Yardlay & Commissioner of Police

[2020] FamCAFC 186

FAMILY COURT OF AUSTRALIA

YARDLAY & COMMISSIONER OF POLICE [2020] FamCAFC 186

FAMILY LAW – APPEAL – CHILD ABDUCTION CONVENTION REGULATIONS – Where the primary judge found that the children were habitually resident in Country A prior to their retention by the mother in Australia – Where the appellant mother contended that the trial judge was in error – Where the children returned to Country A pursuant to the primary judge’s orders prior to the commencement of the appeal and remain there – Where no meaningful outcome can be achieved by the appellant mother even if successful – Where there is no utility in permitting the appeal to proceed to determination on its merits – Appeal dismissed – No order as to costs

Family Law Act 1975 (Cth) ss 69E, 94, 111CA, 111CD
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14
‘Brussels II Revised’ Council Regulation (EC) No 2201/2003 of 27 November 2003, Art 19
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, Art 5, 13

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9
Bonan v Hadgkiss (2007) 160 FCR 29; [2007] FCAFC 113
Garning & Director General, Department of Communities, Child Safety and Disability Services & Anor (2013) FLC 93-531; [2013] FamCAFC 28
LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9
Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438
Saffari & Director-General, Department of Families [2002] FamCA 1085
Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189

APPELLANT: Ms Yardlay

RESPONDENT: Commissioner of Police

FILE NUMBER: PTW 2044 of 2019

APPEAL NUMBER: WEA 31 of 2019

DATE DELIVERED: 3 August 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Perth

JUDGMENT OF: Strickland, Austin & O’Brien JJ

HEARING DATE: 1 April 2020 and by way of further written submissions

LOWER COURT JURISDICTION: Family Court of Western Australia

LOWER COURT JUDGMENT DATE: 1 August 2019

LOWER COURT MNC: [2019] FCWA 172

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Nicholls QC with Mr Spashett

SOLICITOR FOR THE APPELLANT: Bannerman Solicitors

COUNSEL FOR THE RESPONDENT: Mr Sefton

SOLICITOR FOR THE RESPONDENT: State Solicitor’s Office

Orders

1. The appellant have leave to rely on the amended list of authorities and supplementary list of authorities both filed 30 March 2020.

2. The time for filing of the joint chronology pursuant to the orders of 25 March 2020 be extended to 1 April 2020.

3. The appeal be dismissed.

4. No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yardlay & Commissioner of Police has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WEA 31 of 2019
File Number: PTW 2044 of 2019

Ms Yardlay

Appellant

And

Commissioner of Police

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal commenced on 28 August 2019 by Ms Yardlay (“the mother”) against orders made by Chief Judge Sutherland on 1 August 2019 pursuant to regulation 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for the return to Country A of the two children of her marriage to Mr Moretti (“the father”).

2. The mother asserts that the primary judge erred in law in determining that the children were habitually resident in Country A immediately before 15 January 2019:

   a)in the absence of any finding about where the parents were habitually resident at that time (Ground 1);

   b)in the absence of any finding that the parents had a shared settled intention or purpose that the children should acquire an habitual residence in Country A (Ground 2); and

   c)by reference only to the degree of the children’s integration into life in Country A prior to 2 August 2018 (Ground 3).

3. No other error is asserted.

4. The children were returned to Country A promptly after the orders were made. They remain in Country A. The Court has no power to effectively reverse or vary the primary orders as contemplated in s 94(2) of the Family Law Act 1975 (Cth) (“the Act”) (Saffari & Director-General, Department of Families [2002] FamCA 1085 (“Saffari”) at [16]–[17]).

5. The question of the utility of the appeal is therefore squarely raised.

6. Senior counsel for the mother, while conceding that the Court has no power to effectively reverse or vary the primary orders, maintained that the appeal should nevertheless be heard and determined on its merits. The respondent Central Authority contended that there is no utility in the appeal and it should be dismissed, in effect, summarily.

7. Accordingly, we determined it was appropriate to deal with that dispute as a preliminary issue. After oral submissions were made, we reserved our decision on 1 April 2020.

8. On 15 May 2020, the Court accepted for filing an application made by the mother for leave to reopen the hearing of the appeal and, if leave was granted, to rely upon further written submissions filed on that day, and an affidavit sworn by Mr B, a Country A lawyer, also filed on that day. The application was supported by an affidavit sworn by the mother’s current solicitor which said, in essence, that questions as to the utility of the appeal were not expected by senior counsel who appeared at the hearing, and accordingly had not been properly addressed. In the absence of any opposition from the respondent, we made orders on 28 May 2020 granting the requested leave, and affording the respondent the opportunity to file additional responsive submissions. Those submissions were filed on 5 June 2020.

9. For the reasons which follow, we conclude that there is no utility in the appeal and it should be dismissed without further consideration of its merits or otherwise.

Brief background

1. The mother is an Australian citizen. The father is a Country A citizen. They met in Country A while the mother was on a holiday there, and commenced a relationship. They then spent time both in Country A and in Australia before marrying in Country A in mid 2010 (at [8]).

2. The mother and father separated in November 2011 and shortly thereafter the mother returned to live in Australia. The father remained in Country A. They continued to have contact with each other, which included the mother travelling to Country A to spend time with the father, and having short holidays together (at [9]–[10]). They resumed living together, in the father’s home in Country A, in November 2014 and in the following year travelled between Country A and Australia on what the primary judge described as a “regular basis” (at [14]). After the older child was born in Australia in 2015, the mother and the father continued to travel between the two countries, and the younger child was born in Country A in 2017.

3. Difficulties in the relationship continued. In May 2018 the father proposed that he and the mother separate, and in July 2018 they attended a meeting in Country A with their respective lawyers. They reached an agreement which was reduced to writing. They agreed that the mother could travel to Australia with the children on 2 August 2018, that the father would spend time with the children both prior to their departure and when they were in Australia, and that they would both return with the children to Country A by no later than 15 January 2019 (at [27]).

4. The mother travelled to Australia with the children in accordance with the agreement. Subsequently, the father was unable to travel as planned (at [29]). On 20 December 2018 the mother informed the father of her decision not to return to Country A as had been agreed (at [32]).

5. On 14 January 2019 the mother commenced proceedings in the Family Court of Western Australia. She did not seek any final parenting orders, proposing simply that she have leave to particularise the relief she sought after mediation or other discussions with the father (Transcript of the appeal hearing 1 April 2020, p.14 lines 15–19). On an interim basis, she sought declarations that the children were habitually resident in Australia and not in Country A (at [33]), and a series of Commonwealth personal protection measures as defined in s 111CA of the Act by reference to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) signed at the Hague.

6. On 15 January 2019 the father commenced proceedings in Country A, seeking sole custody and the return of the children to Country A (at [34]).

7. On 11 March 2019 the Central Authority commenced proceedings in the Family Court of Western Australia pursuant to the Regulations, seeking an order for the return of the children to Country A. That application proceeded to trial before the primary judge over three days in June and July 2019, and the orders now the subject of this appeal were made on 1 August 2019.

8. The children returned to Country A, accompanied by the mother, on 9 August 2019.

9. At the hearing of the appeal we were advised that both the proceedings commenced by the mother in the Family Court of Western Australia on 14 January 2019 and the proceedings commenced by the father in Country A on the following day remain on foot.

10. The affidavit of Mr B provided more details as to the proceedings commenced by the father in Country A. It confirmed that those domestic proceedings are before the Local Family Court of Province A (Affidavit of Mr B filed on 15 May 2020, paragraph 14) but that any decision on this appeal will be enforceable by the Juvenile Court in Province A, and will “take priority over the domestic court proceedings” (Affidavit of Mr B filed on 15 May 2020, paragraph 15–16). As will be seen, that evidence and the submissions based on it beg the question of whether success by the mother on the appeal would result in an enforceable decree of this Court.

The relevant legal principles

1. While the Court retains a discretion to hear and determine an appeal on its merits even where that determination can have no practical consequence for either party, that discretion should be exercised cautiously, bearing in mind that “the object of the judicial process is the final determination of the rights of parties to an action” (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [47]).

2. While the exercise of that discretion is not limited, examples of circumstances which might influence a determination to exercise it include those where the decision under appeal has ramifications which extend beyond the facts of the individual case, and it is in the public interest that the issue be resolved (Bonan v Hadgkiss (2007) 160 FCR 29 at [10]).

3. They may also include circumstances where the primary decision reflects adversely upon the reputation of one of the parties, and the determination of the appeal may vindicate that reputation (see for example Vanstone v Clark (2005) 147 FCR 299) or those where the individual case is of such public notoriety as to render its determination on the merits in the public interest (see for example Garning & Director General, Department of Communities, Child Safety and Disability Services& Anor (2013) FLC 93-531).

4. The presence of one or more of those or other potentially relevant factors, including any asserted doubt over the correctness of the primary decision, does not of itself mean that the discretion will be exercised in favour of hearing and determining the appeal. Each case must be considered on its own facts, and it is for the appellant to persuade the court to hear and determine the appeal notwithstanding that no substantive relief can be given. As the Full Court of the Federal Court has observed, “[i]t is not desirable that scarce judicial resources be used in a debate which cannot have any real practical effect on any issue, perhaps other than costs” (Long v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 438 at [16]).

The submissions made on behalf of the mother

1. Senior counsel for the mother conceded that the appeal was moot in the sense that the Court has no power to effectively reverse or vary the relevant decree (Transcript of the appeal hearing 1 April 2020, p.6 lines 28–31). That appropriate concession was already apparent from the orders which the mother sought, being simply that the primary orders be set aside.

2. In that sense, the present appeal has much in common with that determined in Saffari. In that case, the primary judge had ordered the return of the child to the United States of America, and the appellant’s application for a stay of that order was dismissed. The child returned to the USA prior to the hearing of the appeal, and in dismissing the appeal the Full Court observed that it could serve no useful purpose, there being no remedy the Court could grant to achieve any meaningful outcome for the appellant (Saffari at [18]).

3. Nevertheless, senior counsel for the mother submitted that we should hear and determine this appeal on its merits. He did so on the following bases:

   a)he submitted that the return order was “made on the basis of a test which should not, and do not, [sic] represent the current law of Australia” (Transcript of the appeal hearing 1 April 2020, p.7 lines 27–30);

   b)he contended that “if the children are habitually resident in Australia” then pursuant to the 1996 Convention, the judicial or administrative authorities of Australia have what he described as “primary jurisdiction to make decisions” about them (Transcript of the appeal hearing 1 April 2020, p.6 line 49 – p.7 line 1);

   c)thirdly, he said that the mother is currently in Country A, and that by virtue of certain unspecified events which have occurred she might consider seeking relief in the European Court of Human Rights, with it being a condition of her doing so that she first “exhaust all her domestic remedies” (Transcript of the appeal hearing 1 April 2020, p.7 lines 1–8);

   d)he submitted further that the mother might face difficulty in enforcing in Country A any orders which might be made in the future in the proceedings between the parents in the Family Court of Western Australia, in the face of the finding by the primary judge that the children were habitually resident in Country A (Transcript of the appeal hearing 1 April 2020, p.10 lines 47–50); and

   e)finally, he submitted that the order made by the primary judge, and the finding as to habitual residence which underpinned it, would preclude the mother from taking advantage of what she would otherwise say was a benefit of having commenced proceedings in the Family Court of Western Australia before the father had commenced proceedings in Country A (Transcript of the appeal hearing 1 April 2020, p.28 lines 15–42; Mother’s further written submissions filed 15 May 2020, paragraphs 17–20).

4. Arguments advanced in the Summary of Argument filed on behalf of the mother on 10 January 2020, are of potential relevance to the first submission made. In the Summary of Argument, senior counsel for the mother submitted that the appeal “is about the part that intentions play in the modern Australian law of habitual residence and [the] need to address them in any enquiry about a child’s place of habitual residence following the decision of the High Court in LK v Director-General, Department of Community Services [(2009) 237 CLR 582] (“LK”)” (paragraph 4).

5. In particular, the mother’s senior counsel submitted that “Australian law has not yet reached the position that the acquisition of an habitual residence by children can be wholly determined by the degree of their integration in the requested [sic] State or their perception of their parent’s [sic] settled purpose”, and that “absent any order of a court or very unusual circumstances, in Australian law a shared parental intention is still essential to the acquisition of an habitual residence by children who have two parents who share parental responsibility for them”. The mother’s senior counsel argued that must be so, as “one parent cannot unilaterally change a child’s habitual residence, which is dependent on parental intention, and the rule that when parents are living together their young children will have their habitual residence”.

6. Although the point was not pressed in oral submissions, it may be inferred from the Summary of Argument filed on behalf of the mother on 10 January 2020, that the mother would argue that we should proceed to hear and determine the appeal on its merits in order to clarify what she would contend to be uncertainty as to the application by this Court of the law as to the determination of habitual residence.

7. We are not persuaded that the decisions referred to by senior counsel for the mother in his written submissions demonstrate any such uncertainty. Indeed, with respect, senior counsel’s submissions seem to be at odds with his proper, and accurate, submission to the effect that “[t]he modern law in Australia about habitual residence was authoritatively settled by the High Court in LK”.

8. In the absence of any such uncertainty, the first basis upon which the mother contends that we should proceed to hear and determine the appeal on its merits amounts to no more than an assertion that her grounds of appeal are meritorious. For the reasons earlier outlined, that is insufficient to persuade us that the appeal should proceed when no substantive relief can ensue.

9. Similarly, the second contention as to primacy of jurisdiction does not bear scrutiny. The mother’s grounds of appeal assert errors of law on the part of the primary judge, by reference to the approach which her Honour took to the determination of the question of habitual residence. Success on those grounds of appeal would not lead to any finding by this Court that, contrary to her Honour’s determination, the children were in fact habitually resident in Australia at the relevant time, nor that Australia remains their place of habitual residence; it would lead only to the primary order being set aside. That much was conceded by senior counsel for the mother (Transcript of the appeal hearing 1 April 2020, p.9 lines 25–30). The evidence of Mr B as to the enforceability in Country A of any decision on the substantive appeal, and the submissions made on behalf of the mother based on that evidence, must be viewed in that context.

10. Further, the 1996 Convention expressly recognises that a change of habitual residence will, subject to qualifications related to unlawful removal or retention, result in the authorities of the State of the new habitual residence having jurisdiction (Article 5(2) of the 1996 Convention). The children have been in Country A since August 2019, and there is nothing before us to enable any consideration of the question of whether, even if error on the part of the primary judge was established, their habitual residence might nevertheless have changed.

11. The third argument advanced by senior counsel for the mother, relating to a perceived need to “exhaust domestic remedies” before considering a mooted approach to the European Court of Human Rights self-evidently lacks merit. Senior counsel for the mother conceded that, in relation to this argument, it matters not whether the present appeal succeeds (Transcript of the appeal hearing 1 April 2020, p.7 lines 20–23). That being the case, the argument cannot support the proposition that the appeal should be heard and determined on its substantive merits, rather than simply being dismissed.

1. The fourth argument advanced similarly lacks merit. As we pointed out to senior counsel for the mother, the finding of habitual residence made by the primary judge was made in proceedings to which the father was not a party. Properly, senior counsel conceded that he could not argue that in those circumstances the relevant finding could give rise to a claim of issue estoppel or res judicata (Transcript of the appeal hearing 1 April 2020, p.10 lines 19–22). His subsequent submission that a judicial officer in Country A might nevertheless be somehow confused, or otherwise influenced by the finding in any future determinations, was not in any sense persuasive.

2. As earlier noted, the mother did not seek any final parenting orders in the application by which she commenced proceedings in the Family Court of Western Australia. She sought interim relief only; orders in the form of Commonwealth personal protection measures, and declarations that the children were habitually resident in Australia. The declarations sought were not necessary to ground the orders then sought, as the children were present in Australia (s 111CD(1)(b) of the Act). Self-evidently, the orders then sought cannot now be made.

3. It is not for us to speculate as to what relief, if any, might still be sought by the mother in those proceedings. That of itself disposes of the submission made on her behalf that there might be some unspecified difficulty in seeking to enforce in Country A the orders which she has not yet sought in the Family Court of Western Australia. In any event, there is nothing in the evidence of Mr B to support that submission.

4. Finally, we turn to the argument raised to the effect that the mother perceives some advantage in being able to rely on the proceedings commenced by her in the Family Court of Western Australia having a proper jurisdictional foundation, so as to be able to maintain those proceedings and their primacy in time by comparison to the proceedings commenced by the father in Country A.

5. In his further written submissions, senior counsel for the mother referred to Article 13 of the 1996 Convention, which is in the following terms:

   (1)The authorities of a Contracting State which have jurisdiction under Articles 5 to 10 to take measures for the protection of the person or property of the child must abstain from exercising this jurisdiction if, at the time of the commencement of the proceedings, corresponding measures have been requested from the authorities of another Contracting State having jurisdiction under Articles 5 to 10 at the time of the request and are still under consideration.

   (2)The provisions of the preceding paragraph shall not apply if the authorities before whom the request for measures was initially introduced have declined jurisdiction.

6. Article 5 provides that, absent wrongful removal or retention of the child, “[t]he judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property”.

7. Hence it is argued on behalf of the mother that if the children were habitually resident in Australia at the time she commenced proceedings in the Family Court of Western Australia, then by operation of Article 13 of the 1996 Convention, the Local Family Court of Province A must abstain from exercising its jurisdiction.

8. The difficulty with that argument in the present context, is that success on the appeal would result only in the primary orders being set aside. It would not result in any finding, let alone a declaration, that the children were habitually resident in Australia at the time the mother commenced proceedings in the Family Court of Western Australia. It would not, accordingly, lead to a conclusion that those proceedings were commenced in a court having jurisdiction under Articles 5 to 10 of the 1996 Convention. That question would remain at large, and to be determined by that court. Again, we note that the relevant finding of the primary judge was made in proceedings to which the father was not a party, and that no relevant issue estoppel or res judicata arises as between the mother and the father in those proceedings.

9. For the same reason, the evidence of Mr B to the effect that the decision of this Full Court “will be enforceable” by the relevant court in Country A and will “take priority over” the domestic proceedings commenced by the father in Country A takes the matter no further (Affidavit of Mr B filed 15 May 2020, paragraph 15–16).

10. Similarly, the mother relies on the evidence of Mr B to the effect that Country A “operates Article 19 of Council Regulation (EC) 2201/2003 with respect [to] all States”, including Australia (Affidavit of Mr B filed 15 May 2020, paragraph 17). Article 19 is relevantly in the following terms:

    …

    2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

    3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.

    …

11. That evidence, with respect, advances the matter no further. That is so as the proceedings commenced by the mother in the Family Court of Western Australia were not “proceedings relating to parental responsibility”; rather, they sought Commonwealth personal protection measures only. Senior counsel for the mother was at pains to make clear that those proceedings were commenced not in reliance on s 69E of the Act to ground jurisdiction, but in reliance on s 111CD of the Act.

12. That being so, it is unnecessary to consider whether the proceedings commenced by the mother involve the same cause of action as the proceedings commenced by the father in Country A, though that appears highly unlikely.

13. The question as to whether the pursuit of an appeal which is otherwise moot for the purpose of obtaining some strategic advantage in other proceedings is properly characterised as an abuse of process, while raised by us during the hearing of the appeal in exchanges with senior counsel for the mother, was not fully argued. It is unnecessary for us to determine that point in any event. Even where the fact of the perceived advantage is established (which here it is not), we would not be persuaded that it would support an exercise of discretion to hear and determine the appeal on its merits.

Conclusion

1. As earlier noted, it fell to the mother to identify circumstances which would justify the Court exercising its discretion to hear and determine the appeal on its merits, notwithstanding that the primary orders cannot be reversed or varied.

2. No such circumstances are present in this case. We perceive no relevant public interest or broader ramifications which would suggest that the discretion to hear and determine the appeal on its merits should be exercised, and are not persuaded by any of the other submissions advanced on behalf of the mother.

3. We note further that the question of whether the relevant discretion should be exercised will almost always arise in circumstances where the appeal has been rendered moot by reason of a change of circumstances occurring after its commencement. The issue then is whether the Court should nevertheless continue to entertain the appeal. In the present case, the appeal was not commenced until well after the children had returned to Country A. It has not been rendered moot by intervening circumstances; it was commenced when it was already moot. At no time, therefore, was the purpose of the appeal the final determination of the rights of the parties. That is, in our view, a matter relevant to the exercise of the discretion and weighs against its exercise in favour of the mother in the absence of broader public interest considerations.

4. There is no utility in the appeal, and we are not persuaded that there are any circumstances identified which suggest that it should nevertheless be heard and determined on its merits. The appeal will be dismissed.

Costs

1. In the event the appeal were to be dismissed, the respondent Central Authority did not seek any order for costs. There will accordingly be no order as to costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Austin & O’Brien JJ) delivered on 3 August 2020.

Associate:

Date:  3 August 2020