Handbury & State Central Authority and Anor
[2020] FamCAFC 5
•21 January 2020
FAMILY COURT OF AUSTRALIA
| HANDBURY & STATE CENTRAL AUTHORITY AND ANOR | [2020] FamCAFC 5 |
| FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention 1980 – Repudiatory retention – Whether the trial judge erred in her conclusion that the appellant mother’s actions constituted an objectively identifiable act of repudiation – Consideration of whether an act of repudiatory retention axiomatically breached the second respondent father’s rights of custody, including the right to determine the habitual residence of the child, in accordance with regulation 4(2), notwithstanding that the family remained living in the same household for many months subsequent to the repudiation – Whether the trial judge failed to afford the appellant mother procedural fairness to enable her to adduce further evidence, in circumstances where she initiated the relevant evidence about statements allegedly made to the child about her country of residence – Whether the trial judge failed to give adequate reasons as to whether the retention was in breach of the second respondent father’s rights of custody- Where there is no merit in the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS - Whether an order could be made against the appellant mother for the second respondent father’s costs – Consideration of ss 117 and 117AA of the Act – Application for costs by the second respondent father dismissed. |
| Family Law Act 1975 (Cth) ss 117, 117AA Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 14, 16, 30 Hague Convention on the Civil Aspects of International Child Abduction 1980 |
| Artso & Artso (1995) FLC 92-566 Director-General, NSW Department of Community Services and JLM (2001) FLC 93-090; [2001] FamCA 1338 In re C (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1; [2018] UKSC 8 Re G-E (Children) (Hague Convention 1980: Repudiatory Retention and Habitual Residence) [2019] EWCA Civ 283 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 |
| APPELLANT: | Ms Handbury |
| FIRST RESPONDENT: | State Central Authority |
| SECOND RESPONDENT: | Mr Handbury |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid (did not participate) |
| FILE NUMBER: | MLC | 122 | of | 2019 |
| APPEAL NUMBER: | SOA | 46 | of | 2019 |
| DATE DELIVERED: | 21 January 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Alstergren CJ, Strickland and Williams JJ |
| HEARING DATE: | 18 November 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 August 2019 |
| LOWER COURT MNC: | [2019] FamCA 668 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr R. Smith |
| SOLICITOR FOR THE APPELLANT: | KHQ Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr M. Nicholls QC |
| SOLICITOR FOR THE FIRST RESPONDENT: | Department of Health & Human Services, Legal Services Branch |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr I. Jones QC |
| SOLICITOR FOR THE SECOND RESPONDENT: | Burke Family Law |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid (did not participate) |
Orders
The second respondent father have leave to rely on the summary of argument filed late on 14 November 2019.
The appellant mother have leave to rely on the schedule of costs filed late on 12 November 2019.
The appeal be dismissed.
The second respondent father’s application for costs be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Handbury & State Central Authority and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 46 of 2019
File Number: MLC 122 of 2019
| Ms Handbury |
Appellant
And
| State Central Authority |
First Respondent
And
Mr Handbury
Second Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
introduction
Ms Handbury (“the mother”) appeals against the order of a Family Court Judge made on 27 August 2019, granting the application of the State Central Authority (“the SCA”) for an order that the child (“the child”), be returned to the United Kingdom (“the UK”). The SCA and Mr Handbury (“the father”) oppose the appeal.
The application for the return of the child was made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) which give effect to Australia’s obligations as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“The Convention”).
the applicable regulations
The following regulations are relevant to the appeal:
14 Applications to court
(1) If a child is removed from a convention country to, or retained in, Australia:
(a) the responsible Central Authority may apply to the court, in accordance with Form 2, for any of the following orders:
(i) a return order for the child;
……
16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d) the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child’s removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
…
(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
…
background
The following background facts are taken from her Honour’s comprehensive judgment.
The mother is an Australian citizen by birth and acquired citizenship of the UK in April 2012. The father is a citizen of the UK and holds permanent residency in Australia. At the time of the trial the mother was aged 40 and the father was aged 38.
The parents initially met in Country CC in 2002 at a conference and again in 2003, whereupon they commenced a relationship. At that time the mother lived in Country CC and the father lived in the UK. In 2004, the mother moved to the UK and in early 2005 the parties commenced to live together in the father’s apartment.
The parties married in Australia in 2006. Between 2005 and 2012, whilst living in the UK, the parties travelled to Australia on nine occasions, primarily to visit the maternal family, who are located in Melbourne.
The parties’ only child was born in the UK in February 2013, and is a dual British and Australian citizen.
The father took paternity leave from September 2013, when the parents and the child travelled to Australia for a period of four months.
In mid-2015, the child and her parents travelled to Australia for a second time for approximately five weeks.
In late 2016, the mother was verbally offered a relocation package to Australia with a joint venture partner of her employer. The father’s understanding was that the placement was a temporary role for two years, after which the family would return to the UK. The mother’s evidence was that the family intended to be in Australia for two to three years but their move was “open ended with no set return date”.
On 3 October 2017, the parents and the child arrived in Melbourne. On 19 October 2017 the parents obtained a lease of a house in Suburb NN, Melbourne for a period of 12 months, which was renewed in October 2018. On 31 October 2017, the child was enrolled in a kindergarten in Suburb NN, the mother commenced her employment and the father sought and eventually obtained employment at various workplaces.
In February 2018, around four and a half months after the family arrived in Australia, there were a series of conversations between the parents which were central to the issue of whether or not the mother repudiated the alleged agreement to stay in Australia for two years. The parents disagreed about the intended duration of their stay in Australia. However, her Honour found that the agreement between the parents was to move to Australia for two years, as asserted by the father, and not two to three years, as asserted by the mother (at [117]).
The parents had differing views about the conversations which occurred in February 2018. According to the father, there were a series of conversations which commenced on … February 2018, the child’s birthday, when the mother raised her concerns about their level of intimacy. A further conversation occurred on 14 February 2018, when the mother advised the father she had a “spark” with a work colleague. The father asserted that on the morning of 16 February 2018, prior to the mother going to her yoga class, the mother expressed her intention of not wanting to return to the UK. On the same day, the father sent a text message to a friend of the mother, Ms V, which said “she really didn’t want to go back to the UK”.
According to the mother, there were conversations on … February 2018 and 14 February 2018 about intimacy problems and the fact that she felt a “spark” with a work colleague, with whom she had been travelling for some time. She denied there was any conversation on the morning of 16 February 2018.
The conflicting evidence between them was essentially whether there was a conversation on 16 February 2018 during which the mother indicated her unwillingness to return to the UK. Her Honour preferred the father’s evidence and found that the conversation occurred as alleged and that the text message on the same date was an almost contemporaneous record corroborating the father’s distress that the mother did not intend to return to the UK (at [136]).
Subsequent to 16 February 2018, the father continued to apply for work and the mother continued to travel with her work colleague approximately every six weeks.
On 6 September 2018, the parents separated but remained living under the one roof.
On 7 January 2019, the father moved into separate accommodation and the parents commenced shared care of the child.
THE APPLICATION OF THE STATE CENTRAL AUTHORITY
On 15 February 2019, the SCA filed an application in the Family Court at the request of the father, seeking the return of the child to the UK. The application alleged:
a)the parents had agreed to travel to Australia with the child and remain for a period of two years;
b)the child had been wrongfully retained away from her state of habitual residence, the UK; and
c)the retention was a “repudiatory retention”.
On 8 March 2019, the mother filed a Response to that application. She alleged in her Response:
a)when she was offered employment in Australia, she and the father agreed that the move to Australia would be for a minimum of two to three years and they would then decide in the future whether to remain permanently in Australia or return to the UK;
b)at the time of the SCA application, the child had become and remained habitually resident in Australia; and
c)the father consented to and subsequently acquiesced to the child remaining in Australia.
Pursuant to orders of the trial judge, the parties attended on a family consultant who conducted interviews in March 2019 for a Regulation 26 report and attended a Hague mediation conducted by Victoria Legal Aid over three days in May 2019. An Independent Children’s Lawyer was also appointed. The parties were unable to reach agreement and the trial ran for four days in May 2019.
On 27 August 2019 the trial judge pronounced orders after having delivered extensive reasons on 22 August 2019.
Grounds of appeal
There are four grounds of appeal which we will deal with seriatim. However, it is important to note that none of the grounds of appeal challenge the following integral findings by her Honour:
a)prior to 16 February 2018 the child was habitually resident in the UK (at [229]);
b)the parents had agreed to move to Australia for a finite period of two years (at [117]);
c)the father had neither consented nor acquiesced to her being retained in Australia (at [256-257]);
d)on 16 February 2018 the mother expressed to the father her intention of not wanting to return to the UK with the child (at [136]).
Ground 1
The learned trial judge erred in concluding that the circumstances listed at paras 233 to 236 of the trial Judgment met the requirement of an objectively identifiable act of repudiation for the purposes of a wrongful retention under Family Law (Child Abduction Convention) Regulations 1986 (‘the Regulations’)
The concept of “repudiatory retention” is central to this ground of appeal. As correctly identified by the trial judge at paragraph [230], relying on the decision of the UK Supreme Court in the recent case of In re C (Children)(International Centre for Family Law, Policy and Practice intervening) [2019] AC 1 (“Re C”):
Repudiatory retention occurs when a retaining parent forms a subjective intention not to return the child to the state of habitual residence at the expiration of the period which was agreed between the parties as the date upon which the child would be returned.
There is no challenge to the principles of law as stated by the trial judge.
The trial judge accepted (at [233]) that there were three considerations which led the father to believe that the mother would not abide by the agreement to return to England in September 2019. These were:
a)the mother’s comment on 16 February 2018 to the effect that she did not wish to return to England;
b)the couple’s serious intimacy issues which were discussed on the child’s birthday, … February 2018;
c)the mother’s disclosure on 14 February 2018, Valentine’s Day, that she felt a spark for a colleague.
It was submitted on behalf of the mother, that in addition to those considerations, there must be active steps taken by the “travelling parent”, the mother, to change the child’s habitual residence, before there can be an objectively identifiable act of repudiation. That was not the case in this family because:
a)the parents and the child remained living in Australia in an intact household until January 2019;
b)the father continued to participate in decisions about the child’s day to day welfare and care;
c)nothing else had changed, pertaining to the child’s habitual residence, between 16 February 2018 and 17 February 2018.
No authority was cited to support the proposition that such additional action needs to be taken to establish an act of repudiation. Indeed, counsel for the mother conceded during the appeal:
a)words alone could suffice to substantiate a finding of an objectively identifiable act of repudiation, without further action or step, if those words were sufficiently unequivocal;
b)such words would include statements such as “I am not going to return” and statements to the child that “we live here now”.
The submissions of the mother also attempted to differentiate between the fact that the mother expressed that she did not wish to return to England, rather than she would not (Mother’s Summary of Argument filed 30 October 2019, paragraph 11).
There was much evidence during the trial about the father’s recollection of the exact wording of the conversation on the morning of 16 February 2018. Indeed criticism was levelled at him by counsel for the mother because he could not recall the exact words of the conversation. Notwithstanding that, her Honour accepted (at [233]) that the father was led to conclude, that the mother would not abide by the arrangement to return to England in September 2019, and that the text message to the mother’s friend, Ms V, was contemporaneous corroborative evidence of that.
In the context of her Honour’s findings in this regard, it is difficult to understand the argument proffered by the mother, that there is any meaningful distinction between the words “wish” and “would not”. In our view, the mother’s words and intentions were clear and unequivocal.
We do not accept the submissions of the mother that none of the statements or conversations relied upon by the trial judge, demonstrate a repudiation by the mother of the temporary nature of the child’s stay. It is difficult to contemplate that the conversations between the parents on … and 14 February 2018 and the mother’s statement of 16 February 2018, could mean anything other than she had changed her mind about the stay in Australia being temporary, and that she wished to remain permanently. That is a clear unilateral repudiation of the prior agreement for a temporary stay in Australia.
We agree with the trial judge, that the conversations of the … and 14 February 2018 and the mother’s statements of 16 February 2018, constitute a clearly objectively identifiable act of repudiation.
Consequently, the issue of whether the mother’s comments to the child constitute an alternate repudiatory intention, does not require consideration, except to say that we consider the mother’s comments to the child are entirely consistent with the mother’s repudiation of the agreement for the child to remain in Australia only for a two year period.
This ground of appeal must fail.
Ground 2
The learned trial judge erred in concluding that any retention of the child in Australia was in breach of the father’s rights of custody and therefore a ‘wrongful retention’ under the Regulations
There was no dispute at first instance, nor during the appeal, that there must be a breach of rights of custody to enliven the regulations.
Both counsel for the father and SCA submitted, and we agree:
a)at first instance, the mother did not pursue whether there had been a breach of the father’s rights of custody, with the vigour and clarity she now seeks to do; and
b)an appeal is not an occasion for making a different case than that at first instance.
In the mother’s Case Summary filed on 20 May 2019 at paragraph 28, and relied on at trial, there is a brief reference to the mother’s then position:
The mother submits that she did not speak the words alleged by the father on 16 February, but neither the conduct of the father nor of the mother thereafter is consistent with her having done so or with her having denied or repudiated the father’s rights of custody.
This issue was not further pursued by the mother during the conduct of the trial, but it was mentioned again, faintly, in the closing submission of the mother’s counsel (Transcript 31 May 2019 p. 261 lines 17 – 28). Counsel for the mother suggested that “a crucial element in any repudiatory retention is an element of denial – repudiation”, but here the wife “didn’t behave in such a way as to deny or override or oppose the father’s rights of custody.”
Notwithstanding the mother’s lack of pursuit of this issue at trial, we will address the respective arguments in the appeal.
Counsel for the mother submitted:
a)the mother had not conceded that the purported repudiation of the parties’ agreement, as to the length of stay in Australia, was in breach of the father’s rights of custody;
b)there is a distinction between repudiating an agreement and whether the repudiation breaches the rights of custody;
c)the trial judge did not make findings in relation to any breach of the father’s rights of custody, as required by Regulation 16 (1A)(d).
The mother’s counsel correctly identified reg 4 as the relevant regulation which defines rights of custody as follows:
4 Meaning of rights of custody
(1) For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a) the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b) rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2) For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3) For the purposes of this regulation, rights of custody may arise:
(a) by operation of law; or
(b) by reason of a judicial or administrative decision; or
(c) by reason of an agreement having legal effect under a law in force in Australia or a convention country.
As noted at [214], the mother conceded that the father had rights of custody pursuant to the relevant UK legislation, and that the father was actually exercising those rights of custody.
As submitted by counsel for the SCA, neither the Convention nor the Regulations define breach, as it is rarely an issue, other than in the context that there are no rights of custody to breach (SCA Summary of Argument filed 13 November 2019, paragraph 42).
The Summary of Argument of counsel for the mother (at paragraph 22), refers to Re C which links the breach of the rights of custody, in that case, to the change of the child’s movement from temporary to permanent.
The UK Supreme Court said (per Lord Hughes JSC):
[43] When the left-behind parent agrees to the child travelling abroad, he is exercising, not abandoning, his rights of custody. Those rights of custody include the right to be party to any arrangement as to which country the child is to live in. It is not accurate to say that he gives up a right to veto the child’s movements abroad; he exercises that right by permitting such movement on terms. He has agreed to the travel only on terms that the stay is to be temporary and the child will be returned as agreed. So long as the travelling parent honours the temporary nature of the stay abroad, he is not infringing the left-behind parent’s rights of custody. But once he repudiates the agreement, and keeps the child without the intention to return, and denying the temporary nature of the stay, his retention is no longer on the terms agreed. It amounts to a claim to unilateral decision where the child shall live. It repudiates the rights of custody of the left-behind parent, and becomes wrongful.
We consider that to be a succinct summary of the applicable legal principles. The repudiation of an agreement for a temporary stay is a repudiation of the rights of custody of the left behind parent, and that is precisely what occurred in this matter.
As submitted by counsel for the SCA, and we agree, in order to establish a breach of custody rights, there must be a subjective intention not to comply with the prior agreement, which is manifested by objective evidence. In this case her Honour was entitled to find that the objective evidence of the mother’s intention not to comply with a temporary move, was the events of …, 14 and 16 February 2018.
Once the wife repudiated the agreement to remain in Australia for two years, as found by her Honour, the presence/retention of the child in Australia was no longer on the terms which the parents had originally agreed. The mother’s unilateral decision not to abide by the terms of the prior agreement for a limited stay, in other words, her repudiation, is a breach of the father’s rights of custody, being his right to determine the place of residence of the child, as specifically stated in Regulation 4(2).
The attempts by the mother to distinguish the facts of this case from Re C and Re G-E (Children) (Hague Convention 1980: Repudiatory Retention and Habitual Residence) [2019] EWCA Civ 283, on the basis that in those matters, the travelling parent and the child had travelled overseas, and the left behind parent had remained in the place of habitual residence, is entirely non persuasive. What is of paramount importance to establish a breach of the rights of custody of the left behind parent, is the act of repudiation of the agreement for a temporary stay, not whether the repudiating parent leaves the state, or the acts and conduct of the parents, subsequent to the breach.
Similarly the submission, that at the time of the repudiation of the parental agreement, the parents were an intact family and continued to live together with the child, is demonstrative of the father continuing to exercise his rights of custody, and therefore there has not been any breach of those rights, has little merit. What is of paramount importance is the breach of rights on one occasion. It would be nonsensical to suggest that the breach of the father’s rights of custody to determine the child’s habitual residence, would necessarily affect his rights to determine other matters pertaining to her welfare.
The submission that Artso & Artso (1995) FLC 92-566 supports the mother’s contention, is also without merit. The last sentence in the paragraph referred to (at page 81,638) supports the proposition that a repudiation of an agreement for a temporary stay, in itself is a breach of the rights of custody of a left behind parent:
… At the moment that the husband refused the wife permission to return the children to their country of habitual residence, he was wrongfully retaining them contrary to the provisions of the Convention.
It is entirely contrary to the evidence at trial, that after the mother’s repudiation of the agreement to remain in Australia on a temporary basis, the father would be able to actively exercise his rights of custody, to enable him to determine the child’s habitual residence at the expiration of the two-year agreement. That is so particularly in the context of:
a)the mother’s conduct subsequent to 16 February 2018 including:
(i)her comments to the child that we live here now;
(ii)taking the child’s passport to City CC with her, whilst on a business trip, in September 2018;
b)the mother’s firm intention for herself and the child to remain in Australia, which is self-evident from the proceedings.
We consider it axiomatic that a repudiation of the agreement is a breach of the father’s rights of custody, and therefore no criticism can be levelled against the trial judge for not making specific findings in relation to a breach of rights of custody.
For these reasons, this ground must fail.
Ground 3
The learned trial judge failed to afford the appellant procedural fairness in relying upon statements made by the mother that ‘we live here now’ in considering whether the mother had repudiated the agreement between the parents in circumstances where:
3.1It was not the State Central Authority’s case that such statements formed part of any repudiation;
3.2It was not put to the mother that such statements could form part of the repudiation;
3.3The evidence relied upon was ambiguous as to the date upon which such statements were made.
The mother’s evidence about this statement was at paragraph 116 of her affidavit sworn 8 March 2019, as follows:
In the period from February 2018 to October 2018 I had come to understand through our various discussions that we both intended to remain in Australia and work towards an equal shared care arrangement for [the child]. [The father] and I stopped referring to our time in Australia as an adventure when speaking to [the child] and instead told her “we live here now”.
(Emphasis in original).
The father’s response is at paragraph 4(nnnnn) of his affidavit sworn 21 March 2019, as follows:
… I deny that there was a shared intention to remain in Australia permanently. I continued to refer to the trip to Australia as an adventure. I deny telling [the child] that we live here now I told her that the respondent and I live with her here at the moment.
Her Honour found (at [236]) that the father did not speak to the child as the mother alleged in mid-February 2018, but from the mother’s statement it was apparent that she did and she did so in the context of remaining in Australia permanently.
The mother now complains that she was denied the opportunity to adduce further evidence about this matter and that amounts to a denial of procedural fairness.
Given the mother introduced the evidence it is difficult to understand how she can make such a complaint. She was at liberty to include in her affidavit all necessary evidence to support her contention. It was a matter for her if she provided further evidence about dates and statements allegedly made by herself or the father. We also note that during the trial she was represented by experienced counsel, who clearly made a forensic decision about the extent of the evidence to be adduced relevant to these alleged comments, and to not cross-examine the father about the same.
In any event, to establish this ground, the court must be satisfied that the denial of natural justice deprived the mother of the possibility of a successful outcome (Stead v State Government Insurance Commission (1986) 161 CLR 141).
Her Honour found a repudiatory retention on the basis of the conversations which occurred on …, 14 and 16 February 2018. As stated, we agree with that conclusion and her Honour’s reasons therefor. Even if the mother had sought to adduce further evidence about the alleged comments to the child, such evidence could not impugn on her Honour’s findings and conclusions about an entirely different series of conversations.
For these reasons, this ground must fail.
Ground 4
The learned trial judge gave inadequate reasons as it is not possible to ascertain from her Honour’s reasons how the retention was a breach of the father’s rights of custody
It was conceded by counsel for the mother that if Ground 2 failed, then this ground would also fail and did not require consideration. We have so determined.
This ground must fail.
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
Costs
At the conclusion of the hearing submissions were sought as to costs depending on the result.
The SCA did not seek any costs order, but the father sought an order for costs against the mother in the event that the appeal was dismissed. However, because of the presence of s 117AA of the Act, the father and mother were directed to file written submissions as to whether costs could be awarded against the mother. Those submissions were filed respectively on 22 November 2019 and 26 November 2019.
Both parties agreed that the power to order costs, pursuant to s 117, is subject to the provisions of s 117AA. That is consistent with the statements of the Full Court in Director-General, NSW Department of Community Services and JLM (2001) FLC 93-090.
The relevant provision is s 117AA(3) which provides:
(3) In proceedings under regulations made for the purposes of section 111B, the court can also make an order as to costs that is:
(a)against a party who has wrongfully removed or retained a child, or wrongfully prevented the exercise of rights of access (within the meaning of the Convention referred to in that section) to a child; and
(b)in respect of the necessary expenses incurred by the person who made the application, under that Convention, concerning the child.
The mother conceded that, if the appeal were unsuccessful, she would be a “party who has wrongfully removed or retained a child”, for the purposes of s.117AA (3) of the Act. However, she argued that s 117AA(3)(b) precluded the father from seeking his costs of the appeal, as he could not be considered “the person who made the application” for the purposes of s 117AA(3). She submitted:
a)it was the SCA who made the application, and not the second respondent father;
b)the Form 2 filed on 15 February 2019 specifically identifies the applicant as the SCA ;
c)the joinder of the father to the proceeding on 27 August 2019 “for the purpose of being bound by, and giving effect to” the return order did not make the father “the person who made the application” as required by s 117AA(3);
d)it was not necessary for the father to engage in appellate proceedings, which was outside the scope of his joinder to the proceedings;
e)the legal costs of the father are not “necessary expenses” as referred to in s 117AA(3)(b);
f)at all times the SCA was defending the appeal.
In summary, the father submitted that he should be awarded his costs of the appeal, calculated on an indemnity basis, for the following reasons:
a)Once he was joined by the order of the trial Judge on 27 August 2019, he had no option but to actively defend the appeal to protect his interests;
b)Section 117AA(3)(b) refers to “the person who made the application under that Convention concerning the child”, and s 117AA(1)(b) precludes “a person who holds or held an office or appointment under those regulations” (namely the SCA), and thus “a person who made the application” should be interpreted in a more general, generous and proper manner, to include the “left behind parent”;
c)The note to s 117AA(1), which refers to “for another case” when the Court can “also” make an order for costs, draws a distinction between the SCA and another class of applicant seeking costs, which would include the father;
d)Regulation 1A requires the regulations to be construed having regard to the principles and objects of the preamble to Article 1 of the Convention, which would mean that the father would be “a person who made the application”;
e)The mother’s conduct by embarking on a “patently hopeless” appeal, including her conduct in relation to pleadings (the Amended Notice of Appeal which was completely different from the original Notice of Appeal), justifies costs on an indemnity basis.
We were not referred to any authority in support of the submissions of the father, and we do not accept them. There can be no basis for interpreting s 117AA(3)(b) as referring to or including the father; it can only refer to the SCA.
Furthermore, Regulation 30 supports that interpretation. In the context of costs of applications, that regulation distinguishes between an application made by the SCA for an order in relation to a child (Regulation 30(1)(a)(i) and an application made by an Article 3 applicant for an order in relation to a child (Regulation 30 (1)(a)(ii)).
The father did not make an application for the return of the child, and he is not an Article 3 applicant; the SCA made the application. The father was not a party to the proceeding during the trial, but was a witness on behalf of the SCA. He was not joined as a party to the proceeding until final orders were made and reasons delivered. His joinder was clearly for the purpose of being bound by and giving effect to the orders for return of the child. For the purposes of a costs application, he could not possibly be considered the applicant in the substantive proceeding.
For these reasons, we do not intend to make any costs order, and it is therefore not necessary to consider whether costs should be on an indemnity basis.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren CJ, Strickland & Williams JJ) delivered on 21 January 2020.
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