The recent case of Coma & Coma  FamCAFC 99 (‘Coma & Coma’) considered the issue of whether a Father, who was not party to the initial proceedings, has the right to appeal a decision to refuse to make a return order.
On 17 December 2018, the Mother obtained the Father’s consent to take their three children to Australia from Columbia. The mother failed to return the children to Columbia on the agreed date of 15 January 2019 and the children remained in Australia. On 6 December 2019, the primary Judge refused an application by the Central Authority pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘the Regulations’) seeking an order for the return of the three children to Colombia. The Primary Judge rejected the Mother’s contention that the children never became habitually resident in Columbia, that the children acquired habitual residence in Australia and that the Father consented to the children remaining in Australia. Despite these findings, the Primary Judge concluded that there was a grave risk of harm that the return of the children to Columbia would expose the children to psychological harm and place the children in an intolerable situation. The Primary Judge also relied on a report conducted by a Family Consultant which stated that if the children returned to Columbia, they would be impacted significantly due to adjustment issues and their ability to emotionally cope.
The Father sought leave to appeal from that Order. The Mother opposed the Central Authority’s application and also opposed the Father’s application for leave to appeal and the appeal if leave was granted. The issue at hand was whether the Father required leave to appeal the Central Authority’s decision, given that he was not technically a party to the proceedings.
Counsel for the Father relied on principles in Panayotides v Panayotides (1997) FLC 92-733 (‘Panayotides’) to suggest that the Father had a right to apply for and granted leave to appeal. Reference was also made to regulation 14(1) of the Regulations which provides that a person with rights of custody can apply to the Court. In Panayotides, the Full Court of the Family Court held that the Father had an interest of such a character that he was entitled to appeal. It was found that the proceedings were brought in the name of the State Central Authority but on behalf of the Father and he was “substantially, if not technically, a party”. This expression is from the High Court decision of Cuthbertson v Hobart Corporation (1921) 30 CRL 16 where it was held that “leave to appeal is given as a rule if the person applying though not a party to the proceedings, might property have been one.” Therefore, the Full Court of the Family Court in Coma & Coma held that the appeal was brought on proper grounds and could not be characterised as vexatious. Further, it was axiomatic to grant the leave to appeal given that natural justice requires the appellant to have the right to be heard on appeal.
In light of the rapid developments and travel restrictions being brought about by the COVID-19 pandemic, the Court requested submissions about travel to Columbia in the event that a return order was made, an order that the father sought on appeal. The Court also noted that the onset of the global pandemic had brought significant changes since the initial hearing in December 2019 and therefore the parties must have an opportunity to provide evidence before the Court as to the relevant effect of such changes. Senior Counsel for the father acknowledged that what may apply today may be different in a week and submitted that the children would have visa entitlements if they resided in Columbia.
In Coma & Coma, it was also held that the Primary Judge had erred in relying on the report from the Family Consultant which failed to consider the Father’s affidavit and it was also apparent that the Family Consultant had not interviewed the Father for the purpose of the report. Therefore, the Family Consultant had made no assessment of the Father’s evidence. The Full Court found that given that a question of grave risk must be considered in light of all relevant evidence and the appropriate course is to remit the proceedings for rehearing.
By Olivia Melville, Associate