Court Dismisses Father's Appeal and Orders Return of Children to England
Hays & Department of Communities and Justice [2023] FedCFamC1A 3 (16 January 2023)
A father took his kids to Australia without the mother's permission and the mother asked for them to come back. The father appealed a judge's decision and tried to add a new reason, but the court did not allow it. The court decided that the father should return the children to England and they will be able to be with the mother again.
Facts:
A father appealed a judge's order requiring the return of two children to England from Australia. The father had unilaterally suspended the mother's time with the children and had taken them to Australia without her knowledge or consent. The father's appeal was heard on 14 December 2022 and was dismissed, with the court noting the father's lack of notice to the mother, the long time the children had already been in Australia, and the possibility of further delays due to the father's potential to appeal again. The court allowed additional evidence to be admitted into the proceedings.
The evidence showed that the father had taken the children to medical professionals in Australia, and that the mother had proposed a settlement to the father prior to the Hague Convention proceedings. The court noted that the Hague Convention proceedings had likely caused further delays in the children returning to England. The court ultimately found that the father's appeal should be dismissed, and the children should be returned to England.
At the commencement of the hearing before us, senior counsel for the father sought to amend the grounds of appeal to include a new ground as follows: The primary judge erred in finding that the date of retention was able to be inconsistent from the case articulated by the Department of Communities and Justice. Neither the Department nor the Independent Children's Lawyer opposed that amendment, however we nonetheless refused it for the reasons which follow. By Order 2 of the orders of an appeal judicial registrar made on 4 November 2022, the hearing of the appeal was expedited.
Rule 13.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) permits grounds of appeal to be amended as of right up until the date fixed for the filing of the appellant’s Summary of Argument. Here, under the 4 November 2022 orders, that was Wednesday 23 November 2022 (Order 8). The father did not avail himself of that opportunity, and for that matter did not file his Summary of Argument until 28 November 2022. Although the latter failure was addressed by senior counsel for the father, the former was not.
Issue:
The father's appeal was refused due to the late amendment of the grounds of appeal.
Applicable law:
Analysis:
The primary judge was obliged to undertake an evaluative prediction based on the evidence which included an assessment of the likelihood of risks arising, which was subject to appellate review. The first risk of physical harm to the children by their own hand was found to be less likely to eventuate than the other risks. No evidence was presented to suggest that the children knew how or had the capacity to carry out the threats they had made. The risk of physical harm by their mother was rejected by the primary judge and not challenged in the appeal. The risk of psychological harm was ultimately found not to equate to a grave risk of that the return of the children to the United Kingdom would expose them to physical or psychological harm or otherwise place them in an intolerable situation. The primary judge considered all of the evidence and determined that the return of the children would not pose any risks of harm to them.
Conclusion:
The court in Appeal No. NAA 238 of 2022 has dismissed the appellant's Application in an Appeal filed 5 December 2022 and the respondent's Response to an Application in an Appeal dated 13 December 2022. Evidence admitted includes paragraphs 1-7 and 10-18 of the appellant's affidavit, and Annexures C, F and H to the affidavit, as well as the affidavit of Ms T and its annexures. The appellant is to pay the Independent Children's Lawyer's costs in the sum of $11,682 within 28 days.
Case: Department of Communities and Justice & Hays [2022] FedCFamC1F 752
Judgment of: ALDRIDGE, AUSTIN & TREE JJ
Counsels:
