Dalton & Nagle (No 3) [2025] FedCFamC1A 63 (14 April 2025)

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dalton & Nagle has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an appeal brought by the mother from an order made on 3 December 2024 by a judge of the Family Court of Western Australia, summarily dismissing her application for parenting orders.
2. The second appellant did not participate and, even though the appeal was not contested by either respondent, it is dismissed for the following reasons.

1. The first appellant mother is the parent of two children. The first respondent father is the biological parent of the mother's elder child, but not of her younger child. Nonetheless, both children live with the father in New Zealand (at [39]).
2. The mother and father separated in August 2016 (at [16]). Proceedings in relation to both children were commenced in New Zealand by the father in January 2018 and, shortly thereafter, interim orders were made vesting him with the "day-to-day care" of both children (at [18]). The mother absconded with the children in November 2018, but they were restored to the father's care when a court warrant was executed (at [19]). More orders were thereafter made, but the children have predominantly lived with him ever since.
3. The New Zealand family law proceedings were heard in March 2024 and judgment was reserved (at [22]). In August 2024, while judgment was reserved, the mother applied to disqualify the New Zealand judge (at [24]), which application was listed for hearing in February 2025 (at [27]). In November 2024, the New Zealand judge was informed the mother had relocated to Western Australia and so the existing interim orders enabling the children to spend supervised time with her were suspended and fresh interim orders were instead made enabling them to communicate electronically with her (at [25] and [27]).
4. The mother instigated multiple other legal proceedings in New Zealand, including proceedings against the father for protection orders in her favour (at [21]) and proceedings against New Zealand government ministers and public servants agitating her complaints about the need to restore the children to her care (at [29]-[38]), which did not yield her any success.
5. Against that background, in November 2024, the mother commenced proceedings before the Family Court of Western Australia seeking interim and final parenting orders in respect of the children, even though judgment in the New Zealand family law proceedings was reserved (at [1] and [6]). By instituting the new proceedings, the mother relied upon her status as an Australia citizen who now resides in Western Australia (at [8]-[9]). She told the primary judge she voluntarily left New Zealand in November 2024 "for safety reasons" (at [9]).
6. By procedural orders made on 19 November 2024, the mother's parenting application was promptly listed before the primary judge on 2 December 2024 to afford her the chance to explain why it should not be summarily dismissed. Having heard from the mother at that hearing, his Honour summarily dismissed her application the following day on several alternate bases: it was an abuse of process (at [40]-[42]); the Court was a clearly inappropriate forum to entertain the application (at [43]); the Court lacked power to make the orders for which the mother applied (at [44]); and the application had no reasonable prospects of success (at [45]).
7. The mother appealed from the dismissal order on 27 December 2024.
8. In the meantime, the mother's application to disqualify the New Zealand judge was dismissed in February 2025 and the New Zealand family law proceedings were finalised by orders pronounced on 10 March 2025, which orders were promptly registered by the mother in the Family Court of Western Australia. In effect, the New Zealand orders vest the Court with guardianship of the children, appoint the father as the Court's agent to provide the children with day-to-day care, direct that the children have only supervised contact with the mother, and appoint the chief executive officer of the New Zealand Ministry for Children as the Court's agent to support the father's residential care of the children and to facilitate their supervised contact with the mother.

1. Two interlocutory appellate applications brought by the mother were determined in advance of the appeal hearing in April 2025.
2. On 28 January 2025, her application to review the orders made by the appeal registrar refusing her application to issue recovery orders, authorising the forcible recovery of the children from the father in New Zealand, was dismissed (Dalton & Nagle [2025] FedCFamC1A 4).
3. On 29 January 2025, her application for the summary grant of her appeal and the consequential remedial orders was dismissed (Dalton & Nagle (No 2) [2025] FedCFamC1A 5), so the appeal took its normal course to substantive hearing in April 2025.
4. A third interlocutory application filed by the mother on 14 January 2025 was not resolved. By that application she sought to adduce further evidence in the appeal, which was accepted for filing but listed for hearing in conjunction with the appeal (Dalton & Nagle at [3] and [8]), as is common practice (r 13.39(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules")).
5. The material the mother wanted to adduce as further evidence in the appeal comprised both the text of and the annexures to her lengthy affidavit filed on 14 January 2025. The text of the mother's affidavit is an argumentative narrative, not further evidence, and so it is not accepted. Nor are the annexures to her affidavit, which comprise:

(a) the primary judge's reasons for judgment (Annexure A);

(b) the mother's applications to the Australian Central Authority (Annexure B), annexing extracts of the children's birth certificates (Annexure C);

(c) correspondence between the mother and the Family Court of Western Australia (Annexures D, N and O);

(d) orders made by the primary judge on 19 November 2024 (Annexure E);

(e) past New Zealand court orders (Annexures F, G, H, S, U and V);

(f) the invoice for the mother's procurement of transcript (Annexure I);

(g) the transcript of the hearing before the primary judge (Annexure J);

(h) the mother's personal corrections of the transcript (Annexure K);

(i) the mother's written submissions filed in her application to the Supreme Court of New Zealand (Annexure L);

(j) reasons for judgment delivered by New Zealand courts (Annexures M and R);

(k) correspondence between the mother and the Australian Central Authority (Annexures P and Q);

(l) correspondence between the mother and New Zealand courts (Annexure T);

(m) correspondence between the mother and New Zealand police (Annexure W);

(n) the statement made by the mother to Western Australian police (Annexure X); and

(o) the mother's email correspondence with third persons (Annexures Y and Z).

1. Many of those documents are already contained within the appeal book, which makes the application superfluous to the extent of the overlap.
2. At the hearing, the mother made an oral application for permission to adduce even more evidence in the appeal in the form of another affidavit she swore or affirmed that morning. It was unnecessary to receive the second affidavit as an exhibit because the mother's submissions did not logically illuminate how either the contents of it or the annexures to her first affidavit could possibly help advance any ground of appeal, which is the usual purpose of further evidence in the appeal (CDJ v VAJ (1998) 197 CLR 172). Certainly, no submission was made and no evidence given by the mother in compliance with r 13.39(2)(b) of the Rules. In light of the recent final resolution of the New Zealand proceedings, the two applications to adduce further evidence in the appeal are dismissed as being futile.

1. At the commencement of the appeal, the mother made two oral applications to alter the complexion of the appeal. First, she wanted the Court to "recall, reconsider and rescind" the interlocutory decision made by Austin J on 28 January 2025. Secondly, she wanted to expand the scope of the appeal to include a separate challenge to the New Zealand orders made on 10 March 2025, registered by her in the Family Court of Western Australia on that date.
2. As to the first application, there is no reason to warrant reconsideration of the interlocutory decision made in the appeal on 28 January 2025. The primary judge summarily dismissed the mother's parenting application in December 2024. Any orders she sought within the original jurisdiction could not be made in the exercise of appellate jurisdiction unless and until she could demonstrate how the primary judgment was vitiated by appealable error. That enquiry was the purpose of the substantive appeal hearing.
3. As to the second application, this Court has no jurisdiction to entertain an appeal from orders made in New Zealand and, furthermore, did not acquire jurisdiction to do so merely because the New Zealand orders were registered in the Family Court of Western Australia.
4. Omitting the content of the "additional pages attached herein 14 pages", referred to in Ground 5 and attached to the Notice of Appeal filed on 27 December 2024, the six grounds of appeal are pleaded this way:
   1. The Perth Family Court obstructed justice with filing and the case on appeal concealed from [the primary judge].
   2. [The primary judge] indicated he was prejudicially biased intending to summarily dismiss the matter on 2/12/2024.
   3. [The primary judge] omitted the FACT the two Australian children have "resided in New Zealand" is due to an unlawful and indefinite "non removal order" detaining them.
   4. [The primary judge] ignores mandatory legislation that Australia MUST take over jurisdiction under s 70G Family Law Act 1975 and Hague Act s 16.
   5. [The primary judge] errs in alleging [a named New Zealand judge] found [the father] has not abused the children - disproven in para [135] of her decision [file number] 17/09/2021 "[the father] for the purposes of the definition of abuse under the Family Violence Act 2018 has physically and psychologically abused the children."

6. This appeal raises two significant questions of law

a) How is a "competent jurisdiction" defined

b) Does Australia have a mandatory legal responsibility to protect Australia citizens (especially in NZ governed by Part 6 of the Constitution)

1. The grounds are obviously difficult to characterise as competent complaints of appealable error, but that was not the mother's only problem. In breach of r 13.23(2)(a) of the Rules, her Summary of Argument bears no correlation at all with the grounds of appeal. Consequently, the lengthy narratives contained within the Notice of Appeal and the Summary of Argument are both polemics which are disordered, repetitive and bewildering.
2. At the hearing, the mother attempted to assert the grounds of appeal were instead those set out in the Summary of Argument, but that is not so because she asserted this in the Summary of Argument:
   1. [The appellant] relies on the Notice of Appeal seen in Tab 3 of the [appeal book] and summarises, the issues include...
3. The solitary purpose of a Notice of Appeal is to identify the grounds of appeal. The solitary purpose of the Summary of Argument is to elaborate the arguments to vindicate the grounds. We will only address the mother's grounds of appeal as set out in the Notice of Appeal and disregard the many written and oral submissions which do not correlate with those grounds of appeal, save for making this observation.
4. The mother made multiple allegations within her Summary of Argument of the primary judge's "concealment of facts" and "concealment of evidence" which is nonsense. His Honour permitted the mother to rely upon the evidence she desired and took that evidence into account "at its highest" for the purpose of the summary exercise (at [10] and [14]). The primary judge was not evidently aware of some vital fact of which the mother was ignorant.

1. This ground is clearly a generic complaint about the Family Court of Western Australia as an institution rather than a specific complaint of anything done or omitted by the primary judge. Her dissatisfaction with the Court or the law is not a competent ground of appeal.
2. The alleged "concealment" from (not by) the primary judge apparently relates to the registrar's refusal to accept and file interlocutory applications the mother attempted to file, but the contention is incorrect for two reasons.
3. First, the mother reviewed the registrar's decision to reject those documents, which review was determined by the primary judge on 19 November 2024. His Honour permitted the filing of the mother's Form 1 Initiating Application and the documents filed in support of it (Order 1), which was then listed for summary hearing on 2 December 2024 (Order 2), but otherwise dismissed the review application (Order 4), meaning the registrar's rejection of the Form 2 interlocutory applications was confirmed. His Honour was therefore aware of those applications.
4. Secondly, the rejection of the interlocutory applications made no difference to the dismissal order later made by the primary judge on 2 December 2024 as no interlocutory application could subsist beyond the dismissal of the substantive cause of action (r 5.01 of the Rules).

1. This ground asserts the primary judge candidly admitted bias. The mother was invited to take us to the point in the transcript which would vindicate such an extraordinary claim, but she was unable to do so. She alleged the official transcript omitted to include the relevant verbal exchange between her and his Honour. One of the documents the mother wanted to adduce as further evidence in the appeal was her corrections of the transcript (Annexure K to her affidavit filed on 14 January 2025), yet perusal of that document reveals no "correction" could possibly vindicate the contention that the primary judge admitted bias either.
2. The transcript (both the official and "corrected" versions) reveals no disqualification application was ever made by the mother to the primary judge during the hearing conducted in December 2024. If she privately harboured some perception of his Honour's bias at that time, she waived her opportunity to complain of it and cannot now raise the complaint in the appeal (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] and [79]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 577-579 and 586-588).
3. Even though the mother was self-represented, it is not unreasonable to expect her to have made a disqualification application to the primary judge in December 2024 if she believed it was warranted because she made a disqualification application to the New Zealand judge in August 2024 and is therefore familiar with the process.

1. This ground is a bare assertion the children's current residence with the father in New Zealand is due only to the New Zealand orders being "unlawful". No rational explanation is advanced for why the past and current New Zealand orders are supposedly unlawful.
2. The New Zealand proceedings were commenced by the father in January 2018 (at [18]). The mother actively contested them and thereby submitted to the jurisdiction. The interim parenting orders made during those proceedings were not appealed by the mother and her allied applications to other New Zealand courts failed. Whether she appeals from the final orders recently made in the New Zealand proceedings on 10 March 2025 is yet to be seen, but the orders are efficacious unless and until set aside. It would be absurd to do anything other than treat the New Zealand orders as being valid.

1. This ground alleges the primary judge erred by "ignor[ing] mandatory legislation" which supposedly impelled his Honour to exercise jurisdiction, identifying such legislation to be the Family Law Act 1975 (Cth) ("the Act") and the "Hague Act".
2. The primary judge observed how no State jurisdiction existed in respect of the children, but that federal jurisdiction under the Act did exist by virtue of the mother's asserted Australian citizenship (at [10]). But federal jurisdiction could not be exercised if the Australian court in which she chose to litigate was a clearly inappropriate forum or the proceedings were an abuse of process, as his Honour found (at [40]-[43]). True it is the primary judge initially mistakenly published reasons for judgment indicating his Honour exercised jurisdiction under the Family Court Act 1997 (WA), but that was rectified by the re-publication of the reasons for judgment with the headnote correctly reciting his Honour was exercising jurisdiction under the Act. That was merely a typographical error which has no bearing upon the appeal, even if the mother suspiciously thinks otherwise.
3. Even though federal jurisdiction under the Act did or might have existed to potentially entertain the mother's application, her reliance upon s 70G of the Act is misconceived. That provision appears within Pt VII, Div 13, Sub-div C of the Act, enabling the registration of "overseas child orders" in Australian courts, provided they are not "excluded orders". The New Zealand orders in existence at the time of the hearing before the primary judge were "excluded orders" within the definition of that term (s 4(1) of the Act) because they were only interim orders and so could not be registered and enforced in Australia. Now that final orders have been made in the New Zealand proceedings, they have been registered in Western Australia.
4. The mother knows the New Zealand interim orders could not have been registered in Australia because she said this to the primary judge:

[The mother]: ...So a simple Google search would have indicated that Australia does not have jurisdiction to register interim orders...

...

[The mother]: So it is evident that no orders can be registered in Australia until they're final...

(Transcript 2 December 2024, p.5 lines 16-18; p.15 lines 31-32)

1. In any event, the issue is entirely superfluous. The mother had no interest at all, then or now, in enforcing the New Zealand orders in Australia because she is dissatisfied with them. Her application to the Family Court of Western Australia was evidently designed to have the primary judge freshly review the evidence adduced in the New Zealand proceedings so she could then attempt to extract more favourable parenting orders from his Honour before judgment was finally delivered in the New Zealand proceedings. She said this to his Honour:

[The mother]: There was a final hearing. The judge had refused to issue any final orders...

...

[The mother]: Rendering every single decision the court in New Zealand has ever made unlawful, and cannot legally stand because they were made on fraudulent grounds. The court is aware of the situation...

...

[The mother]: There is no hope of any justice or decisions being issued in a timely manner by the New Zealand court, as evidenced by the judge deliberately extending a recusal hearing out until next year, leveraging that as an excuse not to release a decision for my children...

...

[The mother]: ...I believe that the Australian court would be best placed to review the information from the final hearing in New Zealand to make an order based on what was there, and should they wish to have as interim orders, if they had to here, and then to determine what final orders should be made should you wish to hear further evidence down the track as to what else the children have been told, or the situation.

(Transcript 2 December 2024, p.4 lines 15-16; p.13 lines 5-8; p.14 lines 8-12; p.15 lines 33-40)

(Emphasis added)

1. That being the mother's stated position, we are unable to appreciate how the primary judge erred by then concluding her application was an abuse of the Court's process and, furthermore, finding the Court was a clearly inappropriate forum to hear the parenting dispute she initiated. It was impossible for his Honour to pronounce interim or final judgment in an Australian parenting cause on evidence adduced in an identical cause still pending in New Zealand.
2. The mother's additional reliance upon the "Hague Act" is meaningless. The proceedings she started by filing the Initiating Application in Western Australia comprised a parenting application brought under Pt VII of the Act - not a cause brought pursuant to either the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Abduction Regulations") or the Family Law (Child Protection Convention) Regulations 2003 (Cth) ("the Protection Regulations"), which regulations respectively embody Australia's obligations under the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Convention on Parental Responsibility and Protection of Children. That must be so for several reasons.
3. First, the mother sought orders for her "custody" of the children and their recovery from the father, which orders could only have been made under provisions of the Act. Proceedings under the Abduction Regulations do not involve a contest between parents about the custody of children (RCB v Forrest & Ors [2012] HCA 47; (2012) 247 CLR 304 at [42]-[43]). The mother attempted to file a separate interlocutory application instituting what she described as "hague proceedings", but the registrar's rejection of the application was affirmed by judicial review.
4. Secondly, in any event, the Abduction Regulations did not apply because the children were not wrongfully removed from Australia by any person. The mother voluntarily took them to New Zealand in January 2018 and left them there in the care of a friend (at [17]-[18]). Nor were the children wrongfully retained in New Zealand by the father, because they live with him pursuant to orders validly made by New Zealand courts, even if the mother does not like the orders. In parallel proceedings instituted by the mother in the High Court of New Zealand in late 2024, the New Zealand judge observed how the "Hague Convention" did not apply and dismissed her application, which the primary judge noted in the reasons (at [29]-[33]).
5. Thirdly, nor did the Protection Regulations apply because New Zealand is not a signatory to the 1996 Hague Convention.

1. This ground alleges the primary judge's factual error by misunderstanding findings made by the New Zealand judge at first instance. Assuming for the moment the primary judge did misinterpret the findings of the New Zealand judge, his Honour's factual error certainly did not affect the validity of the interim or final orders made by the New Zealand judge. Nor did the factual error vitiate his Honour's decision to dismiss the Western Australian proceedings because the New Zealand orders continue to bind the mother, requiring the children to live with the father in New Zealand and to only communicate electronically with her under supervision.

1. Ground 6 alleges this appeal raises issues of jurisdiction and Constitutionality, though the mother's belief is not proof of the fact. She did not file and serve any notice of the asserted Constitutional issue, as r 2.13 of the Rules required. Despite the assertion of some jurisdictional issue, neither this ground nor the submissions in the Summary of Argument identify how the primary judge erred on the question of jurisdiction or in the exercise of statutory power.

1. The appeal is dismissed.
2. The appeal was not actively resisted by any other party, so no question of costs arises.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Tyson & Cohen.