Martin & Commissioner of Police
[2022] FedCFamC1A 29
•3 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Martin & Commissioner of Police [2022] FedCFamC1A 29
Appeal from: Commissioner of Police & Martin [2021] FCWA 211 Appeal number(s): NAA 68 of 2021 File number(s): PTW 4659 of 2021 Judgment of: ALDRIDGE, AUSTIN & SCHONELL JJ Date of judgment: 3 March 2022 Catchwords: FAMILY LAW – APPEAL – Hague Convention – Appeal from orders requiring a child to be returned to Hong Kong – Where the mother sought to challenge the primary judge’s findings regarding the father’s rights of custody – Where the father’s rights of custody arose from orders of the High Court of Hong Kong Special Administrative Region (“the Hong Kong Court”) – Where the child is a ward of the Hong Kong Court – Where the mother contended that the concept of wardship is inconsistent with rights of custody – Where the father’s rights of custody clearly co-existed with the wardship – Where the father had rights of custody at the time of the child’s retention – No error demonstrated – Adequacy of reasons – Where the primary judge’s reasons are clearly adequate – Appeal dismissed – No order as to costs. Legislation: Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 4
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: C v C (Abduction: Rights of Custody) [1989] 1 WLR 654
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
MW v Director-General, Department of Community Services (2008) 244 ALR 205; [2008] HCA 12
Number of paragraphs: 45 Date of hearing: 22 February 2022 Place: Perth (via video link), delivered in Sydney Counsel for the Appellant: Ms Farmer Solicitor for the Appellant: Bannerman Solicitors Counsel for the Respondent: Mr Sefton SC Solicitor for the Respondent: State Solicitor’s Office (WA) ORDERS
NAA 68 of 2021
PTW 4659 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MARTIN
Appellant
AND: COMMISSIONER OF POLICE
Respondent
ORDER MADE BY:
ALDRIDGE, AUSTIN & SCHONELL JJ
DATE OF ORDER:
3 MARCH 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.There be no order as to costs of the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Commissioner of Police has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & SCHONELL JJ:
This is an appeal by the appellant mother (“the mother”) against orders made on 19 November 2021 requiring the return of a child (“the child”) to Hong Kong pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
Before the primary judge, the mother raised a series of contentions, including that the child was not habitually resident in Hong Kong, that the orders made by a Court in Hong Kong were beyond power, that the orders deprived the mother of her parental rights, and that the father did not have rights of custody.
Notwithstanding such expansive contentions at trial, the Notice of Appeal identified three grounds of appeal. The first two grounds challenged the primary judge’s findings as to the father’s rights of custody, and the third ground contended an inadequacy of reasons error in relation to those findings. On the appeal, it was conceded that there was only one issue: did the father have rights of custody at the time of the child’s alleged wrongful retention in Australia?
BACKGROUND AND RELEVANT PROCEDURAL HISTORY
The mother is an Australian citizen.
The father is a citizen of Country B and Country C, and a permanent resident of Hong Kong.
The mother and father are the parents of the child, who was born in 2014 in Hong Kong. The child is a permanent resident of Hong Kong.
The parents commenced a relationship after meeting in City A, Country A in 2009, but never married. Shortly thereafter, they moved to Hong Kong.
In February 2014, the mother informed the father that she was pregnant. The parties agreed to separate but also agreed they would continue to reside together and raise their child together.
In late January 2020 because of COVID-19, the parents decided to travel with the child to Country A. Around mid-March 2020, the mother expressed concerns about the further spread of COVID-19 and proposed that she travel to Australia with the child. The father agreed, and the mother and the child arrived in Perth on 18 March 2020. The father remained in Country A and later returned to Hong Kong in September 2020.
On or around 24 October 2020, the father sought the mother’s consent to a declaration as to his parental rights under Hong Kong law. The mother did not respond to the father’s requests.
On 30 October 2020, the father commenced proceedings in the Hong Kong Court.
Upon filing of the originating process in Hong Kong, the child became a ward of the Hong Kong Court.
On 6 January 2021, the Hong Kong Court made interim orders to the effect that both parents had joint custody and that the mother was to return the child to Hong Kong.
In late February 2021, the father applied to the Hong Kong Central Authority seeking the child’s return to Hong Kong.
On 30 March 2021, the mother did not attend the hearing before the Hong Kong Court. On 1 April 2021, the Hong Kong Court delivered reasons for judgment and final orders, including that the child was to remain a ward of the Court, that the mother and father were to have joint custody, and that the mother was to return the child to Hong Kong.
The hearing before the primary judge took place on 11 August 2021 and 26 October 2021. Judgement was delivered on 19 November 2021 requiring the return of the child to Hong Kong.
On 24 November 2021, the mother filed a Notice of Appeal seeking to set aside the orders of 19 November 2021. The return orders were subsequently stayed pending the appeal.
THE REASONS OF THE PRIMARY JUDGE
The narrow focus of the appeal necessitate that we mention only those aspects of the reasons relevant to the appeal.
The primary judge noted that Australia and Hong Kong are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. The primary judge referred to the relevant regulations and correctly identified that the respondent, the Commissioner of Western Australia Police (“the Central Authority”), carried the onus of proving the jurisdictional facts.
The primary judge recorded that as the mother and father were not married, the mother had rights of custody but the father initially did not. Upon filing of the Originating Summons on 30 October 2020, the child became a ward of the Hong Kong Court.
Mr C, a barrister practising at the Hong Kong Bar, provided expert evidence as to the law of Hong Kong.
The mother argued that the orders of the Hong Kong Court conferring joint custody “were necessarily very limited, and did not include a right to determine [the child’s] place of residence”, and accordingly the father did not have rights of custody (at [98]). As a corollary, given the child was a ward of the Court and the parents required approval for any decision made in respect of the child, such wardship and the obligation to seek approval were inconsistent with a right of custody.
The primary judge rejected the mother’s submissions.
The primary judge determined that the Hong Kong orders gave the father rights of custody within the scope of reg 4 of the Regulations. The primary judge at [115] made reference to the reasons of the Hong Kong Court, which held:
… the order that this Court made would give legal rights to the Father. They are enforceable rights, at least in Hong Kong. They give legal status to the Father as [the child’s] father. Based on an order granting him custody, the Father may take our proceedings under the Abduction Convention, if so advised. He may legitimately take part in all major decisions concerning [the child].
(Footnote omitted)
The primary judge recorded that the expert evidence was not the subject of challenge and as such, her Honour was properly entitled to accept the evidence. Contrary to the mother’s case, the primary judge recorded:
115.I am satisfied that the father had rights of custody, within the scope of reg 4 of the Regulations, as a consequence of the orders made by the Hong Kong Court on 6 January 2021. The orders explicitly conferred interim joint custody rights on the mother and father. I accept the unchallenged evidence of Mr C that those rights were custodial in nature, and subject to the overall supervision of the Hong Kong Court. Further, the rights had an operational effect, which included an order requiring the mother to return [the child] to Hong Kong, in accordance with the exercise of the father of his rights of custody. …
The primary judge concluded:
117.I do not accept the mother’s characterisation of the father’s rights arising from the 6 January 2021 orders of the Hong Kong Court. I prefer and accept the position of the Applicant and find that:
(a)The father had rights of custody, within the meaning of the Regulations, pursuant to the orders made by the Hong Kong Court on 6 January 2021. [The child] remaining a ward of the Hong Kong Court, did not prevent the Court from assigning rights of custody to the father, which it did.
(b)Pursuant to the orders of 6 January 2021, the father had the right to make decisions, jointly with the mother, about questions of importance, which included [the child’s] place of residence. The fact that each parent’s rights could only be exercised with the court’s approval, does not alter the character of those rights, being rights of custody.
(c)The father, in the exercise of his joint custodial rights, obtained an order from the Hong Kong Court, requiring the mother to return [the child] to Hong Kong. The father is entitled to enforce the order. He could effectively veto the process of the mother seeking to retain [the child] in Australia. As a consequence, I am satisfied that the father was exercising his rights of custody, and would have continued to do so, had [the child] not been wrongfully retained. I am satisfied [the child’s] ongoing presence in Australia, was in breach of the father’s rights of custody, because [the child’s] continuing presence in Australia is firstly, contrary to the father’s wishes, secondly, it is without his consent or authority and thirdly, it is contrary to the orders made by the Hong Kong Court for [the child] to return to Hong Kong, made at the father’s request.
(d)There is no difficulty with the fact there were dual rights in existence. That is accepted by the Hong Kong Court’s decision to retain wardship over [the child], while making orders for the mother and father to have interim joint custody.
THE APPEAL
Notwithstanding the three grounds in the Notice of Appeal, counsel for the mother conceded in oral argument that there was only one issue in this appeal, being whether the father was exercising rights of custody at the date of wrongful retention.
The answer to that question is undoubtedly in the affirmative, as was comprehensively explained by the primary judge.
The father’s rights of custody arose from the making of the orders of the Hong Kong Court. The order conferred on the father not just joint custody, but a right to determine the child’s place of residence and consequentially a right of veto (see MW v Director-General, Department of Community Services (2008) 244 ALR 205 at [77]–[81]). The primary judge properly found on the evidence that this was a right of custody in accordance with the Regulations.
The mother in both the Summary of Argument and oral submissions contended that the father did not acquire rights of custody under the Hong Kong Court orders of 6 January 2021 because when a child is a ward of the Court, the Court has complete and absolute control over its wards. The mother sought to differentiate the concept of wardship from the requirement to seek the Hong Kong Court’s approval to a particular order contending that each of those propositions were inconsistent with rights of custody. It is a distinction without difference. The requirement to seek approval sprung from the wardship.
Contrary to the mother’s submissions, the father’s “rights of custody” clearly co-existed with the wardship. As much arises from a proper construction of reg 4(1)(b) of the Regulations, which provides as follows:
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:
…
(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.
As the Central Authority made plain in their Summary of Argument in the context of reg 4 of the Regulations:
26.… It thereby explicitly recognises the potential for a variety of circumstances in which such rights may be held other than solely by the applicant, including rights potentially being held by an institution (such as a court) as well as an individual.
Senior counsel for the Central Authority relied upon the judgment of Lord Donaldson in C v C (Abduction: Rights of Custody) [1989] 1 WLR 654, where in the context of a right to determine a child’s place of residence his Lordship held at 663, with which observations we agree:
…but “rights of custody” as defined in the Convention includes a much more precise meaning which will, I apprehend, usually be decisive of most applications under the Convention. This is “the right to determine the child’s place of residence.” This right may be in the court, the mother, the father, some caretaking institution, such as a local authority, or it may, as in this case, be a divided right-in so far as the child is to reside in Australia, the right being that of the mother; but, in so far as any question arises as to the child residing outside Australia, it being a joint right subject always, of course, to the overriding rights of the court.
The primary judge properly found that there was no inconsistency between wardship and the joint custody order. The primary judge’s reasons accorded with the unchallenged expert evidence. The mother’s counsel agreed that the primary judge at [117] accurately recorded the evidence of the single expert.
We do not find error in the primary judge’s approach as to rights of custody.
Whilst the mother’s counsel maintained the issue for the appeal was whether the father had rights of custody, the Notice of Appeal and Summary of Argument spoke to an inadequacy of reasons error. For completeness we address the remaining ground.
In DL v The Queen (2018) 266 CLR 1, the High Court observed:
130.… although the extent of reasons may depend on the circumstances of the case, reasons must identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.
(Footnote omitted)
The primary judge’s reasons complied with the dictates of the High Court.
The primary judge accurately set out each party’s case and submissions, accurately recorded the unchallenged evidence of the expert, and made findings and gave reasons consistent with such unchallenged evidence.
The primary judge correctly identified the unchallenged evidence of Mr C, including that:
99.…
·As a consequence of the interim custody orders made on 6 January 2021, the mother and father could jointly make important decisions for the child, including where the child was to live, which was subject to the court’s supervision. The making of the return order, at the same time as the joint custody order, “simply means that a particular custodial decision was approved by the court. This does not remove the parents’ rights of custody per se, but they must seek the court’s approval again if they wish to make a different decision while the child is a ward”.
(Footnote omitted)
The primary judge explained at [115] that the father had rights of custody and that the evidence of Mr C was that those rights were custodial in nature subject to the overall supervision of the Court. The primary judge accurately recorded the expert evidence that the need to seek approval did not remove the parent’s rights of custody. The primary judge appropriately referred to the reasons of the Hong Kong Court that supported such a finding.
The primary judge clearly set out in her reasons that the Hong Kong Court order gave the father the right to determine the child’s place of residence as an exercise of his joint custodial right. Such conclusion accorded with the Regulations (at [117(c)]).
The primary judge at [117(a)] explained that the making of the wardship order did not prevent the Hong Kong Court assigning rights of custody to the father, which it did by the terms of the order, including making a return order. Axiomatically, as much was clear by the making of the order as concisely explained at [117(d)].
Her Honour’s reasons are clearly adequate, and accordingly, we find no merit in this ground.
CONCLUSION
We conclude the appeal should be dismissed. No order as to costs was sought.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Schonell. Associate:
Dated: 3 March 2022
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