Adel and Banes (No 3)

[2019] FamCA 725

FAMILY COURT OF AUSTRALIA

ADEL & BANES (NO. 3) [2019] FamCA 725

FAMILY LAW – PRACTICE AND PROCEDURE – Final hearing be listed to a date to be fixed.

Family Law Act 1975 (Cth)
Family Law (Child Abduction) Regulations 1986 (Cth)
Family Violence Protection Act 2008 (Cth)
Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

APPLICANT: Ms Adel

RESPONDENT: Mr Banes

INDEPENDENT CHILDREN’S LAWYER: Mr M Finn

FILE NUMBER: MLC 3771 of 2017

DATE DELIVERED: 7 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Whitchurch

SOLICITOR FOR THE APPLICANT: Hartleys Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lethlean

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

Orders

1. The final hearing listed for 8 to 11 October 2019 be vacated.

2. The final hearing be listed to a date to be fixed and notified to the parties in writing.

3. The Independent Children’s Lawyer notify my Chambers – email … – when or if the father is granted assistance under the Commonwealth Family Violence and Cross- Examination of Parties Scheme.

4. The oral application of the wife for costs be and is hereby dismissed.

5. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties AND IT IS DIRECTED that a Registrar of this Registry of the Court send a copy of my reasons to the Clerk of the Magistrates’ Court at Suburb K under cover of a request that the reasons be brought to the attention of the presiding Magistrate when the criminal proceedings are next before the Court.

IT IS DIRECTED:

1. That the email from the father dated 4 October 2019 and received at 5.06 pm be marked Exhibit “A” and remain on the Court file.

2. That my Associate email this Order to Victoria Legal Aid who administer the Commonwealth Family Violence and Cross- Examination of Parties Scheme.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adel & Banes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3771 of 2017

MS ADEL

Applicant

And

MR BANES

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. I have adjourned the final hearing of the principal parenting proceedings concerning the child X, born in 2013, to a date to be fixed and required that the Independent Children’s Lawyer notify my chambers if and when the father is granted assistance under the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”).  These reasons are intended to explain the basis for the adjournment, correct any misconception to which I may have led the father vis a vis his responsibility to appear to answer criminal proceedings at the Magistrates Court of Victoria in Suburb K this morning, and to dispose of the application by the mother and the Independent Children’s Lawyer that their costs of today be reserved for determination at a later time.

2. Mr Whitchurch of counsel appears for the mother.  Mr Lethlean of counsel appears for the Independent Children’s Lawyer.  There is no appearance by or on behalf of the father.

Background

1. These proceedings have had a tortuous history in two countries since the mother removed X from the United States without the knowledge or consent of the father on 1 November 2016.  This was also the date of the mother and father’s separation.  They were subsequently divorced in May 2018.

2. There were contested proceedings in the Superior Court of the State of B, City D.  Orders were made in the United States on 19 July 2018 requiring the mother to return X to the United States, for the child to live in the primary care of the father and to see the mother on a “virtual” basis.  X was then five years old.  There were damning findings as to the mother’s credit and bona fides made by the Court in the United States of America. These are recited at paragraph 13 of my reasons for decision delivered on 10 October 2018, the case neutral citation for which is [2018] FamCA 821. Further parenting orders were made in the United States on 20 September 2018. That order in favour of the father is registered in this Court pursuant to bilateral arrangements in force between the United States and Australia which find legislative expression in s 70J(2) of the Family Law Act 1975 (“the FLA”).

3. The issue now before this Court is whether the orders made in the State of B can be enforced as sought by the father or varied (discharged) as sought by the mother.

4. Under section 70J(2) of the FLA, a registered overseas child order may only be varied and a new order made if this Court is first satisfied of certain jurisdictional facts being:

   a)that there are substantial grounds for believing that the child’s welfare requires the Court to exercise jurisdiction in the proceedings (s 70J(1)(b) of the FLA); and

   b)the welfare of the child is likely to be adversely affected if an order is not made (s 70J(2)(a) of the FLA); or

   c)that there has been such a change of circumstances of the child since the making of the overseas child order that the subdivision C parenting order ought be made (s 70J(2)(b) of the FLA).

5. Notably, whilst the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”) entered into force as between Australia and the United States on 1 July 1988, the father did not ever make an application under the 1980 Convention for the return of X to the United States.  His evidence is that he promptly took legal advice in America and endeavoured to secure X’s return by obtaining orders in the United States and seeking the enforcement of those orders within this jurisdiction.  In particular, he was not advised about and did not know about the forum selection treaty process under the 1980 Convention until more than a year after the mother’s alleged wrongful removal of X from the United States.  Where a return application is filed more than a year after a wrongful removal (or retention) the hot pursuit remedy available under our Family Law (Child Abduction) Regulations 1986 (Cth) ceases to be available if the taking parent (here the mother) can satisfy the court that the child has become “settled” in Australia.  If the child is found to have settled, the child will not be returned to the other country without a full hearing into that child’s best interests.

6. In 2018, the father travelled to Australia to collect the child in reliance on the parenting orders made in his favour in America.  He was not successful.  At about this time an Intervention Order under Victorian law was made against the father for the mother’s personal protection.

7. On 10 October 2018, it was ordered that the father have electronic communication with X three times per week, as agreed or failing agreement, in the period from 5 pm to 6 pm on Saturday, Tuesday and Thursday.  

8. On 3 January 2019, I ordered that a short form family report be prepared by the Court. The electronic communication between the child and the father was altered to be audio-visual communication for 45 minutes at 2.00p.m. each Saturday and Sunday and at 6.30p.m. on Wednesday. The case neutral citation for reasons delivered on that day is [2019] FamCA 7.

9. The short form report was prepared by Dr H and published on 22 January 2019.  This report was done in the context of an application for a return order which the father said would be made on his behalf under the 1980 Convention (but which never eventuated).  Amongst other things the short report contained the following observations:

   a)X presented as “vivacious, confident and sociable”;

   b)X’s views were aligned with her mothers, likely because the mother primed X on what to say as X consistently said, “Mummy told me…” and provided examples using emotive language about events in the USA that she would be unlikely to have recalled on her own;

   c)X maintained that she did not want to return to the USA and that her father does not like her;

   d)X’s world centres around her mother as the primary carer;

   e)It is important that X continues to communicate with her father on a regular basis to maintain their relationship;

   f)X would experience a negative emotional impact if returned to the USA as she identifies Australia as her home and has limited memories of the USA;

   g)There is an inherent risk that if X does not return to the USA, then she may cease to have a relationship with her father; and

   h)If X’s concerns about her father are found to be baseless, then X’s position could be reasonably viewed as “an unhealthy alignment with Ms Adel”.

10. On 19 February 2019, I ordered that the final hearing of the case be fixed for 22 July 2019, estimated to take 4 to 5 days.

11. On 19 March 2019, I made further orders to facilitate the father’s attendance in Melbourne for the full family report assessment process.

12. On 4 June 2019, the final hearing was moved to commence on 31 July 2019 estimated to take three days.

13. The interviews and assessments for the family report were conducted by Dr H at the Melbourne Registry on 12 June 2019.  The family report is dated 28 June 2019 and was published on 1 July 2019.  The report has not been tested in cross-examination and I make no findings about it at this stage.  However, the following passages lend context to these incomplete proceedings:-

    100. Thus, it is clear that [X] has a positive bond with each parent and enjoys spending time with them. As such, the tyranny of distance aside and in the absence of substantiated risk concerns, [X] would benefit from being afforded the opportunity to enjoy a meaningful relationship with both parties. This includes spending significant and substantial time with each of them. However, future spend time arrangements with the non-resident parent will be dependent on which country both [X] and each of her parents reside in. Regardless of which parent assumes primary care for [X], the parties continuing to reside in different countries limits the options in terms of possible spend time arrangements.

    103.Firstly, concerns have been raised about the veracity of [Ms Adel’s] purported reasons for unilaterally relocating to Australia with [X]. In support of this, [Ms Adel] reported increasing frustration at [Mr Banes’] refusal to relocate as a family to Australia prior to separation. This reportedly prompted her unilateral move rather than in response to imminent safety concerns. However, it is evident that [X] now views Melbourne as her home and has no distinct memories of her time in the USA. This is somewhat expected given her young age at the time she left and the extended period of time in which she has been residing in Australia (approximately two and half years).

    104. It is accepted that [Mr Banes] likely played an active role in caring for and parenting [X] prior to separation. However, this role has predominantly been performed by [Ms Adel] consistently throughout [X’s] life. As such, she is considered to be [X’s] primary connection. In this respect, [Mr Banes] engaging in the primary care role is largely untested, certainly in the context of separation.

    105. Further, no concerns have been raised about [Ms Adel’s] capacity to meet [X’s] needs on a day to day basis. Indeed, [X] appears to be meeting, if not exceeding, normal developmental milestones. The lack of immediate risk in [Ms Adel’s] care has been supported by the lack of DHHS involvement with the family. However, significant concerns have been raised about [Ms Adel’s] capacity and willingness to facilitate a father-daughter relationship.

    106. There is evidence to support the notion that [Ms Adel] has intentionally interfered with, and is not supportive of, [X] maintaining a connection with [Mr Banes]. It is noted that she expressed particularly strong views about ceasing contact given [Mr Banes] resides internationally and does not have regular face to face contact with [X].

    …

    108. In such circumstances, consideration ought to be given to ways [X’s] contact with Mr Banes can occur independently of [Ms Adel] as a way to ensure a relationship is maintained. For example, this could involve a known third party or the International Social Service who assist families who reside across international borders. It would not be ideal to involve [X’s] school as this ought to remain an independent safe space for her away from the adult conflict and familial dynamic. In addition, [X] would benefit from receiving gifts, cards and letters from [Mr Banes], providing an additional avenue in the absence of regular physical contact to demonstrate he is interested and cares for her.

    109. In relation to [Ms Adel’s] actions of disrupting the father-daughter relationship, it is possible that [Ms Adel’s] views have been exacerbated by the family law proceedings and the possibility of [X] being removed from her primary care. If so, it follows that her interference may reduce once the parenting matters have been finalised.

    110. It is noted that the same risk of interference does not necessarily apply if [X] was residing in [Mr Banes’] care. He presented as far more open to ensuring [X] maintains a relationship with both parents. Thus, if the [State of B] orders were not varied, [X] would likely be able to maintain a relationship with both parents. However, there are a number of other factors to consider when deliberating [Mr Banes’] proposal.

    111. [Ms Adel] raised a number of alleged risk concerns about [X] spending time with [Mr Banes] as a means of supporting her proposal for primary care in Australia. [Ms Adel’s] concerns centred on risk of harm to [X] due to [Mr Banes’] alleged difficulty with anger management. She also raised concerns about his access to firearms and a desire to use his application for primary care as a vehicle to cause harm to her.

    112. However, there has been no evidence that [Mr Banes] has threatened to harm [X] pre- or post-separation, or threatened to inflict harm on [Ms Adel] or [X] with a firearm. Further, [Ms Adel] denied needing to obtain the equivalent of an IVO in the USA prior to relocating to Australia. Of note, [Ms Adel] reported obtaining an IVO over 18 months after relocating to Australia in the context of [Mr Banes] having court orders from the USA to take [X] into his care rather than concerns of physical harm. It is also noted that [Ms Adel’s] claims of family violence perpetrated by [Mr Banes] were reportedly found to be baseless through court proceedings in the USA.

    …

    120. Finally, whilst [X] would likely benefit from the input of both parents in terms of long-term decision making, the level of hostility exhibited by [Ms Adel] towards [Mr Banes] and the geographical distance between the parties makes it is difficult to envisage how the parties will be able to salvage an effective co-parenting relationship. This risks exposing [X] to the adult conflict.

14. The parties may consider themselves at liberty to provide a full copy of the family report (31 pages) to the Magistrate presiding over the father’s criminal proceedings in Suburb K.

15. On 31 July 2019, I made an order placing X on the watch list to prevent her being taken out of Australia.

16. On 1 August 2019, I refixed the final hearing date to 2 October 2019 and, by consent, made the following orders to facilitate time between the child and the father:

    1.        The Respondent Father spend time with the child as follows:

    a. On Thursday 1 August 2019, from 6.00pm at the restaurant at [Suburb L] until 7.30pm with [Mr J] to be present.

    b. On Friday 2 August 2019 at 2.00pm (with changeover at the school) until 5.30pm at the [Suburb O] Library.

    c. On Sunday 4 August 2019 from 12 noon until 6.30pm with changeover at Coles, [Suburb O] Shopping Centre.

    d.On Tuesday 6 August 2019 from after school (with changeover at school) until 7.00pm with changeover at Coles, [Suburb O] Shopping Centre, inside near the assisted checkout counter.

    2.The Respondent Father have telephone communication each Tuesday and Wednesday at 5.45pm (for up to 30 minutes) and at 10.00am on Sunday (for up to 30 minutes).

    3.The Applicant Mother do all acts and things necessary to inform the proper officer of the school that the father would like to tour the school prior to spending time with the child on Friday or Tuesday and IT IS REQUESTED that the Independent Children’s Lawyer provide the school with advance notice of this request this afternoon by telephone.

    4.The Respondent Father inform the Applicant Mother by text message to her mobile telephone of any change to his accommodation arrangements.

    5.The Respondent Father’s passport be held by the Court until he has provide all other parties the Court with notice of his intention to return to the United States of America.

    6.The mother and the father participate, by themselves and their legal advisers, in any round table conference which the Independent Children’s Lawyer appoints, through the Victoria Legal Aid Family Dispute Resolution Service, in the week commencing 23 September 2019 and the Independent Children’s Lawyer notify my Associate, … – email …, as soon as possible of the date and time of the conference, once appointed.

17. As best I understand the situation, on the first occasion of time between the father and the child, being 1 August 2019, the mother contacted Victoria Police and the father was thereafter charged with breach of the Intervention Order. The implications of those criminal charges include the fact that by operation of Section 102NA of the FLA, the father cannot cross-examine the mother because he is an unrepresented litigant. It immediately became necessary for the father to make application under the Commonwealth Family Violence and Cross-examination of Parties Scheme or forgo his rights to test the mother’s case in cross-examination. Unfortunately, the trigger for the ban against cross-examination of the mother was not brought to the Court’s attention until just before the final hearing on 18 September 2019.

18. On 12 August 2019, the father filed an application alleging that the mother had failed to comply with parenting orders for him to communicate with X.  It is called a contravention application. 

19. On 18 September 2019 and in light of the restriction on cross-examination by him directly, I made orders so that the father could apply for Victoria Legal Aid to provide him with a lawyer under the Scheme.  

20. The father had attended court in Melbourne on 18 September 2019 but the matter could not proceed.  One reason was that he had become unrepresented and did not know he could not then cross-examine the mother.  

21. The final hearing was ordered to commence on 7 October 2019 providing that Victoria Legal Aid could appoint a lawyer in time enough that the lawyer would be ready for the case to commence.  It transpired that the criminal charges were also returnable on 7 October 2019.  Inter alia, it was ordered that:

    1.The requirements of s 102NA (2) of the Family Law Act 1975 will apply to cross-examination in this case AND IT IS REQUESTED that Victoria Legal Aid give urgent consideration to the father’s application so that the final hearing can commence on 7 October 2019 with the father being represented.

    2. The father have leave to withdraw his Contravention Application [against the mother] filed 12 August 2019 NOTING THAT the father is at liberty to use all or any evidence in support thereof in the parenting proceedings.

    3.The mother do all acts and things necessary to facilitate enquiries being made about the possibility of an adjournment of the criminal proceedings under the Family Violence Protection Act 2008 which are returnable in the Magistrates’ Court of Victoria at Suburb K on 7 October 2019 and, through her solicitors, provide the Court, the Independent Children’s Lawyer and the father with an outcome of any enquiries or communications made by her in this regard. For the avoidance of doubt:

    a) this order is not binding on Victoria Police as they have not been provided with an opportunity to be heard; and

    b)        unless the proceedings on 7 October 2019 are adjourned the father will attend the Magistrates’ Court of Victoria at [Suburb K] and remain there until his attendance is no longer necessary whereupon he will make his way to this Court for the commencement of the parenting proceedings also listed for 7 October 2019. 

1. By 3 October 2019, it was apparent that the father would be without the legal representation, which it was hoped would be provided under the Scheme.  The matter was mentioned before me.  The father appeared by telephone.  All parties accepted that an adjournment was inevitable if the father wanted a lawyer provided under the Scheme.  The father was considering whether he would forgo the opportunity to cross examine the mother in the proceedings, an objectively risky course.  There was a suggestion that the father may be able to obtain representation privately but he was uncertain and only starting to negotiate counsel’s fees.  To retain counsel at that late stage and instruct counsel adequately, whilst travelling from America to Australia, would have been a Herculean feat even though the father and his wife are legally trained (in the United States).

2. I suggested to the father that he ascertain whether the police charges returnable at Suburb K Magistrates’ Court on 7 October 2019 could be adjourned by agreement with the police prosecutor.  If that could occur, the final hearing before me could be adjourned and the father would not have to enter Australia.

3. The father wrote to the Court on Friday:

   “I regret to inform you that as I would not be able to obtain an attorney before Monday to cross-examine [Ms. Adel], which will likely lead to an appeal, I would like to have the trial adjourned until I am able to get an attorney. I am very sad this proceeding cannot move forward as I was also anxious for the trial to begin.”

4. Given that the father did not attend the Suburb K Magistrates’ Court today, I am somewhat concerned that the father may have misinterpreted my statement to suggest that the police charges could be adjourned at the father’s volition.  That was not what I intended to convey.

5. I am informed by counsel for the mother that a bench warrant has been issued for the father’s arrest as a result of his failure to appear at Suburb K Magistrates’ Court today.

6. The father has come to Australia at his own expense on a number of occasions to pursue the return of X to the United States of America, as envisaged by orders that he obtained there.  If and when the father returns to Australia, it is to be hoped that he will be able to see X as orders provide. 

Costs

1. The mother and the Independent Children’s Lawyer each seek that I reserve for another day the issue of whether the father ought to pay their costs of today on the basis that the father failed to appear at Court.

2. The starting point under the FLA is that each party bears his or her own costs. The first thing I must be satisfied of is that there are circumstances that justify the making of an order for costs. The FLA is silent on the matters which inform my decision. They must be relevant matters, they must not be extraneous and could include some of those factors enumerated in s.117(2A) relevant to what, if any, costs order ought to be made.

3. Last week the issue of an adjournment of today’s proceedings was discussed before me.  It was most unlikely that the matter could proceed.  I commented that I could not see how either the mother or the Independent Children’s Lawyer would be able to seek costs today given the notice they had of difficulties with the father being ready to proceed.  Particularly in light of the serious implications for his right to cross-examine having arisen as a result of the criminal proceedings brought following a controversy which occurred during the first access visit by the father with X on 1 August 2019.  I also take into account that the father has already travelled to Australia at his own expense on a number of occasions.

4. I am not satisfied that there are circumstances which justify a departure from the primary position that each party should bear his or her own costs.

5. In relation to the Independent Children’s Lawyer, I note the special provisions in s 117(3) and (4) of the FLA to the effect that the Court must not make an order against a party in relation to the costs of the Independent Children’s Lawyer if to do so would mean that the party against whom a costs order is made “would suffer financial hardship in the party had to bear a proportion of the costs of the Independent Children’s Lawyer”.

6. I am satisfied that the father would be suffering financial hardship if he were ordered to pay a proportion of the costs of the Independent Children’s Lawyer.  Similarly, the mother could have mitigated her exposure to costs in the circumstances of the case.

7. The application for costs to be reserved be and is hereby dismissed. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 October 2019.

Associate: 

Date:  11 October 2019