PD v. LTY

HCMP 455/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 455 OF 2017

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J U D G M E N T

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Introduction

1. These are proceedings for the return of a child to Australia under the Child Abduction and Custody Ordinance Cap 512 (“Ordinance”), which incorporates most of the articles of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Convention”).

2. The present application was initiated on 1 March 2017 by the Secretary of Justice in his capacity as the Central Authority designated under the Ordinance (“SoJ”), and pursuant to a request by the Australian Central Authority on behalf of the father of the child (“Father”).

3. The mother of the child (“Mother”) opposes the return.

4. Shortly before the 1^st substantive hearing, with consent, SoJ was replaced by the Father as plaintiff and the Mother became the defendant in these proceedings.  Ms Susana Sit and Ms Osa Chan Wing Yan (“Ms Chan”) appeared on behalf of the Secretary of Justice as observer and to assist the court.  Counsel Mr Azan Marwah appeared for the Father and Counsel Mr Enzo Chow appeared for the Mother.

Brief Background

5. The Mother was born in Hong Kong in August 1993, and she is 23 years old.  The Father was born in Australia in January 1985 and he is now 32 years old.

6. The Mother first went to Australia in January 2013 on a working holiday visa and she returned to Hong Kong in November 2013 and had her visa extended/renewed until 1 January 2015.

7. The parties first met in May 2013 when they were working in a farm in Bowen in Australia.  They maintained contact after the Mother came back to Hong Kong in November 2013.  The Mother returned to Australia in January 2014 for her 2^nd working holiday.  The parties started to cohabit and they were married in August 2014 in Australia.

8. Their son was born in October 2015, and is now about 19 months old (“Child”).  After his birth, he lived together with his parents in a rented house in Bowen, Australia, until he was taken to Hong Kong by the Mother in January 2017.

9. After the parties’ marriage, in September 2014, according to the Mother, they started to save money for the Mother’s application for a spousal visa, which would cost AUD4,500.  The Father was said to have won this sum in one of his bettings, and the amount was handed over to the Mother for safe keeping.  According to the Mother, as the application forms were very complicated, she did not complete the forms, and then in October 2014, the savings were spent by the Father on buying beer, cigarettes and on bettings.

10. In November 2014, the parties moved to Victoria for work reasons but they soon resigned and in December 2014, they moved to Sydney to live with the Father’s mother.

11. As the Mother’s working holiday visa expired on 1 January 2015, thereafter she was unable to work.

12. In May 2015, the parties left Sydney and returned to Bowen.  The Father found work there and life seemed to have improved for a while.

13. The Child was born in October 2015, and the Mother’s mother went to Bowen to help caring for both the Mother and the Child.  She remained in Bowen until December 2015 before returning to Hong Kong. In December 2015, the Mother’s father, elder sister and relatives also visited the Mother.

14. It was the Mother’s case that the Father spent very little time caring for the Child and that he would go drinking on his own.  The Father on the other hand said he had always been a “hands on” father and had been involved in looking after the Child since birth. 

15. The Mother’s complaints against the Father included his violent behavior, his drinking and smoking marijuana/cannabis, and gambling.  The Father denied all the Mother’s allegations.

16. The Father lost his job in August 2016.  The Mother complained that thereafter, the Father often borrowed money from her.

17. According to the Mother, flight tickets were booked for the 3 of them to come to Hong Kong and that the Father had originally agreed to move to Hong Kong but the Father eventually resiled from the agreement and refused to come. 

18. The Father agreed that the parties had discussed visiting the Mother’s family in Hong Kong and that the Mother had suggested that she could work in her sister’s shop in Causeway Bay in Hong Kong and that he could look after the Child. 

19. Whatever agreement they had, it was not disputed that such agreement fell through as of 25 November 2016 when the Father ultimately refused to move.

20. Prior to their discussions in November 2016, the parties had begun to prepare the application form for the Child’s passport but later the Father refused to sign.  It was his allegation that his signature on the application form lodged by the Mother was not his signature and at around the time of the Mother’s application for a passport for the Child without the Father’s knowledge, the family’s correspondence was redirected by the post office to another address.

21. The Mother said on 9 December 2016 she went to confess to the Australian authorities about her overstaying, and obtained a “bridging visa”[1] (“Bridging Visa”), and that this was due to expire on about 19 January 2017.

22. On Wednesday 18 January 2017, according to the Father, he put the Child to bed, and in the morning of 19 January 2017, the Mother was not in bed.  There was a note left by Mother to say she had gone to visit a friend Vicky as Vicky needed help urgently and that she would be back when Vicky’s boyfriend arrived.  The Father said he noticed something was not right and he called Vicky and was told that the Mother was no longer in Bowen but in Stanthorpe in southern Queensland.  The Father decided to call the police and later it was confirmed by the Department of Immigration that the Child had gone offshore.

23. The Father understood that the Mother had travelled to Cairns and then went on a flight bound for Hong Kong on 19 January 2017.

24. The Mother admitted that she and the Child left Australia on 19 January 2017 to come to Hong Kong.  The date of Mother’s removal of the Child from Australia was thus 19 January 2017 (“Removal”).

25. The Father contacted the Australian Central Authority on about 23 January 2017.  The originating summons herein was subsequently issued on 1 March 2017.  The 1^st substantive hearing was fixed on 18 April 2017 (“1^st Hearing”).

Whether the Removal was wrongful

26. Article 3 of the Convention states that:

“The removal or the retention of a child is to be considered wrongful where—

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

  The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

27. Article 5 of the Convention then sets out the meaning of “rights of custody” and “rights of access”: -

“For the purposes of this Convention—

(a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;

(b)  ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”

28. There was no dispute that the Child’s habitual residence immediately before the Removal was Australia, and there was no dispute that the Father had rights of custody of the Child under Article 5(a) of the Convention under the Australian law immediately before the Removal and at the time of the Removal, those rights were actually exercised or would have been so exercised but for the Removal.

29. The Removal by the Mother was thus wrongful under Article 3 of the Convention.  Under Articles 12 and 13 of the Convention, it is obligatory for this court to order the return of the Child forthwith to Australia if at the date of the commencement of the proceedings, a period of less than one year has elapsed from the date of the wrongful Removal, unless the Mother establishes a defence under Article 13.

Mother’s defences 

30. Article 13 of the Convention states that:

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

  In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

31. The Mother did not seek to argue that the Father had consented or acquiesced to the Removal under Article 13 (1) (a) of the 1980 Convention.

32. As the Child is less than 2 years old, there has been no attempt to obtain his views, nor was the Mother relying on Article 13 (2).

33. The Mother only relied on Article 13 (1)(b) of the Convention.  Her case was that there would be a grave risk that the Child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

34. During the 1^st Hearing, which was attended by the Father in person (whose attendance was made possible, as I understand, through the assistance of the Australian Central Authority), this court had asked the parties’ respective Counsel to include their submissions on the parties’ respective proposals on “protective measures” in the event that this court were to order a return.  The parties were thereafter able to agree to certain undertakings as follows: -

(i)  The parties undertake not to molest the other party;

(ii)  The parties undertake not to pursue criminal complaints against the other party;

(iii)  The parties undertake not to remove the Child from the resident state, namely Australia, without permission of the other party;

(iv)  The parties undertake to surrender the Child’s Australian passport to the Passport Office in Australia as soon as possible upon return;

(v)  The Father undertakes to facilitate the Mother’s visa application.

     (“Undertakings”)[2]

35. During the 1^st Hearing, this court had also raised certain queries which Ms Chan agreed to make enquiries from the Australian Central Authority. The matter was then adjourned to 5 May 2017 (“2^nd Hearing”).

36. Prior to the 2^nd Hearing, Ms Chan was able to obtain various answers to this court’s queries.  Towards the end of the 2^nd Hearing, this court gave an indication and the Mother then expressed her willingness to return provided the protective measures proposed by her were put in place.  The matter was then adjourned over the weekend until 8 May 2017 (“3^rd Hearing”) for the parties to discuss further the protective measures. 

37. However, at the 3^rd Hearing, the parties were still not able to agree and they asked for further time to try and agree. In the meantime, the Father had to return to Australia.  Eventually, a draft current order was put forward respectively by the parties only on 26 May 2017 for this court’s consideration.

General Principles under Article 13(1)(b)

38. The principles on the grave risk defence under Article 13(b) have been conveniently summarized by Cheung JA in M v E, CACV 75/2015, (unreported) Reasons for Judgment dated 5 June 2015 as follows[3] :

“(1) The burden of proof lies on the party who opposes the return of the child. It is rarely appropriate to hear evidence on this issue.

(2) The risk to the child must be grave. It means the risk has reached such a serious level as to be considered grave. The word ‘grave’ is related to the risk rather than the harm itself, although ‘risk’ and ‘harm’ are often linked.

(3) The grave risk associated with return is either of the children’s physical or psychological harm which is unqualified or they would otherwise be put in an intolerable situation. The latter means a situation that the child should not reasonably be expected to tolerate or put up with, such as physical or psychological abuse or neglect of the child.

(4)  This exception is concerned with the future when the child is returned to his home country.  At the same time one would expect protective measures for the child to be put in place by the Court of the child’s own country.”

39. Cheung JA had in his judgment referred to the leading authority on Article 13 (b) defence, namely the UK Supreme Court decision in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144 where Baroness Hale and Lord Wilson JJSC had in their joint judgment laid down the general principles on Article 13(b) in detail.

40. A summary of the general principles laid down in Re E have recently again been set out in T v E (A Child) (Abduction: Refusal to Order Return) [2016] EWHC 3148 (Fam); [2017] 4 WLR 18, which are as follows:

“(i) There is no need for article 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of article 13 are quite plain and need no further elaboration or gloss.

(ii) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.

(iii) The risk to the child must be ‘grave’. It is not enough for the risk to be ‘real’. It must have reached such a level of seriousness that it can be characterised as ‘grave’. Although ‘grave’ characterises the risk rather than the harm, there is in ordinary language a link between the two.

(iv) The words ‘physical or psychological harm’ are not qualified but do gain colour from the alternative ‘or otherwise’ placed ‘in an intolerable situation’. ‘Intolerable’ is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’.

(v) Article 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child’s immediate future because the need for protection may persist.

(vi)  Where the defence under article 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child’s situation would become intolerable the court will look very critically at such an assertion and will, among other things, ask if it can be dispelled.”

41. With the above principles in mind, I turn to the Mother’s case.

Mother’s allegations of the Father’s behavior

42. To summarise, the Mother ’s allegations against the Father included the following:

(i)  The Father’s violence;

(ii)  The Father’s drug habits;

(iii)  The Father’s drinking habits;

(iv)  The Father’s gambling habits;

(v)  The Father’s borrowings from her.

43. The Father denied generally all the Mother’s allegations, and did not give particulars as he was advised that they were not relevant, and that the allegations could be dealt with by the court when deciding the Child’s welfare and care arrangements once the issue of return has been determined.  In any event, it was the Father’s case that even if those allegations were proven, there would be protective measures available in Australia.

The Father’s violence

44. The Mother’s allegations consisted of in particular 5 incidents, briefly as follows: -

(i)  In early 2016, when the Mother refused to lend about AUD 20 to the Father, he was upset and damaged her mobile phone and took the money;

(ii)  At about end of January 2016, when the Mother confronted the Father’s communications with other women on facebook, he damaged her mobile phone, and when the Mother tried to snatch her phone back from him, the Father used his arms to press on the Mother’s ribs and she felt almost unable to breath.  The Father’s explanation to the Mother for his action was that he was trying to make the Mother calm down, but the incident resulted redness over the Mother’s forehead. 

(iii)  In about middle of March 2016, after the parties took the Child to the beach, instead of helping the Mother caring for the Child and doing housework, the Father was drinking beer and talking on the phone. The parties ended having an argument, and the Father used his slipper to hit the Mother’s face.  When the Mother confronted him over his behaviour, he picked up a dinner knife and threatened the Mother that he would stab her if she spoke again.  As the Mother was concerned that the Father might lose control, she kept quiet.

(iv)  In May 2016, the Mother was hoping to earn some money by selling dumplings on line, but the Father was again borrowing money from her to buy beer, and if the Mother refused, the Father would scold her with abusive language.

(v)  One weekend in July 2016, the parties went to visit a friend Russell, and the Father had asked the Mother to drive.  After arrival the Father went on talking, eating, drinking and smoking cigarettes with his friends, and when the Mother suggested going home first to prepare dinner and, to do housework, and to return later to pick him up, the Father did not agree and the parties then ended up having an argument.  The Father then took away the Mother’s car keys in her handbag, and during the commotion, the Mother lost her balance and fell down.  The Father drove off, and the Mother had to return home in a taxi with fare paid by Russell.

45. As Mr Marwah had submitted, even if all the Mother’s allegations of domestic violence were true, her concerns could be met with the Undertakings, and additional undertakings, and the Australia Central Authority has provided further information about available support and protection to meet the Mother’s concerns[4].  There was no sufficient evidence from the Mother that the Undertakings and the protection available in Australia from the Australian authorities would not be adequate.

46. I accept Mr Marwah’s submissions.

The Father’s drug habits

47. In May 2014, the Mother discovered that the Father had the habit of smoking marijuana /cannabis, and that the Father had signed a written promise to her on 27 June 2014 that he would stop smoking “weed` referring to cannabis[5].  This was prior to the parties’ marriage.

48. There were no further allegations by the Mother until December 2016, when the Mother alleged that the Father had started smoking cannabis again.

49. The Mother’s allegations were general and no particulars were given by the Mother as to how she found out in December 2016. It was not clear whether it was an isolated incident or not.

50. There was no sufficient evidence at this stage that the Father was addicted to cannabis.  In any event, I am satisfied that the Mother’s concerns in this regard can be met by an additional undertaking from the Father, if necessary, not to smoke cannabis in the presence of the Child.

The Father’s drinking habits

51. The Mother alleged that the Father had drinking problems.  Apart from the incidents mentioned earlier in connection with the allegations on the Father’s violence, the Mother alleged that in December 2016, the Father had used all his money, including part of the money for the Child’s daily expenses, on buying beer.  The Mother alleged that every time, when he Father got paid his salary (which was once a week), or the Government assistance (which was once every two weeks), he would spend money to buy beer and each occasion he would buy 2 cartons of beer, each of 30 cans, and that he would drink 12 cans a day.

52. Based on the Mother’s evidence, the Father would buy 60 cans each week when he was working, or every two weeks when he was receiving Government assistance.

53. As the Father started receiving the Government assistance in August 2016, on the Mother’s evidence, thereafter, the Father was buying 60 cans every 2 weeks, which meant on average of about 4 cans a day. 

54. At this stage, there seemed to be no sufficient evidence that the Father was addicted to drinking or an alcoholic. 

55. In any event, again I am satisfied that the Mother’s concerns can be met by further undertaking from the Father not to drink in the presence of the Child.

The Father’s gambling habits and borrowings from the Mother

56. The Mother alleged that in August 2014, the Father lost his salary playing on a betting machine in a restaurant, and he borrowed money from the Mother, and that it was the first time that the Father borrowed from the Mother, but thereafter he had borrowed many times from the Mother, and up to the Removal, the total sum borrowed by him from her was about AUD1,000.

57. The Mother had also said that in September 2014 that the Father had won AUD4,500 which sum was handed over to the Mother for her to apply for a spousal visa, but as I have mentioned earlier, she found the forms were too complicated, and she was not able to complete them, and that the sum was later spent by the Father on gambling and buying beer and cigarettes in October 2014.

58. All the above took place prior to the Child’s birth. 

59. As mentioned earlier, in August 2016, after the Father became employed, he had applied for Government assistance.  The Mother said that the amount awarded to him was based on the Father declaring himself to be a single parent by him and alleging that the Mother had deserted him. The Mother said this was without her knowledge or consent or authorization.

60. The Mother had also alleged that the Father indulged in gambling, and apart from losing the savings for the application of the Mother’s spousal visa, in December 2016 he had lost AUD200 out of the Government assistance.

61. It appeared from the Mother’s affirmation that the parties had constant problems over finances and this seemed to be one of the main issues which contributed to the breakdown of their relationship.

62. At the 2^nd Hearing, the Father informed the court that he was receiving Government assistance AUD600 per week and offered to share this with the Mother and the Child upon their return.  I am satisfied that the Mother’s concerns can be met by an undertaking from the Father plus a mirror order, in the event of a return, for the Father to provide reasonable interim maintenance for the Mother and the Child.

Physical or psychological harm

63. As said in Re E and T v E, to establish a “grave risk” defence, the risk to the child must be “grave”.  It is not enough for the risk to be “real”.  It must have reached such a level of seriousness that it can be characterised as “grave”.

64. The burden was on the Mother to produce evidence to substantiate there is a grave risk that the Child’s return would expose the Child to physical or psychological harm. 

65. In my view, the Mother was not able to discharge the burden on her in light of the protection and support which will be available to the Child in Australia. I accept Mr Marwah’s submissions that the Undertakings and additional undertakings, which will be contained in a mirror order, should be sufficient to protect the Child from the Mother’s concerns arising out of the alleged behavior of the Father.

Intolerable situation

66. Further, the Mother’s case was that since the birth of the Child, it was she who had been his primary caretaker, and that the Child had never left her for more than six or seven hours in the day time since his birth.

67. The present evidence before this court showed that the Mother had not worked since her working holiday visa expired in January 2015, apart from selling dumplings on the internet.  As the Father only became unemployed in August 2016, although the Father claimed he was a “hands on” father, the Mother would probably be the main carer of the Child in particular when the Father was away at work.  Having said this, the Mother had also said that after the Father became unemployed in August 2016, she had taught him how to prepare food for the Child and that thereafter, it would be the Father who would cook dinner.

68. The Mother had set out all the details in relation to the care of the Child, including breast feeding, and the Mother had said at the time of her 1^st affirmation in March 2017, the Child was still dependant on milk from the Mother.  Since the Removal, the Child has been under the sole care of the Mother.

69. The Mother’s case was that any return of the Child without her would be exposing the Child to an intolerable situation, if not psychological harm.

70. In light of the very young age of the Child, I gave an indication at the end of the 2^nd Hearing that I would be minded to order a return if the Mother were to return with the Child.  The Mother accepts that it will be in the Child’s best interest for her to return with the Child and she agrees to do so subject to protective measures being in place.

71. However, there are obstacles preventing the Mother to return as follow: -

(i)  As the Father had lodged a complaint and given a statement to the police over the Mother’s application for the Child’s passport without the Father’s knowledge or consent and that the Father alleged that his signature was forged, the Mother might face prosecution upon return (“Prosecution Issue”);

(ii)  She would not be able to return without a valid visa (“Immigration Issue”);

(iii)  She had no financial support upon return to Australia (“Finance Issue”);

(iv)  She would need legal assistance upon return to Australia (“Legal Assistance Issue”).

Prosecution Issue

72. Ms Chan had made enquiries from the Australian Central Authority and the latter had confirmed that a complaint was received from the Father concerning his signature on a passport application for the Child being forged.  The Australian Central Authority stated that the matter was under investigation but indicated that in the event that the Father were to withdraw his complaint, there would be insufficient evidence for the matter to proceed criminally without the Father’s evidence[6].

73. The Father was prepared to give an undertaking to withdraw his complaint and his statement made to the police.

74. The Australian Central Authority was not aware of any other criminal charges against the Mother in relation to the Removal, and that according to the Australian Central Authority, there would not be any offence under sections 65Y and 65Z of the Family Law Act 1975 over the Removal, unless there had been certain parenting orders made, or there were pending proceedings for the making of those parenting orders. 

75. There was no evidence of any parenting orders having been made or any pending proceedings for such orders, or any evidence that the Father had at this stage already made an application for the relevant parenting orders.

76. In any event, if necessary, an undertaking from the Father could be obtained.

Immigration Issue

77. In light of the Mother having overstayed in Australia prior to her being granted the Bridging Visa, I understand that there is at the moment a 3 year exclusion period from the date she departed, namely 19 January 1997, until 19 January 2020, for her to apply for an entry visa (“Exclusion Period”).

78. However, according to the Australian Central Authority, the Exclusion Period may be waived where there are compassionate circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

79. In the present case, as the Father is an Australian citizen and his interests relate to the arrangements regarding care and custody of his child for which the temporary stay in Australia of the Mother may be required, and if the settlement of custody is required to be heard and finalized before an Australian courts, these may be compassionate circumstances for the Mother applying for a waiver of the Exclusion Period[7].

80. The Australian Central Authority has indicated that the Mother is not prevented from applying for a visa to return to Australia, and if she applies, she will need to meet all criteria for visa grant and she will need to ensure that the visa allows her to stay in Australia while any family court proceedings take place.

81. According to the Australian Central Authority, the Mother’s previous unlawful residence in Australia will be taken into consideration as part of her visa application assessment, however “she is not a person of character concern to the Department of Immigration and Boarder Protection at the moment”[8].

82. I understand that the Mother is willing to make an application for a visa for her return and this court has asked Ms Chan to assist in making further enquiries from the Australian Consulate in Hong Kong as to the time it will take to process her application.

83. I accept that the Mother can only return upon her being granted a visa.

Finance Issue

84. Both parties are legally aided in the present proceedings.  The parties had worked as farm hands, and the Father had worked also as a truck driver.  The evidence showed that the family had limited funds, and as I have mentioned earlier, the Father was only able to attend the hearings with the assistance of the Australian Central Authority. 

85. The marriage had broken down and the Mother had in fact issued a divorce petition in the Family Court in Hong Kong in the midst of these proceedings.  Those proceedings or at least her application for custody have been stayed.  She did not wish to return to live with the Father and proposed separate accommodation for herself and the Child upon return.

86. After the Removal, the Father has moved to live with his mother and step-father who have moved to Tinonee in New South Wales, and he has proposed that the Mother and the Child to live in Taree, a town near to Tinonee, when they return to Australia.  As the Father lives with his mother, he will not be required to pay rent.  The Father has said the Child will need to spend 4 nights with him in order for him to continue to obtain the Government assistance of AUD600 a week. 

87. The Mother does not wish to live in New South Wales and at the end of the 2^nd Hearing, the Mother proposed to return to Bowen.  The Father has however pointed out that the town has not quite recovered from a recent cyclone and economy is low and he may not be able to find a job there. 

88. Anyway, at the 3^rd Hearing, the Mother had changed her mind and she now proposes to return to Townsville in Queensland.

89. As for the finances, the parties will need to make do with whatever the amount of the Father’s Government assistance.  The Mother has been the Child’s primary carer since the Removal, and due to his very young age, I am of the view that upon return, he should reside with the Mother temporarily and remain in her interim care until the Australian court makes a further order.

90. The Mother has no objection to the Father having access/contact with the Child and she has proposed 2.5 hours on Mondays, Wednesdays and Fridays.  While in Hong Kong the Father has been having 2.5 hours almost every day.  My views on access are set out below.

Legal Assistance Issue

91. The evidence from the Australian Central Authority is that there is availability of legal aid for family proceedings in Australia to the Mother.  The Father points out that there is also free legal representation for victims of domestic violence. 

92. I accept the evidence is that legal aid will be available for the Mother in Australia.

The parties’ respective draft consent summonses

93. Both parties have worked hard to arrive at an agreement.  In short, they have agreed that the Mother and the Child will return to Townsville, Queensland.  In their respective consent summonses, their main divergences are set out hereinbelow, together with this court’s views:

The Recitals

(i)  For Recital D, the Mother has imposed a deadline for the Father’s withdrawal of complaint in relation to the Child’s passport application and the production of documentary proof of such withdrawal.  In my view, it is more appropriate there be a time imposed.  In any event, any return will be subject to the withdrawal of all criminal complaints by the Father.

(ii)  For Recital J, the Mother requires the Father to produce documentary proof that he is able to pay AUD400 per week to the Mother 28 days before the return.  I do not see why the Father is unable to do so.

(iii)  For Recital K, the Mother wants the Father to provide the return flight tickets to the airport nearest to Townville, and the Father is proposing to seek financial support from the Australian authorities for the provision of the flight tickets.  As the Father is unable to pay out of his own funds, what he proposes is reasonable.

(iv)  For Recital M, the Mother has asked the Father to exercise his reasonable endeavours to ensure the roadworthiness of the car which is going to be for the Mother’s use.  This is a reasonable request.

(v)  Recital O concerns the mirror order, I am of the view that the mirror order should be in place 14 days before the return.

The main body of the draft consent order

(i)  The 1^st sentence of paragraph 1 has been overtaken by events.  It is not clear how long the Child’s visa in Hong Kong is now extended for, but if the 2^nd sentence is still required, it should be subject to the Mother’s undertaking to return the Child’s passport to the court after use.

(ii)  Paragraph 2 has been overtaken by events.

(iii)  Paragraph 3 concerns when to return, and the Mother proposes the return should be subject to fulfilment by the Father of some of his undertakings, including in particular the withdrawal of the Criminal complaint and the obtaining of the mirror order.  I am of the view that what the Mother has proposed is reasonable.

(iv)  The Father has proposed that the Child be in the joint care of both the Father and the Mother and the Child to reside with the Father for 2 nights per week, and with the Mother for 5 nights per week in Townsville, and that they should both have generous daily access while the Child is in the care of the other.

(v)   In my view, the care and contact arrangements should be determined by the Australian court, and pending such determination, I am of the view, the Child to remain temporarily in the Mother’s care with the Father having daily contact with the Child between 1 pm to 3:30pm.  I understand that there is no problem regarding skype/face time/video calls with the Child at 8 pm every evening by the Father.

Conclusion

94. I am not satisfied that there is a grave risk that the Child’s return would expose the Child to any physical or psychological harm or otherwise place the Child in intolerable situation provided the undertakings, terms, and conditions already agreed by the parties and those indicated by the court above are in place.  I am also satisfied that it will be in the Child’s best interest to return to Australia with the Mother subject to those undertakings, terms and conditions, and I so order. The parties are to submit a draft order for this court’s approval.

Costs

95. As both parties are under legal aid in these proceedings, I made no order as to costs, including all costs reserved, and that the parties’ own costs be taxed under legal aid regulations.