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 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Commonwealth Central Authority & Cotter 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 MELBOURNE

FILE NUMBER: MLC 5000 of 2015

Commonwealth Central Authority

Applicant

And

Mr Cotter

Respondent

REASONS FOR JUDGMENT

Ex Tempore

This matter comes before me by way of a mention. It had previously been set down for a defended hearing before Macmillan J to commence on 23 July 2015. However, her Honour has recused herself, and the matter has come to me and will be heard by me or at my direction in due course, that is, the parties will be notified by my chambers of a final defended hearing date as and when one becomes available and I fix it accordingly. I have read some of the documents on the Court file prior to convening this mention, which was conducted by telephone. I have also had the benefit of discussing the matter with the representatives for the Applicant Central Authority, and for the respondent father.
The proceedings are a return application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (‘the Regulations”), in which it is sought that the five year old child, B born in 2010, be returned to Argentina, where it is contended she was habitually resident prior to the wrongful retainment of her by the father on 24 February 2015. From reading the material, it appears that the arguments in opposition to the return will include habitual residence and also that a return would pose a grave risk of harm to the child in the context of regulation 16(3)(c) of the Regulations.
The grave risk appears to lie in the assertion by the father that the rule of law does not apply in Argentina or that there are insufficient checks and balances within the legal system in Argentina for there to be a fair hearing or to secure protective orders in relation to the father if he were to have to return to Argentina or wish to do so. To date, there has been no specific order directed to the gathering of evidence in relation to the administration of justice in Argentina.
Neither party opposes an independent children's lawyer being appointed. Of course, that is not the end of the matter. I am not able to appoint an independent children's lawyer unless I am satisfied that there are exceptional circumstances which warrant me doing so. In this case, I am so satisfied.
Australia has entered into an international treaty with Argentina and it is asserted in this case that the administration of justice in Argentina is deficient in such a way that the grave risk exception would be enlivened, it seems to me that that is an exceptional circumstance. Moreover, the child who is the subject of the proceedings is five years old, has been in the constant care of the mother up until she travelled to Australia and was then allegedly wrongfully retained.
The mother asserts that there has been an interruption in electronic contact with the child. I have also read the mother’s material, wherein she says that she was in Australia this year but did not see the child adequately.
The Commonwealth Central Authority, which is the applicant, has agreed through Ms Carey to give consideration to providing any country information which might pertain to Argentina which I expect, would ordinarily be the province of the immigration authorities. I will not make a specific order in that regard, although it is my expectation that any material they are prepared to hand over will be handed over promptly, and that will relate to Australia’s appreciation of the legal system of Argentina and a person’s access within the legal system.
I have discussed with the solicitor for the respondent father that the child is not to be assessed for the purpose of gathering evidence in these proceedings. There was apparently some suggestion earlier that there could be a regulation 26 social science report prepared in this matter. It is not clear to me exactly on what basis. Whether one is ultimately prepared is one thing, but it is another thing to make sure that the child is not unnecessarily examined for the purpose of generating evidence in these proceedings, and I do propose to make an order to that effect. Of course, Ms Dahl did not face an application for that order prior to the telephone mention and has not had an opportunity to obtain instructions in relation to it. In the circumstances, I will reserve liberty to the respondent father to apply to vary or set aside this injunction or as he may be advised.
The next matter is the appointment of an independent children's lawyer. As I have indicated, I will request that the child Legal Aid appoint an independent children's lawyer as soon as practicable. The first thing that I would ask the independent children's lawyer to direct his or her attention to is a resumption of at least electronic communication between the requesting parent (the mother) and the child. That should be done in a neutral and safe setting and without any hindrance or interference by any person in Australia, that is, the conversation should for all intents and purposes be as private as possible.
The next thing that I require the independent children's lawyer to direct his or her attention to is convening a mediation in this matter. By that I mean the mediation that would be available through the child Legal Aid, free of cost to the parties by virtue of there being an independent children's lawyer. This mediation is a specialised Hague mediation. It is generally a co-mediation. I have heard from Ms Carey that the requesting parent is at this stage, or was when last asked, unwilling to participate in mediation for a variety of reasons. I am informed that the requesting parent has lost trust in the father as a result of the wrongful retention. I have also read in the material that the mother has been threatened by the father, and Ms Carey confirms that the mother is concerned about intimidatory behaviour directed at her.
By mediation I do not expect that the requesting parent and the respondent father will reach any agreement on the matters in issue before the Court. That is essentially a forum argument pursuant to the 1980 Convention.[1] What I do want them to mediate about, if at all practicable, are the possible outcomes. At the end of the proceedings, there will be a result. The child, the child, will either remain in Australia or will be returned to Argentina. It is these outcomes that I ask that the child’s parents prepare for by way of mediation and negotiations assisted by the child Legal Aid.
[1] Full title of which is The Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980 (entered into force 1December 1983).
For instance, if the application of the Commonwealth Central Authority fails and the child remains in Australia, the mother will want some basis upon which to see the child and in due course presumably to take the child back to Argentina where she can spend time with her. I imagine that neither of these may occur unless there are orders in force in both jurisdictions allowing that to happen. The mother’s evidence to date has been that she attended in Australia for the purpose of, inter alia, seeing the child but did not see her adequately. I expect that she will be loath to return and face the same sort of uncertainty and less than satisfactory outcome as she says she has had in the past.
Likewise, the father would not be prepared, I imagine, to send the child or allow her to go overseas to spend time in Argentina unless he was absolutely assured that the child would be returned to Australia, and that cannot happen without there being orders in force in Argentina. But first the parties have to turn their mind to what care arrangements would be appropriate.
Likewise, in the event that the application succeeds and the child is sent back to Argentina as quickly as possible, no doubt the father will want to see the child on an ongoing basis. The mother would not be prepared to send the child back to Australia without there being orders of this Court which provide and compel the father to return the child at the conclusion of any agreed time to be spent. Likewise, the father would probably be loath to travel to Argentina at all or in circumstances where he could not be assured that he would see the child, so he would need orders in Argentina.
They are the sorts of outcomes about which I want the parents to conciliate and mediate, as opposed to deciding or determining the final case, which I will do in due course. I note that Argentina has designated a judge to the International Hague Network of Judges, and in the event that any complementary orders are necessary, I will be able to have contact with that judge. The judge is known to me. However, there will be no contact between me and her until or unless the parties to these proceedings agree to that occurring, and then it will be open and transparent.
The father is paying for these proceedings himself. There has apparently been the sum of $10,000 paid into trust for his solicitor’s costs and disbursements. I am confident that will not be the sum total of his liabilities in relation to this case. In all of the circumstances, it seems to me that these are moneys which could well be put to other purposes if the parties were somehow able to resolve what is going to happen, or at the very least minimise their need for further litigation in either country after the forum argument is determined.
As indicated, the hearing on 23 July 2015 will not proceed. I am not certain when the hearing date will be, but it should not be too long after that and could, in fact, be earlier. However, in the circumstances, I am prepared to accede to a request by the respondent father for a slight extension of time in which to file his material which was otherwise due about 35 minutes ago. The Commonwealth Central Authority does not specifically oppose an extension, but, of course, seeks a corresponding extension for them, and I will make that order.
On reading the orders that were made on 16 June 2015, I note that there are typographical errors in paragraph 9 of the order which should be corrected. There is also a substantive error in that it is purported to refer to the mother as a party to the proceedings when, in fact, she is not. She is the requesting parent. I will make it clear that in that capacity she is so restrained.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 July 2015.

Legal Associate:

Date: 28 January 2016