Central Authority & Wageman and Anor
[2012] FamCAFC 176
•2 November 2012
FAMILY COURT OF AUSTRALIA
| CENTRAL AUTHORITY & WAGEMAN AND ANOR | [2012] FamCAFC 176 |
| FAMILY LAW – APPEAL – HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION – application for permanent stay – basis on which a permanent stay may be ordered – wrongful retention – jurisdiction to make a return order pursuant to Regulation 16(1) is enlivened by finding jurisdictional facts – nothing in the Regulations or the Convention suggests that an application for orders that asserts a date of wrongful retention which date is not accepted by the Court must be dismissed and a fresh application filed. FAMILY LAW – APPEAL – HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION – ROLE OF CENTRAL AUTHORITY – Regulation 13(1)(b) requires that the Central Authority is satisfied that the “claim” provides an evidentiary foundation for each of the matters referred to in Regulation 13(1)(a) and the other matters which must be established so as to invoke the Convention – appeal allowed – order for a permanent stay dismissed. |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Regulations 1, 7, 13, 16 |
| Coulton v Holcombe (1986) 162 CLR 1 Jago v District Court of New South Wales (1989) 168 CLR 23 Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 Moti v R (2011) 283 ALR 393 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Walton v Gardiner (1993) 177 CLR 378 |
| APPELLANT: | Central Authority |
| FIRST RESPONDENT: | Ms Wageman |
| SECOND RESPONDENT: | Mr Hemming |
| FILE NUMBER: | SYC | 3125 | of | 2012 |
| APPEAL NUMBER: | EA | 109 | of | 2012 |
| DATE DELIVERED: | 2 November 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 8 October 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 July 2012 |
| LOWER COURT MNC: | [2012] FamCA 726 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Stephen Lloyd SC with Mr Begbie |
| SOLICITOR FOR THE APPELLANT: | Australian Government Solicitor |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr John Lloyd SC with Mr Feredoes |
| SOLICITOR FOR THE FIRST RESPONDENT: | Paul & Paul Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Self-represented – appeared by telephone link |
| SOLICITOR FOR THE SECOND RESPONDENT: | Self-represented – appeared by telephone link |
Orders of 8 October 2012
That the appellant be granted leave to appeal against the orders of Justice Le Poer Trench made on 30 July 2012.
That the appeal be allowed.
That the orders of Justice Le Poer Trench made on 30 July 2012 be set aside.
That the application of the mother in proceeding SYC 3125 of 2012 for a permanent stay be dismissed.
That the Hague proceedings be remitted for determination on the merits before a judge other than Justice Le Poer Trench.
That there be no order for costs.
IT IS NOTED:
It is requested that the Family Court of Australia gives such expedition to the hearing of the Hague proceedings as that Court deems appropriate.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Central Authority & Wageman and Anor 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: EA 109 of 2012
File Number: SYC 3125 of 2012
| Central Authority |
Appellant
And
| Ms Wageman |
First Respondent
And
| Mr Hemming |
Second Respondent
REASONS FOR JUDGMENT
The Central Authority appeals against an order of Le Poer Trench J made on 10 August 2012 by which he permanently stayed the Central Authority’s proceedings brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) which implement the Convention on the Civil Aspects of International Child Abduction (“the Convention”).
The Central Authority appealed the decision. The father who appeared by telephone from Sweden supported the position adopted by the Central Authority. The mother resisted the appeal.
The respondents to the proceeding before the trial judge were Ms Wageman (“the mother”) and Mr Hemming (“the father”). They are the parents of two young girls E who was born in September 2009 and A who was born in April 2011.
The appeal was heard on 8 October 2012. At the conclusion of the hearing we made orders allowing the appeal, discharging the order permanently staying the application and remitted the Central Authority’s application for hearing on its merits before a judge other than the trial judge. We indicated that we would deliver reasons at a later time. These are our reasons.
Background
The father and mother met in about mid 2007 and lived together in a de facto relationship in Sweden from November 2007. They lived in an apartment purchased jointly by them. The father is a Swedish national. The mother is an Australian citizen. The children were born in Sweden and are citizens of that country.
In January 2012 the father, mother and children came to Australia. The mother’s parents live in Australia. The father said that the purpose of the trip was to visit the mother’s parents and for the mother to undertake a course of study in Sydney. The father took leave from his employment to come to Australia. The family travelled together with return air tickets booked for 30 March 2012.
The family lived with the mother’s parents during their time in Sydney. It seems that during this time the relationship between the father and mother became strained and there were arguments between them.
The father said that on 19 February 2012 the mother told him that she did not intend returning to Sweden and that she had taken possession of the children’s passports. The father said that the mother indicated that she wished to live permanently in Australia with the children. On that occasion and on each occasion thereafter when the children’s return to Sweden was discussed the father told the mother that he did not agree to the children remaining in Australia past the flight booked to depart on 30 March 2012.
Who would hold the father and children’s passports became contentious and the father persistently asked the mother to give him the children’s passports. Although it is not entirely clear, that sometime between 15 and 18 March 2012 the father took possession of the children’s passports.
On 26 March 2012 the father informed the airline that under no circumstances were his and the children’s return tickets to be cancelled or changed without his approval.
On 30 March 2012 the father discovered that the day before the mother had cancelled the airline tickets for the children’s travel on that day and re-booked the tickets for departure on 16 April 2012. The father, on enquiring of the airline, was told that the flight was then fully booked and no other tickets for travel on that day were available.
Later that same day, the father spoke to the mother who confirmed that she had changed the departure date for herself and the children. The father told her that he objected to her actions and said that he proposed to travel with the children on that day and would call for them at a time to enable them to catch the earlier booked flight. The father attended the mother’s parent’s home where the mother refused to allow the children to leave with him. In the meantime his solicitor was in contact with the airline who were informed the father expected to it abide his earlier instruction to not cancel the children’s tickets; to reinstate their booked seats to permit them to travel on 30 March 2012.
When the mother refused to deliver the children, the father flew out alone and returned to Sweden and, in accordance with the arrangement with his employer, returned to work by the due date.
Before leaving Australia he arranged for a friend who accompanied him to the airport to deliver the children’s passports to his solicitor. On his instructions, his solicitors sent a letter to the mother’s solicitors indicating that the father did not agree to her travelling with the children alone but that on short notice he would return to Sydney to travel with her and the children to Sweden. The father’s solicitor held the passports until an order was made on 30 May 2012 that they be delivered to the court and held pending determination of the proceedings.
No direct request was made by the mother at any time for release of the passports to enable her to take the children to Sweden.
The mother and children remained in Sydney.
The proceedings
On 4 April 2012, the father lodged an application pursuant to the Convention with the Swedish Central Authority requesting the children’s return to Sweden. Sweden accepted his application and in turn requested that Australia return the children to Sweden. The request was based on the allegation that the children had been wrongfully retained by the mother in Australia.
Australia accepted Sweden’s request and an application seeking orders for the return of the children was filed by the Central Authority in this Court on 30 May 2012. The mother’s response filed on 9 July 2012 sought that the Central Authority’s application be dismissed.
The application was listed for hearing before the trial judge on 25 July 2012.
On the second day of the hearing before his Honour and after the close of the evidence, the father sought to intervene in the proceedings between the Central Authority and the mother. That leave was granted and the father made submissions in the matter.
When the hearing commenced before his Honour the documents to be relied on in the proceedings were identified and his Honour retired to read them.
His Honour resumed the hearing at 2.20pm. At that time, counsel then appearing for the mother indicated that he wished to file an application in court seeking that the proceedings be stayed permanently. The solicitor appearing for the Central Authority indicated that he was in a position to deal with that application.
The basis of the application was that the proceedings commenced by the Central Authority were an abuse of process or, in the alternative, were doomed to fail. As will be apparent, that application was heard and determined in favour of the mother. The Central Authority’s application was not heard.
In the appeal and before the trial judge there was no issue taken that the children were habitually resident in Sweden or that the father had rights of custody pursuant to the relevant Swedish law. From comments made by counsel who appeared for the mother on the appeal, it seems that these matters may not be uncontroversial in future proceedings, but nothing turns on that for these purposes.
Reasons of the Trial Judge
His Honour expressed the nature of the application before him as being an application for a permanent stay based on an assertion that the father had “removed the [mother’s] ability to return to Sweden on 30 March 2012” (at [1]). His Honour identified the action giving rise to the application before him as “the father’s retention of the children’s passports on or about 29 March 2012, and certainly for the whole of the day of 30 March 2012” (at [3]).
His Honour noted that the case for the Central Authority was that the parents had agreed to spend time in Australia until 30 March 2012 and that the mother’s failure to take the children back to Sweden amounts to “wrongful retention” under the Regulations.
The trial judge said:
14.... The facts upon which the respondent relies have been identified in submissions as follows. Those facts have been identified from evidence which has been put before the Court by the applicant or is before the court as incontrovertible evidence:
(a)Until 12 midnight on 30 March 2012, the mother could have left Australia for the purpose of returning the children to Sweden and avoided the accusation of wrongful retention of the children in Australia.
(b)On 18 March 2012 the father took possession of the children’s passports and retained them to the exclusion of the mother from that point in time until an order was made by this court on 30 May 2012 on the application of the Central Authority. The order required Santone Lawyers to deliver the passports of the children to the registry manager of this Court (see Exhibit R1).
His Honour then set out the evidence which was either adduced by the applicant or was in his view “incontrovertible”. Of particular importance during the hearing before the trial judge and on the appeal was the text of a letter sent by the father’s solicitors to the mother’s solicitor on 30 March 2012 at 13.21 hours. His Honour quotes it [15] as shall we:
Our client instructs us that your client has changed the flight details for the children. Our client has been informed by the airline and by your client that your client intends to return to Sweden with the children on 16 April 2012.
Our client is taking all steps to ensure that seats are still available for the children on Etihad flight number … departing Sydney at 3.50 pm this afternoon.
Our client regards your client’s unilateral decision to change the flights and not permit the children to return to their home in Sweden today, as scheduled, to be an act of wrongful retention. Our client will now be invoking the Hague Convention to ensure the children’s immediate return to Sweden.
Our client has met with your client to discuss these issues. He has been waiting at the maternal grandparent’s house in [Sydney’s North Shore] to collect the children but nobody is home.
Our client is still hopeful that the children will be handed over to him to travel and there is still time for your client to bring the children to the airport. In the event that this does not occur, our client will return to Sweden alone. The children’s passports will be left with us. Our client instructs us that he does not consent to your client travelling alone with the children. He will not release the passports to your client. Our client will return to Australia to accompany the children to Sweden.
His Honour referred to a letter written by the father’s solicitor to the solicitor for the mother on 29 March 2012 and found:
33....
Thus the father was on notice on 29 March 2012 that the mother would not be travelling to Sweden with him on 30 March 2012. This is an important fact, when aligned with the evidence of the actions of the father thereafter in relation to the control of the children’s passports.
His Honour found that the father knew on 30 March 2012 that the mother had changed the airline bookings for herself and the children to leave Australia on 16 April 2012 (at [35]).
Under the heading “Relevant Law” (at [37] and following) his Honour considered the authorities concerning the issue of permanent stay of proceedings. He referred to the well known passages from Walton v Gardiner (1993) 177 CLR 378, at 392- 393, where Mason CJ, Deane and Dawson JJ said:
None of the members of the Court of Appeal accepted the Department’s narrow view of the extent of the jurisdiction of the Supreme Court to order a stay of proceedings on abuse of process grounds. Gleeson C.J. and Kirby P. considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be “so unfairly and unjustifiably oppressive” as to constitute an abuse of process. Their honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney J.A. adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct.
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”. (Citations and footnotes omitted)
His Honour turned to consider the submissions on the application. He said:
62.The applicant says the wrongful retention occurred on 30 March 2012. The father says the wrongful retention occurred on 30 March 2012. The respondent says wrongful retention could not have occurred prior to the expiry of 30 March 2012.
His Honour observed that for the purposes of considering the application for permanent stay, he was asked to conclude that the wrongful retention took place on either; “30 March 2012 or, if it took place at all, on the respondent’s case, one minute after midnight on 30 March 2012.”
Turning to the mother’s position, his Honour noted that her argument was that there was no wrongful retention on the facts of the case until 31 March 2012, “thus the applicant could not establish a wrongful retention on 30 March 2012” (at [67]).
His Honour then said that:
67....
b)Even if there was a wrongful retention on either 30 March 2012 or 31 March 2012, the father’s actions made it impossible for the mother to be able to remove the children from Australia to return them to Sweden. ...
His Honour cited the father’s actions in holding and leaving the passports with his solicitors and his instructions to the solicitors that they were not to be released to the mother for her to travel alone with the children from Australia.
His Honour continued:
69.It is submitted that the father, having made it impossible for the respondent to return the children to Sweden, either after he boarded his aircraft on 30 March 2012 or at any other time prior to 30 May 2012, caused the central authority in Sweden to make a request to the Australian central authority to issue the subject proceedings on the basis of the mother’s wrongful retention of the children. That action is said to amount to an abuse of process of the most extreme nature, and as such should be met with the sanction of the order sought, namely, the making of a permanent stay.
70.It is submitted that the applicant was fixed with the knowledge of the father’s actions via material which the applicant included in the application filed 30 May 2012. To the extent that the applicant may not have fully appreciated exactly what the father had done, it certainly know the case being made by the respondent when the Court invited the applicant’s solicitors to take the opportunity to obtain instructions at the conclusion of the evidence placed before the Court by the respondent. That invitation was declined and the respondent says the applicant, bound by the requirements of being a model litigant and shrouded with protective immunity from costs orders by operation of the Regulations should have withdrawn the application.
In conclusion his Honour found this a “compelling case” for granting the relief sought. He found that to allow the proceedings to continue would amount to unacceptable injustice and unfairness (at [106]). He further found that the father’s actions in taking possession of the children’s passports prior to 29 March 2012 and the circumstances in which they were thereafter held, made it a “practical impossibility for the mother to be able to return the children to Sweden, either on 30 March 2102 or on 16 April 2012, or at any other reasonable time thereafter” (at [107]).
His Honour then said:
119.Should it be necessary for me to do so for the purpose of determining an application for a permanent stay then I would determine that any retention by the mother of the children, whether it occurred on 29 March 2012, 30 March 2012 or 31 March 2012, could not, in the circumstances have been wrongful. The actions of the father made it impossible for the mother to remove the children from Australia to Sweden and that is still the case today, where the passports for the children are now held by the Court. ...
120.The evidence suggests the mother had the intention of returning with the children to Sweden on 16 April 2012. She changed the bookings for herself and the children on 29 March 2012. The action of changing the dates of return to Sweden from 30 March 2012 to 16 April 2012 is not consistent with an intention on the part of the mother to remain permanently in Australia with the children.
Finally his Honour concluded that the father’s actions in relation to the passports had the effect of preventing the mother from “remedying her wrong, had she intended to wrongfully retain them on 30 March 2012.” He continued:
133.…It can not be the case that the mother could not be allowed to return the children to Sweden within a reasonable period of 30 March 2012 expiring….She should not be prevented from voluntarily returning the children to Sweden at any time prior to the date of the application being filed on 30 May 2012. ...
The appeal
The Central Authority raised 16 grounds in challenge to his Honour’s decision.
The written submissions prepared on behalf of the Central Authority consider the grounds in groups and it is convenient that we do too.
The basis on which a permanent stay may be ordered
The first group of grounds asserts that his Honour erred with respect to the principles to be applied to the application for a permanent stay (grounds 1, 2, 4, 5, 6 and 7).
It was argued that in determining to grant the order sought, the trial judge failed to have proper regard to the fundamental principles that to grant a permanent stay is a remedy to be adopted in exceptional and extreme circumstances and that a stay should not be granted if there was some other, less drastic step that would protect the Court’s processes.
Without traversing the whole of the written submissions supporting these arguments, we must agree.
It was further submitted that his Honour did not pay sufficient attention to the significant public interest in permitting parties access to courts but focussed on the private interests of the parties. In Jago v District Court of New South Wales (1989) 168 CLR 23 at 33, Mason CJ said:
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial ...
In Moti v R (2011) 283 ALR 393, French CJ, speaking for the plurality said:
57.The third basic proposition is that, as pointed out in the joint reasons of four members of this court in Williams, two fundamental policy considerations affect abuse of process in criminal proceedings. First, “the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike”. Second, “unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice”. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements. (Citations and footnotes omitted)
In considering the application before him, his Honour was required to give effect to this balancing process and take into account that the Central Authority was fulfilling its obligations under an international covenant which required it, among other things, to act promptly to secure the return of children asserted to have been wrongfully retained abroad. Further, if the attempts at compliance with those obligations be undermined it could have a deleterious effect on Australia’s rights under the Convention.
It was submitted for the Central Authority that even had his Honour come to the view that it was in some way “implicated” in the father’s actions in retaining the children’s passports, in the absence of a positive finding of wrongdoing on the part of the Central Authority, that the absence of a finding of wrongdoing ought to have been relevant to his Honour’s consideration.
Further, it was argued (written argument page 6):
24.Indeed, the only treatment of these public interest considerations in his Honour’s reasons suggests that his Honour may have considered it in some way inappropriate for the Commonwealth Central Authority to have continued with its application in the face of the mother’s complaints. Although not amounting to a positive finding, the implication that the Commonwealth Central Authority ought not to have proceeded with the applications highlights, rather than corrects, the failure to have regard to the various public interest considerations outlined above. ... (Original emphasis)
We accept these submissions.
It appears to us that his Honour did not give any or any proper attention to the cautions sounded in the authorities; that to permanently prevent a person bringing an action before the court for determination is a drastic step.
As Gaudron J said in Jago (supra) at page 76:
The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia, that the “prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is ‘amenable to the jurisdiction’ of the courts and other public tribunals”. Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (N.S.W.) v. Watson, “sparingly, and with the utmost caution”. (Citations omitted)
The basis on which his Honour determined to grant a permanent stay was somewhat unclear from his reasons. It seems to us that he formed the view while not explicitly expressing it, that the proceedings constituted an abuse of process because they were bound to fail.
His Honour concluded at [113] that it was unnecessary to determine when, if at all the wrongful retention of the children took place because:
113.... It is the circumstance in which the action is brought, coupled with the father’s actions in relation to the children’s passports, giving rise to the conclusion that the father prevented the mother unreasonably from being able to return the children to Sweden which invokes as appropriate the remedy sought by the mother.
The circumstances to which his Honour alludes in [113] are found in [119] where he found:
119.... I would determine that any retention by the mother of the children, whether it occurred on 29 March 2012, 30 March 2012 or 31 March 2012, could not, in the circumstances, have been wrongful. The actions of the father made it impossible for the mother to remove the children from Australia to Sweden and that is still the case today...
As we have indicated, while his Honour made no express finding that the proceedings constituted an abuse of process because they were foredoomed to fail, it seems from these paragraphs that he had in fact come to that conclusion. To the extent that the trial judge impliedly came to that conclusion, we are of the view that such conclusion was not reasonably open to him.
The Central Authority’s submissions proceed on the basis that his Honour granted a stay because he concluded at [106] that the proceedings “would involve unacceptable injustice or unfairness”. Further, the Central Authority submitted that his Honour “appears also to have accepted that the circumstances were such as to create an absurdity which would bring the administration of justice into disrepute”.
As Gaudron J said in Jago (supra) at 74, the power of a court to control its own processes is “not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands”.
Accepting the proposition that his Honour’s decision to grant a permanent stay was because he had concluded that to permit the proceedings to continue would “involve unacceptable injustice or unfairness” or “create an absurdity”, we are of the view that these conclusions were not reasonably open to him.
In making the order for permanent stay his Honour said the proceedings brought by the Central Authority amounted to an abuse of process which he identified thus; there could not have been a wrongful retention of the children on the 30 March 2012 as asserted by the Central Authority because the father’s actions in relation to the passports made it “a practical impossibility for [the mother] to be able to return the children to Sweden either on 30 March 2012 or 16 April 2012 or at any reasonable time thereafter” (at [106]) and the Central Authority, knowing of the father’s actions in retaining the passports, nonetheless continued the proceedings thus amounting to an abuse of process.
In coming to the conclusion that the father’s actions had rendered it impossible for the mother to return the children to Sweden on 30 March 2012 or indeed at any later time, his Honour relied on what he regarded as “incontrovertible evidence”. The Central Authority argued that his Honour erred in describing matters on which he relied as “incontrovertible facts” (at [14] and [15]) and submitted that his Honour had denied the Central Authority procedural fairness in the conduct of the hearing.
The thrust of this ground is that while his Honour indicated that he would consider the mother’s application for permanent stay on “…evidence which has been put before the Court by the applicant or is before the court as incontrovertible evidence” (at [14]), his Honour nonetheless considered material that was neither the evidence of the applicant nor incontrovertible. Further, it was argued that given the summary nature of the application, his Honour was obliged to take the applicant’s evidence “at its highest” but failed to do so.
It was argued that his Honour took account of evidence that was “far from incontrovertible”. For example, the Central Authority referred to his Honour’s reliance on proposed “consent orders” proffered unsolicited to the father for signature by the mother and about which the father said he had no intention of signing at [15(e)] and at [121] his Honour’s reference to the father “being on notice” of the mother’s stated reason for changing the travel date being the asserted illness of a child, when it was argued there was no evidence of that fact and the mother’s assertion was the subject of challenge by the father.
The Central Authority argued that in failing to restrict his consideration to the matters earlier identified and in finding as “incontrovertible” matters which were plainly in dispute, his Honour failed to afford procedural fairness to the appellant who was unable to anticipate and answer the matters on which his Honour apparently placed reliance.
There is force in this argument, however, while his Honour’s reliance on controversial matters was outside the expressed scope of his enquiry, the Central Authority did not identify any particular matter on which it would have made submissions but which otherwise did not or which otherwise sounded in error.
The Central Authority further submitted that his Honour’s conclusion of “impossibility” was reached impermissibly.
Impossibility of return
Central to the trial judge’s decision to order the proceedings be permanently stayed was his conclusion that the father, by his own actions had made it “impossible” for the mother to return the children to Sweden.
The Central Authority argued that this finding by his Honour was made without proper foundation.
In concluding that the father’s actions had prevented the mother returning to Sweden, his Honour proceeded on the basis that had the mother wished to return the children to Sweden she could not because the father had left the passports in the safekeeping of his solicitor (and it must be observed pursuant to orders made on the mother’s application, from May 2012 the passports were in the Court’s custody). The Central Authority argued that this conclusion was not available to his Honour because it was based on a “hypothetical basis by focussing on so-called ‘impossibility’ of the mother returning the children, without regard to whether she actually intended to return them.” Further it was argued that the trial judge failed to make “clear findings as to whether or when the mother had an intention to retain or return the children [...]. This highlights his Honour’s view that it was the theoretical possibility of return, not the reality of any actual intended return, which was critical to the question of the permanent stay.”
It was argued that on 29 March 2012, the mother herself had changed the flight tickets for her and the children from 30 March 2012 to 16 April 2012 which taken with the father’s complaint that there were no further seats available on that flight, effectively prevented their leaving Australia as agreed on 30 March 2012. Secondly it was submitted that there was no evidence that the mother had made any request or application for release of the passports to enable her to return to Sweden. Nor did the mother give evidence that she had any intention of returning to Sweden either on 16 April 2012, the date of the changed air tickets, or at any other subsequent time.
Thus it was argued that his Honour’s finding of “impossibility” rested on a hypothetical proposition that had the mother wished to return the children to Sweden she could not but there was no evidence to support his Honour’s finding. We agree and conclude that in so finding, his Honour’s fact finding miscarried. We also agree with the Central Authority’s contention that the granting of a permanent stay predicated upon a hypothetical scenario would not protect public confidence in the administration of justice and would positively undermine it.
Regrettably, because his Honour’s conclusion was flawed, that which flowed from that foundation is similarly impaired. His Honour concluded that it was unnecessary for him to determine the date on which any wrongful retention occurred, having formed the view that it could not be wrongful because of the father’s conduct.
His Honour found:
113.In the determination of the respondent’s application, it is unnecessary to find when, if at all, wrongful retention of the children has taken place. It is the circumstance in which the action is brought, coupled with the father’s actions in relation to the children’s passports, giving rise to the conclusion that the father prevented the mother unreasonably from being able to return the children to Sweden which invokes as appropriate the remedy sought by the mother.
…
119.Should it be necessary for me to do so for the purpose of determining an application for a permanent stay then I would determine that any retention by the mother of the children, whether it occurred on 29 March 2012, 30 March 2012 or 31 March 2012, could not, in the circumstances, have been wrongful. The actions of the father made it impossible for the mother to remove the children from Australia to Sweden and that is still the case today, where the passports for the children are held now by the Court...
When did the wrongful retention occur?
In oral argument senior counsel for the Central Authority raised what appeared to be a ground of appeal not directly raised in the Notice of Appeal; that is that his Honour erred in finding that the Central Authority had to prove that the time at which there had been a wrongful retention was the 30 March 2012 as asserted in its application and, if that date be not accepted, the application was invalidly brought.
It was contended that the correct approach was for his Honour, when seized of the matter, to consider whether at the time of hearing there was a wrongful retention.
Given the nature of the appeal and the significance of the matters for debate, we were of the view that it was an important issue to be considered on the appeal. To the extent that it did indeed raise a new ground, we indicated that we would consider it as an additional ground.
Senior counsel for the mother said that he required some time to consider this new issue and the matter was adjourned. On resumption senior counsel for the mother said that he was in a position to address the argument, which he did.
Fairly, senior counsel for the mother did not assert that, to the extent that the point may not have been taken in the court below, it ought not be entertained on appeal (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438, Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 at 71 and Coulton v Holcombe (1986) 162 CLR 1 at 7). In any event, although somewhat obliquely, the point was raised by counsel who appeared for the father on the second day of the hearing. He said:
… it hasn’t been required previously to go down to the wire and look at a specific time on the clock, or a range of times, in the scenario that I put to your Honour, as to when the retention occurred, and remembering that the reason that the date of retention is relevant is so that the 12-month period for the operation of the Convention can be measured from the date of the retention. Now, it might be really relevant if we’re talking about the making of this application on 30 March 2013 or 31 March 2013, but the reality is, in this situation, that effectively, as of the date I say the taxi door closed, that was the retention. Therefore, the pleading of the date in respect of the wrongful retention is correct – that being 30 March – because it was at a time on 30 March that the wrongful retention occurred, not a notional or fictional time, being the stroke of midnight. ...
The thrust of this argument was that the question for his Honour was not whether or not there was a wrongful retention on 30 March 2012 but whether there had been a wrongful retention of the children at a time prior to the filing of the application for orders and, whether at the date of hearing in July 2012, that state was continuing in the sense that the children remained in Australia and the Central Authority was still asserting wrongfully so.
It was argued that the evidence established that before 30 March 2012 the mother had made it clear to the father that she was not going to return to Sweden with the children and in any event, when she did not take the children to the plane or permit the father to take them to the plane on 30 March 2012, there then existed a clear indication that she was not going to allow the children to be returned thus wrongfully retaining them.
It is not necessary for us to consider for these purposes whether at the time the mother made her intention clear that she would not be returning the children to Sweden on the flight departing on 30 March 2012 as previously agreed and cancelled the children’s tickets, that operated as the point at which the wrongful retention occurred.
It was submitted that the trial judge erred in focussing not on the actions and statements of the mother but on the father’s retention of the passports. We agree. The issue of the possession of the children’s passports was a distraction from his Honour’s true enquiry which is found in the Regulations.
The appropriate starting point is Regulation 1A which provides a guide by which the following regulations are to be construed; namely “having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention”. Article 1 clearly states the purposes of the Convention are “to secure the prompt return of children wrongfully removed or retained in any Contracting State”.
Regulation 13 states:
(1) The Commonwealth Central Authority must take action to secure the return of a child under the Convention if:
(a)it receives a request from:
(i) a person, institution or other body that claims to have rights of custody in relation to the child who, in breach of those rights, has been removed from a convention country to Australia or has been retained in Australia; or ...
... and
(b)it is satisfied that the request is in accordance with the Convention. (Our emphasis)
The terms of the Regulation are mandatory. Sub-regulation (2) of the Regulation provides that if the Central Authority is satisfied that the request is not in accordance with the Convention, the request may be refused.
Regulation 16(1) compels a court to make an order for the return of a child:
(1)If:
(a)an application for a return order for a child is made; and
(b)the application … is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfied the court that the child’s removal or retention was wrongful under sub-regulation (1A); ...
Regulation 16(2) provides:
(2)If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to sub-regulation (3), make the order.
The Central Authority argued that nothing in the Regulations requires it to be satisfied as a matter of fact either at the date of the application or for that matter the date of receipt of the request that there had been a wrongful retention. To the extent that the submission imports the same degree of satisfaction that is required before a return order could be made, we agree. However, the terms of Regulation 13(1)(b) require that the Central Authority be satisfied that the “claim” provides an evidentiary foundation for each of the matters referred to in Regulation 13(1)(a) and the other matters which must be established so as to invoke the Convention. In addition to a “claim” that is vexatious or having regard to the defences patently unmeritorious, if those matters are not evident in the “claim” the Central Authority may refuse to accept a request.
In this case, the Central Authority’s application asserted the date of wrongful retention was 30 March 2012.
As can be seen from his Honour’s reasons, he formed the view that the identification of a specific date on which it was asserted that there was a wrongful retention was critical to the validity of the Central Authority’s application for orders. That is, his Honour regarded the asserted date of wrongful retention as being a jurisdictional fact.
Counsel for the mother argued on appeal that the asserted date of wrongful retention was a critical, indeed jurisdictional fact, because of Regulation 16(2). It was argued that the date on which the wrongful retention was asserted to have occurred operated as the “starting point” for calculation of the period of one year to which Regulation 16(2) relates.
We do not agree that it was necessary to be satisfied that the wrongful retention occurred on the asserted date or, in the circumstances of this case, any other date, given that, if there was “retention” within Regulation 16, the Central Authority undoubtedly filed its application within one year of such retention. The jurisdiction to make a return order pursuant to Regulation 16(1) is enlivened by finding “jurisdictional facts”. Those jurisdictional facts include a finding that there has been “wrongful retention” within the meaning of the Regulations, and that the Central Authority’s application was filed within one year of such retention.
Nothing in the Regulations or the Convention suggests that an application for orders that asserts a date of wrongful retention, a date which ultimately is not accepted by the court, must be dismissed and a fresh application filed which is the thrust of his Honour’s determination on this point. Were that to be the case, it would be inconsistent with the Convention’s imperative of timeliness.
In our view, the Regulations required his Honour to enquire whether at the date of hearing before him there had been a wrongful retention of the children in Australia and that the wrongful retention occurred before the application for orders was filed. If it transpired that the evidence did not support a finding of wrongful retention on the date alleged in the application, but nonetheless establishes wrongful retention prior to the hearing, the application may still be competent. Other than as to being satisfied that the application was brought within one year of the alleged wrongful retention, the focus of his Honour’s consideration on whether the retention occurred on 30 March 2012 or at one minute past midnight on 31 March 2012 was, in our view, misdirected.
His Honour’s conclusion that at no time after 30 March 2012 could the children’s retention in Australia be considered wrongful was a finding not open to him. His Honour’s conclusions on this point were premised on the flawed assumption that had the mother wanted to return to Sweden, because the passports were not in her possession, she could not.
Whether a wrongful retention has occurred as asserted in the application of the Central Authority and, if so, the date on which it occurred was quintessentially a matter of fact, which if disputed, requires judicial determination. The solicitor then appearing for the Central Authority made submissions to that effect.
During the argument below, the following exchange occurred between the trial judge and the solicitor then appearing for the Central Authority in which the solicitor for the Central Authority attempted to indicate to the trial judge that the determination of whether and when a wrongful retention has occurred is a matter of fact to be determined on a hearing on the merits. His Honour did not accept those submissions:
HIS HONOUR: A model litigant doesn’t proceed without instruction, and a model litigant does not proceed with an application which is doomed to failure.
…
HIS HONOUR: So that’s why I gave you that opportunity, but you’ve rejected it. So let’s proceed. If that’s the basis upon which you’re proceeding, then you better take me to the regulation that effectively says that the central authority has no ability to withdraw the proceedings should they become aware of facts that ought to convince them that the application should never have been brought.
MR MARKUS: No, your Honour. The point I’m making and the reason why I didn’t seek instructions is that we were aware of the fact my friend has drawn your attention to a particular paragraph, and we’re not saying that we were not aware of the fact when the proceeding has commenced. What I’m putting to your Honour is that in light of those facts, an authorised officer for the purposes of the relevant part of the regulations, has formed the view that the request was made in accordance with the convention. And that was the basis upon which the proceedings were commenced under regulation 13, sub-regulation (1). And, therefore, it follows, your Honour, that we are of the view that despite the fact that the father had the passports, there is merit to the application.
…
MR MARKUS: Your Honour, I cannot, but I would like to take issue with your Honour’s characterisation of these circumstances. Because what your Honour is putting to me is accepting the central proposition of the application by my friend that the father, by giving the passports to the solicitor, in substance, prevented the mother from complying with her obligations .....
...
MR MARKUS: ... Your Honour, the basic proposition that is being put is that by having the passports, the father, in a real sense, deprived the mother from the opportunity to remove the children to Sweden pursuant to her obligations. Whether that is the case, your Honour, is a question of fact, in my respectful submission. And your Honour has not seen the whole of the evidence. But your Honour, in circumstances where there is evidence before this court that prior to the 30th - that is, immediately prior to the 30th on the evening of 29 March, the mother has cancelled the children’s airline tickets and her own airline tickets.
Finally, the solicitor for the Central Authority said:
MR MARKUS: Your Honour, the proposition is this. Whether there has been wrongful retention and whether, as my friend has submitted, the father has, through his own actions, frustrated the ability of the mother to return the children is a question of fact. And in my respectful submission, there are issues to be determined for your Honour in that context, and it’s not the case, in my respectful submission, that in circumstances where the mother had no - the mother has delayed the departure to the 16th and then has, in effect, declined to depart herself with the children on the 30th ‑ ‑ ‑
...
MR MARKUS: Well, your Honour, she didn’t depart, but I think that the fact that the father has attempted to have the children taken to the airport even though at that stage it didn’t appear that they had tickets is not entirely relevant, in my respectful submission, because what it does show, in my respectful submission, that the father did try to leave with the children. And at that stage, he did have the passports ...
We agree with those submissions.
We consider that his Honour misdirected himself as to the effect of the Regulations and fell into error.
Actions of the Central Authority
As we have indicated, his Honour’s decision to order the proceedings be permanently stayed rested both on his finding of “impossibility” and the conduct of the Central Authority in continuing the proceedings.
His Honour said:
116.The respondent has been critical of the applicant for commencing and/or continuing the current proceedings in the face of the evidence presented to it. I do not conclude the applicant should not have commenced the proceedings on the evidence presented to it at the time the application was commenced. However, I was surprised when the applicant’s solicitors declined my invitation to obtain instructions in relation to the evidence then before the Court at the time the submissions were to commence.
...
118.It is encumbered [sic], in my view, on the central authority because of the provisions of reg 7, not to proceed to take actions if it has any doubt as to the appropriateness of taking action under the Regulations. The Regulations provide a method for notifying the reason for the central authority not taking action and that may thereby allow the citizen of the other convention country affected an opportunity to cure the perceived defect and make another request thereafter. That process seems to be remarkably appropriate and certainly available to the central authority.
Regulation 7 grants the Central Authority immunity in relation to orders for costs.
We do not accept his Honour’s premise that there is some higher responsibility on the Central Authority to refuse to take proceedings if there is “doubt as to the appropriateness of taking action”. As we have set out, the Regulations require a level of satisfaction before a request for assistance is accepted. It is wrong to import into them some other requirement. Whether or not the facts necessary to the making of an order as requested by the Central Authority are established is a matter to be determined judicially having heard the application on its merits.
Having then determined that the appeal must succeed and given that the matter will be heard on its merits, we see little point in considering the other grounds of appeal raised by the Central Authority.
Leave to Appeal
The Central Authority sought leave to appeal against his Honour’s order of a permanent stay, considering that it was an interlocutory order. Counsel for the mother conceded that leave ought to be granted and we are of the view that this is a matter in which leave to appeal is appropriate as substantial injustice would result if leave were not granted.
Costs
The Central Authority did not seek an order as to costs nor did the father. We will make no order as to costs.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace and Ryan JJ) delivered on 2 November 2012
Associate:
Date: 2.11.2012
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