FAMILY COURT OF AUSTRALIA
Secretary, NSW Department of Communities and Justice & Barnett [2021] FamCA 439
File number(s): SYC 998 of 2021 Judgment of: WILLIAMS J Date of judgment: 25 June 2021 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from Ireland – Respondent disputed the requisite jurisdictional facts for a wrongful removal of the child – Respondent asserted that the father did not have rights of custody which he was exercising immediately prior to the child’s removal and the removal of the child was not in breach of the father’s rights of custody – Consideration of rights of custody in the context of a declaration made pursuant to s 6F of the Guardianship of Infants Act 1964 (IR) in circumstances where the parents of the child were unmarried and the father obtained a declaration on 12 April 2021, subsequent to the child’s removal on 30 August 2020 – Where the declaration was subject to appeal – The applicant asserted res judicata and issue estoppel – Respondent raised issues of retrospectivity – Public policy – Denial of natural justice – Whether a return order would render the Irish appeal nugatory-abuse of process – Held removal of child was wrongful – Consideration of whether return order should be stayed pending outcome of Irish appeal – Return order made Legislation: Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 15(2), 16(1), 16(1A), 16(3), 29
Family Law Act 1975 (Cth) s 111B
Guardianship of Infants Act 1964 (IR)
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Benefit Strategies Group Inc v Prada (2007) 211 FLR 113
De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640
Director-General, Department of Communities, Child Safety and Disability Services & Pelt [2012] FamCA 343
H.I. v M.G. (Child Abduction: Wrongful Removal) [2000] 1 I.R. 110
J. McB v L.E [2010] IEHC 123
L.C. v K.C. [2019] IEHC 513
Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619
Reid & Lynch [2010] FamCAFC 184
Rogers v R (1994) 181 CLR 254
Stern v National Australia Bank [1999] FCA 1421
Taylor v Ansett Transport Industries (1987) 72 ALR 188
Walton v Gardiner (1993) 177 CLR 378
George Spencer Bower and Justice Kenneth R Handley, Res Judicata (LexisNexis, 4th ed, 2009)
Martin Davies et al, Nygh’s Conflict of Laws in Australia, (LexisNexis Butterworths, 10th ed, 2020)
Number of paragraphs: 155 Date of hearing: 31 May 2021 Place: Melbourne Counsel for the Applicant: Dr M. Barnett Solicitor for the Applicant: Department of Communities & Justice Counsel for the Respondent: Mr I. Coleman SC Solicitor for the Respondent: Hague Convention Legal Practice ORDERS
SYC 998 of 2021 BETWEEN: SECRETARY, NSW DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND: MS BARNETT
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
25 JUNE 2021
THE COURT ORDERS THAT:
1.The child, Z born … 2019 (“the child”) be returned to Ireland pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
2.The respondent be at liberty to accompany the child to Ireland.
3.The Australian Central Authority notify the Irish Central Authority of the mother’s date of departure.
4.Paragraph 5 of the orders made 19 February 2021 is hereby discharged and the respondent or her nominee authorised in writing is permitted to collect the child’s and the mother’s passport immediately upon receipt of a sealed copy of this order.
5.Pending the child’s departure from Australia for return to Ireland, the respondent continued to be restrained and an injunction issue, restraining her from causing or permitting or suffering the child:
(a)to be removed from the Commonwealth of Australia and in this regard all offices of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b)to apply for any further or other passport or passports for the child;
(c)to be removed from the state of New South Wales;
(d)to reside other than at her present residential address or any other residence, at which the applicant has agreed the said child may reside.
6.Paragraph 5 of these orders remain in force, until a letter from the applicant is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to Ireland AND IT IS REQUESTED that the Australian Federal Police remove the name of the child Z born … 2019 from the Airport Watch List upon presentation for boarding the nominated flight to Ireland on the date nominated for the said travel.
7.A sealed copy of these orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
8.The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
9.Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
10.Otherwise the Application of the Department of Communities and Justice 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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barnett 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 Secretary, NSW Department of Communities and Justice (the State Central Authority) filed on 16 February 2021 seeking the return to Ireland of the child, Z born in 2019, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 ("the Regulations").
The respondent, Ms Barnett is the mother of the child. The requesting parent, Mr B who lives in Ireland, is the father of the child.
The relevant regulations are made pursuant to s 111B of the Family Law Act 1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal of a child from her country of habitual residence. Both Australia and Ireland are signatories to the Convention.
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child to her country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child. The mother did not rely upon any of the regulatory exceptions.
The Regulations provide as follows:
Reg 16 Obligation 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 sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (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 sub-regulation (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 sub-regulation (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 sub-regulation (3) is established by a person opposing return.
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 (“De L”), the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this matter submissions were made by both Counsel and there was no requirement for cross-examination for reasons which will become apparent.
The State Central Authority asserts that the child has been wrongfully removed from Ireland, in accordance with regs 16(1) and (1A), on the following basis:
(a)the application was made within one year of the child’s removal;
(b)the child is under the age of 16;
(c)the child was habitually resident in Ireland;
(d)the requesting parent, the father, has rights of custody in relation to the child which he was exercising immediately prior to the child’s removal; and
(e)the removal of the child was in breach of the father’s rights of custody.
The mother opposed the application of the State Central Authority for return of the child to Ireland. She disputed that the requesting parent, the father, had rights of custody under the law of the Republic of Ireland, being the country in which the child then habitually resided, immediately before the date of removal, 30 August 2020.
Onus of proof
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
The State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director-General, NSW Department of Community Services [2001] HCA 39. That is whether the father had rights of custody at the relevant date.
The mother submitted the State Central Authority was unable to discharge its onus pursuant to reg 16(1A)(d) or (e) and therefore Z’s removal from Ireland was not wrongful.
Preliminary Matters
The hearing was conducted electronically via Microsoft teams, due to the COVID-19 Pandemic.
An electronic hearing enabled all parties to participate in the proceedings.
I wish to express my appreciation to both Counsel for the professional and courteous manner in which the proceedings were conducted.
Evidence and Documents relied upon by the parties
The State Central Authority relied upon the following documents:
(f)Form 2 Family Law (Child Abduction Convention) Regulations Application filed 16 February 2021;
(g)affidavit of Ms L filed 19 May 2021
The respondent relied upon the following documents:
(a)Form 2A Response filed 5 May 2021;
(b)affidavit of Ms Barnett filed 3 May 2021;
(c)affidavit of Mr D filed 3 May 2021.
BACKGROUND
In 2007, the mother moved to Ireland from Australia and settled in City E. She married her first husband and lived with him for almost 7 years.
On 5 May 2013, the mother purchased an apartment at F Street, City E.
In May 2016, the parties met and commenced a relationship.
According to the father, the parties commenced living together between 2 and 6 May 2019 at the home of his mother, situated at G Street, Suburb H, City E. The father also asserts that all correspondence in respect of Z is addressed to the G Street property including correspondence from the Health Service Executive and a letter from the J Bank.
In 2019, Z was born. The mother asserts that she left hospital a few days after the birth and went to the G Street property.
In September 2019, the mother re-joined an International Sports Team and travelled to the European Championships in City M with the father and Z. The mother had previously represented and captained the team for eight years.
In October 2019, the mother was selected to compete in a tournament in Asia. She travelled to Asia with Z as she was still being breastfed. The maternal grandmother travelled from Australia to help look after Z whilst the mother was with the team and the father remained in Ireland to manage and run his business. The mother and Z were in Asia for approximately 13 days.
On 9 December 2019, the mother was granted Irish citizenship.
On 21 December 2019, the mother, father and Z flew to Australia for a holiday. The father returned to Ireland on 5 January 2020 and the mother and Z returned on 12 February 2020.
From 17 April 2020 until 30 April 2020, the mother temporarily stayed in Airbnb accommodation in Suburb H, which is located near the G Street property. The father asserts that during that time he spent extensive periods of time every day with the mother and Z at the business premises which averaged approximately 4-6 hours per day.
On 30 April 2020, the mother and Z returned to the G Street property.
In June 2020, the parties had an argument where the father asserts the mother threatened to take Z to Australia and that the father would never see her again. The father asserts that he did not believe the mother would be able to leave Ireland and enter Australia during that time due to COVID-19 travel restrictions.
Between 9 June 2020 and 24 July 2020, the mother and Z moved to an apartment complex, although during that time the parties and Z spent significant amounts of time together each day.
On 15 July 2020, the mother booked flights to Australia for herself and Z departing 16 August 2020. The father was unaware of the flights.
On 24 July 2020, the mother returned to the G Street property. The father asserts that the couple shared a bedroom and bathroom whereas the mother suggests that she moved into the property because she required assistance with Z as she had broken a small bone in her foot.
During July and August 2020, the parties attended counselling for approximately four weeks.
During July 2020, the mother postponed her flight to Australia to 23 August 2020, to enable her foot to heal.
On 23 August 2020, Emirates delayed her flight to Australia to 30 August 2020.
On 30 August 2020, the father asserts that the parties were intimate with each other, and enjoyed breakfast together prior to the father departing for work. He also asserts that arrangements were made to meet at lunchtime to go for a walk with Z and the dogs.
At 1:13PM on 30 August 2020, the mother contacted the father from the airport informing him that she and the child were flying to Australia.
On 4 September 2020, the father filed applications pursuant to s 6A and s 11 of the Irish Guardianship of Infants Act 1964 (IR) (“the Guardianship Act”).
On 15 October 2020, the father filed an application pursuant to s 6F of the Guardianship Act.
On 16 February 2021, the State Central Authority filed a Form 2 Application seeking the return of Z to Ireland.
ISSUES IN DISPUTE AND SUBMISSIONS OF THE PARTIES
It is helpful to set out the respective arguments of the parties, prior to any discussion of the respective merits of the submissions.
Counsel for the State Central Authority submitted:
(a)the central issue between the parties is whether or not the father had rights of custody at the time Z was removed from Ireland and if so, her removal from Ireland as at 30 August 2020 was wrongful, in accordance with the Convention;
(b)the father’s rights of custody pursuant to Irish law existed prior to 30 August 2020;
(c)section 6F of the Guardianship Act provides the ability of the court to declare something, but that does not mean that prior to the declaration the father did not have rights of custody;
(d)an articulation of rights that are currently in existence does not mean that such rights did not previously arise;
(e)the declaration of the Irish court made 12 April 2021 applies to the father’s rights as at 30 August 2020 because:
(i)the court has determined that the relevant cohabitation requirements of the father and the mother, as required by s 2(4A) of the Guardianship Act have been satisfied;
(ii)the determination must necessarily relate to the period of time prior to 30 August 2020, because the parties were not cohabiting subsequent to that date, and the subsequent period was not relevant to the issue of cohabitation;
(f)the rights of guardianship arose because the court was satisfied that the period of cohabitation, which must have occurred prior to 30 August 2020, was sufficient to satisfy the requirements of s 2(4A);
(g)the submission of the mother that the declaration made subsequent to 30 August 2020 did not render the removal of the child wrongful, unless there was a retrospective application, was not correct, as the rights arose prior to 30 August 2020;
(h)this court is bound by the decision of the Irish court, namely, the declaration made on 12 April 2021, which declared that the father is a guardian of the child by virtue of the circumstances set out in s 2(4A) and s 6B(3) of the Guardianship Act;
(i)because the issue of the father’s guardianship rights has already been determined by an Irish court, this court should not make a similar enquiry of the factual circumstances of the parties relationship;
(j)the principles of res judicata, issue estoppel and abuse of process would prevent this court embarking upon a similar factual enquiry.
Senior Counsel for the mother submitted:
(a)the earliest date upon which the father acquired rights of custody pursuant to the law of Ireland was 29 October 2020, when an interim order was made for joint legal guardianship of the child pursuant to s 6A of the Guardianship Act;
(b)the father’s rights of custody were not inchoate prior to the making of the interim order on 29 October 2020, pursuant to s 6A of the Guardianship Act;
(c)the declaration of the father’s rights of custody, pursuant to s 6F of the Guardianship Act; does not confer “rights of custody” on the father but declares such rights;
(d)if the court finds that the declaration of 12 April 2021 conferred “rights of custody”, the declaration can only have force and effect from the date it is made, as to do otherwise would result in a retrospective application of rights;
(e)the conferring of substantive rights to give effect to the declaration arises pursuant to the power conferred by s 6A of the Guardianship Act;
(f)there has been no explanation provided why the father did not seek an order pursuant to s 6A in the proceedings which resulted in the declaration of 12 April 2021;
(g)even if the court were inclined to rely upon the declaration of 12 April 2021, it would decline to do so, because:
(i)the absence of reasons for the declaration of 12 April 2021 would constitute a denial of natural justice or procedural fairness to the mother;
(ii)that would lead the court to reject the State Central Authority’s reliance on the foreign judgement as a matter of public policy.
Prior to any consideration of res judicata, issue estoppel and abuse of process, it is necessary to consider the effect of both Irish orders, namely the order made 29 October 2020 pursuant to s 6A of the Guardianship Act and the declaration made on 12 April 2021 pursuant to s 6F of the Guardianship Act.
If I determine that both or either of the orders have the effect of the father having rights of custody as at 30 August 2020, then it will be necessary to consider the arguments of the State Central Authority pertaining to res judicata, issue estoppel and abuse of process.
If I determine that neither order confers rights of custody on the father as at 30 August 2020, and are operative only from the respective dates of the orders, then the application of the State Central Authority must fail, as one of the requisite jurisdictional facts cannot be proven. Consideration of res judicata, issue estoppel and abuse of process would not be relevant.
The Irish Orders pursuant to section 6A of the Guardianship of Infants Act 1964
I will firstly consider the effect of the guardianship order made 29 October 2020.
Section 6A of the Guardianship Act enables a father who is not married to a child’s mother to apply to the court to be appointed a child’s guardian. Section 6A provides:
Power of court to appoint parent as guardian
6A. – (1) The court may, on an application to it by a person who, being a parent of the child, is not a guardian of the child, make an order appointing the person as guardian of the child.
(2) Without prejudice to other provisions of this Act, the appointment under this section of a guardian shall not, unless the court otherwise orders, affect the prior appointment (whether under this or any other enactment) of any other person as guardian of the child.
The chronology of the father’s District Court applications issued in Ireland, are referred to in the affidavit of Ms D SC, the respondent’s Irish Senior Counsel, filed 3 May 2021.
On 3 September 2020, the father sought ex parte leave to issue and serve the following two applications by WhatsApp and email:
(a)an application for guardianship pursuant to s 6A of the Guardianship Act;
(b)an application for the courts direction pursuant to s 11 of the Guardianship Act, namely custody.
On 29 October 2020, the father obtained an interim order in the District Court in the City E Metropolitan District, for guardianship of the child pursuant to s 6A of the Guardianship Act. That order is the subject of appeal.
In the context of whether an order pursuant to s 6A of the Guardianship Act operates retrospectively or prospectively, Senior Counsel for the mother referred me to a recent decision of the Irish High Court L.C. v K.C. [2019] IEHC 513 (“L.C. v K.C.”), which was importantly decided subsequent to the 2015 amendments to the Guardianship Act. Those amendments came into operation on 18 January 2016.
At paragraph [44] of L.C. v K.C. His Honour Mr Justice MacGrath stated:
[44] It seems clear that an order made under s 6A is prospective in operation and does not operate in a retrospective manner. There was no great argument about this on the hearing of this application.
Counsel for the State Central Authority did not pursue a submission that the orders pursuant to s 6A of the Guardianship Act conferred rights of custody on the father as at 30 August 2020.
Having regard to the statement of His Honour Mr Justice MacGrath and the submissions of Senior Counsel for the mother, I accept and find that:
(a)the father acquired rights of custody, pursuant to s 6A of the Guardianship of Infants Act 1964 (IR), because of the interim order of 29 October 2020, made by the District Court in the City E Metropolitan District, for the parties to have joint legal guardianship of the child as at that date;
(b)that order created the father’s rights of custody as at 29 October 2020 and did not create rights of custody as at or immediately prior to 30 August 2020.
If the order of 29 October 2020 was the only relevant order, I would have to conclude that the father did not have rights of custody as at 30 August 2020 and the State Central Authority would not be able to prove the requisite jurisdictional fact to enliven the regulations.
As the State Central Authority also seeks to rely on the declaration made pursuant to s 6F of the Guardianship Act on 12 April 2021, to establish that the father had rights of custody as at 30 August 2020, I will consider the effect of the declaration.
The Irish Orders pursuant section 6F of the Guardianship of Infants Act 1964
On 13 October 2020 the father issued a further application, seeking a Declaration of Guardianship pursuant to s 6F of the Guardianship Act. That application was served on the mother on 3 November 2020.
Section 6F enables an unmarried father of a child to apply to the court for a declaration that he is or is not a guardian of a child, provided the cohabitation requirements as set out in s 2(4A) of the Guardianship Act have been satisfied and the requirements as set out in s 6B(3) of the Guardianship Act have been satisfied.
Section 6F of the Guardianship Act provides:
A person specified in subsection (2) may apply to the court for a declaration under this section that a person named in the application is or is not a Guardian by virtue of the circumstances set out in section 2(4A) or 6B(3) of a child named in the application.
Section 2(1) of the Guardianship Act defines father as follows:
‘ father ’ includes a male adopter under an adoption order but subject to section 11(4), does not include the father of a child who has not married that child ’ s mother unless –
(a) an order under section 6A is in force in respect of that child,
(b) the circumstances set out in subsection (3) of this section apply,
(c) the circumstances set out in subsection (4) of this section apply,
(d) the circumstances set out in subsection (4A) of this section apply, or
(e) the father is a guardian of the child by virtue of section 6D
Section 2(4A) provides:
(4A)The circumstances referred to in paragraph (d) of the definition of ‘father’ in subsection (1) are that the father and mother of the child concerned –
(a) have not married each other, and
(b)have been cohabitants not less than 12 consecutive months occurring after the date on which this subsection comes into operation, which shall include a period, occurring at any time after the birth of the child, of not less than three consecutive months during which both the mother and father have lived with the child.
Section 6B(3) provides:
(3)The circumstances referred to in subsection (2)(b) are that the person and the mother of the child concerned have been cohabitants for not less than 12 consecutive months occurring after the date on which this subsection comes into operation, which shall include a period, occurring at any time after the birth of the child, of not less than three consecutive months during which both the mother and the person have lived with the child.
The father’s application seeking a Declaration of Guardianship pursuant to s 6F of the Guardianship Act, was eventually listed for hearing on 9 December 2020. The matter proceeded as a 6 day contested hearing, where both parents were represented by Counsel and were cross-examined. Written Submissions were also filed by the parents. The father’s written submissions for the purposes of the s 6F proceedings are annexure HC23 to the affidavit of Mr B, which is annexure “A” to the affidavit of Ms L filed 19 May 2021. The mother’s Written Submissions for the purposes of that hearing are annexure R-03 to mother’s affidavit sworn on 2 May 2021.
There were two substantive contested issues in those proceedings namely:
(a)whether the Irish court had jurisdiction to make a declaration pursuant to s 6F of the Guardianship Act; and
(b)whether the cohabitation requirements of the relevant legislation had been satisfied.
The mother asserted that the court did not have such jurisdiction as at the date of the proceedings, as the child was not habitually resident in Ireland, but rather Australia and therefore the court lacked the appropriate jurisdiction. She also contended that the parties had not cohabited as required by s 2(4A) of the Guardianship Act, which is that the parents of a child have been cohabitants for not less than 12 consecutive months, which shall include a period of not less than three consecutive months occurring at any time after the birth of the child, so that the father did not have a right to apply for a Declaration of Guardianship.
The father asserted that as at the relevant date the child was habitually resident in Ireland and that the parties had cohabitated for the requisite period.
The submissions of the mother in the Irish proceedings were unsuccessful and on 12 April 2021, a Judge of the Irish District Court, City E Metropolitan District, Her Honour Judge Walsh, made the following declaration:
THE COURT
being satisfied that notice of application here in has been duly served upon each guardian of the child concerned
having heard the evidence offered
BEING SATISFIED on the balance of probabilities that the said MR B, a person named in the application is a guardian by virtue of the circumstances set out in section 2(4A) and section 6B(3) of the said Act of the said child
HEREBY DECLARES THAT MR B, a person named in the application is a guardian of the said child by virtue the circumstances set out in section 2(4A) and section 6B(3) of the said Act.
A copy of the declaration is annexure “E” to the affidavit of Ms L filed 19 May 2021.
No written reasons for the declaration were provided by the court, nor was a transcript of the proceedings before this court. The father, at page 21 of his affidavit in reply to the mother’s affidavit, which is annexure A to the affidavit of Ms L, deposes to the necessity to apply for a copy of a transcript of the digital audio recording of the entire hearing and the decision of the court. That application has not been made, although the father deposes to his willingness to do so if required. On 13 April 2021, the mother filed a Notice of Appeal in relation to the declaration.
The State Central Authority submits that the father’s rights of custody pursuant to Irish law existed prior to 30 August 2020.
The submissions pertaining to res judicata, issue estoppel and abuse of process are predicated on the assumption that the declaration of 12 April 2021 had the effect of creating the father’s rights under s 6F of the Guardianship Act, as at 30 August 2020 and those rights are rights of custody, for the purposes of the regulations. If the declaration pertains to automatic rights of guardianship which existed as at 30 August 2020, which are not created by the declaration, but which are recognised by the declaration, then the State Central Authority submits that issue has been determined by the Irish proceedings.
In support of the proposition that the effect of the declaration made 12 April 2021 was that the father had “rights of custody” as at 30 August 2020, Counsel for the State Central Authority submitted, firstly, because the declaration refers to the court being satisfied that the circumstances set out in s 2(4A) and s 6B(3) which are the cohabitation requirements of the Guardianship Act, have been satisfied, the determination must have been based on the factual circumstances of the parents prior to 30 August 2020, as they did not cohabit after that date. It would be illogical to suggest that the court would have examined the circumstances of the parties, subsequent to that date, to establish the requisite cohabitation period.
Secondly, because s 6F of the Guardianship Act provides the ability of the court to make a declaration, it does not flow that prior to the declaration such rights did not exist. Reference was made to an article written by the former Chief Justice of the High Court: Justice Robert French, ‘Declarations – Homer Simpson’s remedy – is there anything they cannot do?’ [2007] Federal Judicial Scholarship, 24.
In support of the proposition in the preceding paragraph, Counsel for the State Central Authority relied upon a decision of the Irish Supreme Court, H.I. v M.G. (Child Abduction: Wrongful Removal) [2000] 1 I.R. 110 (“H.I. v M.G.”), which is referred to in the affidavit of Mr K, Senior Counsel, which is annexure B to the affidavit of Ms L.
At paragraph 51 of H.I. v M.G. McKechnie J said:
[51]. Even however within the existing structure, is it altogether accurate to say that a caring and devoted father has only, in respect of his child, a right to apply? Putting it in that way gives the impression that the court seised, is the creator of whatever rights the father might ultimately obtain on an application under the Act of 1964. That, in my view, is not correct. Any rights which a father may have are founded upon, and evolve and develop by reason of, his relationship with his child and, if it exists, with the child’s mother. Such rights are alive and present before any court hearing and do not merely spring into existence on the application date. In my view, what the court does is to declare such rights rather than even confirming them, much less creating them. It declares them essentially, or in substantial part, on evidence which is largely historical with of course a prospective and future element to govern an orderly and beneficial relationship into the future. Admittedly it is the declaration which presently renders such rights lawfully enforceable, but as a matter of fact their existence has been created prior to any court hearing. I therefore feel that a father fulfilling a parenting role of the type which I have described, should be recognised as having rights preferable to his child, even if such rights are contingent on a declaratory order. Whether such rights may also be described as ‘inchoate rights’ is a matter of choice and is largely inconsequential unless put in context.
Senior Counsel for the mother submitted that the declaration did not create rights or declared inchoate rights, prior to 12 April 2021, and the effect of any such order cannot be construed as to create rights of custody as at 30 August 2020, unless the rights which came into operation as at the date of the order and declaration are applied retrospectively.
Senior Counsel for the mother referred to paragraph 8 of his written submissions, which set out the asserted effect of the declaration which are:
(a)the legislative scheme created by the Irish statute does not by the making of a declaration pursuant to s 6B(3) (sic) confer “rights of custody” on the father, but simply declares such rights as in the nature of a declaratory judgement;
(b)the substantive rights to give effect to the declaration arises pursuant to the power conferred by s 6A of the statute.
Paragraph 8 of the written submissions also queries the lack of explanation why the father sought and obtained relief pursuant to s 6A on 29 October 2020, but did not do so, or if he did was unsuccessful, in the proceedings which resulted in the declaration of 12 April 2021.
During his oral submissions, Senior Counsel for the mother referred to the absence of reasons for the 12 April 2021 declaration and the difficulty of speculating about what was said or found by the court. Absent reasons, which could have been provided in a transcript, and which were not, it would not be possible to find that the Irish court had found that the father had established rights of custody as at 30 August 2020 on a proper interpretation of the law of Ireland. This Court, pursuant to reg 29, would be unable to make proper findings or draw inferences of jurisdictional facts as would be necessary to enliven the regulations.
Senior Counsel for the mother referred to the opinion of Mr K, Senior Counsel. Mr K’s opinion was obtained by the State Central Authority to address certain aspects of Irish law relevant to the dispute. Senior Counsel submitted in relation to that opinion:
(a)the Irish authority referred to at paragraph 21 of the opinion, H.I. v M.G., predated the January 2016 amendments to the Irish legislation, upon which the declaration was based and as submitted by Counsel for the State Central Authority, some degree of caution needs to be exercised when considering decisions of the courts in Ireland which predate January 2016;
(b)paragraph 24(iii) of the opinion does not assert that the effect of the declaration is to assert that it constituted a right of custody under the Convention pursuant to Irish law.
By way of observation, Mr K’s statement at paragraph 24(iii) was as follows:
(iii). Further, it is my Opinion for the reasons detailed above, that there is a real sustainable argument to be made that as of the 30th August, Mr B’s rights did amount to a right of custody within the Convention. Invocation of Article 15 of the Convention may provide a route to clarification.
Senior Counsel for the mother during his oral submissions referred to the decision of L.C. v K.C, which Ms D SC suggested supported the construction of the orders contended by the mother. Senior Counsel for the mother conceded that the decision did not provide support for the proposition advanced on behalf of his client, and that the decision turned more on the issue of procedural fairness, and variation of orders having been made in the absence of service of documents which were required to be served.
Reference was also made to the decision of Mac Menamin J in J. McB v L.E [2010] IEHC 123, at paragraphs [127]-[132], in the context of a discussion of absence of recognition for inchoate rights in Irish law.
In that case Mac Menamin J considered, in the context of Article 5 of the Convention on the Civil Aspects of International Child Abduction (“the Convention”), which refers to both “rights of custody” and “rights of access”, whether a potential right of veto, as opposed to an actual right of veto, amounted to a right of custody, for the purposes of Article 3 of the Convention. At paragraphs [130] and [131], His Honour refers to an English decision of Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 and in particular comments of Baroness Hale at [38] of that judgment, to the effect that an actual right of veto would amount to a right of custody, within the meaning of Article 5(a) of the Hague Convention however a parent’s potential right of veto would not amount to “rights of custody” for the purposes of the Convention. His Honour considered that the right of the unmarried father in that case was to go to court by way of application on the questions of guardianship or custody and relocation, which right had not been exercised. His Honour concluded that he was bound by authority and was unable to find that this Court should recognise, or give expression to inchoate rights on the facts of this case.
In L.C. v K.C., at [55] Justice MacGrath, summarised the issue between the parties in that case, namely whether the respondent, at the time the applicant left the jurisdiction with her son, had automatic rights of guardianship, or simply the right to apply for guardianship. Although that case was ultimately decided on the basis of lack of procedural fairness, His Honour refers to the legislative history of the amendments to the Guardianship Act.
At [31], His Honour summarises the law prior to the 2015 amendments as follows:
[31] Section 12 of the Act of 1987 amended s.6 of the Act of 1964 by inserting an additional section, s. 6A, which conferred upon the father who was not married to the child’s mother a right to apply for guardianship. Such father did not enjoy a defeasible right to be a guardian. In summary, therefore, the natural father of a child born out of wedlock did not have “automatic” rights to guardianship and in the absence of agreement was required to apply to court to be the child’s guardian.
In relation to the changes to the legislation brought about by the 2015 amendments, His Honour said at [32]:
[32] This position changed with the enactment of the Act of 2015. This Act conferred upon “cohabitants” automatic rights to guardianship in certain circumstances.
As stated in the previous paragraph, the effect of the January 2016 amendments, as stated by MacGrath J in L.C. v K.C. was to confer automatic rights to guardianship. The certain circumstances referred to by His Honour would of necessity be the of requirements of ss 2(4A) and 6B(3) of the Guardianship Act .
The point of the Irish proceedings, which is evident from the written submissions of each of the parties annexed to affidavits in these proceedings, was to both determine whether the child was habitually resident in Ireland and whether or not the cohabitation requirements of the legislation had been satisfied. I am able to infer from the declaration that the court was satisfied on the requisite standard of proof, as to both matters, thereby invoking, in the words of MacGrath J, automatic rights of guardianship.
Despite the submission that H.I. v M.G. was decided prior to the January 2016 amendments, and that care should be exercised in referring to such authorities, those amendments expanded or improved the rights and remedies available to unmarried fathers, and did not seek to reduce or abrogate those rights. I am therefore content to rely on the statements of McKechnie J in that regard. L.C. v K.C was decided in 2019, well post the January 2016 amendments.
As submitted by Counsel for the State Central Authority, the issue in the Irish proceedings focused on the factual situation of the parties to determine whether they were “cohabitants” for the requisite period of time, so that the father, would come within the definition of father in s 2(4A) of the Guardianship Act, and would therefore be entitled to apply for a Declaration of Guardianship pursuant to s 6F of the Act. That would of necessity involve an examination of the facts which existed for the relevant period prior to 30 August 2020, as the parties clearly did not live together subsequent to 30 August 2020 and any finding would have to be based on the factual events prior to 30 August 2020.
Senior Counsel for the mother submitted that the father’s omission to apply for an order pursuant to s 6A of the Guardianship Act, in the proceedings giving rise to the 12 April 2021 declaration and his failure to explain in these proceedings why he did so, was because the inference which could be drawn was that relief pursuant to s 6A was expressly avoided as it would not have been effective to create rights of custody and enliven the regulations.
In the context of the statements in both H.I. v M.G., J. McB v L.E and L.C. v K.C, and having considered the submissions of both Counsel, I am persuaded, on the balance of probabilities, and so find that the father’s rights of custody were in existence as at 30 August 2020, when the mother and child left the jurisdiction. In particular, the comments of MacGrath J in L.C. v K.C. pertaining to the legislative changes and the conferral of “automatic rights to guardianship” lend weight to my conclusion. To do otherwise, would also have the unintended effect of rendering the Convention ineffective, where it is sought to return to Ireland, a child whose parents are not married, when a requesting father has not obtained either an order pursuant to s 6A or a declaration pursuant to s 6F of the Act, prior to the child’s departure from Ireland, in circumstances when the Irish legislation was amended in January 2016.
I will now address whether the rights conferred by the declaration of 12 April 2021 are rights of custody within the definition of reg 4 of the Regulations.
Regulation 4 provides:
Meaning of rights of custody
(1)For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3) For the purposes of this regulation, rights of custody may arise:
(a) by operation of law; or
(b) by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.
Counsel for the State Central Authority submitted that the father has rights of custody by operation of the law in Ireland, which was confirmed by way of declaration to that effect by the Irish court on 12 April 2021.
At paragraph 8 of his advice, Mr K SC, refers to the statements of Ms D SC, the wife’s expert as to Irish law. At page 11 of her affidavit, Mr K SC considers that Ms D SC conflates whatever rights the father had under Irish law, as not constituting a “right of custody” under the Convention.
Mr K SC, rightly in my view, identifies that whether or not the rights the father had pursuant to Irish law, constitute rights of custody for the purpose of the Convention, is a matter to be determined by this Court, particularly so in circumstances where the Convention has been adopted by enabling domestic legislation. In any event, Mr K SC is of the view that as at the relevant dates, under Irish law, the father’s rights constitute “rights of custody” for the purpose of the convention.
Senior Counsel for the mother did not submit that if I found that the father’s rights of custody existed as at 30 August 2020, then such rights of custody did not fall within the definition of rights of custody, as set out in reg 4. I therefore accept and find that the rights conferred by the declaration of the Irish court on 12 April 2021, fall within the definition of “rights of custody” for the purposes of Regulation 4.
In conclusion, I am satisfied by virtue of the declaration of the Irish Court on 12 April 2021, that the father had rights of custody in relation to the child under the laws of Ireland, which was the child’s habitual residence immediately before the child’s removal to Australia and that those rights are “rights of custody” for the purposes of reg 4 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). Accordingly, I am also satisfied that the State Central Authority has discharged its onus of proof, to establish all requisite jurisdictional facts to establish that the removal of the child was wrongful.
In the context of my findings as to the effect of the declaration of 12 April 2021, I will now address the arguments of the State Central Authority relation to res judicata and issue estoppel.
Res judicata and issue estoppel
These concepts were recently considered by the High Court in an appeal from a decision of the Full Court of this Court in the decision of Clayton v Bant [2020] HCA 44 (“Clayton v Bant”), although in a different factual context.
At [34] of Clayton v Bant, Kiefel CJ, Bell and Gageler JJ made the following statements in relation to estoppel:
[34] Founded on the twin policies of ensuring finality in litigation (thereby promoting respect for and efficient use of courts as well as avoiding inconsistent judgments) and of ensuring fairness to litigants (by sparing them the stress and expense of duplicative proceedings), the focus of the common law doctrine of estoppel is on "substance rather than form". The doctrine looks not for absolute identity between the sources and incidents of rights asserted or capable of being asserted in consecutive proceedings. The doctrine looks rather for substantial correspondence between those rights. Enough for its operation is that the rights are of a substantially equivalent nature and cover substantially the same subject matter. A common law right to damages for negligent misstatement has been held to correspond to a statutory right to damages for misleading and deceptive conduct, for example, whereas a common law right to damages for personal injury has been held not to correspond to a common law right to damages for property damage arising from the same negligent conduct given that damage is a necessary element of a cause of action in negligence.
In Clayton v Bant, Gordon J made the following statements:
[50] The rendering of a final judgment in an adversarial proceeding has consequences. Those consequences may be recognised as one or more of res judicata, cause of action estoppel, issue estoppel, and Anshun estoppel. The principles to be applied are recorded in the reasons of four members of this Court in Tomlinson v Ramsey Food Processing Pty Ltd. This case calls for no reconsideration of those principles. Although the passage is long, it is as well to set it out fully. Their Honours first explained res judicata as follows:
"An exercise of judicial power ... involves 'as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons'. The rendering of a final judgment in that way 'quells' the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they 'merge' in that final judgment. That merger has long been treated in Australia as equating to 'res judicata' in the strict sense."
[51] Their Honours then addressed estoppel as a form of preclusion. They explained the common law doctrine and the three forms of estoppel recognised in Australia in these terms:
"Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. ... It operates ... as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.
Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding.
The first is sometimes referred to as 'cause of action estoppel'. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment.
The second form of estoppel is almost always now referred to as 'issue estoppel'. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a 'judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies' .
The third form of estoppel is now most often referred to as 'Anshun estoppel', although it is still sometimes referred to as the 'extended principle' in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a 'true estoppel' and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument." (emphasis added)
As has been said, these principles are not in dispute and are to be applied.
And at [52] said, in relation to foreign judgments:
[52] … Common to all forms of preclusion concerning a foreign judgement, it is necessary to show that the foreign judgement relied on: (a) was by a court of competent jurisdiction; (b) was final and conclusive; (c) was on the merits; (d) was between the same parties (or their privies); and (e) either quelled the same controversy (res judicata), determined the same cause of action (cause of action estoppel) or determined an issue that was raised, or that it would have been unreasonable not to have raised in the preceding (issue estoppel and Anshun estoppel).
Counsel for the State Central Authority, in her written submissions, referred to the definition of res judicata in George Spencer Bower and Justice Kenneth R Handley, Res Judicata (LexisNexis, 4th ed, 2009) at [1.01] as:
A res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judgment. A judgment in personam binds the parties and their privies, and because this is so basic it will generally be assumed in what follows. A judgement in rem is binding on all, party, privy or otherwise.
At [1.05] in the same text, res judicata estoppel may be either a cause of action estoppel or an issue estoppel, which is defined at [8.01] as follows:
A decision will create an issue estoppel if it determined an issue in a cause of action is an essential step in its reasoning. Issue estoppel applies to fundamental issues determined in an earlier proceeding which formed the basis of the judgment.
The submissions refer to Reid & Lynch [2010] FamCAFC 184, where res judicata estoppel was described by the Full Court of this Court.
In George Spencer Bower and Justice Kenneth R Handley, Res Judicata (LexisNexis, 4th ed, 2009) at [1.02] the elements of res judicata estoppel or cause of action estoppel are summarised as follows:
A party setting up a res judicata as an estoppel against his opponents claim or defence, or as the foundation of his own, must establish its constituent elements, namely that:
(i) the decision … was judicial in the relevant sense;
(ii) it was in fact pronounced;
(iii) the tribunal had jurisdiction over the parties and the subject matter;
(iv) the decision was final and on the merits;
(v) it determined a question raised in the later litigation; and
(vi)the parties are the same or their privies, or the earlier decision was in rem.
It was submitted that all of the above matters have been satisfied, as the decision of the District Court indicates that the judgment has been pronounced that the court had jurisdiction to hear the matter, it is a final decision on the merits and it determined the question raised in this litigation, namely does the father have rights of custody. Furthermore, it was contended that the decision is in rem, in that it is a declaration and purports to bind all the world rather than a determination in personam, which only binds the parties to the litigation. It was also submitted that the fact that the matter is subject to an appeal does not change the characterisation of the decision as final: (Taylor v Ansett Transport Industries Ltd (1987) 72 ALR 188).
Counsel for the State Central Authority contended that the court had a broader discretion to prevent an abuse of process even if the circumstances do not give rise to an estoppel and relied on the statements at [23] in Walton v Gardiner (1993) 177 CLR 378, where Mason CJ, Deane and Dawson JJ said:
[23] Proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
It was also contended that to allow the matter to be re-litigated would bring the administration of justice into disrepute. Not to permit parties to re-litigate a matter which has already been finally determined, is to ensure that there is no collateral attack. In Rogers v R (1994) 181 CLR 254, Deane and Gaudron JJ (with Mason CJ concurring) said at [10]:
[10] From earliest times, the principle embodied in the maxim res judicata pro veritate accipitur has been seen as necessary to protect against “the scandal of conflicting decisions”
The State Central Authority contended:
(a)the mother in these proceedings is attempting to re-litigate a matter that has been determined to finality and to seek a finding that the father is not a guardian of the child, contrary to the order made on 12 April 2021 would be an abuse of process;
(b)to allow the mother to run a case where the issue as to the father’s status as a guardian is put in issue would be contrary to the common law’s fundamental principle that there should be finality to litigation and that a party should not be troubled by multiple proceedings in respect of the same matter, and the public integrity of judgments must be maintained;
(c)should the court not accept the submissions of the State Central Authority pertaining to res judicata or abuse of process, then further submissions will need to be made regarding the redetermination of the father being a guardian of the child.
Senior Counsel for the mother submitted:
(a)res judicata issue estoppel does not arise;
(b)it would be logically difficult to assert that the orders of 12 April 2021 did not operate in rem, and did not take the point;
(c)whether pursuant to reg 29 of the Regulations, the common law rules of private international law or the principles of res judicata and issue estoppel, the court cannot make the finding of the jurisdictional fact with respect to “rights of custody” in circumstances where;
(i)the parties to the foreign proceedings are not the parties to the present proceedings;
(ii)the law governing the foreign proceedings is not identical with the law which governs the current proceedings;
(iii)no reasons for the decision of 29 October 2020 or 12 April 2021 have been published and put into evidence before the court;
(iv)as a consequence of no reasons having being published, or transcripts of evidence being before this court, the court is unable to discern what findings are primary fact or the inferences drawn from them were relied upon in support of either decision;
(v)the court is unable, pursuant to reg 29, to make findings or draw inferences of jurisdictional facts as would be necessary to enliven the regulations;
(vi)in the event the court did not dismiss the application of the State Central Authority, then as a matter of natural justice, having regard to the implications of the return of the child to Ireland, any order for return should not be made until the judgment of the Irish appeal court.
The submissions of Senior Counsel for the mother in this regard were not expansive. I do not accept the submissions of Senior Counsel referred to in the preceding paragraphs in particular because:
(a)the concession that the proceedings could be characterised as in rem, as opposed to in personam;
(b)whether or not the father had rights of custody as at 30 August 2020 would need to be determined by this court with reference to the laws of Ireland;
(c)the lack of published reasons does not compromise identification of the issues in dispute in the Irish proceedings, as those issues were readily identifiable from the written submissions of both parties;
(d)it is apparent in the terms of the declaration of 12 April 2021 that the court determined the disputed issues between the parties and was satisfied as to both jurisdiction and cohabitation;
(e)in my view, this court is able to draw inferences of jurisdictional facts, pursuant to reg 29 to enliven the jurisdictional facts, because of the findings made in this proceeding about the effect of the 12 April 2021 declaration.
Counsel for the State Central Authority submitted that an extant appeal has no bearing upon the finality of a judgment for the purposes of res judicata and issue estoppel. The Court was referred to Taylor v Ansett Transport Industries (1987) 72 ALR 188, as authority for the proposition.
Having regard to my findings as to the effect of the declaration made 12 April 2021, I agree with and accept the submissions of Counsel for the State Central Authority pertaining to res judicata and issue estoppel. I accept that all of the matters requisite, as referred to by Gordon J in Clayton v Bant in relation to a foreign judgment have been satisfied and this court should not seek to re-determine the same factual issues. To re-determine the issue of the father’s rights of custody would offend the fundamental principles of finality of litigation, that parties should not be troubled by multiple proceedings in respect of the same issues and that the public integrity of judgments should be maintained.
Additionally, there were a number of public policy arguments relied upon by Senior Counsel for the mother which included:
(a)it would be improper to retrospectively alter rights and liabilities which were lawfully acquired or incurred;
(b)the father’s omission to apply for an order pursuant to s 6A and failure to explain why;
(c)the failure to provide reasons would be a denial of natural justice;
(d)the Irish appeal would be rendered nugatory.
I will address each of the propositions.
Retrospectivity
The submissions of Senior Counsel for the mother pertaining to retrospective application of the declaration made on 12 April 2021, were predicated on the assertion that the father’s rights of custody came into existence on 12 April 2021 and therefore any application of those rights prior to that date would be a retrospective application of rights. Retrospective application of either the order of 29 October 2020 or 12 April 2021 would render the removal of the child on 30 August 2020, which he submitted was lawful at the time, unlawful and that to apply retrospectivity was contrary to long and established authority.
Senior Counsel for the mother submitted that to adopt the assertion by the State Central Authority that the father’s rights of custody arose prior to 30 August 2020, by virtue of a declaration made on 12 April 2021, would result in a situation that would be unjust, if not absurd because it would mean that a person could lawfully do something, which eight months later by would virtue of the declaration, becomes unlawful.
I accept that the order made on 29 October 2020 pursuant to s 6A of the Guardianship Act is operative only from the date of its making, and that to apply it as from 30 August 2020 would result in a retrospective application, which I agree, should not be permitted. However, in the context of my finding as to the existence of the father’s rights of custody as at 30 August 2020, and the declaration of 12 April 2021, there is no retrospective application of the declaration, which would give any substance to the submissions as to retrospective application.
The father’s failure to apply for a s 6A order and failure to explain
Senior Counsel for the mother submitted that the father’s omission to apply for an order pursuant to s 6A of the Act, in the proceedings giving rise to the 12 April 2021 declaration and his failure to explain in these proceedings why he did so, was because the inference which could be drawn was that relief pursuant to s 6A was expressly avoided as it would not have been effective to create rights of custody and enliven the Regulations.
In the context of my findings that the declaration of 12 April 2021 acknowledges the father’s rights of custody as at 30 August 2020, I am not persuaded that the argument of the inferences which can be drawn, have any particular relevance to the matters in issue. Should this have been of concern to the mother, she presumably would have been at liberty to raise such an issue in the Irish proceedings.
Failure to provide reasons would result in a denial of natural justice
I am not persuaded by the further submission of Senior Counsel for the mother, that if the court were inclined to rely upon the declaration of 12 April 2021, it would decline to do so as the absence of reasons would constitute a denial of natural justice or procedural fairness to the mother.
In his oral submissions, Senior Counsel for the mother conceded that the complaint about natural justice does not suggest that the mother was not duly served with process in the Irish proceedings nor that she was prevented from participating in the proceedings. The complaint is that:
(a)the court is being asked to enforce a judgment in circumstances, where there were oral reasons for the decision and those reasons are not available;
(b)the ramifications of doing so, are because the decision affects rights of custody it renders unlawful acts which were lawful at the time they were committed;
(c)as a matter of public policy the court should decline to give force and effect of the judgment in the terms urged by the State Central Authority.
As previously referred to, in the context of my findings as to the effect and application of the declaration on 12 April 2021, there is no retrospective application of the judgment of the Irish court of 12 April 2021, and therefore any public policy arguments about retrospectivity are not relevant.
It was also submitted that as a matter of public policy, the court may decline to enforce a foreign judgment. The court was referred to the principles discussed in Martin Davies et al, Nygh’s Conflict of Laws in Australia, (LexisNexis Butterworths, 10th ed, 2020) (“Nygh”), at paragraphs 40.75- 40.80, 40.82 and 40.88, although it was conceded that the circumstances of this case were nowhere near as colourful or overwhelmingly persuasive as those referred to in the text.
Paragraph 40.79 of Nygh states:
The trend of authority supports the proposition that the public policy grounds for refusal of enforcement should be narrowly confined…The offence against Australian public policy should be profound before refusal to enforce is warranted…Anything less comes close to a review of the merits of the foreign decision.
I do not accept that the lack of available reasons would be an offence to public policy of a high order, as in cases involving fundamental questions of moral and ethical policy, fairness of procedure and illegality, in accordance with the statements of Tamberlin J in Stern v National Australia Bank [1999] FCA 1421, whose decision was affirmed by the Full Court of the Federal Court. I therefore reject that submission.
In terms of denial of natural justice, paragraph 40.82 of Nygh, refers to the two requirements of natural justice, firstly that each party must have had the opportunity presenting his or her case before an impartial tribunal and secondly, each party must have been given due notice of the proceedings.
In the context of the concessions made by Senior Counsel for the mother, that the mother participated in the six-day hearing and her arguments pertaining to natural justice did not amount to a denial of procedural fairness, I do not understand the relevance of that submission.
Render the Irish appeal nugatory
Senior Counsel for the mother submitted that the court should not accept that the State Central Authority could establish that the father had rights of custody, within the meaning of the Regulations, as at 30 August 2020 and to do so would render an irreparable injustice upon the mother. To do so would also have the effect of rendering the outcome of the Irish appeal nugatory, as a return order would be made prior to the outcome of that appeal.
It was submitted that there were two options for the future of the litigation in this court, namely:
(a)defer any return order until the outcome of the Irish appeal which is listed to be heard in October, which is likely to be dispositive of the questions of rights of custody as at 30 August 2020;
(b)alternatively, the State Central Authority should persist with the contested facts between the requesting parent and the mother, with the court to make findings of fact and apply those findings to the law of Ireland.
I address the issue of adjournment of a return order until after the outcome of the Irish appeal later in these reasons. I have addressed the second submissions in the preceding paragraph in my discussion about the submissions of res judicata and issue estoppel.
I do not accept that a return order would render the Irish appeal nugatory. Notwithstanding an order for return, the mother would be at liberty to continue with the Irish appeal and if ultimately successful, would be able to determine the child’s country of residence.
Abuse of process
Both Counsel made submissions about abuse of process, although in strikingly difficult circumstances.
Counsel for the State Central Authority referred to abuse of process in the context of permitting the mother to re-litigate the issue of the father’s rights of custody vis-à-vis the child. The submissions are referred to earlier in these reasons.
Senior Counsel for the mother referred to the submissions of the mother which were made in the Irish District Court and which are annexed to the mother’s affidavit filed 3 May 2021. Paragraphs 8.1 to 8.5 of those submissions, refer to the interpretation of the expression “cohabitation for consecutive months” in both s 6B(3) and s 2(4A) of the Guardianship Act, as being controversial. In the absence of findings of facts and reasons for judgment, in the context of controversial legal issues, as referred to in those submissions, to accede to the submissions of the State Central Authority, would facilitate an abuse of process This would be so because:
(a)if a return order were made, the mother would have the fruits of success of a successful appeal rendered nugatory;
(b)the father will have achieved nothing except the collateral purpose of enlivening the Regulations and procuring an order for repatriation.
I have addressed these arguments in the context of rendering the appeal nugatory and whether a return order should be stayed pending the results of an appeal.
CONCLUSION
In conclusion, for the reasons set out in the preceding paragraphs, I have determined and so find:
(a)the declaration made 12 April 2021 in the Irish court refers to the father’s rights prior to 30 August 2020, the date of removal of the child from Ireland;
(b)the father’s rights as declared by the Irish court are rights of custody for the purpose of the relevant Regulations;
(c)the removal of the child from Ireland on 30 August 2020 was in breach of those rights of custody;
(d)at the time of removal, the father was exercising the rights of custody.
Accordingly, I am satisfied on the balance of probabilities, and find that the State Central Authority has proved all requisite jurisdictional facts and that the removal of the child from Ireland on 30 August 2020 was wrongful.
Should a return order be stayed pending the outcome of the Irish appeal?
It was submitted that if the court were not minded to dismiss the application of the State Central Authority, then the court should adjourn any return order pending the outcome of the appeal to the Irish courts. Benefit Strategies Group Inc v Prada (2007) 211 FLR 113 was cited as support for the proposition that where an Australian court gives judgment entirely on the basis of a foreign judgment and the foreign judgment is subsequently overturned and set aside, good reason exists to set aside the Australian judgment which relied on the foreign judgment.
If this court were not minded to do so, then a return order would require the return of the child to Ireland in circumstances where an appeal may set aside the order of 12 April 2021, particularly pertaining to the father’s rights of custody, which would preclude the State Central Authority from proving the jurisdictional facts required to enliven the regulations.
Counsel for the State Central Authority opposed any such application and submitted that the objects and principles of the Regulations require a prompt return, if such an order is to be made. To wait until the determination of an appeal, particularly in circumstances where there may be further rights of possible appeal thereafter, would make a mockery of any promptness to return.
Director-General, Department of Communities, Child Safety and Disability Services & Pelt [2012] FamCA 343 (“Pelt”) and in particular to the comments at [58] refers to delay of a return order, albeit in circumstances where no exception to return has been established.
The facts of that case involved two children from New Zealand who had been brought to Australia by their mother, with the agreement of the father following the Christchurch earthquake in June 2011. The agreement between the parties was that the children travelled from New Zealand in July 2011 and were to return to New Zealand by January 2012. The mother reneged on that agreement and retained the children in Australia.
The eventual dispute between the parties was whether the children should be returned to New Zealand forthwith or whether, as submitted by the mother, the return should be delayed for a couple of months, to enable the children to complete their schooling.
At paragraph [38] of Pelt, Kent J refers to the purpose of the convention, as explained by the majority of the High Court in De L, as follows:
[38] The purpose of the Convention was authoritatively explained by the majority of the High Court in De L v Director-General, New South Wales Dept of Community Services (1996) 187 CLR 640. In dealing with the preamble, the majority (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) stated:
The preamble to the Convention recites the firm conviction of the State parties “that the interests of children are of paramount importance in matters relating to their custody” and their desire (i) “to protect children internationally from the harmful effects of their wrongful removal or retention” and (ii) “to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” The objects of the Convention, as stated in Art 1 are:
(a)to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Thus, it may be said that the Convention is concerned with reserving to the jurisdiction of the habitual residence of the child in a Contracting State the determination of rights of custody and of access. This entails preparedness on the part of each Contracting State to exercise a degree of self-denial with respect to “its natural inclination to make its own assessment about the interests of children who are currently in its jurisdiction by investigating the facts of each individual case.”
If the court is satisfied that a removal or retention was wrongful, as I am so satisfied in this matter, reg 16(1) mandates a return order to be made unless one of the regulatory exceptions in reg 16(3) is made out, which would enliven a discretion to make a return order. In this matter there was no issue of a regulatory exception to return.
The mother is a dual Irish and Australian citizen, having fairly recently obtained Irish citizenship in December 2020. Furthermore she has lived in that country for many, many years. In the event the mother is successful in the Irish appeal, she may choose to return to Australia, and that would then be her prerogative. A return order would not prevent her prosecuting her appeal. The only adverse consequence would be a return of the child to Ireland, with a possible return if the mother were successful.
Apart from the fact that I have been informed that the Irish appeal is due to be heard in October 2021, there was no evidence or submissions about the timeframe for the ultimate finality of the Irish proceedings, including the estimated timeframe for a judgment of the appeal court or whether the matter might need to be remitted for rehearing and if so, that likely timeframe.
I will make orders providing for the return of the child to Ireland.
I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 25 June 2021
- AGLC
- Secretary, NSW Department of Communities and Justice & Barnett [2021] FamCA 439
- Case
- [2021] FamCA 439
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the father possessed rights of custody in Ireland that were being exercised immediately before the child's removal, and if so, whether the child's removal to Australia on 30 August 2020 was in breach of those rights. A key aspect of this determination involved considering a declaration made pursuant to s 6F of the Guardianship of Infants Act 1964 (IR) on 12 April 2021, which was subsequent to the child's removal and subject to appeal. The applicant also asserted the doctrines of res judicata and issue estoppel.
Williams J found that the declaration made by the Irish court on 12 April 2021 referred to the father's rights prior to the child's removal on 30 August 2020. His Honour held that these rights constituted rights of custody for the purposes of the Regulations, and that the child's removal was in breach of these rights, which the father was exercising at the time. Consequently, the court was satisfied that the requisite jurisdictional facts had been proven and that the removal was wrongful. The court rejected the argument that a return order should be stayed pending the outcome of the Irish appeal, noting that the objects of the Regulations require prompt return and that delaying such an order would undermine this principle.
The court ordered that the child be returned to Ireland pursuant to the Family Law (Child Abduction Convention) Regulations 1986. The respondent was granted liberty to accompany the child, and various orders were made concerning passports, the child's residence, and enforcement by the Australian Federal Police. The court also discharged a previous order and authorised the respondent to collect passports. Liberty was reserved to the parties to apply urgently regarding the implementation of these orders, while the remainder of the applicant's application was dismissed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The child, Z born … 2019 (“the child”) be returned to Ireland pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
2. The respondent be at liberty to accompany the child to Ireland.
3. The Australian Central Authority notify the Irish Central Authority of the mother’s date of departure.
4. Paragraph 5 of the orders made 19 February 2021 is hereby discharged and the respondent or her nominee authorised in writing is permitted to collect the child’s and the mother’s passport immediately upon receipt of a sealed copy of this order.
5. Pending the child’s departure from Australia for return to Ireland, the respondent continued to be restrained and an injunction issue, restraining her from causing or permitting or suffering the child:
(a) to be removed from the Commonwealth of Australia and in this regard all offices of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b) to apply for any further or other passport or passports for the child;
(c) to be removed from the state of New South Wales;
(d) to reside other than at her present residential address or any other residence, at which the applicant has agreed the said child may reside.
6. Paragraph 5 of these orders remain in force, until a letter from the applicant is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to Ireland AND IT IS REQUESTED that the Australian Federal Police remove the name of the child Z born … 2019 from the Airport Watch List upon presentation for boarding the nominated flight to Ireland on the date nominated for the said travel.
7. A sealed copy of these orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
8. The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
9. Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
10. Otherwise the Application of the Department of Communities and Justice be and is hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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