Big financial difference. Please help.

[Tayken]

Is the mother Australian? Does she have family there? Parents? This is the only way I can imagine caring for the child for that length of time while in residence, and it would make it more likely that she would choose to remain in Australia.

Well, let us not forget that Australia is the world-leader in 50-50 access / full joint custody ("shared parenting")...

Family & Relationship Services Australia - Information - Shared Parenting: Putting childrenfirst

It is not like the child is being taken to Brazil, Poland or Japan...

Also...

"Unless Australian courts, including this Court, uphold the spirit and the letter of the Convention as it is rendered part of Australian law by the Regulations, a large international enterprise of great importance for the welfare of children generally will be frustrated in the case of this country. Because Australia, more than most other countries, is a land with many immigrants, derived from virtually every country on earth, well served by international air transport, it is a major user of the Convention scheme. Many mothers, fathers and children are dependent upon the effective implementation of the Convention for protection when children are the victims of international child abduction and retention. To the extent that
Australian courts, including this Court, do not fulfil the expectations expressed in the rigorous language of the Convention and the Regulations, but effectively reserve custody (and residence) decisions to themselves, we should not be surprised if other countries, noting what we do, decline to extend to our courts the kind of reciprocity and mutual respect which the Convention scheme puts in place. And that, most definitely, would not, in
aggregate, be in the best interests of children generally and of Australian children in particular.”

Kirby J, Justice of the High Court of Australia, in DP v Commonwealth Central Authority; JLM v DirectorGeneral NSW Department of Community Services

OP, I really wouldn't worry about it... But, you may want to consult an actual lawyer and get solid legal advice on how to best manage the situation. There is little to fear about the Australian government, their medical training program and the other parent even being able to remotely establish the "evidence" of Australia being the habitual residential location. Even if the other parent is a medical doctor and their skills are in high demand.

Your consent has to be given for the child to get a VISA and be registered so they can receive any sort of state funded medical insurance. If you don't allow for a visa to be established for the child then the evidence becomes incredibly weak for the other parent to make any sort of nonsense claim.

You have, in my opinion, as much to be fearful (possibly less) than someone forum shopping inter-jurisdictional in the same province really. For the child to be listed on the parent's VISA it would require the consent of the other parent to do so.

More on Australian VISAs for children can be found here:

http://www.immi.gov.au/migrants/family/family-visas-child.htm

The Australian courts have a VERY strong position on the convention of Hauge and the return of children. See the above quote from Australian case law.

Good Luck!
Tayken

 

[SadAndTired]

Well, let us not forget that Australia is the world-leader in 50-50 access / full joint custody ("shared parenting")...

Family & Relationship Services Australia - Information - Shared Parenting: Putting childrenfirst

It is not like the child is being taken to Brazil, Poland or Japan...

Also...



Good Luck!
Tayken

But again, I would say it is not an abduction if she lists the child on her very legal resident visa. The child would legally be with her. There is no custody order at this point. "De facto" custody would apply and he agreed that the child could go live with his mom.

Even if all of the volumes you post do apply, what is the cost emotionally and financially? Should he bring the child to Australia only to have to fight legally to have him returned?

In a cost/benefit/risk analysis, it doesn't make much sense to me but perhaps she has already signed an employment agreement with a hospital here in Canada and her return is already secured. Perhaps all of your google searches are for nothing Tayken.

And don't forget this was your original advice before your edit.

You have very little to worry about regarding the trip in my personal opinion...

 

[Tayken]

The thing is it's not an abduction. He would be handing the child over to her, in Australia, to stay in Australia, and then leaving.

I don't disagree Mess. It isn't abduction but, it doesn't satisfy the evidence necessary for the parent in question to bring forward an application for custody and access in Australia either.

The evidence of bringing the child and leaving the child does not establish the credible evidence for the mother to claim Australia as the habitual residential location. Under the convention of Hague the OP can bring a motion in Ontario and have the child returned. There are steps to do this.

You don't need a custody agreement to enforce Hauge. In fact, if the father had an agreement in place and the child is not returned within the agreement it could become "abduction (283.(1)) even if custody and access has not been established. There are steps to doing it...

Sorry to say, but, the evidence of a two month "visit" won't win the mother much in an Australian court. In fact it could simply bring the child's return to Canada about much faster possibly. Two months residency for a "visit" isn't enough to establish the requirements under Hague for the Australian court to even hear the matter. A justice probably (in my humble opinion) would return the matter to the Canadian courts on the first hearing of the evidence of a "2 month status quo". Simply because the evidence of the habitual residential location of the child is that weak...

It is neither an opportunity for the mother to establish "habitual location" of the child in accordance with Hague for the matter to even be CONSIDERED by the Australian courts.

To argue otherwise is a waste of everyone's time and only creates unnecessary anxiety in the OP.

There is no existing custody order. While the OP didn't specify, it seems as though the mother must have some significant connection to Australia and probably IS Australian. Otherwise the cost to go to medical school would be phenominal.

Again, the evidence of having family in Australia is not enough to establish that the child's "best interests" are to reside in Australia with the mother. It is a very weak argument in my opinion. Based on the large set of case law I have studied on Hague.

It is easy to establish an order in Ontario as a custodial parent. Just the fact that the father files in Ontario demonstrates that he is acting as a custodial parent by doing so. It abolishes what I think you are trying to say is that he is forfeiting his custodial rights because he took the child and dropped the child off.

Equally OP then can file in the absence of the mother and get sole custody of the child and prevent the visit... Not likely going to work in Ontario either... Lets get real here in the argument. At best the father could prevent the trip and establish very strongly the child's ties to Canada and the province and even municipality they child resides in. But, custody wouldn't churn on this evidence...

The Hague Convention requires wrongful removal. This is explicit.

Mess, you are absolutely correct. What I think you fail to recognize is that the day after the mother doesn't return with the child from the two month visit (or whatever they agree to) the convention of Hague applies. The father can apply in Ontario under Hague for the return of the child and it will be heard and fast.

In fact, the father does this upon the non-return it can be classified as abduction under the Criminal Code under Section 283.(1), destroys the mothers argument that he has given the mother de-facto custody in the matter etc...

The mother won't be able to forum shop from a 2 month visit... The father has to be proactive on the child's return though and non-return.

The mother would not be removing the child. The mother would have equal de facto custody of the child, so there is no interpretation I see that shows that this would qualify as an abduction under the Hague. Therefore no court could hear this.

Disagree. The Ontario court would hear it and fast. The child is in another country, the father sends some emails demanding return, has a few emails and it will be heard and fast. Having assisted others in similar situations personally I can tell you... The courts will hear a matter where a child is in another country and the other parent is not returning.

Hague reads in ARTICLE 1:

The objects of the present Convention are -

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

No mention of "abduction"...

ARTICLE 3 states:

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.

... First step would be for the Ontario court to order Custody to the left behind parent. Second step would be for the Ontario court to order the return. Then the third step would be to file the orders in Australia.

Also, you can reference Section 283.(1) of the Criminal Code and the CLRA to better understand how "wrongful removal" is interpreted. All that is required to act on Hague is an "allegation" of "wrongful removal".

Child is in Australia, I can't exercise article 3.(a) as a custodial parent because the child's habitual residential jurisdiction is Canada. Matter heard... Process started. Allegation made and being investigated.

Hague is all about establishing and determine a child's habitual residential location. 2 months fails under Article 12:

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

2 months... The child shall be RETURNED FORTHWITH in accordance with Article 13...

The OP would have to go to Australia to seek custody in a conventional manner.

There are a variety of ways to have this done and it doesn't require filing in Australia. (See above.) Many of these matters are heard in Ontario and a justice will order custody and access and forward the order to the Hague country... CanLII it...

I agree that the OP should seek out a lawyer with extensive knowledge of the Hague Convention, Immigration Law, and Austrailian Custody Law for a proper answer to this question.Good luck with that.

Google search pops a number of lawyers and if the OP needs a recommendation I would be more than happy to provide them one in a PM.

However there is no clear protection available to guarantee the return of child according to my reading of the Hague Convention.

You are absolutely correct. There is NOTHING that prevents the mother from acting in bad faith to their agreement until she does. The courts as often is stated on this site do NOT make orders on "future beliefs". The parent in question if they have an agreement, even if loosely made verbally, regarding the visit... has strong grounds to bring forward and application under Hague... (See the Hague for more information...)

HCCH | Full text

The only thing this OP has to fear is fear itself...

Good Luck!
Tayken

 

[Freeryder]

Her nor I have ever been to Australia. They simply have procedures there that we don't here. My wife was going to learn them there and take them back here. We lived in Calgary, then moved to Edmonton for med school, then back to Calgary for residency and fellowship, now we are back in edmonton for 8 months (2 of which have passed), and then we are off to Australia for an additional four.

My wife doesn't have a job lined up yet but she hopes to in the next few months. She is trying for Calgary as this is where both our family's are.

Sadly Calgary may not take her and she may have to look elsewhere.

If she leaves me I just don't want to end up in Winnipeg or somewhere away from my family. When I voiced my worries she accused me of trying to ruin her career that we've both been working towards for 14 years.

It really puts me in a tough spot.

 

[Tayken]

[*]The idea that the OP has nothing to worry about is not true. Under a best case scenario - if the mother tries to keep the child - the OP will face years of litigation to determine custody and the return of the child, during which time the OP may not see the child at all. I think this is a lot to worry about.

I disagree. Australia has one of the fastest proceedings of applications and the costs will be awarded in his favour quite possibly. The conduct of the mother should she not return is ample evidence to establish majority access and custody.

Also, many children and their parents return once an application is made for their return. So, often just filing the application in a country (such as Australia) is enough to get the child and parent back. (Or at minimum the child.)

[*]The concept of the mother having family etc. in Australia is relevant for two reasons:

a) It means it is more likely that she may feel that she will keep the child and stay in Australia;

Don't disagree but, it isn't evidence that can be considered under Hague to establish the habitual residential location required to even move forward in her application in Australia.

So, it may be a reason for the mother to stay but, it demonstrates that the mother is not putting the child's best interests first only hers. Suffice to say, the only recourse for the removing parent is to claim some form of abuse to prevent the return.

b) In a conventional custody fight, it puts the best interests of the child on a level playing field, comparing Canada to Australia.

Again, the parent has to establish habitual residential location BEFORE either nation can consider the application of the "best interests" test. It is all well and good to argue this but, the establishment of habitual residential location is primary concern in a Hague application.

Possible Solutions - Using the Hague Abduction Convention

The only objections that can be made on the Application by the defendant:

There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence;

The child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child's views (the treaty does not establish at what age children reach this level of maturity – that age and the degree of weight given to children's views varies from country to country); or

The return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.

Good luck providing the evidence of "grave risk" and "principals of human rights and freedoms" in a case of Australia returning to Canada.

[*]The Hague, to may reading, requires both habitual residence and unlawful removal of the child to apply.

You may want to review:

Possible Solutions - Using the Hague Abduction Convention

You may be under the assumption that a criminal charge or some sort of criminal charge may be required to make a Hague application. You are absolutly incorrect if you are making this assumption. Hauge is a "civil" proceeding and not one that is criminal. The requirements of "evidence" you are placing on bringing forward an application is on the balance not "beyond reasonable doubt".

With the Convention, the emphasis is on the swift return of a child to his or her place of habitual residence where the custody dispute should be resolved.

Here is the requirements to establish an Application:

NOTE: You do not need to have a custody decree to file and application under the Convention. However, to apply for the return of your child, you must:

Have had and been actually exercising a "right of custody" at the time of the abduction ("right of custody" may be joint legal or sole legal custody)

Have not given permission for the child to be removed or, in the case of wrongful retention, to be retained beyond a specified, agreed-upon period of time.

Not sure where you are getting your information from...?

One factor alone is not sufficient. I am not convinced that the unlawful removal requirement is fulfilled, and therefore that the Hague applies in any way. The OP may be wasting his time and facing costs if he tries to use the Hague in court.

See above for the two factors required to make an application. Not sure what you are depending on in your statement but, it is incorrect.

[*]In a conventional custody fight, the habitual residence will carry far less weight, if any. The child must reside in one country or the other. At the age of three, habitual residence will be far less of a factor than, say, the age of ten.[/LIST]

Again, interesting information and opinion but, we are not discussing a "conventional" custody and access issue. We are dealing with one whereby the habitual residential location of the child would have to be established. So, your position although "interesting" really isn't what impacts the establishment of a civil proceeding in accordance with Hague...

Also, see my links provided to examples in case law where the habitual residential location of a child has significant weight in an inter-jurisdictional matter.

Good Luck!
Tayken

 

[Tayken]

Her nor I have ever been to Australia.

So, all the fuss about her not returning from Australia is not applicable. As I stated, I wouldn't worry about the 2 months of time that the child spends in Australia. Just provide a consent letter for the travel that explicitly states the child primarily resides in a specific city in the province of in the country of Canada and that they are just "visiting" and you are ok. No need to worry about "status quo" nonsense that very many people on this forum are often over-anxious about.

When I voiced my worries she accused me of trying to ruin her career that we've both been working towards for 14 years.

It really puts me in a tough spot.

Relocation to another city would allow your wife the challenge and excitement of initiating a new career. While these factors would convenience your wife and likely enhance her life-style, it is not her interests that are the focus of a mobility hearing. It is not necessarily in the child's "best interests" for the child to move.

You are facing an interesting challenge as your wife is a GI and they have a more complex situation of finding work than most specialists. They are dependent on hospitals that have available equipment. You go where the equipment is quite often.

You have a hard case on your hands. I am not going to hold any punches. You are not working, you can move and the employment of your wife may very well dictate where the child resides. But, you equally have an interesting claim as the majority access parent due to your wife's employment.

You need to seek out proper legal advice as your matter is complex and well out of the potential norms of family law.

I encourage you to see the "grey" in your situation and not view all matters as "black and white". Don't be anxious of things that haven't happened yet. Understand what could happen so you are not "shocked" when they happen and you know how to react. Don't let your anxiety eat you up. There is no shame in seeking out a mental health clinician to help you sort out and understand your emotions.

Good Luck!
Tayken

 

[takeontheworld]

To the OP, if you are ok with "what if" she doesnt return him then by all means all him to go.

 

[SadAndTired]

More on Australian VISAs for children can be found here:

Child Visa Options - Family - Migrants - Visas & Immigration

No Tayken, that is where you are mistayken.

From the very same website you linked to, here is the link for occupational training which may be the umbrella the OP's wife would be under.

Occupational Trainee Stream - For Visa Applicants

If you look under "What this VISA lets you do", you will see:

This visa will allow you to:
- enter Australia after your visa is granted
- remain in Australia for the period of the training
- undertake the work or activity specified in your visa application
- bring any eligible secondary applicants (family members) with you to Australia
- enter Australia once or on multiple occasions during the visa validity period.

And this is what I was trying to say.

My children did not need their own VISAs.

There was no separate application process nor a separate approval process. None.

They just were allowed to enter the country under my VISA or my ex's. I travelled extensively without him. No one asked for custody papers. We didn't have to give approval for the children to be listed on the VISA. They just were.

You can google all the immigration materials you can find. The OP has a unique situation because his wife is still a medical resident. Student VISAs and opportunities to medical students/residents are very different than that which is offered to someone just wanting to go to a foriegn country and work. We did it as a family Tayken. We really did.

Your information may be fancy (and copied from the net) but regular immigration information does not apply to student visa and medical residency.

 

[SadAndTired]

So, all the fuss about her not returning from Australia is not applicable.

Can you guarrantee him that? Can you ensure they won't love her work and offer her a position? As the OP has said, she does not have a secured position yet in Canada. An offer from Australia could be awfully appealing.....

By the way, I am done now. I hope my points have been made. The OP can make his own decisions and seek proper legal advice.