Whiting & Secretary, Department of Families, Fairness and Housing (No 2)
[2024] FedCFamC1A 245
•18 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Whiting & Secretary, Department of Families, Fairness and Housing (No 2) [2024] FedCFamC1A 245
Appeal from: Secretary, Department of Families Fairness and Housing & Whiting [2024] FedCFamC1F 479 Appeal number: NAA 226 of 2024 File number: MLC 2577 of 2024 Judgment of: AUSTIN, HARPER & STRUM JJ Date of judgment: 18 December 2024 Catchwords: FAMILY LAW – APPEAL – Where the primary judge made orders compelling the parties’ child to be returned to Belgium – Where the child was born in Belgium and is a Belgian citizen – Where the child was wrongfully removed by the appellant mother to Australia – Whether the primary judge erred in determining the child was habitually resident in Belgium – Where the primary judge carefully applied the principles in LK v Director-General, Department of Community Services (2009) 237 CLR 582 – Where the Belgian court had already exercised jurisdiction in respect of the child – Where the findings of the primary judge were well-founded in the evidence – Appeal dismissed – No application for costs. Legislation: Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16 Cases cited: Adlin & Northern Territory Central Authority (2020) FLC 94-002; [2020] FamCAFC 313
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Sterling & Sterling (2022) FLC 94-070; [2022] FedCFamC1A 3
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Number of paragraphs: 27 Date of hearing: 11 December 2024 Place: Heard in Melbourne, delivered in Newcastle Counsel for the Appellant: Mr Kaufman Solicitor for the Appellant: TFA Legal Counsel for the Respondent: Ms Fisken Solicitor for the Respondent: Department of Families, Fairness and Housing ORDERS
NAA 226 of 2024
MLC 2577 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS WHITING
Appellant
AND: THE SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
Respondent
ORDER MADE BY:
AUSTIN, HARPER & STRUM JJ
DATE OF ORDER:
18 DECEMBER 2024
THE COURT ORDERS THAT:
1.The appeal is 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 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 Whiting & Secretary, Department of Families, Fairness and Housing has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, HARPER & STRUM JJ:
This appeal lies from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 19 July 2024 under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) compelling the return of the appellant mother’s child to Belgium, subject to the fulfilment of certain conditions by the child’s foreign father.
For the following reasons, the appeal is dismissed.
BACKGROUND
The appellant is a citizen of the Netherlands, but she is presently in Australia with the child.
The child’s father lives in Belgium and is a citizen of that country.
According to the appellant, her relationship with the father began in early 2020 and they began living together in Belgium in mid-2020.
The child was born in Belgium in 2021 and is a Belgian citizen, though she is also a citizen of the Netherlands.
The maternal grandparents have lived in Australia for some years and were apparently keen for the family to also live in Australia. In mid-2022, the family bought one-way flights to Australia (at [25]). However, the father contemporaneously commenced parenting proceedings in a Belgian court and his parenting application was served on the appellant little more than a week later in early September 2022 (at [26]). The appellant’s service with such process caused the parents to immediately separate and the appellant moved with the child to the Netherlands, though only just across the border and not far from the father’s home in Belgium (at [27]).
Interim parenting orders were thereafter made between the appellant and the father in the Belgian parenting proceedings in late 2022 and mid-2023 (at [28]–[29]).
Notwithstanding such interim orders, in mid-2023, the appellant brought the child to Australia without telling the father. The maternal grandfather then notified him by email the appellant intended retaining the child in Australia (at [30]). The appellant appealed against the Belgian interim orders from Australia, but her appeal was dismissed (at [31]).
In March 2024, the respondent State Central Authority brought proceedings under the Regulations seeking orders compelling the child’s return to Belgium, alleging the child’s wrongful removal to Australia. The appellant resisted the application, which was listed for hearing before the primary judge in early July 2024.
At the hearing, the appellant conceded all relevant jurisdictional facts under the Regulations, save for the child’s place of habitual residence (at [12]). The primary judge was invited to determine that singular factual issue on unchallenged evidence as the parties elected not to cross-examine any witness and for the hearing to proceed by way of submissions (at [10]). The respondent contended the child was habitually resident in Belgium, whereas the appellant contended the child either had no place of habitual residence at all or it was instead the Netherlands (at [13]).
Judgment was reserved and delivered promptly thereafter. On the critical issue of the child’s place of habitual residence, the primary judge recited the submissions made by each party (at [41], [43], [53]–[55], [57]–[58], [62] and [66]) and found she was habitually resident in Belgium (at [71]–[74] and [76]). That finding, in the absence of any other factual contest, required the child’s return to Belgium under the Regulations and her Honour then explained the conditions upon which the child would be returned. Orders were made for the child to be returned to Belgium upon the father meeting certain expenses.
Any appeal from the judgment was due to be filed by 16 August 2024. None was. However, on 24 September 2024, the appeal registrar granted the appellant an extension of time within which to appeal. Following the appeal being filed, the primary judge granted the appellant’s application to stay the appealed orders pending disposition of the appeal.
THE APPEAL
The Amended Notice of Appeal filed on 18 November 2024 comprised eight grounds of appeal but, at the hearing, the appellant’s counsel abandoned all but Ground 2.
Ground 2 was couched in these terms:
The trial judge erred in here (sic) determination on Regulation (1A) of the regulations in determining that the Child’s Habitual Residence prior to arriving was Belgium.
(As per the original)
The reference within the ground to “Regulation (1A)” is more properly expressed as a reference to reg 16(1A) of the Regulations, which is integral to the determination of whether a child’s removal to Australia from another Convention country is “wrongful” for the purpose of the operation of the Regulations.
Regulation 16(1) requires the Court to make a return order if the application was brought within one year of the child’s removal or retention (as it was here) and the Court is satisfied the child’s removal or retention was wrongful within the meaning of reg 16(1A).
Under reg 16(1A), the child’s removal to or retention in Australia is characterised as being wrongful if certain conjunctive conditions are fulfilled. In this instance, the appellant disputed the respondent’s proof of only one of those conditions: the child’s place of habitual residence immediately before her wrongful removal to Australia (reg 16(1A)(b)) – an exclusively factual issue (Sterling & Sterling (2022) FLC 94-070 at [25]; Adlin & Northern Territory Central Authority (2020) FLC 94-002 at [18]), which the primary judge determined in favour of the respondent.
The concept of “habitual residence” identifies the centre of a person’s personal and family life, disclosed by the facts of the individual’s activities (LK v Director-General, Department of Community Services (2009) 237 CLR 582 at 593). A wide variety of circumstances bear upon the question of where a person habitually resides and the past and present intentions of the person will often dictate the significance attached to particular circumstances like the duration of a person’s connections with a particular place of residence (LK at 592 and 596). Examination of a person’s intentions will usually be relevant to, but not determinative of, the consideration of where that person habitually resides (LK at 594 and 601).
When considering where a child is habitually resident, it will usually be necessary to consider what each parent intends for the child. The High Court said this in LK (at 595–596):
… when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
(Emphasis added)
The primary judge applied those principles carefully. Her Honour observed the appellant’s admission the child was habitually resident in Belgium until September 2022 (at [41] and [70]), the appellant unilaterally intended to live with the child in Australia from October 2022 (at [57], [59], [66] and [70]), the father intended the child would remain habitually resident in Belgium (at [53], [66] and [70]), the Belgian court had already exercised jurisdiction in respect of the child (at [54]–[55]), the appellant lost her appeal against the Belgian orders premised upon her contention the child was not habitually resident in Belgium (at [31]); the appellant admitted the child had been living with her “in limbo” in the Netherlands (at [60], [64], [66], [67] and [70]), the child continued to spend time with the father in Belgium before being taken to Australia (at [60]–[62]), and the child did not lose her connection to Belgium (at [71]–[74]). The finding of Belgium being the child’s place of habitual residence was well-founded in the evidence.
The appellant submitted in the appeal that the primary judge did not “sufficiently engage” with the fact of the child’s residence with the appellant in the Netherlands for about 11 months before being brought to Australia and it was “possible” her Honour could have reached a different decision about the place of the child’s habitual residence at the time of her removal to Australia. So articulated, the complaint was really about the weight attributed to the evidence, which complaint cannot sustain a contention of factual error. The appellant could not succeed unless able to demonstrate the finding of the child’s habitual residence was not open. The appellant’s mere disagreement with the finding falls well short of demonstrating it was wrongly made.
As a general proposition, factual findings which have a firm evidentiary foundation are immune from challenges to their validity and are not wrong merely because an appellant can point to some other countervailing evidence (Thorne v Kennedy (2017) 263 CLR 85 at [54] and [59]; Edwards v Noble (1971) 125 CLR 296 at 302–304 and 307). The primary judge’s finding of Belgium being the child’s place of habitual residence had a firm foothold in the evidence and therefore withstands any factual challenge by the appellant.
The child lived with the parents in Belgium for 13 months until September 2022, when the appellant took her to the Netherlands without the father’s consent, though the child continued to spend time with the father in Belgium for several days each week until mid-2023, when the appellant took her to Australia, again without the father’s consent. None of those basal facts was disputed and, upon that uncontroversial premise, the primary judge found the child’s connection with Belgium was not severed (at [71]–[74]). There were no other “incontrovertible facts” to obstruct the finding. Nor was the finding based upon the acceptance of “glaringly improbable” evidence given by an uncorroborated credible witness. It therefore follows that the finding is impregnable (Lee v Lee (2019) 266 CLR 129 at [55]; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]).
Consequently, the primary judge did not err in the application of reg 16(1A)(b) and the finding made in relation to the child’s place of habitual residence then obliged the return order pursuant to reg 16(1).
DISPOSITION
The appeal is dismissed.
The State Central Authority did not seek costs against the appellant in the event of dismissal of the appeal.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Harper & Strum. Associate:
Dated: 18 December 2024
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