Father Seeks Leave to Appeal Against Mother's Application for Production

Sterling & Sterling [2022] FedCFamC1A 3 (27 January 2022)

The mother applied for the production and inspection of the father’s lawyer’s file.  The father seeks leave to appeal from an order of the primary judge compelling the production and inspection of his lawyer’s file in antecedent Hague proceedings.  The Court, in adjudicating this dispute observed how the issue before the primary judge was an entirely factual question of the determination of the child’s place of habitual residence.

Facts:

The mother is a German citizen and, in July 2019, the family travelled to Germany for a holiday.  The father returned to Australia a few weeks later and then, in September 2019, the mother informed him she would not return to Australia with the child.  The mother promptly commenced proceedings in Germany seeking parenting orders for the child, but her application was dismissed on 1 October 2019.  The German court found the child was habitually resident in Australia and the German court lacked jurisdiction to grant the relief sought by the mother.

It was held that the jurisdiction of German courts for issuing the custody-related court orders as well as the prerequisites for the issuing of an interlocutory order are lacking.  In the present case, international jurisdiction of the courts is defined by the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (Convention on Parental Responsibility and Protection of Children) as well as by the Hague Convention on the Civil Aspects of International Child Abduction.  Both Germany as well as Australia are members of the Hague Conference on Private International Law, and both of the above Conventions therefore apply.  Proceedings were commenced in Germany under the 1980 Hague Convention for orders enforcing the child’s return to Australia. 

During those proceedings, the father received legal advice from, and was separately represented by, a German lawyer.  The German Hague Convention proceedings were listed for hearing in September 2020, but the hearing was adjourned as the parties tried to negotiate a compromise.  To that end, the parties signed an agreement in early November 2020 providing for the mother and child to return to Australia for the period between December 2020 and March 2021, during which the child would enjoy “generous contact rights” with the father.  The mother and child duly returned to Australia in late December 2020 and, because of the pandemic restrictions, were quarantined until mid-January 2021. 

Before their scheduled return to Germany in late March 2021, the father commenced proceedings in the Family Court of Australia seeking orders affecting the child.  The father sought a declaration that the child was habitually resident in Australia, orders for the parties to have equal shared parental responsibility for the child and for them to share her care; and injunctions restraining the mother’s removal of the child from Australia or beyond a radius of 20 kilometres from his home.  The mother opposed the father’s application and instead applied for the Court to declare the child was habitually resident in Germany.  The appealed orders made on 6 August 2021 determined only the discrete dispute over the waiver of legal professional privilege and access to the German lawyer’s file.

On 6 August 2021, a judge of the Family Court of Australia granted the solicitors for the mother leave to inspect the father’s German solicitor’s file from the date of instructions to the date of conclusion of instructions.  The father is to do all acts and things to facilitate compliance with the inspection of documents referred to in Order 1 hereof.   All extant interim applications are otherwise dismissed.  The appellant father appeals from all of those orders but, in reality, the appeal concerns only the first two orders, the effect of which is to override legal professional privilege claimed by the father and authorise the respondent mother’s inspection of his German lawyer’s file.

Issue:

Whether or not the jurisdiction could be exercised to make the orders for which the father applied.  

Applicable law:

Family Law Act 1975 (Cth) 111CD - provides that instances wherein a court may exercise jurisdiction for a Commonwealth personal protection measure.

Family Law Act 1975 (Cth) 111CF - provides that if the child is found to be habitually resident in Germany, which is a determination yet to be made by the primary judge, there may be other statutory impediments to the exercise of Australian jurisdiction.

Analysis:

The child was present in Australia and is not a “refugee child”, so ss 111CD(1)(c), 111CD(1)(d) and 111CD(1)(e) could have no application. The application of ss 111CD(1)(a), 111CD(1)(b) or 111CD(1)(f) depends upon whether or not the child is habitually resident in either Australia or Germany, as the parties accept it could not be anywhere else.  The mother submitted to the primary judge that the file was likely to be relevant to, and probative of, the father’s acquiescence to the German jurisdiction.  However, if the child is found to be habitually resident in Germany, which is a determination yet to be made by the primary judge, there may be other statutory impediments to the exercise of Australian jurisdiction (s 111CF).

As an entirely factual question, the determination of the child’s place of habitual residence could not conceivably be materially influenced by any communication between the father and his German lawyer concerning the prior German proceedings.  No opinion expressed by the German lawyer, nor any belief held and expressed by the father when instructing the lawyer, could be construed as admissions to help prove where the child habitually resided, since their opinions and beliefs could be completely misguided.  The father’s German lawyer might have recorded an instruction given by the father that he intended the child should instead live with the mother in Germany, which record would then be relevant because the father’s intentions for the child are liable to influence the determination of the child’s place of habitual residence.  However, it is highly unlikely the father would have made any such admission, as it would be repugnant to the object of the proceedings he instigated in Germany for the child’s enforced return to Australia and also the proceedings he then started in Australia to restrain the child’s removal back to Germany.  Even if there was material in the German lawyer’s file relevant to the question of the child’s place of habitual residence, and even if it be accepted the father waived privilege, it was an error to make a blanket order for the production and inspection of all the documents in the German lawyer’s file when the mother’s oral application was (or could only have been) for the production of and access to the file notes arising from the father’s conference with his lawyer on or about 9 November 2020.

Conclusion:

The Court granted the leave to appeal from the orders made on 6 August 2021.  The appeal is allowed.  The oral application made by the respondent concerning the production and inspection of the appellant’s German lawyer’s file is dismissed.  The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).