BURNS & MELVILLE

[2015] FamCA 1023

FAMILY COURT OF AUSTRALIA

BURNS & MELVILLE [2015] FamCA 1023

FAMILY LAW – PRACTICE & PROCEDURE – REVIEW – where the applicant seeks a review of a Registrar’s decision not to list an application urgently –where the child is overseas – where there is an order for the child to be returned to Australia - where the application sought parenting orders which would see the child remain overseas – where there was delay in bringing the application – where no urgency demonstrated – where application for review dismissed.

Family Law (Child Abduction Convention Regulations) 1989 (Cth)
Family Law Rules 2004 (Cth)
Hague Convention on Civil Aspects of International Child Abduction 1980

APPLICANT: Mr Burns

RESPONDENT: Ms Melville

FILE NUMBER: BRC 11190 of 2015

DATE DELIVERED: 20 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 20 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glass

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

FOR THE RESPONDENT: In person

Orders

it is ordered that:

1. The Husband’s Application in a Case filed on 19 November 2015 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11190 of 2015

Mr Burns

Applicant

And

Ms Melville

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings concern the child B, who was born in 2004 and is now aged 11 years.  Her parents separated in the United Kingdom in 2007 and subsequently divorced there.  The mother relocated to Australia on 28 November 2012 with her new husband, the daughter of their marriage and the child.  That occurred with the agreement of the father and followed consent orders made in the D Town County Court on 6 September 2012.  On 28 November 2014, the child travelled to the United Kingdom, via the agreement of both parents, for an extended visit with her father. 

2. They disagree as to the duration of that visit, with the mother’s reference in the Hague Convention proceedings, I will shortly refer to, referring to the mother saying it was originally agreed to be for a three month period and the father saying it was for a six month period.  In the event it seems that agreement was reached whilst the child was with her father for the period to come to an end on 25 June 2015.  In breach of that agreement, the father retained the child in the United Kingdom on and after 25 June 2015.  The mother promptly caused proceedings under the Hague Convention on Civil Aspects of International Child Abduction 1980 to be instituted. 

3. The consequence of those proceedings was that on 27 October 2015, the High Court of Justice Family Division in the United Kingdom ordered that the child be returned to Australia on 22 November 2015.  A further order was made in these terms:

   In the event that the Father obtains prior to the date of departure an order from Family Court of Australia permitting the said child to remain in England and Wales pending the final determination of any residence and/or relocation proceedings, paragraph one of this order shall stand discharged.

4. Self-evidently, there was about a 26 day period between the day of the making of that order and the ordered date of departure, namely, 22 November 2015.  For reasons unexplained in the applicant father’s evidence before me, he left it until yesterday, 20 November, being the 24^th of the 26 days to which I have referred, to cause an application, an initiating application to be filed in this Court.  Yesterday, obviously, was the second-last working day of this Court prior to the ordered date of departure on 22 November 2015. 

5. By filing the application only yesterday, no reasonable notice was given to the mother of the application.  She was served in the late hours of last night. 

   
   

   Self-evidently, there has been no reasonable opportunity for the mother to respond. 

6. The father sought, yesterday, to have his applications listed on an urgent basis by a registrar.  The registrar refused the urgent listing and listed it in the normal course to be heard, in the first instance, for an interim hearing on 4 February 2016.  The mother has had no reasonable opportunity to gather any evidence in answer to this application, firstly, for a review of the registrar’s decision and then interim orders. 

7. The father purports to rely upon a family report, or a social science report, as it may be described, that was gathered in the Hague proceedings.  Clearly, one ground of objection or defence to a Hague application is if a respondent can provide evidence that the child “objects” to returning to the country of origin within the meaning of the Family Law (Child Abduction Convention Regulations) 1989 (Cth).  Counsel for the father submits that by reference to that report, it can be seen that the child wishes to remain in the United Kingdom; however, there are a couple of comments to be made about that submission. 

8. Firstly, on my reading of that report it is by no means unequivocal or certain in terms of the child’s views or wishes.  Whilst there is a general expression of the wish by the child to remain in the United Kingdom, there are also references in the report at paragraphs 33, 34 and 35 etc, that make it clear that there is some equivocation in the child.  At paragraph 33, the report writer says:

   I explored [the child’s] views about a return to Australia, [the child] having said she “did not know”.  [The child] initially commented that she was a little hungry.  I asked how she thought she would feel if the English judge said she should return.  [The child] said she did not know.  She guesses that she would have to do what the judge said because the judge is like the “big boss”.

9. Paragraph 34 records:

   I asked [the child] about the time she would like to spend with the parent with whom she does not live, given the distance between Australia and England.  [The child] began to cry.  She said it was something she did not want to talk about, because it is difficult.  the child said she does miss her mum, [Mr Melville], and [C], a little bit.

   Mr Melville being the mother’s present husband and C being the child’s sibling, or half-sibling. 

10. Reliance on such a report also comes with the caution that is made clear by authorities of this Court of approaching what is sometimes described as a

    
    

    “one-sided report”.  By that, I mean a report compiled by a social scientist without participation by one of the parents and without the opportunity for the social scientist to test a child’s views or expressed wishes in the context of both parents participating in the process.  There are obvious reasons why the mother did not participate in this particular process, given that the report was designed to gather evidence to see whether the child actually objected to returning to Australia under the Convention. 

11. Plainly, the decision of the English Court in the Hague Convention proceedings reflects that the child’s habitual residence is in Australia and that she was wrongfully retained in the United Kingdom.  Plainly, the Court in England was not satisfied that the child objected to returning to Australia.  The events giving rise to the present process occur because the father chose, wrongfully, as it has now been found, to retain the child in the United Kingdom postdating the agreed date for the child’s return of 25 June 2015. 

12. There is also reference in the report, and I refer to paragraph 41 of it, to the fact that if the child does not return to Australia before 25 November 2015, her residency status in Australia will lapse. 

13. The registrar refused to list the date for urgency, it seems to me, for obvious reasons.  The application for urgency, or an urgent listing was made, I repeat, for the first time yesterday.  Today is the last working day before the ordered date for the child’s return to Australia.  In addressing matters of urgency, a registrar is obliged to have regard to the relevant rules so far as determining whether or not the application should be dealt with or listed on an urgent basis. 

14. Under rule 5.05 subrule (1) of the Family Law Rules 2004, upon the filing of an application in a case or an initiating application, the registry is obliged to provide a date as near as practicable to 28 days after the application is filed.  Subrule (4) of that rule allows an earlier date, or an urgent date to be fixed if a registrar is satisfied that:

    a)the reason for the urgency is significant and credible; and

    b)there is a harm that will be avoided, remedied or mitigated by hearing the application earlier. 

15. Whilst I am not provided with any reasons or evidence of reasons given by the registrar, it is clear that the registrar was not satisfied so far as those provisions of the subrule are concerned.  I am satisfied that the registrar was correct in not being so satisfied. 

16. The application before the registrar lacked credibility in circumstances where, the order in the United Kingdom having been made now almost a month ago, the father left it until the first time yesterday to file his initiating application and then to file his request for urgency.  It would have been an impossibility for this Court to entertain an interim application between the filing of the application yesterday and the ordered travel on 22 November 2015. 

17. The English Court, pursuant to the Hague Convention, has determined Australia to be the proper forum for determination of future parenting arrangements for this child.  As it seems to me, the father’s conduct would be effectively to achieve precisely what the Hague Convention is designed to avoid, namely, that a parent acting wrongfully in retaining a child persists in that position whilst the parenting proceedings are on foot. 

18. I am therefore not satisfied that there is any basis for review of the registrar’s decision not to earlier list the application. 

19. For the reasons referred to, I dismiss the Application in a Case for review of the registrar’s decision.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 November 2015.

Associate: 

Date:  23 November 2015