SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-13-18507
DATE: 20130301

RE: A.H.

Applicant

AND:

F.S.H.(C.)

Respondent

BEFORE: JUSTICE KRUZICK

COUNSEL: Jeffery Wilson and Chelsea Hooper
for the Applicant

Kenneth Cole and Allison Kotler
for the Respondent

HEARD: FEBRUARY 14, 2013

ENDORSEMENT

Nature of the Proceeding

[1] This is an application under the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (Hague Convention) as incorporated in s. 46(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (Act). The applicant (father) seeks an order declaring that the parties’ daughter, M.M.H. (born […], 2011), is wrongfully detained in Ontario and should be returned to Australia. The respondent (mother) takes the position that the child’s habitual residence is in Canada and disputes the father’s claim. The mother takes the position that this court should have exclusive jurisdiction to determine the question of custody and access.

[2] It was agreed by counsel that matters commenced under the Hague Convention require a quick decision of the court so that the custody and access issues can be addressed with some rapidity. This is particularly important here given the age of this young child.

[3] After a careful review of the law and the material filed, I would allow the application of the father, and as such, determine that the child should return to Australia in the care of her mother forthwith on the terms and conditions set out below.

Background Facts

[4] The mother is a Canadian citizen. The father is Australian. The parents are both 22 years old.

[5] The parties met in September 2008 in Australia where the mother was studying. Both are members of the Chabad (Orthodox Judaic) Community. Prior to their marriage the parties carried on a long distance relationship, travelling between Canada and Australia and Israel.

[6] The parties were married in Toronto on October 7, 2010 and lived in Ontario following the marriage. In 2011 the mother became pregnant and the child was born on […], 2011.

[7] The parties and their daughter left Canada October 12, 2012 and went to St. Kilda East, a suburb of Melbourne, Australia. They had return tickets to Toronto booked for January 14, 2013. On December 25, 2012, the respondent came to Canada with the daughter. The Applicant arrived as planned, in January. In early January, 2013, communication between the parties broke down. They sought the assistance of a rabbi and a counselor in an effort to work on their marriage. On January 26, 2013, the mother informed the father that she would not be returning to Melbourne with the child. On the 29th of January the father commenced this application.

Position of the Parties

[8] It is the position of the applicant that the parties formed the intention to move to Melbourne in 2012 and in fact did so. He takes the position that the child is habitually resident in Melbourne. It is the father’s position that they arranged to come back to Canada for a visit in 2013 but planned to return to Australia.

[9] The father consented to the mother travelling with the child to Canada in December 2012 for the purpose of a visit and planned to meet them in Canada in January 2013. He takes the position that the mother is wrongfully refusing to return to Australia with the child.

[10] It is the position of the mother that the trip to Melbourne in 2012 was not to be a permanent move and that the parties had purchased return tickets given that the sojourn in Melbourne was to be on a trial basis.

[11] The mother does not wish to return to Melbourne and takes the position that the child is habitually resident in Canada. She argues that even if the child’s habitual residence is found to be Australia, the father has acquiesced to the return to Canada. The mother also takes the position that the relationship of the parties was an abusive one and the return of the child to Melbourne would put the child in grave risk of harm or in an intolerable situation.

Questions on the Application

[12] The questions to be decided on this application can be summarized as follows:

1. Is the child habitually resident of Australia?

2. If so, should this court order a return to Australia?

3. If the child is found to be habitually resident in Australia should this court nonetheless accept jurisdiction based on:

a. the father’s alleged consent to the child’s removal;

b. a finding that the return to Australia would expose the child to a grave risk of harm or otherwise place the child in an intolerable situation.

4. If the child is habitually resident in Ontario should this court deal with the issues of custody and access and make a temporary order in the circumstance?

Analysis

[13] This is not an easy case. The case comes before me pursuant to the Hague Convention on application by the father. The parents disagree as to the place of the child’s habitual residence. It is therefore this court’s task to determine the intention of the parents as of the last time that their intentions were shared. I propose to first deal with an overview of the law and then relate its application to the facts as put before me.

Overview of the Applicable Law

[14] The fundamental principle of the Hague Convention is that custody issues should be decided by the country of a child’s habitual residence, not by the country to which a parent has abducted a child. Therefore, the Hague Convention was designed so that the fundamental issues are whether the claim is brought by a person who has rights of custody under the law of the child’s habitual residence and whether the child was removed from or retained out of the country of habitual residence without the consent or acquiescence of such a claimant.

[15] As set out in Thomson v. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551, at para. 44, the primary object of the Hague Convention is the enforcement of custody and access rights. The mandatory return of a wrongfully removed child is dictated by the Convention as another objective. If the child is ordered to be returned, then the court should assume control over its process to take the necessary action to meet the spirit and the purpose of the Convention.

[16] In a Hague Convention application the court does not make any determination with respect to the custody of a child, and does not engage the best interests of the child test in the manner it would at a custody hearing (Thomson, at para. 42). The court merely decides which country has jurisdiction to make the custody determination. For this reason, the Convention provides that any pending custody proceedings must be stayed as soon as a Hague Convention proceeding has commenced.

Habitual Residence

[17] The question of habitual residence is not defined in the Convention, however the caselaw has held that it is a question of fact to be decided based on all of the circumstances. The habitual residence is the place where the person resides for an appreciable period of time with a “settled intention.” A “settled intention” or “purpose” is intent to stay in a place, whether temporarily or permanently, for a particular purpose, such as employment, health, family, etc. (Korutowska-Wooff v. Wooff, 2004 5548 (ON CA), [2004] O.J. No. 3256 (C.A.), at para. 8).

[18] The father argues it was the settled intention of the parties to move to and reside in Australia when they left Ontario together in October, 2012. The mother argues they went only temporarily to explore moving, so there was no intent to remain in Melbourne.

[19] The mother has commenced a custody proceeding in Ontario. The father has instructed counsel in Melbourne to commence a custody application in that jurisdiction.

Acquiescence

[20] The mother in the case before me argues that the child is here in Ontario with the acquiescence of the father, therefore it would be appropriate for this court to assume jurisdiction. The father disagrees. In Katsigiannis v. Kottick-Katsigiannis (2001), 2001 24075 (ON CA), 55 O.R. (3d) 456 (C.A.), the Court of Appeal reviews the law regarding consent and acquiescence. The Court adopts the approach taken in Re H. and others (Minors), [1996] H.L.J. No. 43, that acquiescence is a question of the actual subjective intention of the wronged parent, not the outside world’s perception of his intentions.

[21] In order to establish acquiescence the mother must show some conduct of the father which is inconsistent with the summary return of the child. In other words, there must be clear and cogent evidence of unequivocal consent or acquiescence.

Grave Risk of Harm

[22] The drafters of the Convention realized that it was necessary to provide a defence in the event that there was a substantial risk that the child would be harmed if returned to the habitual residence. Accordingly, Article 13(b) of the Hague Convention states:

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 who opposes the return establishes that […] 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.

[23] In Thomson v. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551, at para. 80, the Supreme Court referred to its own decision in Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, and set out the following stringent test for grave risk of harm:

It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word "grave" modifies "risk" and not "harm", this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. […] In Re A. (A Minor) (Abduction), supra, Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:

. . . the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree . . . that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words 'or otherwise place the child in an intolerable situation'.

[24] Has the mother established the existence of any risk of harm to her or the child? In assessing the risk of a return order, I am obliged to bear in mind any undertakings that might be imposed to mitigate the alleged risk.

[25] In this case the mother alleges that she was abused by the father and that the abusive behaviour has implications for the child. The father denies the allegations made.

[26] The Hague Convention’s preamble statement is that “the interests of children are of paramount importance”. Our courts have become sensitive to issues of domestic violence and are obliged to exercise heightened common sense so that at times courts have refused to send parents and children back to circumstances of domestic abuse.

[27] I fully appreciate that it may be inappropriate to order that children be sent back into an environment of violence without an evaluation of the nature of the abuse and of the likelihood that the authorities in the country to which the child is being returned will protect the child and the parent. As well, the courts have recognized that a return order can be detrimental to the interests of the child if it wrenches the child from the de facto primary caregiver. As set out in Thompson, at para. 83, “the younger the child, the greater the need for the courts’ concern”.

[28] In Thompson the concerns for the child were addressed by the majority through undertakings so that the court maintained some control in the face of the purpose and spirit of the Hague Convention. Justice L’Heureux-Dubé went even further in her reasons, adopting that the order for return should include conditions that will ensure the best interests of the child. See paras. 137 – 138:

The final point that must be examined is the effect the respondent father's undertakings may have on the above determination. In order to facilitate the return of Matthew to Scotland, the respondent has undertaken not to take physical custody of the child upon his return to Scotland and not until a court permits such custody. He has also undertaken to bring proceedings in Scotland that will enable a court to determine within approximately five weeks of Matthew's return the issue of his care and control. My colleagues are of the view that such undertakings are sufficient to remedy any difficulties that may arise as a result of implementing return under the Convention and that they render unnecessary a transitory order such as that proposed by Helper J.A. I disagree.

Undertakings such as those of the respondent in this case are to be commended. They are often made in cases where an applicant seeks the return of a child under the Convention. They have been approved of, for example, in P. v. P. (Minors) (Child Abduction), [1992] 1 F.L.R. 155 (Eng. H.C. (Fam. Div.)), where the order for return was contingent upon certain undertakings. Similarly, undertakings were also approved of in C. v. C. (Minor: Abduction: Rights of Custody Abroad), [1989] 2 All E.R. 465 (C.A.), at pp. 469-70, in which Butler-Sloss L.J. held:

Those [undertakings], as far as they go, are very valuable, and, if I may say so, for my part, show the good intent that he has for the welfare of his child and to return him to the jurisdiction of the Australian court. In my view, those undertakings should go somewhat further, and the undertakings that I for my part think should be required of this father, as a prerequisite of the return of the child, and without which I would consider the child should not be expected to return, are as follows.... [Emphasis added.]

Factual Circumstances

Habitual Residence

[29] I now turn to the application of the law to the facts as put before me. In this case I find that the parties resided in Ontario until October, 2012. They then relinquished their residence and apartment here in Toronto and moved to Melbourne. The mother does not deny the move but takes the position it was a temporary move. The father argues otherwise.

[30] The mother is a citizen of Canada with family here in Canada. The father, on the other hand, is a citizen of Australia with family in Australia. When the father was here, he was in Canada on a work visa. There is no evidence that he applied for citizenship or permanent residence in Canada or that he ever intended to do so.

[31] In the fall of 2012, and prior to leaving Toronto, the father terminated his employment in Thornhill, Ontario. There is no evidence that he sought a temporary leave of absence or applied to renew his work visa when it expired at the end of the two year term. The mother was at that stage not working outside the home.

[32] The father’s evidence is that the parties held return tickets to Toronto as required by the mother’s three month visitor’s visa. In compliance with the Australian visa requirements they booked a return trip to Ontario set for January 14, 2013. His position is that they had planned to be with the mother’s family and to return to Melbourne thereafter.

[33] On December 25, 2012, with the consent of the father, the mother and child travelled to Ontario. This was earlier than planned but the father acceded to the request of his spouse. His evidence is that he consented to the mother’s earlier departure because she told him she had personal issues concerning herself and her own family that she needed to deal with in Canada. His evidence is that they had no marital relationship issues.

[34] It is the father’s evidence that following the mother’s departure, the parties conversed by Skype and exchanged emails and text messages. According to him, the emails as exchanged were loving toward each other and the mother gave no indication of any problems between the parties. From my review of the exchanges there was no suggestion of any problem in the relationship or that mother was leaving the father.

[35] On December 31, 2012, the father became concerned when there were delays in response to his messages to her. When the mother did respond to him, his evidence is that she was distant and brief. His evidence is that she told him she was not feeling well and that she had the flu.

[36] On January 5, 2013, the father reported that he became alarmed when the mother refused to take his calls and communicate with him. I accept the father’s evidence that until he called their rabbi in Toronto he did not know that the mother was planning to remain in Toronto. It is also his evidence that at that time he learned that the mother was alleging abuse.

[37] It is the mother’s evidence that in a telephone conversation with the father on January 5, 2013, she informed the father of her intention to separate from him. It is her evidence that she then told him she would not return to Australia with the child.

[38] As was previously arranged, the father flew to Toronto on the 14th of January, 2013. The parties met with their rabbi on January 15, 2013. The father had no contact with the child whom he had now not seen since December 25, 2012. At the father’s request, he visited with their daughter at the home of the mother’s parents, accompanied by their rabbi.

[39] The parties were referred for marriage counseling by the rabbi. From the evidence the maternal grandparents were involved in and participated in the referral. On the 24th of January, 2013 the father learned the mother had called the marriage counselor and told him that the mother “kicked him off”. The father then emailed the mother about their return to Australia.

[40] The email exchanges between the parties following the mother’s departure, as put before me, make no reference to any problems between the parties. In fact, the mother’s earlier email messages to the father gave no indication that she would not be returning to Australia or that she wished to remain in Canada. I therefore accept the father’s evidence that in January 2013 when the mother told him that she would not be returning to Australia with the child, he was taken by surprise.

[41] While I accept the mother’s position that the child in issue was born in Ontario and is a Canadian citizen, as well as the fact that the parties were married in Ontario and thereafter resided here, I also accept the connection the parties had to Australia. That is where they met and where the mother and her family visited.

[42] I also accept that the parties left Canada for Australia. Before doing so, the father, who alone was employed, quit his job. The parties sold their furniture and personal effects here in Toronto and other items were shipped to Australia. In fact, prior to the mother’s departure from Australia her own evidence is that the container of their goods and possessions which they had shipped had not yet arrived in Melbourne.

[43] The parties cancelled their cell phones and their gym memberships here in Ontario. If they were only to be gone for a matter of a few months they would likely not have done so.

[44] Once in Melbourne, they secured an apartment and purchased furniture, both parties enrolled in gyms with long term contracts and entered into 24 months cellular phone contracts. The mother opened an Australian bank account. The applicant began to work in the family business. While the mother takes the position this was arranged by the father’s family and that they stayed with the father’s parents for the first two weeks, given the couple’s resources and respective ages, the arrangements made at this early stage of settling in are understandable. I accept the mother’s evidence that the father’s parents also purchased all the furniture for the apartment.

[45] The mother’s position is that she was very unhappy in Australia and felt isolated and controlled. Her evidence is that the father knew and was told by her that the move to Australia was not working and that she wanted to go back to Ontario to think about things. She says she informed the father that once she left, she would not be returning with the child.

[46] From my review of the facts I find there was mutual intention by the parties to live in Australia with an intention to remain there. The manner in which the parties left Canada with the child had to me all semblance of finality and demonstrated the jointly held settled intention of relocating to Melbourne.

[47] The mother argues that the move to Australia was not intended to be a permanent one and was exploratory only. In support of her position that this was a temporary and trial move, mother relies on her own evidence and the evidence of her family and a friend who reiterate what she told them. She also relies on the fact that she only possessed a visitor’s visa in Australia. It is the father’s position that when they arrived in Australia they had not addressed the mother’s residency and had settled on a visitor’s visa which permitted the mother to remain in Melbourne for three months. Thereafter the plan according to father was to renew her immigration status.

[48] It is not denied that the father has no status in Canada other than as a visitor. The same can be said with respect to the mother’s status in Australia. As part of the father’s material he has filed an application for Australian citizenship for the child. It is the mother’s position this may have been done after she left Australia and in any case, that it was done without her consent.

[49] The parties have no permanent home or residence here in Ontario and when the mother and child came in December, 2012, they stayed with the maternal parents, as was the plan.

[50] Health coverage and bank accounts in Ontario were not changed when the parties left in October, 2012. The mother also states that the child’s pediatrician continues to be the doctor in Ontario. The mother also takes the position that she did not take any steps with Canada Revenue Agency and continued to receive the Child Tax Benefit, Universal Child Care Benefit and Ontario Trillium Benefit. Given the early stage of the move I do not find this unusual. I am not convinced that even in the course of a permanent move the parties would have taken all of these steps at this early stage in the transition, particularly where the parties were coming back to Ontario in January, 2013.

[51] The mother’s supporting evidence to corroborate her position regarding the reasons for leaving Australia and in support of her position that the child’s habitual residence is Canada comes before the court in the form of hearsay evidence which I find difficult to accept.

[52] For the meaning of “settled intention” counsel for the mother referred me to R. v. Barnet London Borough Council, [1983] 2 A.C. 309 at 344 (H.L.), cited in Chan v. Chow, 2001 BCCA 276, [2001] B.C.J. No. 904, at para. 33. In these cases, “settled intention or purpose” is explained in the following manner:

[T]here must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the "propositus" intends to stay where he is indefinitely; indeed, his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

[53] Intention is examined through one’s actions. In this case, the facts as put before me support the finding of habitual residence in Australia. It is not uncommon that in cases such as the one before me there are serious credibility issues between the parties, with each person asserting their respective position. I reject the mother’s submission that I direct a trial of the issue. Given the framework of the Convention the question before me is a question of fact to be decided from the circumstances as put before the court.

[54] I turn now to habitual residence. In Chan, at paras. 31- 32, the British Columbia Court of Appeal set out the following points with respect to habitual residence:

For the purposes of the Convention, the best and most useful definition of "habitually resident" can be found in Re J. (A Minor) (Abduction: Custody Rights), [1990] A.C. 562 at 578 (H.L.) where Lord Brandon stated:

The first point is that the expression "habitually resident" as used in Article 3 of the Convention is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet become habitually resident in country B. The fourth point is that, where a child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.

I accept this definition, particularly, the following points:

1. The question is a question of fact to be decided by reference to all the circumstances of the case.

2. An "habitual residence" is established by residing in a place for an appreciable period of time, with a "settled intention."

3. A child's "habitual residence" is tied to the habitual residence of his or her custodian(s).

[55] In this case, while the mother relies on the fact that she is the custodian of the child, it is only by reason of the present circumstances that she now has the advantage of being the de facto custodian.

[56] The mother argues and relies on the facts in Jackson v. Graczyk, 2007 ONCA 388, 86 O.R. (3d) 183 (C.A.) as support for her position that an appreciable amount of time had not run sufficient to establish habitual residence in Australia. She argues that the child is more acclimatized to Ontario. Given the very young age of the child, acclimatization to new surroundings as a factor has less importance.

[57] The father highlights that it is clear from the jurisprudence that the habitual residence need not be demonstrated to be permanent (Ellis v. Wentzell-Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at para. 23). He further asserts that the Convention does not set a minimum period of time that a child must remain in a country in order for that country to become the child’s habitual residence, and that this period can be less than one month (Fasiang v. Fasiangova, 2008 BCSC 1339, [2008] B.C.J. No. 1892).

[58] In coming to my conclusion on the habitual residence, I also relied on the guidance from the Court of Appeal’s analysis in Korutowska-Wooff v. Wooff, 2004 5548 (ON CA), [2004] O.J. No. 3256 (C.A.), at para. 8. The Court sets out the following principles for determining habitual residence:

i. the question of habitual residence is a question of fact to be decided based on all of the circumstances;

ii. the habitual residence is the place where the person resides for an appreciable period of time with a "settled intention";

iii. a "settled intention" or "purpose" is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;

iv. a child's habitual residence is tied to that of the child's custodian(s).

Acquiescence

[59] On the issue of acquiescence I find that there is no convincing evidence on behalf of the mother to satisfy me that the father consented to the child remaining in Ontario. I agree that he allowed the mother to travel with the child earlier than the planned date of January 14, 2013 in order to accommodate her desire to settle some issue concerning her family.

[60] The mother’s defence on this point does not fit the test or meet the threshold for demonstrating acquiescence. The exchanges between the parties lead me to conclude that it was agreed that the mother and child would travel earlier than planned and that the father would meet them in Ontario. There is no evidence demonstrating that the father agreed to or acquiesced to anything more than an earlier date of travel to Canada with a subsequent return to Australia.

Risk of Harm

[61] In response to the father’s application, the mother raises grave risk of harm to the child if the child is returned as sought by the father.

[62] To meet this defence the onus is on the mother to satisfy me that the return of the child would put her in a grave risk of harm or exposure to an intolerable situation (Parsons v. Styger (1989), 1989 4326 (ON SC), 67 O.R. (2d) 1 (S.C.), affirmed (1989), 1989 4179 (ON CA), 67 O.R. (2d) 11 (C.A.)). As held by the Court of Appeal in Jabbaz. v. Mouammar, 2003 37565 (ON CA), [2003] O.J. No. 1616 (C.A.), pursuant to the Hague Convention, “grave risk of harm” is a “very high threshold” to meet.

[63] It is the mother’s position that she suffered severe abuse at the hands of the father throughout this short marriage and that the abusive behaviour was the catalyst for the breakdown of the marriage. As a result, the mother states she fears for her own safety and the safety of the child. Her position is that the father was uninvolved in parenting and lacks the ability to properly care for the child. On this application my task is not to determine the issues of custody and access but rather to assess risk of harm.

[64] In assessing grave risk of physical or psychological harm I refer to the Court of Appeal decision in Ellis, at paras. 37-38:

Article 13(b) creates an exception to the general rule that a child wrongfully removed or retained in a contracting state should be returned to his country of habitual residence. The provision sets a high threshold of a "grave risk" of physical or psychological harm or otherwise placing the child in an "intolerable situation".

This interpretation is only reinforced when examining the text in its context and in light of the treaty's object and purpose. As stated by Chamberland J.A. in F. (R.) v. G. (M.), 2002 41087 (QC CA), [2002] J.Q. no 3568, [2002] R.D.F. 785 (C.A.), at para. 30:

The Hague Convention is a very efficient tool conceived by the international community to dissuade parents from illegally removing their children from one country to another. However, it is also . . . a fragile tool and any interpretation short of a rigorous one of the few exceptions inserted in the Convention would rapidly compromise its efficacy.

[65] Apart from these very recent allegations there was no indication of harm to either the mother or the child before they left for Australia or once they were there that was of threatening nature.

[66] In the end, the words “grave risk of harm” mean something of a severe and threatening nature that will impact on the well-being and security of the child. I am not able to come to that conclusion here. In assessing what is in the best interests of the child, I must presume that the court with jurisdiction to deal with that determination will do so appropriately in light of the circumstances of the parties.

Conclusions

[67] In the end, after an examination of the law as I find it and the facts of this case as put before me I find:

1. The child is habitually resident in Australia;

2. A return of the child to Australia should be ordered;

3. With the safeguards and undertakings of the father (which I order), the issues of grave risk of harm or otherwise intolerable situation have not been made out so as to prevent this court from ordering the child’s return;

4. The court in Melbourne, Victoria should deal with the issues of custody and access and such temporary order as, in the circumstances, is necessary.

Disposition

[68] Accordingly, the application is allowed.

[69] The child is to be returned to Australia on the following terms and conditions:

1. The child shall remain in the care of the mother;

2. The father, through counsel for the mother, will make flight arrangements for the mother and child;

3. The mother and child shall reside in the home in Melbourne;

4. The father will advance to the mother $15,000.00 forthwith, pending determination of the issues of custody and access and child support;

5. The father should have time with the child as agreed upon through counsel;

6. The father will refrain from consuming any alcohol or drugs within 48 hours of time with the child.

[70] Counsel did not have an opportunity to argue costs and may make submissions in writing if they cannot agree.

KRUZICK J.

Date: March 1, 2013