Barnett v. Secretary, Department of Community and Justice

Lower Court Judgment

18/02/2022 Federal Circuit and Family Court of Australia (Division 1) (Aldridge, Hogan and Hannam JJ)

[2022] FedCFamC1A 20

Catchwords

Family law – Child abduction – Issue estoppel – Where child, born in Ireland, removed from Ireland by mother without father's knowledge – Where father initiated proceedings in District Court of Dublin Metropolitan District seeking interim order for appointment as child's guardian and for custody pursuant to Guardianship of Infants Act 1964 (IR) ("Guardianship Act") – Where District Court made interim order and subsequent declaration under Guardianship Act declaring father as guardian – Where father filed application for return of child in accordance with Hague Convention on the Civil Aspects of International Child Abduction – Where application filed in Family Court of Australia seeking return of child to Ireland – Where primary judge found District Court order sufficed to fulfil the requirement of "rights of custody" for purposes of reg 4 of Family Law (Child Abduction Convention) Regulations 1986 (Cth) and decision of District Court gave rise to issue estoppel, preventing Court from re-determining any factual issues –Whether order of District Court created issue estoppel that prevented Family Court from determining whether, under Irish law, father of applicant’s child had rights of custody as defined by reg 4 of Regulations – Whether issue estoppel can be drawn from text of foreign order in absence of reasons for judgment and transcript.