- In the recent decision of Walpole  FamCAFC 65, the Full Court of the Family Court allowed an appeal against orders requiring two children aged three and two to return to New Zealand.
- The case was brought under the Family Law (Child Abduction) Regulations 1986 which give effect in Australia to the Hague Convention on the Civil Aspects of International Child Abduction.
- The case is one of the first to provide guidance as to how the Family Court might handle cases in the time of COVID 19.
In the recent decision of Walpole, Secretary Department of Communities & Justice  FamCAFC 65, the Full Court of the Family Court of Australia (Watts, Ryan and Aldridge JJ) allowed an appeal against orders made on 29 November 2019 requiring two children aged three and two years to return to New Zealand.
The case was brought under the Family Law (Child Abduction) Regulations 1986 which give effect in Australia to the Hague Convention on the Civil Aspects of International Child Abduction (the ‘Convention’). It may be one of the first decisions to provide guidance as to how the Family Court might handle cases in the time of COVID-19.
The father, a New Zealand citizen, had a significant criminal history and had been deported from Australia. The mother, while pregnant with the couple’s second child, followed the father to New Zealand with the older child. The younger child was born in New Zealand.
The mother sought the assistance of the court in New Zealand to recover the elder child from the father who had retained him following the parents’ separation. Having recovered the child and with the assistance of the New Zealand police, the mother immediately left New Zealand with the children and returned to live with her family in Australia.
The Judge at first instance made an order requiring the mother to return the children to New Zealand.
The appeal was decided on the basis of a finding that there was a ‘grave risk that the return of the child[ren] under the Convention would expose the child[ren] to physical or psychological harm or otherwise place the child[ren] in an intolerable situation (reg 16(3)(b))’.
The case looked at this defence and made it clear that each of the three elements of the defence should be addressed separately.
At first instance, the mother had argued that the children would be at grave risk of physical and psychological harm and, while she had relied in her answer on the third element (grave risk of being placed in an intolerable situation), her oral submissions at trial had not specifically addressed this third limb of the defence.
The mother’s omission gave rise to the question of whether she should be allowed to raise a defence which had not been specifically argued at first instance given the principle that ‘a party is bound by the conduct of the case below’ (at ). The case of Metwally v University of Wollongong  HCA 28; (1985) 60 ALR 68 at 71, was relied upon to ground an argument of exceptional circumstances in this case.
The Court relied on the following factors:
- The case concerned children who were not parties to the proceedings;
- Further evidence (namely the father’s whole lengthy NSW Criminal Record) was admitted on appeal;
- The new issue (intolerable situation) did not create the need for further evidence;
- The Family Consultant’s report provided evidence that ‘the father poses a potentially lethal threat to the mother upon whom the children depend’ (at ); and
- To admit the new evidence and not to deal with an issue that arises from it would have unnecessarily prolonged the case. This factor was a particularly important point in this case given the requirement that Hague Abduction cases be dealt with expeditiously.
Apart from the decision itself, the plurality (Ryan and Aldridge JJ) made a number of interesting (obiter) observations about the conduct of Hague Convention abduction cases.
The Independent Children’s Lawyer (‘ICL’) had not participated in the appeal. While acknowledging the funding pressures on Legal Aid services the Court noted that ‘the mere fact that an order for an ICL was made in an Abduction Convention case demonstrates that a judge was satisfied that the circumstances are exceptional (s 68L(3) of the Act).’ For this reason, the Court found ‘that the decision which resulted in the ICL’s failure to represent the children’s interests in this appeal was regrettable’ (at ).
With respect to COVID 19, the Court took judicial notice of the current situation of international travel restrictions and noted that, had the appeal not been allowed on other grounds, the Court would have required further submissions on returning the children in the context of COVID 19.
All three Judges joined in finding that the situation to which the children would be returned (including potential exposure to violence) constituted an intolerable situation.
The role of the Model Litigant and Convention reforms
The plurality (Ryan and Aldridge JJ) criticised the role of the Secretary of the Department of Communities and Justice, which brought the proceedings as the ‘Central Authority’ under the Regulations. The role of the Central Authority should be that of model litigant. Their Honours made three points.
The first was that the Central Authority should have enquired into and divulged the father’s criminal record in Australia and New Zealand, rather than requiring the mother and the ICL to present that information and essentially ‘requir[e] the other party to prove a matter which the state or an agency knows to be true’ (at ).
The second and perhaps more interesting point was an exhortation by the plurality that consideration be given to the powers of the Central Authority to refuse to present an application. The plurality said: ‘Regulation 14 states that a Central Authority “may” apply to the court. This is the language of discretion and carries with it the implication that a Central Authority may decide against presenting an application for a return order. We did not hear argument on the point, but we encourage the Commonwealth and Special Commissions who oversee the Abduction Convention to give this matter further consideration’ (at ).
Finally, Justices Ryan and Aldridge then proceeded to call for reform (at ) by the implementation of the Equality Before the Law: Justice for Women (ALRC Report No. 69, Part IV – Violence Against Women, Violence and Family Law (1994)). This Report recommended that the Regulations ‘should provide that the child should not be returned if there is a reasonable risk that to do so will endanger the safety of the parent who has the care of the child’ (Recommendation 9.5).
Justice Watts disagreed with the comments relating to the Central Authority in relation to the issue of the father’s extensive NSW criminal record. His Honour said ‘[i]t would be speculative to comment on who, if anybody, is to blame for that lacuna in the evidence’ (at ). He also disagreed with calls for reform to the Regulation as having the ‘potential to “drive a coach and four” through Australia’s participation in the Convention, absent the agreement of all other member states’ (at ).
In his Honour’s view, the High Court decision in DP v Commonwealth Central Authority (2001) 206 CLR 401;  HCA 39 (which as he points out post-dates the Equality Before the Law: Justice for Women Report) ‘has moved away from the Convention in that it has not given the restrictive meaning to grave risk defence envisaged in the Convention. Rather the words of Regulation 16(3)(b) are to be given the “natural meaning of the words used” and not a narrow construction. That construction has made easier the outcome to which we all agree in this exceptional case. The result in this case demonstrates the effective operation of Regulation 16(3)(b) of the Abduction Regulations, in circumstances where the grave risk to the children arises from the likelihood of future family violence perpetrated by their father against their mother, including potential lethality’ (at ).
The debate between the members of the Full Court of the Family Court functions to highlight the changing demographic of abductors since the introduction of the Convention and the increasing prevalence of a ‘flight from domestic violence’ in the evidence filed on behalf of Respondents.
*Ms Christie SC was counsel for the Appellant in this case, and was instructed by Ms Saladino.