Barnett & Secretary, Department of Communities and Justice

[2022] FedCFamC1A 20

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Barnett & Secretary, Department of Communities and Justice [2022] FedCFamC1A 20

Appeal from:

Secretary, NSW Department of Communities and Justice & Barnett [2021] FamCA 439

Appeal number(s):

EAA 81 of 2021

File number(s):

SYC 998 of 2021

Judgment of:

ALDRIDGE, HOGAN & HANNAM JJ

Date of judgment:

18 February 2022

Catchwords:

FAMILY LAW – APPEAL – CHILD ABDUCTION –
Hague Convention – Appeal by the mother from orders requiring a child to be returned to Ireland – Whether father had rights of custody before the removal of the child – Where the primary judge relied on a declaration obtained by the father from an Irish court – Res judicata – Issue estoppel – The primary judge was correct in applying principles of issue estoppel – Appeal dismissed – No order as to costs.

Legislation:

Evidence Act 1995 (Cth) ss 91(1), 93

Guardianship of Infants Act 1964 (IR) ss 2, 3, 6A, 6B(3), 6F, 11

Family Law (Child Abduction Convention) Regulations1986 (Cth) regs 4, 16(1A)

Hague Convention on the Civil Aspects of International Child Abduction  

Cases cited:

Clayton v Bant (2020) 385 ALR 41; [2020] HCA 44

L.C. v K.C. [2019] IEHC 513

Tomlinson v Ramsay Food Processing (2015) 256 CLR 507; [2015] HCA 28

Number of paragraphs:

72

Date of hearing:

27 September 2021

Place:

Sydney (via video link)

Counsel for the Appellant:

Ms Hartstein

Solicitor for the Appellant:

Hague Convention Legal Practice

Counsel for the Respondent:

Dr Barnett

Solicitor for the Respondent:

DCJ Legal, Department of Communities and Justice

ORDERS

EAA 81 of 2021
SYC 998 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BARNETT

Appellant

AND:

SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

Respondent

ORDER MADE BY:	ALDRIDGE, HOGAN & HANNAM JJ
DATE OF ORDER:	18 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The appeal against the orders made on 25 June 2021 is dismissed.

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 Barnett & Secretary, Department of Communities and Justice has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE & HANNAM JJ:

INTRODUCTION

1. On 25 June 2021 a judge of the Family Court of Australia (as it was then known) made an order pursuant to the Family Law (Child Abduction Convention) Regulations1986 (Cth) (“the Regulations”), that Z (“the child”), born in 2019 be returned to Ireland. The child had been brought to Australia by her mother, Ms Barnett (“the mother”), who left Ireland with the child on 30 August 2020. 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 of the child, Mr B (“the father”).

2. The fundamental issue in the appeal, as it was before the primary judge, was whether as at 30 August 2020, the father had “rights of custody” as required by reg 16(1A)(c) of the Regulations.

3. The mother’s contention was that at that date the father had no rights of custody, or alternatively, it could not be established that he had such rights.

   BACKGROUND

4. The father was born in Ireland and the mother was born in Australia. They met and formed a relationship in about 2016 in Ireland where the mother had been living for some years.

5. In 2019, the child was born in Ireland.

6. The parties are in dispute about many matters associated with the living arrangements for the child. There is no dispute that they experienced some difficulties in their relationship from at least the commencement of 2020.

7. On 15 July 2020, the mother booked flights for herself and the child to travel to Australia, which was unknown to the father at that stage.

8. On 30 August 2020, the mother left Ireland with the child without the knowledge of the father.

9. On 4 September 2020, the father initiated proceedings in the District Court of the City E Metropolitan District (“the District Court”) seeking an interim order for his appointment as the guardian of the child and for custody of the child pursuant to s 6A and s 11 respectively of the Guardianship of Infants Act 1964 (IR) (“the Guardianship Act”). On 29 October 2020, the District Court made an interim order appointing the father guardian of the child.

10. The father subsequently filed a further application seeking a declaration of guardianship pursuant to s 6F of the Guardianship Act.

11. In the meantime the mother and child began living with members of the maternal family in New South Wales and on 2 November 2020 the child was granted Australian citizenship.

12. On 24 November 2020, the father filed an application for the return of the child in accordance with the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).

13. On 16 February 2021, the State Central Authority filed an application in the Family Court of Australia (as it was then known) seeking the return of the child to Ireland.

14. On 12 April 2021, a declaration (“the declaration”) was made by the District Court pursuant to s 6F of the Guardianship Act in the following terms:

    THE COURT … HEREBY DELCARES THAT [THE FATHER], a person named in the application *is a *guardian of the said child by virtue of the circumstances set out in section 2(4A) or section 6B(3) of the said Act.

    (Affidavit of Ms C filed on 19 May 2021, Annexure “E”)

15. The appellant has appealed the interim order and the declaration made in Ireland. These appeals are yet to be set down for hearing in Ireland.

    THE PRIMARY JUDGE’S REASONS

16. The hearing before the primary judge took place on 31 May 2021 and final orders were made on 25 June 2021 which provided for the child to return to Ireland and that the mother be at liberty to accompany the child.

17. As required by reg 16(1A)(c) of the Regulations, the primary judge found that the removal of the child from Ireland by the mother was unlawful as the father had rights of custody with respect to the child under the Guardianship Act. There was no dispute that Ireland was the country in which the child habitually resided immediately before her removal.

18. In finding that the father had rights of custody in relation to the child, the primary judge relied upon the declaration made by the District Court on 12 April 2021.

19. In particular, her Honour inferred from the declaration itself and the fact that any cohabitation between the parties ceased on 30 August 2020, that the District Court on “an examination of the facts which existed for the relevant period” prior to that date (at [93]), must have been satisfied that the circumstances set out in s 2(4A) and s 6B(3) of the Guardianship Act were met as at that date. This had the effect that at that date the father had “automatic rights of guardianship” because as a person who fell within those circumstances he was entitled to a declaration of guardianship (at [90]–[91]). As the cohabitation ceased on 30 August 2020, at the latest, the father must have had those automatic rights prior to that date.

20. Her Honour found that these automatic rights sufficed to fulfil the requirement of “rights of custody” for the purposes of reg 4 of the Regulations (at [101]).

21. Finally, her Honour concluded that the decision of the District Court gave rise to a res judicata and issue estoppel which bound the parties and thus could not re-determine any factual issues (at [119]). As the existence of rights of custody as at 30 August 2020 was the only issue in the proceedings, an order for the return of the child was made.

22. Similarly, there was but one issue on the appeal which, although the ground of appeal was expressed more broadly, was whether the primary judge was correct in finding that the evidence established that the father had rights of custody on 30 August 2020. The mother did not direct any submissions as to whether the “automatic rights of guardianship” amounted to rights of custody for the purpose of reg 4 and that, therefore, is not an issue we need to determine.

23. We now turn, by way of introduction, to the relevant provisions of the Guardianship Act. Until that Act was amended in 2016, fathers of ex-nuptial children did not have any rights of custody.

24. Section 6 of the Guardianship Act provides that the father and mother of the child “shall be guardians of the child jointly”. Section 2(1) of the Guardianship Act defines a father as follows:

    2. –

    (1)       In this Act, except where the context otherwise requires—

    …

    “‘father’ includes a male adopter under an adoption order but subject to section 11(4), does not include the father of a child who has not married that child’s mother unless—

    (a)       an order under section 6A is in force in respect of that child,

    (b) the circumstances set out in subsection (3) of this section apply,

    (c) the circumstances set out in subsection (4) of this section apply,

    (d) the circumstances set out in subsection (4A) of this section apply, or

    (e)       the father is a guardian of the child by virtue of section 6D.

25. The State Central Authority relies on s 2(1)(d) of the Guardianship Act which directs attention to s 2(4A) of that Act and provides:

    2. –

    …

    (4A) The circumstances referred to in paragraph (d) of the definition of ‘father’ in subsection (1) are that the father and mother of the child concerned—

    (a)       have not married each other, and

    (b)have been cohabitants for not less than 12 consecutive months occurring after the date on which this subsection comes into operation, which shall include a period, occurring at any time after the birth of the child, of not less than three consecutive months during which both the mother and father have lived with the child.

26. The circumstances set out in s 6B(3) are identical to those in s 2(4A) of the Guardianship Act.

27. The declaration was made pursuant to s 6F of the Guardianship Act which relevantly provides:

    6F. –

    (1)A person specified in subsection (2) may apply to the court for a declaration under this section that a person named in the application is or is not a guardian by virtue of the circumstances set out in section 2(4A) or 6B(3) of a child named in the application (in this section referred to as the ‘child concerned’).

    (2)An application for a declaration under this section may be made, in relation to a child concerned, by—

    (a)       a guardian of the child concerned, or

    (b) a person seeking a declaration that he or she is or is not a guardian by virtue of the circumstances set out in section 2(4A) or 6B(3) of the child concerned.

    (3)An application for a declaration under this section shall not be made in relation to a child concerned other than—

    (a) where the application is made by a person referred to in subsection (2)(a), on notice to each other guardian of the child and the person named in the application in relation to whom the declaration is sought, and

    (b) where the application is made by a person referred to in subsection (2)(b), on notice to each guardian of the child.

    …

    (5)Where on an application for a declaration under this section it is proved on the balance of probabilities that a person named in the application is or is not a guardian by virtue of the circumstances set out in section 2(4A) or 6B(3) of the child concerned, the court shall make the declaration accordingly.

28. Subsection 5 is of critical importance in that it provides that the court shall make a declaration if it is satisfied that the definition has been met. Mr K, one of the expert witnesses, opined that whilst “shall”, when read in the context of a provision may not be mandatory, there was no reason to think that, in the context of the above provisions, it bore other than its usual meaning.

29. The primary judge identified the issues to be decided as follows:

    74.In support of the proposition that the effect of the declaration made 12 April 2021 was that the father had “rights of custody” as at 30 August 2020, Counsel for the State Central Authority submitted, firstly, because the declaration refers to the court being satisfied that the circumstances set out in s 2(4A) and s 6B(3) which are the cohabitation requirements of the Guardianship Act, have been satisfied, the determination must have been based on the factual circumstances of the parents prior to 30 August 2020, as they did not cohabit after that date. It would be illogical to suggest that the court would have examined the circumstances of the parties, subsequent to that date, to establish the requisite cohabitation period.

    75. Secondly, because s 6F of the Guardianship Act provides the ability of the court to make a declaration, it does not flow that prior to the declaration such rights did not exist…        

30. After discussing a number of Irish authorities her Honour said:

    87. In L.C. v K.C., at [55] Justice MacGrath, summarised the issue between the parties in that case, namely whether the respondent, at the time the applicant left the jurisdiction with her son, had automatic rights of guardianship, or simply the right to apply for guardianship. Although that case was ultimately decided on the basis of lack of procedural fairness, His Honour refers to the legislative history of the amendments to the Guardianship Act.

    88.At [31], His Honour summarises the law prior to the 2015 amendments as follows:

    [31] Section 12 of the Act of 1987 amended s.6 of the Act of 1964 by inserting an additional section, s. 6A, which conferred upon the father who was not married to the child’s mother a right to apply for guardianship. Such father did not enjoy a defeasible right to be a guardian. In summary, therefore, the natural father of a child born out of wedlock did not have “automatic” rights to guardianship and in the absence of agreement was required to apply to court to be the child’s guardian.

    89.In relation to the changes to the legislation brought about by the 2015 amendments, His Honour said at [32]:

    [32] This position changed with the enactment of the Act of 2015. This Act conferred upon “cohabitants” automatic rights to guardianship in certain circumstances.

    (Emphasis in original)

31. We pause to note that neither of the two expert witnesses in the matter drew any other authority to her Honour’s attention. Her Honour was therefore entitled to take the words of MacGrath J to be the existing state of the law in Ireland despite the fact that those comments were obiter (as recognised at [84] and [92]).

32. The primary judge  concluded:

    90.As stated in the previous paragraph, the effect of the January 2016 amendments, as stated by MacGrath J in L.C. v K.C. was to confer automatic rights to guardianship. The certain circumstances referred to by His Honour would of necessity be the of [sic] requirements of ss 2(4A) and 6B(3) of the Guardianship Act.

    91.The point of the Irish proceedings, which is evident from the written submissions of each of the parties annexed to affidavits in these proceedings, was to both determine whether the child was habitually resident in Ireland and whether or not the cohabitation requirements of the legislation had been satisfied. I am able to infer from the declaration that the court was satisfied on the requisite standard of proof, as to both matters, thereby invoking, in the words of MacGrath J, automatic rights of guardianship.

    …

    93.As submitted by Counsel for the State Central Authority, the issue in the Irish proceedings focused on the factual situation of the parties to determine whether they were “cohabitants” for the requisite period of time, so that the father, would come within the definition of father in s 2(4A) of the Guardianship Act, and would therefore be entitled to apply for a Declaration of Guardianship pursuant to s 6F of the Act. That would of necessity involve an examination of the facts which existed for the relevant period prior to 30 August 2020, as the parties clearly did not live together subsequent to 30 August 2020 and any finding would have to be based on the factual events prior to 30 August 2020.

    …

    95.In the context of the statements in both H.I. v M.G., J. McB v L.E and L.C. v K.C, and having considered the submissions of both Counsel, I am persuaded, on the balance of probabilities, and so find that the father’s rights of custody were in existence as at 30 August 2020, when the mother and child left the jurisdiction. In particular, the comments of MacGrath J in L.C. v K.C. pertaining to the legislative changes and the conferral of “automatic rights to guardianship” lend weight to my conclusion. To do otherwise, would also have the unintended effect of rendering the Convention ineffective, where it is sought to return to Ireland, a child whose parents are not married, when a requesting father has not obtained either an order pursuant to s 6A or a declaration pursuant to s 6F of the Act, prior to the child’s departure from Ireland, in circumstances when the Irish legislation was amended in January 2016.

33. We pause to note here that we do not agree that the last sentence of [95] is correct.

34. The purpose of the Convention and the Regulations which give effect to it, is to return children to the jurisdiction from which they were removed or to which they were returned, if the requirements of the Convention and the Regulations are met. Thus, if it is an essential step that for such orders to be made the requesting parent or body must establish rights of custody at a relevant time then if those rights are not established, the Convention is given effect by not returning the child. The intended effect is to require return only when the preconditions set out in the Regulations are met.

35. As was accepted by Mr K the question of whether whatever rights the father held amounted to rights of custody for the purpose of the Convention and Regulations, was a matter for the Australian courts (Affidavit of Ms C filed on 19 May 2021, Annexure “B”).

36. The primary judge found that “the rights conferred by the declaration of the Irish court on 12 April 2021, fall within the definition of “rights of custody” for the purposes of Regulation 4” (at [101]).

37. In short, her Honour found that the law in Ireland was that if the father met the definition of s 2(4A) of the Guardianship Act, then he was automatically entitled to a declaration of guardianship. Thus, the declaration to that effect necessarily involved a finding that the definition was met by events which occurred by 30 August 2020. The decision of the District Court to that effect gave rise to a res judicata and claims estoppel.

38. Then, applying Australian law, her Honour found that the automatic right to apply for a guardianship declaration was sufficient to create rights of custody for the purposes of reg 4 of the Regulations.

    THE APPEAL

39. The mother’s first submission was that s 91(1) of the Evidence Act 1995 (Cth) prevented the primary judge from looking to the declaration or the decision of the District Court “to prove the existence of a fact that was in issue in that proceeding” (Mother’s Summary of Argument filed on 1 September 2021, paragraph 8). However, as conceded in the course of oral submissions, that section does not affect the operation of a judgment in rem, which is the case under consideration, or the law relating to res judicata or issue estoppel (s 93(b) and s 93(c) of the Evidence Act 1995 (Cth)).

1. The next submission was that the primary judge was entitled, if not obliged, to determine, for herself, whether the circumstances and the application of Irish law meant that the father had rights of custody as at 30 August 2020. Recognising that the question of Irish law is a question of fact, counsel for the mother pointed to the following conclusions of Mr K:

   22. …

   “It is my opinion that it cannot, firstly, be stated with certainty that [the father’s] rights under Irish law at that time did not constitute a right of custody under the Convention, as a matter of the interpretation of the Hague Convention by the Irish Courts.

   “Further, it is my Opinion for the reasons detailed above, that there is a real sustainable argument to be made that as of the 30^th August, [the father’s] rights did amount to a right of custody within the Convention. …”

   (Mother’s Summary of Argument filed on 1 September 2021, paragraph 22) (Emphasis in original)

2. As to the first point, the use of the double negative is interesting and suggests that the more likely position is that the father’s rights did amount to rights of custody. As to the second point, as stated earlier, it was for the Court in Australia to determine whether the rights held by the father, at that date, amounted to rights of custody for the purpose of reg 4 of the Regulations. As we have said, that is precisely what her Honour did.

3. We do not see Mr K’s opinion as giving rise to such uncertainty in the content of the law in Ireland which would prevent the primary judge from making findings as to it. Her Honour was entitled to give effect to the remarks in L.C. v K.C. [2019] IEHC 513.

4. That brings us to the declaration itself and the questions of res judicata and issue estoppel.

5. The mother submitted in her Summary of Argument filed on 1 September 2021, that neither doctrine applies because:

   (a)The declaration is only prospective and does not determine the position as at 30 August 2020;

   (b)The facts that were found that led to the declaration being made are not known as there are no reasons and it is unknown at what point the father met the criteria to be a guardian;

   (c)In the District Court the father relied on events which occurred after 30 August 2020 so it is possible that the District Court found that the definitions were only met after that date; and

   (d)The father sought an interim guardianship order on 29 October 2020 which indicates that the father did not have any rights at that time or, at least, he considered that he had no such rights.

   Res Judicata

6. In Tomlinson v Ramsay Food Processing (2015) 256 CLR 507 (“Tomlinson”) the High Court of Australia referred to an exercise of judicial power which involved a decision that settled the question of the existence of an obligation or right and said:

   20. … The rendering of a final judgment in that way “quells” the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they “merge” in that final judgment. That merger has long been treated in Australia as equating to “res judicata” in the strict sense.

   (Footnotes omitted)

7. As noted earlier, the decision of the District Court was one in rem and therefore no question arose as to whether the father and the State Central Authority were privies.

8. The present parties are therefore bound by the decision but it is important to see what controversies were quelled by it. The District Court declared that the father “is a guardian of the said child by virtue of the circumstances set out in section 2(4A) or section 6B(3) of the [Guardianship] Act”.

9. The parties accept that the declaration was prospective only and was not a declaration as to the father’s status on 30 August 2020. The father’s claim to be a guardian was recognised by the declaration. His right to seek such a declaration merged into the order which was made so that the declaration itself was the source of his rights thus giving rise to a res judicata. That declaration, however, was only as to the position from 12 April 2021 and did not determine the father’s claim that on 30 August 2020 he had an automatic right to seek such a declaration.

10. We consider that the primary judge was not correct in relying upon res judicata.

    Issue Estoppel

11. In Tomlinson the High Court described issue estoppel, in the following way:

    22. … Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”.

    (Citations omitted)

12. In looking to see what was necessarily decided, the court may have regard to the pleadings, the evidence and the reasons for the decision. In Clayton v Bant (2020) 385 ALR 41 (“Clayton”), it was said that “[t]he best approach is to recognise that both the legal right claimed and decided and the pleaded or asserted facts are relevant” (at [68]). That the characterisation is to be one of substance rather than form (Clayton at [68] per Edelman J).

13. The State Central Authority submits that as the mother and child left Ireland on 30 August 2020 and as the District Court determined that the father had met the requisite definitions in s 2(4A) and s 6B(3) of the Guardianship Act (that being cohabitation for 12 months and living continuously with the mother and child for three months) the Court must necessarily have determined that those criteria were met as at 30 August 2020. It follows, according to the State Central Authority, that as those criteria were met on that date, the issue as to whether the father had a right to become a guardian on that date has necessarily been determined.

14. Although the reasons of the District Court were not available some documents that were before the District Court were in evidence before the primary judge. Included amongst that evidence were written Case Outlines from counsel for the mother and the father.

15. In their Case Outline, the father’s senior and junior counsel identified the father’s contention as cohabitation commencing on 6 May 2019 and lasting until 9 June 2020, resuming on 1 July 2020 and lasting until 30 August 2020 (Affidavit of Ms C filed on 19 May 2021, Annexure “F”, paragraph 17). Thus, whatever the nature of the evidence itself before the District Court, which was not before the primary judge, the father eschewed any reliance on matters arising after 30 August 2020. There can therefore be no uncertainty or speculation that the period of cohabitation, as found by the District Court, extended beyond that date. The statutory definitions must, therefore, have been met on or before that date.

16. It is to be recalled that the declaration was founded on a satisfaction that, in the circumstances, the definitions in s 2(4A) and s 6B(3) of the Guardianship Act had been met. The periods of cohabitation referred to in them, which the declaration recognised had occurred, must have taken place before. They are the essential elements of the claim to be a guardian and must have been established for it to be made.

17. It follows that the mother’s submissions have not been made out and the primary judge was correct in applying the principles of issue estoppel.

18. The father obtained an interim order from the District Court for guardianship of the child pursuant to s 6A of the Guardianship Act on 29 October 2020. That section provides that a parent of a child who is not a guardian may be appointed as one. The section does not provide any criteria for appointment so it appears that the general requirement is that the court shall regard the best interests of the child as paramount (s 3 of the Guardianship Act) applies.

19. Significantly, the order was an interim order. Further, the appointment under that section does not depend on the father satisfying the court that definitions in s 2(4A) or s 6B(3) of the Guardianship Act are met. For these two reasons her Honour did not accord any weight to the 29 October 2020 order.

20. The mother did not seek to challenge those findings but asserts that in making the application under that section it must be taken that the father accepted that, at that time, he did not have the rights that would entitle him to an order under s 6F of the Guardianship Act. That, however, is a submission that is relevant to the question of whether an order under s 6F should be made and therefore is a submission that needed to be made, and perhaps was made, to the District Court. The father’s subjective opinion cannot be relevant to the question of the effect of that order once made.

    CONCLUSION AND COSTS

21. It follows that the appeal will be dismissed.

22. No order as to costs was sought in that event.

    HOGAN J:

23. I agree with the conclusion reached by Aldridge and Hannam JJ that the appeal should be dismissed and with the orders that their Honours propose.

24. The sole ground of appeal in the Notice of Appeal filed on behalf of the mother is that the primary judge “was in error in finding that the Central Authority had discharged its burden to establish jurisdiction”.

25. Whilst suggestive of complaint about all of the matters the respondent is required, by reg 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”), to establish in order that a return order is made, the reality is that the mother’s contention is that the primary judge erred in finding that the State Central Authority had established that, immediately before the child was removed from Ireland to Australia on 30 August 2020, the father had rights of custody in relation to her under the law of Ireland.

26. I am not persuaded that her Honour so erred.

27. It is clear that, in arriving at her conclusion that the father had rights of custody in relation to the child under the law of Ireland immediately before 30 August 2020, the primary judge relied, as I consider she was able to do, on the declaration made by the District Court of the City E Metropolitan District on 12 April 2021, pursuant to s 6F of the Guardianship of Infants Act 1964 (IR) (“the Guardianship Act”), that it was satisfied on the balance of probabilities that the father “is a guardian by virtue of the circumstances set out in section 2(4A) and 6B(3) of the said Act of the said child” (Affidavit of Ms C filed on 19 May 2021, Annexure “E”). These circumstances are that the father and mother of the child concerned:

    (e)have not married each other; and

    (f)have been cohabitants for not less than 12 consecutive months occurring after the date on which this subsection comes into operation, which shall include a period, occurring at any time after the birth of the child, of not less than three consecutive months during which both the mother and the father have lived with the child.

28. Satisfaction of these circumstances also means that, under the Guardianship Act:

    (a)the father of the child shall be a guardian of the child jointly with the mother of the child; and

    (b)the mother is not, alone, the guardian of the child – because the father is, under the Guardianship Act, the guardian of the child.

29. Given the evidence before the primary judge that the mother removed the child from Ireland on 30 August 2020, satisfaction of the circumstances prescribed in s 2(4A) of the Guardianship Act can only have related, in my view, to the period before this date and, therefore, her Honour did not err in relying on the finding that the father satisfied the statutory prerequisites – which meant that he was to be regarded as a “father” for the purpose of s 6(1) of the Guardianship Act and, therefore jointly a guardian of the child with the mother and, consequently, a guardian of the person of the child – as a basis for her subsequent conclusion that she was satisfied that the father had rights of custody in relation to the child immediately before she was removed from Ireland. 

30. I do not accept the submissions made by counsel for the mother to the effect that it was unsafe for her Honour to rely on the declaration given that it was the subject of an appeal commenced by the mother. I consider that her Honour was entitled – as was the father – to rely on the correctness of the declaration.

31. At the time of the hearing before this Court, the appeal in relation to the declaration – and the mother’s appeal against the interim order appointing the father as a guardian of the child – remained undetermined by the relevant Irish court; subsequent inquiries made by this Court revealed that, given that it is thought that the appeals may take some 4–5 days to hear, it will be some time before the Irish court is able to dispose of the same.

32. Given the conclusion about the reliance which could be placed on the declaration, that the Regulations are made so as to enable the performance by Australia of its obligations under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) and that the purpose of the Convention is directed to the prompt return of children to their state of habitual residence, I am unpersuaded by the mother’s submission to the effect that it would be unsafe for this Court to rely on the correctness of the declaration in determining the appeal against the primary judge’s order for return.

33. Having had the opportunity to read the reasons for judgment delivered by Aldridge and Hannam JJ, I:

    (a)agree with their Honours’ disagreement with the last sentence of [95] of the primary judge’s reasons on the basis that I do not consider it was open to the primary judge  on the evidence before her to form a view about the asserted “unintended effect of rendering the Convention ineffective” as it is, of course, a matter for each contracting state to determine the circumstances within which persons habitually resident in that contracting state are accorded the rights necessary to establish the prerequisites for the operation of the Convention; and

    (b)respectfully disagree with their Honours’ assertion at [41] of the same that the opinion of Mr K that “it cannot, firstly, be stated with certainty that [the father’s right’s] under Irish law at that time did not constitute a right of custody under the Convention, as a matter of the interpretation of the Convention by the Irish Courts”  suggests that the more likely position is that the father’s rights did amount to rights of custody, especially given that Mr K then expressed the opinion that there is “a real sustainable argument” that the father’s rights as at 30 August 2020 did “amount to a right of custody within the Convention”.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Hogan & Hannam.

Associate:

Dated:       18 February 2022