Bamfield & Secretary, Department of Communities and Justice

[2022] FedCFamC1A 35

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Bamfield & Secretary, Department of Communities and Justice [2022] FedCFamC1A 35   

Appeal from:

Department of Communities and Justice & Bamfield [2021] FedCFamC1F 263

Department of Communities and Justice & Bamfield (No.2) [2022] FedCFamC1F 2

Appeal number(s):

NAA 2 of 2022
NAA 3 of 2022

File number(s):

SYC 1833 of 2021

Judgment of:

ALDRIDGE, HARPER & CHRISTIE JJ

Date of judgment:

14 March 2022

Catchwords:

 FAMILY LAW – APPEAL – CHILD ABDUCTION –
Hague Convention – Appeal from orders requiring the return of the child to Belgium – Habitual residence – Jurisdiction – Intolerable situation – Where the child is of First Nations Australian heritage – No error in fact or law – Findings were open on the evidence – Weight challenges – Adequacy of reasons – No error established – Appeal dismissed – No order as to costs.   

Legislation:

Family Law Act 1975 (Cth) ss 93A(2), 111B
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Council Regulation (EC) No 2201/2003
Family Law (Child Abduction Convention) Regulations 1986 (Cth) Sch 1, reg 16
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children
Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640; [1996] HCA 5
DP v Commonwealth Central Authority (2001) 206 CLR 401; [2001] HCA 39
House v The 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
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Number of paragraphs:

93

Date of hearing:

17 February 2022

Place:

Sydney

Counsel for the Appellant:

Ms Clifford

Solicitor for the Appellant:

Hague Convention Legal Practice

Counsel for the First Respondent:

Ms Hartstein

Solicitor for the First Respondent:

Secretary, Department of Communities & Justice

Counsel for the Second Respondent:

Ms Hartstein

Solicitor for the Second Respondent:

Adverlat Advocaten

Counsel for the Independent Children’s Lawyer:

Mr Harris

Solicitor for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

NAA 2 of 2022
NAA 3 of 2022
SYC 1833 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BAMFIELD

Appellant

AND:

AND:

SECRETARY, DEPARTMENT OF COMMUNITIES & JUSTICE

First Respondent

MR Q

Second Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	ALDRIDGE, HARPER & CHRISTIE JJ
DATE OF ORDER:	14 MARCH 2022

THE COURT ORDERS THAT:

Applications

1.Leave is granted to the appellant to file and rely on the Amended Notice of Appeal dated 28 January 2022 and the application is allowed.

2.The appellant is granted leave to file the Application in an Appeal dated 14 February 2022 and the application is allowed in part.

3.The first respondent is granted leave to file the Application in an Appeal dated 15 February 2022 and the application is allowed.

Appeal No. NAA 2 of 2022

4.The Application in an Appeal filed on 3 February 2022 is allowed in part.

5.Appeal No. NAA 2 of 2022 is dismissed.

6.There be no order as to costs.

Appeal No. NAA 3 of 2022

7.Appeal No. NAA 3 of 2022 is dismissed.

8.There be no order as to costs.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bamfield & Secretary, Department of Communities & Justice has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE, HARPER & CHRISTIE JJ:

INTRODUCTION

1. This is an appeal from orders made pursuant to the Family Law (Child Abduction) Regulations 1986 (Cth) (“the Regulations”) that X (“the child”) be returned to Belgium. The child was born in 2020 in Belgium and was brought to Australia by her mother, Ms Bamfield (“the mother”) on 17 September 2020. The mother informed the father, Mr Q (“the father”) on 12 November 2020 that she and the child would not be returning to Belgium. The application for the child’s return was made by the Secretary of the NSW Department of Communities and Justice (“the State Central Authority”) at the request of the father. Orders were made for the return of the child, along with extensive conditions attached to the return, on 8 December 2021 and 20 December 2021.

2. The mother appealed against both sets of orders on 4 January 2022.

3. A significant issue during the hearing was whether the child was habitually resident in Belgium as at the date of wrongful retention (as the State Central Authority contended) or alternatively, whether the child was either habitually resident in Australia or lacked a place of habitual residence (as the mother contended). The primary judge found the State Central Authority had established that the child was habitually resident in Belgium.

4. At the conclusion of submissions during the hearing, counsel for the mother accepted the contention that the return of the child would place the child at grave risk of physical harm could not be maintained. Accordingly, the Court was invited to dismiss the application of the State Central Authority on the basis that the return of the child would expose her to an intolerable situation. Counsel for the mother contended an intolerable situation arose where the child’s parenting arrangements would fall to be determined by a Court in Belgium, whose members would not be required, by reference to specific statutory mandate, to consider the child’s First Nations Australian heritage. That submission was not accepted.

5. In Appeal No. NAA 2 of 2022 the mother submitted that the primary judge erred in each of the above conclusions and in the order for the return of the child on 8 December 2021. In Appeal No. NAA 3 of 2022 the mother contended that the orders made on 20 December 2021, which provided for the mechanics of the return and the conditions of return, were wrongly made.

6. The Independent Children’s Lawyer opposes the appeal.

   Proceedings in Australia

7. The father’s application to the Belgian Central Authority was dated 21 December 2020. The father signed an authorisation permitting the State Central Authority in Australia to act on his behalf in the Australian proceedings on 5 January 2021. The NSW Department of Communities and Justice, as the State Central Authority, filed the Form 2 Initiating Application in the proceedings on 16 March 2021.

8. The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”), in its preamble, speaks of protecting children from the effects of wrongful removal or retention by member states establishing “procedures to ensure their prompt return to the State of their habitual residence”.

9. Schedule 1 of the Regulations sets out the text of the Convention in full and art 11 provides that the judicial authority concerned (here, the Family Court of Australia and now the Federal Circuit and Family Court of Australia (Division 1)) should reach a decision within six weeks of hearing the State Central Authority’s case.

10. The necessity to hear and determine matters promptly has been the subject of discussion by the High Court of Australia (“the High Court”) in De L v Director-General NSW Department of Community Services (1996) 187 CLR 640. Whilst his Honour Justice Kirby was in the minority in this decision, his comments below about delay at 667 were echoed by the majority:

    Whilst due allowance must be made for the complexity of some of the questions raised… delays have accumulated to defeat the apparent purposes of the Convention, the Act and… the Regulations.

    …

    The objective fact is that it has taken the Australian legal system more than eighteen months to complete its decision in this case. This offends the spirit of Article 11 of the Convention which provides:

    “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

    If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of the commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay…”

11. It is easy to see why prompt disposition of such applications is in the interests of children.

12. In this case the child was seven months old when she left Belgium. Her father anticipated the child would be away for a few months. When the child did not return as scheduled, he took prompt action in Belgium. At the time of the appeal the child had been in Australia since September 2020. The child is now two years old. In that time she had not spent any face to face time with her father.

13. The matter was listed for final hearing on 22 July 2021. While we have much sympathy for the workload of primary judges, there is nothing in the reasons for judgment which explains why the matter having been filed on 16 March 2021, was not allocated a final hearing until 22 July 2021. The matter was heard over three days in July 2021. It came back before the Court on 8 December 2021, at which time the primary judge ordered the return of the child and adjourned the matter to hear the parties further on the conditions, ultimately making further orders on 20 December 2021. Accordingly, nine months has passed between filing the urgent application and determination.

14. As will be seen below, the effect of the delay was that the Court in the country of habitual residence heard and determined the proceedings in respect of the child on a final basis ahead of the matter being listed for appeal.

15. Cognisant of the need for prompt decision making, the appeals filed on 4 January 2022 were heard on 17 February 2022.

    Proceedings in Belgium

16. Somewhat unusually, but certainly not impermissibly, parenting proceedings concerning the child took place in Belgium concurrently with the Convention proceedings in Australia.

17. The proceedings in Belgium were commenced by the father on 25 January 2021 in the Court of First Instance in City XY, Family Court (“the Belgian Court”).

18. The mother was represented and participated through her Belgian lawyers in those proceedings (“the Belgian proceedings”).

19. In the first affidavit, filed on 25 May 2021 by the mother in Australia, she referred to being aware of having been served with documents in the Dutch language and subsequently having been told that the father had discontinued his custody case, but she understood the divorce was to be finalised on 27 May. At that stage, she indicated to the Court that she had asked her solicitor to provide details in respect of the Belgian proceedings but was yet to receive correspondence.

20. The position taken by the mother in the Belgian proceedings was the subject of evidence by a Belgian lawyer acting on behalf of the father, Ms GG. In that material, Ms GG indicated that the mother was represented at the Belgian Court on 4 February 2021 at which time the case was adjourned to 25 February 2021 (Affidavit of Ms P filed on 18 June 2021, Annexure B, paragraph 9).

21. Further, in reliance upon the evidence of Ms GG, an attorney represented the mother when the matter was before the Belgian Court on 25 February 2021 and the mother’s attorney did not raise an objection to the jurisdiction of the Belgian Court being exercised (Affidavit of Ms P filed on 18 June 2021, Annexure B, paragraph 10).

22. On 25 May 2021, the mother’s attorney filed a document, referred to in the evidence as her “conclusions” (effectively submissions) in the Belgian Court. In those submissions, the mother accepted the jurisdiction of the Belgian Court based on the habitual residence of the parties and, it follows, the child (Affidavit of Ms P filed on 18 June 2021, Annexure B, paragraph 11). It was accepted by the mother that the Belgian Court had jurisdiction in relation to the matter based on art 3(1) of the Council Regulation (EC) No 2201/2003 of 27 November 2003 (“Brussels IIA Regulation”) that is, the habitual residence of the mother and the father. Ms GG’s evidence indicated that art 8 of Brussels IIA Regulations states in matters of parental responsibility over a child, the courts of a member state where a child is habitually resident at the time the court is seized of the matter, shall have jurisdiction (Affidavit of Ms P filed on 18 June 2021, Annexure B, paragraph 16).

23. Both parties made written submissions in the Belgian proceedings. The submissions on behalf of the mother were filed with the Belgian Court on 7 December 2021 (Affidavit of Ms P dated 15 February 2022, paragraph 10(b)). Those submissions again conceded that the parties were habitually resident in Belgium.

24. The submissions referred to the mother’s connections with Australia and the maintenance of those connections, but did not explicitly challenge jurisdiction based on habitual residence.

25. The submissions filed on behalf of the mother in the Belgian Court did not raise the status of the child or the mother as First Nations Australians. The closest the mother’s submissions in the Belgian Court came to raising the issue of the child being First Nations Australian, was that if a relocation to Australia were permitted, then the mother and the child could “once again be part of a social, cultural and professional network, where parental rights can be plainly respected” (Affidavit of Ms P dated 15 February 2022, Annexure B, p.8).

26. In the mother’s submissions, she set out her parenting proposal. She proposed that the child reside with her in Australia. She made no concrete proposal about her own time with the child (in Australia or Belgium) in the event that the Belgian Court determined that the child should live in Belgium.

27. Following receipt of the submissions filed on behalf of the mother and father in the Belgian Court, the Court proceeded to deliver reasons and make orders on a final basis on 6 January 2022. Those orders provided for the child to live in Belgium with the father.

    THE APPEALS

28. In the Amended Notice of Appeal dated 28 January 2022 and filed with leave on 17 February 2022, the mother grouped the grounds of appeal in two parts: the first relating to habitual residence and the second relating to the defence of grave risk of the child being placed in an intolerable situation.

29. The mother sought that we set aside the orders, re-exercise the discretion of the primary judge, and dismiss the application of the State Central Authority for the return of the child.

    Applications to adduce further evidence

30. On 3 February 2022, the mother filed an application to adduce further evidence. That evidence included:

    (a)An affidavit sworn on 11 January 2022 of Ms R, a solicitor at the State Central Authority, attaching:

    (i)A statement by the father dated 11 January 2022, prepared in opposition to the mother’s application for a stay (Annexure A);

    (ii)A document entitled “[City XY, Family Court] Judgment” dated 6 January 2022 (Annexure B); and

    (iii)A document titled “Basic Immunisation schedule” (Annexure C);

    (b)An affidavit sworn on 2 February 2022 by Ms O, an engagement worker at M Services, attaching a Cultural Care Plan for the child;

    (c)An affidavit sworn on 2 February 2022 by Mr R, a worker at P Health Services, attaching a Cultural Care Plan for the child dated 21 December 2021.

31. On 14 February 2022, the appeal registry received a further application to adduce further evidence from the mother. That evidence included:

    (a)An affidavit sworn on 8 January 2022 by Ms K, a psychologist, attaching a report dated 2 February 2022; and

    (b)A transcript of the proceedings before the primary judge on 11 January 2022 (the stay application).

32. On 15 February 2022, the appeals registry received an application to adduce further evidence from the State Central Authority. That evidence included:

    (a)Written submissions made on behalf of the father in the Belgian Court dated 24 November 2021 (translated from Dutch to English); and

    (b)Written submissions made on behalf of the mother in the Belgian Court dated 7 December 2021 (translated from Dutch to English).

33. Rule 13.39(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that a party to an appeal who seeks to apply for an order that the Court receive further evidence must file an application 14 days prior to the commencement of the hearing. The first application to adduce further evidence was filed in time and leave is not required.

34. The question of whether or not further evidence should be admitted is an exercise of the discretion conferred by s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Section 35 is in a similar vein to s 93A(2) of the Family Law Act1975 (Cth) (“the Act”) which it replaces.

35. Where the discretionary power is conferred by statute and the statute is silent as to the matters to be considered, as is the case here, the exercise of the discretion is governed by the subject matter with which the legislation is concerned. It must also be exercised “judicially and consistently with the judicial process”: CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at [53]).

36. The Rules require a party making an application to adduce further evidence to state, in his or her affidavit in support of the application, the reasons why the evidence sought to be adduced was not adduced prior to the hearing. This is in recognition of the fact that while the terms of s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) do not prevent the receipt of evidence which could have been adduced at trial and was not, its acceptance will not be automatic in circumstances where the parties have conducted a trial, brought evidence, and understood the evidence in the case against them.

37. The material which related to the Belgian proceedings and the stay proceedings in Australia fell into a category of documents which may be regarded as less controversial because it was not available at the time of the trial. It is not the subject of serious controversy (as to its content as opposed to the conclusions to be drawn from it) and the State Central Authority themselves brought an application to adduce further evidence in respect of the Belgian proceedings. We consider that having regard to the subject matter of the litigation, that is: proceedings under the Convention for the return of a child to a convention country allow the courts of that country to adjudicate on the merits of the parenting dispute, the material in respect of the Belgian proceedings and the Australian proceedings should be admitted.

38. The position is different in considering the report of the psychologist engaged by the mother to prepare a report and the documents, which deal with the child’s First Nations Australian culture and heritage.

1. In a theoretical sense, the “Aboriginal Cultural Plan” attached to the affidavit of Ms O and Mr R was material which could have been available at trial, although it is accepted that it had not yet been prepared then.

2. In oral submissions, counsel for the mother invited the Court to admit the evidence as supporting the matters set out in Grounds 4 and 5 of the Amended Notice of Appeal. The cultural care plan includes some material about which it is plain, on its face, the mother was the author and accordingly, it could not be comfortably concluded that this material was not available at the time of the trial. It is also necessary to understand where that material fits within the arguments agitated by the mother, both before the primary judge and on appeal.

3. Before the primary judge, the mother argued that the intolerable situation arose as a consequence of the fact that, were the Belgian Court to adjudicate the parenting dispute between the parties, that Court would not be required, by statute, to take into account the fact that the child is a First Nations Australian child. On appeal, the argument was different, namely that the orders which had been made in Belgium, if enforced, would separate the mother and child and require the child to live in Belgium. Those circumstances were said to constitute the intolerable situation.

4. Before the primary judge, the mother did not argue that the intolerable situation arose because the child would be living outside Australia or living on land other than that of the T people. This is understandable in circumstances where the mother herself had intended, at the time she left Australia albeit reluctantly, the child would be raised somewhere other than in Australia and somewhere other than on T land. In those circumstances to admit this evidence, is not to demonstrate that the orders under appeal are erroneous: CDJ v VAJ at [109] and [116].

5. The mother’s application to adduce evidence from the psychologist was said to be unavailable at trial because it was not contemplated that the child would be separated from the mother until after receipt of the Belgian Court orders. This is not strictly accurate, since it was the father’s primary application in the Belgian proceedings that the child live with him in Belgium and the mother’s sole application in the Belgian proceedings that the child live with her in Australia.

6. The material which the mother seeks to rely upon in the appeal cannot be considered as sufficiently non-controversial, so as to permit it being admitted without the other parties to the litigation being in a position to challenge its content through cross-examination. Senior Counsel for the State Central Authority pointed to the fact that the further evidence from the psychologist was marked as received by the Court on 14 February 2022 at 4.38 pm, ahead of the appeal hearing listed on 17 February 2022, thus preventing those for whom she appeared from being in a position to meet it. There is force in that submission.

7. For the above reasons, the evidence attached to the affidavits of Ms O, Mr R, and Ms K will not be admitted into evidence on the appeal.

   Grounds of Appeal

   Was the finding that the child was habitually resident in Belgium made in error because her Honour applied the wrong legal principle? (Ground 1)

8. The Regulations made pursuant to s 111B of the Act provide the framework to determine whether a retention was wrongful. Regulation 16 sets out one of the matters that must be established before a return order can be made, that being:

   Obligation to make a return order

   …

   (1A)For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:

   (a)…

   (b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia;

   …

9. Habitual residence is a question of fact.

10. Given the concession of the mother as to habitual residence in the Belgian proceedings (Reasons for judgment of 8 December 2021 at [109]), it is difficult to understand how the mother could be heard to advance a different position in the Australian proceedings both at first instance and on appeal. We note the language barriers the mother asserted may explain the apparent incongruity between her case as presented in Belgium and her case as run before the primary judge (Transcript 23 July 2021 p.136 lines 37–40 and p.155 lines 37–44). However, dealing with the arguments advanced by the mother, the primary judge’s finding is sound and based on more than the mother’s concession in Belgium.

11. Her Honour properly found that the child’s place of habitual residence fell to be determined by reference to the intentions of her parents (here at odds), and the child’s own lived experience. This lived experience, as limited as it was, included having been born in Belgium, having lived with both her parents, and in the household of her paternal grandparents in Belgium from the time of birth until the time of her trip to Australia, which was understood to be a visit, at least by her father.

12. The mother’s subjective intentions about her own residence in Belgium and that of the child, were relevant but not determinative.

13. The mother argued that in a case such as the present one where parental intention is ambiguous, the primary judge should have focused on whether the mother had abandoned her place of habitual residence. Such a submission is at odds with settled principle that requires the Court to give ordinary meaning to the expression “habitual residence”, per the High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”):

    23. …it is sufficient …to make two points. First, application of the expression “habitual residence” permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bare upon the significance that is to be attached to particular circumstances like the duration of person’s connections with a particular place of residence.

14. The mother had argued at trial that the child was habitually resident in Australia or in the alternative, lacked a place of habitual residence. Her Honour found otherwise. It cannot be said that she did so erroneously by application of the wrong principle.

    Was the finding that the child was habitually resident in Belgium made in error because:

    (a)      It was not open on the evidence;

    (b)       It was against the weight of evidence;          

    (c)       Her Honour failed to take into account relevant considerations; and/or

    (d)       Her Honour was mistaken and took into account an irrelevant consideration? (Ground 2)

15. The mother argued that because she was, as the Court found, not happily resident and to some extent not willingly resident, that these factors speak definitively to whether the Court could find that the child was habitually resident.

16. Counsel for the mother in oral submissions, developed an argument that the involuntary nature of the mother’s residence in Belgium (whether by reason of COVID-19 travel restrictions, which at times prevented the mother from leaving Belgium, or by reason of the father’s unwillingness to allow her to leave the country with the child), made the primary judge’s conclusion as to the child’s habitual residence unavailable.

17. The gravamen of the High Court’s decision in LK, is that there is not a hierarchy of relevant considerations and that each relevant factor will be given weight according to the individual circumstances of the child and her parents.

18. The written submission of the mother, border on arguing that special weight should be given to the circumstances of an infant child’s mother, as opposed to father. This child had been born in Belgium and had lived her whole life in Belgium in the home of her mother, father, and extended paternal family. As the primary judge concluded, “[the child] was as connected with life in Belgium as any seven month old child could be” (Reasons for judgment of 8 December 2021 at [155]). Again referring to the decision of LK, the High Court observed:

    27.When speaking of the habitual residence of a child it will usually be very important to examine whether the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the chid is immediately dependent for care and housing.

19. The child was dependent on her parents for care and housing. The parents did not have a meeting of minds about where they wanted to live as a family but they were not itinerant; a fact recognised by the primary judge (Reasons for judgment of 8 December 2021 at [150]).

20. Her Honour’s conclusions about the mother’s place of habitual residence were informed by her findings that the mother had wanted to return to Australia prior to the birth but could not and experienced continued misgivings about living in Belgium after the birth. The primary judge did not accept all of the mother’s evidence and pointed to the lack of contemporaneous complaints about life in Belgium after the birth of the child. The primary judge noted the mother’s concerns about her time in Belgium were raised (in writing) only after she had secured the father’s consent to remove the child from Belgium.

21. The mother argued that her Honour’s failure to make mention in her conclusions of the fact that the mother was a first time mother, First Nations Australian, financially dependent, and subject to COVID-19 lockdowns in a country not of her own choosing, constitute failures to take into account relevant facts. The primary judge was not obliged to restate at each point in her reasons matters which were not the subject of significant controversy. Her Honour correctly concluded against that background that the mother’s intentions about habitual residence of herself and the child were ambiguous. The primary judge cannot be criticised for failing to use that same information to reach a different conclusion about the child’s place of habitual residence since she was at that stage, considering more than the intention and circumstances of one of the child’s parents.

22. Accordingly, this ground has not been established.

    Did her Honour err in failing to provide reasons or any adequate reasons for the finding at [136], which was that her Honour was not satisfied that the totality of the mother’s presence in Belgium was “involuntary”, nor how this finding was applied in her Honour’s determination? (Ground 3)

23. Her Honour said in her reasons for judgment of 8 December 2021:

    136.I am not satisfied that the totality of the mother’s presence in Belgium was “involuntary” particularly after [the child’s] birth up until 17 September 2020. However, the burden of establishing on a balance of probabilities that [the child] was habitually resident in Belgium immediately prior to 12 November 2020 rests with the Applicant State Central Authority. The mother remained in Belgium for seven months after [the child’s] birth. Habitual residence requires more than physical presence in a state. At best, the mother’s intention to make Belgium her home cannot, on the evidence, be regarded as higher than ambiguous.

24. These conclusions sit comfortably within the broader context of the primary judge’s findings.

25. The mother’s case, as articulated in her affidavit material, included the assertions that she had been locked in a room by the father and that he had engaged in conduct which was experienced by her as coercive. Her Honour acknowledged the mother’s significant misgivings about living permanently in Belgium but explicitly rejected her contention that the father had actively restrained or controlled her. In that context, her Honour referred to the parties having conducted a search for homes to purchase in Belgium between June and August 2020 (Reasons for judgment of 8 December 2021 at [92]). Counsel for the mother properly conceded, that her Honour’s finding that there was little evidence of contemporaneous complaint by the mother concerning her time in Belgium was sound.

26. The primary judge also accepted that, at times, COVID-19 prevented the mother from leaving.

27. Her Honour’s reasons for judgment do no more than acknowledge that it is possible for the mother to be unhappy in Belgium and desirous of returning to Australia, while at the same time biding her time until she can return to Australia.

28. The evidence in respect of the mother’s presence in Belgium during the first seven months of the child’s life has to be seen in the context of the time that preceded those seven months and the time that followed those seven months. Her Honour had no doubt that the mother travelled to Belgium reluctantly but did so in circumstances where she was committed to the parties’ relationship. In a similar vein, the evidence of the mother’s correspondence with the father while in Australia in 2020 similarly indicated a commitment to the parties’ relationship and a desire that they live in the same place. When viewed in context, her Honour’s observations merely record the fact that both of these parties had considerable difficulty reconciling themselves to living in the other person’s country of origin, coupled with a difficulty living in separate countries.

29. The primary judge’s finding at [136] was part of her Honour’s determination of the mother’s place of habitual residence. The reasoning process is plain and the mother has not demonstrated error.

30. To the extent that the mother’s ground asserts a failure to provide reasons or adequate reasons, we conclude that it is possible to ascertain the basis on which the primary judge made her decision (Bennett and Bennett (1991) FLC 92-191 at 78, 266).

31. Accordingly, the reasons are adequate.

    Was her Honour in error in finding that the child would not be placed in an intolerable situation by being returned to Belgium because:

    (a) Her Honour erred in finding that she had the power under the Convention to make necessary orders for the mother’s maintenance by way of “conditions to return” when refusing to exercise the discretion to refuse to return and

    (b) The Court had no regard to the impact on the child, being a First Nations Australian child, of being removed from the care of her primary carer in Belgium on return, being a First Nations Australian mother required to remain in Belgium against her wishes and with no family or enforceable financial support? (Ground 4)

32. Regulation 15(1)(b) of the Regulations empowered the primary judge to make “any other order that the court considers to be appropriate to give effect to the Convention”.

33. The father was joined by the primary judge as a party to the proceedings for the purpose of making the orders on 20 December 2021. Under the heading “Conditions on return to be complied with before the mother and [the] child’s departure to Belgium”, the orders included a requirement that the father make payments to the mother. The way in which Order 4 is framed provides that the mother was not obliged to return unless the payments were made.

34. The primary judge made further orders under the heading “[c]onditions to return upon the mother and [the] child’s arrival to Belgium”. Those orders also included the provision of funds by the father to the mother but were expressly said to operate only “until orders are made by a Court of competent jurisdiction” (Reasons for judgment of 20 December 2021 at [5]). The primary judge knew that she could not usurp the role and function of the Court in the place of habitual residence and that her power was limited to orders to give effect to the Convention. Where the Court in the country of habitual residence is already seized of the matter, the safe harbour orders may have little or no operation.

35. Since the primary judge made final orders on 8 December 2021 and 20 December 2021 (both of which were stayed on 11 January 2022) and the Belgian Court made orders on 6 January 2022, the safe harbour orders had no operation.

36. In De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640, the High Court considered the extent of the jurisdiction to impose conditions. The High Court referred to a decision of the Supreme Court of Canada and said at 661–662 that:

    In delivering the leading judgment in the Supreme Court of Canada in Thomson v Thomson, La Forest J said:

    “Given the preamble’s statement that ‘the interests of children are of paramount importance’, courts of other jurisdictions have deemed themselves entitled to require undertakings of the requesting party provided that such undertakings are made within the spirit of the Convention: see Re L [(Child Abduction) (Psychological Harm)]; C v C [(Minor: Abduction: Rights of Custody Abroad)]; P v P (Minors) (Child Abduction); and Re A (A Minor) (Abduction). Through the use of undertakings, the requirement in Article 12 of the Convention that ‘the authority concerned shall order the return of the child forthwith’ can be complied with, the wrongful actions of the removing party are not condoned, the long-term best interests of the child are left for a determination by the court of the child’s habitual residence, and any short-term harm to the child is ameliorated.”

    (Footnotes omitted)

37. There are not, the High Court noted at 662:

    … any specific and detailed criteria which govern the exercise of the power whereby the Court may impose such conditions on the removal of the child “as the court considers to be appropriate to give effect to the Convention”. Many of the criteria which may be applicable in a particular case are illustrated in the above passages from the Canadian and English decisions. The basic proposition is that, like other discretionary powers given in such terms, the Court has to exercise discretion judicially, having regard to the subject matter, scope and purpose of the Regulations.

    (Footnote omitted)

38. The mother’s counsel contended that because the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Hague Child Protection Convention”) explicitly states in art 4 that it does not cover maintenance, her Honour was precluded from making orders for financial support. It is not clear how those two propositions sit together. In circumstances where the mother sought orders in similar terms herself, understanding that such orders would cease to have effect upon the making of orders in Belgium, she cannot be heard on appeal to argue that the Court was in error in making them.

39. The discretion to refuse to make a return order is enlivened where the court finds that one of the defences has been established. The mother argued that reg 16(3)(b) of the Regulations was satisfied and that the evidence had established that there was “a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.

40. It was no part of the mother’s case before the primary judge that the child would be placed in an intolerable situation by way of financial privation, although it is acknowledged that the father, in his oral evidence, conceded that the mother had been financially dependent upon him in Belgium. In any event, the primary judge was aware that whatever orders she made could only operate until such time as the Belgian Court was seized of the matter. Therefore, it is not open to argue on appeal that since the Belgian Court has now determined the matter, that the return of the child would place her in an intolerable situation.

41. Dealing with the second part of the ground, the mother argued on appeal that the primary judge was in error to reject the intolerable situation defence.

1. The appeal ground stated the Court had no regard to the impact on the child being a First Nations Australian child, or being removed from her primary carer on return to Belgium, or the mother being a First Nations Australian woman required to remain in Belgium against her wishes and with no family or enforceable financial support.

2. At the trial, the circumstances the mother asserted constituted an intolerable situation were; the return of the child to Belgium and to have proceedings adjudicated by a court which would not be required by reason of either statute or common experience, to have regard to the significance of the child’s First Nations Australian cultural heritage.

3. The argument about the factual circumstances constituting an intolerable situation were recast on appeal to encompass the fact of a First Nations Australian mother and child being required to live outside Australia (and not able to have the same access to the First Nations Australian culture) together with the living arrangements for the child arising from the decision of the Belgian Court. The ground is reliant on the further evidence, since it was not part of the evidence before the primary judge that the child would be removed from the care of her primary carer.

4. The mother drew to the Court’s attention the final orders from the Belgian Court which provided “[t]he child maintains primary residence with father” (Mother’s affidavit filed on 3 February 2022, Annexure B, p.7). Those orders provided that the child communicate with the mother by phone/video and spend time with the mother in the holidays.

5. The mother was not arguing that she would not return to Belgium and hence the child would be placed in an intolerable situation, but rather that she would return but the child’s time would nonetheless be significantly curtailed and the mother would be socially isolated. It is for that reason and not entirely analogous with those cases which have concluded that a parent should not generally be able to rely on circumstances of their own creation to establish a defence.

6. However, there are two obvious difficulties with the position taken by the mother on appeal – the first is that she is asking this Court to find that the decision of the Belgian Court itself, following litigation in which she was represented, places the child in an intolerable situation. Secondly, she is taking a position which appears to be at odds with the position she took in the Belgian proceedings – in so much as she is indicating she will return to Belgium.

7. The mother cannot be permitted to use this Court as an effective appeal against the determination on its merits of litigation in the requesting convention country. This is in keeping with Australia’s obligations under the Convention and as was said in DP v Commonwealth Central Authority (2001) 206 CLR 401, includes:

   3.… to reserve to the jurisdiction of the contracting state which is the place of habitual residence of the child the determination of the rights of custody and access.

8. The above conclusions should not be taken as suggesting that this Court fails to appreciate that the return of the mother to Belgium will pose significant challenges for her. While not enforceable, it is important to note that counsel who appeared on the appeal on behalf of both the State Central Authority and the father, placed on the court record the father’s preparedness to facilitate time between the child and the mother upon return to Belgium (significantly in excess of that provided for in the Belgian Court orders). The father’s position in this regard may be relevant to any proceedings the mother may initiate on her return to Belgium. It is to be recalled that the orders of the Belgian Court were based on the premise that the child, but not the mother, would return to Belgium.

   Are her Honour’s orders plainly unjust? (Ground 5)

9. If by unjust the mother is asserting that the primary judge’s orders may not be in the best interests of the child, that is not the test.

10. A discretionary judgment may be set aside on appeal if “upon the facts it is unreasonable or plainly unjust” (House v King (1935) 55 CLR 499 at 505). It must be questioned, however, whether a decision for return is, indeed, discretionary.

11. Regulation 16(1) and (2) provide that if the conditions set out in those regulations are established, the court “must” make an order for return. Regulation 16(3) in turn provides that the court “may refuse” to make such an order if the matters set out in the balance of the regulation are established. The discretion to refuse is enlivened only when one of the factual grounds is established.

12. As none of the grounds have been established in this matter, there was no discretion to refuse to make an order to be exercised and the ground is misconceived. Challenges to fact finding face the difficulties set out in Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 and Lee v Lee (2019) 266 CLR 129. For an appellant to succeed on such a ground it would be necessary to establish that there had been some failure to make findings in the face of incontrovertible evidence or compelling inferences supporting a defence. Further, it is not sufficient to establish error that a differently constituted court may not have made those orders. Neither is the position here.

    CONCLUSION AND COSTS

13. As no grounds are established, the appeals will be dismissed.

14. All parties confirmed that no orders for costs were sought. Accordingly, there will be no order as to costs.

I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Harper & Christie.

Associate:

Dated:       14 March 2022