Boyd & Sage - [2020] FamCA 482

FAMILY COURT OF AUSTRALIA

BOYD & SAGE

[2020] FamCA 482

FAMILY LAW – PARENTING – urgent application run concurrently with proceedings in Scotland in respect of a child wrongfully removed to Scotland in respect of whom a return order has been made under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction as implemented by the Child Abduction and Custody Act 1985 (UK).

FAMILY LAW – PARENTING – where application accepted into the COVID-19 list of cases and expedited accordingly.

FAMILY LAW – JURISDICTION – where Australia retains preeminent jurisdiction in relation to the child by virtue of Articles 5 and 7 of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children

FAMILY LAW – PRACTICE AND PROCEDURE – where this Court is ready and willing to sit simultaneously with the Scottish Court, by audio visual link, if to do so will lend clarity to matters and assist the conclusion of the Scottish proceedings and the speedy return of the child to Australia.

Child Abduction and Custody Act 1985 (UK)
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Family Law Act 1975 (Cth)

APPLICANT:

Ms Boyd

RESPONDENT:

Mr Sage

INDEPENDENT CHILDREN’S LAWYER:

Ms Lonergan

FILE NUMBER:

MLC

5782

2020

DATE DELIVERED:

5 June 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

5 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Knight Family Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Ms Hutchings

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

Victoria Legal Aid

Orders

Henceforth, until the father files a Notice of Address for Service to the contrary, the Address for Service of the respondent father be noted in the records of the Court as Kennedy Partners, … Melbourne, 3000.
This matter be listed for an interim determination of parenting matters on 20 August 2020 before me at 9.00am.
There be leave to Mr Kennedy AM to make an oral application on behalf of the father that the child X born … 2013 (“the child”) be returned to Melbourne, Victoria, Australia forthwith and that the mother do all acts and things necessary to implement that return.
Pursuant to section 7 and 11 of the Australian Passports Act 2005 (Cth) and the court being satisfied that it is in the best interests of the child a passport for the child X born … 2013 issue on the application of the father without the consent of the mother and IT IS REQUESTED that any such application be expedited to permit the return of the child to Australia as soon as practicable and the father be at liberty to provide this Order to the Department of Home Affairs in Australia or any other government instrumentality.
The mother forthwith send to the father electronically passport photographs of the child so that he can complete the passport application.
The mother advise the father and keep the father advised of her residential address and contact details.
The father keep the mother advised of any change in the address of his residence and his contact details.

UNITL FURTHER ORDER

Neither parent attend at or within 200m of any place the other parent resides or attends for the purpose of education or work.
Any communication about the child, save for in the event of an emergency, be by email, text or by such other electronic parenting platform as the Independent Children's Lawyer recommends.

IT IS FURTHER ORDERED

Immediately upon arriving in Australia the mother surrender the child’s British and Australian passports, together with any other travel documentation, that has been issued to the child and surrender that to her solicitors, and her solicitors deposit that with the Registry of the Court to be held safely until further order.
Each of the mother, Ms Boyd, and the father, Mr Sage, and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child X, female, born … 2013 from the Commonwealth of Australia.
Once the child X, female, born … 2013 re-enters Australia, she be and is hereby restrained from leaving the Commonwealth of Australia until further order.
IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years.
AND IT IS NOTED that any parent seeks that the child or child’s name remain on the Watch List for a period beyond the period specified in this Order, that party must seek such an order by filing and serving an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.
A copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.
IT IS FURTHER REQUESTED that the Independent Children's Lawyer consider the availability of an early mediation through the Family Dispute Resolution Service at Victoria Legal Aid even whilst the child and mother are in quarantine for an agreement about time and communication with the father.
The father file and serve a response to the Application in a Case of the mother by not later than 19 June 2020 at 12.00 noon.
The mother file and serve any reply to the father’s evidence by not later than 6 days following service of the father’s responding material.
The mother explain on oath her failure to attend the hearing this day and, if an affidavit is filed by the mother pursuant to paragraph 17 of this Order, the mother may include the explanation in that affidavit or in any event the explanation be given in affidavit filed by not later than 25 June 2020.
Within 7 days the mother file and serve any evidence upon which she proposes to rely from her psychologist and psychiatrist referred to but not identified in paragraph 4 of the mother’s affidavit, affirmed on 4 June 2020. In the event that the mother does not seek to rely on any evidence from these practitioners, she inform the Independent Children's Lawyer and the father, through their respective lawyers, of the name and contact details of the practitioners.
The mother advise the father and the Independent Children's Lawyer and the father, through his solicitors, of the flight details for the return journey for X and the mother from Scotland to Australia.
The Independent Children's Lawyer endeavour to reach an agreement with the mother and the father as to interim time and communication between the father and the child.
The Independent Children's Lawyer investigate and inform the parties of what arrangements can be made for the father to deliver gifts to the child, or leave them for the child, during quarantine provided that the gifts be delivered not more than once each day.
The mother and the father do all acts and things necessary and submit to an assessment for the purpose of a report being prepared by Dr B, psychiatrist, as to his or her mental health, vulnerabilities, psychological functioning and any other matter which may impact upon his or her capacity to parent or to cooperate with one another in the parenting of X.
The mother and the father, if in receipt of assistance from Victoria Legal Aid, promptly make application for an extension of assistance to cover the reasonable costs of the assessment by Dr B, psychiatrist or otherwise pay such reasonable costs himself or herself.
The mother forthwith inform the Independent Children's Lawyer of the whereabouts of the personal effects of the child (which were not taken to Scotland) and the whereabouts of the dog which was in the household with the mother and the child before they travelled to Scotland.
The s 11F report referred to in paragraph 7 of the Order made on 4 June 2020 be released by not later than 13 August 2020.
The Family Consultant be at liberty to speak with the single expert witness psychiatrist, if any, who is preparing, or who has prepared a report of the mother and the father.
I DIRECT that a copy of this Order be sent to the proper officer of the court in the Scottish proceeds … of 2020 at ... requesting that a copy of this Order be provided to the clerk of the judge of the Scottish Court and a further copy be placed on the court file in the Scottish proceedings prior to the next hearing on 29 June 2020.
On or before 19 June 2020 at 12.00 noon, the father file and serve any evidence he relies in relation to his own mental health from any psychologist, psychiatrist, counsellor or like professional.
If the father does not seek to rely on any evidence as to his mental health, he inform the Independent Children's Lawyer and the mother, through their respective lawyers, of the name and contact details of any psychologist, psychiatrist, or counsellor he has attended upon for treatment or assessment in the last three years.
To the extent that the parties need permission to do so, each party may cause unlimited subpoenas to produce documents to issue provided that the subpoenas are returnable prior to 22 July 2020.
Otherwise the Application in a Case of the Mother filed on 4 June 2020 be dismissed.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Boyd & Sage 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

FILE NUMBER: MLC 5782 of 2020

Ms Boyd

Applicant

And

Mr Sage

Respondent

And

Independent Children's Lawyer

EX TEMPORE REASONS FOR JUDGMENT

These proceedings concern X born in 2013 and are instituted parallel to proceedings in Scotland under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”) and whilst both Australia and Scotland are subject to restrictions to contain and manage with the COVID-19 pandemic.
The purpose of these reasons is to provide context to the Order made this day and to impress on the parties and, most respectfully, the Scottish court currently seized of the matter, the importance of X being returned to this jurisdiction and, in particular Melbourne, by Tuesday 7 July 2020.
By way of an application initiating proceedings lodged electronically with the Court at 12:30 pm yesterday, the mother seeks urgent interim parenting orders, to be obtained ex parte the father. The mother sought that her application be listed as a COVID-19 matter and “be heard before 6:30 pm on 4 June 2020”.
The mother’s application was drawn and submitted by Knight Family Lawyers who are a Melbourne firm of solicitors. The covering letter stated that an urgent listing was preferred because:
…the Central Authority has a Hague Convention Recovery Application before the Scottish Court. We note that the mother has already attempted to comply with the Order of that Court but was turned away due to the child not having a right of entry into Australia.
Given the current COVID-19 crises, the mother seeks that the Family Court exercise its jurisdiction order permitting the child to remain in Scotland until it is safe to travel to Australia.
The COVID-19 List operates in the Family Court of Australia and the Federal Circuit Court of Australia and is dedicated to deal exclusively with urgent parenting-related disputes that have arisen due to the COVID-19 pandemic. The COVID-19 List is designed to especially deal with disputes involving issues of risk and family violence, and will be triaged by a dedicated Registrar who will assess the needs of the case and allocate it to be heard by a judge within 72 hours of being assessed. On 4 June 2020, the mother’s Application in a Case was assessed as suitable for COVID-19 list on 4 June 2020.
By way of background, the mother is 41 years old, a British citizen by birth and is currently in Scotland. She is not employed outside the home. The mother deposed to having been diagnosed with Obsessive Compulsive Disorder manifesting “mainly as a germ phobia”. The father is 32 years old, an Australian citizen by birth who resides in the Melbourne suburb of Suburb D. He is a tradesman.
The mother asserts that parties commenced cohabitation in 2012 and the mother deposes to a final date of separation of 27 August 2017.
There is one child of the relationship X who is seven years old having been born in 2013. She is an Australian citizen by birth and a British citizen by descent. X is present in Scotland with the mother. She is travelling on a British passport. The fact that X has not been issued with an Australian passport is of some significance as discussed later in these reasons.
Without the knowledge or consent of the father, the mother removed X from Australia and went to Scotland. In due course the father initiated a Hague return application in Scotland. The mother did not mount a case in opposition to the return application and, on 7 May 2020, a judge of the Scottish Court ordered that the mother return X to Australia by 21 May 2020 and forthwith provide details of the child’s return flights. The petition was adjourned to 28 May 2020 before the judge so that he could be satisfied that there had been no difficulties with X’s return to Australia and noting that if the hearing proved to be unnecessary, it could be administratively discharged.
By way of parenting orders, the mother seeks the following orders:
5. That the child X, born in 2013 (“the Child”) be permitted to remain in the United Kingdom until the end of the COVID-19 Pandemic.
6. The Court make declaration that the child, is a child to whom the Family Law Act 1975 (Cth) applies
The mother seeks leave to file an Amended Initiating Application within 21 days, presumably one that would comply with the rules and specify with precision what orders she seeks.
Apropos paragraph 6 of the orders sought by the mother, all parties are ad idem that Australia retains pre-eminent jurisdiction in relation to X. Specifically, that is by operation of Articles 5 and 7 of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“1996 Convention”) which entered into force between Australia and Scotland on 1 November 2012. Consequently, the jurisdiction of the Scottish courts is limited to Article 11 (urgent measures) and Article 12 (provisional measures) and then only to the extent that such measures/order is not inconsistent with orders/measures made in Australia.
I dealt with the mother’s application ex parte last night at the same time as the mother was appearing before the judge of the Scottish Court. In summary, I adjourned the mother’s application to 3 p.m. today, required her and her solicitor to attend court and appointed an Independent Children’s Lawyer to represent X’s interests.
An Independent Children’s Lawyer is appointed under s 68L of the Family Law Act 1975 (Cth). The Independent Children's Lawyer’s role is to represent the best interests of the child, arranging for necessary evidence, including expert evidence, to be obtained and put before the court, facilitate the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case, and act as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate.
Also ordered a s 11F Child and Parent Issues Assessment to be conducted on 28 July 2020. That assessment is a “Child Inclusive Conference” which is a meeting with a Family Consultant, the adults and the children involved in the matter and is ordered by the Court. Lawyers are not included. The conference is intended to give the Court an understanding of the family situation, and particularly of the child/ren’s experience. The conference can help the judicial officer hearing the case make short-term decisions about arrangements for the child/ren. It may also help the parties reach an agreement. A Family Consultant is an expert psychologist or social worker with a high level of training and experience in child development and parenting after separation and divorce. Family Consultants are employed directly and exclusively by the Court in Child Dispute Services which is located within the Registry.
Today, Mr Knight, solicitor, appears for the applicant mother, Mr Kennedy AM, solicitor, appears for the respondent father and Ms Hutching of counsel appears for the Independent Children's Lawyer, Ms Lonergan.
Notwithstanding the order that required the mother to participate in today’s hearing, she did not appear. There were several unsuccessful attempts by the court to reach her by telephone. The mother’s solicitor confirmed that he had advised the mother of her obligation to attend. I will require that the mother swear an affidavit explaining her failure to attend.
The Order made today, set out at the beginning of these reasons, dismisses the mother’s application to retain the child in Scotland. I have required her to return forthwith. This disposition was uncontroversial and, but for the importance of the Scottish court understanding the stage which proceedings have reached in Australia, I would not have produced these reasons.
With one omission, the parenting arrangements which will apply immediately upon the child returning to Australia are evident from the Order made today. The missing information is that the mother and child are very likely to be required to enter quarantine at a government controlled facility immediately after disembarkation and to remain in that facility for 14 days.
Having regard to the quarantine period, it is essential that the child is within this jurisdiction and in Melbourne by not later than 6 July 2020 so that quarantine can runs its course and be completed comfortably before the s11F Assessment on 28 July 2020, which may well involve a face to face interview between the child and the Family Consultant.
I direct that, when these reasons for decision are settled, a copy be sent to each of the parties and to the proper officer of the Scottish Court so that the reasons will be accessible to the judge when the Scottish proceedings are next before him at the end of this month.
Finally, if it would assist the Scottish court to deal with the matter on the next return date before that Court, I am prepared to convene court in Australia simultaneously with that hearing and connect the two hearings by video link or telephone. All we need at this end will be details of the hearing time and connection details.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 June 2020.

Associate:

Date: 16 June 2020