FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Barnett & Secretary, Department of Communities and Justice [2022]

FedCFamC1A 20
Appeal from: Secretary, NSW Department of Communities and Justice &
Barnett [2021] FamCA 439

Appeal number(s): EAA 81 of 2021

File number(s): Error: Reference source not found

Judgment of: ALDRIDGE, HOGAN & HANNAM JJ

Date of judgment: 18 February 2022

Catchwords: FAMILY LAW – APPEAL – CHILD ABDUCTION –

Hague Convention – Appeal by the mother from orders
requiring a child to be returned to Ireland – Whether father
had rights of custody before the removal of the child –
Where the primary judge relied on a declaration obtained
by the father from an Irish court – Res judicata – Issue
estoppel – The primary judge was correct in applying
principles of issue estoppel – Appeal dismissed – No order
as to costs.

Legislation: Evidence Act 1995 (Cth) ss 91(1), 93

Guardianship of Infants Act 1964 (IR) ss 2, 3, 6A, 6B(3),
6F, 11
Family Law (Child Abduction Convention) Regulations
1986 (Cth) regs 4, 16(1A)
Hague Convention on the Civil Aspects of International
Child Abduction

Cases cited: Clayton v Bant (2020) 385 ALR 41; [2020] HCA 44
L.C. v K.C. [2019] IEHC 513
Tomlinson v Ramsay Food Processing (2015) 256 CLR
507; [2015] HCA 28

Number of paragraphs: 72

Date of hearing: 27 September 2021

Place: Sydney (via video link)

Counsel for the Appellant: Ms Hartstein

Solicitor for the Appellant: Hague Convention Legal Practice

Counsel for the Respondent: Dr Barnett

Solicitor for the Respondent: DCJ Legal, Department of Communities and Justice

Barnett & Secretary, Department of Communities and Justice [2022] FedCFamC1A 20

 ORDERS

EAA 81 of 2021
SYC 998 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN: MS BARNETT
Appellant

AND: SECRETARY, DEPARTMENT OF COMMUNITIES AND

JUSTICE
Respondent

ORDER MADE BY: ALDRIDGE, HOGAN & HANNAM JJ

DATE OF ORDER: 18 FEBRUARY 2022

THE COURT ORDERS THAT:

1. The appeal against the orders made on 25 June 2021 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 Barnett
& Secretary, Department of Communities and Justice has been approved pursuant to s 121(9)
(g) of the Family Law Act 1975 (Cth).

Barnett & Secretary, Department of Communities and Justice [2022] FedCFamC1A 20 i

 REASONS FOR JUDGMENT

ALDRIDGE & HANNAM JJ:

INTRODUCTION
1 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”).

2 The fundamental issue in the appeal, as it was before the primary judge, was whether as at
30 August 2020, the father had “rights of custody” as required by reg 16(1A)(c) of the
Regulations.

3 The mother’s contention was that at that date the father had no rights of custody, or
alternatively, it could not be established that he had such rights.

BACKGROUND
4 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.

5 In 2019, the child was born in Ireland.

6 The parties are in dispute about many matters associated with the living arrangements for the
child. There is no dispute that they experienced some difficulties in their relationship from at
least the commencement of 2020.

7 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.

8 On 30 August 2020, the mother left Ireland with the child without the knowledge of the
father.

9 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
Barnett & Secretary, Department of Communities and Justice [2022] FedCFamC1A 20 1
 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.

10 The father subsequently filed a further application seeking a declaration of guardianship

pursuant to s 6F of the Guardianship Act.

11 In the meantime 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.

12 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”).

13 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.

14 On 12 April 2021, a declaration (“the declaration”) was made by the District Court pursuant
to s 6F of the Guardianship Act in the following terms:

THE COURT … HEREBY DELCARES THAT [THE FATHER], a person named in

the application *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.
(Affidavit of Ms C filed on 19 May 2021, Annexure “E”)

15 The appellant has appealed the interim order and the declaration made in Ireland. These
appeals are yet to be set down for hearing in Ireland.

THE PRIMARY JUDGE’S REASONS

16 The hearing before the primary judge took place on 31 May 2021 and final orders were made
on 25 June 2021 which provided for the child to return to Ireland and that the mother be at
liberty to accompany the child.

17 As required by reg 16(1A)(c) of the Regulations, the primary judge found that the removal of
the child from Ireland by the mother was unlawful as the father had rights of custody with
respect to the child under the Guardianship Act. There was no dispute that Ireland was the
country in which the child habitually resided immediately before her removal.

18 In finding that the father had rights of custody in relation to the child, the primary judge
relied upon the declaration made by the District Court on 12 April 2021.

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19 In particular, her Honour inferred from the declaration itself and the fact that any cohabitation
between the parties ceased on 30 August 2020, that the District Court on “an examination of
the facts which existed for the relevant period” prior to that date (at [93]), must have been
satisfied that the circumstances set out in s 2(4A) and s 6B(3) of the Guardianship Act were
met as at that date. This had the effect that at that date the father had “automatic rights of
guardianship” because as a person who fell within those circumstances he was entitled to a
declaration of guardianship (at [90]–[91]). As the cohabitation ceased on 30 August 2020, at
the latest, the father must have had those automatic rights prior to that date.

20 Her Honour found that these automatic rights sufficed to fulfil the requirement of “rights of
custody” for the purposes of reg 4 of the Regulations (at [101]).

21 Finally, her Honour concluded that the decision of the District Court gave rise to a res
judicata and issue estoppel which bound the parties and thus could not re-determine any
factual issues (at [119]). As the existence of rights of custody as at 30 August 2020 was the
only issue in the proceedings, an order for the return of the child was made.

22 Similarly, there was but one issue on the appeal which, although the ground of appeal was
expressed more broadly, was whether the primary judge was correct in finding that the
evidence established that the father had rights of custody on 30 August 2020. The mother did
not direct any submissions as to whether the “automatic rights of guardianship” amounted to
rights of custody for the purpose of reg 4 and that, therefore, is not an issue we need to
determine.

23 We now turn, by way of introduction, to the relevant provisions of the Guardianship Act.
Until that Act was amended in 2016, fathers of ex-nuptial children did not have any rights of
custody.

24 Section 6 of the Guardianship Act provides that the father and mother of the child “shall be
guardians of the child jointly”. Section 2(1) of the Guardianship Act defines a father as
follows:

2. –
(1) In this Act, except where the context otherwise requires—
…
“‘father’ includes a male adopter under an adoption order but subject
to section 11(4), does not include the father of a child who has not
married that child’s mother unless—

Barnett & Secretary, Department of Communities and Justice [2022] FedCFamC1A 20 3

 (a) an order under section 6A is in force in respect of that child,
(b) the circumstances set out in subsection (3) of this section
apply,
(c) the circumstances set out in subsection (4) of this section
apply,
(d) the circumstances set out in subsection (4A) of this section
apply, or
(e) the father is a guardian of the child by virtue of section 6D.

25 The State Central Authority relies on s 2(1)(d) of the Guardianship Act which directs
attention to s 2(4A) of that Act and provides:

2. –
…
(4A) The circumstances referred to in paragraph (d) of the definition of ‘father’ in
subsection (1) are that the father and mother of the child concerned—
(a) have not married each other, and
(b) 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 father have lived with the child.

26 The circumstances set out in s 6B(3) are identical to those in s 2(4A) of the Guardianship Act.

27 The declaration was made pursuant to s 6F of the Guardianship Act which relevantly
provides:

6F. –
(1) A person specified in subsection (2) may apply to the court for a declaration
under this section that a person named in the application is or is not a
guardian by virtue of the circumstances set out in section 2(4A) or 6B(3) of a
child named in the application (in this section referred to as the ‘child
concerned’).
(2) An application for a declaration under this section may be made, in relation
to a child concerned, by—
(a) a guardian of the child concerned, or
(b) a person seeking a declaration that he or she is or is not a guardian by
virtue of the circumstances set out in section 2(4A) or 6B(3) of the
child concerned.
(3) An application for a declaration under this section shall not be made in
relation to a child concerned other than—

Barnett & Secretary, Department of Communities and Justice [2022] FedCFamC1A 20 4

 (a) where the application is made by a person referred to in subsection
(2)(a), on notice to each other guardian of the child and the person
named in the application in relation to whom the declaration is
sought, and
(b) where the application is made by a person referred to in subsection
(2)(b), on notice to each guardian of the child.
…
(5) Where on an application for a declaration under this section it is proved on
the balance of probabilities that a person named in the application is or is not
a guardian by virtue of the circumstances set out in section 2(4A) or 6B(3) of
the child concerned, the court shall make the declaration accordingly.

28 Subsection 5 is of critical importance in that it provides that the court shall make a
declaration if it is satisfied that the definition has been met. Mr K, one of the expert
witnesses, opined that whilst “shall”, when read in the context of a provision may not be
mandatory, there was no reason to think that, in the context of the above provisions, it bore
other than its usual meaning.

29 The primary judge identified the issues to be decided as follows:

74. In support of the proposition that the effect of the declaration made 12 April
2021 was that the father had “rights of custody” as at 30 August 2020,
Counsel for the State Central Authority submitted, firstly, because the
declaration refers to the court being satisfied that the circumstances set out in
s 2(4A) and s 6B(3) which are the cohabitation requirements of the
Guardianship Act, have been satisfied, the determination must have been
based on the factual circumstances of the parents prior to 30 August 2020, as
they did not cohabit after that date. It would be illogical to suggest that the
court would have examined the circumstances of the parties, subsequent to
that date, to establish the requisite cohabitation period.
75. Secondly, because s 6F of the Guardianship Act provides the ability of the
court to make a declaration, it does not flow that prior to the declaration such
rights did not exist…

30 After discussing a number of Irish authorities her Honour said:

87. In L.C. v K.C., at [55] Justice MacGrath, summarised the issue between the
parties in that case, namely whether the respondent, at the time the applicant
left the jurisdiction with her son, had automatic rights of guardianship, or
simply the right to apply for guardianship. Although that case was ultimately
decided on the basis of lack of procedural fairness, His Honour refers to the
legislative history of the amendments to the Guardianship Act.
88. At [31], His Honour summarises the law prior to the 2015 amendments as
follows:
[31] Section 12 of the Act of 1987 amended s.6 of the Act of 1964 by
inserting an additional section, s. 6A, which conferred upon the
father who was not married to the child’s mother a right to apply for

Barnett & Secretary, Department of Communities and Justice [2022] FedCFamC1A 20 5

 guardianship. Such father did not enjoy a defeasible right to be a
guardian. In summary, therefore, the natural father of a child born out
of wedlock did not have “automatic” rights to guardianship and in
the absence of agreement was required to apply to court to be the
child’s guardian.
89. In relation to the changes to the legislation brought about by the 2015
amendments, His Honour said at [32]:
[32] This position changed with the enactment of the Act of 2015.
This Act conferred upon “cohabitants” automatic rights to
guardianship in certain circumstances.
(Emphasis in original)

31 We pause to note that neither of the two expert witnesses in the matter drew any other
authority to her Honour’s attention. Her Honour was therefore entitled to take the words of
MacGrath J to be the existing state of the law in Ireland despite the fact that those comments
were obiter (as recognised at [84] and [92]).

32 The primary judge concluded:

90. As stated in the previous paragraph, the effect of the January 2016
amendments, as stated by MacGrath J in L.C. v K.C. was to confer automatic
rights to guardianship. The certain circumstances referred to by His Honour
would of necessity be the of [sic] requirements of ss 2(4A) and 6B(3) of the
Guardianship Act.
91. The point of the Irish proceedings, which is evident from the written
submissions of each of the parties annexed to affidavits in these proceedings,
was to both determine whether the child was habitually resident in Ireland
and whether or not the cohabitation requirements of the legislation had been
satisfied. I am able to infer from the declaration that the court was satisfied
on the requisite standard of proof, as to both matters, thereby invoking, in the
words of MacGrath J, automatic rights of guardianship.
…
93. As submitted by Counsel for the State Central Authority, the issue in the Irish
proceedings focused on the factual situation of the parties to determine
whether they were “cohabitants” for the requisite period of time, so that the
father, would come within the definition of father in s 2(4A) of the
Guardianship Act, and would therefore be entitled to apply for a Declaration
of Guardianship pursuant to s 6F of the Act. That would of necessity involve
an examination of the facts which existed for the relevant period prior to 30
August 2020, as the parties clearly did not live together subsequent to 30
August 2020 and any finding would have to be based on the factual events
prior to 30 August 2020.
…
95. In the context of the statements in both H.I. v M.G., J. McB v L.E and L.C. v
K.C, and having considered the submissions of both Counsel, I am
persuaded, on the balance of probabilities, and so find that the father’s rights
of custody were in existence as at 30 August 2020, when the mother and

Barnett & Secretary, Department of Communities and Justice [2022] FedCFamC1A 20 6

 child left the jurisdiction. In particular, the comments of MacGrath J in L.C. v
K.C. pertaining to the legislative changes and the conferral of “automatic
rights to guardianship” lend weight to my conclusion. To do otherwise,
would also have the unintended effect of rendering the Convention
ineffective, where it is sought to return to Ireland, a child whose parents are
not married, when a requesting father has not obtained either an order
pursuant to s 6A or a declaration pursuant to s 6F of the Act, prior to the
child’s departure from Ireland, in circumstances when the Irish legislation
was amended in January 2016.

33 We pause to note here that we do not agree that the last sentence of [95] is correct.

34 The purpose of the Convention and the Regulations which give effect to it, is to return
children to the jurisdiction from which they were removed or to which they were returned, if
the requirements of the Convention and the Regulations are met. Thus, if it is an essential
step that for such orders to be made the requesting parent or body must establish rights of
custody at a relevant time then if those rights are not established, the Convention is given
effect by not returning the child. The intended effect is to require return only when the
preconditions set out in the Regulations are met.

35 As was accepted by Mr K the question of whether whatever rights the father held amounted
to rights of custody for the purpose of the Convention and Regulations, was a matter for the
Australian courts (Affidavit of Ms C filed on 19 May 2021, Annexure “B”).

36 The primary judge found that “the rights conferred by the declaration of the Irish court on
12 April 2021, fall within the definition of “rights of custody” for the purposes of
Regulation 4” (at [101]).

37 In short, her Honour found that the law in Ireland was that if the father met the definition of
s 2(4A) of the Guardianship Act, then he was automatically entitled to a declaration of
guardianship. Thus, the declaration to that effect necessarily involved a finding that the
definition was met by events which occurred by 30 August 2020. The decision of the District
Court to that effect gave rise to a res judicata and claims estoppel.

38 Then, applying Australian law, her Honour found that the automatic right to apply for a
guardianship declaration was sufficient to create rights of custody for the purposes of reg 4 of
the Regulations.

THE APPEAL
39 The mother’s first submission was that s 91(1) of the Evidence Act 1995 (Cth) prevented the
primary judge from looking to the declaration or the decision of the District Court “to prove

Barnett & Secretary, Department of Communities and Justice [2022] FedCFamC1A 20 7

 the existence of a fact that was in issue in that proceeding” (Mother’s Summary of Argument
filed on 1 September 2021, paragraph 8). However, as conceded in the course of oral
submissions, that section does not affect the operation of a judgment in rem, which is the case
under consideration, or the law relating to res judicata or issue estoppel (s 93(b) and s 93(c)
of the Evidence Act 1995 (Cth)).

40 The next submission was that the primary judge was entitled, if not obliged, to determine, for
herself, whether the circumstances and the application of Irish law meant that the father had
rights of custody as at 30 August 2020. Recognising that the question of Irish law is a
question of fact, counsel for the mother pointed to the following conclusions of Mr K:

22. …
“It is my opinion that it cannot, firstly, be stated with certainty that [the father’s] rights under
Irish law at that time did not constitute a right of custody under the Convention, as a matter of
the interpretation of the Hague Convention by the Irish Courts.
“Further, it is my Opinion for the reasons detailed above, that there is a real sustainable
argument to be made that as of the 30 th August, [the father’s] rights did amount to a right of
custody within the Convention. …”
(Mother’s Summary of Argument filed on 1 September 2021, paragraph 22)
(Emphasis in original)

41 As to the first point, the use of the double negative is interesting and suggests that the more
likely position is that the father’s rights did amount to rights of custody. As to the second
point, as stated earlier, it was for the Court in Australia to determine whether the rights held
by the father, at that date, amounted to rights of custody for the purpose of reg 4 of the
Regulations. As we have said, that is precisely what her Honour did.

42 We do not see Mr K’s opinion as giving rise to such uncertainty in the content of the law in
Ireland which would prevent the primary judge from making findings as to it. Her Honour
was entitled to give effect to the remarks in L.C. v K.C. [2019] IEHC 513.

43 That brings us to the declaration itself and the questions of res judicata and issue estoppel.

44 The mother submitted in her Summary of Argument filed on 1 September 2021, that neither
doctrine applies because:

(a) The declaration is only prospective and does not determine the position as at
30 August 2020;

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 (b) The facts that were found that led to the declaration being made are not known as
there are no reasons and it is unknown at what point the father met the criteria to be a
guardian;
(c) In the District Court the father relied on events which occurred after 30 August 2020
so it is possible that the District Court found that the definitions were only met after
that date; and
(d) The father sought an interim guardianship order on 29 October 2020 which indicates
that the father did not have any rights at that time or, at least, he considered that he
had no such rights.

Res Judicata
45 In Tomlinson v Ramsay Food Processing (2015) 256 CLR 507 (“Tomlinson”) the High Court
of Australia referred to an exercise of judicial power which involved a decision that settled
the question of the existence of an obligation or right and said:

20. … The rendering of a final judgment in that way “quells” the controversy
between those persons. The rights and obligations in controversy, as between
those persons, cease to have an independent existence: they “merge” in that
final judgment. That merger has long been treated in Australia as equating to
“res judicata” in the strict sense.
(Footnotes omitted)

46 As noted earlier, the decision of the District Court was one in rem and therefore no question
arose as to whether the father and the State Central Authority were privies.

47 The present parties are therefore bound by the decision but it is important to see what
controversies were quelled by it. The District Court declared 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
[Guardianship] Act”.

48 The parties accept that the declaration was prospective only and was not a declaration as to
the father’s status on 30 August 2020. The father’s claim to be a guardian was recognised by
the declaration. His right to seek such a declaration merged into the order which was made so
that the declaration itself was the source of his rights thus giving rise to a res judicata. That
declaration, however, was only as to the position from 12 April 2021 and did not determine
the father’s claim that on 30 August 2020 he had an automatic right to seek such a
declaration.

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49 We consider that the primary judge was not correct in relying upon res judicata.

Issue Estoppel
50 In Tomlinson the High Court described issue estoppel, in the following way:

22. … Estoppel in that form operates to preclude the raising in a subsequent

proceeding of an ultimate issue of fact or law which was necessarily resolved
as a step in reaching the determination made in the judgment. The classic
expression of the primary consequence of its operation is that a “judicial
determination directly involving an issue of fact or of law disposes once for
all of the issue, so that it cannot afterwards be raised between the same
parties or their privies”.
(Citations omitted)

51 In looking to see what was necessarily decided, the court may have regard to the pleadings,
the evidence and the reasons for the decision. In Clayton v Bant (2020) 385 ALR 41
(“Clayton”), it was said that “[t]he best approach is to recognise that both the legal right
claimed and decided and the pleaded or asserted facts are relevant” (at [68]). That the
characterisation is to be one of substance rather than form (Clayton at [68] per Edelman J).

52 The State Central Authority submits that as the mother and child left Ireland on 30 August
2020 and as the District Court determined that the father had met the requisite definitions in s
2(4A) and s 6B(3) of the Guardianship Act (that being cohabitation for 12 months and living
continuously with the mother and child for three months) the Court must necessarily have
determined that those criteria were met as at 30 August 2020. It follows, according to the
State Central Authority, that as those criteria were met on that date, the issue as to whether
the father had a right to become a guardian on that date has necessarily been determined.

53 Although the reasons of the District Court were not available some documents that were
before the District Court were in evidence before the primary judge. Included amongst that
evidence were written Case Outlines from counsel for the mother and the father.

54 In their Case Outline, the father’s senior and junior counsel identified the father’s contention
as cohabitation commencing on 6 May 2019 and lasting until 9 June 2020, resuming on 1
July 2020 and lasting until 30 August 2020 (Affidavit of Ms C filed on 19 May 2021,
Annexure “F”, paragraph 17). Thus, whatever the nature of the evidence itself before the
District Court, which was not before the primary judge, the father eschewed any reliance on
matters arising after 30 August 2020. There can therefore be no uncertainty or speculation

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 that the period of cohabitation, as found by the District Court, extended beyond that date. The
statutory definitions must, therefore, have been met on or before that date.

55 It is to be recalled that the declaration was founded on a satisfaction that, in the

circumstances, the definitions in s 2(4A) and s 6B(3) of the Guardianship Act had been met.
The periods of cohabitation referred to in them, which the declaration recognised had
occurred, must have taken place before. They are the essential elements of the claim to be a
guardian and must have been established for it to be made.

56 It follows that the mother’s submissions have not been made out and the primary judge was
correct in applying the principles of issue estoppel.

57 The father obtained an interim order from the District Court for guardianship of the child
pursuant to s 6A of the Guardianship Act on 29 October 2020. That section provides that a
parent of a child who is not a guardian may be appointed as one. The section does not provide
any criteria for appointment so it appears that the general requirement is that the court shall
regard the best interests of the child as paramount (s 3 of the Guardianship Act) applies.

58 Significantly, the order was an interim order. Further, the appointment under that section does
not depend on the father satisfying the court that definitions in s 2(4A) or s 6B(3) of the
Guardianship Act are met. For these two reasons her Honour did not accord any weight to the
29 October 2020 order.

59 The mother did not seek to challenge those findings but asserts that in making the application
under that section it must be taken that the father accepted that, at that time, he did not have
the rights that would entitle him to an order under s 6F of the Guardianship Act. That,
however, is a submission that is relevant to the question of whether an order under s 6F
should be made and therefore is a submission that needed to be made, and perhaps was made,
to the District Court. The father’s subjective opinion cannot be relevant to the question of the
effect of that order once made.

CONCLUSION AND COSTS

60 It follows that the appeal will be dismissed.

61 No order as to costs was sought in that event.

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 HOGAN J:

62 I agree with the conclusion reached by Aldridge and Hannam JJ that the appeal should be
dismissed and with the orders that their Honours propose.

63 The sole ground of appeal in the Notice of Appeal filed on behalf of the mother is that the
primary judge “was in error in finding that the Central Authority had discharged its burden to
establish jurisdiction”.

64 Whilst suggestive of complaint about all of the matters the respondent is required, by reg
16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (“the
Regulations”), to establish in order that a return order is made, the reality is that the mother’s
contention is that the primary judge erred in finding that the State Central Authority had
established that, immediately before the child was removed from Ireland to Australia on
30 August 2020, the father had rights of custody in relation to her under the law of Ireland.

65 I am not persuaded that her Honour so erred.

66 It is clear that, 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, as I consider she was able to do, 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 father and mother of the child concerned:

(e) have not married each other; and

(f) 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.

67 Satisfaction of these circumstances also means that, under the Guardianship Act:

(g) the father of the child shall be a guardian of the child jointly with the mother of the
child; and

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 (h) the mother is not, alone, the guardian of the child – because the father is, under the
Guardianship Act, the guardian of the child.

68 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, in my view, 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.

69 I do not accept the submissions made by counsel for the mother to the effect that it was
unsafe for her Honour to rely on the declaration given that it was the subject of an appeal
commenced by the mother. I consider that her Honour was entitled – as was the father – to
rely on the correctness of the declaration.

70 At the time of the hearing before this Court, the appeal in relation to the declaration – and the
mother’s appeal against the interim order appointing the father as a guardian of the child –
remained undetermined by the relevant Irish court; subsequent inquiries made by this Court
revealed that, given that it is thought that the appeals may take some 4–5 days to hear, it will
be some time before the Irish court is able to dispose of the same.

71 Given the conclusion about the reliance which could be placed on the declaration, that the
Regulations are made so as to enable the performance by Australia of its obligations under
the Hague Convention on the Civil Aspects of International Child Abduction (“the
Convention”) and that the purpose of the Convention is directed to the prompt return of
children to their state of habitual residence, I am unpersuaded by the mother’s submission to
the effect that it would be unsafe for this Court to rely on the correctness of the declaration in
determining the appeal against the primary judge’s order for return.

72 Having had the opportunity to read the reasons for judgment delivered by Aldridge and
Hannam JJ, I:

(i) agree with their Honours’ disagreement with the last sentence of [95] of the primary
judge’s reasons on the basis that I do not consider it was open to the primary judge on

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 the evidence before her to form a view about the asserted “unintended effect of
rendering the Convention ineffective” as it is, of course, a matter for each contracting
state to determine the circumstances within which persons habitually resident in that
contracting state are accorded the rights necessary to establish the prerequisites for the
operation of the Convention; and
(j) respectfully disagree with their Honours’ assertion at [41] of the same that the opinion
of Mr K that “it cannot, firstly, be stated with certainty that [the father’s right’s] under
Irish law at that time did not constitute a right of custody under the Convention, as a
matter of the interpretation of the Convention by the Irish Courts” suggests that the
more likely position is that the father’s rights did amount to rights of custody,
especially given that Mr K then expressed the opinion that there is “a real sustainable
argument” that the father’s rights as at 30 August 2020 did “amount to a right of
custody within the Convention”.

I certify that the preceding seventy-

two (72) numbered paragraphs are a
true copy of the Reasons for
Judgment of the Honourable Justices
Aldridge, Hogan & Hannam.

Associate:

Dated: 18 February 2022

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