Cape & Cape - [2013] FamCAFC 114

FAMILY COURT OF AUSTRALIA

CAPE & CAPE

[2013] FamCAFC 114

FAMILY LAW – APPEAL – INTERNATIONAL RELOCATION – STAY – Whether the trial judge erred in refusing to grant a stay of orders which permitted the mother to relocate to Germany with the child pending determination of an appeal against the order permitting her to relocate – Where, when refusing to stay the relocation orders, the trial judge ordered that before the mother could leave Australia with the child she had to execute an undertaking (as a measure of protection pursuant to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (1996)) (“the Child Protection Convention”) to be registered in a court of competent jurisdiction in Germany and in the Family Court of Western Australia that she would return the child to Australia if the father’s appeal was successful – Where the Full Court considered the registration of an undertaking pursuant to the Child Protection Convention might not be a sufficient measure of protection – Where the Full Court discharged the order of the trial judge requiring the mother to execute and register an undertaking – Where the Full Court made an order requiring the mother to return the child to Australia if the father’s appeal is successful – Where the Full Court made an order permitting the mother to relocate with the child to Germany pending the outcome of the father’s appeal once she serves on the father and the independent children’s lawyer proof that she has obtained recognition of the relocation orders and the orders of the Full Court in a court of competent jurisdiction in Germany and the Family Court of Western Australia (pursuant to Article 24 of the Child Protection Convention); or that she has obtained a declaration of enforceability from a court of competent jurisdiction in Germany of the relocation orders and the orders of the Full Court (pursuant to Article 26 of the Child Protection Convention); or that she has registered the relocation orders and the orders of the Full Court in a court of competent jurisdiction in Germany (pursuant to Article 26 of the Child Protection Convention).

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996

Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980
Family Law Act 1975 (Cth)

Family Law Amendment (Child Protection Convention) Act 2002 (Cth)
Family Law Amendment (Child Protection Convention) Regulations 2003 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Clemett and Clemett (1981) FLC 91-013
Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
Re Y (a child) [2013] EWCA Civil 129
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220
Trahn & Long (No 2) [2008] FamCAFC 194

Nicholls QC, M, ‘Australia and the 1996 Hague Protection Convention’ (not yet published)

APPELLANT:

Mr Cape

FIRST RESPONDENT:	Ms Cape
SECOND RESPONDENT:	Independent Children’s Lawyer

FILE NUMBER:

PTW

3762

2011

APPEAL NUMBER:

2013

DATE DELIVERED:	2 August 2013
PLACE DELIVERED:	Perth

PLACE HEARD:

Sydney by video-link

JUDGMENT OF:

Finn, Thackray and Aldridge JJ

HEARING DATE:

22 July 2013

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

5 July 2013

LOWER COURT MNC:

[2013] FCWA 70

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE FIRST RESPONDENT:

Mr Rynne

SOLICITOR FOR THE RESPONDENT:

Perth Family Lawyers

COUNSEL FOR THE SECOND

RESPONDENT: Ms Young
SOLICITOR FOR THE SECOND
RESPONDENT: Legal Aid Western Australia

Orders made on 22 July 2013

IT IS ORDERED PENDING FURTHER ORDER OF THE COURT:

The operation of Order 1 made by the Honourable Justice Crisford on 5 July 2013 be suspended.
The child, D, born in 2002, not be removed from Australia.

Orders made on 2 August 2013

The appeal against the orders made by the Honourable Justice Crisford on

5 July 2013 (“the orders”) be allowed.
The orders be set aside and in their place Orders 3, 4, 5 and 6 of these orders be made.
The mother will return the child to Australia in the event that the appeal by the father against the orders made on 11 April 2013 is successful and an order is made for the return of the child to Australia either by the Full Court of the Family Court of Australia or by a court to which the parenting and relocation proceedings may be remitted for re-hearing.
Upon the mother:
(a)serving on the father and on the Independent Children’s lawyer documentary proof:
(i)that she has obtained from a court of competent jurisdiction in Germany recognition pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996 (“the Child Protection Convention”), of the orders of the Family Court of Western Australia made on 11 April 2013 and of these orders; or
(ii)that she has obtained from a court of competent jurisdiction in Germany a declaration of enforceability in Germany pursuant to Article 26 of the Child Protection Convention, of the orders of the Family Court of Western Australia made on 11 April 2013 and of these orders; or
(iii)that she registered in a court of competent jurisdiction in Germany pursuant to Article 26 of the Child Protection Convention, the orders of the Family Court of Western Australia made on 11 April 2013 and of these orders; and
(b)filing in the Family Court of Western Australia such documentary proof, together with proof of service of such documentary proof on the father and the Independent Children’s Lawyer,
she will be entitled to remove the child from Australia at the expiration of

7 days from the date of such filing in the Family Court of Western Australia.
There is liberty to all parties to apply to the Honourable Justice Crisford, or in the event that she is unavailable, to another Judge of the Family Court of Western Australia in relation to Orders 3 and 4 of these orders.
The application filed by the father on 6 June 2013 for a stay and associated orders be otherwise dismissed.
The orders made by the Full Court on 22 July 2013 be discharged.
Subject to any order of a Judge or Registrar, the appeal by the father against the orders made by the Honourable Justice Crisford on 11 April 2013 be listed for hearing in the Perth sittings of the Full Court in October 2013.
IT IS NOTED in connection with this order that should the Appeal Registrar advise that the appeal is ready for hearing in advance of those sittings, then the Full Court will endeavour to arrange that it be heard on an earlier date.
There be no order for costs in relation to the appeal.
There be liberty to the father and to the mother to apply to the Full Court by letter to the Appeal Registrar of the Family Court of Western Australia for certificates under s 9 and s 6 respectively of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs of the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: WA 18 of 2013
File Number: PTW 3762 of 2011

Mr Cape

Appellant

And

Ms Cape

First Respondent

And

Independent Children’s Lawyer

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Mr Cape (“the father”) against orders made by Crisford J on 5 July 2013 whereby she dismissed an application by the father for a stay of orders which she had made on 11 April 2013 and which permitted

Ms Cape (“the mother”) to relocate the residence of the parties’ 10 year old son, D, (“the child”) to Germany prior to the determination of an appeal against the orders permitting such a relocation.
Her Honour’s orders of 5 July 2013 also provided that:
1.Upon [the mother] executing an undertaking (as a measure of protection pursuant to the 1996 Hague Protection Convention) to be registered both in this Court and in Germany in a Court of competent jurisdiction (to be the same Court as that utilised in paragraph 15 of the orders of 11 April 2013) that she will forthwith return the child … to the Commonwealth of Australia in the event the Appeal of [the father] … is successful she be entitled to remove the child to Germany on or after 26 July 2013.
It needs to be explained at the outset that this is a difficult case as it raises the question of whether a child should be permitted to leave Australia pending the determination of an appeal against the orders which permit him to live abroad on a permanent basis.
This appeal also raises for consideration by the Full Court for the first time, as we understand it, the operation of the instrument which Crisford J referred to in her order as “the 1996 Hague Protection Convention”. The full title of that Convention is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. It was signed at The Hague on

19 October 1996, and is implemented in Australia by Division 4 of Part XIIIAA of the Family Law Act 1975 (Cth) (“the Act”). We will in these reasons refer to this convention as the “Child Protection Convention” as it is the defined term in s 111CA of the Act.

History of the family prior to parenting and relocation orders

It is necessary to begin our consideration of this appeal by setting out some of the history of the family who are involved in this case, as that history is to be found in Crisford J’s reasons for judgment in relation to her orders of 11 April 2013, and as it was apparently unchallenged on this appeal.
The father was born in England and moved to Australia in 1987. The mother was born in Germany. The parties met in Germany in 1997 and the mother moved to Australia in 1999. They lived together in Alice Springs and married in August 2002 just prior to the child’s birth in September 2002. The family moved to Perth in 2007.
With the father’s consent, the mother took the child to Germany in May 2010, apparently on the understanding that they would remain there until early 2011. The father visited Germany in September 2010, and at that time the mother made known to him that she did not want to return to Australia with the child.
The father made a further visit to Europe in April 2011 when he took the child to visit his family in the United Kingdom, and then returned the child to Australia without the mother’s knowledge or consent.
The mother visited Australia for about a week in August 2011 when she spent time with the child. She then returned to live here in late October 2011. On

2 November 2011 proceedings brought in Australia under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Child Abduction Convention”) for the return of the child to Germany were dismissed. At about this time the mother instituted proceedings in the Family Court of Western Australia to be permitted to relocate the child’s residence to Germany.
From 8 December 2011 to 10 January 2012 the child lived with the mother. There was then a week about living arrangement until 1 June 2012 when, following a report by the then court appointed expert, Dr M, Martin J suspended the week about arrangement and ordered that the child’s time with the father be supervised. Although there were some such supervised sessions between 16 June and 8 September 2012, Crisford J found in her reasons for her orders of 11 April 2012 (at [50]) that from the time of publication of the single expert’s report in May 2012, the relationship between the child and the father had “become completely fractured”.
Crisford J commenced to hear the mother’s application to permit the child to relocate with her to Germany on 18 September 2012. After four days the hearing was adjourned. It resumed on 19 November for a further seven days and was then again adjourned until 13 February, concluding on 14 February 2013.
Relevantly, for present purposes, the mother was permitted during the first adjournment of the hearing to take the child for a holiday to Germany from

4 October to 19 November 2012.

The parenting and relocation decision and orders of

11 April 2013

In her reasons for judgment delivered on 11 April 2013 in relation to the hearing just mentioned, Crisford J reviewed, within the context of the various relevant provisions of Part VII of the Act, the opinions of a range of experts who had given evidence at the hearing, and she concluded at [214] that the child should remain living with the mother, who should have sole parental responsibility for him, and that she should be able to relocate with him to Germany.
Her Honour also concluded at [252] that there should be counselling for all three members of the family, and that it “must be undertaken prior to the relocation” although she concluded at [257] that the counselling process could not be used to “delay any departure to Germany”.
Notwithstanding their length, we now set out in full the orders which her Honour made on 11 April 2013 to give effect to her parenting and relocation decision – we do so because of our later references to many of these orders:
1. The child … live with the mother…
2. The mother have sole parental responsibility for [the child].
3.The mother be permitted to relocate to Germany with [the child] and, until further order, not later than six months from the date of these orders.
4. Prior to any relocation, [the child], the mother and the father … are to attend upon Mr [C], or such other therapist as recommended by Mr [C], in order to strengthen the relationship between [the child] and the father.
5.Any contact between the father and [the child] prior to the relocation is to take place as recommended by Mr [C], or such other therapist as recommended by Mr [C].
6.The mother is to undertake personal counselling as recommended by the Independent Children’s Lawyer in consultation with
Mr [C] to address issues raised about her relationship with [the child].
7.The father is to continue to attend upon Dr [W] as recommended by Dr [W].
8.The definition of the time [the child] is to spend with the father and his communication with him after relocation to be adjourned until prior to the date set for such relocation.
9.At all times when [the child] is with one parent, the other parent have reasonable communication with [the child] but letter and email.
10.Each parent ensure the other parent is kept informed of the other parent’s residential usual and ordinary address, telephone, email and any fax numbers.
11.The mother be responsible for and ensure at all times that [the child]:
(a)has access to an active email account;
(b)has access to a Skype account or other web-based account enabling video calls, and that he has access to a computer with a webcam to enable the same; and
(c)has access to a mobile phone with the battery being sufficiently charged and the father is to meet the reasonable costs of his communication with [the child].
12.The mother authorise the principals of the school(s) at which [the child] attends to release copies of his school reports directly to the father at the expense of the father, and in the event that the school(s) decline or are unable to provide the father with such copies, the mother provide the father with copies within 10 days of receipt.
13.The mother keep the father informed by way of written communication by email in relation to the sporting and extracurricular activities undertaken by [the child].
14.The mother provide copies by way of either post or email of any schooling or extracurricular certificates received by [the child] from time to time.
15.The mother forthwith do all things necessary to have these orders registered in Germany in a Court of competent jurisdiction with costs to be borne equally by the parties.
16.All previous applications and responses in relation to children’s issues be dismissed.
17.All previous orders in relation to children’s issues be discharged.

Events following the orders of 11 April 2013

On 8 May 2013 the father, acting on his own behalf, filed an appeal against Orders 1, 2 and 3 of the orders made on 11 April 2013 (being the residence, parental responsibility and relocation orders). The grounds of appeal contained in the notice of appeal were:
1.Having discredited the evidence of the Single Expert Witness the learned trial Judge erred in determining that by the end of the trial the relationship between the mother and the child … had been largely explored.
2.There was insufficient evidence for the learned trial Judge to essentially find, and she thereby erred in doing so, that the mother genuinely agrees it is best for the child to have a relationship with the applicant and that the mother would promote that relationship.
3.The learned trial Judge erred in making determinations about:
3.1the personality of the applicant including the finding that he lacks, ‘empathy and insight into how his personality traits are impacting on his son’s desire to please him’ and,
3.2the nature of the applicant’s relationship with the child
by failing to consider the unchallenged evidence adduced by the applicant’s many witnesses.
4.The learned trial Judge erred when she determined that the wishes of the child about remaining in Australia as expressed to his teacher and school counsellor in 2011 were not genuine but, ‘primarily linked to his father wanting him to live in Australia.’
5.The learned trial Judge erred when she determined that the applicant does not have, ‘any real prospect of remunerative employment in the future.’
No application for expedition of the hearing of the appeal was made by the father, nor indeed by the mother. However, on 6 June 2013, that is almost a month after filing his notice of appeal, the father filed an application seeking a stay of Orders 1, 2 and 3 of the orders made on 11 April 2013.
The father’s application for a stay of those orders came before Crisford J on

28 June 2013 when it was adjourned until 5 July 2013. As we understand it, the purpose of the adjournment was to enable the psychologist, Mr C (who was referred to in the orders for counselling which were included in the orders made on 11 April 2013), to prepare a report as to “the progress with therapy to repair the relationship” between the father and the child.
In order that the issues raised by the present appeal can be fully appreciated, we set out the conclusions and recommendations contained in Mr C’s report, which was available to the Court when the hearing of the father’s stay application resumed on 5 July 2013:
Conclusions
For the above reasons I believe therapy to address the relationship between [the child and the father] is futile and possibly harmful. To continue will likely foster further distress for [the child] and will more than likely further harm the relationship with his father.
I do believe that [the child’s] view of his father must be considered as being influenced by his mother due to her lack of insight into how she presents to him and her firmly held belief that [the father] is a psychopath and she is a victim. As such, family therapy may be a better option some time in the future.
The concerns I have outlined must be raised, as it is essential that [the child] not continue to play the role of his mothers [sic] ‘protector’, for the sake of his own development as he moves into adolescence. Nor must he feel that he has to agree with her narratives and views of events. [The mother] would do well to understand the impact she is having on the [the child] and how her belief that [the father] is a ‘psychopath’ may be clouding her judgment. I believe these things need to be addressed should [the child] have a chance of a more balanced view of his father and his father [sic] actions in the future and move naturally through the developmental stage as he grows towards independence.
It is important to note that I am not in possession of all the information at hand, as I would in a normal capacity or Single Expert Witness assessment, and am currently viewing [the mother] under extremely stressful circumstances. It is possible she will return to Germany and address the relationship dynamic successfully. However, I believe it is important that [the mother] had these issues brought to her attention and those working with [the child] in the future are aware that his narratives about his father must be viewed with caution.
In regards to repairing [the father’s] relationship with [the child] I see little to no chance of that occurring when [the child] returns to Germany should the current dynamics and beliefs, as outlined above, be sustained.
Recommendations
I am conscious that my summary and conclusions place the Court in a difficult position. From my point of view how the situation is resolved now is very different to how it would have been resolved prior to the supervised visits being ordered. [The child] is now convinced, by court findings and reports plus long periods of time without seeing his father, that his father is manipulative and fake. Furthermore, he seems himself, much like his mother, as a victim who is ‘trapped’. The validity of these conclusions I cannot speak to but I have outlined my concerns above.
The only way such beliefs and positions could be challenged would be to spend long periods with his father to show an ‘alternative’ point of view that can not easily be disputed on the grounds of perspective. I have participated in such processes and seen they can be very successful if alienation, accidental or conscious, has occurred. However, in this case such a process would likely be tainted by a) his perspective of his mother as persecuted and suffering every day she is in Australian, [sic] b) his conviction that only returning to Germany could allay his and his mothers [sic] pain and c) that to in any way show support for his father is to further victimize his mother who came back for him. One must also factor in that [the child] is exhibiting signs of withdrawal and anxiety that often predispose depressive type conditions. Thus, the normal exposure based approaches potentially come with risk and a context tainted by recent history and future possibility.
The safest option, then, appears to be that [the child] should return to Germany. Indeed this is the conclusions [sic] Mr [W] has reached and I agree with his logic. The only context where this option would not be preferred was if there was concern about [the mother’s] mental health and ability to function in a fashion that did not promote [the child] being enmeshed and acting as her carer/protector. Furthermore, she should be able to provided [sic] an emotionally stable and nurturing environment once that dynamic is broken. (I would highlight that providing such a stable environment should include a more open minded view and interpretation of [the father’s] actions).

The decision and orders refusing to stay the relocation order

On 5 July 2013 Crisford J heard and dismissed the father’s application for a stay, although she also made the order set out at [2] above which required that before the child left Australia the mother should at least execute, if not register with the Family Court of Western Australia and a German court, an undertaking that she would return the child to Australia in the event that the father’s appeal against the orders of 11 April 2013 was successful.
At the commencement of her reasons for judgment in relation to her orders made on 5 July 2013, her Honour set out in the following accurate terms the principles which govern the determination of a stay application in relation to orders concerning a child:
·    the mere filing of an appeal is insufficient to ground a stay;
·    the onus to establish a proper basis for the stay is on the applicant for the stay – however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;
·    a person who has obtained a judgment is entitled to the benefit of that judgment;
·    the person who has obtained a judgment is entitled to presume the judgment is correct;
·    the bona fides of the applicant;
·    a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
·    a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;
·    some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
·    the desirability of limiting the frequency of any change in a child’s living arrangements;
·    the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
·    the best interests of the child the subject of the proceedings.

In setting out these principles, her Honour relied on the statement of principles by the Full Court of this Court in Trahn & Long (No 2) [2008] FamCAFC 194 which was drawn from authorities such as The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013 and JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332.
In connection with the application of these principles, her Honour observed, again accurately, that the authorities stress the discretionary nature of an application for a stay.
Then having summarised the father’s arguments in support of his application for a stay and the mother’s arguments in opposition to the grant of a stay, her Honour discussed the issues in this case in light of the above principles. We will refer later where relevant to aspects of that discussion by her Honour. But in summary it can be said that her Honour concluded that the father’s prospects of success in the appeal were far outweighed by “the need for some stability and comfort” in the child’s life “within the time-frame set out in the orders”. She further concluded that the child’s going to Germany would not render an appeal nugatory although she accepted that it would “make a reversal of the present situation difficult”.
In reaching her conclusion that a stay would not be in the child’s best interests, her Honour can be read as placing considerable reliance on the passages from Mr C’s report which we have earlier set out, particularly his opinion in the first paragraph of those passages that to continue the therapy to address the relationship between the father and the child will likely foster further distress for the child and will more than likely further harm the relationship with his father. Her Honour also relied on Mr C’s opinion in the last paragraph of the above-quoted passages that the “safest option” appears to be that the child should return to Germany.

The appeal against the refusal to stay the relocation order

On 15 July 2013, that is some ten days after her Honour had refused to stay the order permitting the child to move to Germany and had permitted that move to occur on or after 26 July 2013 (subject to the mother executing the required undertaking), the father filed a notice of appeal against the orders made on

5 July 2013. That appeal was heard by us on 22 July 2013.
Before discussing the issues which arise from the father’s seventeen grounds of appeal against the orders of 5 July 2013, there are some observations to be made about, and associated with, the timing of the hearing of, what can be referred to as, “the substantive appeal”, that is, the appeal against the parenting and relocation orders made on 11 April 2013.
It appears from [12] of Crisford J’s reasons of 5 July 2013 that she was under the impression that the substantive appeal could not be heard before the end of this year, at least in the absence of an application by either party for expedition. Certainly had there been such an application, the hearing of the appeal would have been expedited administratively.
Alternatively, had the father applied for a stay at the time, or shortly after, filing his appeal against the parenting and relocation orders and had that application been refused and an appeal lodged, arrangements would have been made to hear the substantive appeal at the same time as the appeal against the refusal to stay.
However, given that the orders refusing the stay also permitted the child to leave Australia as early as 26 July 2013 (subject to certain conditions being fulfilled), the appeal against those orders had to be determined as a matter of urgency, and it would have been unrealistic to expect the parties to be in a position within a matter of a few days to argue the substantive appeal.
We will, however, provide in our orders that the appeal should be listed in the October sitting of the Full Court in Perth although every endeavour will be made to hear the appeal at an earlier date once the father has filed his appeal books.
We understood from the father at the hearing on 22 July 2013 that he is yet to acquire the transcript of the thirteen day trial before Crisford J. As we explained to the father, it is not essential but it is highly desirable that the full transcript of the trial be before the Full Court when it hears the substantive appeal. Whether or not the transcript is obtained is ultimately a matter for the father. Thus, like Crisford J, although for different reasons, we have to proceed on the basis that the substantive appeal may not be able to be heard for some time.

The grounds of appeal against the refusal to stay

We turn now to the father’s seventeen grounds of appeal against the orders of

5 July 2013. In his comprehensive written submissions the father addressed his grounds in seven groups, each with its own heading. We will also adopt those seven groups and their headings in the discussion which follows, although we will depart slightly from the order in which the father addressed these groups.

Alienation

Ground 5 of the father’s grounds of appeal which appears under the heading of “Alienation” asserts that her Honour:
erred in giving insufficient consideration to new evidence from the court-appointed psychologist Mr [C], which represents the first proper examination of the mother in these proceedings, identifies the mother’s conduct as alienation and abusive, and strongly supports the father’s case at trial, which was not accepted by the learned trial judge, notwithstanding her finding that Mr [C’s] report was “unsurprising”.
This ground of appeal could well be said to be his principal ground in terms of the length of his written and oral submissions made in support of it.
As we understood it, and put simply, the father’s case in support of this ground was that although during the parenting trial none of the experts had been prepared to accept his position that this was a case of “alienation” (according to current social science usage of that term), the report from Mr C which was before the Court at the time of the hearing of the stay application and which was relied on by her Honour in determining that application, would now support a finding that this was indeed a case of “alienation”. The father’s criticism of her Honour appeared to be that she had not recognised this change in the expert evidence, and his case before us was that because of this change her Honour should have granted a stay of the orders which provided for the child to live with his mother and return to Germany with her.
We do not have the benefit of a transcript of the hearing before her Honour on 5 July 2013. Thus we cannot be satisfied that the matters raised before us in support of this ground were raised before her Honour. Therefore any argument that her Honour erred in not considering such matters when exercising her discretion in relation to the stay application cannot be sustained.
But in any event it seems to us that the matters surrounding the technical concept of “alienation” now sought to be raised by the father, would be more relevant to the appeal against the substantive orders (provided, of course, that the material relevant to those matters was received as further evidence in that appeal), and that they would have little, or no, relevance to the issue of whether the child should be permitted to go to Germany (subject to appropriate safeguards) pending the outcome of the appeal against the substantive orders.
For these reasons, this ground of appeal directed to the issue of “alienation” has not been established. As will later be seen, further grounds of appeal are also directed to this issue of “alienation”.

Bona Fides

Under this heading in his written submissions the father grouped Grounds 8 & 7 in that order.
Ground 8 asserts:
Given that the father had consistently expressed concern to the court since December 2011 about the emotional abuse being caused to the child by the mother; that he had made timely application(s) to appoint a new expert prior to trial; and that Mr [C’s] report provided evidence that corroborated the father’s consistent concerns, the learned trial judge erred in questioning the bona fides of the father.
In support of this ground the father drew our attention to [15] of Crisford J’s reasons of 5 July 2013 where her Honour said:
15.I also have concerns about the bona fides of the appellant in his continuing attempts to have [the child] remain in Australia when [the child’s] emotional wellbeing was deteriorating. I had the opportunity of seeing [the father] at close quarters over many days. As remarked in my judgment, it is possible for [the father] to travel internationally and to see [the child] in Germany where the current stress he is under, largely from his parents’ relationship, may well be relieved.
We are unable to detect any appealable error in her Honour’s observations in that paragraph.
Ground 7 asserts:
There was insufficient evidence and the trial judge thereby erred in her findings about the family’s practical and financial situation and the ongoing contribution of the father to the mother and child.
It appears from [36] of the father’s written submissions that the complaint in this ground is that her Honour did not have before her up-to-date evidence of the financial circumstances of this family. Again, in the absence of a transcript, we do not know if any attempt was made by the father to put before her Honour such updating evidence at the hearing of the stay application. In the absence of such evidence we can only accept the currently undisturbed findings by her Honour in [169] to [173] of her Honour’s reasons of 11 April 2013 concerning the mother’s financial position in Australia. Those findings include:
172.The issue of locating adequate housing and financial support in Australia presents the mother with enormous difficulties. The mother has no source of income. She has had financial support from her elderly parents to date. They can no longer assist her and I accept her evidence in that regard.
Thus Ground 7 has not been established.

Merit

Under this heading in his written submissions the father includes only

Ground 4, which asserts:
Significantly, the learned trial judge does not, at any point, state that she believes the father’s appeal does not have merit.
In support of this ground the father refers to her Honour’s statement in [17] of her reasons that she considered that the father’s “prospects of success in the Appeal to be far outweighed by the need for some stability and comfort in [the child’s] life within the timeframe set out in the orders”, and he asserts that her Honour has failed to consider or properly identify what she considers those merits to be.
It is always a difficult task for a trial judge to comment on the merits of grounds of appeal directed to his or her orders. Given the manner in which her Honour dealt with the issue of the prospects of success of the appeal by balancing any such prospect against the child’s need for stability and comfort, it was unnecessary for her to say more about the merits of the appeal or the prospects of its success. We consider that her approach in this regard was completely satisfactory in the difficult circumstances of this case.

Discretion

Under this heading in the written submissions Ground 6 appears. It asserts:
The learned trial judge erred in using powers of discretion that relied upon views she had formed at or before trial, given that it is these same views, and the facts upon which they are based, that are being called into question in the father’s appeal WA 12/2013 (as well as by Mr [C’s] report).
We have some difficulty understanding this ground, and unfortunately we are not assisted by the following short written submission made in support of it:
38.If the discretion of a judge is exercised in such a way as to ignore, or not properly consider, evidence that contradicts her prior judgment or that further supports an appeal against that judgment, then an applicant’s right to appeal may be fundamentally eroded.
In these circumstances, we are unable to find that the ground has been established.

Procedural Issues

Under this heading in the written submissions Ground 11 is relied on with its assertion that:
The learned trial judge erred in not permitting the self-represented appellant to fully make his case orally on 5 July 2013 or to take her through pertinent evidence from his affidavits and her judgment, and in leading him to believe, at the prior hearing on 28 June 2013, that the issue of the child’s best interests would not be the primary consideration in this matter.
This ground cannot be further considered in the absence of transcript of the hearing on 5 July 2013.

Best Interests

Under this heading in his written submissions the following further eight grounds were grouped by the father; it will be seen that they largely raise the issue of “alienation”. These grounds allege that the trial judge erred:
… in accepting that genuine and appropriate attempts at reunification between father and son had been made and had been unsuccessful, given that neither the court nor the court-ordered therapist gave consideration to successful, internationally-recognised methods of carrying out such reunification, detailed in the father’s evidence. (Ground 9)
… in finding that “an unmonitored attempt by [the father] to play an active part in the child’s live without the assistance of therapeutic support for the child is likely to create grave problems for this child”, given that the Panel of Experts, upon whom the learned trial judge otherwise relied, all agreed that the father should have unsupervised and increasing care of the child as soon as judgment was pronounced, and given the father’s evidence in his affidavit affirmed 3 July 2013 that shows scientific evidence of how quickly alienated children revert to rejected parents when removed from the abusive environment of an alienating mother. The learned trial judge erred in not giving due consideration to such independent evidence when broadly considering the issue of the best interests of the child. (Ground 10)
… in relying upon Mr [C’s] statement that the child should go to Germany, given that: the self-represented appellant had not had time to properly consider the report of Mr [C] prior to the hearing; and the therapist was not qualified to make this ultimate conclusion and that this was, in all events, based upon his views of the difficulties of reunification between father and son caused by the time constraints imposed by the orders of 11 April 2013, which are the subject of appeal WA 12/2013. (Ground 12)
… having considered the importance of limiting the frequency of change for the child, in finding that the child could readily travel between Germany and Australia whilst being of school age, and in not properly considering the mother’s unwillingness to permit this. (Ground 13)
… in not properly considering that the mother’s statements to Mr [C] and others about the child’s mental state may have been self-serving and that the child’s mental state might have improved most dramatically and swiftly, as scientific research suggests, when removed from the primary cause of his poor mental state – namely, an abusive mother. (Ground 14)
… in failing to properly consider that her ruling to effectively condone a parent’s alienation of a child from the other parent would nullify the principle that the best interests of the child are furthered through a healthy and loving relationship with both parents. (Ground 15)
… in not giving due consideration to the alienation and abuse carried out by the mother in her consideration of a stay of orders 1 and 2 pronounced on 11 April 2013, and in determining that such a stay would be likely to cause greater harm to the child, without giving due consideration to alternative options. (Ground 16)
[w]hen considering broadly the best interests of the child, … in failing to properly consider that the child’s relationship with his father – which has been severely damaged not by the father, but by the court process, and which was good until the child was removed from the father – would not have the opportunity to recover and that the 10-year-old boy would effectively be left fatherless for years to come and possibly forever. (Ground 17)
As we have said, these grounds largely re-agitate the issue of “alienation”. We have already determined that this is not an issue which would warrant our interference with the orders of 5 July 2013. To the extent that other issues (for example, procedural fairness) are raised by these eight grounds, we are satisfied that they have been already covered in our discussion of other grounds and do not require further consideration.

Conclusion in relation to the grounds of appeal so far discussed

We have thus found no merit in the grounds of appeal so far discussed. Indeed on the basis of the discussion so far, we have little difficulty in concluding, particularly in light of the conclusions and recommendations in Mr C’s report (which was available at the hearing on 5 July 2013), that Crisford J was correct in determining at least pending the hearing of the substantive appeal that it would be in the child’s best interests to move with his mother to Germany.
However, a vital consideration in any application for the stay of an order which permits a child to relocate abroad pending an appeal against that order must always be whether the refusal of the stay will result in the loss of the subject matter, thus rendering the appeal nugatory. We now turn to that matter.

The risk that the appeal may be rendered nugatory

Under the heading “Nugatory” in his written submissions, the father grouped the following three grounds which assert that the trial judge erred:
… in finding that the child’s going to Germany will not render an appeal nugatory (para 17) and/or in not finding that the father had established a proper basis for a stay (para 24), given evidence of: the mother’s extreme views of the father; her alienation and emotional abuse of the child’ the unreliability of the child’s statements’ and the prior withholding of the child and exclusion of the father by the mother. (Ground 1)
… in failing to give due weight to the fact that the mother had consistently, and for prolonged periods, failed to comply with court orders whilst in Australia. (Ground 2)
… in considering a proposed undertaking by the mother to return the child in the event of a successful appeal to be a sufficient or genuine safeguard, and in not giving due consideration to the laws of the jurisdiction into which she is sending an Australian child, or to the length of time that the child will have been in Germany at the conclusion of appeal WA 12/2013 (or by the time any request for the child to return to Australia is considered) such that, notwithstanding any written assurance by the mother, any action under the Hague Convention would be unsuccessful and the child would not be required to return to Australia. (Ground 3)

We need not concern ourselves at this point with the first of these grounds as it largely relates to matters either earlier discussed or shortly to be discussed.
In dealing with the second of these grounds, we consider the factor of most significance is that the mother did comply with her obligation to return the child to Australia when she was permitted to take him to Germany during an adjournment of the trial in 2012.
It is the third of the grounds under consideration which raises the most significant issue in this appeal, and that is, whether the Child Protection Convention which her Honour relied on in [25] of her reasons and in Order 1 of her orders of 5 July 2013, provides a sufficient safeguard to overcome what we would regard as a traditional reticence on the part of the courts not to stay an order permitting a child to go abroad pending the determination of an appeal against that order. We gained the impression from the father’s oral submissions to us that the reference in this third ground to “the Hague Convention” may have in fact been to the Hague Child Abduction Convention. However, we endeavoured to explain to him at the time that it was the Child Protection Convention that was the relevant Hague Convention in this case.

The Child Protection Convention: Recognition and Enforcement Provisions

Division 4 of Part XIIIAA of the Act which, as explained at the commencement of these reasons, implements the Child Protection Convention in Australia, was inserted into the Act by the Family Law Amendment (Child Protection Convention) Act 2002 (Cth). The General Outline in the Explanatory Memorandum relating to that legislation contains the following brief explanation of the Convention:
The Convention establishes conflicts of law rules to be applied in parental responsibility litigation which has an international aspect. These rules govern the questions whether a court has jurisdiction to hear an international parental responsibility dispute, which country's law is to be applied in determining international parental responsibility disputes, what conditions must be satisfied to ensure international recognition and enforcement of parenting orders and what obligations courts in Australia and overseas have to co-operate in the protection of children.
In the present case we are concerned only with the aspects of the Convention which are concerned with “international recognition and enforcement of parenting orders”, and more particularly with the recognition and enforcement of Australian orders in Germany.
In his second reading speech in relation to the Family Law Amendment (Child Protection Convention) Bill 2002 (Cth) under the heading “Recognition and enforcement abroad of parenting orders”, the then Attorney-General explained:
Under the convention a parent will be able to send a parenting order made by an Australian court to another convention country for enforcement.
However, the Australian Act and Regulations give no apparent assistance to a parent who wishes, or is required, to send an Australian parenting order to another country for recognition and enforcement. This is perhaps not surprising because in such a case, it will be the arrangements in the foreign Convention country which will be relevant. Thus it is necessary to look directly at the Convention and commentaries on it for assistance where an Australian order is to be recognised, and possibly in due course enforced, in a foreign Convention country.
The articles of the Convention which are concerned with such recognition and enforcement are Articles 23 to 28. Those articles are contained in Chapter 4 of the Convention, which is headed “Recognition and Enforcement” and provide as follows:
Article 23
(1) The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States.
(2) Recognition may however be refused -
a)if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II;
b)if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State;
c)on the request of any person claiming that the measure infringes his or her parental responsibility, if such measure was taken, except in a case of urgency, without such person having been given an opportunity to be heard;
d)if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child;
e)if the measure is incompatible with a later measure taken in the non-Contracting State of the habitual residence of the child, where this later measure fulfils the requirements for recognition in the requested State;
f)if the procedure provided in Article 33 has not been complied with.
Article 24
Without prejudice to Article 23, paragraph 1, any interested person may request from the competent authorities of a Contracting State that they decide on the recognition or non-recognition of a measure taken in another Contracting State. The procedure is governed by the law of the requested State.
Article 25
The authority of the requested State is bound by the findings of fact on which the authority of the State where the measure was taken based its jurisdiction.
Article 26
(1) If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they shall, upon request by an interested party, be declared enforceable or registered for the purpose of enforcement in that other State according to the procedure provided in the law of the latter State.
(2) Each Contracting State shall apply to the declaration of enforceability or registration a simple and rapid procedure.
(3) The declaration of enforceability or registration may be refused only for one of the reasons set out in Article 23, paragraph 2.
Article 27
Without prejudice to such review as is necessary in the application of the preceding Articles, there shall be no review of the merits of the measure taken.
Article 28
Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State shall be enforced in the latter State as if they had been taken by the authorities of that State. Enforcement takes place in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child.
The following useful discussion of the recognition and enforcement provisions of the Convention is to be found in a yet to be published paper by Michael Nicholls QC of the English and Western Australian Bars entitled, “Australia and the 1996 Hague Protection Convention”, which the author has given the Court permission to use:
RECOGNITION AND ENFORCEMENT
The real core of, and the real force of, the 1996 Convention is in its provisions about recognition and enforcement. The basic rule is that, subject to very limited exceptions, measures taken by the authorities of a contracting state must be recognised by operation of law in all of the contracting states.
Further, measures entitled to recognition must, at the request of an interested party, be declared enforceable or registered for enforcement in another contracting state. That request can only be refused on one of the limited grounds applicable to refusal of recognition. Once registered or declared to be enforceable, provided that it is enforceable in the state of origin, a measure can be enforced. Contracting states are obliged to apply a “simple and rapid” procedure for enforcement and are forbidden to review the merits of the measure.
The crucial phrase is “by operation of law”, which means that it is unnecessary to resort to any legal proceedings in the state in which recognition is sought, so the existence of a measure is of itself enough for it to be recognised in other contracting states. So if a measure is complied with, nothing more need be done. It is only necessary to apply to a court if the measure is not being “respected” and needs to be enforced. Whether the application is for registration or a declaration of enforceability will depend on the mechanism adopted by the requested state.
Once a measure has been declared enforceable or registered for enforcement, it can be enforced as if it was an order made in the requested state (Lagarde describes this as a “sort of naturalisation of the measure in the Contracting State where it is to be enforced”). But the 1996 Convention has no provisions relating to enforcement, which means that it is the domestic law of the requested state that has to be applied in terms of the law and procedure of enforcement. Needless to say, there is an added complication: Art 28 provides that enforcement takes place “in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child”. It is not very clear just what the effect of the words “taking into consideration the best interests of the child” are going to be. The Handbook makes it clear that this is not intended to be an invitation for a further inquiry on the merits (which in any event is prohibited by Art 27), but it must mean something. It has been suggested that it might be applied in circumstances in which the law of the requesting state is such that it would not enforce an order in the face of a mature child’s objections and refusal to comply with it (The words may, in fact, have little effect within the European Union, where it has been held that failure to comply with an order might well constitute a breach of rights under the European Convention on Human Rights – for example failure to enforce a return order made under the 1980 Hague Child Abduction Convention – see Ignoccolo-Zenide v Romania (2001) (App No 3169/96); (2001) 31 EHRR 7 (ECtHR)).
Advance recognition
Although there are comprehensive provisions for automatic recognition, the 1996 Convention acknowledges that in some circumstances it might be helpful to know in advance whether a measure will be recognised. There is provision for this in Art 24, which provides that “any interested person may request the competent authorities of a Contracting State that they decide on the recognition or non-recognition of a measure taken in another Contracting State”. The procedure for advance recognition is governed by the law of the requested state.
Refusing recognition and enforcement
There are only six grounds for refusing to recognise and/or enforce a measure taken in another contracting state. They are (Art 23(2)):
• jurisdiction was not based on a Convention ground;
• except in cases of urgency, the child was not given the opportunity to be heard in violation of the fundamental principles of procedure in the requested state;
• except in cases of urgency, a person claiming parental responsibility has not been given the opportunity to be heard;
• that recognition would be “manifestly contrary to public policy of the requested State taking into account the best interests of the child”;
• that the measure is incompatible with the later measure taken in the non-Convention state of the child’s habitual residence;
• that Art 33 has not been complied with (the obligation to consult before placing a child in care in another contracting state).
These grounds should be applied strictly and, in deciding whether or not to refuse recognition or enforcement, the authorities are bound by findings of fact on which the court or authority making the measure found in jurisdiction, and there must be no review of the merits.
The appendix to a Practice Guide to the Convention published by the Ministry of Justice in the United Kingdom shows that as at 3 December 2012, Germany was a contracting state to the Convention (although we note that Germany is still not shown as a “Convention Country” in Schedule 1 to the Family Law Amendment (Child Protection Convention) Regulations 2003 (Cth)).
Returning now to the present case, it will be recalled that in Order 15 of her parenting and relocation orders made on 11 April 2013, Crisford J required the mother to have those orders “registered in Germany in a court of competent jurisdiction”. We were told by the mother’s counsel at the hearing of the appeal before us on 22 July 2013, that such registration had been effected, but counsel was not in a position to provide us with any documentary proof of such registration.
In [25] of her reasons for her orders of 5 July 2013, Crisford J said that she intended to put safeguards in place to ensure the mother’s return to this country should the appeal against her orders be successful and that she would require the mother to enter into an undertaking pursuant to the Child Protection Convention. Her Honour then noted that the Convention had “as one of its objectives” “provision for the recognition and enforcement of measures of protection” in the contracting states. Her Honour also noted that the Convention was in force in Germany. She then proceeded to make the order which is set out in [2] of these reasons.
It emerged in our discussions with those appearing before us on 22 July 2013, that Order 1 might, as drafted, have some shortcomings. Notably, it is unclear whether the mother would be permitted to take the child to Germany once she had executed the required undertaking or whether she could only do so after that undertaking was registered in the Australian and German courts. There was also no provision for the father to be informed that the requirements of the order had been met.
Therefore during the course of the hearing on 22 July 2013, we provided to all parties a re-drafted version of Order 1, which might be made by us in the event that we were to uphold Crisford J’s decision not to grant a stay of the relocation order. The re-drafted version, to which no party raised any objection, was as follows:
Upon the mother filing with the Principal Registrar of the Family Court of Western Australia and serving on the father and on the independent children’s lawyer documentary proof of registration in both the Family Court of Western Australia and a court of competent jurisdiction in Germany (as a measure of protection pursuant to the 1996… Convention) of the orders made on 11 April 2013 and an undertaking by the mother to the Full Court of the Family Court of Australia that she will return the child to Western Australia in the event that the appeal by the father is successful and an order for return of the child to Australia is made, either by the Full Court or by the Court to which the matter may be remitted for rehearing, the mother shall be entitled to remove the child to Germany seven (7) days after service on the other parties of the documentary proof of the registration of the undertaking.

Conclusion in relation to the application of the Child Protection Convention

There has to date been virtually no experience in this country, or indeed to the best of our knowledge, in any country, with the operation of the Child Protection Convention, and in particular, its provisions for the recognition and enforcement of the orders of one Convention country in another. However, that is not a reason for not permitting it to be relied upon in the present case subject to safeguards.
We have earlier concluded that it would be in the best interests of the child who is the subject of this case, to be able to go to Germany with his mother as soon as possible. It therefore seems a particularly suitable case in which to rely on the Child Protection Convention, but subject to safeguards.
The Court of Appeal of England and Wales has recently determined that an undertaking given to a court is a “measure of protection” for the purposes of the Child Protection Convention (Re Y (a child) [2013] EWCA Civil 129). However, notwithstanding that decision, we would, on reflection, prefer not to rely on an undertaking in this case, but rather base the safeguards on orders of this Court.
We consider also that the mother ought to have the option of seeking “advance recognition” of our orders and of Crisford J’s of 11 April 2013 pursuant to Article 24 of the Child Protection Convention rather than registration as provided for in the last mentioned orders, since it may be arguable that “registration” under Article 26 is an option that becomes available only when the protective measure “require[s] enforcement”, which it would not until there is a breach of the Australian orders. It will be seen that Article 26 also provides for declarations of enforceability apparently as an alternative to registration. Out of an abundance of caution we will also provide for that option to be available to the mother.
Accordingly, we propose to discharge Crisford J’s orders of 5 July 2013, and to this end, it will be necessary to allow the appeal against those orders. We will then replace those orders with orders to the effect that:
·The mother will return the child to Australia in the event that the appeal by the father against the orders of 11 April 2013 is successful and an order is made for the return of the child, either by the Full Court or by a court to which the parenting and relocation proceedings may be remitted for re-hearing.
·Upon the mother serving on the father and the Independent Children’s Lawyer documentary proof that she has obtained from a German court advance recognition or a declaration of enforceability in Germany of the orders of 11 April 2013 and of these orders, or registration in a German court of the orders of 11 April 2013 and of these orders, and also filing in the Family Court of Western Australia such documentary proof, together with proof of service of such documentary proof on the other parties, she will be entitled to remove the child from Australia at the expiration of 7 days from the date of such filing in the Family Court of Western Australia.
·The father’s application for a stay would then be otherwise dismissed.
It will also be necessary to give the parties liberty to apply at first instance in case difficulties arise in relation to matters in the German court.
At the conclusion of the hearing of the appeal on 22 July 2013, we ordered that, pending further order, the child should not be taken out of Australia and that the operation of Crisford J’s Order 1 of 5 July 2013 should be suspended. In our orders which are to be made to give effect to these reasons, we will discharge those interim orders as they will be replaced in substance by the orders outlined at [77] of these reasons.
It will be observed that, by Order 8 of her Honour’s orders of 11 April 2013, issues about the father’s ongoing contact and communication with the child were adjourned for later consideration. We were informed that these issues have not yet been the subject of further consideration; however, that is a matter for the father to pursue.

Costs of the appeal

Given that the appeal has to be allowed and her Honour’s orders substantially varied, we consider that there should be no order made in relation to the costs of the appeal. However, given the novelty of the issues surrounding the Child Protection Convention which have caused us to interfere with her Honour’s orders, we would be prepared to grant the mother and the father (to the extent he has incurred any legal costs) certificates under s 6 and s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). However, in order to obtain such certificates it will be necessary for each party to write to the Appeal Registrar requesting that the Full Court grant him or her such certificates.
We note that the Independent Children’s Lawyer did not seek to be heard on the issue of costs.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Thackray and Aldridge JJ) delivered on 2 August 2013.

Associate:

Date: 2 August 2013