COMMISSIONER OF POLICE and MARTIN

[2021] FCWA 229

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: COMMISSIONER OF POLICE and MARTIN [2021] FCWA 229

CORAM: TYSON J

HEARD: 25 NOVEMBER 2021

DELIVERED : Ex tempore

FILE NO/S: 4659 of 2021

BETWEEN: CHRIS DAWSON COMMISSIONER OF POLICE

Applicant

AND

MS MARTIN

Respondent

Catchwords:

Hague Convention – Application for a stay of orders pending appeal – Stay granted on terms – Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)
Family Law (Child Abduction Contravention) Regulations 1986 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr AJ Sefton SC
Respondent	:	Mr M Nicholls QC

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	DS Family Law (PERTH)

Case(s) referred to in decision(s):

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Gazi and Gazi (1993) FLC 92-341

Jiang and Director-General Department of Community Services [2003] FamCA 929

Wensceslas v Director-General, Department of Community Services (2007) FamCA 197

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Commissioner of Police and Martin has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

TYSON J:

1 Before the Court is the application of [Ms Martin], the Respondent, filed on 24 November 2021, seeking a stay of the operation and enforcement of orders made on 19 November 2021 pending determination of an appeal to Division one, of the Federal Circuit and Family Court of Australia.

2 Specifically, the Respondent seeks a stay of orders 2 and 3 made on 19 November 2021, as set out:

2.[CHILD A] (male) born [in 2014] ("the Child") be returned to Hong Kong as soon as practicable, in accordance with the conditions annexed to this order.

3.The Respondent, [MS MARTIN], do all acts and things necessary to ensure the return of the Child to Hong Kong pursuant to order 2 above.

3 Those orders were made upon the application of the Commissioner of the Western Australian Police, being the responsible Central Authority, pursuant to Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The application was made at the request of the father, [Mr Durand], for the return of the child [Child A] to Hong Kong. The application was opposed by the Respondent. A trial took place on 11 August and 26 October 2021.

4 I delivered reasons from chambers. The reasons were formally published in Court on 19 November 2021, and on that date, I pronounced orders.

5 On 24 November 2021 the Respondent filed a Notice of Appeal also on 24 November 2021. The Respondent says the grounds of appeal include that the Court erred in law:

Firstly, in finding that the father had rights of custody in relation to Child A immediately before the date on which it was alleged the child was wrongfully retained in Australia.

Secondly, in determining that rights which can only be exercised with the approval of the Hong Kong Court, does not alter the character of those rights being rights of custody.

Thirdly, failing to give adequate reasons for the determination that the father had rights of custody in relation to the child immediately before the date upon which it was alleged the child was wrongfully retained.

WHAT IS THE LAW?

6 The principles to be applied to the determination of an application for a stay are agreed between the parties. The relevant principles were set out by the Full Court of the Family Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, as referred to by the Applicant. At [18] their Honours Bryant CJ, Boland and Crisford JJ said:

The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well-known (see The Commissioner of taxation and the Commonwealth of Australia v Myer Emporium Ltd [No 1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 85; Jennings Constrcution Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

•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 any “special” or “exceptional” circumstances;

•a person who has obtained a judgement is entitled to the benefit of that judgement;

•a person who has obtained a judgement is entitled to presume the judgement is correct;

•the mere filing of an appeal is insufficient to grant a stay;

•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 a stay;

•some preliminary assessment of the strength of the proposed appeal – whether the applicant 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 the stay for a short period of time; and

•the best interests of the child the subject of the proceedings are a significant consideration.

WHAT IS RELIED UPON?

7 The Respondent relies upon her application in a case, and an affidavit filed on 24 November 2021. The Applicant relies on the affidavit of [Ms E], which was accepted for filing today.

8 I have had the opportunity to carefully consider and read the evidence. I have also had the benefit of oral submissions made on behalf of each party.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

9 The submissions made on behalf of the Respondent, in summary, were that:

•The Respondent intends to seek the expedition of the hearing of the appeal. Since filing her Notice, the Respondent understands there will be a directions hearing in two to three weeks’ time, and the appeal could be heard within three months. On her case, the appeal is likely to be relatively short, and given the appeal relies on a point of law, it may not take much time to prepare for the hearing.

•A failure to grant a stay would render the appeal nugatory, which has been conceded by the Applicant.

•The Respondent says she has complied with the conditions of return by making arrangements to return with Child A to Hong Kong, including obtaining her first COVID-19 vaccination, liaising with the father to re-enrol Child A into his previous school in Hong Kong, and authorising the father’s solicitors in Hong Kong to make necessary travel arrangements, obtain exemptions, permissions and visas to facilitate her and Child A’s entry into Hong Kong. Given the Respondent is presently not double vaccinated, and her application for a travel exemption has not yet been approved, there are questions about whether she may be able to board to booked flights.

•The Respondent understands the father has arranged accommodation for herself and Child A for the purposes of mandatory quarantine upon arrival in Hong Kong. Thereafter, Child A is to live with her. She has limited financial resources to support herself and Child A. She does not know where they will live after completion of the mandatory quarantine period.

•It is the Respondent’s case that the balance of convenience favours granting a stay. If the appeal is successful, the Respondent intends to remain in Western Australia with Child A, while the father will remain in Hong Kong. The Respondent says there will not be any hardship to Child A, if the stay is granted. School in Hong Kong ends in mid-December and restarts in January, which is not significant period, in terms of either hardship or detriment, should the stay be granted. If the stay is granted, she will facilitate Child A spending time with the father.

•On the Respondent case, the appeal raises serious matters of law. The appeal centres upon the Court’s determination of the father’s rights of custody. On her case, the Court was wrong in law in finding that the father had rights of custody within the meaning of the Regulations because those rights were subject to the supervision and sanction of the Hong Kong Court. The Respondent’s counsel has referred to Wensceslas v Director-General, Department of Community Services (2007) FamCA 197 and Jiang and Director-General Department of Community Services [2003] FamCA 929, in support of his position. On the Respondent’s case, the father does not have an “authoritative right to determine” where Child A is to live, therefore the Court was wrong in law, in finding that he had rights of custody. The Respondent says she has “more than an arguable case” on appeal.

•The Respondent says failing to grant a stay would be detrimental to Child A. It is in Child A’s best interests to remain in her care, when she is his primary carer, where he is settled in Western Australia, attending school having formed extensive connections with family and friends, and where Child A has spent limited time with the father since their arrival in Western Australia in March 2020.

•If the appeal is successful, the Respondent seeks Child A remain living with her, attending his current school, and be able to maintain connections with family and friends in Western Australia. In contrast, should the stay be refused, Child A’s future living arrangements in Hong Kong are uncertain, and it is desirable to limit changes in Child A’s circumstances.

•The Respondent says there should be no question as to her bona fides where she has filed a Notice of Appeal, and an application for a stay, promptly, less than a week after Orders were made.

SUBMISSIONS ON BEHALF OF THE APPLICANT

10The Applicant opposes the grant of the stay. The submissions on behalf of the Applicant, were as follows:

•The mere fact that an appeal has been filed does not operate as a stay of the operation or enforcement of the order.

•Counsel for the Applicant referred to the delays in the conduct of the case to date. The primary purpose of Hague Convention proceedings is to provide a summary procedure for the resolution of abduction proceedings and where appropriate, a speedy return of children who are wrongfully removed or retained. It is appropriate the Court to take the primary purpose into account, when deciding whether to grant a stay: Gazi and Gazi (1993) FLC 92-341. Based on the available information, the appeal is unlikely to be heard for some months, and there will likely be a further delay, for delivery of reasons.

•The Applicant says the Respondent has no reasonable prospects of success on appeal, with respect to the claim there was an absence of adequate reasons. To the extent the Respondent relies on alleged errors of law, the Respondent says the Court appropriately determined that the rights of the father were properly characterised as custody, given the uncontested evidence of [Mr C].

•The Applicant disputes the submissions made on behalf of the Respondent with respect to the law on the rights of custody. Counsel asserts Wenceslas (supra), does not support the Respondent’s case. In Wenceslas (supra), the Full Court of the Family Court determined the rights of custody, required the right to determine a child’s place of residence. At paragraph 167, the Full Court observed that:

“…mere rights of access or contact are insufficient to constitute rights of custody, unless accompanied by the right to determine the place of residence of the child. In other words, the right to determine the place of residence of the child is not just sufficient, but necessary to establish “rights of custody” for the purposes of the Regulations”

•The Full Court did not use the language or, import the notion of the need to be an “authoritative right to determine” the place of residence of a child, as submitted by the Respondent’s counsel. In the Applicant’s case, the Respondent’s prospect of success on appeal are low. The Applicant notes there is no challenge made to any of the findings of fact made by the Court, including the determination that Child A was habitually resident in Hong Kong at the relevant date.

•The Applicant, and the father, are entitled to the benefit of the judgment and to assume it is correct. The father has acted in reliance of the judgment, as demonstrated by the steps he has taken, including his presence in Australia, for the purposes of returning with Child A to Hong Kong, with the mother.

•There would be hardship if the stay is granted. Child A would remain in Australia, notwithstanding the unchallenged factual findings that Hong Kong was Child A’s place of habitual residence. If the stay is granted, then Child A will continue to be denied connection to his place of habitual residence, and be separated from his father. Given the information about the likely timing of hearing the appeal, there will be an inevitable delay. Further, there is likely to be an additional delay between the time the appeal is heard, and when the reasons are delivered.

•It is in Child A’s best interests to return to Hong Kong, which would allow Child A, after a period of quarantine, the opportunity to re-establish connections with his father and friends, and to start school at the beginning of the school year, which would enable him “to have a soft landing”.

•While the Applicant does not question the bona fides of the Respondent, a number of criticisms have been made about her conduct, and what the Applicant says are simple steps which could have been taken by the Respondent, to avoid a number of adverse impacts on the father, by the granting of the stay:

Firstly, on Monday, 22 November 2021, there were communications between the respective solicitors about arrangements to implement the 19 November 2021 orders, in terms of the bookings of air travel, hotels and the like. Further, there were also direct communications between the parents. Nothing was said by either the Respondent or her solicitors, to the Applicant or to the father, to indicate any intention, or contemplation of the filing of an appeal, or the seeking of a stay.

Secondly, the correspondence from the Respondent’s solicitor to the Court on 23 November 2021, indicated it was copied to the Applicant’s solicitors. That did not occur. The Respondent’s correspondence was not provided to the Applicant until 12.34pm yesterday, on 24 November 2021, at which time the Applicant was served with the Notice of Appeal and the Application in a case and affidavit in support of the stay, and advised of the listing in Court today, on 25 November 2021.

Thirdly, no explanation has been offered by the Respondent or her solicitors, as to why no earlier notice was provided to the Applicant in circumstances where the Respondent’s counsel has submitted today that efforts were promptly made in preparation of the appeal, prior to its filing.

Finally, the Applicant is critical of the Respondent’s evidence to the extent she suggests there is uncertainty about where she may live. It is the Applicant’s case that aspect of the Respondent’s evidence does bear scrutiny, when viewed in the context of the communications between the parents, which are annexed to the affidavit of [Ms E]. Those communications make it clear the father was agreeable to arranging and paying costs for the mother and Child A’s accommodation in Hong Kong.

In addition, reference has been made to the fact the Respondent relies on her “limited financial circumstances”, notwithstanding the father has previously offered to provide ongoing financial assistance, which the Respondent rejected. In that case, the Applicant says questions must be raised about the Respondent’s real position is.

DISCUSSIONS

11I accept the Applicant is entitled to the benefit of the judgment and to presume that the judgment is correct.

12The mere filing of the Notice of Appeal is insufficient to grant a stay.

13I accept for the purposes of this hearing, that the Respondent is bona fide in her approach to the matter, and both the Notice of Appeal and Application for a stay were filed promptly.

14From enquiries I made with the Appeals Registrar, and raised with the parties in Court, the appeal may be able to be listed in the Brisbane sittings in the week of 31 January 2022 or, alternatively, in the week of 28 February 2022, should the earlier listing not be available. The appeal therefore may be heard in approximately two months’ time, at best, and, if not, in three months’ time.

15The Court can grant a stay on terms that are fair to all parties.

16The Respondent acknowledges that the father has booked and paid for return flights for the family to Hong Kong. It is accepted that the father is currently in Perth, in hotel quarantine, having flown in to accompany the mother and Child A back to Hong Kong.

17The Respondent has proposed she will seek an expeditious hearing of the appeal.

18After I enquired, the Respondent has agreed to indemnify the father in respect of any loss he may suffer should the stay be granted. The Applicant says those conditions should be imposed if the stay is granted. The Applicant seeks the imposition of those conditions, notwithstanding the father has indicated he may not seek to enforce those conditions, despite the fact he may incur costs which he is unable to recover.

19The Applicant has submitted if the stay is granted, additional conditions should be imposed with respect to Child A’s contact with the father, for the duration of the operation of the say. The Applicant seeks conditions that firstly, when the father is in Hong Kong and Child A is in Australia, the father should continue to have telephone contact on Tuesdays, Thursdays and Sundays at 5pm. Secondly, if the father is present in Western Australia, the father should be able to spend time with Child A including for half of any weekend, for three-quarters of any school holidays, including on an overnight basis, and for half of school term, from the conclusion of school until the evening meal. The Respondent conceded those conditions were perfectly reasonable.

20Contrary to the submissions of the Respondent, I accept the father will be disadvantaged if a stay is granted, and he is not permitted to leave Australia with Child A. The Respondent will not suffer any disadvantage if the stay is granted.

21The strongest ground for a stay, in most cases, is the real risk that denying a stay would render a successful appeal nugatory. The Applicant concedes, appropriately, the appeal will be rendered nugatory if a stay is not granted.

22I accept if the Respondent and Child A return to Hong Kong, it is likely she may have other remedies open to her, including the potential to bring an application seeking for Child A to relocate to Australia.

23In turning to a preliminary assessment of the strength of the proposed appeal, I have already identified the grounds of appeal that are relied upon. For obvious reasons, it can be difficult for judicial officers whose orders are the subject of an appeal to assess the grounds and merits of the appeal in a completely objective manner. Not in the sense of amounting to a lack of bias or intellectual integrity, but rather in the sense of objectively equating to a fresh pair of eyes. The grounds of appeal are currently expressed in general terms only. I do not have the benefit of the submissions, that will be made available on the appeal.

24While I accept there are real questions about the prospect of success on appeal, I am of the view the Respondent should be permitted to agitate the proposed grounds of appeal, and that there is a prospect of success.

25It is desirable to limit the frequency of any changes in a child’s living circumstances. The orders required Child A to return to Hong Kong, and it was anticipated he would do so with the Respondent and remain in her care.

26If a stay is granted, Child A will remain in the Respondent’s care, albeit, in Australia, and likely without the ongoing presence of the father.

27Finally, on the Respondent’s case, she says Child A’s best interests are served by remaining in Australia in her care, and on the Applicant’s case, Child A’s best interests require his prompt return to Hong Kong.

28This was a difficult decision. Having balanced the relevant considerations, including the fact the appeal will be rendered nugatory if a stay is not granted, I have concluded it is appropriate to grant the stay. I have reached that conclusion, not without considerable disquiet.

29I intend to grant a stay of the two proposed orders made on 19 November 2021 pending completion of the appeal, on terms. Those terms will include that the Respondent is to:

(a)seek that the appeal be heard on an expedited basis;

(b)comply with any directions of the registrar with respect to the hearing of the appeal;

(c)indemnify the father in relation to any loss incurred as a consequence of the granting of the stay.

30I also intend to grant the stay subject to the agreed conditions for Child A to spend time and communicate with the father. I consider such arrangements to be in Child A’s best interests.

ORDERS

1.By consent, the affidavit of [Ms E] handed up in Court will be accepted for filing in Court this day.

2.Orders 2 and 3 made on 19 November 2021 be stayed pending the completion of the Notice of Appeal filed 24 November 2021 (“the Appeal”) on the following conditions:

(a)the Respondent, [MS MARTIN], prosecute the Appeal expeditiously including, if required, filing an application for expedition of the hearing of the Appeal;

(b)the Respondent comply with all directions of any appeals registrar with respect to the Appeal;

(c)the Respondent indemnify and keep indemnified the father, [MR DURAND], in respect of any loss he may suffer, in respect of the flights and any quarantine accommodation he has booked for the family to depart Perth to Hong Kong on Friday 25 November 2021, pursuant to the return orders;

(d)for the duration of the operation of the stay:

(i)In the event the father is in Perth, the child, [CHILD A], born [2014], will spend time with the father;

(ii)for half of all weekends, on either Saturday or Sunday;

(iii)for three quarters of any school holidays, with such time to include time with [Child A] on an overnight basis;

(iv)for half of the days during school term, from after school until dinner;

(ii)In the event the father is not in Perth, [Child A] will continue to have electronic and telephone communication with the father each Tuesday, Thursday and Saturday at 5pm.

(iii)And as may otherwise be agreed from time to time between the parents.

3.The Respondent’s Form 2 filed 24 November 2021 be and is hereby dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

6 DECEMBER 2021