Secretary, Department of Communities and Justice & Paredes
[2021] FedCFamC1F 303
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Communities and Justice & Paredes [2021] FedCFamC1F 303
File number(s): CAC 2536 of 2020 Judgment of: WILLIAMS J Date of judgment: 16 December 2021 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Application for discharge of return order – Where the application is made in circumstances where the requesting state has sanctioned the continued presence of the child in Australia prior to the return order being implemented – Application made pursuant to reg 19A(2)(c) of the Family Law (Child Abduction Convention) Regulations 1986 based on exceptional circumstances existing that justify the return order being discharged – Consideration of relevant circumstances and whether circumstances are considered exceptional – Exercise of discretion – Return order discharged. Legislation: Family Law Act 1975 (Cth), s 111B
Family Law (Child Abduction Convention) Regulations 1986, r 19A
Cases cited: Baker v The Queen (2004) 223 CLR 513
Commonwealth Central Authority & Sangster (No. 2) [2018] FamCA 894
De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640
Department of Children, Youth Justice and Multicultural Affairs & Golub [2021] FamCA 435
Department of Communities and Justice & Kingsley (No. 2) [2021] FamCA 308
Department of Family and Community Services Secretary & Smollett (No. 2) [2018] FamCA 372
DP v Commonwealth Central Authority; JLM v. Director-General NSW Department of Community Services (2001) 206 CLR 401
Ferris & Midford [2020] FamCA 471
Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128
State Central Authority & Ustinov (No. 4) [2008] FamCA 987
Division: Division 1 First Instance Number of paragraphs: 90 Date of hearing: 28 October 2021 Place: Melbourne Counsel for the Applicant: Mr Nicholls QC Solicitor for the Applicant: Nicholes Family Lawyers Counsel for the Respondent: Ms Hartstein Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice ORDERS
CAC 2536 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PAREDES
Applicant
AND: THE SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS THAT:
1.Paragraphs 1, 6, 7, 9 and 10 of the Orders made 17 March 2021 be discharged.
2.Otherwise, the applicant mother’s Form 2D Application filed 8 June 2021 be and is hereby dismissed.
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 r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paredes 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
The application for determination is the mother’s application under reg 19A of the Family Law (Child Abduction) Regulations 1986 (“the Regulations”) for an order discharging a return order made by the Family Court of Australia (as it then was) on 17 March 2021 requiring the child, Z, born in 2010 (“the child”) to be returned to Brazil.
The order for return of the child to Brazil was made after a three day hearing and reasons were published on 17 March 2021: Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128 (“the first judgment”). Those reasons set out the background of the dispute between the parties.
The application is made under reg 19A(2)(c), which provides that the Court may make an order discharging a return order if exceptional circumstances exist that justify it doing so.
The mother asserts that exceptional circumstances exist because:
(a)in the process of determining rights of custody and access in respect to the child, the courts in the requesting state, Brazil, have determined that she should continue to stay in Australia;
(b)that determination was made with knowledge of the return order made in Australia;
(c)all challenges to that determination have been rejected;
(d)the return order:
(i)fulfilled the obligations of Australia under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”);
(ii)preserved the jurisdiction of Brazil as the state of the child’s habitual residence;
(e)the orders of Brazil must be respected.
The Secretary, Department of Communities and Justice (“the State Central Authority”) opposes the discharge of the return. The basis for opposition to the discharge of the return order will be addressed later in these reasons.
Documents relied upon by the Parties
The mother relies upon the following documents:
(a)Form 2D Application to discharge return order filed 8 June 2021;
(b)Affidavit of the mother filed 7 June 2021;
(c)Affidavit of Mr C filed 8 June 2021;
(d)Affidavit of the mother filed 23 August 2021 and exhibits including:
(i)Brazilian Court Orders dated 7 October 2020;
(ii)Brazilian Court Orders dated 22 April 2021;
(iii)Brazilian Court Orders dated 18 May 2021;
(iv)Brazilian Court Orders dated 6 July 2021;
(e)Affidavit of Mr C filed 24 August 2021;
(f)Affidavit of Judge AA filed 26 August 2021;
(g)Affidavit of Mr C filed 21 October 2021 and exhibits including:
(i)Brazilian Court Orders dated 24 August 2021;
(ii)Petition dated 1 September 2021;
(iii)Brazilian Court orders dated 14 September 2021;
(iv)Certificate of res judicata dated 13 October 2021.
(h)Letters Rogatory from the First Family Court of Brazil dated 26 April 2021;
(i)Opinion of the Brazilian Public Ministry dated 9 June 2021.
The State Central Authority relies upon the following documents:
(a)Affidavit of Ms BB affirmed 19 July 2021;
(b)Affidavit of Ms BB affirmed 16 August 2021;
(c)Affidavit of Ms CC, 6 September 2021, contained in the affidavit of Ms BB affirmed 21 October 2021.
Regulation 19A provides:
(1)If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.
(2)The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:
(a)all the parties consent to the return order being discharged; or
(b)since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or
(c)exceptional circumstances exist that justify the return order being discharged; or
(d)the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.
(3)In considering whether to make an order discharging a return order, the court must have regard to section 111CE of the Act if the convention country from which the child was removed is also a Convention country within the meaning of subsection 111CA(1) of the Act.
Submissions on behalf of the mother
Queen’s Counsel for the mother referred to his comprehensive and helpful written Case Outline. I will adopt the headings in that document.
Discharging return orders made under the Convention
Firstly, Queen’s Counsel submitted, to his knowledge there has been no previous application in Australia or any other State Party to the 1980 Convention to discharge a return order on the basis that a court in the requesting State has, prior to the order being implemented, sanctioned the continued presence of the child in the requesting State. As a consequence of the 1980 Convention not providing for the discharge of a return order, there is no common approach amongst Contracting States.
Discharging return orders in Australia – reg 19A(2)
Regulation 19A referred to above, was inserted as a new regulation as a result of the Family Law Amendment Regulations (No. 3) 2004. It was then further amended to its present form in 2007, arising from the Family Law (Child Abduction Convention) Amendment Regulations 2007 (No. 1) which provides the court with greater discretion to discharge a return order under Regulation 19A(2).
Queen’s Counsel for the mother referred the Court to the recent case of Department of Communities and Justice & Kingsley (No. 2) [2021] FamCA 308 (“DCJ & Kingsley (No. 2)”), where Rees J set out a number of matters to be borne when applying reg 19A, the first of which requiring the court to have regard to its statutory context. The Regulations are made pursuant to section 111B of the Family Law Act 1975 (Cth) (“the Act”) which relevantly provides that the purpose of the Regulations is to enable the performance of the obligations of Australia under the Convention: DCJ & Kingsley (No. 2) at [8], citing McClelland J in Department of Family and Community Services Secretary & Smollett (No. 2) [2018] FamCA 372.
Rees J, at [46], identifies the purpose of the 1980 Convention is to “facilitate the speedy return of a child to the place of his or her habitual residence to allow that jurisdiction to determine the appropriate parenting arrangements”.
In Commonwealth Central Authority & Sangster (No. 2) [2018] FamCA 894 (“Sangster (No. 2)”), Bennett J at [13] describes proceedings bought under the Convention as:
…proceedings pursuant to a forum selection treaty upon which Australia relies to retrieve children wrongfully removed or retained out of Australia. In turn, we repatriate children who are wrongfully in Australia to the contracting state of their habitual residence. It is private international law underpinned by reciprocity and a respect for the legal systems of other contracting states.
In DP v Commonwealth Central Authority; JLM v. Director-General NSW Department of Community Services (2001) 206 CLR 401 (“DP”), Kirby J observed:
127.…it is proper to regard [the Regulations’] objective as including that of normally restoring the child, and the other parties concerned, to the status quo that existed before the international removal or retention in question. Specifically, it is ordinarily to require that the authorities (courts or tribunals as the case may be) in the country of the child's habitual residence should resolve the merits of disputes over custody and, in that context, decide the best interests of the child.
128.It is in this sense that provisions such as those in the Regulations are properly to be classified not, as such, as laws searching for the best interests of the child but rather as laws for selecting the forum where that search is to be undertaken and concluded’.
The second matter raised by Rees J in DCJ & Kingsley (No. 2) at [9], is that, for the purpose of reg 19A(2)(b), it is necessary that the circumstances upon which reliance is placed must have arisen after the return order is made. This sub-regulation is not relied upon by the mother.
The third of those matters to be borne in mind is when considering reg 19A(2)(c), the word “exceptional” is to be given its ordinary meaning (at [10]).
Rees J (at [11]) adopted the definition of “exceptional” applied in the High Court decision of Baker v The Queen (2004) 223 CLR 513 (“Baker v The Queen”), where Callinan J stated:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
(Footnotes omitted).
Queen’s Counsel for the mother referred to Sangster (No. 2) where Bennett J adopted the comments of the High Court in De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640, stating that “the breadth of circumstances to which the court may have regard in the exercise of its discretion under r.19A(2)(c) is unconfined except insofar as they may be extraneous”.
The power under reg 19A(2) is a discretionary power, in that the regulation provides that the Court may make an order discharging the return where one or more grounds are met.
The mother’s case – relevant events
On or about 28 August 2020, the father made an application instituting proceedings in the First Family Court of Brazil, being the primary court to determine parenting disputes in the state of City K seeking orders that the child live with him and consequential orders.
On 7 October 2020, the First Family Court of Brazil rejected the father’s application for sole custody of the child and granted ‘provisional joint custody for the period of 180 days, emphasizing that the mother, the Defendant, and the minor, according to information in the records, live in another country (Australia)’.
On 17 November 2020, the mother was served with the Hague Convention application and became aware of the father’s application in the First Family Court of Brazil.
On 16 December 2020, the mother filed a petition in the First Family Court of Brazil seeking clarification of the 7 October 2020 Orders. On 8 February 2021, the father opposed the mother’s application for clarification.
On 17 March 2021, judgment was delivered in this Court and a return order to Brazil was made.
On 16 April 2021, the mother made a further application to the First Family Court of Brazil asking for a determination of her application made on 16 December 2020 and notified the court of this Court’s return order. The mother sought an order expressly permitting the child’s continued presence in Australia.
On 22 April 2021, the First Family Court of Brazil determined the mother’s application for clarification and ordered that:
(a)The child’s ‘fixed address’ is to be Australia;
(b)there be a provisional shared custody order for a term of 180 days, with the child to live with the mother in Australia;
(c)the mother facilitate daily communication between the child and the father;
(d)the mother provide evidence of the child’s school enrolment in Australia.
On 26 April 2021, the father filed an application for review of the above orders. The father appealed the order to the Ninth Civil Chamber of the Judiciary of the State of City K (“Court of Appeal”) seeking to revoke the 22 April 2021 Orders and to enforce the return order made by this Court.
On 18 May 2021, a preliminary order was made by the Brazil Court of Appeal denying the father’s appeal and upholding the orders made on 22 April 2021.
On 8 June 2021, the mother filed a Form 2D Application in this Court to discharge the return orders. The return order was stayed by consent of the parties on 15 June 2021.
On 6 July 2021, the First Family Court of Brazil made orders maintaining the decision of 22 April 2021 after the father’s request for reconsideration.
On 24 August 2021, a panel of three judges of the Brazil Court of Appeal unanimously dismissed the father’s appeal against the orders made by the First Family Court of Brazil on 22 April 2021.
The mother applied to the First Family Court of Brazil on 1 September 2021 to extend the provisional shared custody order so that the child can stay in Australia at least until the end of the Brazil family law proceedings. On 14 September 2021, the Court extended joint custody for a further 120 days. This is due to expire on 12 January 2022 and does not vary the order made on 22 April 2021.
The Brazilian Court of Appeal issued a Certificate of res judicata to the First Family Court of Brazil on 13 October 2021, confirming that the interlocutory appeal filed by the father in respect of the orders dated 22 April 2021 ‘had its final and unappealable judgment’.
The Brazilian Orders
Since the return order was made on 17 March 2021, the First Family Court of Brazil has made three sets of orders authorising the child to stay in Australia on an interim basis, being the orders made on:
(a)22 April 2021;
(b)6 July 2021; and
(c)14 September 2021.
In addition to the above, the Brazilian Court of Appeal has issued two sets of orders upholding the decision of the primary court of 22 April 2021 and authorising the child’s continued presence in Australia, being the orders made on 18 May 2021 and 24 August 2021.
Queen’s Counsel for the mother submitted that each of the orders made in Brazil after 17 March 2021 were made with the knowledge that a return order had been made by the Family Court of Australia. In both the father’s application for reconsideration filed 26 April 2021 and his appeal filed on 4 May 2021, the father provided the Brazilian Court with a copy of the first judgment of the Family Court of Australia.
Further, the Brazilian Court of Appeal in its reasons for judgment dated 24 August 2021, considered and rejected the father’s submissions to the effect that the provisional shared custody orders authorising the child to remain in Australia on an interim basis should be reversed because it was contradictory to the return order.
It is the mother’s case that the orders made in the Brazilian Court of Appeal and the opinion of the Brazilian Public Ministry dated 9 June 2021, both of which occurred since making of the return order in this Court, can only be interpreted as condoning the child’s presence in Australia.
It is also submitted that the orders of 22 April 2021 providing for the child’s fixed address and primary residence to be with the mother and for the mother to provide evidence of the child’s enrolment in an Australian school, is clearly an obligation which is inconsistent with the child being immediately returned to Brazil. Further, the mother raises that the father made an express concession in respect of the 22 April 2021 orders resulting from both his request for reconsideration of 26 April 2021 and the appeal of those orders on 4 May 2021 that the orders permitted the child to remain in Australia.
The Brazilian Court of Appeal conducted its appeal and provided reasons refuting the father’s submissions to review the First Family Court’s decision to authorise the child’s continuing presence in Australia. The orders of 14 September 2021 again accord with this notion by extending the period of shared custody for another 120 days, after the mother filed an application on 1 September 2021 seeking to extend the “term of the provisional shared custody of a minor so that she can stay in Australia at least until the end of this legal action” (Exhibit C-02 of the Affidavit of Mr C filed 21 October 2021). Mr C, the mother’s Brazilian lawyer deposes in his affidavit filed 21 October 2021 that the extension of the provisional shared custody is an extension of the orders made 22 April 2021 until 12 January 2022. This is not to say, on the mother’s case, that the expiration of this period revokes or discontinues the authorisation of the child to remain in Australia.
In his affidavit filed 26 August 2021, retired Brazilian Judge AA, deposes to the expiration of the time period referred to above, “if the order lost its effectiveness due to a time-lapse, observing the child’s well-being, the order must necessarily be renewed until the proceeding is duly documented and able to receive a final decision” (at p. 27).
It is the mother’s case that the emphasis should not lie with interpreting the expiration of the time period as a termination of the child’s authorisation to remain in Australia but rather as a fixed period capable of renewal until a final determination is made by the Brazilian courts.
Request for a social and psychological study
On 26 April 2021, the First Family Court of Brazil issued letters rogatory asking for a ‘social and psychological’ report to be carried out in respect of the child together with the mother to ‘produce evidence’ in the family law proceedings between the parents. It is the mother’s submission that the sending of the letters rogatory making the request was likely delayed to enable the father’s application for reconsideration of the 22 April 2021 orders, but nevertheless it is clear that the First Family Court in Brazil is actively exercising jurisdiction and taking appropriate steps to make an assessment on best interests principles regarding the child’s residence.
The mother’s case
The mother submits it is appropriate to discharge the return order pursuant to reg 19A(2) in light of the statutory context, the purpose of the Regulations and conformity with the rule of law. She submits it is appropriate for this Court to interpret the five sets of orders made in the Brazilian Court since the return order was made, as exceptional circumstances, within the ordinary meaning of the word.
In determining Brazil to be the appropriate forum to decide parenting arrangements for the child, exceptional circumstances therefore exist to justify discharging the return order. To do so accords with both comity and Australia’s obligation under the 1980 Convention to have the relevant court of Brazil determine matters of custody and access.
Queen’s Counsel for the mother submitted that if the Court enforced the return order, in circumstances where there is a current order made by a competent court in Brazil authorising the child to reside in Australia, albeit on an interim basis, it would be inconsistent with the purpose of the 1980 Convention to ensure the rights of custody and access under the law of Brazil are respected by Australia.
I was referred to the comments of Bennett J in Sangster (No. 2) to persuade the court to exercise discretion to discharge the return order. Relevant factors in considering whether to exercise the court’s discretion include the best interests of the children, whether Australia had fulfilled its obligations under the treaty, whether a discharge would be consistent with the purpose of the Convention and the period of time in which the children had been present in Australia.
Firstly, Her Honour considered ‘best interests’ at [16], as follows:
It is generally considered to be in a child’s best interests to be returned promptly to the place from which they have been wrongfully removed or retained. This is because the courts in that jurisdiction are the natural forum with greatest access to relevant evidence. Also, it is not for one parent to select another forum to the disadvantage of the other parent and, inferentially, the children.
In this case, however, while accepting and exercising jurisdiction to determine parenting matters, the Brazilian courts have not seen fit for the child to be returned to Brazil pending final determination of the proceedings and made orders expressly authorising the child to remain in Australia.
On 18 May 2021, the judgment of Judge EE of the Ninth Civil Chamber states “there is no justification for a sudden change in the child’s routine, without first carrying out a more in-depth analysis of the case, in order to preserve the child’s best interest” (Exhibit P-3 of the Affidavit of Ms Paredes filed 23 August 2021). Further, Judge AA, a retired family court judge in Brazil, confirms that the family law courts of Brazil must make orders based on the best interests of the child (Affidavit filed 26 August 2021, p. 28).
Secondly, the mother submits that Australia’s obligations under the 1980 Convention have been fully satisfied upon a return order being made, vesting the requesting State, Brazil with jurisdiction, which it has since been exercising.
Thirdly, a discharge of the return order would be consistent with the policy and purpose of the 1980 Convention. In circumstances where the Brazilian courts have exercised jurisdiction to authorise the child’s presence in Australia, ordering a discharge would not offend or be contrary to the policy objectives. As referred to in paragraph 14 hereof, Kirby J in DP identified that the purposes and objectives are normally served by returning the child to their place of habitual residence as at the date of their removal/retention but His Honour’s language implies this will not always be the case. Further, His Honour suggests that the more specific purpose of making return orders is to facilitate the exercise of the jurisdiction to determine parenting matters by the State in which the child was habitually resident prior to retention.
Lastly, the child has been living in Australia since April 2019, a period of 31 months. This was a relevant factor in Sangster (No. 2) whereby the children had been present in Australia for 21 months as at the time of hearing. In this case, however, the mother concedes to the Brazilian court’s jurisdiction to determine the parenting proceedings. The mother submits that in authorising the child’s continued presence in Australia, the Brazilian courts have taken into account the child’s integration into life in Australia, as seen in the orders of 22 April 2021, 18 May 2021 and 24 August 2021. The Brazilian courts have sought to preserve the status quo, albeit on an interim basis by not disrupting her routine and requiring her return to Brazil, prior to the completion of proceedings in Brazil.
Submissions on behalf of the State Central Authority
The gravemente of the submissions of counsel for the State Central Authority is that while the Brazilian courts have sanctioned the child living in Australia, it is only on an interim basis and without the benefit of a full hearing into the best interests of the child. The orders are of a nature that merely permit the child to remain in Australia, rather than enforce the child’s presence. Further, no exceptional circumstances exist and no circumstances have arisen that make it impracticable for the orders to be carried out. It is these arguments that lead to the conclusion the mother is merely attempting to avoid the return order made by this Court and ultimately have that order discharged.
The father’s Brazilian lawyer, Ms CC, in her affidavit of 6 September 2021 at paragraphs 11–13, stated that there is a pending final decision on custody, residence and cohabitation of the child and that there is considerable work to be done in this matter before it is ready for trial. She further elicits the usual duration of these matters is four years.
Counsel for the State Central Authority directed the Court to various authorities which have enunciated the “exceptional circumstances” definition in Baker v The Queen, identified at paragraph 18 hereof. In State Central Authority & Ustinov (No. 4) [2008] FamCA 987, Dawe J, at [11] stated:
The Court must consider the meaning of the word "impracticable" and phrase "exceptional circumstances". I rely upon the ordinary meaning of the words, as there is nothing in Regulation 19A which suggests that they have any particular meaning other than their usual meaning. I accept that "exceptional circumstances" requires the finding of something unusual or something in the nature of exception and that the word "impracticable" requires something which makes it unmanageable or unable to be carried out.
It was submitted that even if exceptional circumstances were found to exist in justifying a return order to be discharged, relief under the relevant regulation is discretionary. In the matter of Department of Children, Youth Justice and Multicultural Affairs & Golub [2021] FamCA 435, Bennett J said, at [25]–[26]:
25.In the event that I am satisfied that “exceptional circumstances exist that justify the return order being discharged” (which I am not), relief under r.19A is discretionary, as evidenced by the opening words of the regulation which are “The court may make an order discharging a return order, or a part of a return order …”. Accordingly, relief under r.19A is preconditioned on a finding that there are exceptional circumstances which justify the return order being discharged. However, even if such a finding is made, it remains for me to decide whether the discretion should be exercised in favour of discharging the return order, or part thereof.
26.The Regulations are silent as to the matters which are to inform the exercise of the court’s discretion to discharge part or all of a return order. In De L v Director General, NSW Department of Community Services & Anor (1995) FLC 92-706 the High Court considered r.16(3)(c) of the Regulations, which similarly confers a discretion on the court to refuse to return a child without specifying any matters to be taken into account. In De L, the plurality, comprising Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed that the court’s:
discretion is therefore unconfined except insofar as the subject matter and the scope and purpose of the Regulations enable it to be said that a particular consideration is extraneous. That subject matter is such that the welfare of the child is to be taken into consideration in exercising that discretion.
Lastly, the State Central Authority referred to Ferris & Midford [2020] FamCA 471 (“Ferris & Midford”), a case similar in facts where the mother brought proceedings in the Family Court of Australia after Hague Convention proceedings were heard in the United Kingdom and a return order to Australia was made. The mother sought orders from the Family Court of Australia that she be able to remain in the United Kingdom with the child, contrary to the return order made. There, the Court found it was in the best interests of the child to have an in person relationship with her father and thus for the mother to return to Australia with the child. One of the factors relevant to the return of the child was the inconsistency between the mother’s current application and the existing Hague Convention orders.
Counsel for the State Central Authority referred to the comments in the first judgment at [128] and [129]. It was submitted that the courts in Brazil cannot override an order for the return of a child, which was made pursuant to an international treaty to which both Australia and Brazil are signatories. International judicial comity exists as a sense of mutuality and respect of foreign judgments and if Brazil is not minded to adopt or enforce the outcome of the Hague Convention proceedings, then it was submitted that should not determine the approach of this Court in enforcing a return order.
It was also submitted that the mother, rather than appeal the order for return, has chosen to avail that decision by seeking orders in Brazil and then a discharge of a return order. Finally, it was submitted that no exceptional circumstances exist and the orders of the Brazilian Courts do not make the return of the child to Brazil impracticable to justify the discharge of the return order. The orders of the Brazilian Court permit the child to live in Australia, but do not prevent her return to Brazil. This Court should find that either the regulatory exceptions are not met, or if they are, the Court should not exercise its discretion in favour of discharging the return order.
DISCUSSION
I will address the relevant considerations, firstly the statutory context of reg 19A, that is Australia’s obligations under the 1980 Convention and secondly, whether exceptional circumstances exist to justify discharge of a return order.
Australia’s obligations under the 1980 Convention
Australia’s obligations under the 1980 Convention are referred to at paragraphs 11–15 of these reasons. A primary principle of Australia’s obligations, which can be gleaned from the authorities referred to, is “to reserve to the jurisdiction of the contracting state which is the place of habitual residence of the child, the determination of rights of custody and access” (Gleeson J, in DP at [3]).
The effect of the return order, as stated by Kirby J at [127] of DP is “to require that the authorities…in the country of the child’s habitual residence should resolve the merits of disputes over custody and, in that context, decide the best interests of the child”.
Subsequent to the return order, both the First Family Court and the Court of Appeal in Brazil have exercised jurisdiction according to the law of Brazil, to make orders for custody and access arrangements for the child. That is precisely what is contemplated when a return order is made, namely that the state of the child’s habitual residence should determine the child’s custody and access arrangements and not the requested state.
Counsel for the State Central Authority submitted that Brazil does not have extra territorial jurisdiction and its orders cannot override a return order made in this jurisdiction. I do not agree with that submission, as the whole point of the return proceedings was to establish the appropriate forum to decide issues of the child’s custody and access, which in this case, was determined to be the country of the child’s habitual residence at the relevant time, Brazil.
In relation to the submissions about inconsistency between the orders of Brazil and the return order, the facts of Ferris & Midford can be distinguished from this case. In this case, the courts of the state of the child’s habitual residence have already determined interim rights of custody and access, subsequent to a return order and prior to the application for discharge of that return order. The courts in Brazil, were well aware of the return order and the Reasons for Judgement, prior to determining, according to the relevant principles of Brazilian law that the child should be permitted to remain in Australia.
In Ferris & Midford, the application before the court was to determine the interim arrangements for the child in the country of the child’s habitual residence, subsequent to a return order made in the requested state, not whether the return order should be discharged by the court which made that order.
In circumstances where there are current orders of the requesting state authorising the child to remain in Australia, the enforcement of the return order is inconsistent with the purpose of the Convention, namely to ensure the rights of custody and access under the law of Brazil, are respected by Australia. I refer to and accept the submissions of Queen’s Counsel for the mother, referred to earlier in these reasons.
I am satisfied that the Australian obligations under the 1980 Convention have been satisfied upon the making of the return order in March 2021 which vested the requesting state with jurisdiction, which it has subsequently exercised. I am also satisfied that the discharge of the return order would be consistent with the policy and purpose of the Convention and agree with the relevant submissions of Queen’s Counsel for the mother.
Are there exceptional circumstances to justify the discharge of a return order?
Whilst the Brazilian courts have not yet undertaken a final trial to determine the rights of custody of the child, there has been an extensive history of litigation in Brazil subsequent to the return order. Specifically, there have been five orders pertaining to the child made in various courts in Brazil. The orders of 22 April 2021, 6 July 2021 and 14 September 2021 were made in the primary court (the First Family Court of Brazil) and the orders of 18 May 2021 and 24 August 2021 were made in the appellate court (the Court of Appeal). All of the orders were made with knowledge of the return order made by this Court in March 2021 and authorised the child to remain in Australia, at least on an interim basis.
The proceedings in the Court of Appeal were commenced by the father’s appeal against the orders of the primary court of 22 April 2021. In his application for reconsideration which was filed on 26 April 2021 and his appeal filed 4 May 2021, the father provided the Brazilian Court with a copy of the Reasons for Judgement of this Court, dated 17 March 2021. The order of the Court of Appeal on 18 May 2021 was a preliminary order prior to the substantive order made on 24 August 2021, which dismissed the father’s appeal.
The Brazilian Court of Appeal comprised a panel of three judges. In its Reasons for Judgment of 24 August 2021, which are stated as being final and unappealable, the court specifically considered and rejected the father’s submissions that the provisional shared custody orders authorising the child to remain in Australia should be reversed because the order was contrary to the return order. The Reasons for Judgment are comprehensive and replete with reference to and discussion of best interests’ considerations.
Queen’s Counsel for the mother submitted that the interpretation of the orders of the Brazilian courts made subsequent to the return order differed from the characterisation of the orders, as stated at [87] of the Reasons for Judgment. That is so because of the reasons of the primary court of 22 May 2021 and the Court of Appeal demonstrate there has been a considered judicial determination of the best interests of the child, rather than a declaratory order, which was the nature of the order prior to the return proceedings. I agree with that submission and in particular because of the statements of the Judge EE of the Court of Appeal, in his reasons of 18 May 2021 that “there is no justification for a sudden change in the child’s routine, without first carrying out a more in-depth analysis of the case, in order to preserve the child’s best interests” and the comprehensive reasons of the Court of Appeal dated 24 August 2021. The reasons of the primary court of 22 April 2021 also refer to best interests’ considerations.
Queen’s Counsel for the mother conceded that the orders of the primary court in Brazil were interlocutory and that a final decision into the child’s living arrangements may not be heard for some time.
It was submitted on behalf of the mother, in the absence of new facts brought before the Brazilian Courts and taking into account the comments of Judge AA and Judge EE, it appears likely that the child will be permitted to remain in Australia, through temporary renewals of the 22 April 2021 orders until the final trial is heard and determined. I accept that submission, particularly in the context of the comments of the court in its reasons of 18 May 2021 and 24 August 2021 and because the orders of 22 April 2021 have been consistently extended. The final two paragraphs of the reasons of the Court of Appeal of 24 August 2021 refer to the requirement for further evidentiary material to assess what is in the best interests of the child and that it is in the child’s best interests and prudent for the existing arrangements for the child to remain and be observed by the parties.
In that regard, there was some confusion between counsel about the interpretation of the orders of 14 September 2021 and the period of extension of the orders of 22 April 2021. The date to which the orders have been extended was not ultimately able to be resolved and was not pursued as a specific impediment to discharge of the return order.
The orders of the courts in Brazil made subsequent to the return order are not declaratory in nature, as was the order made prior to the return order. The courts in Brazil have comprehensively considered the best interests of the child and have provided clear and cogent reasons for the orders so made. In my view, the fact that the order appealed from was interlocutory, does not detract from the characterisation of the Brazilian proceedings as exceptional. I am also confident, having considered the reasons of the appeal court of 18 May 2021 and 24 August 2021 that it is highly likely the orders for the current arrangements for the child will remain for the foreseeable future, and certainly until appropriate social science investigations have been concluded and further relevant evidence has been obtained.
As referred to earlier in these reasons, the High Court of Australia in Baker v The Queen defined ‘exceptional’ as meaning “out of ordinary course, or unusual, or special, or uncommon” and therefore cannot be a circumstance that is “regularly, or routinely, or normally encountered”.
In terms of the relevant regulatory consideration, I am satisfied that the consideration of the child’s living arrangements in multiple proceedings in Brazil, and in particular in the Court of Appeal, where extensive reasons have been provided, the court has had the benefit of the Reasons for Judgment of this Court and the knowledge of the return order made in March 2021, constitute exceptional circumstances for the purposes of the regulations. The repeated extension of the orders by the courts in Brazil and the consideration of the orders on two occasions by an appellate court cannot possibly be described as regularly, or routinely, or normally encountered.
I have had regard to the definition of exceptional applied in Baker v The Queen and subsequent authorities referred to in these reasons. From my perspective, it is highly unusual that after a return order has been made, that a court in a requesting state would sanction the child remaining in the state to which she was wrongfully removed. Not only has that occurred in this matter, but the decision permitting that to occur has been subject to two decisions of an appellate court, both of which have provided reasons based on the child’s best interests. In particular, the reasons of the three bench appellate court of 24 August 2021, which are annexure C-01 to the affidavit of Mr C filed 21 October 2021 are comprehensive and were unanimous in dismissing the father’s appeal. The father’s submissions that the orders of the Brazilian primary court of 22 April 2021 were inconsistent with the return order was rejected by the court, which found that the primary judge’s ruling for the child to continue to reside in Australia was to remain in effect. The fact that the primary judge’s orders have been upheld on appellate review is exceptional of itself. Furthermore, the absence of reported cases where a requesting state has sanctioned the presence of the subject child in the requested state, subsequent to a return order, carries significant weight in characterising the circumstances as exceptional.
The matters referred to in the preceding paragraphs lead to the inescapable conclusion that the set of circumstances in this case are out of the ordinary course, unusual, special and uncommon and that exceptional circumstances exist for the purposes of reg 19A(2)(c).
Should the discretion to discharge the return order be exercised?
Having found that exceptional circumstances exist, I will now address whether the discretion should be exercised to discharge the return order.
In assessing what matters to take into account in the exercise of discretion, Bennett J in Sangster (No. 2), at [17]–[18] said:
17.Apart from requiring that the circumstances rise to the description of “exceptional” the Regulations are silent as to the nature of the circumstances which may qualify under r.19A. It is a similar lack of specificity as exists in relation to matters which are to inform the exercise of the discretion to refuse return which arises when one or more of the five r.16 exceptions to return has been made out. I propose to treat r.19A(2)(c) in the same way. I adopt, with respect, the comments made by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in De L v Director-General, NSW Department of Community Services [1996] 187 CLR 640 where having regard to an exception to return having been made out, their Honours observed:
The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]’ enable it to be said that a particular consideration is extraneous [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.
18.Accordingly, whilst the magnitude or depth of the circumstances must be fairly characterised as “exceptional” in relation to the case, the breadth of circumstances to which the court may have regard in the exercise of its discretion under r.19A(2)(c) is unconfined except insofar as they may be extraneous. I accept that under r19A(2)(c) it is appropriate to have regard to the best interests of the particular child(ren) as well as events or matters arising since the wrongful removal and after the decision to return.
In Sangster (No. 2), the court exercised its discretion under reg 19A(2)(c) to discharge return orders. The factors relevant to the exercise of discretion included the best interests of the child, the events subsequent to the making of the return order, whether Australia has fulfilled its obligations under the Convention, the length of time the child had been present in Australia and whether a discharge of the return order would be consistent with the policy and purpose of the convention. I will address the relevant considerations.
Firstly, the orders of Brazil, expressly authorising the child to remain in Australia and in particular both the reasons of the Court of Appeal in the judgements of 18 May 2021 and 24 August 2021 refer to best interests considerations. The reasons include statements that allowing the child to continue her routines and daily life in Australia with the mother is in her best interests and that further social science investigations should be carried out to determine ultimately what is in the child’s best interests.
Second, I am satisfied that Australia’s obligations under the 1980 Convention have been met and I refer to paragraphs 63–70 of these reasons. Brazil has been exercising jurisdiction since the return order and it is incumbent on Australia to concede to Brazil’s jurisdiction and determinations. The outcome of the forum dispute vested Brazil with jurisdiction over the matter and accords with international comity.
Third, the child has been present in Australia since April 2019. The Brazilian Courts have taken into account the child’s integration into life in Australia and ordered, on an interim basis, that the status quo be maintained rather than disrupting the child’s routine.
Fourth, having regard to the comments of Kirby J in DP, the objective of the Convention is normally served by returning the child to the place of their habitual residence as at the date of their wrongful retention, but the more specific purpose of making return orders pursuant to the Convention is to facilitate the exercise of jurisdiction to determine parenting matters by the State in which the child was habitually resident immediately prior to retention. I am satisfied a return order would be consistent with the policy and purpose of the Convention.
In conclusion, having regard to all of the factors relevant to the exercise of my discretion, I have determined it appropriate to exercise my discretion and make an order for the discharge of the return order.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 16 December 2021
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