Adlin & Northern Territory Central Authority - [2020] FamCAFC 313

FAMILY COURT OF AUSTRALIA

Adlin & Northern Territory Central Authority [2020] FamCAFC 313

Appeal from:	Northern Territory Central Authority & Adlin [2020] FamCA 594
Appeal number(s):	NOA 53 of 2020
File number(s):	DNC 27 of 2020
Judgment of:	AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ
Date of judgment:	15 December 2020
Catchwords:	FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention – Wrongful retention – Appeal from orders requiring two children to return to Thailand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the primary judge was obliged to make a finding as to the place of the children’s habitual residence but did not do so – Return order made without power – Error of law – Appeal allowed – Matter remitted for rehearing.
Legislation:	Family Law Act 1975 (Cth) s 93A(2) Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules 2004 (Cth) Pt 15 Hague Convention on the Civil Aspects of International Child Abduction Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15(2), 16(1), 16(1A), 16(3)
Cases cited:	Commonwealth Central Authority & Cavanaugh (2015) FLC 93-682; [2015] FamCAFC 233 LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 MW v Director-General of the Department of Community Services (2008) 244 ALR 205; [2008] HCA 12 Re F (A Minor) (Child Abduction) [1992] 1 FLR 548
Division:	Appeal Division
Number of paragraphs:	40
Date of hearing:	7 December 2020
Place:	Brisbane (via video link)
Counsel for the Appellant:	Ms Christie SC
Solicitor for the Appellant:	Hague Convention Legal Practice
Counsel for the Respondent:	Ms Olsson
Solicitor for the Respondent:	Margaret Romeo

ORDERS

NOA 53 of 2020 DNC 27 of 2020
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:	MR ADLIN Appellant
AND:	NORTHERN TERRITORY CENTRAL AUTHORITY Respondent

ORDER MADE BY:	AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ
DATE OF ORDER:	15 DECEMBER 2020

THE COURT ORDERS THAT:

The Application in an Appeal filed on 16 November 2020 is dismissed.
The appeal is allowed.
The orders made on 22 July 2020 are set aside.
The proceedings are remitted for rehearing.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adlin & Northern Territory Central Authority has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

This is an appeal brought by the father from orders made by a judge of the Family Court of Australia on 22 July 2020 under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), granting the application of the respondent (“the Central Authority”) and compelling the parents to ensure their two children were returned promptly to the Kingdom of Thailand (“Thailand”) from Australia.
The appeal was initially resisted by the Central Authority but, for the reasons which follow, the appeal should be allowed.

BACKGROUND

The parents formerly cohabited in Thailand, where the children were born in 2015 and 2017. The mother was employed full-time as a health care professional and the father was the children’s primary carer.
The mother is a citizen of Thailand and the father is an Australian citizen, but each child holds dual citizenship in Thailand and Australia.
During their relationship, the parents discussed the prospect of the family moving from Thailand to live permanently in Darwin, Australia, but in these proceedings they were at odds over whether they had struck any concluded agreement to relocate. The father asserted they had decided to do so, whereas the mother contended they had not, because the relocation was contingent upon her finding comparable employment in Australia commensurate with her qualifications, which had so far eluded her.
In late 2018, the parents decided to travel to Australia with the children in May 2019 for a holiday, but their plans changed unexpectedly when the paternal grandfather died in Australia. With the mother’s consent, the father and the children brought forward their departure to Australia and left in late March 2019 to attend the funeral. The father and children have lived in Australia ever since.
The father was reluctant to return to Thailand after the funeral and, on 5 April 2019, the mother consented to the children remaining in Australia with the father for the time being. She did not then travel to Australia in May 2019 to join them on holidays, as had been originally planned.
Later, the father assisted the mother to obtain a tourist visa to enter Australia, which was eventually granted in August 2019. The mother arrived in Darwin on 10 September 2019, but she returned to Thailand shortly afterwards on 16 September 2019. The primary judge found the state of the parents’ relationship during that week in Darwin was “uncertain” (at [35]).
The father refused to return with the children to Thailand in the mother’s company at that time. He alleged he was intent on keeping the children in Australia permanently, but the mother alleged she only acceded to his request to remain in Australia with the children for another month, which conflict in the evidence was not resolved by any factual finding.
Several weeks later, on 10 October 2019, the mother sent the father an email informing him she believed the children should be returned to her in Thailand. He refused.
The mother decided to separate from the father as from 1 November 2019 and, acting upon her request, the Central Authority instituted proceedings under the Regulations in the Darwin registry of the Court in January 2020, seeking the children’s return to Thailand.
The trial was heard over several days between May and July 2020, with the orders pronounced and the reasons delivered on 22 July 2020.
The father’s application to stay the appealed orders was granted on 26 August 2020 and so the appealed orders are now stayed until this appeal is determined.

THE APPEAL

Pursuant to reg 16(1) of the Regulations, if the Central Authority proves either that the subject children’s removal from or retention in a country which has signed the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) was wrongful, then the primary judge is obliged to order the children’s return to the country of their habitual residence, subject to the exercise of residual discretion prescribed under reg 16(3) of the Regulations.
The dichotomised terms of reg 16(1) therefore make it vitally important for the Central Authority to clearly identify whether it is prosecuting a case of the children’s wrongful removal from or retention in a Convention country and, in the case of retention, when the retention was alleged to begin (LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) at 589–590 and 600).
In either case, the removal or retention is wrongful if certain conjunctive conditions prescribed under reg 16(1A) of the Regulations are satisfied. In this particular case, there was no dispute that all but one of the conditions was fulfilled. The only element which the Central Authority and the father disputed was the children’s place of habitual residence at the time of their alleged wrongful retention (reg 16(1A)(b)).
Turning then to the parties’ pleadings, the Central Authority contended the father wrongfully retained the children in Australia from 10 October 2019, though that represented an amendment of the originally pleaded date of 5 April 2019. It furthermore asserted the children were habitually resident in Thailand immediately before their wrongful retention. Conversely, the father pleaded the children were habitually resident in Australia and were not wrongfully retained away from Thailand.
Given the state of the pleadings, only one issue required determination by the primary judge: the place of the children’s habitual residence as at 10 October 2019; which is a factual, not discretionary, finding.
If, at the relevant time, the children’s place of habitual residence was Australia (as the father alleged) then their retention in Australia was not wrongful and the Central Authority’s application had to be dismissed. On the other hand, if it was Thailand (as the Central Authority alleged) then the children’s retention in Australia was wrongful and the Central Authority’s application had to succeed.
The decision was binary, save for the unlikely prospect of an alternate finding that the children had lost their habitual residence in Thailand and not yet acquired replacement habitual residence in Australia (LK at 594–595), but the Regulations tend in favour of finding children have an habitual residence for otherwise they cannot be protected from abduction (Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 555–556; Commonwealth Central Authority & Cavanaugh (2015) FLC 93-682 at [29]).
The father did not alternatively plead that, in the event of a finding of his wrongful retention of the children in Australia, the primary judge should still exercise residual discretion and decline to order the children’s return to Thailand under one of the confined heads of power prescribed by reg 16(3) of the Regulations.
Those defences comprise (in summary) contentions that:
(a)the person seeking the child’s return was not actually exercising “rights of custody” in respect of the child when removed to or retained in Australia and such rights would not have been exercised if the child had not been removed or retained (reg 16(3)(a)(i));
(b)the person seeking the child’s return consented or subsequently acquiesced to the child’s removal to or retention in Australia (reg 16(3)(a)(ii));
(c)there is a grave risk the child’s return under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (reg 16(3)(b));
(d)the child strongly objects to being returned and possesses the maturity which requires such views to be taken into account (reg 16(3)(c)); or
(e)the child’s return would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms (reg 16(3)(d)).
Despite the father’s failure to plead any such defence, he adduced evidence and foreshadowed submissions in his Case Outline document which engaged reg 16(3)(b) of the Regulations. He contended the children’s forced return to Thailand would entail the grave risk of their exposure to physical harm by reason of their infection with the COVID-19 virus, and further, they would be placed in an intolerable position if removed from his primary care upon return to Thailand. The defence was considered and rejected by the primary judge (at [207]–[218]).
Nor did the father plead any defence under reg 16(3)(a)(ii) of the Regulations, to the effect that the mother acquiesced to the children’s permanent residence in Australia after their retention, but he made submissions on that topic too. The defence was considered and rejected by the primary judge (at [62] and [142]–[206]) and no ground of appeal is directed to that finding.
Four of the five grounds of appeal (Grounds 1, 2, 3 and 5) concern the determination required of the primary judge about the place of the children’s habitual residence immediately before their alleged wrongful retention in Australia.
The parties’ pleadings obliged the primary judge to decide whether the Central Authority had proven the children were habitually resident in Thailand immediately before the mother demanded their return from Australia on 10 October 2019. Unless and until that finding was made, the primary judge had no power under the Regulations to make the return order. But no such finding was ever made.
The primary judge’s decision was instead based on an admixture of observations about their removal from Thailand with the mother’s consent in March 2019, their subsequent retention in Australia with or without the mother’s consent or acquiescence, and the mother’s exercise of “rights of custody”, as these relevant excerpts from the reasons for judgment show:
54.The Central Authority must prove that the mother was exercising her rights of custody prior to the children’s removal from Thailand and that their removal was wrongful. That must be established before my obligation to return the children pursuant to sub-regs 16(1) and 16(1A) of the Child Abduction Regulations are activated.
…
62.Even assuming that the Court determines that the settled intention for the children is that Thailand is their habitual place of residence, the father relies upon the defence of consent namely, that the father travelled with the children to Australia with the mother’s informed consent that Australia would be their place of residence, or in the alternative, following their arrival in Australia the mother acquiesced to the children residing in Australia permanently.
…
67.The third question pursuant to sub-reg 16(1)(c) is whether the Central Authority has satisfied the Court that the children’s removal or retention was wrongful under sub-reg 16(1A).
…
70.The second factor pursuant to sub-reg 16(1A)(b) is whether the children were habitually resident in a convention country immediately before their removal.
71.The parties are not agreed as to the children’s place of habitual residence...
…
137.As discussed, I am satisfied that for the purposes of sub-regs 16(1A)(e)(i) and (ii), at the time of the children’s retention in Australia the mother was exercising her rights of custody and would have exercised those rights if the children had not been retained.
138.Accordingly, the Central Authority has satisfied me that the children’s retention in Australia was wrongful within the meaning of sub-reg 16(1A). I am obliged to make a return order as requested by the Central Authority subject only to the applicability to any of the exceptions contained in sub-reg 16(3).
(Emphasis added)
As can be seen, the primary judge appears to have ultimately determined the father’s retention of the children in Australia was wrongful – but only because the mother had and was exercising “rights of custody” in respect of the children (at [137]–[138]). However, it was never in dispute that the mother had and was exercising such rights of custody (regs 16(1A)(c) and 16(1A)(e)). It was conceded (at [60]).
The solitary contentious element in determining if the children’s retention was wrongful was always whether Thailand was the children’s habitual place of residence as at 10 October 2019, when they were withheld in Australia by the father without the mother’s consent (reg 16(1A)(b)). Despite devoting much of the reasons for judgment to the discussion of relevant legal principles and the parties’ contentious evidence about the children’s habitual residence (at [71]–[138]), the primary judge failed to make a finding about the single critical issue. Consequently, the return order was made without power and constituted an error of law.
The error of law vitiates the decision and must result in the appeal being upheld, which the Central Authority had no option but to concede.
Since the appeal succeeds for an error of law, there is no need to receive further evidence in the appeal to demonstrate error and so the father’s Application in the Appeal to adduce further evidence pursuant to s 93A(2) of the Family Law Act 1975 (Cth) should be dismissed.

DISPOSITION

How then to finalise the appeal? The Central Authority proposed that the whole of the proceedings be remitted for rehearing, with which approach the father agreed.
We reluctantly agree that is now the only option, but three aspects of the proceedings should be emphasised to ensure the rehearing is prompt and efficient: the delay to date; the lack of specificity in the pleadings; and the lack of attention to evidentiary detail.
For reasons which could not be adequately explained to us in the appeal, it took some months for the trial to start and, when it did start, took numerous days to complete. Neither party suggested that either the COVID-19 pandemic or the remote hearing contributed to the delayed start or extended hearing.
The Regulations oblige a court to give an application such priority as will ensure it is dealt with “as quickly as a proper consideration of each matter relating to the application allows” (reg 15(2)). Whilst the need for expedition “does not yield any general, let alone inflexible, rule prohibiting cross-examination” (LK at 590), the summary nature of the proceedings must still be kept firmly in mind by both the litigants who are obliged to confine their evidence to the central issues and by the trial judge who must be astute to control the proceedings so there is “prompt decision-making” but not “a peremptory decision” based upon a “patently imperfect record” (MW v Director-General of the Department of Community Services (2008) 244 ALR 205 at [49]).
As we have explained by reference to the pleadings, until the father belatedly raised the discretionary defences, there was only one contentious issue: the identification of the children’s place of habitual residence on 10 October 2019. Yet the parties, particularly the father, filed volumes of evidence which could not possibly bear upon that issue or even the discretionary defences raised by him, much of which was the subject of cross-examination, making the hearing disproportionately long. Quite what the air quality in K City, the competence of various nannies, or the nature of some correspondence to them (to identify just a few examples) had to do with the issues is beyond us. Much of the evidence should not have been adduced, admitted or permitted to be the subject of cross-examination or submissions, in which case the duration of the hearing is likely to have been much shorter and, most likely, could have been heard much sooner. The parties, not the primary judge, bear principal responsibility for that.
The parties’ distraction from the essential issues started with their inattention to the pleadings. The remaining ground of appeal which we have not so far addressed (Ground 4) concerned a finding made by the primary judge in connection with the rejection of the lately raised reg 16(3)(b) defence and was the subject of the father’s application to adduce further evidence in the appeal. Such evidence related to the difficulty he would experience returning to Thailand with the children, if forced to do so, and their likely separation from him for a protracted period if that occurs. The Central Authority opposed the admission of such further evidence in the appeal, which was understandable because, on the pleadings, it was not prepared to meet any defence mounted under reg 16(3)(b) at the trial. Now the father’s reliance upon such defences is patent, he must plead the actual terms of his defences so the parties will then know the nature of the evidence they will require at the rehearing.
More specifically, the parties need to address the expert opinion evidence upon which they seek to rely, because the position at trial was far from clear. The Central Authority indicated its reliance, in both its Amended Application and Case Outline document, upon the affidavit evidence of a Thai lawyer. The father expressly consented to the Central Authority’s reliance upon that lawyer’s evidence and did not require him for cross-examination. In the reasons for judgment, the primary judge did not acknowledge the Central Authority’s reliance upon such evidence (at [42]), but mentioned the evidence obliquely (at [213]–[214]). The father indicated his reliance, in his Answer and Cross Application, upon the affidavit evidence of another Thai lawyer, though his Case Outline document did not expressly do so. Albeit for different reasons, both parties believe the evidence of the father’s lawyer was excluded, though the father’s counsel still briefly referred to it in final submissions. The Central Authority asserted the father voluntarily relinquished any reliance upon his lawyer’s evidence at trial, but the transcript does not resolve the conflict. It seems that the parties gave no consideration to the engagement of a single expert witness, as Pt 15.5.2 of the Family Law Rules 2004 (Cth) requires.

By reason of the delay so far incurred in the trial and appeal process, the rehearing should be fixed as soon as possible.
The appeal succeeded due to an error of law, not induced by the Central Authority. There was no application for costs and no application for costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Austin.

Associate:

Dated: 15 December 2020