Mother Appeals Orders Requiring Child's Return to Father
Barnett & Secretary, Department of Communities and Justice [2022] FedCFamC1A 20 (18 February 2022)
The mother appeals orders requiring a child to be returned to Ireland. In dispute is whether the father had rights of custody before the removal of the child. The Court, in adjudicating this dispute, considered how the primary judge relied on a declaration obtained by the father from an Irish court.
Facts:
On 25 June 2021 a judge of the Family Court of Australia (as it was then known) made an order pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), that Z (“the child”), born in 2019 be returned to Ireland. The child had been brought to Australia by her mother, Ms Barnett (“the mother”), who left Ireland with the child on 30 August 2020. The application for the child’s return was made by the Secretary of the NSW Department of Communities and Justice (“the State Central Authority”) at the request of the father of the child, Mr B (“the father”).
The father was born in Ireland and the mother was born in Australia. They met and formed a relationship in about 2016 in Ireland where the mother had been living for some years. In 2019, the child was born in Ireland. The parties are in dispute about many matters associated with the living arrangements for the child.
On 15 July 2020, the mother booked flights for herself and the child to travel to Australia, which was unknown to the father at that stage. On 30 August 2020, the mother left Ireland with the child without the knowledge of the father. On 4 September 2020, the father initiated proceedings in the District Court of the City E Metropolitan District (“the District Court”) seeking an interim order for his appointment as the guardian of the child and for custody of the child pursuant to s 6A and s 11 respectively of the Guardianship of Infants Act 1964 (IR) (“the Guardianship Act”). On 29 October 2020, the District Court made an interim order appointing the father guardian of the child.
The father subsequently filed a further application seeking a declaration of guardianship pursuant to s 6F of the Guardianship Act. The mother and child began living with members of the maternal family in New South Wales and on 2 November 2020 the child was granted Australian citizenship. On 24 November 2020, the father filed an application for the return of the child in accordance with the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). On 16 February 2021, the State Central Authority filed an application in the Family Court of Australia (as it was then known) seeking the return of the child to Ireland.
On 12 April 2021, a declaration (“the declaration”) was made by the District Court pursuant to s 6F of the Guardianship Act that the father is a *guardian of the said child by virtue of the circumstances set out in section 2(4A) or section 6B(3) of the said Act. The appellant has appealed the interim order and the declaration made in Ireland.
Issues:
I. Whether or not the father had rights of custody before the removal of the child
II. Whether or not as at 30 August 2020, the father had “rights of custody” as required by reg 16(1A)(c) of the Regulations.
Applicable law:
Evidence Act 1995 (Cth) ss 91(1) - relied upon by the mother in submitting that such prevented the primary judge from looking to the declaration or the decision of the District Court “to prove the existence of a fact that was in issue in that proceeding”.
Analysis:
In arriving at her conclusion that the father had rights of custody in relation to the child under the law of Ireland immediately before 30 August 2020, the primary judge relied on the declaration made by the District Court of the City E Metropolitan District on 12 April 2021, pursuant to s 6F of the Guardianship of Infants Act 1964 (IR) (“the Guardianship Act”), that it was satisfied on the balance of probabilities that the father “is a guardian by virtue of the circumstances set out in section 2(4A) and 6B(3) of the said Act of the said child” (Affidavit of Ms C filed on 19 May 2021, Annexure “E”). These circumstances are that the parties have not married each other; and 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 father have lived with the child.
Satisfaction of these circumstances also means that, under the Guardianship Act the father of the child shall be a guardian of the child jointly with the mother of the child; and the mother is not, alone, the guardian of the child – because the father is, under the Guardianship Act, the guardian of the child. Given the evidence before the primary judge that the mother removed the child from Ireland on 30 August 2020, satisfaction of the circumstances prescribed in s 2(4A) of the Guardianship Act can only have related, to the period before this date and, therefore, her Honour did not err in relying on the finding that the father satisfied the statutory prerequisites – which meant that he was to be regarded as a “father” for the purpose of s 6(1) of the Guardianship Act and, therefore jointly a guardian of the child with the mother and, consequently, a guardian of the person of the child – as a basis for her subsequent conclusion that she was satisfied that the father had rights of custody in relation to the child immediately before she was removed from Ireland.
Conclusion:
The appeal against the orders made on 25 June 2021 is dismissed.
