Commissioner of Police, South Australia (State Central Authority) and Selik (No 2)

[2017] FamCA 345

FAMILY COURT OF AUSTRALIA

COMMISSIONER OF POLICE, SOUTH AUSTRALIA (STATE CENTRAL AUTHORITY) & SELIK (NO 2) [2017] FamCA 345

FAMILY LAW – CHILD ABDUCTION – Hague Convention  – Terms of return orders – Where the respondent proposed the father pay her AUD $12,000 as a condition of the child’s return to the United Kingdom – Where the financial circumstances of both the father and respondent were modest – Where the applicant submitted the outer-most limit of his capacity to contribute was GBP £1,500 – Ordered, given the concession, the father pay AUD $1,000 to the respondent to cover or at least help defray the cost of returning the child to the United Kingdom

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Conditions of return – Where the respondent also proposed the return orders be conditional upon the father’s provision of undertakings – Where the applicant submitted the father agreed to behave in the manner of some proposed undertakings – Decided the enforceability of undertakings in proceedings under the Regulations is a moot point – Notations to the return order reflecting the father’s willingness to regulate his behaviour

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Timing of return – Where seven months have elapsed since the child’s wrongful removal – Where the respondent knew, when reasons were delivered two weeks ago, that the child must be returned – Where the respondent should have been making preliminary plans for the child’s return – Concluded the orders will allow three weeks to ensure the child’s return

Family Law (Child Abduction Convention) Regulations 1986 (Cth), rr 15, 16

Commissioner of Police, South Australia  & Selik [2017] FamCA 256
DP & Commonwealth Central Authority (2001) 206 CLR 401

APPLICANT: Commissioner of Police, South Australia (State Central Authority)

RESPONDENT: Ms Selik

FILE NUMBER: ADC 4774 of 2016

DATE DELIVERED: 12 May 2017

PLACE DELIVERED: Adelaide/Newcastle

PLACE HEARD: Adelaide/Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Keane

SOLICITOR FOR THE APPLICANT: Crown Solicitor’s Office

COUNSEL FOR THE RESPONDENT: Ms Perry

SOLICITOR FOR THE RESPONDENT: White Berman

Orders

1. The applicant and respondent shall make all such arrangements and do all such things as may be necessary to ensure the return of B (born … 2013) to the United Kingdom pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. For the purpose of implementing Order 1 hereof:

   (a)The respondent shall notify the applicant in writing by 4:00 pm on Friday, 26 May 2017, of:

   (i)The date and time of her departure with the child from Australia, which departure must be no later than 11:00 pm on Friday, 2 June 2017;

   (ii)The date and time of their arrival into the United Kingdom, which must be within 36 hours of departure from Australia;

   (iii)The flights upon which they will be travelling between Australia and the United Kingdom; and

   (iv)The address within the United Kingdom at which she may be served with legal process.

   (b)In default of compliance with Order 2(a), the respondent shall forthwith surrender the child into the custody of the person delegated by the applicant to return the child to the United Kingdom.

3. The father, Mr J, shall cause the sum of AUD $1,000.00  to be deposited into the following bank account by 4:00 pm on Friday, 19 May 2017 (Adelaide time), which sum shall be used by the respondent to cover or defray the costs of the child’s return to the United Kingdom:

Australia and New Zealand Banking Corporation

Account Name:  Ms Selik

BSB:  …

Account Number:                 …77

1. Orders 2 to 4 inclusive made on 7 February 2017 are discharged as and from 4:00pm on Friday, 26 May 2017 and the Registrar of the Family Court of Australia (Adelaide Registry) shall, upon the applicant’s demand,  release to the applicant’s delegate the passports surrendered by the respondent pursuant to Order 2 made on 7 February 2017.

2. Otherwise:

   (a)       The Application filed on 8 December 2016 is dismissed; and

   (b)       The Cross-Application filed on 25 January 2017 is dismissed.

3. Liberty to apply on 24 hours notice for further procedural orders.

4. Leave is granted to the parties to furnish to the father and the Australian Federal Police sealed copies of:

   (a)       These Orders; and

   (b)       The Orders made on 7 February 2017.

NOTATION

(A)The father acknowledged his willingness, upon the return of the child and  respondent to the United Kingdom, to:

a.Not communicate with the respondent, other than for the purpose of implementation of court orders between them in respect of the child;

b.Not seek or instigate any prosecution of the respondent for abduction of the child from the United Kingdom; and

c.Not denigrate the respondent or members of the maternal family, or allow any other person to do so, in the child’s presence.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCA & Selik 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 NEWCASTLE

FILE NUMBER: ADC 4774 of 2016

Commissioner of Police, South Australia (State Central Authority)

Applicant

And

Ms Selik

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These reasons should be read conjunctively with those delivered on 28 April 2017 (see Commissioner of Police, South Australia & Selik [2017] FamCA 256) because they collectively explain the orders now made for the return of the subject child to the United Kingdom under the Family Law (Child Abduction Convention) Regulations1986 (Cth) (“the Regulations”).

2. When reasons were published explaining why the child should be returned, the proceedings were adjourned for two weeks at the parties’ request so they could consider the terms of the return orders.

3. Pursuant to the procedural orders made on 28 April 2017, the parties respectively filed minutes of the return orders they proposed. Those minutes were filed by the applicant on 5 May 2017 and by the respondent on 8 May 2017 (as an annexure to her solicitor’s affidavit). 

4. Save for minor differences of opinion over the timing of certain events, comparison of the parties’ proposals revealed two broad areas of residual dispute: first, who should bear the cost of implementation of the return orders, and second, the imposition of obligations to condition the return order.

Costs of Return

1. The respondent proposed that the father pay her AUD $12,000, to be used at her discretion and without any need to account for its expenditure upon travel costs and expenses, initial accommodation expenses in the United Kingdom, and living expenses in the United Kingdom. She intended the expenditure to be for the benefit of both herself and the child and that their return to the United Kingdom be conditional upon its payment. 

2. The parties appreciated the need for expeditious determination of these proceedings today in the absence of further evidentiary contest. In that context, it was relatively uncontentious that the financial circumstances of both the father and the respondent are modest.

3. The respondent contended her move back to the United Kingdom would cause her financial hardship, as indeed it will, but she is a dual citizen and it is likely she can now immediately make application to the United Kingdom authorities for any welfare benefits to which she is entitled upon her return. She should not forget these proceedings, and the orders made to determine them, eventuated from her unwise decision to flee the United Kingdom with the child, contrary to existing parenting orders made by a Scottish court. 

4. The respondent acknowledged the father did not have the financial capacity to make a payment to her in the sum of AUD $12,000, or anything like it. She apparently expected he could procure such funds from his family and friends.  Perhaps he could, but that is entirely speculative. The respondent apparently relied upon her family to cover the very substantial legal costs of her defence of these proceedings, but that was her choice to make. The father would not choose to fund her return to the United Kingdom.

5. The respondent wrongfully removed the child from the United Kingdom and she failed to prove any defence available under the Regulations, in which event a return order is obligatory. In such circumstances, reg 16 provides that the return order “must” be made. There is no discretion for the Court to exercise.

6. Regulation 15(1)(c) permits the Court, in its discretion, to condition return orders, but only as necessary to “give effect to the Convention”, not to frustrate it or render obligatory compliance with it more difficult, which would be the effect of ordering the father to pay the sum demanded by the respondent as a pre-condition to operation of the return order.

7. The applicant submitted that, although the father was opposed to any order requiring him to contribute to the cost of the child’s return, he could make some modest contribution if so ordered. It was submitted the outer-most limit of his capacity to contribute was GBP £1,500, which was considered ample to cover the cost of one-way flights for both the child and respondent from Australia to the United Kingdom.

8. I am not persuaded by the respondent that any discretion should be exercised to oblige the father to contribute to any costs she will incur by returning to and resuming residence in the United Kingdom. However, given the concession made by the father through the applicant, I am prepared to make an order requiring the father’s payment of AUD $1,000 to the respondent to cover or at least help defray the cost of returning the child to the United Kingdom. 

9. The father’s payment of that sum will not, however, be a condition of the child’s return to the United Kingdom. He must be returned regardless. Any failure by the father to comply with the order requiring his financial contribution, if not enforceable in Australia, might be a factor that influences the existence and quantum of his liability for the payment of spousal and/or child maintenance in the United Kingdom.

10. The applicant conceded the father ceased payment of child maintenance upon the respondent’s wrongful removal of the child from the United Kingdom. The arrears are said to be GBP £1,280 and will be paid by the father upon the child’s return.

Conditional Return

1. I have already remarked upon the Court’s obligation in this case to make return orders and the limited way in which such return orders may be conditioned.

2. The respondent proposed that the return orders also be made conditional upon the father’s provision of written undertakings to her. The proposed undertakings deal with:

   a)The absence of any interaction between them (proposed Order 3.1);

   b)The father abstaining from enforcing the existing Scottish parenting orders, pending further interim hearing in Scotland (proposed Orders 3.2 and 3.3);

   c)The father refraining from instigating any prosecution of the respondent for the child’s abduction from Scotland (proposed Order 3.4);

   d)The father promising not to oppose any future application made by the respondent to a Scottish court for permission to take the child on holidays to Australia (proposed Order 3.5); and

   e)The father refraining from denigration of the respondent in the child’s presence (proposed Order 3.6).

3. The applicant submitted the father agreed to behave in the manner that some of those proposals required, which was sensible of him, but he opposed the proposed conditions that would bind the manner in which he exercises any existing Scottish orders and/or the manner in which he conducts the pending Scottish proceedings. 

4. In effect, the respondent wants to be placed in a better position than she was before her flight from Scotland. I am not persuaded, in the circumstances of this case, any order should be made which directly or indirectly meddles in the enforcement in the United Kingdom of the existing Scottish orders or the way in which the parents see fit to conduct the unfinished proceedings in Scotland.

5. However, there is a more profound consideration that afflicts the respondent’s proposal for the father’s provision of undertakings to her. The enforceability of undertakings in proceedings under the Regulations is a moot point (see DP & Commonwealth Central Authority (2001) 206 CLR 401 at 421, 425, 447-448). There is no utility in making undertakings that are unenforceable.

6. I am not satisfied the return order should be made conditional upon the father providing to the respondent the written undertakings she requires. Nonetheless, the father’s public acknowledgement of his willingness to regulate his behaviour in a way designed to re-assure the respondent can be conveniently recorded by way of notation to the orders.

Timing

1. As earlier mentioned, the parties’ proposals reveal discrepancies over the timing of events necessary to ensure the child’s return to the United Kingdom.

2. In reality, resolution of those discrepancies is entirely arbitrary since, in that respect, no evidence is brought to bear and the proposals only manifest the parties’ preferences. However, the regulatory construct gives important context to that aspect of the dispute because it mandates expedition. 

3. The child was wrongfully removed from the United Kingdom in October 2016.

4. The applicant brought these proceedings in December 2016. 

5. The application was listed for hearing on 7 February 2017, but it was adjourned for two months because both parties wanted a reprieve to adduce more evidence.

6. The proceedings were heard on 7 April 2017. 

7. Reasons were delivered on 28 April 2017 explaining why the child should be returned. The return orders could have been made then on the available evidence but, at the parties’ request, procedural orders were made to give them more time to formulate the terms of the return orders they each proposed. 

8. It is now May 2017. Seven months have elapsed since the child’s wrongful removal, in circumstances where reg 15(4) expects such proceedings to be determined within 42 days of the initiating application being filed.

9. Although the applicant was prepared to allow up to a further 28 days for the respondent to arrange the child’s return to the United Kingdom, it should happen more quickly than that. 

10. The respondent must have known the child’s return was a possibility throughout her contest of these proceedings and she knew for sure when the reasons were delivered two weeks ago on 28 April 2017. She should have been making preliminary plans for the child’s return already. The orders will allow her a maximum of three weeks to ensure the child’s return. The orders require the father to pay to her AUD $1,000 within seven days to contribute to the cost. The respondent has seven days thereafter to book the flights and confirm the travel arrangements with the applicant. She will have a further seven days thereafter within which to leave with the child. 

11. The orders also require her to advise the applicant of her address for service (not her residential address) in the United Kingdom. That will be necessary to enable the father to serve her with legal process pertinent to the unfinished Scottish proceedings, for otherwise the whereabouts of her and the child within the United Kingdom would be unknown. 

12. The interim orders made by this Court on 7 February 2017 with the parties’ consent will be discharged once arrangements for the child’s return are in place. The passports of the respondent and the child will be released by the Court into the custody of the applicant. The applicant’s representative can give the passports to the respondent at a time proximate to her departure with the child from Australia. If the respondent does not comply with the orders, the applicant will already be in possession of the child’s passport and the respondent will then be obliged to surrender the child to the applicant’s delegate. 

13. Liberty to relist the proceedings urgently on 24 hours’ notice is granted in case further implementation orders are necessary.

14. Copies of the orders made today and those made earlier on 7 February 2017 may be given to the father and to the Australian Federal Police. That will help facilitate the child’s return in accordance with the Court’s orders.

15. For those reasons, I make orders in the following terms.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 12 May 2017.

Associate: 

Date:  25 May 2017