Secretary, Department of Family and Community Services & Magoulas

[2018] FamCAFC 165

FAMILY COURT OF AUSTRALIA

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & MAGOULAS [2018] FamCAFC 165

FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention – Application for return order made more than one year after the child was wrongfully removed/retained in Australia – Where child settled in Australia – Whether there is a residual discretion to make an order for return – Regulations 15 and 16 Family Law (Child Abduction Regulations) govern power to make order for return – Where return order can only be made as provided for in reg 16 – No residual discretion – Where court obliged to dismiss application – Appeal dismissed.

Acts Interpretation Act 1901 (Cth) s 15AB
Family Law Act 1975 (Cth) s 111B
Explanatory Statement, Family Law Amendment Regulations 2004 (No. 3) (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 1,2, 8, 14, 15, 16

Attorney-General’s Department and McGaffey [2015] FamCA 722
Cannon v Cannon [2005] 1 WLR 32; [2004] EWCA Civ 1330
De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640; [1996] HCA 5
Director General, Department of Community Services (Central Authority) v Apostolakis, S (1996) FLC 92-718; [1996] FamCA 57
Director General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785; [1997] FamCA 45
DP v Commonwealth Central Authority (2001) 206 CLR 401; [2001] HCA 39
RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47
Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144; [2011] UKSC 27
Secretary for Justice v H J [2007] 2 NZLR 289; [2006] NZSC 97

Secretary, Department of Family and Community Services & Mayer [2017] FamCA 48

Secretary, Commonwealth Attorney-General’s Department & Wolford [2014] FamCA 445
State Central Authority v Ayob, SB (1997) FLC 92-746
State Central Authority and CR (2005) FLC 93-243; [2005] FamCA 1050

APPELLANT: Secretary, Department of Family and Community Services

RESPONDENT: Mr Magoulas

INDEPENDENT CHILDREN’S LAWYER: Alan Blumberg

FILE NUMBER: SYC 8179 of 2017

APPEAL NUMBER: EA 43 of 2018

DATE DELIVERED: 28 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Alstergren DCJ, Ainslie-Wallace & Ryan JJ

HEARING DATE: 15 August 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 27  February 2018

LOWER COURT MNC: [2018] FamCA 102

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr M Barnett

SOLICITOR FOR THE APPELLANT: Legal Services, New South Wales Department of Family and Community Services

RESPONDENT FATHER: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Blumberg

Orders

1. The appeal be dismissed.

2. There be no order as to costs.

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 Department of Family and Community Services & Magoulas 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: EA 43 of 2018
File Number: SYC 8179 of 2017

Secretary, Department of Family and Community Services 

Appellant

And

Mr Magoulas

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Secretary, Department of Family and Community Services NSW (“the Central Authority”), being the responsible State Central Authority nominated by the Commonwealth Attorney-General under reg 8 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), commenced proceedings under those Regulations on 8 December 2017 for the return to Ukraine of B (“the child”) born in April 2009. The application was heard by Loughnan J on 30 January 2018 and dismissed on 27 February 2018. By Notice of Appeal filed on 26 March 2018, the Central Authority appeals from that order.

2. As the child remains in Australia, on application, a court exercising jurisdiction under Part VII of the Family Law Act 1975 (Cth) (“the Act”) could now decide whether the welfare of the child required the making of a summary order that he be returned to Ukraine. If it was determined that the welfare of the child did not require the making of such an order, questions of parental responsibility, residence and the like could be determined in Australia (De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 657-658).

3. The Regulations give effect to Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction (“the Child Abduction Convention”). The Child Abduction Convention and thus the Regulations provide a mechanism for the prompt return of wrongfully removed children between contracting states. In this manner rights of custody and access can be adjudicated in their place of habitual residence. However, it needs to be understood that there may be a return order with no expectation that there will be any judicial process in the country to which the child is returned in which any question about what is in the best interest of the child will be raised or addressed (DP v Commonwealth Central Authority (2001) 206 CLR 401 at 414 (“DP v Commonwealth Central Authority”)). The aim of the Child Abduction Convention thus being to serve the interests of all children by deterring their wrongful abduction or retention and restoring them to their place of habitual residence, but also to serve the interests of the individual child by making certain assumptions about what will be in that child’s best interests. These assumptions can be rebutted by the establishment of one or other of the defences contained in the Regulations (see Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144; Secretary, Commonwealth Attorney-General’s Department & Wolford [2014] FamCA 445).

Background

1. The child was born in Ukraine to Ms C (“the mother”) and Mr Magoulas (“the father”).  The mother, who is not a party to the proceedings, was born in Ukraine and is a Ukrainian citizen.  The primary judge was satisfied the child is a citizen of Ukraine as well as of other countries, including Australia.  The father was born in Australia and has Australian, Country N and Country O citizenship.  It is accepted that the father commenced living in Ukraine in 2005 and lived there more or less continually until late 2016.

2. It is not clear when the father and mother commenced living together, albeit they lived together in Ukraine and their relationship came to an end in late 2015/early 2016. 

3. The mother and father have another child, F who was born on July 2012.  The mother has a ward or foster child Ms E born on February 2000.   F and Ms E remain with the mother in Ukraine. 

4. In early 2016 the mother moved into a separate apartment. Tensions developed between the mother and the father about their children and on 17 May 2016 the father retained the child.  Attempts by the mother to recover the child, including with the assistance of police, were unsuccessful.

5. In the first week of September 2016, the father surreptitiously removed the child from Ukraine and, after travelling through Europe, they arrived in Australia on 2 November 2016.  Unaware of the child’s removal, in mid-September 2016 steps were taken by the mother to ensure that the child and F could not be removed from the country.  It would seem that her application was successful, but too late in relation to the child.  It should be mentioned at this juncture that in January 2017 the father returned to Ukraine and made an unsuccessful attempt to “abduct” F.  

6. In any event, upon discovering that the child had been removed, the mother approached police and other agencies in Ukraine in an effort to have action taken to recover the child. Whatever steps were taken were unproductive and thus on 20 September 2017 the mother requested that the Ukraine Central Authority apply to the Commonwealth Central Authority in Australia to secure the child’s return. She asserted that the child had been wrongly removed by the father from Ukraine to Australia and that by operation of the Regulations, a return order should be made.

7. It was common ground that the Child Abduction Convention applied to the child and the application for the child’s return was filed one year after the child’s removal to/retention in Australia. Although the father sought to establish that the mother consented to the child’s removal, the primary judge was satisfied she did not and the conditions for the child’s return were established. However, the father invoked reg 16(2) of the Regulations and sought to establish that the child was “settled” in his new environment. The primary judge found in favour of the father and determined that the effect of reg 16(2) was that he was obliged to dismiss the application for the child’s return.

8. Pivotal to the Central Authority’s appeal is the manner in which the primary judge applied reg 16(2). In broad terms it is contended that the judge erred in finding he had no residual discretion to order the return of the child and in not exercising that discretion. The preponderance of authorities decided at first instance accord with the contention that there is a residual discretion. This is the first occasion on which this issue has been determined on appeal.

9. There is no challenge to the finding that the child is settled in Australia.

10. The father resists the appeal and seeks to uphold the order.  An Independent Children’s Lawyer (“the ICL”) was appointed to represent the child’s interests at trial and on appeal.  It is the position of the ICL that the appeal should be dismissed.

Regulation 16

1. Before we discuss the application of reg 16, it needs to be understood that reg 16 has been amended on a number of occasions. The amendments made by the Family Law Amendment Regulations 2004 (No. 3) (Cth) (“the 2004 Regulations”) are particularly relevant. By Item 15 of the 2004 Regulations, the existing reg 16(1)(b) which addressed applications filed at least one year after the day on which the child was removed to or retained in Australia was redrafted and a new provision in relation to that issue was inserted at sub reg 16(2). Other significant amendments were also made, which means that the authorities which consider the operation of the Regulations in so far as they concern an application filed at least one year after removal/retention should be approached with some care.

2. Regulation 16 as in operation immediately prior to the commencement of the 2004 Regulations on 23 December 2004 is set out below:

   Obligations to make a return order

   (1)Subject to subregulations (2) and (3), on application under regulation 14, a court must make an order for the return of a child:

   (a)if the day on which the application was filed is less than 1 year after the day on which the child was removed to, or first retained in, Australia; or

   (b)if the day on which the application was filed is at least 1 year after the day on which the child was removed to, or first retained in, Australia unless the court is satisfied that the child is settled in his or her new environment.

   (2)A court must refuse to make an order under subregulation (1) if it is satisfied that:

   (a)the removal or retention of the child was not a removal or retention of the child within the meaning of these regulations; or

   (b)the child was not an habitual resident of a convention country immediately before his or her removal or retention; or

   (c)      the child had attained the age of 16; or

   (d)the child was removed to, or retained in, Australia from a country that, when the child was removed to, or first retained in Australia, was not a convention country; or

   (e)      the child is not in Australia.

   (3)A court may refuse to make an order under subregulation (1) if a person opposing return establishes that:

   (a)the person, institution or other body making application for return of a child under regulation 13:

   (i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

   (ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

   (b)there is a grave risk that the return of the child to the country in which he or she habitually resided immediately before the removal or retention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

   (c)the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child's views; or

   (d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

   (4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

   (5)The court to which an application for the return of a child is made is not precluded from making an order for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention only because a matter mentioned in subregulation (3) is established by a party opposing return.

3. Regulation 16 as it applies in this case is now set out:

   Obligations to make a return order

   (1)      If:

   (a)      an application for a return order for a child is made; and

   (b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and

   (c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);

   the court must, subject to subregulation (3), make the order.

   (1A)For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:

   (a)      the child was under 16; and

   (b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and

   (c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and

   (d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and

   (e)at the time of the child’s removal or retention, the person, institution or other body:

   (i)was actually exercising the rights of custody (either jointly or alone); or

   (ii)would have exercised those rights if the child had not been removed or retained.

   (2)      If:

   (a)      an application for a return order for a child is made; and

   (b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and

   (c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;

   the court must, subject to subregulation (3), make the order.

   (3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

   (a)      the person, institution or other body seeking the child’s return:

   (i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

   (ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

   (b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

   (c)      each of the following applies:

   (i)the child objects to being returned;

   (ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

   (iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

   (d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

   (4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

   (5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.

4. It is noteworthy that the revised reg 16 separated those provisions which apply when an application is filed within one year from those which apply when an application is filed more than one year after removal to/retention in Australia.  There is thus a specific sub-regulation (reg 16(2)) which deals with the more than one year scenario.  Otherwise regulation 16 as now in effect can be seen to operate as a cascading series of steps which operate by reference to subject matter and shifting onus. 

5. On a proper reading of reg 16, it follows that where in accordance with reg 16(2) it is established that the application had been filed more than one year after the child was wrongfully removed to/retained in Australia and has settled in his or her new environment, the circumstances contained in sub-regulation (3) do not apply. This is because, as reg 16(2)(c) makes plain, sub-regulation (3) and thus sub-regulation (5) only apply where the temporal pre-condition is met and the person opposing return has not established that the child is settled in his or her new environment. The effect of this is that neither the provisions which require the return of the child (reg 16(1)) nor those which permit an order for return (reg 16(5)) apply once the provisions contained in reg 16(2) have been established. Further there is nothing in reg 16 which signals that a court is obliged, or in the exercise of some residual discretion, may order the return of a child if reg 16(2) applies and the person opposing return establishes that the child is settled in his or her new environment.

The primary judge’s decision that there is no residual discretion

1. Having determined that reg 16(2) applied and that the person opposing return had established that the child is settled in his new environment the primary judge outlined the divergent views about the effect of these findings. The alternate views were expressed thus:

   65.There is a difference of judicial opinion as to the consequences of that finding.  On one view that is the end of the proceedings and the application of the Central Authority must be dismissed.  On the other hand there is a view that despite finding that subregulation 16(2) applies and that the child is settled in his new environment, there remains discretion in the Court to consider ordering that the child return.

1. The line of authority which supports the existence of a residual discretion to return was discussed in Attorney-General’s Department and McGaffey [2015] FamCA 722 (“McGaffey”) per Le Poer Trench J. Thus the primary judge incorporated into his reasons the historical overview undertaken in McGaffey.  At [66.13] (quoting from the case outline provided by the Central Authority), the following passages were extracted from McGaffey:

   119.I concur with the views of Bennett J and Kay J that the source of power behind the exercise the Court's discretion to order a return, if one exists, must be found within the Regulations rather than by recourse to the text of the Convention itself.  As I have previously outlined in Department of Family and Community Services & Raho [2013] FamCA 530 (“Raho”), it is the Regulations which govern and restrict the operation of the Convention under the Australian law.  Therefore, while there are various English authorities which support the view that a discretion does remain with the Court to order a return even where the child is settled in their new environment (see Cannon v Cannon [2004] EWCA CIV 1330, Re N (Minors)(Abduction) (1991) 1 FLR 413, 417; Re S (a minor)(Abduction) (1991) 2 FLR 1, 25 (UK)) this Court must determine the application before it pursuant to the Regulations and these authorities are of limited assistance.

   120.I diverge from Ayob’s case, SCA & CR and Hajjar, however, in relation to the findings therein that, in circumstances where application has been filed more than one year after the child’s removal and the child is now settled in his/her new environment, the Court retains no discretion to order a return pursuant to the Regulations.

   121.In Raho, I referred to the decision of his Honour Lindenmayer J in Director General, Department of Family, Youth and Community Care & Thorpe (1997) 141 FLR 44 (“Thorpe”) and specifically to the submissions made by the applicant in that case, set out at paragraph 3.32 of Thorpe as follows:

   77.This issue remains the subject of a [sic.] conflicting Australian authority, but is [sic.] submitted that there remains a discretion to order the return of the child.

   78.Moss J. in the case of Director-General, Department of Community Services -v- Apostolakis (1996) FLC 92-718, having found that in the circumstances of that case the children were settled in a new environment and [sic.] went on to state:-

   ‘28. The consequence of that finding is only that I am no longer bound to order the return of these children but rather I have a judicial discretion whether or not to do so, which must be exercised in the context of the policy of the Convention referred to above:  see in Re A [1992] FAM 106, per Lord Donaldson MR at 122...’ (My emphasis)

   79.However, in State Central Authority -v- Ayob (1997) FLC 92-746, Kay J stated when considering the same question:-

   ‘I digress for a moment to say that whilst there is some suggestion in some English cases that a finding of “settled in a new environment” still leaves a discretion in the Court to order the return of a child, I must respectively [sic.] disagree with those views.’ [His Honour then goes on to consider two English decisions, where the Convention itself is the law, which support a discretion to return the child even where it has been found to be settled in a new environment based upon the provisions of Article 18 of the Convention]  ‘In my view, if I concluded that this was a Hague child who had been wrongfully removed or retained, and that more than one year had passed prior to application being made, and I was satisfied that the child was settled in her environment, that would be the end of the matter under the Hague Convention and under the Regulations.’  (My emphasis)

   80.Whilst referring to the Regulations in the closing stages of the above quotation, His Honour does not analyse the specific wording of Regulation 16(1)(b).

   81.      Read as one continuous sentence, Regulation 16(1)(b) reads:-

   ‘Subject to sub-regulations (2) and (3); on application under regulation 14, a court must make an order for the return of the child:  if on [sic.] the day on which the application was filed is at least one year after the day on which the child was.. first retained in, Australia unless the Court is satisfied that the child is settled in his or her new environment’

   82.The word ‘unless’ is clearly meant to qualify the word ‘must’. It follows clearly and without ambiguity, that the plain meaning of the section is that the Court no longer must order the return of the child if it is satisfied the child is settled in its new environment.

   83.The power to make an order for the return of the child is found in Regulation 15(1), not Regulation 16 (quoted at paragraph 8 above).  That section empowers the Court ‘if the Court is satisfied it is desirable to do so’ to make orders of the type set out in Regulation 14 (which includes an order for the return of the child).

   84.Where the Court has found that a child is settled in his or her new environment, then it is clear that the mandatory requirement to order the return set out in Regulation 16(1) is inapplicable.  However, it does not take away the power of the Court to order the return of the child granted in Regulation 15 which is unfettered by any finding that the child is settled in Australia, although it is accepted it would remain a factor to be considered.

   85.In order for a finding of settlement in a new environment to end the matter, further words would need to have been added to Regulation 16(1)(b) to the effect that the Court must not order the return of the child when there is a finding that the child is settled in his or her new environment.

   86.Given that the wording of the Regulations is clear and unambiguous, it is submitted it is not necessary to have to refer to the Convention to assist in its interpretation or meaning.

   122.Having accepted those submissions, Lindenmayer J found that the Court retained a discretion to order a return notwithstanding the finding that the child was settled in his new environment.

   123.I agree with the submissions outlined above, namely, that while a finding that a child has settled in his or her new environment means that there is no longer any obligation for the Court to make a return order pursuant to Regulation 16(2)(b), the Court may nevertheless choose to make the order in the exercise of its wide discretion pursuant to Regulation 15(1).

   (As per original)

2. At this point it is necessary to note that the regulations considered in Director General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785, Director General, Department of Community Services (Central Authority) v Apostolakis, S (1996) FLC 92-718 and State Central Authority v Ayob, SB (1997) FLC 92-746were different to those under consideration in McGaffey, yet as the passages quoted above identify, the opinions expressed in relation to those earlier regulations drove the decision in McGaffey without consideration being given to those differences.

3. In any event, the primary judge went onto discuss those cases which favoured the contrary “no discretion” view.  Reference was made to Secretary, Department of Family and Community Service & Mayer [2017] FamCA 48 per Stevenson J, and her Honour’s review of the decided cases. In deciding against the existence of an overarching discretion, Stevenson J expressly adopted State Central Authority and CR (2005) FLC 93-243 per Kay J (“State Central Authority and CR”), which the primary judge at [67] and Stevenson J at [63] recorded as follows:

   58.Once the year has passed before the application has been filed and the settled exception is established then, notwithstanding the doubts expressed by the Full Court in Director-General, Department of Families, Youth and Community Care v Moore [1999] FamCA 284; (1999) FLC 92-841;(1999) 24 Fam LR 475 at para 75 and the decision of the Court of Appeal in Cannon v Cannot [2004] EWCA CIV 1330 [sic], I remain firmly of the view that I expressed in State Central Authority v Ayob (1997) FLC 92-746; (1997) 21 Fam LR 567 that the Regulations provide no source of power to enable a court to make a return order.

   59.The Court of Appeal in Cannon expressly rejected my logic, finding that a residual power to return could be found within the provisions of Article 18 of the Convention which provides “The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”

   60.Article 18 has no equivalent provision in the Regulations. Its closest equivalent is Regulation 6 that provides:

   These regulations do not affect other powers of, or rights of application to, a court

   (1) These Regulations are not intended to prevent a person, an institution or another body that has rights of custody in relation to a child for the purposes of the Convention from applying to a court if the child is removed to, or retained in, Australia in breach of those rights.

   (2) These regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any other law in force in Australia for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention.

   61.This Regulation makes it clear that giving effect to the Convention is intended to supplement other remedies that might be available to order the return of a child and not replace those remedies. If the intention of the Regulations was to permit a discretion to return to exist even though the settled exception was established, then I would expect to find that power somewhere within Regulation 16(5). It is not surprising that it is absent given that the Regulations are seen as giving effect to the preamble and the objects of the Convention namely to secure the prompt return of children wrongfully removed to or retained in any Contracting State. As discussed at length in Ayob, the compromise reached between those who wanted a short time limit and those who wanted an open ended mandatory return was to opt for the settled exception.  If it is established that a prompt and summary return under the Convention is no longer seen as appropriate, the “best interests” considerations that accompany the exercise of local jurisdiction should be left to determine where the case should be heard and what orders should be made to provide for the child's welfare in all the circumstances.

   (Original emphasis)

4. The primary judge resolved the conflicted authorities in the following terms:

   68.Although the matter has yet to be conclusively addressed on appeal, I too interpret the provision to mean that if subregulation 16(2) applies and a child is found to be settled in the new environment, there is no remaining discretion to consider ordering return.  As to this aspect, the Abduction Regulations work to achieve the prompt return of abducted children to the forum of their habitual residence.  It makes sense that the Abduction Regulations would have no work to do where prompt return is no longer achievable and the multifarious structures of a child’s life, from which much of the relevant evidence must come about their current circumstances, are increasingly located in another forum, that of the place of the current location of the child.  In my view the summary nature of proceedings under the Abduction Regulations and the presumption in favour of return is explained by the aim of speedily restoring a child to his or her habitual residence.  I do not understand how those same summary procedures can be fairly applied to a different enquiry.  If not that summary procedure and the presumptive enquiry described in regulation 16, what procedure and enquiry should apply? Perhaps the answer is, a forum dispute outside the framework of the Abduction Regulations or a hearing on the merits about the best interests of the child.

   (Footnotes omitted)

Do the Regulations contain a residual power to make a return order? (Ground 1)

1. Section 111B of the Act provides that the Regulations may include such provisions as are necessary or convenient to enable the performance of the obligations of Australia under the Child Abduction Convention. The purpose of the Regulation is to give effect to s 111B (reg 1A). Regulation 1A(2)(a) also provides that the Regulations are to be construed in accordance with the Child Abduction Convention (which by reg 2 is incorporated into the Regulations as Schedule 1 thereto) and otherwise as set out reg 1A(2)(b) and (c). That said, it is the Regulations that govern the disposition of these matters, not the Child Abduction Convention (DP v Commonwealth Central Authority at 417).

2. If the Commonwealth Central Authority receives a request in accordance with reg 13 and it is satisfied it is in accordance with the Child Abduction Convention and the Regulations, it must take action to secure the return of the child. Relevant to this case, action includes applying for an order under Part 3 which is where the provisions in relation to court applications (other than access applications) are located. As to Part 3, reg 14 (and 14A) set out what applications can be made and deal with the filing process. The two other pivotal provisions are regulations 15 and 16.

3. Because reg 15 is said to be the source of any residual power, it is helpful for it to be set out now.  

4. Regulation 15 in operation at the time of DP v Commonwealth Central Authority was as follows:

   Orders

   (1)   If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:

   (a)    make an order of a kind mentioned in that regulation; and

   (b)    make any other order that the court considers to be appropriate to give effect to the Convention; and

   (c)    include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.

   (2)   A court must, so far as practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows.

   (3)   If a court is satisfied that there is an appreciable possibility or a threat that a child will be removed from Australia, the court may order the delivery of the passport of the child, and of any other relevant person, to the responsible Central Authority, a member of the Australian Federal Police, or such other person as the court considers appropriate, on such conditions as the court considers to be appropriate to give effect to the Convention.

   (4)   If an application made under regulation 14 is not determined by a court within the period of 42 days commencing on the day on which the application is made:

   (a)   the responsible Central Authority who made the application may request the Registrar of the court to state in writing the reasons for the application not having been determined within that period; and

   (b)    as soon as practicable after a request is made, the Registrar must give the statement to the responsible Central Authority.

5. Regulation 15 as currently in effect reads as follows:

   Orders

   (1)   If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:

   (a)    make an order of a kind mentioned in that regulation; and

   (b)   make any other order that the court considers to be appropriate to give effect to the Convention; and

   (c)    include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.

   (2)  A court must, so far as practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows.

   (4)   If an application made under regulation 14 is not determined by a court within the period of 42 days commencing on the day on which the application is filed:

   (a)    the responsible Central Authority or Article 3 applicant who made the application may ask the Registrar of the court to state in writing the reasons for the application not having been determined within that period; and

   (b)    as soon as practicable after being asked, the Registrar must give the statement to the responsible Central Authority or Article 3 applicant.

6. Notwithstanding the differences between reg 15 as it stood at the time of DP v Commonwealth Central Authority and as currently in force, reg 15(1) is in identical terms and as this is said to be the source of the residual discretion, for present purposes the other differences are immaterial.

7. The power to make orders for return and the relationship between regulations 15 and 16 were discussed in DP v Commonwealth Central Authority at 413 per Gaudron, Gummow and Hayne JJ, who said:

   Regulations 15 and 16 govern the making of orders for return.  Regulation 15(1) empowers the court to make certain orders, including an order for return, “[i]f … satisfied that it is desirable to do so”.  Regulation 16 makes further important provisions governing that apparently general discretion.

   (Emphasis added)

8. The statement that regulations 15 and 16 govern the making of return orders could not be more emphatic.  By its omission it is clear that reg 14 does not.  As to reg 16, the plurality explained that it deals with the circumstances in which the court must make an order for return (the then operative regs 16(1) and (2)) and those in which the court may make an order for return (the then reg 16(3)).  The operative reg 16 discussed in DP v Commonwealth Central Authority is that set out at [15] above. Notwithstanding the subsequent changes made to reg 16, the current reg 16 operates in the same fashion; that is it distinguishes between the circumstances in which the Court must and may make an order for return.  Neither iteration of reg 16 contains a statement that even when the threshold conditions for return have been established there are circumstances when the court must not make a return order. 

9. Importantly for this discussion and has already been mentioned the operative reg 15(1) in that case is the same as in this case and both refer to reg 14. Again affording the provisions their ordinary meaning, it is clear that the reference to reg 14 is to identify that the power conferred by reg 15 is exercised in relation to an application made under reg 14 and nothing more.  This is why the emphatic statement as to the provisions which govern the making of return orders makes no mention of reg 14.  No support can be found in DP v Commonwealth Central Authority for the proposition propounded by the Central Authority in this case that the combined effect of regulations 14 and 15 is to provide the Court with power to return a child separate to the obligation to return as set out in reg 16. This means that in relation to whether or not an order for return should be made, the power contained in reg 15(1) may only be exercised in the circumstances provided for in reg 16. Put in the negative, it cannot be used unless permitted by reg 16. It follows that the failure of reg 16 to state that a child must not be returned in any given circumstance is irrelevant to the construction of reg 16(2) and the existence of any residual power.

10. Otherwise, we agree with Kay J in State Central Authority and CR that it is significant that the Regulations do not contain a provision the equivalent to Article 18 of the Child Abduction Convention. And that because the decision of the United Kingdom Court of Appeal in Cannon v Cannon [2005] 1 WLR 32 in favour of a residual discretion to make a return order is predicated on that Article providing an additional source of power, that case has nothing to contribute to the resolution of this issue in Australia. Similarly, although it has been decided in New Zealand that the court retains a discretion to return a child when the application is filed after one year and the child has settled, this outcome reflects the interpretation applied to the domestic legislation implementing the Child Abduction Convention (see Secretary for Justice v H J [2007] 2 NZLR 289) and has nothing to contribute to the interpretation of the Regulations.

1. The conclusion we have reached that there is no residual discretion is consistent with the Explanatory Statement to the 2004 Amendment Regulations:

   Subregulation 16(2)

   Item 15 redrafts the former subregulation 16(1)(b) and inserts it as a new subregulation 16(2) that provides that a court must refuse to make an order for the return of a child if the application for such order was made more than 1 year from the day on which the child was first removed to, or retained in, Australia and a person opposing the return establishes that the child is settled in his or her new environment. This also makes it clear that if a person does not establish that a child is settled in its new environment, that person may rely on one of the exceptions to return in subregulation 16(3). If one of the exceptions is established, the court has a discretion whether or not to order the return of the child.

2. It is well-settled that regard may be had to an explanatory memorandum or statement to confirm the meaning of a provision (Acts Interpretation Act 1901 (Cth) s 15AB), which in this case it does.

3. As Ground 1 has not been established, there is no utility in the challenge concerning the failure of the primary judge to exercise a discretion to order the return of the child which he did not have. 

Conclusion and Costs

1. As error has not been established the appeal will be dismissed.

2. It is agreed that there be no order as to costs, including in favour of the ICL who has been successful in his opposition to the appeal.  This concession by the ICL was sensible given that the manner in which he undertook this important role was most disappointing.  In RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at 321 the plurality explained the role of an ICL in cases such as this “is to ensure…that the court is properly assisted and informed in the discharge of its tasks which are defined by the Regulations read with s 111B.” On our review of the trial transcript, this did not occur at trial nor on appeal (albeit this did not in fact compromise the trial or appeal hearing). By way of example, the summary of argument filed by the ICL in the appeal did little more than copy (without attribution) the summary of argument filed by the Central Authority. And then without further analysis did no more than proffer a different conclusion to various points made by the Central Authority. This evident lack of engagement with the issues and evidence in the appeal was even more apparent when the ICL was invited to make oral submissions. Nothing more need be said other than an order for costs in favour of the ICL would have been totally unwarranted.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 28 August 2018.

Associate: 

Date:  28 August 2018