DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & GIKAS

[2020] FamCA 361

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & GIKAS [2020] FamCA 361

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application seeking an order that a Regulation 26 report be prepared for use at hearing an Application under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for the return of the children to Greece – Application dismissed.

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

APPLICANT: Department of Child Safety, Youth and Women

RESPONDENT: Mr Gikas

FILE NUMBER: BRC 3130 of 2020

DATE DELIVERED: 12 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 12 May  2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: McInnes Wilson Lawyers

COUNSEL FOR THE RESPONDENT: Ms Cullen

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The Respondent’s written application seeking an order that a report be prepared pursuant to Regulation 26 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) is dismissed.

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 & Gikas 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 3130 of 2020

Department of Child Safety, Youth And Women

Applicant

And

Mr Gikas

Respondent

EX TEMPORE REASONS FOR JUDGMENT 

1. I have today an application, albeit it not one brought formally by way of Application in a Case – about which I am not critical in the circumstances of the Respondent obtaining legal representation in this matter – for an order to be made pursuant to Regulation 26 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). That Regulation empowers the Court in proceedings under the Regulation, such as this proceeding is, to direct a Family Consultant to report to the Court on matters that are relevant to the proceedings as the Court considers to be appropriate.[1]  That power is discretionary, as is made clear by the manner in which the Regulation is drafted.

   [1] Regulation 26 1(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. Regulation 26(2) provides that 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. In this case the Respondent seeks, by submissions made by Counsel who appears on his behalf, that I make an order for the preparation of a report pursuant to Regulation 26 because, in essence, it is asserted by him that the parties’ five year old child has expressed clear, and what the father alleges are mature, wishes in relation to that child’s asserted desire to remain living in Australia.

4. The second basis on which it is submitted that it is appropriate that the Court exercise the discretion in favour of an order for the preparation of a Regulation 26 report is the father’s contention that his five year old son has also expressed assertions to him that he has been hit by his mother on multiple occasions. 

5. It was submitted by Counsel, in essence, that the Respondent’s position is that a report pursuant to Regulation 26 is necessary in order to permit the Court to have before it evidence to demonstrate his assertion that a return to Greece would expose the children to grave risk; further, that the report would also provide the Court with evidence of the clear wishes of the five year old child.

6. No mention in the submissions was made, understandably and sensibly, in relation to the parties’ three year old child who is also the subject of the application for an order to return to Greece. 

7. The application is opposed on behalf of the Applicant for the reasons that are summarised in the skeleton submission which I have marked as Exhibit 1 in this application.

8. I am not persuaded to exercise the discretion in favour of ordering a report pursuant to Regulation 26.  I arrive at this conclusion because I am not persuaded that whatever wishes may be expressed by a five year old are such as to be those relevant to the Regulation 16(3) exception. 

9. I am not persuaded, also, that it is appropriate to require the children in the circumstances of this case – about which I will say more when I deliver the reasons in determining the application for return order – to be interviewed or that the issue of grave risk can properly and appropriately be explored by interview of a five year old and a three year old by a Family Consultant, in circumstances where the children have been in Australia for a not insignificant period of time and where it is highly unlikely that such report could encompass interaction with the mother of the children, who remains resident in Greece, and other potential witnesses whose evidence might be relevant to the assertions made by the father.

10. For those short reasons then, I reject the submissions made on behalf of the father by Counsel who appeared on his behalf and dismiss the application.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 12 May 2020.

Associate:     

Date:              12 May 2020