Department of Child Safety, Seniors and Disability Services & Kline
[2023] FedCFamC1F 973
•8 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Child Safety, Seniors and Disability Services & Kline [2023] FedCFamC1F 973
File number(s): BRC 14424 of 2023 Judgment of: BENNETT J Date of judgment: 8 November 2023 Catchwords: FAMILY LAW – CHILD ABDUCTION – Hague Convention – where it is alleged that two children aged 12 and 13 were wrongfully removed by the father from New Zealand – where there has been difficulty in serving the father and the Court deals with the matter ex-parte to make orders securing the safety and location of the children pending the final hearing of the application – where children were in the care of a third party (paternal grandmother) for six years prior to the alleged wrongful removal with the effect that neither child had resided in the primary care of the requesting parent or respondent father for six years prior to the alleged wrongful removal
FAMILY LAW – CHILD ABDUCTION – Hague Convention – where orders for safety and the situation of the children include delivery up of passports, an injunction against removing the children from Brisbane or Australia, causing the children to reside anywhere other than their place of residence or to attend a school other than their current schools – where injunctions included a prohibition against the children being taken for an assessment by a social scientist or like professional for the purpose of attaining evidence in these proceedings without the prior written consent of the applicant – where the applicant is given care of the children pending the final disposition of the matter although it is contemplated that the children will remain in the care of the father unless the applicant decides otherwise
FAMILY LAW – CHILD ABDUCTION – Hague Convention – where the applicant opposes an order being made requesting the appointment of the Independent Children’s Lawyers on the bases that there are no trained Independent Children’s Lawyers in Brisbane who are trained to appear in Hague return applications and that no amenity would be served by the appointment of an Independent Children’s Lawyer at this stage because there are no documents that cannot be otherwise obtained by the applicant – where exceptional circumstances within the meaning of s68L(3) is considered – where the appointment of an Independent Children’s Lawyer may lead to a more efficient disposition of the Hague return application if appointed early in the proceedings – where the role of the Independent Children’s Lawyer in Hague return proceedings is discussed – where the appointment of an Independent Children’s Lawyer late in the proceedings is likely to delay disposition of the proceedings – where Article 12 of the United Nations Convention on the Rights of the Child is discussed as providing that the views of a child be obtained in proceedings effecting them – where the children may not be prepared to express their views to the requesting parent or the respondent father and therefore may not be put before the Court – where various regulatory defences and exceptions to return are discussed as potential issues in which the children’s interests would be appropriately represented – where order requesting the appointment of an Independent Children’s Lawyer is made
FAMILY LAW – CHILD ABDUCTION – Hague Convention – specialised Hague mediation
Legislation: Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Family Law Act 1975 (Cth)
Family Law Amendment Bill 2023 (Cth)
United Nations Convention on the Rights of the Child
1980 Convention on the Civil Aspects of International Child Abduction
Cases cited: MW v Director-General, Department of Community Services [2008] HCA 12
R v Kelly (Edward) [2000] QB 198
Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 8 November 2023 Place: Brisbane via MS Teams Solicitor for the Applicant: Ms Fitzgibbon, McInnes Wilson Lawyers Counsel for the Respondent: No appearance by or on behalf of the Respondent ORDERS
BRC 14424 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES
Applicant
AND: MR KLINE
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
8 NOVEMBER 2023
ORDER ONE
THE COURT ORDERS THAT:
1.It is requested that the proper officer of B School and the proper officer of C School inform a representative of the Department of Child Safety, Seniors and Disability Services as to whether the children X born 2010 and Y born 2011 (or either of them) are enrolled at the school and if so, whether they have been attending regularly at the school and whether they are attending today.
2.The Applicant have leave to serve this order on the proper officer of the said school by electronic means and personal service be dispensed with.
ORDER TWO (AS AMENDED ON 9 NOVEMBER 2023)
THE COURT ORDERS THAT:
1.There be leave to the applicant to proceed ex parte and to send to the Court the record of the multiple attempts of the proceedings on the respondent father.
2.I direct that my Chambers try to contact the respondent father by telephone to advise him of the proceedings this day.
3.This matter be adjourned to 9.15am (Brisbane time) on
WednesdayTuesday 14 November 2023 (“the adjourned date”).4.The applicant serve on the respondent father the Form 2 Application filed 31 October 2023 and the Orders made on 2 November 2023 and this Order as soon as practicable.
5.The respondent father be and is hereby responsible for ensuring that each of the children X born 2010 and Y born 2011 attend Court and are signed into the Child‑Minding room of the Brisbane Registry by 9.05am on Tuesday 14 November 2023.
6.In the event that service on the respondent father of the documents referred to in paragraph 4 of this Order cannot be effected by the adjourned date and/or the father, once served, fails or neglects to deliver the children to the Child Minding room of Brisbane Registry by 9.05am on 14 November 2023, subject to any further order made by me, a Warrant of Apprehension or Detention will issue from the Court for the apprehension and detention of the children and the children will be placed in the care of the applicant until further order
7.Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for:
(a)X born 2010; and
(b)Y born 2011;
(the children) noting that this is a Hague return case and not a parenting case and the role of the Independent Children’s Lawyer is to be curtailed and conducted accordingly.
8.Legal Aid Queensland is requested to make arrangements as soon as possible for appropriate representation for the children and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
9.The Court advise Legal Aid Queensland of this order forthwith.
10.The Independent Children’s Lawyer forthwith file and serve a Notice of Address for Service.
11.That until further order or return of the said children, X born 2010 and Y born 2011 to New Zealand, the Secretary to the Department of Child Safety, Seniors and Disability Services, Queensland or her delegate make such arrangements as are necessary for the purposes of placing the said children with an appropriate person, institution or body and upon such terms and conditions as she shall determine to secure the welfare of the said child pending final determination of this proceeding.
12.That such Officers of the Department of Child Safety, Seniors and Disability Services, Queensland, as the Secretary to such department may from time to time direct, be authorised and permitted to visit and enter the place of residence of the respondent and to have such access to the said children as they may reasonably require for the purposes of investigating and determining the welfare of the said children and if considered appropriate to take the said child into care.
13.Pursuant to reg.26(1) the Director of Court Children’s Services arrange for a Family Consultant to prepare a Preliminary Hague Report of the children at the Brisbane Registry today and to deliver an oral report to the Court at 12.15pm (Brisbane time) on Tuesday 14 November 2023 when the practitioners will be entitled to limited cross examination.
14.The Preliminary Hague Report be prepared:-
(a)with the Family Consultant having access to all documents on the court file and any documents produced on subpoena and released for inspection;
(b)without either parent being interviewed; and
(c)with only the children being interviewed.
15.That until further order, the respondent by his servants or agents be restrained by injunction from causing or permitting or suffering the said children (or either of them):-
(a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b)to be removed from the State of Queensland; and
(c)to reside at any residence other than their present residential address of D Street, Suburb E in the State of Queensland or any other residence at which the applicant has agreed that the said children may reside;
(d)to attend at any school or educational institution other than the school or institution at which the child/ren is/are enrolled: -
(i)being for the child X at C School; and
(ii)being for the child Y at B School.
(e)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.
16.That the prohibition against removal of X born 2010 and Y born 2011 from Australia, out of
VictoriaQueensland and from their current residence applies mutatis mutandis to the requesting parent, Ms F, of G Street, Suburb H, Town J, New Zealand AND IT IS DIRECTED that the applicant bring this Order to the attention of the requesting central authority so that the requesting parent will have notice of this prohibition.
Airport Watch List
17.Each of Ms F and Mr Kline and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of X born 2010 (male) and Y born 2011 (female) from the Commonwealth of Australia.
18.X and Y be and are hereby restrained from leaving the Commonwealth of Australia.
19.It is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Airport Watch List for a period of two years.
20.Upon expiration of the period referred to in paragraph 17 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Airport Watch List.
21.That the respondent father, his servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Brisbane for safe custody any and all passports held in the name of the respondent father and the said children or upon which either of the said children appear and, then, the respondent be and is hereby restrained from applying for any further or other passports for the said child/ren pending further orders of this Court.
22.That a sealed copy of these Orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
23.That I reserve to the requesting parent, Ms F, liberty to apply to vary or set aside or discharge any injunctions provided in this Order which affect her or as she may be advised.
24.Within 7 days the applicant State Central Authority ascertain whether the requesting parent is prepared to participate in a mediation or conciliation of parenting matters generally, including on the issue of forum under the 1980 Convention, and any conditions on return.
25.If this matter proceeds to mediation, anything said or done in the mediation is inadmissible as evidence in this return proceeding.
26.There be liberty to apply to all parties in relation to the mediation.
27.The respondent father file and serve by not later than 12.00 noon on Monday 27 November 2023 :-
(a)any response upon which he proposes to rely at the final hearing of the return application and in which he specifies with precision the basis (if any) upon which he opposes the return of the children (or either of them) to New Zealand;
(b)all evidence in support of his case; and
(c)without prejudice to his opposition to return, precise details of what conditions precedent to return or other conditions he seeks if, contrary to his case, the children are ordered to be returned to New Zealand.
28.That the Applicant State Central Authority file and serve any documents in response by not later than 4.00 pm on 11 December 2023.
29.Until further order, I excuse compliance with any Rules of Court to the contrary so the parties may file annexures with affidavit(s) provided that each page of the annexure is numbered sequentially.
30.The final hearing of the Form 2 Application filed 31 October 2023 be referred to the Honourable Justice Baumann as Case Management Judge for fixture for final hearing prior to the end of this sitting year. In the event that the final hearing cannot be accommodated in the Brisbane Registry prior to the end of the sitting the year, the matter may be referred back to me to be allocated a hearing before myself or another Judge. In the meantime, I will manage the matter up until the final hearing.
31.The applicant may serve a copy of this Order on the proper officer of the children’s schools (or either of them) or any other person as they see fit.
32.Liberty to apply generally be reserved to all parties and to the respondent father to vary or discharge this Order or as he may be advised.
33.I dispense with the operation of Rule 6.27(2) to (3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 so that represented parties may cause an unlimited number of subpoenas to issue to give evidence and/or produce documents, without permission, and I reserve to all parties liberty to apply in relation to alleged abuse of the subpoena process, on short notice, by arrangement with my Chambers.
34.My reasons for decision this day be transcribed and, when settled, be placed on the Court file.
AND THE COURT NOTES THAT:
A.Legal Aid Queensland of this order forthwith. has been given access to this file via the Commonwealth Courts Portal (“CCP”) and is granted leave to view copies of documents available on the CCP.
B.IT IS NOTED BY THE COURT: in the event that a party fails or neglects to comply with an order for the filing of a document, the provision of evidence or an attendance at court, a non-defaulting party may apply for and be granted leave to proceed with the matter and to obtain final orders unopposed and the party in default should assume that the proceedings will be finalised without any further input by him/her.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX-TEMPOREBENNETT J:
Introduction
This matter was first before me on 2 November 2023 which was the first return date of the Form 2 application filed 31 October 2023. It is an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for the return to New Zealand of the children X, born 2010 (a boy) and Y, born 2011 (a girl) pursuant to Part 3 of the Regulations.
The Regulations give expression to the 1980 Convention on the Civil Aspects of International Child Abduction concluded at The Hague (“the 1980 Convention”). The 1980 Convention entered into force between Australia and New Zealand on the 1st day of June 1992.
In this case, it is alleged that in early 2023, both children were wrongfully removed from New Zealand and brought to Australia.
On 2 November 2023, I ordered that the application be returnable, inter parties, today and otherwise ordered that the respondent father do all acts and things necessary to ensure that the children were at Court and placed in the child‑minding section of the Brisbane Registry at 9.05 am. However, the matter proceeds ex parte today because the father has not been served.
There have been numerous attempts to serve the father, in particular by a process serving company retained by the applicant. The court was informed that an attempt was made on Friday, 3 November at 7.36 am, on Monday, 6 November at 1.41 pm, on Monday, 6 November at 5.15 pm, and again this morning, Wednesday, 8 November at 7.31 am. All attempts were to the property at D Street, Suburb E, a suburb of Brisbane.
On the first attempt at service, 3 November 2023, the process server spoke to “[Mr K]” who confirmed that the respondent father resided at the address. A calling card from the process server was left for the father, but no letters or communication were left at the house. On subsequent attempts, motor vehicles were noticed to be in the driveway and on two occasions there was no response to knocks on the door, notwithstanding that the residents appeared to be in occupation.
There is no current mobile telephone number for the father. The mother has a mobile telephone number which is some 10 years old. Attempts were made this morning from Court by my Associate on that number. The call could not progress. Today, there has been a failure of the Optus telephone network, so that many calls are not proceeding as normal. I am satisfied that the father cannot be contacted.
I was informed, as set out in the affidavit of the mother, paragraph 33, that the daughter Y is attending B School and that the son X is a student at C School. During an adjournment, an officer of the applicant Department was able to contact the headmaster or principal of one of the schools who confirmed that the children were enrolled as informed. It could not be ascertained, however, if they had been to school in the last few days or were at school today.
Additionally, the paternal grandmother, with whom the children had resided in New Zealand, but who had travelled with the children to Australia in early 2023, was also attempted to be contacted. The applicant sent an email and a message for the grandmother asking her to contact the Department’s lawyers. No contact has been made.
I am satisfied that the application should be considered on an ex parte basis.
As requested by Ms Fitzgibbon, the applicant Department will have a few more days to attempt service of the documents on the father. I recommend that they leave correspondence for the father which clearly sets out the nature of the proceedings and the requirement that he attend Court, failing which the application may be determined in his absence.
I will adjourn the proceedings until Tuesday of next week. If, by Tuesday of next week, the father has not been able to be served and/or the children are not brought to Court, I will issue a warrant for the apprehension of the children. Such an order is not unusual in cases such as this and reflects Australian’s obligations under the 1980 Convention to ensure that subject children are kept safe and securely. As a further precautionary measure, I will be making an order, not opposed by the Department, that the children be placed in the care of the Department. In practical terms, this may not mean anything for the children. It entitles the Department to take possession of the children without needing to return to Court in the event that something happens and the Department apprehends that the children are not safe or secure in the care of the father, for instance, if risk of flight becomes manifest. In real terms, if the applicant Department believes that the children are, for the time being, safe in the care of the respondent father, the Department will leave the children in his care.
The regulations
Subject to the court being satisfied of the jurisdictional facts, whereby a removal or retention is “wrongful”, the Regulations require that an abducted child who is under the age of 16 years be returned to his or her place of habitual residence where less than one year has passed since the wrongful removal or retention of that child, unless one of the limited exceptions to return is established. What constitutes a wrongful removal or retention is set out in sub-regulations 16(1) & (2). “Rights of custody” and “habitual residence” are terms with an autonomous legal meaning and must be construed accordingly.
Jurisdictional facts are essential prerequisites to a return application. If a pre-requisite is not made out the return application will fail.
If the jurisdictional facts are made out, the children must be returned to New Zealand “promptly” subject to the court considering whether an exception to return applies. The exceptions to return or regulatory defences are set out in regulation 16(3) which gives expression to Articles 12(2), 13 and 20 of the 1980 Convention. The exceptions to return or regulatory defences are: -
(a)The requesting parent was not actually exercising rights of custody when the children were removed to Australia (reg.16(3)(a)(i));
(b)The requesting parent had consented or subsequently acquiesced to the children being removed to Australia (reg.16(3)(a)(ii));
(c)There is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (reg.16(3)(b));
(d)The child objects to return and his/her objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and the child has attained an age and degree of maturity at which it is appropriate to take account of his/her views (reg.16(3)(c));
(e)The return of the child would not be permitted by the fundamental principles of Australia relating to protection of human rights and fundamental freedoms (reg.16(3)(d)).
Any exception to return or regulatory defence relied upon must be argued in relation to each child individually. If the court is satisfied that an exception to return or regulatory defence is made out, it has a discretion to refuse to return the child to whom the exception or defence is found to apply. The best interest of the individual child is a relevant, but not the paramount, consideration, in the exercise of the discretion to refuse return.
The expectations within other contracting states to the 1980 Convention is that return applications should be determined within 6 weeks. Australia readily ratified the 1980 Convention and its specifications as to expeditious determination including Article 11 which finds expression in reg. 15 which provides that:-
(1)A court must, so far as practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows.
(4)If an application made under regulation 14 is not determined by a court within the period of 42 days commencing on the day on which the application is filed:
(a)the responsible Central Authority or Article 3 applicant who made the application may ask the Registrar of the court to state in writing the reasons for the application not having been determined within that period; and
(b)as soon as practicable after being asked, the Registrar must give the statement to the responsible Central Authority or Article 3 applicant.
Our apex court, the High Court of Australia, in MW v Director-General, Department of Community Services [2008] HCA 12, cautioned this court against “inadequate, albeit prompt, disposition of return applications.” In particular their Honours Gummow, Haydon and Crennan JJ, observed at [46] to [49] that: -
[…] an application for a return order under reg 16 of the Regulations is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in In re M (Children) (Abduction: Rights of Custody). The oral evidence in that Convention application was heard over two days.
Regulation 15(2) obliged the Family Court, "so far as practicable", to give to the application by the Authority "such priority" as would "ensure that [it was] dealt with as quickly as a proper consideration of each matter relating to the application allows". If within 42 days of its filing the application had not been determined, the Authority would have been empowered by reg 15(4) to seek from the Registrar a written statement of the reasons for the absence of a determination. Regulation 15 reflects the exhortation in Art 11 of the Convention that "judicial or administrative authorities" act "expeditiously" in these matters and the reference in Art 7 to "the prompt return of children".
The judicial or administrative authorities which decide return applications in some Convention countries may not, under their legal systems, have the obligations to provide the measure of procedural fairness and to give reasons which generally apply in common law systems and which were observed here by the Family Court. Thus, in this country, the requirement of promptitude can be an onerous one.
Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another. […]
(footnotes omitted)
Today, I will make orders of the usual procedural nature and a Preliminary Hague Report at the earliest opportunity. The Report is not a best interests report. It is a report directed to Australia’s obligations under the Convention which can be described by reference to the preamble to the 1980 Convention being “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return”.
Preliminary Hague Report
Regulation 26 provides inter alia that:
(1)In proceedings under these Regulations in a court, the court may:
(a)direct a family consultant to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate; and
(b)adjourn the proceedings until the report is made.
(2)A family consultant may include in a report, in addition to the matters required to be included in the report, any other matter that relates to the care, welfare or development of the child.
(3)The court may make such orders, or give such further directions, as it considers appropriate in relation to the preparation of the report including, if the court considers it appropriate, orders or directions in relation to the attendance on the family consultant of a party to the proceedings or of the child.
The Preliminary Hague Report will be brief and only the children will be seen. The parents will not be seen. The Family Consultant will ask a number of questions of the children and then attend Court and deliver a brief oral report to the court later on the same day. The father will bring the children to the Child-Minding Room of the Brisbane Registry before court and will collect the children from the Child-Minding Room after court is finished.
It is the father’s responsibility to provide food for the children for the day.
The discussion to be had and questions to be asked of the children by the Family Consultant are as follows:
(a)To explain the nature of the proceedings to the children. That is, that these proceedings decide where the parenting proceedings should be heard and not with which parent or other persons the children shall live;
(b)Whether the children (or either of them) are in acute distress and require immediate treatment or intervention;
(c)To ask each child, if the judge decides that you are to be returned to New Zealand, is there anything that your parents or the court can do to make that return easier for you?
(d)To ask each child, if the judge decides that you can remain in Australia, is there anything that your parents or the court can do to make that outcome easier for you?
(e)Having regard to paragraph 33 of the requesting parent’s affidavit sworn 31 July 2023, what communication the children (or either of them) have had with the requesting parent since the alleged wrongful removal in early 2023 and what (if any) recommendation the Family Consultant has for electronic communication between the requesting parent and the children, commencing today;
(f)To recommend any service which would benefit the children (or either of them) by providing child-centred information about international parental child abduction.
(g)Any other matter which appears relevant to the Family Consultant having regard to the narrow ambit of these proceedings and that more extensive reg.26(1) report may be ordered in due course.
The Family Consultant is requested to introduce the Independent Children’s Lawyer to the children at a convenient time during the assessment interview.
The Independent Children’s Lawyer should explain his/her role to the children in age‑appropriate language.
Independent Children’s Lawyer
The one controversial aspect of the orders that I make today is the appointment of an Independent Children’s Lawyer. I pronounced the order and said that I would deliver my reasons subsequently. These are those reasons.
The applicant Department opposes the appointment of an Independent Children’s Lawyer. I will come to those arguments in due course.
Relevantly, s 68L(3) of the Family Law Act 1975 (“FLA”), provides that a court may order independent representation for a child in return proceedings such as these “only if the court considers there are exceptional circumstances that justify doing so and [the court] must specify those circumstances in making the order.”
In R v Kelly (Edward) [2000] QB 198, Lord Bingham of Cornhill CJ, considered ‘exceptional circumstances’, in the context of imposing a life sentence for intentional wounding. His Lordship delivered the judgment of the court and stated [at page 208]:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
Lord Bingham of Cornhill CJ’s description of ‘exceptional’ is of assistance to me and I adopt it. I am satisfied that, having regard to the relatively simple nature of most return applications which come before this court, this case has exceptional features. In particular, prior to the alleged wrongful removal in early 2023, the children who are the subjects of the application had not lived with the requesting parent or the respondent father for the preceding 6 years and the person with whom the children had lived is not a party to the Hague application. I am not confident that either the requesting parent or the respondent father can be relied upon to put the views of the children to the court in the restricted but necessary way in which children’s views are relevant in Hague return proceedings. I am not confident that the children (or either of them) will necessarily disclose their views to either parent. The children are in precarious position, they are wholly reliant on the father and his partner. Accordingly, the children may be reticent to express any view which is contrary to what they perceive the father wants to hear.
I do not know how the father will put his case. However, to fail at this early stage to address the need for an Independent Children’s Lawyer could, I fear, invite delay in the final determination of the matter and very possibly add to costs of representation to be incurred by the parties having regard to the particular features of this case,
As Baroness Hale of Richmond (as she then was) observed in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, proceedings are not prolonged by the appointment of a representative for the children’s interests but by one party raising the need or desirability of such representation very late in the day, as a ‘last ditch stand’ and, thereby, requiring a postponement of the trial.[1]
[1] Re D (Abduction: Rights of Custody) [2006] UKHL 51 [61] (‘Re D’).
The appointment of an Independent Children’s Lawyer is consistent with Article 12 of the United Nations Convention on the Rights of the Child (UNCROC) to which Australia is a party. Article 12 provides:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Re D concerned the objections of a young child who was the subject of a wrongful removal from Romania to England.[2] The child was only four and a half years old when the proceedings commenced and seven and a half when the matter went to a final hearing. Baroness Hale of Richmond (with whom the balance of the presiding members of the House of Lords either expressly agreed or did not disagree) observed that courts in the United Kingdom were moving away from a restrictive approach to separate representation of children and toward the presumption,[3] held within the European Union, that a child will be heard unless it appears inappropriate to do so. Baroness Hale observed at [60] that an interview of the child by a welfare officer may well be a sufficient mechanism to obtain a child’s views in an abduction case but: -
whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which adult parties are not putting forward, then the child should be separately represented.
[2] Ibid.
[3] Provision for this is also contained in Article 11.2 of Brussels II Revised which provides that “When applying articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity”.
Within our own region, I note from an article of Judge Paul von Dadelszen, that the Family Court Guidelines issued by the Principal Family Court Judge for New Zealand require that the appointment of a lawyer for the child ‘shall be considered’ where any exceptions pursuant to Articles 12 and 13 are raised ‘unless the court is satisfied that the appointment would serve no purpose.’[4]
[4] Family Court Caseflow Management Practice Note (New Zealand, March 2011) [2.1].
Some relevant facts
It is necessary to provide some context to appreciate why an Independent Children’s Lawyer has been ordered. I will draw background facts from the Form 2 application which I acknowledge is material provided by the mother to which the father has not had an opportunity to respond. What follows does not represent findings of fact, merely a recitation of the evidence before the court.
The requesting parent mother deposes that she and the respondent father met in 2007 in City L in New Zealand. The requesting parent (“the mother”) and the respondent (“the father”) were in a de facto relationship for approximately five years from approximately 2007 to 2012.
In 2009, the couple moved to Brisbane, Queensland, Australia. They both played sport at a high level. Each was employed, the father working in distribution and the mother working in community services.
X was born in 2010 and Y was born in 2012. In 2012, the mother became pregnant with Z. The mother and father separated when the mother was heavily pregnant. Their second daughter, Z, was born in 2013.
Post separation the family’s homes were damaged by floods in Queensland. The mother could only find accommodation which was inadequate. From 2013 to 2017, Y and X went to school from the father’s home and stayed with the mother on weekends and in school holidays. The mother retained care of Z.
In 2017, the mother wanted to move back to New Zealand. The father agreed that she could take Z (4), with whom the mother says the father had not formed a significant relationship, on condition that X (7) and Y (5) lived with his mother, Ms M, with whom the children had a good relationship.
In 2017, the mother returned to New Zealand with Z. Y and X went from Australia to City N with their paternal grandmother Ms M (“the paternal grandmother”). The mother deposes:
[20] It was agreed that they would stay with her for a while in a whanau homestead, her whanau in [City N] as there was not enough space for the children where I was moving to. The idea was that I would complete my [tertiary studies] and organise appropriate accommodation, then [Y] and [X] would join me in [Town J].
The requesting parent’s evidence is that Y and X became settled at school in City N and in the care of the paternal grandmother. The mother deposes [22] that the communication between the paternal grandmother and herself was good.
Both parents had repartnered after separation and each has had a further child of their subsequent and current relationships.
In early 2023, some six years after the children had commenced to live with the paternal grandmother, the mother received a Facebook message from the paternal grandmother in which the paternal grandmother stated:
Morena [Ms F], just letting you know that both [X] and [Y] are living in Brisbane with [Mr Kline] now. It was a big discussion (sic). I had to make for the best interests of them both. You know [Mr Kline’s] details. Give our love to [Z].
The mother deposes:
[24]It was never intended that the children would live with [Ms M] for as long as they did. However, once I completed my [tertiary studies] and was ready for them to return, I did not feel that it was best for them right away as they were settled in [City N], and [Ms M’s] mother who had also lived with them had recently passed away. [X] felt that they could help by staying on for a bit and therefore the intention was to allow the children to finish the 2023 school year in [City N], which would be good timing as it is [Y’s] last year in primary school and [X’s] first year in intermediate.
[25] I was never consulted about any potential move to Australia.
[26] To my knowledge, the children have only seen [Mr Kline] a couple of times in the last five years since moving to New Zealand from Australia.
The mother and her partner, Mr P, live at G Street, Town J, which property they are renovating. Z (10) goes to a local school. The mother is in full‑time employment.
The mother deposes:
[33]I have only spoken to the children once since they have been removed. Their devices have been removed from them. However, [X] called me on 15 May 2023 as he had taken a device out of [Mr Kline’s] room. He told me that Nan had brought them there and left them. They didn’t even know that it was intended that they would live there. [X] was not yet in school. [Y] was going to [B School]. Both children wanted to come home. [Y] was in tears and she did not know what was going on and she said that she “hates this.”
The mother deposes that the father has not contacted her and that she does not have a current telephone number or an email address. Notwithstanding, the mother did pass to the Court, through the applicant, a telephone number which she said was some 10 years old and which I have indicated earlier in these reasons was called by my Associate, but there was no response.
The mother’s request under the 1980 Convention for the return of the children was commenced on 11 May 2023. The mother deposes to there having been some delay in submitting the request because she could not locate hard copies of the birth certificates.
As to the jurisdictional facts, from the material contained in the application, and admittedly from one side only, it appears that rights of custody may be an issue in these proceedings. The children have not been in the care of either parent for the six years prior to their alleged wrongful removal to Australian in early 2023. Indeed, they have been in the care of a third party who is not either a requesting party nor the respondent in these proceedings. I do not say that the father will necessarily succeed on the issue of rights of custody, but it is a matter which appears to be arguable.
As to the regulatory defences, the children are aged, respectively, 12 years and 13 years. They are, on any view, of an age where they may have views. The weight to be attributed to those views is to be determined by reference to their maturity and other circumstances. Those views are relevant in relation to at least one of the exceptions to return, namely, whether either or both children object to return to New Zealand within the meaning of regulation 16(3)(c). That is a matter which it would be appropriate for the Independent Children’s Lawyer to lead evidence and make submissions.
Pursuant to regulation 16(3)(b), if the court is satisfied that there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, that is an exception to return and enlivens the discretion to refuse return. There are a number of children who are potentially relevant to the emotional wellbeing of these children if it is alleged that separation from siblings or a sibling can constitute a grave risk of harm. I do not know the extent to which the children who are the subject of this application have close relationships with their many siblings, but I will set out the family constellation of the children as it appears in the requesting parent’s material.
I do not know if a separation of X and Y from one another will be within the contemplation of anyone. If it is, expert social science evidence (if available) would assist in an assessment of the psychological impact of the siblings being separated. Moreover, it would be a matter on which each child’s interests should be represented in the proceedings and subject of submissions by an Independent Children’s Lawyer. A separation of the siblings from one another should not occur without the interests of those children being independently represented.
The mother is in a de facto relationship with Mr P who has recently qualified as an educator and will be working. Mr P has one child from a previous relationship, Q (9), who attends R School and lives with his grandparents, presumably near R School.
The respondent father has re‑partnered and he and his new partner have a child who lives with them. The children the subject of these proceedings have lived with that child since early 2023.
The mother has a child from another relationship, a daughter S born in 2014. S is eight years old and currently lives in Region T in Australia. That is, not with the mother.
The father has a child of a relationship prior to his relationship with the mother, Mr U, who is approximately 18 years old and lives in New Zealand.
I do not suggest that the respondent father will succeed on either regulatory defence. However, these proceedings must be concluded within a tight timeframe and, in my view, it would be unfortunate for an Independent Children’s Lawyer not to be appointed at this stage, and one be sought to be appointed on the eve of a hearing which requires then the proceedings to be adjourned.
Voice of the child – obligation to hear
There are also the obligations of Australia pursuant to the United Nations Convention on the Rights of the Child (“UNCRC”). That is a Convention to which both Australia and New Zealand are signatories. Article 12 of UNCRC provides that every child has a right to express their views, feelings and wishes in all matters affecting them and to have their views considered and taken seriously. This right applies at all times, for example during immigration proceedings, housing decisions or in the child’s day‑to‑day home life. It applies in proceedings under the 1980 Convention as well.
It is accepted internationally that, if we are to protect children from the harmful effects of international parental child abduction, it is necessary to afford the children the opportunity to be heard, if they wish to be heard, in decisions taken about them in abduction proceedings which impact so significantly upon them. As I say, their views are not determinative, but they deserve to be accorded the respect of being heard.
When assessing a child’s right to be heard and to participate, one cannot assume that a child’s views will be determinative of any issue. Indeed, even where the regulatory defence of a child objecting to return to the place of habitual residence has been made out, it is very frequently overridden by policy considerations of the 1980 Convention and the resultant discretion to refuse return is not exercised. However, as the purpose of the 1980 Convention is the protection of the child from the harm of international parental child abduction, one must include protecting the abducted child from having their views marginalised or not received. The appointment of an Independent Children’s Lawyer is for the purpose of the court being able to consider the children’s views.
Training of Independent Children’s Lawyers for Hague return cases
The applicant Department opposes the appointment of an independent children’ lawyer in part, it submits, because there are no specialist Hague Independent Children’s Lawyers in Brisbane. That is likely to be correct. The need for training is recognised. I understand that formal training is planned for 2024. In the meantime, the Independent Children’s Lawyer can learn on the job, as did the original Hague Independent Children’s Lawyers. Victoria Legal Aid frequently assign the representation of children’s interests to one of its own practitioners who have over time developed considerable expertise in Hague return matters and have the mindset and ability to advance this litigation toward a conclusion as quickly as possible.
The Independent Children’s Lawyer in this case is encouraged to seek guidance from two practitioners who have a wealth of experience as Independent Children’s Lawyers in Hague return matters.
In my assessment, the appointment of an Independent Children’s Lawyer at this point in the proceeding should expedite rather than delay the final determination.
Role of an Independent Children’s Lawyer in Hague return proceedings
In parenting proceedings (which this case is not), the role of the Independent Children’s Lawyer is to form an independent view, based on the available evidence, of what is in the best interests of the children, and then to act in what he or she perceives to be the children’s best interests (s 68L(2)). The Independent Children’s Lawyer is required to deal impartially with the parties. The legislation requires the Independent Children’s Lawyer to put any views expressed by the children before the court, to analyse documentary and expert evidence and reports, and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The Independent Children’s Lawyer is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings (s 68L(5)(d)) and to facilitate an agreed resolution of matters in issue to the extent that it is in the best interests of the children to do so (s 68L(5)(e)). However, Hague return proceedings are not parenting matters brought under Part VII of the Act. They are brought pursuant to Regulations made to give effect to section 111B of the Act which is in Part XIIIAA - International Conventions, International Agreements and International Enforcement. The 1980 Convention is a forum selection treaty and, as such, the Regulations which implement it into Australian law do not look to the best outcome for any particular child as a pre-condition to return. The Independent Children’s Lawyers role is to represent the child’s interests within the confines of a Hague return case.
The applicant Department argues against the appointment of an Independent Children’s Lawyer on the basis that the appointment would be of no utility at this stage. In particular, there is no evidence that needed to be gathered from New Zealand or Australia that the applicant Department could not obtain. Gathering evidence is only one task that may fall to an Independent Children’s Lawyer.
The tasks to be undertaken by the Independent Children’s Lawyer in a Hague return case will be directed to a different outcome than the outcome to which an Independent Children’s Lawyer in a parenting case would aspire. Their responsibilities are different. Here, the Independent Children’s Lawyer’s functions will vary, but may include:-
(1)facilitating any negotiations between the parents (noting that the mother is not a party to these proceedings);
(2)making arrangements for specialised Hague mediation;
(3)considering, seeking and arranging such face-to-face access or electronic communication between the children and the mother pending the determination of the matter as will benefit the children;
(4)to obtain such documentary and other evidence as is relevant to the proceedings particularly where it does not appear that the other parties have the capacity or inclination to do so;
(5)to ensure that collateral issues such as preconditions to any return are properly thought through by the parties (and the parents) well before the final hearing and are capable of being implemented for the children as beneficially as the circumstances and nature of the proceeding permit.
(6)in the event that one or more exceptions to mandatory return are made out, all parties including the Independent Children’s Lawyer will be required to address the court’s exercise of the discretion to refuse to return the boys to the USA. As the helpful checklist in TB & JB (Abduction: Grave risk of harm), makes demonstrates, the matters which inform the exercise of discretion should be the subject of evidence and not just submissions.
Specialised Hague Meditations
Investigating the appropriateness of mediation between the parents and appropriate access/communication between the mother and the children is likely to benefit the children immediately.
I mention mediation because my impression is that parties to return proceedings (and those who advise them) often overlook the appropriateness of specialised Hague mediation. The benefit to children of the parents entering into mediation is well recognised within the Hague community. To wit the Permanent Bureau of the Hague Conference on private international law published the Guide to Good Practice Child Abduction Convention – Mediation.[5]
[5] HCCH, Guide to Good Practice Child Abduction Convention – Mediation (Guide to Good Practice, 2012).
Division One of the Court has a mediation service tailored to Hague return applications.
Essentially, the Independent Children’s Lawyer should facilitate the parents to prepare for outcomes. In his capacity as Case Management Judge, the Honourable Justice Baumann AM will allocate a Division One judge from the Brisbane Registry to hear this matter prior to Christmas 2023. The parents’ task at mediation will include considering and negotiating the arrangements he/she will want to seek if they lose. That is, if the children are ordered to be returned to New Zealand, what arrangements will be made for their return within a week or so of the decision? Will the father and his partner and their child return to New Zealand to live permanently and, if so, what residential and spend time arrangements would be appropriate? If the father remains living in Australia, what time he would seek with the children? On the other hand, if the respondent father successfully opposes the return application and the court exercised its discretion to refuse return, what spend time and communication arrangements would the requesting parent seek? A diligent Independent Children’s Lawyer can encourage the parents to negotiate and agree on contingencies which may be capable of finalisation immediately after the trial decision is rendered.
The paternal grandmother can, by agreement, have a voice in the mediation that she will not be able to have in the return proceedings.
My Chambers will make arrangements for a Hague Mediation through the Court, free of cost to the parents, after the first hearing at which the respondent father is present. A transcript of the evidence of the Family Consultant who undertakes the reg.26(1) Preliminary Hague Report must be provided to the two mediators. Not every case requires conditions on return. However if this case does, the Independent Children’s Lawyer should take a prominent role in ensuring the conditions reflect legitimate needs of the children, are not too onerous and are enforceable in the home country, New Zealand and, where appropriate, Australia.
Amendment to remove requirement for “exceptional circumstances.”
Finally, section 68L(3) of the FLA has been the subject of amendment. On 6 November 2023, the Family Law Amendment Bill 2023 received Royal Assent. That Act provides for a repeal of the requirement for “exceptional circumstances”. That amendment will commence the next day after the six-month period from the date upon which Royal Assent was received – that is 7 May 2024 – and will then apply to all new and existing proceedings from 7 May 2024 except for a final hearing as commenced by that date. This new legislation does not apply here. However, is difficult to envisage that children in proceedings made six months hence will have a different need for representation of their interests than these children.
Independently of the legislative amendment, in my view there are particular circumstances about this case which make it attractive, indeed necessary, for the children’s interests to be independently represented and they are set out above.
Generally
I am satisfied that the above circumstances, taken cumulatively, render this case exceptional within the meaning of Section 68L(3) of the FLA. I will request that the Queensland Legal Aid authority appoint an Independent Children’s Lawyer
I am satisfied that the above orders are necessary to give effect to the 1980 Convention on the facts of this case.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 8 November 2023
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