Bellanger & Wemble
[2023] FedCFamC2F 1246
•18 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bellanger & Wemble [2023] FedCFamC2F 1246
File number: MLC 5456 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 September 2023 Catchwords: FAMILY LAW – application for a recovery order – parenting orders finalised by consent in 2021 – allegations that the father has abducted the children overseas – children are in a country that is not a signature to the Hague Convention – no jurisdiction for international recovery – mother submits that the overseas authorities may assist her to enforce a recovery order made by this court – application allowed. Legislation: Acts Interpretation Act 1901 (Cth) s 15AB
Family Law Act 1975 (Cth) ss 60CA, 60CC, 67Q, 67R, 67S, 67T, 67U, 67V, 69E, 69ZL, 111CA, 111CB, 111CC and 111CD
Revised Explanatory Memorandum to the Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980)
Cases cited: Alfarsi & Elhage [2016] FamCA 428
Bunyon & Lewis (No 3) [2013] FamCA 888
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Trinh & Trinh [2023] FedCFamC2F 943
Yaling & Tsen [2022] FedCFamC1F 347
Division: Division 2 Family Law Number of paragraphs: 92 Date of hearing: 18 September 2023 Place: Melbourne Solicitor for the Applicant: Mr Monoah of Sunshine Lawyers The First Respondent: No appearance The Second Respondent: No appearance ORDERS
MLC 5456 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BELLANGER
Applicant
AND: MR WEMBLE
First Respondent
MS PAIGE
Second Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 SEPTEMBER 2023
THE COURT ORDERS THAT:
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 25 September 2023
1.Pursuant to Section 67Q of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the children X born in 2011 and Y born in 2013 (“the children”) and to deliver the children to the applicant Mother at such place as the Mother and the person effecting such recovery agree to be appropriate; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child/ren may be found.
2.IT IS RESPECTFULLY REQUESTED that the;
(a)City B Court in C State in Country D; and
(b)the District Court in C State in Country D; and
(c)the County Court in C State in Country D; and
(d)the Supreme Court in C State in Country D; and
(e)the Commissioner of Police in C State in Country D; and
(f)the Officers of the Department of Foreign Affairs in Country D.
(g)(a-f) above are referred to as (“The Country D Authorities”)
lend their assistance, if they or any of them can assist consistently with the law of Country D, with the enforcement of this recovery order (Order 1 herein), and the reunification of the Mother with the children pursuant to the orders made in this Court on 16
July 2022August 2021.3.The listing on 9 October 2023 at 2.00pm before a Judicial Registrar be and is vacated.
4.All extent applications are adjourned until 2 February 2024 at 10.00am before Judge O’Shannessy.
5.The Mother be granted leave to approach the Court to seek an urgent hearing on short notice in the event of either the recovery of children or further circumstances that may aid or assist the recovery.
6.The parties are at liberty to provide these orders and reasons for judgment to any of the Country D Authorities.
7.The Mother do all acts and things necessary to cause these orders and reasons for judgement (when available) to be served to the First and Second Respondent by email to the Fathers email address …@....
AND THE COURT NOTES THAT:
A.The Orders made in this Court on 16
July 2022August 2021 were agreed and consented to by the children’s Father, Mr Wemble the First Respondent.B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
F.Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances and as provided by these orders, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, I have added citations, evidence and passages of authorities, and an attempt has been made to make the transcript of orally delivered reasons easier to read. The substance is unchanged.
The matter of Bellanger & Wemble comes before me on 18 September 2023, in an interim hearing defended list, or what is also known as a duty list. The proceedings concern the children X and Y (‘the children’). The older child was born in 2011 and is 11 years old and will soon be 12. The younger child turned 10 this year.
The mother, Ms Bellanger (‘the Mother’), who is 31 years of age, and the father, Mr Wemble (‘the Father’), who is 36 years of age, commenced living together in or about 2010 and married in 2011. They separated in November 2014. By that time, they had two children. They divorced, according to the law of Country D, in 2019. Final parenting orders were made in this court on 16 August 2021 for the parents to have equal shared parental responsibility but for Ms Bellanger to have sole parental responsibility for the day to day decision making of the children and for them to live with her, with provisions for spending time and communicating with Mr Wemble.
In proceedings before me today, the children’s mother, Ms Bellanger, seeks a recovery order issued in the usual terms for the delivery up of the children to her.
By way of background, the Mother alleges that she took the children to Country D to visit her father in late 2021 and that Mr Wemble and his mother, the Second Respondent, Ms Paige, also went to the same place in Country D at that time. She says that Mr Wemble initiated parenting proceedings in Country D and that the matter finalised in 2022 with the Court recognising the final orders of this court made on 16 August 2021. She says that shortly after that, Mr Wemble had her father arrested in proceedings relating to repayment. She says that she and her family, including the children, went to a hearing in early 2023 relating to that matter and while there, Mr Wemble, Ms Paige (the Father’s mother) and a group of their supporters beat her up and took the children away in a motor vehicle, and that she has not seen them since and has only spoken to them once since then. She says that Mr Wemble and Ms Paige are keeping the children in City B, a city in C State in Country D. Ms Bellanger is now in Country E, and is seeking for the children to be either taken back to Australia or recovered to her in Country E, where she says she will organise for them to return to Australia. The parents and children are Australian citizens.
The first question I must determine is whether I should proceed in the absence of the father, Mr Wemble. For the reasons I will set out, I am satisfied that Mr Wemble has not only had every opportunity to participate in the proceedings, but has chosen, for his own purposes, not to participate in the proceedings.
The documents relied upon by Ms Bellanger are:
·Ms Bellanger’s affidavit of 14 September 2023;
·Ms Bellanger’s affidavit of 15 August 2023;
·Ms Bellanger’s affidavit of 13 April 2023; and
·Ms Bellanger’s case outline of 12 September 2023.
No documents have been filed by the Frist Respondent, Mr Wemble, or the Second Respondent, Ms Paige, and there was no appearance by either of them or on his or her behalf before me today.
The Second Respondent to the proceedings is the mother of the father of the children, that is, the paternal grandmother, Ms Paige. Ms Paige is thought to reside at an address in Suburb G, although currently residing in City B.
I should also note at this point that the solicitor for Ms Bellanger appears pro bono on her behalf. He has gone to no end of trouble to file appropriate documents, and I am grateful to him for his service to the community and the Court.
The proceedings commenced where the applicant mother sought the following orders on an interlocutory basis:
1.That this matter at all times be abridged and heard as a matter of urgency/
2.That the Second Respondent, the paternal Grandmother, [Ms Paige] of [address] be ordered to assist the court to locate and relocate the children from [City B], [Country D] to Australia.
3.That the court orders all the relevant Commonwealth Authorities including the Australian Embassy in [City F], [Country E] and any other overseas consular offices to liaise with the [Country D] Authorities to locate and relocate the children [X] born [in] 2011 and [Y] born [in] 2013 from [City B], [Country D] to Australia.
That application has been replaced by an amended application filed on 15 August 2023, seeking the following orders:
1.A Recovery Order issued in the usual terms for the delivery up of the children [X] born [in] 2011 and [Y] born [in] 2013 (“the children”) to the applicant.
The amended application named Ms Paige, the paternal grandmother to the proceedings, as another respondent. I must also determine if it is appropriate to proceed in the absence of the second respondent, the paternal grandmother.
Whether to proceed in the absence of the First and Second Respondents
The documents commencing these proceedings, including an affidavit of Ms Bellanger sealed on 22 May 2023, a notice of risk of child abuse, a genuine steps certificate, a parenting questionnaire, and an affidavit relating to the non‑filing of a family dispute resolution certificate, were all attempted to be served upon Ms Paige by a process server on four occasions in May 2023; on 23 May, 26 May, 28 May and 31 May 2023. In addition to that, on 7 June 2023 and on 9 June 2023, the process server telephoned Ms Paige on a number said to be hers, and no answer was provided. It is Ms Bellanger’s belief that Ms Paige was in Australia and residing at that address at that time. At this point in time, I am not able to be satisfied that Ms Paige was actually still in Australia. Ms Bellanger believes that the paternal grandmother had travelled to Country D at some point in mid-2023. It may be that she did travel to Country D as early mid-2023, in which case she would not have been home when the process server called. However, nothing turns on that, as I am satisfied that the proceedings will have been brought to her attention by her son, the father of the children. I am satisfied that the proceedings have been brought to the attention of the second respondent, and I am satisfied that she has chosen not to participate in the proceedings.
From the affidavit of the mother’s solicitor I am satisfied that on 14 June 2023, the necessary documents, being the documents described above, were emailed to Mr Wemble at his email address. Afterwards, those documents were discussed by him on the ubiquitous process known as “Facebook”. Ms Bellanger was able to observe what is known as a “Facebook post” on Facebook, posted by someone purporting to be “Mr Wemble”, that is, the Respondent Father. I am satisfied that this was in fact Mr Wemble’s Facebook post. That post stated as follows:
The new claim from my ex‑wife that I have abducted our children and the below video matched???
The “below video” was available to be viewed by Ms Bellanger, and she says that she viewed it. She told me in oral evidence today, and I accept, that on the “video” or recording, she was able to observe the two boys being taken to what she described as Mr Wemble’s town in Country D, where there was a traditional welcoming ceremony. She observed they were still in the same clothes that she last saw them in in early 2022. That Facebook post went on to state as follows:
Dear my relatives, Friends & Acquaintances, my ex‑wife opened new case against me in Australia that I have abducted our children!
Ms Bellanger’s diligent solicitor then again served further documents, or at least communicated electronically with Mr Wemble. This was by way of email to and from the same email address to which he had sent the documents that I have just described. Ms Bellanger’s solicitor forwarded to Mr Wemble, via his email address, the electronic Teams link for the hearing of the first return of the proceedings. Ms Bellanger’s application, issued on 22 May 2023, was fixed by the Court for a first return at Court on 26 June 2023.
Attached to Ms Bellanger’s solicitor’s affidavit of service of 27 June 2023 is the email chain between himself and Mr Wemble, which shows the electronic link to participate in the proceedings, from wherever in the world he is, being provided to him. On Thursday, 22 June 2023, Ms Bellanger’s solicitor sent the following communication to Mr Wemble via email:
Dear [Mr Wemble],
Please ensure that you and your mother attend upon the link below.
I know your mother is in [City B] currently.
We will be seeking orders to give the children to your mother to return them to [City F] to the applicant mother, [Ms Bellanger]. Your mother can also return the children to Australia at her own costs. If she does not have the money, please give the children to mother to book them to bring them back to Australia.
The email continued, and in a larger font then stated:
We will seek Recovery or Section 67J Family Law Act orders.
And the email continued:
Recovery orders allow the parents to apply if they want a child returned to them. Recovery orders have the authority to instruct police officers to find the child and return them to the seeking parent. Given you have relocated overseas for a while now, your mother and siblings must comply with the law and the court order to return the children.
Your mother is there on holidays now, and so are your sisters. These means they have the knowledge and the whereabouts of the children. We will need that immediate return of the children to their mother to book them to return to Australia at our costs or you can book them to be returned to Australia with your mother and your sisters at your costs.
…
We will not seek contravention of the previous Court orders if you comply.
I note you are publishing court events on Facebook, and this is an offence under the law. I have filed your Facebook publication with the Court as it was sent to me.
Then Ms Bellanger’s solicitor went on to refer Mr Wemble to section 121 of the Family Law Act 1975 (Cth).
Mr Wemble responded as follows:
Dear [Mr H]
The court dates you’ve drafted is too near and need to be adjourned for another 14 days so that I can prepared myself.
The day will [mid] 2023.
Thank
[Mr Wemble]
Ms Bellanger’s solicitor responded, advising that he could attend the Court and tell the Court “that”, being the request for an adjournment. Again, there was a response from Mr Wemble, where he asserted, by email:
... there’s is no connection of my mother in this case. …
He went on to repeat the date of mid-2023 will give him sufficient time to find a lawyer.
Ms Bellanger’s solicitor responded promptly on that Thursday and asserted as follows:
There is a connection. Your mother was there when the children were abducted, and current existing Court order contravened or breached. This is a contempt of Court.
Your mother aided in the contravention of the orders … We will seek that your mother is compelled to bring the children back to Australia and if she does not obey the court order, the court will deal with the contravention application we will make. The court has a wide ranging powers including jail term for such offences. It will be up to the court.
You cannot abduct the children and think you will not be compelled by the law through your mother and other family members to comply with the law.
Your mother has the knowledge of the children’s whereabouts. She knows the court orders and she should have told you when you took the children that it was in breach of the court orders.
I cannot warn how serious this is. I suggest you and your mother obtain a legal advice. You better get a lawyer not stating simply remove my mother. It is not like that. …
Mr Wemble responded, high‑handedly:
Thanks,
[Mid] 2023 I’ve documented.
Ms Bellanger’s solicitor continued on that day to email Mr Wemble in response and advised that he would not be supporting an adjournment application, that Mr Wemble must appear, and that he would be seeking different orders for the Australian Federal Police to be involved. He also pointed out that Mr Wemble could explain his position to the Court himself or get a lawyer.
Mr Wemble communicated further:
Dear [Mr H]
Since you don’t want to compice [sic] with views, you can do whatever is necessary for your client, [Mr H]. But my facts remain truthful to me and the are like
1. I have not secure a lawyer yet.
2. You’ve scheduled the date without my consent
3. You’ve drafted these doc before April but you failed to notify me early.
4. I’m at different geographical zone.
Kind regards,
[Mr Wemble].
Ms Bellanger’s solicitor then went on to state:
I have no issue for you to seek an adjournment. It is a normal thing to request. But I am telling you, come and ask the court yourself.
You are right, this should have been put in court about 1 year ago. But I was told the traditional mediation may work and you hand back the children to come back to Australia. This is why I did not open the court case immediately.
You need to appear and ask the court to adjourn. …
On the following day, Friday, 23 June, Mr Wemble, on the same email address, sent another email to Ms Bellanger’s solicitor:
Dear [Mr H],
Thanks you for your replied [sic].
From now on, you can talk to me through my lawyer and his contact details are:
1. Lawyer [Mr J]
[Contact details]
Secondly, the divorce of [Ms Bellanger] was done by:
1. [Mr K];
2. Confirmed by [City B] court, Judge, [Mr L] [in] 2019
3. Handover of the children was done [in early] 2022 by [City B] Court Judge.
Thirdly, you can either come to [Country D] yourself to represent your doubting client; or write to me through The Judiciary of [Country D] whereby they will forward your summon to me.
Eventually, I will not attend any hearing in Australia because it’s a done case. You may come to [Country D] yourself and appeal or open another case against me.
Australia and [Country D] are independent countries but have different judiciary systems and customary laws. Any legal system vary from country to country.
Kind regards,
[Mr Wemble].
Ms Bellanger’s solicitor responded, advising that he would file Mr Wemble’s email with the Court, and advised him that his mother was the Second Respondent and that she will still return to Australia and be answerable. He stated to Mr Wemble:
You are acting in contempt of the court orders, and I will notify the court as well.
That was the state of events the day before the first hearing in this court. On 28 June 2023 the matter was heard by a judicial registrar, who is not a judge but is an officer of the Court whose job it is to determine listing and general administration of the Court’s business and to make a range of court orders. Orders were made to adjourn all extant applications back to that judicial registrar on 16 August 2023 and for service of an amended application setting out the final orders sought. It is clear enough that the judicial registrar was not satisfied Ms Bellanger’s documents had ticked all the necessary boxes. It is unfortunate the matter was not referred to me that day, but it was not. On 16 August 2023, again, Ms Bellanger’s solicitor appeared on video link and there was no appearance for the First or Second Respondents. All extant applications were adjourned to 9 October 2023 before the judicial registrar, and the matter was listed for interim defended hearing before me on 18 September 2023. That was more than a month hence.
On 11 September 2023, Ms Bellanger’s solicitor served further documents on Mr Wemble by email to the same email address with which he had corresponded and as I have recited above. The documents at this time were effectively re-served in accordance with the judicial registrar’s order, so Mr Wemble had the documents emailed to him again. He had the affidavit sworn on 13 April 2023, an affidavit of service of 14 June 2023, 17 June 2023 and 27 June 2023, the amended initiating application of 15 August 2023, and the Court orders of 16 August 2021 and 28 June 2023. There was no response from Mr Wemble.
On Saturday, 16 September 2023, Ms Bellanger’s solicitor telephoned Mr Wemble directly. His affidavit of 18 September 2023 recites as follows:
3.We spoke for 45 seconds. I introduced myself as [the solicitor from [Ms Bellanger]’s lawyers]. I informed him there is a court case on Monday 18 September 2023 at 10am Melbourne Eastern Standard Time. The First Respondent immediately recognised me and told me I told you not to talk to me or call me.
4.I responded by saying the court asked me to email you and serve you with the court documents. I told him I was just doing my job to ensure he is aware of the court dates.
5.I told him we have tasked the local police to serve him, and I understand they attempted service on 7 September 2023, but he refused service citing the court documents did not bear the seal of the Australian Embassy. I told him this is not the case. He said I do not want to talk to you and do not call me. At this point the phone call was terminated.
I accept that evidence. I am satisfied that the Court and Ms Bellanger (and her solicitors) have gone out of their way and bent over backwards to give Mr Wemble every opportunity to participate in this proceeding. Mr Wemble is intelligent and articulate in at least two languages, including English. I am satisfied Mr Wemble has brought the proceedings to the attention of his mother, Ms Paige, the Second Respondent. Hence, I am satisfied that it is appropriate to proceed in the absence of Mr Wemble and his mother, notwithstanding they did not attend Court this day.
Significant Events
I now turn to the rather complicated history of events between the parties. Ms Bellanger and Mr Wemble separated in November 2014. At that time, Mr Wemble left Australia and travelled to Country D. The older child was just 3 years of age, and the younger child was roughly 18 months old. Mr Wemble left the children with their mother. He did not return to Australia until he needed medical treatment by the Australian health system in 2017. He travelled to Australia and, I infer, at public expense had medical treatment. He had apparently suffered a serious injury in a motor vehicle accident in Country D, or thereabouts. Whilst in Australia, he was able to negotiate with the child support authorities and pay arrears of child support that were apparently fixed in the order of approximately $5000.
In late 2017 Mr Wemble apparently again left Australia, again leaving the children in their mother’s care. The older child, X, would have been just finishing prep at his primary school in Melbourne (prep is the term used in Melbourne for preparatory or introductory year of school). The younger child, Y, would have been just about to commence prep in the January of the following year. The children remained living in Australia in the care of their mother thereafter. Mr Wemble had not otherwise spent time with the children up until the time the mother commenced proceedings on 30 April 2021.
When Ms Bellanger commenced proceedings in 2021, she simply sought relief that she have sole parental authority for the children and that she be entitled to obtain passports for the children. That matter was returnable before me at that time. I have consulted the Court file about what the issues were between the parents at that time and also to assist me with context. On 30 April 2021, Ms Bellanger simply sought an order that she be granted a court order to obtain the children’s passports and that Mr Wemble be served with her initiating application by email. Ms Bellanger filed a quite detailed affidavit relating to the history of her relationship and events since. In that affidavit, she set out the reason that she had issued proceedings. At paragraphs 17 to 22, she set out the events that caused her to make application to the Court, which read:
17. I also want to be flexible to travel with my children whenever I am travelling overseas to any country. I am a single mother with underaged children who need my constant supervision all the times. I need to be able to travel with them at all times when I am travelling.
18. All my relatives are overseas. I am unable to travel to see my family when I can afford it, because no can reliably look after my children.
19. My father is very old in his 80s and has ill health with several health complications. He has not seen my children.
20. My mum saw my eldest son when he was 5 months old because he was born overseas before I came to Australia . My eldest son turned 9 years now and has never seen my parents since he was 5 months old. My other son, [Y] has not met my parents or any other immediate family member at all.
21. It is not easy to obtain visitor's visa for my parents or immediate family to visit me and my children in Australia.
22. I recently applied for a mediation to resolve this issue. However, my ex-partner refused to participate.
Mr Wemble at that time responded, and on 21 July 2021, notwithstanding that he was apparently not in Australia at the time, he had solicitors act on his behalf and file an affidavit and a response document in court. Mr Wemble’s response sought an order for equal shared parental responsibility and for orders that he be permitted to speak to the children by telephone in the circumstances of him living in Country D and the children living with their mother in Australia.
By this time of mid-2021, the child X, the older child, had progressed to grade 4 at the primary school where he commenced school. The younger child Y had progressed to grade 3. In 2018 (the year after the Father was last in Australia), the older child was in grade 1 and the younger in prep, both attending the same school. In 2019, unvisited by the father, the older child was in grade 2 and the younger child in grade 1. In 2020, unvisited by the father, the older child was in grade 3 and the younger child was in grade 2. The children had spent their entire school lives at the same school in the same outer suburb of Melbourne to that point in time.
Mr Wemble’s affidavit was filed 21 July 2021, and in that affidavit he complained that Ms Bellanger did not permit him to speak by telephone to the children. Somewhat ironically, he observed the following in that affidavit:
6. I am concerned that [Ms Bellanger] will travel with the children to countries that are not signatories to the Hague Convention, such as [Country E] where her family live, and may not return the children to Australia.
…
45. I became concerned about [Ms Bellanger]’s behaviour and her motives for obtaining passports for the children and I withdrew my consent for the children to obtain passports. [Ms Bellanger] has not allowed the children to communicate with me since then.
…
51. [Ms Bellanger] has not consulted me regarding the children’s education. I do not know where the children go to school or how their learning is progressing. The only updates I receive about the children is what I hear through community members via my family.
At that time, Ms Bellanger was represented by the same solicitor who represents her in these proceedings. Mr Wemble was represented by solicitors well familiar with the processes of this court.
The matter returned before me on 16 August 2021. I have a recollection of the appearances before me of that day. It may be that I have the recollection because I do not get a lot of matters where one of the parties is living in Country D. In any event, I remember the appearances that day. I recall Mr Monoah appearing for the Applicant Mother, Ms Bellanger, and I recall Mr Wemble appeared by counsel instructed by the solicitors well familiar with the jurisdiction. I made the following orders by consent that day:
THE COURT ORDERS BY CONSENT THAT:
Parental responsibility
1.The parties have equal shared parental responsibility for all long term decisions in relation to the children [X] born [in] 2011 and [Y] born [in] 2013 (“the children”).
2.The Mother have sole parental responsibility for the day to day decision making of the children.
Living arrangements and communication
3.The children live with the Mother.
4.The Mother shall facilitate contact between the children and the Father by video or voice call on two occasions per week on days and time as may be agreed between the parties and failing agreement, with the Father to place the call to the Mother’s phone, as follows:
(a)Each Wednesday between 7.30pm and 8.00pm Australian Eastern Standard Time (“AEST”); and
(b)Each Saturday between 5.00pm and 6.00pm AEST.
5.The Father be permitted to send gifts, cards, letters and emails to the children and the Mother shall provide them to the children.
6.When the Father travels to Australia, he spend time with the children as follows:
(a)As agreed between the parties in writing, and for no less than two occasions of five hours per week; and
(b)That the Father provide the Mother with at least 14 days’ notice of the dates he will be present in Australia; and
(c)That the Father be permitted to take the children to visit the Paternal Grandmother, Paternal Aunts and Paternal Uncle when the children are in his care.
7.Each parent shall advise the other of any change to their telephone number, residential address or email address within 7 days of such change.
8.In the event members of the extended paternal family request to spend time with the children, the Mother shall facilitate such spend time arrangements as may be agreed between the Mother and the extended paternal family.
9.Each party immediately inform the other of any serious illness or medical emergency that the children may suffer and authorise the other parent to immediately speak to any treating health practitioners.
10.Both parties communicate directly by text message or email (or in urgent circumstances by telephone) in relation to any issues relating to the care, welfare and development of the children.
11.By 2021, the Mother cause the Father’s original Australian Citizenship Certificate and Change of Name documentation to be returned to the paternal grandmother’s address at [M Street, Suburb G], in the State of Victoria.
Travel and Passports
12.Pursuant to s11(b)(i) Australian Passports Act 2005 (Cth), the Mother is permitted to do all acts and things and sign all necessary documents to herself obtain and maintain passports for the children [X] born [in] 2011 and [Y] born [in] 2013, at her sole expense, and without requiring the Father’s signature notwithstanding Order 1 herein.
13. The Mother is permitted to travel overseas with the children as follows:
(a)The Mother provide the Father with 30 days’ written notice of her intention to travel, including proposed destination, copies of return flight itineraries when available and details of where the children will be staying during the proposed trip; and
(b)The Mother continue to facilitate the children communicating with the Father via video or voice call on two occasions per week at times to be agreed during her period of travel; and
(c)The Mother provide the Father with written confirmation of landing at each destination (including upon the children’s return home).
[Notations omitted]
True to her word, Ms Bellanger then arranged for herself and the children to travel to Country D for the purpose of visiting her father. However, Mr Wemble came to know of or became aware of that travel, and wherever he was, he ensured that he arrived at the same place in Country D two days after Ms Bellanger had arrived. Ms Bellanger and the children arrived in late 2021, and Mr Wemble arrived in late 2021. Mr Wemble’s mother and Ms Bellanger’s mother also arrived at the same place.
Ms Bellanger alleges that Mr Wemble, his mother and her mother, and Mr Wemble’s sisters were involved in a plan or arrangement whereby the children would be removed from her care. I do not make any finding in regard to that allegation at this point on this return of the matter. That may be a matter that I deal with on another occasion.
It is apparent and clear enough that there was a dispute, or at least an unhappiness on the part of Mr Wemble in terms of the dowry that had been paid by him or on his behalf for the consent or permission to marry Ms Bellanger. Although not covered in detail in affidavit, I permitted Ms Bellanger to give further oral evidence before me this day. She told me, and I accept, that the original dowry was about 150 animals. As a result of Mr Wemble’s unhappiness in regard to Ms Bellanger’s family retaining the dowry, notwithstanding or because of the separation and divorce of the parties, that Mr Wemble issued or commenced court proceedings in Country D soon after their arrival seeking that the children live with him in Country D. Those proceedings were, as I understand it, in the City B Court in C State in Country D. There were numerous attendances at that court in regard to those proceedings, with the last day being in early 2022. I have not seen any official court documents from those proceedings, but I am satisfied that Ms Bellanger’s account of the proceedings is close enough.
Mr Wemble sought orders that the children live with him. Ms Bellanger retained local lawyers and produced to the Court the consent orders of 16 August 2021 made in this court. The end result was that the honourable officers of the City B Court in C State in Country D determined that the children should remain with their mother, Ms Bellanger. I am told and I accept that the Court recognised or took into account the 16 August 2021 orders of this court. The children had not been removed from their mother’s care at this point. The children remained in their mother’s care at all times up to the conclusion of those proceedings, on or about early 2022.
Soon after the conclusion of those proceedings, Mr Wemble was able to take further proceedings in the City B Court relating to the repayment. These proceedings were commenced soon after early 2022 and had the immediate effect of Ms Bellanger’s father being arrested and placed in jail. He was released after some few days, but the proceedings and the threat of jail hung over his head. As Ms Bellanger understands it, Mr Wemble was leveraging the children’s welfare in the proceedings to further enhance his case of obtaining the repayment. A significant number of animals were returned in early 2022, and I am told by Ms Bellanger’s solicitor and accept that a plea was made to the Court that time be allowed to recover the animals to be returned because of natural events that had occurred. It appears to me, on the little that I know about the proceedings, that the Court adopted a practical and commonsense approach, and an arrangement was entered into or agreed or ordered that the dowry of animals would be returned in bits and pieces as animals become available. To the best of Ms Bellanger’s information, in early 2022 some 40 or so animals were returned, and then in mid-2022 a further 20 or so animals were returned, and then in mid-2022 a further number of animals were returned, and she is not sure of the numbers, were returned. I use the word “returned”, whereas that word could also be “paid”. It is not necessarily the same animal.
I found Ms Bellanger’s evidence before me to be frank and unembroidered. I accept what she has told me for the purpose of these proceedings. The consequence of the continuing proceedings against Ms Bellanger’s father, who I note is more than 80 years old and has had surgery in Australia so cannot be said to be of stout health, was that the matter returned to Court in early 2022. It is important that I note that up until early 2022, the children had remained in their mother’s care, notwithstanding that she was staying in City B. She attended Court that day with her family and the children. Outside the Court building, she and her family were set upon by Mr Wemble and his family and his supporters, including Ms Paige. Ms Bellanger was assaulted and bashed. The numbers that Mr Wemble had in the scuffle overwhelmed Ms Bellanger and her supporters, and the two children were forcibly taken from Ms Bellanger’s care and placed separately in different motor vehicles, one driven by Mr Wemble and one driven by an accomplice. They departed the scene with the children. The children were crying as they left. At this point in time, the children spoke little of the local language and had been educated in Australia solely in English. The distress to them of that occasion must have been enormous. The distress to Ms Bellanger must have been enormous.
I was hopeful that somewhere in this case I would find some explanation other than a brutal removal of the children from their mother’s care by force, in circumstances where the children would barely have known Mr Wemble, if at all, and would have been barely able to communicate with him and his family, if at all. However, I have been unable to find such an explanation. Mr Wemble has chosen not to respond to Ms Bellanger’s allegations that the children were abducted from her in early 2022.
In the email that I have referred to that Mr Wemble sent in June at 2.30 am (Melbourne time), he does refer to proceedings in early 2022 in the City B Court, and he says:
Handover of the children was done [in early] 2022 by [City B] Court Judge.
Ms Bellanger has told me today, and I accept, that she did not receive any notice of any court case in early 2022, and that she was not present for any such court hearing, and that she has not received any order or any notice of any matter made in any court on that day. I accept what she has said for the purpose of these proceedings. In the event that is wrong and there was a hearing in early 2022 in City B and Ms Bellanger was given notice, whether or not she did attend, that would be a serious matter. However, at this point, notwithstanding that Mr Wemble has had the opportunity to respond and to provide copies of any such documents if they existed, he has not done so. With the evidence that is before me, at this point I am satisfied that there were no such proceedings in early 2022.
Early 2022 is the last time Ms Bellanger has seen the children. By the grace of the intervention of the Australian Consulate in City F, Ms Bellanger has been able to speak to the children on one occasion since they were removed from her care. However, she spoke to them on Mr Wemble’s telephone and, I infer, with him in their presence. Ms Bellanger is concerned that Mr Wemble is using his time with the children and her absence to brainwash the children.
Ms Bellanger’s affidavit, which Mr Wemble has, has two photographs of the children living in very modest circumstances, and Ms Bellanger says wearing the same clothes as when they were last in her care. Ms Bellanger understands those photographs were taken in late 2022, and she is concerned for their health. From viewing the photographs, she regards them as suffering malnutrition. At this point I am not prepared to disregard Ms Bellanger’s opinion of the appearance of her children. I also place some considerable weight on the fact that Mr Wemble and his mother have chosen not to respond.
They are the circumstances that lead to Ms Bellanger seeking a recovery order. The evidence of Ms Bellanger is unchallenged in these proceedings notwithstanding that Mr Wemble could have challenged her evidence. I accept her evidence.
Relevant legal principles
I now turn to the relevant legal principles and legislation. I start by saying that Mr Monoah, Ms Bellanger’s solicitor, tells me and I accept that Country D is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980), otherwise and more commonly known in Family Law circles as “the Hague Convention”.
The provisions as to the welfare of the children for children in Australia in a dispute between their parents are governed by Part VII of the Act. The key provision for my purposes is section 60CA, and section 60CC recites the matters to be taken into account in determining what are the best interests of the children, and they are as follows:
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
…
I regard the controversy as to the children’s best interests and living arrangements as settled by the orders of August 2021. By those orders, it was settled that the children would live with their mother in Australia, and that she would have sole parental responsibility for the day-to-day decision-making of the children. True it is that those orders provided that the parties have equal shared parental responsibility for all long-term decisions. However, I want to make it clear that that order for equal shared parental responsibility did not entitle either parent to remove the children from the other parent’s care, or have the children living contrary to order 3. Order 3, and I repeat, read simply as:
(3) The children live with the Mother.
In this case, the most significant matter under section 60CC is the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I am very concerned about the welfare of these children in their father’s care. I am unable to make a finding whether they are suffering any physical harm or being exposed to neglect or family violence, but I am satisfied that they are exposed to psychological harm by their removal from their mother’s care, who was the only caregiver they had known for the first many years of their lives.
I am also satisfied that they are likely to be suffering psychological harm from having been removed from their school environment and their peers. I am satisfied that it is in the best interests of the children that they should continue to live with their mother. I am so satisfied on the information that I have available to me.
It does happen from time to time that someone removes children from the care of a parent or person who is meant to be caring for them. The Act in Part VII at Division 8 makes provisions for what may happen, if appropriate, in those circumstances. The relevant sections read:
67Q Meaning of recovery order
A recovery order is an order made by a court doing all or any of the following:
(a) requiring the return of a child to:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child;
(b)authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, for the purpose of finding a child;
(c)authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to recover a child;
(d)authorising or directing a person to whom a child is returned, or who recovers a child, to deliver the child to:
(i)a parent of the child; or
(ii)a person described in subparagraph (a)(ii), (iii), (iv) or (v); or
(iii)some other person on behalf of a person described in subparagraph (i) or (ii);
(e)giving directions about the day‑to‑day care of a child until the child is returned or delivered to another person;
(f)prohibiting a person from again removing or taking possession of a child;
(g)authorising or directing a person to arrest, without warrant, a person who again removes or takes possession of a child.
Note 1: Section 122A deals with the use of reasonable force by certain persons in making an arrest, and Subdivision D of Division 6 deals with what is to happen to a person arrested without warrant under a recovery order.
Note 2: If a recovery order authorises a person to recover a child, the person is authorised to recover the child on each occasion that it is necessary to do so while the order remains in force: see subsection 67W(3).
67R How recovery orders authorise or direct people
(1)An authorisation or direction described in paragraph 67Q(b), (c) or (d) may be addressed to:
(a)a named person; or
(b)every person from time to time holding or acting in a specified office of the Commonwealth or of a State or Territory.
(2)Without limiting the generality of subsection (1), an authorisation or direction described in paragraph 67Q(b), (c) or (d) may be addressed to:
(a)a named person who holds an appointment as a child recovery officer under subsection (3); or
(b)every person from time to time holding or acting in an office of child recovery officer.
(3)The Attorney‑General may appoint persons to be child recovery officers for the purposes of this Subdivision.
(4) An appointment under subsection (3) may be of:
(a)a named person only; or
(b)every person from time to time holding or acting in a specified office of the Commonwealth or of a State or Territory.
67SHow recovery orders to stop and search etc. name or describe vehicles, places etc.
An authorisation or direction described in paragraph 67Q(b) may be expressed to apply to:
(a)a vehicle, vessel, aircraft, premises or place named or described either specifically or in general terms; or
(b)any vehicle, vessel, aircraft, premises or place in which there is, at any time, reasonable cause to believe that the child concerned may be found.
67T Who may apply for a recovery order
A recovery order in relation to a child may be applied for by:
(a)a person with whom the child is to live under a parenting order; or
(b)a person with whom the child is to spend time under a parenting order; or
(c)a person with whom the child is to communicate under a parenting order; or
(caa)a person who has parental responsibility for the child under a parenting order; or
(ca)a grandparent of the child; or
(d)any other person concerned with the care, welfare or development of the child.
67U Court’s power to make recovery order
In proceedings for a recovery order, the court may, subject to section 67V, make such recovery order as it thinks proper.
67V Child’s best interests paramount consideration in making a recovery order
In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Note:Sections 60CB to 60CG deal with how a court determines a child’s best interests.
Jurisdiction
Before determining whether I should make the recovery order sought by Ms Bellanger, I must satisfy myself that I have jurisdiction. Unless specifically empowered by Parliament, the common law assumes and provides that a court of one country does not have jurisdiction in another. I proceed on the basis that I do not have any extraterritorial jurisdiction or power in Country D. The orders that I make do not effect or compel the authorities of Country D to do anything. I respect the Courts and the authorities and the police, including the customary authority of Country D where the children are at the moment. However, if I am satisfied that I have the jurisdiction to make a recovery order, and that it is in the children’s best interests that I make such an order, I will respectfully request the assistance of those authorities, but I want to make it clear that that is not in any way an attempt to compel those authorities to do anything.
However, Mr Wemble and his mother, Ms Paige, are the subject of these proceedings. I do have the power in personam to compel Mr Wemble to do things and the same regarding the Second Respondent, his mother, Ms Paige.
Section 69E of Division 12 of Part VII of the Family Law Act 1975 (Cth) deals with who has standing to make application in regard to children, and that reads:
69E Child or parent to be present in Australia etc.
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a)the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2) In this section:
relevant day, in relation to proceedings, means:
(a)if the application instituting the proceedings is filed in a court—the day on which the application is filed; or
(b)in any other case—the day on which the application instituting the proceedings is made.
Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
In regard to section 69E(1)(a), the children are not present in Australia on the relevant day, the relevant day being the day the application is instituted in this court. In this case, that day was May 2023. The children were not in Australia. They were in Country D.
In regard to section 69E(1)(b), the children are Australian citizens. The older child, X, was not born in Australia but is an Australian citizen. The younger child, Y, is an Australian citizen. Hence, by reason of section 69E(1)(b), Ms Bellanger would have standing to issue proceedings unless otherwise determined that she would not. In terms of section 69E(1)(c) and 69E(1)(d), Ms Bellanger is an Australian citizen, Mr Wemble is an Australian citizen, and Ms Bellanger is ordinarily resident in Australia and would have been ordinarily resident in Australia on the date of the issuing of these proceedings, save for the children being forcefully removed from her care. I cannot see that section 69E(1)(e) applies. Hence, by reason of section 69E(1)(b), (c) and (d), Ms Bellanger is permitted to institute proceedings in regard to the children, notwithstanding that the children are not present in Australia on this day.
International Protection of Children
I must then deal with sections 111CA, 111CB, 111CC and 111CD of the Act, which deal with international protection of children. In terms of the authorities and purpose of sections, I will will refer to a recent judgment I delivered, anonymised as Trinh & Trinh [2023] FedCFamC2F 943. The below paragraphs are repeated from that decision for convenience and to save time.
The first duty of a court is to consider whether it has jurisdiction. Harper J highlights this point in Yaling & Tsen [2022] FedCFamC1F 347 (‘Yaling & Tsen’) at [29], which reads:
29.The father made a submission that, by virtue of the mother filing an Application in a Proceeding seeking passport orders, she has submitted to this Court’s jurisdiction. However, jurisdiction cannot be conferred on the Court by acquiescence or agreement of the parties: Bunyon & Lewis (No 3) [2013] FamCA 888 (“Bunyon”) at [148]. It is the “first” duty of the Court to consider itself whether it has jurisdiction: Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398 at [54]; New South Wales v Kable (2013) 252 CLR 118 at [34]. This Court, although a court of limited statutory jurisdiction, “has the authority and duty to decide whether a controversy brought before it lies within the limits of its jurisdiction” (R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193–194, 213, 215–216, and 223, and Norton & Locke (2013) FLC 93-567).
[Emphasis added]
Section 69E must be read together and subject to Division 4, Subdivision B of Part XIIIAA (‘Subdivision B’). Subdivision B includes sections 111CC and 111CD, which read:
111CC Application of this Subdivision
This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:
(a)a central authority or competent authority of a Convention country;
(b)a competent authority of a non‑Convention country.
111CD Jurisdiction relating to the person of a child
(1)A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a)a child who is present and habitually resident in Australia; or
(b)a child who is present in Australia and habitually resident in a Convention country, if:
(i)the child’s protection requires taking the measure as a matter of urgency; or
(ii)the measure is provisional and limited in its territorial effect to Australia; or
(iii)the child is a refugee child; or
(iv)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence; or
(v)a competent authority of the country of the child’s habitual residence agrees to the court assuming jurisdiction; or
(vi)the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(c) a child who is present in a Convention country, if:
(i)the child is habitually resident in Australia; or
(ii)the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge; or
(iv)a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v)the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(d) a child who is present in Australia and is a refugee child; or
(e) a child who is present in a non‑Convention country, if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child; or
(f) a child who is present in Australia, if:
(i)the child is habitually resident in a non‑Convention country; and
(ii)any of paragraphs 69E(1)(b) to (e) applies to the child.
(2)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.
(3)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if:
(a)one or both of the child’s parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and
(b)one or both of the parents have parental responsibility for the child; and
(c)the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and
(d)the exercise of jurisdiction to take the measure is in the best interests of the child; and
(e)the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.
(4)Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH.
[Emphasis added]
Section 111CC means that before Subdivision B applies to proceedings, I must be satisfied that there exists as issue under the Act of whether this court has jurisdiction to take measures to the protection of a child, as opposed to a competent authority in another country.
This Court is considered “a court” in section 111CC pursuant to the section 4 definition of “court” in the Act.
At first brush the meaning of section 111CC is less than glaringly obvious and is at least a little obscure. Section 15AB of the Acts Interpretation Act 1901 (Cth) authorises me to have regard to Parliament’s Explanatory Memorandum in those circumstances. I refer to paragraph 45 of the Revised Explanatory Memorandum to the Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)[1] for an explanation of section 111CC:
45.Section 111CC provides in effect that the rules of jurisdiction in subdivision B apply only in the event of a conflict in jurisdiction between a court in Australia and a competent authority in another country. This provision implements the preamble to the Child Protection Convention (which makes clear that the Convention is directed to the protection of children in international situations) and article 46 of the Convention which provides that a convention country is not obliged to apply the provisions of the Convention to conflicts solely between different systems of law in that country. …
[Emphasis added]
[1] The Bill that inserted Subdivision B in the Act.
In Yaling & Tsen, Harper J described how Division 4 is to be implemented:
33.Division 4 was inserted by the Family Law Amendment (Child Protection Convention) Act 2002 (Cth) (“the Amendment Act”), which ratified the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (“the Child Protection Convention”). In the Explanatory Memorandum to the Amendment Act, the following was stated:
41.… Thus the effect of subsection 111CB(1) is that, to the extent of any inconsistency, the provisions in Division 4[2] prevail over provisions elsewhere in the Act such as subsection 31(2) (jurisdiction of the Family Court in relation to persons and things outside Australia), section 63E (registration of parenting plans), section 65D (making of parenting orders), section 67ZC (making of child welfare orders) and section 69E (child or parent to be present in Australia).
[Emphasis added]
[2] Subdivision B is within Division 4.
I also refer to the helpful explanation by Harper J in Yaling & Tsen with respect to “an issue under this Act”:
47.… I take “an issue under this Act”, construed in its context, to mean an issue which arises in accordance with and by virtue of the provisions of the Act, meaning an issue taking its legal implications or consequences from the meaning or applicability of provisions of the Act. Construed in this way, the expression means something different to “an issue in the proceedings”, although there may be overlap. An issue “in the proceedings” can include any disputed legal or factual contention advanced by a party, and based in evidence or legal principle. Such an issue may have nothing to do with the meaning or applicability of the provisions of the Act. For example, it may involve a factual finding relevant only to the exercise of the discretion to make a parenting order pursuant to the provisions of Part VII, where there is no issue about their meaning or applicability.
48.It is also important to remember the phrase “an issue under this Act” is part of a wider composite statutory expression. Force must also be given to the other elements of the expression, in particular the phrase “as opposed to”. The Revised Explanatory Memorandum’s reference to a “conflict in jurisdiction” makes clear, in my view, that the issue in question is whether this Court stands in some degree of opposition to a relevant competent authority in respect of jurisdiction.
[Emphasis added]
In Yaling & Tsen, the parties in dispute before Harper J both submitted to his Honour that the wording of section 111CC is obscure.[3] The manner of application of Subdivision B has recently been of some significant discussion of Courts with authority under this Act. Harper J dealt with the issue of whether there was any dispute or conflict between the view of Bennett J in Bunyon & Lewis (No 3) [2013] FamCA 888 (‘Bunyon’) and of Foster J in Alfarsi & Elhage [2016] FamCA 428 (‘Alfarsi’). Bennett J observed in Bunyon at [154]:
154.Conflict of laws rules are not predicated on proceedings having been instituted in two jurisdictions which have a connection with the dispute but, rather, on there being two jurisdictions which have a connection with the dispute and which could hear and determine the dispute. In my view, the reference in the General Outline and in paragraph 45 of the Explanatory Memorandum to conflict of laws is not, as [counsel’s] submission suggests, a reference to duelling courts. Nor does it presupposes that parties must engage in litigation before more than one competent court before conflict of laws rules operate. Conflicts of law rules is merely a reference to the jurisprudence or set of rules to be applied to determine which one of two or more competent jurisdictions should be used to resolve an issue in dispute between parties.
[Emphasis added]
[3] Yaling & Tsen at [38].
Harper J in Yaling & Tsen at [50] conveniently sets out [60] and [61] of Alfarsi as below:
50.In Alfarsi & Elhage [2016] FamCA 428 (“Alfarsi”), it was argued Foster J came to a different conclusion. In Alfarsi, two sets of orders had previously been made for the children to return to Australia from a non-Convention country. At the time of the hearing in May 2016, the children had been residing in the non-Convention country, since September 2014. His Honour said the following:
60. It is important to note the provisions of s 111CC of the Act as set out above that relevantly provides that the provisions of Subdivision C (Jurisdiction for the Person of a Child) of Division 4 (International Protection of Children) of the Act applies only if an issue under this Act is whether a court, as opposed to a “competent authority of a non‑Convention country” has jurisdiction to take measures directed to the protection of the person of a child.
61. In the context of these proceedings no such issue arises. There is no evidence of any such jurisdictional conflict or issue that needs to be resolved by the application of the Subdivision C. Indeed there is no evidence as to existence or otherwise of any such “competent authority” in Iraq that may or may not or has sought to exercise jurisdiction over the children.
Harper J reconciles those two authorities at [51] as follows:
51.I am not persuaded Bunyon and Alfarsi are truly inconsistent. In Bunyon, Bennett J took the view that it was not necessary for there to be “duelling courts” or litigation in two or more jurisdictions before s 111CC applied. It was only necessary for there to exist two or more competent jurisdictions which could be used to resolve a dispute between parties in relation to the protection of the person of a child. In this sense, there existed a conflict of jurisdictions. The distinction is between two jurisdictions which have been invoked and two jurisdictions which could be invoked. The latter is sufficient to raise an “issue under the Act” as to jurisdiction. In Alfarsi, Foster J addressed a different question. He found there was no issue under the Act because there was no evidence of any jurisdictional conflict, because there was no evidence of the existence of any “competent authority” in the non‑Convention country.
[Emphasis added]
For my part, I am assisted by those authorities.
Further, I am assisted by the usual suspects in regard to statutory interpretation. In particular I have regard to the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (‘Blue Sky’), and the below ratio decidendi:
71Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
[Citations omitted]
The way that I read section 111CC to more readily make sense of it is as follows:
This subdivision applies only if an issue under this Act is whether an Australian court has jurisdiction to take measures directed to the protection of a person of a child, as opposed to a central authority or competent authority of a Convention country, or a competent authority of a non-Convention country.
I do not have any evidence as to the law of Country D. The law of a foreign country is a fact that, if sought to be proved by anyone, must be proven on evidence and as a matter of expert evidence. I do not make any conclusion or opinion in such a vacuum. I have no reason to doubt that the law of Country D would be practical and commonsense and be carefully thought through.
Section 111CC applies only if there is an issue under the Family Law Act 1975 (Cth) whether I have jurisdiction to take measures directed to the protection of the children as opposed to a central authority or competent authority of Country D, the non-Convention country. In this case, I am not satisfied that there is an issue of a competent authority determining the living arrangements of the children in Country D as opposed to my order. However, putting Mr Wemble, the father’s, email at its highest, for the purpose of this exercise, I will take his reference in the email of point 3 and referring to an order of early 2023 as being an issue of whether this court has jurisdiction as opposed to a competent authority of Country D. If there is such an issue, and proceeding on that basis for the moment, the children not being in Australia would mean that section 111CD would apply.
By section 111CD(1) (recited earlier), I may exercise jurisdiction for a personal protection measure as defined (and a recovery order would be and is a personal protection measure) only in certain circumstances. Those circumstances are:
·“(a) if a child is present and habitually resident in Australia”: so that does not apply;
·“(b) a child who is present in Australia and habitually resident in a Convention country…”: so that does not apply;
·“(c) the child who is present in a Convention country…”: so that does not apply;
·“(d) a child who is present in Australia and is a refugee child…”: so that does not apply; or
·“(e) a child who is present in a non-Convention country, if
(i) the child is habitually resident in Australia and
(ii) any of paragraphs 69E(1)(b) to (e) apply to the child”.
Hence, that paragraph 111CD(1)(e) does apply if there is an issue.
I am proceeding on the basis that there is an issue, putting Mr Wemble’s assertions at its highest. In fact, Ms Bellanger has told me her understanding is that the City B Local Court in C State in Country D has determined that the parties’ consent order made when the children were living in Australia should be followed and applied. Hence, in that circumstance, it is difficult to see how there is “an issue”. But assuming there is an issue, or even if there is an issue as referred to at paragraph 111CC, I am satisfied that the children are present in Country D, a non-Convention country, and the children are habitually resident in Australia and, as I have set out, the three paragraphs of section 69E(1)(b) to (d) apply.
I am satisfied the children are habitually resident in Australia because the older child had lived all of his life here since he was five months old and had completed prep, grades 1, 2, 3 and 4 in Melbourne, when he travelled with his mother to Country D. His mother travelled to Country D temporarily for the purpose of visiting her father and introducing the child to him, in circumstances where the child had never met him. The fact that Mr Wemble forcibly removed the older child from his mother’s care in early 2022 and detained him contrary to orders of this court, that Mr Wemble himself had consented to, does not change that child’s habitual residence. I am satisfied that that child was and is habitually resident in Australia.
In regard to the younger child, Y, he was born in Australia and had lived his entire life in Australia until he travelled to Country D with his mother. The purpose was a temporary visit for the purpose of the cultural connection of meeting his maternal grandfather. Like his older brother, his father’s forcibly removing the child from his mother’s care does not change the child’s habitual residence. That child was and is an habitual resident of Australia. Hence, I am satisfied that, even if there is an issue, Ms Bellanger has authority to commence the proceedings and I have jurisdiction to make a recovery order.
Conclusion
In the circumstances that I have recited earlier, I am well satisfied that it is in the children’s best interests that they be urgently returned to Ms Bellanger’s care. Their best interests will be served by being returned to their mother’s care. If there is any issue from Mr Wemble’s part or he seeks a contest in regard to where the children should live, that is, with him in Country D or with Ms Bellanger in Australia, that contest should take place in the place of the children’s habitual residence. It should not take place in the place where one party has merely, by use of force, brought the children into his or her care contrary to an existing applicable court order, contrary to commonsense and outside of the habitual residence of the children.
In those circumstances, I am satisfied that a recovery order is in the children’s best interests, and I will make that recovery order. I will also make orders respectfully requesting the various authorities of the Country D to lend their assistance, if they or any of them are able to lawfully assist according to the law of Country D, with the enforcement of the recovery order and the reunification of the children with their mother, Ms Bellanger.
In exercising my discretion to make that order, I take account of what Ms Bellanger asserts, and I accept, she has been told. She has been told that it may well be the case that if a recovery order is issued by this court and transmitted to the relevant authorities in Country D that she may well obtain the assistance of the Commissioner of Police and/or the courts and/or the Foreign Affairs department in obtaining the children being returned to her care. That is not a guarantee, but is the Mother's hope, and I am satisfied it is well appropriate that I make those orders in the event that they are able to assist. The order that I make will also make it clear that I am respectfully requesting the assistance of the relevant authorities in Country D, not usurping or interfering with their jurisdiction and powers.
I am fully aware that the orders I made direct the Australian Federal Police (“the AFP”) but are not able to be exercised by the AFP at the moment because the children are said to be, and are likely to be, in Country D. I will notify the AFP as such and provide the orders and these settled reasons to the AFP so that they are aware of the context of these orders. I am confident the AFP will assist if and when they are able to.
I will also give Ms Bellanger leave to approach the Court seeking an urgent hearing on short notice in the event of either the recovery of the children or any further circumstance that may aid or assist in their recovery on short notice.
I will otherwise adjourn the matter.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 25 September 2023
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