Commonwealth Central Authority and Cotter - [2015] FamCA 1202

FAMILY COURT OF AUSTRALIA

COMMONWEALTH CENTRAL AUTHORITY & COTTER

[2015] FamCA 1202

FAMILY LAW – Interim Hague return proceedings – case management – exceptional circumstances requiring appointment of independent children’s lawyer

APPLICANT:

Commonwealth Central Authority

RESPONDENT:

Mr Cotter

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

5000

2015

DATE DELIVERED:

1 July 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

1 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carey

SOLICITOR FOR THE APPLICANT:

Department of Human Services Legal Services Branch

COUNSEL FOR THE RESPONDENT:

Ms Dahl

SOLICITOR FOR THE RESPONDENT:

Nicholes Family Law

Orders

IT IS ORDERED THAT

1.The final hearing set down for 23 July 2015 before the Honourable Justice Macmillan be and is hereby vacated and the matter henceforth not be listed before her Honour.
2.The times for filing of documents provided for in paragraphs 3 and 4 of the Order made on 16 June 2015 be extended in each case by seven days.
3.The final hearing of this matter be adjourned to a date to be fixed and notified to the parties by my Associate NOTING THAT the final hearing is estimated to take approximately 2 days. My Associate also further inform the parties of any further mention date.
4.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child the child B born … 2010 (“the child”) be independently represented by a lawyer AND IT IS REQUESTED that the child Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim orders would be in the best interest of the child having regard to the nature of the Hague Convention proceedings and in the meantime to direct attention to :-
a) making arrangements for appropriate communication and/or time (if any) between the child and the requesting parent; and
b) a mediation arranged through the child Legal Aid between the parties in Hague Convention cases.
5.That forthwith upon appointment by the said the child Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.
6.That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.
7.Paragraph 9 of the Order made on 16 June 2015 be varied so as to refer to the respondent’s date of birth as “1969”, in lieu of “1069”, and to refer to the mother as “the requesting parent”.
8.That until further order, the respondent father by his servants or agents be restrained by injunction from causing or permitting or suffering the said child to be assessed by a psychologist, counsellor, medical practitioner or like professional for the sole or ancillary purpose of obtaining evidence for use in this proceeding without the prior written consent of the applicant Commonwealth Central Authority.
9.I reserve liberty to the respondent father to vary or set aside the preceding order or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commonwealth Central Authority and Cotter

Details

AGLC: Commonwealth Central Authority and Cotter [2015] FamCA 1202
Case: [2015] FamCA 1202
Decision Date: 1 July 2015

CaseChat Overview and Summary

This matter came before Bennett J of the Federal Circuit Court of Australia concerning proceedings under the Hague Convention. The parties involved were the Commonwealth Central Authority, acting on behalf of a requesting parent, and the respondent father, concerning their child, B. The dispute centred on the child's welfare and the appropriate conduct of the proceedings, particularly in light of the international nature of the case and the need for independent representation for the child.

The court was required to determine several issues, including the vacation of a previously scheduled final hearing, the extension of time for the filing of documents, and the adjournment of the final hearing to a later date. Crucially, the court had to consider the independent representation of the child, B, pursuant to section 68L(2) of the *Family Law Act 1975*, and to direct attention to arrangements for communication between the child and the requesting parent, as well as mediation. The court also had to address an injunction sought by the applicant to restrain the respondent father from obtaining psychological or medical evidence concerning the child without the applicant's consent.

In reaching its decision, Bennett J vacated the final hearing and adjourned the matter, extending time for document filing. The court ordered the independent representation of the child, B, by a lawyer appointed through Child Legal Aid, with specific directions for the independent children's lawyer to make recommendations regarding interim orders, communication arrangements, and mediation. An injunction was granted restraining the respondent father from obtaining evidence regarding the child without the applicant's consent, with liberty reserved to the respondent to vary or set aside this order. The court also noted that the Commonwealth Central Authority would consider providing country information regarding the administration of justice in Argentina to the respondent.

Orders

Orders of the court

IT IS ORDERED THAT

1. The final hearing set down for 23 July 2015 before the Honourable Justice Macmillan be and is hereby vacated and the matter henceforth not be listed before her Honour.

2. The times for filing of documents provided for in paragraphs 3 and 4 of the Order made on 16 June 2015 be extended in each case by seven days.

3. The final hearing of this matter be adjourned to a date to be fixed and notified to the parties by my Associate NOTING THAT the final hearing is estimated to take approximately 2 days. My Associate also further inform the parties of any further mention date.

4. Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child the child B born … 2010 (“the child”) be independently represented by a lawyer AND IT IS REQUESTED that the child Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim orders would be in the best interest of the child having regard to the nature of the Hague Convention proceedings and in the meantime to direct attention to :-

a) making arrangements for appropriate communication and/or time (if any) between the child and the requesting parent; and

b) a mediation arranged through the child Legal Aid between the parties in Hague Convention cases.

5. That forthwith upon appointment by the said the child Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

6. That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

7. Paragraph 9 of the Order made on 16 June 2015 be varied so as to refer to the respondent’s date of birth as “1969”, in lieu of “1069”, and to refer to the mother as “the requesting parent”.

8. That until further order, the respondent father by his servants or agents be restrained by injunction from causing or permitting or suffering the said child to be assessed by a psychologist, counsellor, medical practitioner or like professional for the sole or ancillary purpose of obtaining evidence for use in this proceeding without the prior written consent of the applicant Commonwealth Central Authority.

9. I reserve liberty to the respondent father to vary or set aside the preceding order or as he may be advised.

10. My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

AND IT IS NOTED that the Commonwealth Central Authority will give consideration to providing to the respondent any country information it has in relation to the administration of justice in Argentina.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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