received an application by the Secretary to adduce further evidence in the first appeal, however, like the mother’s application, it was relevant only to any potential re-exercise. For the same reasons as the mother’s application ought be dismissed, so too should the Secretary’s.
THE FIRST APPEAL
The primary judge’s reasons in relation to the issue of habitual residence are the subject of Grounds 1–6 of the first appeal, and thus these grounds may be dealt with together.
Grounds 1–6
1.The primary judge…erred at law in failing to adequately expose the process of reasoning which led to her Honour’s decision with respect to the habitual residence of the [child].
2.The primary judge erred in her finding that habitual residence of the [child] was Canada and ought to have found that by 2 March 2020 the mother and the child’s habitual residence had changed to Australia.
3.Alternatively, the primary judge erred in her finding that habitual residence of the [child] was Canada and ought to have found that by 2 March 2020 the mother and the child’s habitual residence was no longer Canada.
4.The primary judge failed to give proper genuine and realistic consideration to the factual background and merits of the [mother’s] case with respect to habitual residence by failing to have any or adequate regard to all of the evidence which was material to that determination including the very young age of [the child], and evidence that tended to show that the “…younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.” (LK v Director-General, Department of Community Services [2009] HCA 9 (“LK”) at [27]).
5.The primary judge erred in law with respect to the determination of habitual residence by elevating the intentions of both of the parents to “controlling weight”.
6.The primary judge erred in failing to determine habitual residence of the child at the time of the alleged retention, which was alleged to have been 2 March 2020 and instead determined habitual residence at 16 February 2020 (at [63]).
The first ground of appeal challenges the primary judge’s adequacy of reasons in determining the issue of habitual residence.
In Bennett and Bennett (1991) FLC 92-191, the Full Court (at 78,266) adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)The appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)Justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
However, it is not necessary for a judge who is exercising a discretionary judgment to detail each fact which he or she has found to be relevant or irrelevant, nor is a judge required to make an explicit finding on each disputed piece of evidence (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney JA at 386).
Under the heading “HABITUAL RESIDENCE” in the primary judge’s reasons, her Honour recited the relevant authorities in relation to the factors which she must have regard to in determining habitual residence. Notably, her Honour relied on the following passage of LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) from [28] where the High Court stated:
28Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
29First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous…
…
33Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.
34Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day to day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
35It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
The primary judge then went on to determine the child’s place of habitual residence as follows:
57It is not, and could not, be asserted that on the date immediately before she left Canada, [the child’s] habitual residence was not in Canada.
58The relevant date of the asserted wrongful retention of the child in Australia was 2 March 2020, the date on which the [mother] told the father that she did not intend to return [the child] to Canada.
59By that time, [the child] had been in Australia for no more than a month, during which time she had not become settled in Australia, formed ties with Australia, started any child care arrangement, assimilated with Australia or achieved “social and economic integration”.
60The evidence does not support an assertion that, by 2 March 2020, the [mother] had established “the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration…”
61The [mother] does not state that she came to Australia with the intention of remaining. She had no employment and, on her own evidence, until 16 February 2020, she regarded herself as being in a committed relationship with the father.
62More importantly, [the child’s] father had not consented to a change of habitual residence and her habitual residence could not be unilaterally changed by her mother.
63I do not accept that, on 16 February 2020, the child was habitually resident in Australia.
Those reasons, whilst brief, are nonetheless a fulsome and explicit articulation of the bases for her Honour concluding the child was habitually resident in Canada at the time of her retention in Australia. Insofar as it was sought to be argued under this ground that the primary judge failed to explain why 2 March 2020, rather than some other date, and particularly 16 February 2020, was the date of retention, we shall address that in discussing Ground 6.
In Grounds 2–5, it is contended that the primary judge’s focus was on the intention of the parents, rather than on all the matters of fact in relation to the habitual residence of the mother and the child. In her summary of argument, the mother refers to the evidence of her registering the child as an Australian citizen, and purchasing a motor vehicle in Australia with the assistance of the paternal grandmother before 2 March 2020. The mother also relies upon the fact that she later obtained employment and that the child was enrolled in day care in Australia, and further, that she obtained accommodation and is in a permanent relationship with her new partner in Australia. The mother contends that the primary judge failed to engage with that evidence and/or failed to give adequate reasons for rejecting it. Further, the mother contends that that evidence ought to have led the primary judge to find that, by 2 March 2020, the mother and the child’s habitual residence had changed to Australia, or at least was no longer in Canada.
The mother relies upon LK at [28] for the proposition that, in determining where a child’s habitual residence is, the parents’ intentions are not to be given controlling weight, and by doing so the primary judge fell into error. However, not only is it abundantly clear that the primary judge was aware of this aspect of the High Court’s decision, as her Honour refers to this very passage in her reasons, but she did not in fact give the parents’ intentions controlling weight. At [59]–[61] her Honour can be seen to deal with both issues relating to parental intention, and to other issues bearing on the question of the child’s assimilation into Australia. Thus, it is unclear how her Honour’s consideration of the parents’ intention can be said to have predominated the other factors which were considered in determining the issue of habitual residence.
More, the only matter of any materiality that had occurred between the mother’s arrival in Australia, and 2 March 2020, was that she had formed a new relationship and changed her mind about returning to Canada. Leaving to one side that such alone would be unlikely to lead to the conclusion that the child’s place of habitual residence had thereby changed, what the mother seeks to do is precisely that which the High Court in LK warns about, namely, to give her intentions controlling weight. Further, as LK at [34] emphasises, the mother could not unilaterally change the child’s place of habitual residence. Counsel for the mother’s argument that the father’s communications with the mother prior to 2 March 2020 were consistent with him agreeing to a change of the child’s place of habitual residence cannot overcome the unchallenged finding by the primary judge at [83] that the father had always insisted that the child should be returned to Canada.
The primary judge’s reasons in relation to habitual residence are, as we have already said, adequate. 2 March 2020 was, as the evidence indisputably established, the date when the parties had agreed the child would return to Canada, and the date of wrongful retention asserted by the Secretary. Given that the mother had agreed to return the child to Canada by 2 March 2020, but failed to do so, those facts compel the conclusion that was the date of wrongful retention. No elaborate reasoning is needed beyond a statement of the facts.
These grounds fail.
As to Ground 6, it is true that at [63] the primary judge refers to 16 February rather than 2 March, as a date relevant to the child’s habitual residence. Given the reference at [60] to the child’s circumstances as at 2 March 2020, the later reference to 16 February 2020 is merely the primary judge engaging with the mother’s contention that she announced her decision to terminate the parties’ relationship on that date, which on one view, might have provided a basis for concluding that the wrongful retention occurred earlier than the Secretary contended. If so, then the reference to 16 February 2020 is perfectly explicable.
However, even if that was not what her Honour was doing, and there was a misstatement in [63] as to the date of retention being considered, we are far from persuaded that such infelicity can be legitimately construed as material in the circumstances of this case, and given the reasoning at [58]–[60], to the ultimate determination that the retention was wrongful because the child was habitually resident in Canada immediately before her retention in Australia. More, given what her Honour said at [58]–[60], there is no deficiency in the exposure of her Honour’s reasoning.
Ground 6 fails.
Ground 7
7.The primary judge erred in failing to find that there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
Ground 7 challenges the primary judge’s finding that there was no grave risk to the child in making an order for her return. It is in this context that the evidence in the second appeal assumed prominence during the course of argument before us.
Before the primary judge, counsel for the mother conceded that the material then before the Court could not support a finding of grave risk arising from COVID-19 (Transcript 5 November 2020, p.45 lines 26–27). Rather it was the mother’s primary case that the alleged grave risk of harm to the child, if a return order was made, was a decline in the mother’s mental health, with a consequential deleterious effect on the child. Her Honour considered the mother’s medical records and found that they did not “assert that there is any risk to the [mother’s] mental health posed by her returning to Canada to allow a Canadian court to determine where [the child] should live” (at [95]).
The mother also made assertions of past family violence on behalf of the father, but the primary judge found there was no evidence of family violence as defined under the Family Law Act 1975 (Cth) (at [94]).
Ultimately, the primary judge concluded that the evidence relied upon to establish the defence of grave risk fell far short of the “clear and compelling” evidence which is required (at [97]).
In her summary of argument, the mother submitted that the effect upon her mental health of a return to Canada, where she alleges she had previously suffered from emotional distress and mental health issues, coupled with the effects of the global pandemic and difficulties in travel arrangements caused by restrictive entry requirements in Canada, were, in combination, sufficient to engage the exception under reg 16(3)(b) of the Regulations.
However, in oral argument, counsel for the mother ultimately conceded that the grave risk now being advanced was that the child and/or the mother may contract COVID-19 in Canada. But the difficulty which that contention meets, leaving aside that such evidence as there is, is now quite outdated, is that there was no evidence whatsoever as to rates of infection in Canada, the extent to which the Canadian population has been vaccinated against COVID-19, or the levels of hospitalisation or morbidity in Canada associated with the virus.
Perhaps given that paucity of material, counsel for the mother contended that the current Australian Government Travel Advisory, which says travel to Canada should not be undertaken, of itself and without more, establishes a grave risk of harm to the child if returned to Canada. In this regard, leverage was sought to be obtained from the Court’s earlier decision of Genish-Grant v Director-General, Department of Community Services (2002) FLC 93-111 (“Genish-Grant”).
This argument is devoid of merit. The risk in Genish-Grant was direct physical harm from military attack upon Israel. The Australian Government Travel Advisory warned against travel in those circumstances. That is a completely different situation to that which arises here, as the risks posed by COVID-19 are world-wide, including in Australia. Moreover, the risks are able to be mitigated by individuals, for example by vaccination.
This ground fails.
THE SECOND APPEAL
The mother did not seek leave to appeal. We invited submissions from the parties as to whether, given that dismissal of the mother’s discharge application would likely not preclude one or more subsequent applications for discharge, such a dismissal might be interlocutory in nature, and not pertaining to a “child welfare matter” as defined in reg 15A(2) of the Family Law Regulations 1984 (Cth). If those matters were correct, then leave to appeal was required.
Although we heard argument on the point, ultimately it is not necessary to determine it, because as we shall shortly detail, the appeal is devoid of merit and necessarily must fail.
The grounds of appeal in the second appeal were addressed by the mother in groups, which for convenience we shall also adopt.
Grounds 1, 2, 3 and 5
1.The Primary Judge…erred at law in failing to accord the provisions in Regulation 19A (2) (b) and 19A (2) (c) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) their proper meaning.
2.The Primary Judge…erred in failing to have regard to the State of Emergency declaration as a circumstance which has arisen on multiple occasions since the order of 11 November 2020.
3.The Primary Judge ought to have found that the State of Emergency is a public health emergency declared in C Province and is a condition declared both before and after the order of 11 November 2020 having first been declared on 18 March 2020 as a temporary measure and renewed multiple times since the order on a 2 weekly basis since then by separate declarations, and thus is not a static matter that occurred prior to the order and was therefore declared after the order was made on expiry of the prior State of Emergency declaration: see Annexure C to Affidavit of Ms Kingsley 4 May 2021 (page 34). Accordingly, this is a circumstance which makes it "impracticable for the order' of 11 November 2020 to be carried out.
5.The Primary Judge failed to have any sufficient regard to the fact that the official Government travel advisory for Australia is to "not travel to Canada" due to health risks from COVID-19 and therefore it is not only impracticable for the order of 11 November 2020 to be carried out but also constitutes an exceptional circumstance which justifies the order being discharged.
Ground 1 appears to be a criticism of the primary judge’s failure to consider all of the facts collectively and to holistically weigh them in determining whether it was impracticable for the return order to be carried out. However this argument overlooks that it is only “circumstances that have arisen” since the return order was made that are the focus of the court’s consideration.
Under this ground, the mother also contended that the primary judge did not discuss the meaning of impracticability as used in reg 19A. However the Secretary correctly submitted that there was no controversy before the primary judge as to the meaning of that term, and hence not necessary for her Honour to descend into a discussion of its meaning, especially given her findings that no relevant circumstance was established.
Ground 1 fails.
Grounds 2 and 3 are equally misconceived. The fortnightly declaration of a State of Emergency by the Government of C Province is merely the perpetuation of the state of affairs that subsisted at the time of the second reasons, as the primary judge correctly held. In any event, the declaration of a State of Emergency in C Province only gives the relevant government temporary access to extraordinary powers.
In his oral argument, counsel for the mother contended that, as a result of such a declaration, the mother would be unable to obtain accommodation in C Province. How that might be so remained unclear, but appeared to ultimately become a contention that the mother would be required to quarantine upon arrival in C Province, which she could not afford to do. The mother’s alleged impecuniosity is more properly the province of Ground 4, and we shall consider it there.
Ground 5 fails.
Grounds 4, 6 and 7
4.The Primary Judge erred in finding that the [mother] currently has the financial capacity from her own funds to pay for the "airfares and any other necessary travel expenses" for the child and herself as ordered on 11 November 2020, which includes adequate travel insurance as advised by the Australian High Commission Canada, and that the order is not impracticable to be carried out.
6.The Primary Judge failed to have any sufficient regard to the fact that the Canadian Government will not permit the [mother] to enter Canada even if she is permitted to leave Australia and travel to Canada on an Electronic Travel Authorisation (eTA) and therefore it is not only impracticable for the order of 11 November 2020 to be carried out but also constitutes an exceptional circumstance which justifies the order being discharged.
7.The Primary Judge failed to give any or any appropriate weight to the [mother’s] inability to obtain necessary travel documents including an adequate visa in an acceptable time frame (with a stated processing time of 346 days) which requires sufficient funds to support herself and the child for the duration of the visa (assuming she is permitted to leave Australia) to travel to Canada. Therefore it is not only impracticable for the order of 11 November 2020 to be carried out but also constitutes an exceptional circumstance which justifies the order being discharged.
Ground 4 proceeds on an erroneous premise, namely that the primary judge made a finding that the mother had capacity to pay for the expenses of travel to Canada. Plainly, her Honour made no such finding. Rather, she remained unpersuaded that the mother could not afford those costs, a quite different matter, and one fatal for the mother, who bore the onus of persuasion.
Her Honour was unpersuaded because she found that the mother had not been forthcoming with details of her financial situation, a finding not challenged on appeal, and plainly well open to her Honour.
In any event, the return order pertains to the child, not the mother. The father has made it plain that if needs be, he will travel to Australia to accompany the child back to Canada (at [52]).
Ground 4 fails.
Ground 6 flounders on the very material which was before the primary judge. It established that there is a present entitlement for Canadian citizens – which the child is – to return to Canada. Again, the return order does not compel the mother to accompany the child to Canada, but in any event, it appears as though generally a parent of a Canadian citizen will also presently be permitted entry.
This ground fails.
Ground 7 is likewise without merit. Again, leaving aside that the return order does not compel the mother’s return, in any event, as the primary judge noted, the mother has failed to even try to obtain the relevant authorisation (at [63]). She bore the onus of persuasion and quite correctly, the primary judge found it had not been discharged (at [64]).
Grounds 8 and 9
8.The Primary Judge erred in finding that the COVID-19 pandemic and the effect of it upon international travel and border restrictions did not constitute exceptional circumstances which permit the Court to discharge the order of 11 November 2020.
9.The Primary Judge's discretion miscarried in circumstances referred to in the previous grounds of appeal where:
a)There has been an error as a result of acting upon a wrong principle; or
b)Undue weight has been given to extraneous or irrelevant matters; or
c)There has been a failure to give sufficient consideration to relevant matters; or
d) There has been a mistake made as to the facts.
Ground 8 appears to be a general proposition that COVID-19, and more particularly, the international impacts of the pandemic, of itself and without more, compels the discharge of return orders generally. That contention need only be stated to be rejected.
Ground 9 has no operation separate to the grounds which precede it, all of which have failed. It therefore also fails.
CONCLUSION
Both appeals have entirely failed, and must be dismissed.
COSTS
In the event the appeals failed, the Secretary sought no order for costs. Each party will therefore bear their own costs.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Tree & Gill. Associate:
Dated: 6 August 2021
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