Intolerable situation

by | Jun 3, 2022

Intolerable situation

Comar & Comar,
Appeal Court Australia, 24 April 2020, FamCAFC 99


Grave risk

In this case, the court had denied the children’s return to Columbia because there was a serious risk that, if returned, the children would be exposed to a physical or mental danger, or in any other way be placed in an intolerable situation.

The primary court had had concluded a.o. that:

  • The father works full-time and at times away from the home. Support for the children has not been identified by the father as being provided by anyone well known to the children;
  • The mother had a long history of mental health challenges;
  • If the mother would return to Columbia, there would be a likely adverse effect on her parenting where she had separated from the father and would not have the familiar support of her family and Australian mental health practitioners;
  • The father in his affidavit did not set out any arrangements for the children and the mother to live in Columbia, similar, for example, to those contemplated by Butler Sloss LJ observed in C v C (supra) at (470), for example:

i) allowing the children to remain in the primary care of the mother pending any determination of a Columbian Court;
ii) providing the mother with access to safe transport;
iii) provide or facilitate the mother and children having secure furnished accommodation within convenient distance of the school they were attending;
iv) provide financial support for reasonable living expenses, education expenses and medical expenses;
v) ensure the current level of private health insurance is maintained.

  • There is no evidence that these types of “conditions”, if imposed and sustainable, would in any event alleviate the grave risk that would exist.


Appeal court

The Appeal Court held that the judge and the Family Consultant had not taken into account the father’s (unchallenged) statement about how he would care for the children if the children were returned, and that therefore the primary judge made errors in reaching the finding of grave risk. It refers the case for a new hearing of the primary court. The Appeal Court grants to each of the parties a costs certificate pursuant to section 8 of the Federal Proceedings (Costs) Act 1981.


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