Adlin & Northern Territory Central Authority (No. 3) - [2021] FamCAFC 70

FAMILY COURT OF AUSTRALIA

Adlin & Northern Territory Central Authority (No. 3) [2021] FamCAFC 70

Appeal from:	Northern Territory Central Authority & Adlin (No.2) [2021] FamCA 200
Appeal number(s):	NOA 20 of 2021
File number(s):	DNC 27 of 2020
Judgment of:	AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ
Date of judgment:	14 May 2021
Catchwords:	FAMILY LAW – APPEAL – CHILD ABDUCTION – Appeal from orders requiring the return of the children to Thailand – Hague Convention – Wrongful retention – Habitual residence – Appeal dismissed – No order as to costs.
Legislation:	Family Law Act 1975 (Cth) ss 94, 94AAA Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A) Hague Convention on the Civil Aspects of International Child Abduction
Cases cited:	Adlin & Northern Territory Central Authority (2020) FLC 94-002; [2020] FamCAFC 313 Allesch & Maunz (2000) 203 CLR 172; [2000] HCA 40 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 House v King (1936) 55 CLR 499; [1936] HCA 40 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 LK v Director General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 White v Overland [2001] FCA 1333
Division:	Appeal Division
Number of paragraphs:	53
Date of hearing:	12 May 2021
Place:	Brisbane (via video link), delivered in Sydney
Counsel for the Appellant:	Mr Coleman SC
Solicitor for the Appellant:	Hague Convention Legal Practice
Counsel for the Respondent:	Mr Nicholls QC with Ms Olsson
Solicitor for the Respondent:	Margaret Romeo

ORDERS

NOA 20 of 2021 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:	12 MAY 2021

ORDERS MADE ON 12 MAY 2021:

The appeal filed on 15 April 2021 against the orders made by a judge of the Family Court of Australia on 15 April 2021 is dismissed.
The Application in an Appeal filed on 11 May 2021 is dismissed.
There be no order as to costs.

IT IS FURTHER ORDERED THAT:

The Application in an Appeal filed on 7 May 2021 is allowed.

.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 Northern Territory Central Authority (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ:

Mr Adlin (“the father”) appeals from orders of a judge of the Family Court of Australia made on 15 April 2021 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 resisted by the Central Authority.
The appeal was argued on 12 May 2021 and at the conclusion of the argument we made orders dismissing the appeal and reserved our reasons. We took the course of immediately making orders in the appeal because we perceived a need to bring finality to the application of the Central Authority to ensure the prompt return of the children in accordance with Australia’s obligations as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
By the time the appeal commenced on 12 May 2021, nearly two years had passed since the children were brought to Australia and retained here by the father.
The Convention to which Australia is a signatory provides a framework for the prompt return of children where they have been wrongfully removed or retained from their country of habitual residence. Australia’s obligations under the Convention are expressed in the Regulations. Once the jurisdictional facts necessary to found a return order are determined[1] and, subject to any of the prescribed exceptions to return being made out, the response to the application is for the child or children to be promptly returned to their country of habitual residence.
[1] Reg 16(1A) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
Our decision then to immediately make orders dismissing the appeal with reasons for those orders to follow in a very short time frame, was in accordance with Australia’s obligation under the Convention.

STAY

After making the orders dismissing the appeal, senior counsel for the father asked that we stay our orders at least until seven days after the reasons had been provided so that the father may seek special leave to appeal to the High Court of Australia. We knew of no source of power that would enable us to stay our orders even were we of a mind to do so. Neither could senior counsel for the father point to any source of power.
Consequently, no stay order was made.

RECUSAL

Some few hours before the appeal hearing was to commence, email notification was received that the father proposed to seek the recusal of each member of the Full Court bench then waiting to hear the appeal.
On 27 April 2021 the solicitors for both parties to the appeal were notified both of the date of the appeal hearing and of the constitution of the bench who would hear the appeal. There was no explanation as to why the application was not at least foreshadowed immediately thereafter.
Nonetheless, we heard argument and each member refused to recuse him or herself. Reasons for that refusal were reserved and our separate judgments will be delivered at a later time.

BACKGROUND

The parents met in 2012 and commenced their relationship in Thailand, living together there from 2013 until March 2019. The children were born in Thailand in 2015 and 2017. The mother was employed full-time as a health care professional and the father was the children’s primary carer assisted by nannies employed by the father and the mother. The mother was the sole financial support for the family.
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. The mother said that before she and the father separated, she too entertained the prospect of moving to Australia to live but for her, it was contingent on her finding work in Australia commensurate with her work in Thailand and on her having the necessary visa. She said that no concrete plan had been made to move, evidence which the primary judge accepted (at [76]). The father, on the other hand, asserted they had decided to do so. The mother has no right to enter Australia and requires a visa to enter and remain. No attempt was ever made to obtain a spouse visa for her to enable her to live in Australia.
From time to time while living as a family in Thailand, the parents and the children travelled to Australia for holidays and to visit relatives. 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 that the mother believed that her relationship with the father was intact until September 2019 when it became apparent to her that the father had no intention of returning to Thailand with the children. The primary judge found during that trip to Australia that the father told the mother that he and the children would return to Thailand within the month, only to tell her on 15 September 2019 that neither he, nor the children, were returning to Thailand and that she was not to contact the children again (at [113]).
Several weeks later, on 10 October 2019, the mother sent the father an email informing him that 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 Central Authority’s application was heard and orders made for the children’s return to Thailand on 22 July 2020. The father successfully appealed that order and on

15 December 2020, the Full Court set aside the orders of the primary judge and remitted the Central Authority’s application to be heard by another judge of the Family Court.[2]
[2] Adlin & Northern Territory Central Authority (2020) FLC 94-002.
The rehearing of the application took place in February and March 2021 and on 15 April 2021, a judge of the Family Court of Australia ordered the children to be returned to Thailand.
The father appealed that decision. It was heard on 12 May 2021 and, as we have said, we dismissed the appeal and made no orders as to costs.

THE REMITTED HEARING

The Central Authority pleaded that the father had wrongfully retained the children in Australia from 10 October 2019, at which time they were habitually resident in Thailand.[3]
[3] Central Authority’s Amended Application Initiating Proceedings filed on 7 January 2021.
The father pleaded that the children were not habitually resident in Thailand at that time and were therefore not wrongfully retained in Australia.[4] However, the case run before the primary judge by the father was somewhat narrowed and he asserted that the children’s place of habitual residence at the time he refused to return them to Thailand, was Australia.
[4] Father’s Amended Response to Hague Convention Application filed on 21 January 2021.
The father contended in his Case Outline document, filed in advance of the trial:[5]
… the [father] resists the application for return on the basis that the children were (at the relevant time) habitually resident in Australia.
…
The subject children were habitually resident in Australia on 10 October 2019 and so the application of the Central Authority is without jurisdiction.
[5] Father’s Case Outline filed 23 February 2021, p.1 and 22.
Senior counsel for the father opened the case to the primary judge in even narrower terms. She said:[6]
[COUNSEL FOR THE FATHER]: … the [father] will contend that either Australia was the place of habitual residence of the children at the relevant time or in the alternative. The children at that time had no place of habitual residence… the primary position which the [father] advocates for is one where the court will find that the children were habitually resident in Australia.
[6] Transcript 25 February 2021, p.23 line 43 to p.24 line 2.
Notwithstanding contending that there was a third position namely that the children had no habitual residence at the time the father refused to return them to Thailand, in closing argument, only one position was advanced on behalf of the father, that is that the children were habitually resident in Australia.
Senior counsel said:[7]
[COUNSEL FOR THE FATHER]: … we identify these [facts] as relevant not because we challenge the children’s place of habitual residence in March 2019 [in Thailand], but rather to understand why they became so well settled in Australia so quickly…
…
[COUNSEL FOR THE FATHER]: In Australia the children have been living between the house which had been purchased and the house boat, and more recently in rental premises to facilitate school, have been immersed in reading and library programs, in swimming lessons organised, in play dates with friends.
…
[COUNSEL FOR THE FATHER]: Because the ties to the first country of habitual residence are so loose, it took no time at all, in our respectful submission, for the children to become habitually resident in Australia…
[7] Transcript 12 March 2021, p.192 lines 39–41, p.202 lines 42–45 and p.203 lines 14–16.
Before turning to the grounds of appeal, it is helpful to set out the primary judge’s findings of fact which underpinned her order that the children be returned. The primary judge also made credit findings adverse to the father. Neither the facts found nor the credit findings were challenged on appeal. Neither was her Honour’s recitation of the relevant law or principles challenged.

HABITUAL RESIDENCE

Her Honour referred to the “well settled” law on this topic, namely LK v Director General, Department of Community Services (2009) 237 CLR 582 (“LK”) and in her reasons set out parts of that decision. In particular her Honour, at [49] of the reasons for judgment, quoted in LK:
34. … when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
Her Honour found that there was no joint intention of the family to permanently relocate to Darwin in March 2019 (at [85]). Although she accepted that the father intended to make Australia his permanent home, the mother did not share that intention at the time the children were retained (at [86]). The mother’s consent to relocate permanently to Australia was conditional on her being able to find employment equal to that she had in Thailand and, subject to holding the relevant visa (at [87]). The primary judge found:
89.In terms of the children’s integration in Thailand, it is accepted by the father that the children were habitually resident in Thailand prior to March 2019, despite his attempts to minimise the children’s connection with that country. Prior to March 2019, [the older child] was not yet 4 years old and [the younger child] was still effectively a baby. I do not find it unusual that the children’s life was centred around their family home and that they were cared for by nannies, with their parents either in the home or at work. I certainly do not accept the proposition that because they did not have such an active life as they enjoyed in Darwin after March 2019, that their ties to Thailand were any less or “loose”, to enable a rapid integration into Australia between March 2019 and October 2019.
Her Honour then found that the children’s integration into their life in Thailand before coming to Australia established that at the date of their retention they were both habitually resident in Thailand (at [90]).
Her Honour continued and discussed the exceptions to return raised by the father in his pleadings and rejected each. He contended that the mother had acquiesced to the children remaining in Australia (at [102]) and that if the children were to return to Thailand without the father, he would be unable to travel because of COVID-19 travel restrictions, and this would expose the children to an intolerable situation (at [153] and [163]).

THE APPEAL

We allowed an Application in an Appeal filed on 7 May 2021 giving leave for the father to rely on an Amended Notice of Appeal. Two grounds of challenge to her Honour’s orders were advanced as follows:
1.The primary judge erred in principle by failing to consider a mandatory or materially relevant consideration, which was whether, by 10 October 2019, the subject children had ceased to be habitually resident in the Kingdom of Thailand, or to have adequately revealed the reasons why the [father’s] case was rejected if her Honour did have regard to that consideration.
2.The learned trial judge erred in finding that the habitual residence of the children… was Thailand at the date of retention of the children in Australia.
Before turning to a consideration of the grounds it is necessary to deal with the nature of an appeal from a decree of the kind made by the primary judge.
The father submitted that we could draw our own inferences from the unchallenged facts found by the primary judge and would conclude that the children had lost their habitual residence in Thailand by October 2019 and thereafter, had either not acquired habitual residence anywhere or had acquired habitual residence in Australia. In other words we were invited to substitute our evaluation of the facts for that undertaken by the primary judge.
We do not agree that this is a course to be followed. We must first be satisfied that the primary judge made a material error of fact, law or of the kind identified in House v King (1936) 55 CLR 499 before we can proceed to give effect to our evaluation of the facts.
All appeals to this court are appeals by way of re-hearing and are not hearings de novo.[8] Appealable error is an indispensable pre-condition to appellate intervention.[9]
[8] Section 94 or s 94AAA of the Family Law Act 1975 (Cth).
[9] Allesch & Maunz (2000) 203 CLR 172; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14] and [75].
In Lee v Lee (2019) 266 CLR 129, the plurality of the High Court said:
55.A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”. Here, the trial judge’s findings of primary fact were not disturbed. However, in material respects, the Court of Appeal found that the inferences that his Honour drew from those findings were wrong…
We accept that Ground 1 asserts error which, if established, would permit us to consider the facts so as to identify the correct outcome. We take Ground 2 to be the father’s contention as to that outcome, however if the latter ground is seen as an invitation to us to substitute our view of the facts for that of the primary judge, it would not be a valid ground of appeal.

Did the primary judge fail to consider whether the children were habitually resident neither in Thailand nor Australia?

Ground 1

The first ground of appeal comprises two separate complaints: first, that the primary judge erred in principle by failing to consider (as a mandatory or materially relevant consideration) whether the children had ceased to be habitually resident in Thailand by 10 October 2019; and in the alternative, if that consideration was taken into account, the primary judge erred by failing to provide adequate reasons to explain the rejection of the father’s contention that the children had ceased to be habitually resident in Thailand by that date.
Regulation 16(1A)(b) of the Regulations, requires the court to be satisfied that the child “habitually resided in a convention country” immediately before the retention. The submission that the question of habitual residence in this case can be answered by a finding that the children were habitually resident in Thailand, Australia or in neither, is not to the point and misstates the finding necessary to be made.
As explained above, the way in which the parties’ pleaded their cases admitted of three alternative findings in respect of the children’s habitual residence, namely that:
·            they were habitually resident in Thailand (for which the Central Authority             contended); or
·            by the relevant date, they had lost their habitual residence in Thailand but had still not acquired any new place of habitual residence; or
·            by then, they were habitually resident in Australia.
Although, as we have said, it was argued that the father advanced two propositions to the primary judge, that is, no habitual residence or, habitual residence in Australia, we are unpersuaded that he did. While there is no doubt that the children having no habitual residence was referred to in opening to the primary judge, nothing more was said to the primary judge about that and her Honour was entirely correct not to take it into account. We come to that conclusion taking into account the transcript references to which we were taken in argument on the appeal. Nowhere in those references was her Honour presented with other than a binary choice – habitual residence in Australia or Thailand.
In a different context, in White v Overland [2001] FCA 1333 in an oft repeated passage said:
4.… Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly…
The same may be said of a contention flirted with in one sentence in an opening never to be addressed again.
As we have said, the first ground was posited on two bases; that the primary judge was required to consider the separate question of whether the children had no habitual residence and to provide adequate reasons for rejecting that contention.
The primary judge said:
86.I find that despite the father’s intention of making Australia his permanent home and the permanent home of the children, at the time of retention, the mother clearly did not share that intention.
87.I accept the mother’s evidence that her consent to relocation to Australia permanently was conditional upon her being able to obtain employment in Australia, at a level commensurate with her employment in Thailand, and that was not possible as at October 2019. I also accept that neither of the parents had taken any steps to secure the mother’s residential status in Australia, as at October 2019.
88.I am mindful that intention is not determinative of habitual residence, however it is one of many factors to be considered and I am bound by the statements in LK, in particular at [34], pertaining to the habitual residence of young children. In this case, there is no ambiguity or uncertainty about the differing intentions of the parents and that the mother did not “assent” to a change in the children’s habitual residence.
89.In terms of the children’s integration in Thailand, it is accepted by the father that the children were habitually resident in Thailand prior to March 2019, despite his attempts to minimise the children’s connection with that country. Prior to March 2019, [the older child] was not yet 4 years old and [the younger child] was still effectively a baby. I do not find it unusual that the children’s life was centred around their family home and that they were cared for by nannies, with their parents either in the home or at work. I certainly do not accept the proposition that because they did not have such an active life as they enjoyed in Darwin after March 2019, that their ties to Thailand were any less or “loose”, to enable a rapid integration into Australia between March 2019 and October 2019.
Thus her Honour concluded:
90.Having considered the evidence of both parties as to the children’s family life, and integration into Thailand, together with my findings as to the divergence of the parents intention of permanently relocating to Australia with the children at that time, I find that the children’s degree of integration into their life in Thailand prior to March 2019, was such that I find that they were both habitually resident in Thailand in October 2019, as at the date of the retention in Australia.
The primary judge’s reasons clearly explain why she found that the children were habitually resident in Thailand at the relevant time and that explanation is a direct answer to the father’s competing submission, and having been found and explained, her Honour needed to proceed no further.
We agree with the submission of Queen’s Counsel for the Central Authority, namely that the challenge misstates the seminal question which is, were the children habitually resident at the date on which they were wrongfully retained. It is a jurisdictional fact necessary to found the relief sought by the Central Authority.[10]
[10] Reg 16(1A) of the Regulations.
Thus we reject the challenge in Ground 1 and having done so, it is unnecessary for us to consider Ground 2. Nevertheless, in respect of Ground 2, we consider that the primary judge’s findings were open on the evidence.
Therefore we dismissed the appeal. The respondent did not seek an order as to costs if the appeal was dismissed.

Application in an Appeal

The father sought to adduce further evidence in the appeal going to a potential appointment for the older child to have surgery. In the event that this evidence was allowed, the mother sought we admit evidence from an expert that the surgery was not urgent. In the result, given our conclusion on the appeal, the Application in an Appeal filed on 11 May 2021 was dismissed.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Austin.

Associate:

Dated: 14 May 2021