Appellate Court of Commonsense !

My favourite Judgments from the Full Court (or perhaps I should get with the times and say "from the Judges of the Appellate Jurisdiction") are the ones which inject good clear commonsense as well as some gratuitously helpful remarks which are insightful and cut straight to the chase for parties and practitioners.

Indirectly, sometimes those Judgments promote that lawyers and parties have wasted time on something which was a bit of a sideshow.

The decision in Sterling is one such decision. (Link here.)

The parties already had important subject matter consuming their time, minds and resources, as they were litigating an international parenting case, where the Mother wanted to live in Germany with the parties' one child after the conclusion of their relationship in 2019.

The Mother, a German citizen, met and commenced a relationship with the Father in Australia in 2013, they married in 2018 and their child was born in March, 2019.

In July, 2019, the parties left to holiday in Germany, where, in September, 2019, the Mother informed the Father that she would not be returning to Australia and intended to remain in Germany with the child.

The Mother immediately commenced proceedings in Germany for parenting Orders.

Her Application to the Courts there, was dismissed on 1st October, 2019.

The decision of the German Court was translated for use in Sterling as having been on the basis that:

Both 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.

According to Art. 5(1) of the Convention on Parental Responsibility and Protection of Children?Australian courts have exclusive jurisdiction.?The habitual place of residence of the daughter of the parties to the proceedings, [the child], who was born [date], is in Australia. She was born there, and she lived there with her parents at least until the beginning of September of 2019.

The decision of the German Court on 1st October, 2019, did not see the child's immediate return, so the Father commenced Hague Convention Proceedings. Those were due to come on for trial in September, 2020, but the hearing was adjourned to allow the parties to seek to resolve the matter by negotiation.

The parties negotiated an arrangement where the Mother and child would travel to Australia in December, 2020 and remain there until March, 2021 and that during this period, the child would enjoy significant periods with the Father.

The German Court ratified the agreement and the proceedings there were suspended.

In what was visible a mile away, after the parties and the child all arrived here in Australia, the Father commenced parenting proceedings in Australia and sought urgent interim Orders.

No doubt, he used the coverage of Section 65Y Family Law Act 1975 and the entitlement to seek a departure alert be put in place on filing proceedings so as to practically stop a departure.

The parties competing Applications asked the Australian Court to determine "habitual residence".

During the litigation, Mr Sterling must have been made very much more anxious, when Counsel for his Wife stood and made an oral application to a single Judge of the Family Court of Australia (as it then was), that the entire contents of his lawyers' files were to be made available for inspection by the Wife.

This arose because Mr Sterling had chosen to file an Affidavit, which contained the following deposition, "38. On 9 November 2020, I consulted with [my German lawyer]. I understood that the Interim Agreement would not prejudice my Hague Application." (Affidavit of the father filed 23 March 2021)

By those sentences, Mr Sterling was revealing his legal advice about a particular issue in aid of his arguments before the Court and to explain his reasoning and actions.

The trial Judge proceeded to make an Order permitting the Wife to inspect the Husband's German Lawyers' files. The trial Judge's reasoning included the following:-

34. One of the central issues raised by the father in the proceeding before this court, is the validity of the German orders and whether or not he provided an informed consent to the making of the orders. He has cast dispersions on the accuracy of the German orders, his understanding of them and the process leading up to his consent to the orders.

35. I accept the submissions of the mother in relation to the father putting in issue the nature and efficacy of the legal advice he received from his German lawyer, prior to entering into the November orders. It is also apparent that he has attempted to explain the rationale for providing his consent to the German orders and the legal advice which formed the basis of that consent. That is so in both his affidavit of 23 March 2021 at [32]-[41] and his Summary of Argument prepared for the hearing on 17 May 2021.

and

42. I agree with the submissions on behalf of the m other (sic) that the file note disclosing the father’s lawyer’s version of his instructions and advice will likely have a direct bearing upon what status to give the German orders under both conventions and/or private international law, which is a matter relevant to the jurisdictional issue.

The Husband appealed the Order requiring his German Lawyers files to be disclosed.

The Appellate Court allowed his appeal.

In effect, it concluded the loss of privilege argument was an expensive sideshow, as it determined that any possible contents of the Father's German Lawyers' file would be entirely irrelevant to the true issues in dispute between the parties.

The Court determine that because the only contentious issue which might affect the exercise of Australian jurisdiction was the identification of the child’s place of habitual residence, it concluded that there was no possibility that the file of the father’s German lawyer could be relevant – it not being in doubt that the determination of the child’s place of habitual residence is an entirely factual question (LK v Director-General, Department of Community Services?[2009] HCA 9;?(2009) 237 CLR 582?(“LK”)).

Of course, the Appellate Court was saying that when the Court is being asked to consider loss of legal professional privilege applications, the subject matter in the files must be of relevance to the dispute the Court must determine.

The Court starkly pointed out that, "Regardless of whether the father waived his legal professional privilege by his conduct, which is another issue by which the parties were distracted, there was no need to compel his surrender of the confidentiality he reposed in the lawyer/client communications."

The Court did not stop their practical punches coming.

The Appellate Court, consisting of Justices Austin, Berman and Harper, concluded that a finding that there was a threshhold question about jurisdiction being reposed in the Australian Court under Section 111CD FLA, was a conflation.

Their Honours made plain that the Court had the power to make parenting Orders via Sections 69E and 69H in Part VII of the FLA, whereas Section 111CD was a provision which was concerned with the need to find jurisdiction to enable a Court to make Commonwealth personal protection matters under an entirely different part, being Part XIIIAA FLA.

As the child was present in Australia, the Appellate Division said of course jurisdiction existed per Section 69E(1)(a) FLA and it could proceed to make Orders about parental responsibility, lives with Orders and spends time with Orders.

Finally, whilst the Court did remark that it was "[not] wishing to trespass on issues not raised in the appeal," it nevertheless did so with two punchy closing points.

Firstly, the Court said that it was plain within the German proceedings the Mother brought in September 2019, and which were dismissed in October 2019, that the German Courts had determined the child’s place of habitual residence to be Australia.

The Court: "The parties’ conduct of the Australian proceedings implies they do not consider they are now estopped from disputing that jurisdictional fact. We do not wish it to be thought that, by not mentioning it, we are necessarily endorsing their acceptance of that position as being correct."

Secondly, when the Father filed his Initiating Application in the Australian proceedings, he sought to refer to the Child Abduction Regulations, which are made pursuant to Pt XIIIAA, Div 2 of the Act, and embody the?1980 Hague Convention.

The Court: "[The Father's] purported invocation of the Child Abduction Regulations is inapposite, as the child is presently in Australia, which is where he wants the child to stay."

This decision highlights to a reader that Legal Professional Privilege arguments can be an extremely expensive sideshow, causing the main proceeding to suffer the attending delays of running the Appeal.

It also highlights the obvious need for there to be prima facie relevant material contained in the files to which access is sought by the loss of privilege.

Finally, the Appellate Court will likely have triggered for the litigants and their lawyers (in each Country), some very likely fee discounting requests, some reflection about the nature of the Orders lawyers thought should be applied for and reflection concerning the priority amending of Applications before the Court.

Thanks for reading.