A recent decision of the Full Court of the Family Court of Australia sends a clear message to parents that they cannot use the risks associated with COVID-19 as a shield to justify wrongfully retaining a child outside their usual place of residence.
In Kingsley & Secretary, Department of Communities and Justice (No. 2)1 the Full Court dismissed an appeal against an earlier court decision that required a child be returned from Australia to Canada pursuant to the Family Law (Child Abduction Convention) Regulations 1986. The Full Court decision examined the potential risks associated with the global pandemic and the extent to which they impact decisions regarding international child abduction.
Summary of the facts
- The mother is an Australian citizen, and the father is a Canadian citizen, resident in Canada.
- The parties met in May 2018, while the mother was living in Canada on a temporary working holiday.
- The parties commenced cohabitation in March 2019.
- The parties’ child was born in Canada in 2019.
- In February 2020, the mother and the child travelled to Australia so that the mother could visit her family. This occurred with the father’s consent and the parties had agreed that the mother and the child would return to Canada on 2 March 2020.
- On 18 February 2020, the child was granted Australian citizenship by descent following an application by the mother.
- On 2 March 2020, the mother did not return to Canada with the child as agreed. The father subsequently applied for the child to be returned to Canada in accordance with the Child Abduction Regulations.
The initial court proceeding
The initial court proceeding was heard and determined in the Family Court of Australia. The trial judge made a ‘return order’ after finding that the child was wrongfully retained in Australia after 2 March 2021.
In so doing, the trial judge concluded that:
- the child was not habitually resident in Australia;
- the father had not consented to the child remaining permanently in Australia prior to leaving Canada;
- the father had not acquiesced to the child remaining permanently in Australia after leaving Canada; and
- there was no grave risk to the children insofar as returning he to Canada would expose her to physical or psychological harm.
The mother’s subsequent application
Unhappy with the decision of the trial judge, the mother filed a further court application seeking to discharge the return order on the basis that:
- circumstances had arisen that made it impracticable to carry out the initial order; and / or
- exceptional circumstances existed justifying the discharge of the return order.
The mother’s application was refused, and the return order remained in full force and effect. The Court concluded that the circumstances relied upon by the mother had not arisen, nor were they exceptional
The mother appealed both the return order and the decision refusing to discharge the return order. In dismissing the appeal, the Full Court held that:
- A parent’s intention regarding where a child resides ought not be assigned controlling weight. Therefore, the mother’s evidence that she had registered the child as an Australian citizen, enrolled the child into day care, obtained employment and had re-partnered whilst in Australia were immaterial. The Court found that despite her contention, at the date the child was wrongfully retained in Australia, being 2 March 2021, she was habitually resident in Canada.
- The return order did not pose a grave risk to the child’s physical or psychological welfare upon return to Canada due to the COVID-19 pandemic. Absent further evidence of COVID-19 infection rates, vaccination rates, hospitalisation and morbidity rates, the possibility of exposure to COVID-19 did not pose a grave threat. Further, the Australian Government Smarttraveller website’s “do not travel” warning is insufficient to demonstrate such risk. The risk in this case of a pandemic which exists globally, including in Australia, contrasts with the Court’s earlier decision in Genish-Grant v Director General, Department of Community Services (2002) where the relevant risk was harm from military attack upon Israel.
- The fortnightly declarations of a State of Emergency in the Canadian province to which the child was to be returned was not a circumstance that had arisen since the making of the order which made it impracticable to carry out. The declaration was merely a continuation of a situation that had existed since the pandemic began, and prior to the making of the order. Nor did the requirement that the mother quarantine upon arrival in Canada because of the state of emergency render the order impracticable.
- It was immaterial that the mother’s visa had expired and that she either would not be able to afford, or not be granted the necessary travel documents to enter Canada. This was because the return order did not compel the mother to return to Canada. The Court noted that there is no restriction on a Canadian citizen re-entering the country, therefore the child would not be prevented from returning alone, or with the father.
- The Court found that the proposition that the international impacts of the COVID-19 pandemic in general, are not exceptional circumstances permitting the discharge of a return order.
What does the decision mean?
The decision illustrates some (but not all) of the challenges posed by the COVID-19 pandemic for parents with international family law matters. It demonstrates that issues concerning the pandemic alone will not prevent the Court from returning a child to an overseas jurisdiction simply based on risks arising from the pandemic.
This article was co-authored by Family Law graduate Robert McFarlane.