Northern Territory Central Authority & Adlin (No. 3)
[2021] FamCA 216
•20 April 2021
FAMILY COURT OF AUSTRALIA
Northern Territory Central Authority & Adlin (No. 3) [2021] FamCA 216
File number(s): DNC27 of 2020 Judgment of: WILLIAMS J Date of judgment: 20 April 2021 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Application for Stay of Orders pending Notice of Appeal being determined Legislation: Family Law Act 1975 (Cth) s. 111B
Family Law (Child Abduction Convention) Regulations 1986 rr. 16(1A), 16(3)
Hague Convention on the Civil Aspects of International Child Abduction
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Northern Territory Central Authority & Adlin (No. 2) [2021] FamCA 200
Number of paragraphs: 32 Date of hearing: 19 April 2021 Place: Melbourne Counsel for the Applicant: Ms Saladino, Solicitor Solicitor for the Applicant: Hague Convention Legal Practice Counsel for the Respondent: Ms Olsson Solicitor for the Respondent: Margaret Romeo ORDERS
DNC27 of 2020 BETWEEN: MR ADLIN
Applicant
AND: NORTHERN TERRITORY CENTRAL AUTHORITY
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
20 APRIL 2021
THE COURT ORDERS THAT:
1.The Orders made by Williams J on 15 April 2021 be stayed pending the completion of the Appeal filed on 15 April 2021 (“the Appeal”) on the following conditions:
(a)in the event the mother remains in Australia pending the determination of the Appeal, the children remain in her care;
(b)the father prosecute the Appeal expeditiously including, if required, filing an application for expedition of the hearing of the Appeal;
(c)the applicant comply with all directions of any appeals registrar with respect to the Appeal.
2.The Northern Territory Central Authority assist the mother, if so requested by the mother, to enable the mother to extend her visa enabling her to remain in Australia.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adlin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
This is an application by the father for a stay of the Orders made by this Court on 15 April 2021.
The circumstances and history of the family which gave rise to the original application by the Central Authority are set out in my decision of 15 April 2021, Northern Territory Central Authority & Adlin (No. 2) [2021] FamCA 200.
On 15 April 2021, Counsel for the father, subsequent to pronouncement of orders, but prior to provision of reasons for judgment, made an oral application for a stay of the orders made on that day, notwithstanding that no Notice of Appeal had been filed. I declined to hear the application and Counsel for the father indicated that a Notice of Appeal and a stay application with supporting affidavit, would be filed on or before 5.00 p.m. the next day. This occurred.
There are two children who were the subject of the application by the Central Authority for return to Thailand. The original application by the Central Authority was filed on 17 January 2020. A trial of that application took place on 20-22 May, 16 June and 7 July 2020. The father appealed the decision of the trial judge, which was upheld by the Full Court of this Court, and the matter was remitted for hearing a second time.
For the reasons set out in my decision of 15 April 2021, I found that the application by the Central Authority satisfied the court that the children’s retention in Australia was wrongful under reg 16(1A) of the Family Law (Child Abduction Convention) Regulations 1986.
I was also satisfied that neither of the regulatory exceptions to mandatory return as provided by regs 16(3)(a)(ii) and 16(3)(b), were applicable. I was therefore required to make an order returning the children to Thailand, which was the country of their habitual residence prior to wrongful retention by the father.
The stay application was listed for determination on 19 April 2021. The father’s solicitor appeared on his behalf and Counsel who appeared during the hearing before me, appeared on behalf of the Northern Territory Central Authority (“the Central Authority”).
Applicable Law
The Full Court of this Court referred to the applicable principles relating to a stay application in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. At [18] their Honours Bryant CJ, Boland and Crisford JJ said:
[18] 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 of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (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 judgment is entitled to the benefit of that judgment;
· a person who has obtained a judgment is entitled to presume the judgment 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 appellant 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.
The father relied upon the following documents:
(a)Notice of Appeal filed 15 April 2021;
(b)Application in a Case filed 15 April 2021;
(c)Affidavit of the father sworn 15 April 2021.
The Central Authority did not file any documents and relied upon submissions made by Counsel.
The submissions on behalf of the father were as follows:
(a)failure to grant a stay would render an appeal nugatory;
(b)if a stay is not granted, the children will travel to Thailand, and a long separation between the father and children will adversely impact them;
(c)not to grant a stay would do an injustice to the children and it is not where the balance of convenience lies;
(d)there is merit in one of the grounds of appeal because of the divergence of jurisprudence in Australia and other Convention countries, pertaining to parental intention as a factor relevant to habitual residence;
(e)the appeal seeks to address a serious matter of law;
(f)the father’s bone fides should not be questioned because of his application for a stay prior to obtaining a copy of the reasons;
(g)although a Hague application is a “hot pursuit” remedy, the children were in Australia for a period of eight months with the mother visiting for six days of that time;
(h)the applicant is not required to demonstrate any special or exceptional circumstances.
The submissions on behalf of the Central Authority were as follows:
(a)the applicants submissions do not fulfil the requirements of granting a stay which is a discretionary remedy;
(b)the Central Authority is entitled to the benefit of the judgment;
(c)the father is not a bone fide applicant and the stay application is an attempt to delay the return of the children;
(d)there have been two trials, one in May 2020 and February 2021, where two different judges of the court have ordered that the children be returned to Thailand, in proceedings where the husband was represented by Senior Counsel;
(e)at both trials, the issue of the children’s habitual residence was pivotal;
(f)the mother first consulted the Thai Central Authority in December 2019, with the application being issued in January 2020 and the proceedings need to be finalised;
(g)the legislation and regulations relevant require Hague Convention proceedings to be disposed of promptly and not to do so would leave the children in an uncertain position;
(h)the mother arrived in Australia on 1 February 2021 and has spent 10 weeks in a foreign country without any support. She is unable to extend her time in Australia any further as her employer is requiring her immediate return to Thailand;
(i)the mother needs to retain her employment to support herself and potentially the children;
(j)she has been in Australia on a tourist visa since 1 February 2021 which is due to end by 30 April 2021;
(k)if she were to return home she would need to apply for a visa to re-enter the country yet again, which may be difficult during the current coronavirus climate;
(l)the ground of appeal of allegation of bias has not been particularised in the Notice of Appeal.
Discussion
I will address the submissions of both parties in the context of the relevant principles, as referred to in Aldridge & Keaton.
Firstly, the Central Authority is entitled to the benefit of the judgment and to presume the judgment is correct. That is particularly so in the context of the history of the proceeding where two different judges, in two hearings have both determined that the children should be returned to Thailand.
Secondly, subsequent to filing a Notice of Appeal, the father filed a stay application and supporting affidavit, as required by the Court on 15 April 2021.
Thirdly, the bona fides of the father. The father’s solicitor attempted to explain why an oral application for a stay was made, subsequent to orders being pronounced and prior to receiving a copy of the judgment. The explanation was the discussion which occurred between the court and the father’s Senior Counsel during closing submissions, about the relevance of intention and habitual residence, and the divergence of authority in Australia and other Convention countries , would likely result in an adverse outcome for the father. Indeed, the oral application for a stay was pursued on the basis that I should accept an undertaking from the father to file a Notice of Appeal within seven days.
Counsel for the Central Authority questioned the father’s bona fides in circumstances where there had been two orders for return of the children after two hearings of essentially the same matters to be determined.
In any event, the Notice of Appeal was filed promptly, as was a proper application for a stay. I accept that the father may wish to pursue any avenue open to him to enable the children to stay in Australia.
Fourthly, the granting of a stay on terms that are fair to all parties. Unfortunately, in this instance, it would seem that the mother is unable to remain in Australia even for a limited period of time to enable the appeal to be heard, due to her work commitments in Thailand.
As was noted during the second trial and the reasons, the mother was the primary breadwinner for the family and during the family’s time in Thailand, was primarily responsible for the financial support of the family. It is entirely understandable that she would not wish to jeopardise her employment in Thailand by remaining in Australia beyond the date that she is being required to return to Thailand. There were no submissions made, and indeed it is difficult to think of any conditions which would achieve preservation of the mother’s employment and her right to remain in Australia with the children. Clearly the mother will be disadvantaged if a stay is granted and she is not permitted to leave Australia with the children in the next day or so. The father will suffer no such disadvantage and to the contrary, his position will be improved as the children will be returned to his care upon the mother leaving the country.
If the mother is able to remain in Australia pending the determination of the appeal, then it is appropriate that the children remain with her, pending the appeal, particularly in view of the short timeframe contemplated for the determination of the appeal, which is referred to in subsequent paragraphs.
There were differing submissions about the mother’s capacity to remain in Australia, in terms of her immigration status. Counsel for the Central Authority submitted that the mother would be required to leave the country on 30 April 2021, at the expiration of her three months tourist visa. That could involve departing the Northern Territory prior to that date to enable her to travel to a city where flights to Thailand currently depart.
The solicitor for the father submitted that the mother had obtained a three-year visa in 2019, which would enable her to stay in Australia well past the appeal hearing. There was no documentary evidence provided to support that contention nor was that referred to in the affidavit filed in support of the stay application.
Fifthly, whether the appeal will be rendered nugatory if the stay is not granted. Clearly in this case, if there is no stay of the orders returning the children to Thailand, the mother will depart with the children in the next day or so. As submitted by the solicitor for the father, because Thailand is not a signatory to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, there is likely to be considerable difficulties in securing the return of the children from Thailand to Australia in the event that the father’s appeal is successful. That would render the appeal nugatory.
Sixthly, a preliminary assessment of the strength of the proposed appeal. As referred to at paragraph 11 of these reasons, the solicitor for the father submitted that there was a significant area of jurisprudence which should be considered at the appellate level, in relation to parental intention and habitual residence.
Counsel for the Central Authority submitted that there was little merit in the grounds of appeal pertaining to apprehended bias particularly in circumstances where there was no particularisation of the ground.
Grounds 1 to 3 inclusive of the Notice of Appeal pertain to the issue of habitual residence and degree of assimilation and parental intention. Given the differences in the authorities, I am of the view that the father should be permitted to agitate the proposed ground of appeal.
Seventhly, the desirability of limiting the frequency of any change in a child’s living arrangements. The Orders made on 15 April 2021 required the father to forthwith deliver the children to the mother, in anticipation of a return to Thailand.
The father’s solicitor submitted that the children had been returned to the mother in accordance with that order. The current dilemma before the court is that if a stay is granted, and the mother is unable to remain in Australia, the children will be returned to the father. However, if the mother is able to remain in Australia pending the determination of the appeal, then it would be appropriate for the children to remain in her care, given that the appeal is likely to be listed and determined in a very short period of time. If the appeal is successful, then the children will be returned to the father, and if it is not, the mother and the children will no doubt promptly return to Thailand.
My associate has made enquiries with the National Appeals registrar and it is likely that the appeal will be listed either on 30 April 2021 in the Melbourne sittings of the Full Court, or on 10 May 2021, in the Brisbane sittings of the Full Court.
Finally, the best interests of the children are served by the children remaining with their mother in Australia pending the determination of the appeal, if she can make arrangements with her employer and the relevant immigration authorities. If not, then the children will live with the father until the determination of the appeal.
Upon balancing the relevant considerations, I am of the view that granting a stay would cause a relatively short delay in complying with Australia’s obligations pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, and I intend to grant the stay, subject to the children remaining in the care of the mother, if she is able to remain in Australia pending the determination of the appeal.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 20 April 2021
5
4