DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & BERRILL

[2020] FamCA 578

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & BERRILL [2020] FamCA 578

FAMILY LAW – CHILD ABDUCTION – Child retained in Australia – Application under the Regulations for the return of the child to the United States of America – where the Respondent acknowledges the United States of America as the child’s habitual residence – where the parties consent to the return of the child – where the parties have not specifically particularised a date by which the child is to be returned to the United States of America – return order made specifying a return date

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: Department of Child Safety, Youth and Women

RESPONDENT: Mr Berrill

FILE NUMBER: BRC 5422 of 2020

DATE DELIVERED: 15 July 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: McInnes Wilson Lawyers

COUNSEL FOR THE RESPONDENT: Dr Sayers

SOLICITOR FOR THE RESPONDENT: Damien Greer Lawyers

Orders

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. All previous Orders are discharged.

2. The child, X (a female) born … 2013 be returned to the United States of America.

3. To give effect to Order 2:

   (b)pending the child returning to the United States of America, the Respondent, Mr Berrill, born … 1986, continue to be restrained and an injunction is hereby issued, restraining him from removing or attempting to remove the child from the Commonwealth of Australia; and

   (c)pending the child returning to the United States of America, the Respondent, Mr Berrill, born … 1986, be restrained and an injunction issue restraining him changing the child’s usual day to day residence from the premises where he and the child are currently residing namely: B Street, Suburb C in the State of Queensland.

   (d)subject to sub-paragraph (e) below, the Commissioner of the Australian Federal Police and all federal agents of the Australian Federal Police retain the names of the Respondent, Mr Berrill, born … 1986, and the child, X (a female) born … 2013 on the Family Law Watchlist at all international departure points in Australia;  and

   (e)the names of the child and the Respondent be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Child Safety, Youth and Women advising of the travel arrangements made for the child to return to the United States of America from 12.00 am on the date nominated for the travel in the letter.

4. Ms D, Department of Child Safety, Youth and Women or her nominee be at liberty to release all current passports relating to the child for the purpose of the child’s return to the United States of America and to release the Respondent’s passport to him (or his nominee) upon request.

5. The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders.

6. The Respondent do all acts and take reasonable steps to give effect to these Orders.

7. All other Applications are dismissed.

8. The Applicant has liberty to apply on short notice to seek any further orders necessary to allow her or officers of the Department of Child Safety, Youth and Women to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this Order and pursuant to the Central Authority’s obligation under Regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

IT IS ORDERED THAT

1. To give effect to Order 2:  the child, X, a female, born … 2013, shall leave the Commonwealth of Australia as soon as can practicably be arranged by the Applicant and the requesting parent (the mother) and no later than 21 August 2020.

NOTATION

(A)It is a clear understanding of the parties in these proceedings that there are current custody proceedings outstanding in the Family Division of the Second Judicial District Court of State F in and for G County case number ….

(B)There is also an understanding as between the parties in these proceedings that the child will be returning to her country of habitual residence, and there is no preference on the Applicant’s part as to which parent the child shall travel with.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Child Safety, Youth and Women & Berrill 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 BRISBANE

FILE NUMBER: BRC 5422 of 2020

Department of Child Safety, Youth and Women

Applicant

And

Mr Berrill

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today an Application in Form 2, which was filed on 13 May 2020 by the Applicant, by which an order was sought for the return of not long turned seven year old X (who was born in 2013 in State F in the United States of America) to the United States of America. 

2. The parties to the Application have today reached agreement in relation to the disposition of that Application.  They reflect their agreement in a type-written proposed Minute of Order signed by each of the parties or on their respective behalves. 

3. The proposed orders that it is agreed be made include that the child be returned to the United States of America. 

4. The Regulations under which the Application that the making of orders by consent for X’s return to the United States of America will dispose of are made pursuant to s 111B of the Family Law Act 1975 (Cth), which provides that Regulations may make provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction (the Convention).

5. The Convention itself is set out in Schedule 1 to the Regulations and provides a mechanism for the prompt return of wrongfully removed or retained children between contracting states. 

6. Australia and the United States of America are contracting states to the Convention. 

7. The Regulations are, as a consequence of the operation of Regulation 1A(2) of the Family Law Child Abduction Convention Regulations 1986 (Cth) (which I will hereafter refer to as “the Regulations”), to be construed having regard to the Principles and Objects mentioned in the preamble to and Article 1 of the Convention and as recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily that child’s country of habitual residence and as recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial and administrative authorities (as the case may be) of Convention countries.

8. The purpose of the Convention has been authoritatively explained by the majority of the High Court in DL & Director-General Department of Community Services (New South Wales)[1], wherein it was emphasised that the Convention is directed to the prompt return of a child to the State of his or her habitual residence where questions concerning that child’s welfare, and the merits of any dispute about where and with whom that child should live, can be determined.  That is, applications under the Regulations are substantively really about forum and not about parenting per se. 

   [1](1996) 187 CLR 640.

9. The Regulations empower the Court to make return orders.  In certain circumstances they mandate the making of return orders so that children can be promptly returned to the country of their habitual residence, where any disputes about their future care arrangements can be adjudicated by the appropriate Court of that forum.

10. The Regulations provide – in Regulation 16 – of an obligation to make a return order.  Pursuant to Regulation 16, the Court must make an order for return of a child if an application for return order is made and the application is filed within one year after a child’s here retention in Australia and the Applicant Central Authority satisfies the Court that the child’s retention was wrongful under Sub-Regulation (1A) of Regulation 16. 

11. Here, it is clear that the application for return order was made and filed within one year of X’s retention in Australia which, on the evidence before me, appears to have occurred in about September 2019. 

12. In order to persuade of X’s retention in Australia being wrongful, the Central Authority was required to establish those matters prescribed in Regulation 16(1A).

13. It is clear – here by virtue of the consent afforded to the order for return – that it is accepted that the Applicant has discharged that obligation.  That is, it is accepted that X’s retention in Australia after about September 2019 was wrongful because the matters prescribed in Regulation 16(1A) have been established, they being the following:  that she was under 16 years of age – which she clearly is;  that she habitually resided in a Convention country immediately before her retention in Australia – a matter accepted by the Respondent to these proceedings; that her mother had rights of custody in relation to her under the law of the United States, that her retention in Australia was in breach of those rights of custody and that, at the time of her retention in Australia, the mother would have exercised those rights if the child had not been retained in Australia.

14. It is established therefore – and accepted by the parties to this Application – that those matters have been established on the evidence before the Court. 

15. Consequently, it is also accepted, properly, that the Court is mandated to make a return order. 

16. Clearly, an order will be made, as I have outlined to Counsel during the course of discourse.  It will indicate those aspects of it that are made by consent – those being the matters the subject of the written document signed by each of the parties to these proceedings. 

17. An issue has arisen in relation to whether it is appropriate that the Court make an order that specifies the date by which X must leave the Commonwealth of Australia.  Such an order would routinely be made, absent the impact of the pandemic with which the world is currently grappling.

18. Submissions were made to the Court by Counsel for both parties to the effect that the Court would not consider it appropriate to make an order that specifies a return date. 

19. Mr Selfridge, on behalf of the Applicant, further submitted that, if his primary submission (which is supported by Dr Sayers on behalf of the Respondent) does not find favour, then the Court would make an order that X depart the Commonwealth of Australia no later than or by 21 August 2020. 

20. Mr Selfridge provided me with two cases decided by other members of the Court in which the orders for return have not specifically particularised a date by which the child was to be returned:  to Italy in one case and Columbia in another.

21. I have had regard to each of those decisions, they being Department of Communities and Justice & Leonie[2], a decision of Harper J, and Department of Child Safety, Youth and Women & Comar & Anor[3], a decision of Carew J. 

    [2][2020] FamCA 411.

    [3][2020] FamCA 505.

22. It is clear, it seems to me, from a perusal of Leonie that Harper J was not required, nor asked, to consider the making of orders that specified a particular date in that case.  He simply made orders sought by the Applicant.  So much is apparent from paragraph 136 of his Honour’s Reasons. 

23. In Comar, Carew J outlined from paragraph 138 of her Honour’s Reasons her consideration of the issue, in a sense, of the absence of a provided-for date for the departure of the children from Australia.  It is clear from her Honour’s Reasons that there were a number of issues that arose that included: obtaining a passport for one of the children; the father obtaining appropriate visas sufficient to guarantee that they would have the right to enter Columbia, etcetera.  In those circumstances, it seems to me understanding certainly, with respect, that her Honour crafted the orders that she did (as are set out at the commencement of those Reasons). 

24. In this case, however, it is clear that X is a citizen of the United States of America.  Further, the father’s Response in form 2A informed the Court that, should an order for return be made (as it is agreed now will occur) he would return to the United States with her if she was ordered to return. 

25. In this case I also have evidence – provided by the father’s solicitor, Mr Greer, in an affidavit sealed at 4.06 pm on 14 July – which informs of information currently in place in relation to travel between Australia and the United States of America:  it includes restrictions in place for Australian citizens seeking to travel outside of Australia at present. 

26. As I already raised during the course of discussion with Mr Selfridge, I had wondered whether the exemption provided for travel “in the national interest” could be seen to be enlivened in the case of a child leaving Australia consequent upon an order for that child’s return to that child’s country of habitual residence, such order having been made pursuant to the Regulations which implement Australia’s agreement to the Hague Convention.

27. I have taken into account the submissions made by Mr Selfridge in relation to the difficulties that arise for the Applicant in attempting to implement an order that would require X to depart the Commonwealth of Australia by a specified date.

28. It would be, as I have already remarked, of great concern to the Court, and most unfortunate, if there were administrative procedures implemented by the relevant Department that ran the risk of frustrating the implementation of orders made by the Court for the return of a child to that child’s country of habitual residence because such frustration would, of course, also impact, in my view, negatively upon the carrying out of Australia’s manifest obligation to ensure the prompt return of children to their place of habitual residence.

29. It would seem to me, at least at first blush, that it could easily be concluded that the implementation of an order requiring a child to depart Australia to return to that child’s country of habitual residence would be regarded as being something “in the national interest” because it would demonstrate Australia’s compliance with the Convention to which it is a party and in support of which the Regulations have been brought into existence.  It would seem to me, at least at first blush, that Australia’s implementation of its obligations as reflected in the Regulations could be concluded to be something that is “in the national interest”, with such interest to be regarded as including avoiding Australia failing to continue to comply with, and demonstrate its commitment to, those obligations it has chosen to adopt as a consequence of its role as a signatory to the Hague Convention.

30. For those short Reasons, then, and even taking into account the practical difficulties which may attend X’s ordered departure from Australia to return to the United States (her acknowledged place of habitual residence) I intend to order that, to give effect to order 2, the child, X (a female) born in 2013, shall leave the Commonwealth of Australia as soon as can practicably be arranged by the Applicant and the requesting parent (the mother) and no later than 21 August 2020. 

31. In that way, I consider I will have put into effect the underlying purpose of the Regulations – namely to make orders to facilitate the prompt return of X to the United States, her accepted and acknowledged country of habitual residence.

32. Dr Sayers, on behalf of the Respondent, quite properly sought that, in these Reasons, I make specific reference to two aspects of the Regulations.  Dealing with Regulation 19A first.  It is clear, it seems to me, that, should there be issues that arise that enliven the operation of Regulation 19A, then the parties are able to apply to the Court for an order discharging the order I shall make.  A number of prerequisites are, of course, prescribed by Regulation 19A(2); it is clear that, should those circumstances be enlivened by circumstances which occur in the future, the parties will be able to apply to either discharge or vary the order made for the child’s return to the United States of America, her place of habitual residence.

33. I should also note that I have informed the parties that, absent any unforeseen difficulties or issues arising, should there be such an application pursuant to Regulation 19A, such application would return before me.  Therefore, I would, of course, be cognisant of the information I have thus outlined in these Reasons – however, to deal with the possibility that someone else may be asked to hear any such application, I have expressed the comments that I have. 

34. The second Regulation that Dr Sayers, on behalf of the Respondent, specifically sought I make specific reference to in these Reasons is Regulation 18 of the Regulations.  Relevantly, Regulation 18(1C) outlines that, included within the rules which apply to the hearing of an application such as the one I have before me is that “an order for the return of the child does not determine the merits of any custody issue in relation to the child.”

35. As I have already outlined, applications for return orders under the Regulations are generally regarded – at least in relation to aspects of the Regulations other than what has colloquially been described as “the residual discretion” which exists pursuant to Regulation 16(5) – as being orders about forum rather than about parenting per se.  The only matters to be taken into account, therefore, in making an order for the return of X to the United States are those matters prescribed in Regulation 16 – which is why I have taken the time to outline those in particular. 

36. For those short Reasons then, I will make orders by consent in terms of the document provided to me, which I will initial and date and place with the papers.  In addition, when the orders issue they will also contain the further order I have made.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 July 2020.

Associate:     

Date:              15 July 2020