KINGSLEY & SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

The appeal in this matter was brought by the father, Kingsley, against an order of the Family Court which required the return of his daughter to Canada under the Hague Convention. The primary judge had found that the child should be returned to Canada and had made the requisite orders, however these orders had not been complied with. The father subsequently filed an application under regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), seeking to have the return order discharged on the basis of changed circumstances or exceptional circumstances. The primary judge had not yet dealt with this application, considering it should await the outcome of the appeal. The father sought to appeal the original return order, while the mother opposed the appeal, concerned about any delay that might result from the adjournment of the appeal.

The legal issues before the court included whether the appeal should proceed before the application under regulation 19A was determined, and whether it was appropriate to adjourn the appeal to allow the first instance determination of that application. The court considered the principles of finality and the importance of ensuring all remedies available at first instance are pursued before an appeal is heard. It was noted that if the appeal proceeded and was determined, there might be a subsequent appeal against the determination of the regulation 19A application, which would create a redundant and inefficient process.

The court decided that all remedies available at first instance should be pursued before the appeal was heard. It found that it was appropriate to adjourn the appeal to allow the application under regulation 19A to be heard and determined first. This approach would avoid the potential for multiple appeals and ensure that the court's resources were used efficiently. The appeal was thus adjourned to a date to be fixed, to allow the regulation 19A application to be dealt with at first instance.