Sterling & Sterling
[2022] FedCFamC1A 3
•27 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sterling & Sterling [2022] FedCFamC1A 3
Appeal from: Sterling & Sterling [2021] FamCA 575 Appeal number(s): SOA 49 of 2021 File number(s): MLC 3187 of 2021 Judgment of: AUSTIN, BERMAN & HARPER JJ Date of judgment: 27 January 2022 Catchwords: FAMILY LAW – APPEAL – Practice and Procedure – Privilege – Where the father seeks leave to appeal from an order of the primary judge compelling the production and inspection of his lawyer’s file in antecedent Hague proceedings – Where the issue before the primary judge was an entirely factual question of the determination of the child’s place of habitual residence, which could not conceivably be materially influenced by any communication between the father and his lawyer – Where even if there was relevant material in the file, the breadth of the order made by the primary judge was erroneous – Leave to appeal granted – Appeal allowed – Orders of the primary judge set aside – Re-exercise of discretion – Mother’s application for the production and inspection of the father’s lawyer’s file is dismissed – Costs certificate granted to the father in relation to the appeal. Legislation: Family Law Act 1975 (Cth) Pts VII, XIIIAA, ss 69E, 69H, 111CC, 111CD, 111CF
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 17
Family Law (Child Protection Convention) Regulations 2003 (Cth)
1980 Hague Convention on the Civil Aspects of International Child Abduction
1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children
Cases cited: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Duckworth v Jamison (2014) 51 Fam LR 471; [2014] FamCA 308
LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9
Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
Zegna v Zegna (2015) 55 Fam LR 134; [2015] FamCA 340
Number of paragraphs: 42 Date of hearing: 11 November 2021 Place: Heard in Melbourne (via video link), delivered in Newcastle Counsel for the Appellant: Dr Smith Solicitor for the Appellant: Nicholes Family Lawyers The Respondent: Did not participate ORDERS
SOA 49 of 2021
MLC 3187 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR STERLING
Appellant
AND: MS STERLING
Respondent
ORDER MADE BY:
AUSTIN, BERMAN & HARPER JJ
DATE OF ORDER:
27 JANUARY 2022
THE COURT ORDERS THAT:
1.Leave to appeal from the orders made on 6 August 2021 is granted.
2.The appeal is allowed.
3.Orders 1 and 2 made on 6 August 2021 are set aside.
4.The oral application made by the respondent concerning the production and inspection of the appellant’s German lawyer’s file is dismissed.
5.The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sterling & Sterling has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, BERMAN & HARPER JJ:
On 6 August 2021, a judge of the Family Court of Australia (as the Court was then known) made the following procedural orders between the parties in proceedings concerning their child under the Family Law Act 1975 (Cth) (“the Act”):
1.The solicitors for the mother are granted leave to inspect the father’s German solicitor’s file from the date of instructions to the date of conclusion of instructions.
2.The father do all acts and things to facilitate compliance with the inspection of documents referred to in Order 1 hereof.
3.All extant interim applications are otherwise dismissed.
Subject to the grant of leave to appeal, the appellant father appeals from all of those orders but, in reality, the appeal concerns only the first two orders, the effect of which is to override legal professional privilege claimed by the father and authorise the respondent mother’s inspection of his German lawyer’s file.
The mother filed a Submitting Notice in the appeal and, for the following reasons, leave to appeal is granted and the appeal is allowed.
BACKGROUND
The parties commenced a relationship in Australia in 2013 and married in 2018. Their only child was born in Australia in March 2019.
The mother is a German citizen and, in July 2019, the family travelled to Germany for a holiday. The father returned to Australia a few weeks later and then, in September 2019, the mother informed him she would not return to Australia with the child.
The mother promptly commenced proceedings in Germany seeking parenting orders for the child, but her application was dismissed on 1 October 2019. The German court found the child was habitually resident in Australia and the German court lacked jurisdiction to grant the relief sought by the mother. The translated reasons of the German court include this:
Both the jurisdiction of German courts for issuing the custody-related court orders as well as the prerequisites for the issuing of an interlocutory order are lacking. In the present case, international jurisdiction of the courts is defined by the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (Convention on Parental Responsibility and Protection of Children) as well as by the Hague Convention on the Civil Aspects of International Child Abduction. Both Germany as well as Australia are members of the Hague Conference on Private International Law, and both of the above Conventions therefore apply.
According to Art. 5(1) of the Convention on Parental Responsibility and Protection of Children Australian courts have exclusive jurisdiction. The habitual place of residence of the daughter of the parties to the proceedings, [the child], who was born [date], is in Australia. She was born there, and she lived there with her parents at least until the beginning of September of 2019.
(Emphasis added)
Subsequently, at the father’s instigation, proceedings were commenced in Germany under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Hague Convention”) for orders enforcing the child’s return to Australia. During those proceedings, the father received legal advice from, and was separately represented by, a German lawyer.
The German Hague Convention proceedings were listed for hearing in September 2020, but the hearing was adjourned as the parties tried to negotiate a compromise. To that end, the parties signed an agreement in early November 2020 providing for the mother and child to return to Australia for the period between December 2020 and March 2021, during which the child would enjoy “generous contact rights” with the father. The German court ratified the parties’ agreement on 20 November 2020 and noted the proceedings were then suspended.
The mother and child duly returned to Australia in late December 2020 and, because of the pandemic restrictions, were quarantined until mid-January 2021.
Shortly before their scheduled return to Germany in late March 2021, the father commenced proceedings in the Family Court of Australia seeking orders affecting the child.
The father’s Australian application did not specify the final relief he sought but, relevantly, he sought urgent interim orders, including:
(a)a declaration that the child was habitually resident in Australia, supposedly pursuant to reg 17 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Child Abduction Regulations”);
(b)orders for the parties to have equal shared parental responsibility for the child and for them to share her care; and
(c)injunctions restraining the mother’s removal of the child from Australia or beyond a radius of 20 kilometres from his home.
The mother opposed the father’s application and instead applied for the Court to declare the child was habitually resident in Germany.
The proceedings were listed before the primary judge in May 2021, then adjourned for hearing in August 2021 to determine what was described (at [3]) to be the:
…threshold issue [of] whether [the] court has jurisdiction pursuant to s 111CD of the Family Law Act 1975 (Cth) to determine the substantive parenting dispute between the parties.
As an incident of the parties’ jurisdictional dispute, the mother made an oral application for orders compelling the production, and enabling her inspection, of the file created by the father’s German lawyer in the antecedent German proceedings, on grounds that the father had expressly or impliedly waived legal professional privilege by saying this in his affidavit:
38.On 9 November 2020, I consulted with [my German lawyer]. I understood that the Interim Agreement would not prejudice my Hague Application.
(Affidavit of the father filed 23 March 2021)
The appealed orders made on 6 August 2021 determined only the discrete dispute over the waiver of legal professional privilege and access to the German lawyer’s file.
The appealed orders were vitiated by error and so leave to appeal should be granted.
THE APPEAL
In the reasons for judgment, the primary judge said the threshold issue requiring determination was the existence of jurisdiction under s 111CD of the Act
However, that statement conflates the existence and the exercise of jurisdiction. The existence of jurisdiction to make orders in respect of a child is governed by ss 69E and 69H, found within Pt VII of the Act. That is to be contrasted with s 111CD, found within Pt XIIIAA, Div 4 of the Act, which governs the exercise of jurisdiction, once it is found to exist, enabling orders characterised as “Commonwealth personal protection measures” to be made in respect of children who are or might be habitually resident in another Convention country (Duckworth v Jamison (2014) 51 Fam LR 471 at [65]–[79]; Zegna v Zegna (2015) 55 Fam LR 134 at [19]–[20]).
The Family Law (Child Protection Convention) Regulations 2003 (Cth), made under Pt XIIIAA, Div 4 of the Act, are the statutory embodiment of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children.
Here, the child was present in Australia when the father commenced the Australian proceedings, so jurisdiction existed to entertain his application (s 69E(1)(a)). The question was then whether or not the jurisdiction could be exercised to make the orders for which the father applied (s 111CC), as they fit the description of Commonwealth personal protection measures.
Section 111CD of the Act provides:
Jurisdiction relating to the person of a child
(1)A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a) a child who is present and habitually resident in Australia; or
(b)a child who is present in Australia and habitually resident in a Convention country, if:
(i)the child’s protection requires taking the measure as a matter of urgency; or
(ii)the measure is provisional and limited in its territorial effect to Australia; or
(iii)the child is a refugee child; or
(iv)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence; or
(v)a competent authority of the country of the child’s habitual residence agrees to the court assuming jurisdiction; or
(vi)the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(c) a child who is present in a Convention country, if:
(i)the child is habitually resident in Australia; or
(ii)the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge; or
(iv)a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v)the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(d) a child who is present in Australia and is a refugee child; or
(e) a child who is present in a non‑Convention country, if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child; or
(f) a child who is present in Australia, if:
(i)the child is habitually resident in a non‑Convention country; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child.
(2)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.
(3)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if:
(a)one or both of the child’s parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and
(b)one or both of the parents have parental responsibility for the child; and
(c)the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and
(d)the exercise of jurisdiction to take the measure is in the best interests of the child; and
(e)the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.
(4)Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH.
The child was present in Australia and is not a “refugee child”, so ss 111CD(1)(c), 111CD(1)(d) and 111CD(1)(e) could have no application.
The application of ss 111CD(1)(a), 111CD(1)(b) or 111CD(1)(f) depends upon whether or not the child is habitually resident in either Australia or Germany, as the parties accept it could not be anywhere else.
A court of limited jurisdiction “has the authority and duty to decide whether a controversy brought before it lies within the limits of its jurisdiction” (R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193–194, 213, 215–216 and 223) and, for that purpose, it is accepted the court may make orders compelling the “provision of such information as is reasonably necessary for the determination of jurisdictional facts” (Norton & Locke (2013) FLC 93-567 at [80]).
Given the singular contentious issue affecting the exercise of Australian jurisdiction was the identification of the child’s place of habitual residence, it begged the question of how the file of the father’s German lawyer could be relevant – it not being in doubt that the determination of the child’s place of habitual residence is an entirely factual question (LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”)).
The mother submitted to the primary judge that the file was likely to be relevant to, and probative of, the father’s acquiescence to the German jurisdiction, with her counsel submitting this to the primary judge:
[COUNSEL FOR THE MOTHER]: … We say it’s acquiescence, as well as an abuse of process, in terms of the forum argument, if we fail on the jurisdiction argument. But, in relation to acquiescence, he puts in issue his advice from [the German lawyer]. I say that he has waived his privilege.
…
[COUNSEL FOR THE MOTHER]: … I understand that I have not raised this issue with my learned friend until this morning as to my view that the father has waived his privilege and that his solicitor’s file is directly relevant to the issue of acquiescence of the jurisdiction …
(Transcript 17 May 2021, p.11 lines 6–9, p.13 lines 15–18)
But it does not matter whether the father acquiesced to German jurisdiction. It had no bearing upon the application of s 111CD of the Act. If the child is found to be habitually resident in Germany, which is a determination yet to be made by the primary judge, there may be other statutory impediments to the exercise of Australian jurisdiction (s 111CF).
Aside from the issue of acquiescence to German jurisdiction, the parties were also distracted by the father’s assertion that he lacked a complete and accurate understanding of the effect of the German orders, which assertion implied his attempt to resile from acceptance of their force and effect. To counter that contention, the mother persuaded the primary judge of the relevance of the father’s German lawyer’s file, leading the primary judge to say:
34.One of the central issues raised by the father in the proceeding before this court, is the validity of the German orders and whether or not he provided an informed consent to the making of the orders. He has cast dispersions on the accuracy of the German orders, his understanding of them and the process leading up to his consent to the orders.
35.I accept the submissions of the mother in relation to the father putting in issue the nature and efficacy of the legal advice he received from his German lawyer, prior to entering into the November orders. It is also apparent that he has attempted to explain the rationale for providing his consent to the German orders and the legal advice which formed the basis of that consent. That is so in both his affidavit of 23 March 2021 at [32]-[41] and his Summary of Argument prepared for the hearing on 17 May 2021.
In providing the following reason for making the appealed orders, the primary judge fell into error:
42.I agree with the submissions on behalf of the m other (sic) that the file note disclosing the father’s lawyer’s version of his instructions and advice will likely have a direct bearing upon what status to give the German orders under both conventions and/or private international law, which is a matter relevant to the jurisdictional issue.
The “status” of the German orders had no bearing at all upon the “jurisdictional issue”.
In fact, the mother’s application for access to the file of the father’s German lawyer was entirely misconceived, unless made upon the premise that the content of the file was likely to be relevant to, and probative of, the solitary dispute over the place of the child’s habitual residence, which premise was neither asserted nor established.
As an entirely factual question, the determination of the child’s place of habitual residence could not conceivably be materially influenced by any communication between the father and his German lawyer concerning the prior German proceedings. No opinion expressed by the German lawyer, nor any belief held and expressed by the father when instructing the lawyer, could be construed as admissions to help prove where the child habitually resided, since their opinions and beliefs could be completely misguided.
At the outer-most limits of possibility, the father’s German lawyer might have recorded an instruction given by the father that he intended the child should instead live with the mother in Germany, which record would then be relevant because the father’s intentions for the child are liable to influence the determination of the child’s place of habitual residence (LK at 592–596 and 601). However, it is highly unlikely the father would have made any such admission, as it would be repugnant to the object of the proceedings he instigated in Germany for the child’s enforced return to Australia and also the proceedings he then started in Australia to restrain the child’s removal back to Germany. In any event, it was neither argued at first-instance or in the appeal that the German lawyer’s file was liable to reveal some admission or instruction which would bear specifically upon the factual question of the child’s place of habitual residence.
Regardless of whether the father waived his legal professional privilege by his conduct, which is another issue by which the parties were distracted, there was no need to compel his surrender of the confidentiality he reposed in the lawyer/client communications.
Even if there was material in the German lawyer’s file relevant to the question of the child’s place of habitual residence, and even if it be accepted the father waived privilege, orders of the breadth made by the primary judge were erroneous. It was an error to make a blanket order for the production and inspection of all the documents in the German lawyer’s file when the mother’s oral application was (or could only have been) for the production of and access to the file notes arising from the father’s conference with his lawyer on or about 9 November 2020. The appealed orders granted access to the German lawyer’s entire file. As the father submitted, his alleged waiver of privilege extended only to communications with his lawyer about the effect of the parties’ private agreement upon the pending German Hague Convention proceedings, and could not justify the broad order made.
It follows that Ground 2 should succeed. It is not necessary to consider Grounds 1 and 3, which would entail analysis of whether legal professional privilege was indeed waived by the father and whether the primary judge gave adequate reasons for concluding he had (Boensch v Pascoe (2019) 268 CLR 593 at [7]–[8]).
Without wishing to trespass upon issues not raised in the appeal, two points may be mentioned in passing.
First, within the German proceedings the mother commenced against the father in September 2019, but which were then dismissed in October 2019, the German court determined the child’s place of habitual residence to be Australia. The parties’ conduct of the Australian proceedings implies they do not consider they are now estopped from disputing that jurisdictional fact. We do not wish it to be thought that, by not mentioning it, we are necessarily endorsing their acceptance of that position as being correct.
Secondly, in the application the father filed to initiate the Australian proceedings, he sought to engage the Child Abduction Regulations, which are made pursuant to Pt XIIIAA, Div 2 of the Act, and embody the 1980 Hague Convention. His purported invocation of the Child Abduction Regulations is inapposite as the child is presently in Australia, which is where he wants the child to stay.
CONCLUSION
The appeal is allowed and the appealed orders are set aside.
In the re-exercise of discretion, the mother’s oral application for the production and inspection of the father’s German lawyer’s file is dismissed.
The appeal succeeds for error of law and so, as was sought, the father is granted a costs certificate under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Berman & Harper. Associate:
Dated: 27 January 2022
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