KINGSLEY & SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

[2021] FamCAFC 10

FAMILY COURT OF AUSTRALIA

KINGSLEY & SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE [2021] FamCAFC 10

FAMILY COURT – APPEAL – HAGUE CONVENTION – Where the orders appealed providing for the return of the subject child from Australia to Canada have not been complied with – Where the appellant has now filed an application pursuant to regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the appellant asserts that since the making of the return order circumstances have arisen which make it impracticable for the order to be carried out and/or there are exceptional circumstances which exist that justify the return order being discharged – Where the application has not been dealt with by the primary judge because her Honour considered it should await the hearing and determination of this appeal – Where all remedies that are available at first instance should be pursued before any appeal is heard and determined – Where in the event that this appeal proceeded and was heard and determined and the regulation 19A application was pursued there may very well be an appeal against that determination and that circumstance should be avoided – Where the respondent is principally concerned about any delay that may flow from the adjournment of this appeal given the non-compliance with the return order – Appeal adjourned to a date to be fixed.

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 19A

APPELLANT: Ms Kingsley

RESPONDENT: Secretary, Department of Communities and Justice

FILE NUMBER: SYC 5852 of 2020

APPEAL NUMBER: EAA 164 of 2020

DATE DELIVERED: 5 February 2021

PLACE DELIVERED: Adelaide

PLACE HEARD: Sydney via video link

JUDGMENT OF: Strickland, Kent & Tree JJ

HEARING DATE: 5 February 2021

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 11 November 2020

LOWER COURT MNC: [2020] FamCA 937

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Anderson

SOLICITOR FOR THE APPELLANT: Kilpatrick Hatton Solicitors

COUNSEL FOR THE RESPONDENT: Ms Hartstein

SOLICITOR FOR THE RESPONDENT: DCJ Legal, Department of Communities & Justice

Order

1. The hearing of the appeal be adjourned to a date to be fixed to allow the application filed 9 December 2020 pursuant to regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) to be heard and determined at first instance.

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 Kingsley & Secretary, Department of Communities and Justice 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 SYDNEY

Appeal Number: EAA 164 of 2020
File Number: SYC 5852 of 2020

Ms Kingsley

Appellant

And

Secretary, Department of Communities and Justice

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Strickland J

1. This appeal was called on for hearing today. It is an appeal against the orders made by Justice Rees on 11 November 2020, and which orders principally provided for the return of the child the subject of these proceedings from Australia to Canada.

2. At the outset of this appeal, we were advised that on 9 December 2020, the appellant mother filed an application pursuant to reg 19A of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), seeking an order that pursuant to reg 19A(2) the return order that I have just referred to be discharged in circumstances where, and I will summarise, since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out, and/or exceptional circumstances exist that justify the return order being discharged.

3. We understand that the evidence in support of that application is comprised in the affidavit material which is the subject of an application before this Court to receive further evidence. In summary, that material provides information arising from the COVID-19 pandemic in terms of the restrictions on international travel between Australia and Canada and vice versa, and also the financial and other circumstances of the appellant mother.

4. We further understand that that application came before her Honour at the end of last year, but her Honour did not deal with it then, considering, as we understand it, that it should await the hearing and determination of the appeal that is currently before this Court.

5. In discussion with counsel today we have raised the circumstance that first, it is a well-known principle that all remedies that are available at first instance should be pursued before any appeal is heard and determined, and in this case, a specific issue that has been raised is the prospect of there being two appeals. In other words, if this appeal proceeded and was heard and determined, then, subject to the result, the application under reg 19A would be pursued and then, subject to the result of that application, there may very well be an appeal against that determination.

6. It has been recognised by both counsel that that is a circumstance that should be avoided, and the appellant has sought an adjournment of the appeal to await the outcome of the reg 19A application.

7. Understandably, the respondent has formally opposed the application to adjourn, but has conceded that there are good reasons for the adjournment to be granted.

8. The respondent, again understandably, is principally concerned about any delay that might flow from the adjournment of this appeal given, of course, that the return order has not yet been complied with, resulting in the child still being in Australia as opposed to having been returned to Canada.

9. We understand that concern, and in that regard, we have clarified with the appellant’s counsel that there would be no reason why, if Justice Rees, who was the primary judge in this matter, was unavailable to hear the reg 19A application, another judge could not hear it. And in any event, as was put to the respondent’s counsel, there might indeed be less delay in the course that has been proposed, than proceeding with this appeal today.

Kent J

1. I agree with those reasons and the order proposed.

Tree J

1. I also agree with the reasons of Justice Strickland and the order his Honour proposes.

I certify that the preceding eleven (11) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Kent and Tree JJ) delivered on 5 February 2021, edited to correct grammatical errors and some infelicity of expression.

Associate: 

Date:  11 February 2021