DEPARTMENT OF CHILD SAFETY, YOUTH & WOMEN & COMAR
[2020] FamCA 463
•8 June 2020
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF CHILD SAFETY, YOUTH & WOMEN & COMAR | [2020] FamCA 463 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Hague Convention – Where the State Central Authority has applied for a return order for three children – Where the matter has been remitted by the Full Court for rehearing following an appeal by the father – Where the father now applies for leave to intervene in the proceedings – Where the application is opposed by the mother – Where the State Central Authority does not oppose the application but seeks to act as an “honest broker” if the father’s application is successful – Consideration of whether the roles of the State Central Authority and the father are the same – Consideration of the meaning of the term “honest broker” as it is used by the High Court in RCB v The Honourable Justice Forrest (2012) 247 CLR 304 – Where the father’s role is not the same as the role of the State Central Authority and he has a clear interest in the proceedings – Where the father is granted leave to intervene in the proceedings. |
| Family Law Act 1975 (Cth) s 92 Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14 Family Law Rules 2004 (Cth) r 6.02 |
| Hanbury-Brown & Hanbury-Brown (1996) FLC 92-671 Harris & Harris (2010) FLC 93-454 Levy v The State of Victoria and Ors (1997) 189 CLR 579 Panayotides & Panayotides (1997) FLC 92-733 Panayotides & Panayotides (Unreported, Family Court of Australia, Jordan J, 31 May 1996) RCB v The Honourable Justice Forrest (2012) 247 CLR 304 |
| APPLICANT: | Director General, Department of Child Safety, Youth & Women |
| RESPONDENT: | Ms Comar |
| INTERVENOR: | Mr Comar |
| FILE NUMBER: | BRC | 6714 | of | 2019 |
| DATE OF ORDER: | 19 May 2020 |
| REASONS DELIVERED: | 8 June 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 19 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shoebridge |
| SOLICITOR FOR THE APPLICANT: | McInnes Wilson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Green |
| SOLICITOR FOR THE RESPONDENT: | Frampton Legal |
| COUNSEL FOR THE INTERVENOR: | Mr North SC |
| SOLICITOR FOR THE INTERVENOR: | Barry Nilsson Lawyers |
Order made on 19 May 2020
Pursuant to s 92 of the Family Law Act 1975 (Cth), Mr Comar have leave to intervene in the proceedings commenced by the Director-General, Department of Child Safety, Youth and Women (“the State Central Authority”) on 12 June 2019 in the Family Court of Australia being proceeding number BRC6714 of 2019.
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 & Comar 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 6714 of 2019
| Director General, Department of Child Safety, Youth & Women |
Applicant
And
| Ms Comar |
Respondent
And
| Mr Comar |
Intervenor
REASONS FOR JUDGMENT
The substantive proceedings involve an application by the Director-General, Department of Child Safety, Youth and Women (“the State Central Authority”) for a ‘return order’[1] under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) in relation to three children, X born … 2009, Y born … 2013 and Z born … 2017.
[1]"return order" means an order under Part 3 for the return, under the Convention on the Civil Aspects of International Child Abduction, of a child who has been removed to, or retained in, Australia – see reg 2 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
That application was heard by another Judge of the Family Court of Australia on 13 and 19 September 2019 and the application was refused on 6 December 2019. The father of the three children, Mr Comar (“the father”) appealed against that decision in circumstances where the State Central Authority elected not to appeal. The father’s appeal was successful and on 24 April 2020 the application was remitted for re-hearing.
The father applied for leave to intervene in the remitted substantive proceedings. His application was opposed by the mother of the three children, Ms Comar (“the mother”). The State Central Authority did not oppose the application for leave to intervene but submitted that if leave to intervene were granted the State Central Authority should play the “honest broker”[2] role in the proceedings rather than “take the running.”
[2] This is a reference to what the High Court in RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at 315, [22] approved of as the role of a Central Authority in Hague cases.
On 19 May 2020, I granted the father leave to intervene in the proceedings and indicated that my reasons would be provided at a later time. These are my reasons.
Statutory provisions, regulations and authorities
The Regulations provide the legislative framework pursuant to which Australia meets its obligations as a contracting party to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).[3]
[3] [1987] ATS 2.
If a child is removed from a convention country to, or retained in, Australia reg 14 of the Regulations relevantly permits an application under the Hague Convention to be commenced by a Central Authority or by a person who has “rights of custody in relation to a child for the purposes of the Convention”.
Section 92 of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:
Intervention by other persons
(1)In proceedings … any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings.
…
(2)An order under this section may be made upon such conditions as the court considers appropriate.
(3)Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.
Section 4 of the Act defines “proceedings” as “a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding”.
Rule 6.02 of the Family Law Rules 2004 (Cth) (“the Rules”) provides:
(1)A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.
(2)…
Regulation 29 of the Regulations sets out certain evidentiary provisions which relax rules of evidence but only applies to proceedings in which the applicant in a responsible Central Authority. In particular:
(1)…
(2)The application … or any document attached to or given in support of that application … is admissible as evidence of the facts stated in that application …
(3)An affidavit of a witness who resides outside Australia that is filed in the proceedings is admissible as evidence even if the witness does not attend the proceeding for cross-examination.
(4)…
(5)The court may take judicial notice of the following matters:
(a)A law in force in a convention country;
(b)…
…
the father’s submissions
The father submitted that leave should be granted for the following reasons:
a)The reference in the Full Court’s decision on the father’s appeal to the father having been, until then, “substantially, if not technically a party,” being a person who “though not a party, might properly have been one”[4] supports the granting of leave;
[4]Comar & Comar [2020] FamCAFC 99 at [7] and [10].
b)The language used in cases such as Panayotides v Panayotides[5] and Hanbury-Brown & Hanbury-Brown[6] (relied upon by the mother) suggesting that the Central Authority brings an application on behalf of the ‘left behind’ parent no longer reflects the law given the amendments to the Regulations and the statement by the High Court in RCB v The Honourable Justice Forrest[7] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) where it was said:
[5] (1997) FLC 92-733.
[6] (1996) FLC 92-671 (“Hanbury-Brown”)
[7] (2012) 247 CLR 304 at 315–316.
22. …The function of the Central Authority has been described in the Family Court as that of an "honest broker" whose obligation is "not to secure the return of the child but to implement the requirements of [the Convention]"…. That characterisation is appropriate. An application under reg 14 is not brought to resolve, in an adversarial setting between parties in conflict, questions about the care and custody of a child. It is brought to determine whether Australia's obligation under the Convention, to return a child wrongfully removed from a country of habitual residence, is engaged. If it is engaged, disputed questions of care and custody fall to be resolved in accordance with the laws of the country from which the child has been removed. That being said, the interests and views of the child are relevant to the existence of the obligation. …
(footnote omitted)
c)The Full Court in Harris & Harris[8] “provides the best, admittedly inconclusive, guidance as to the Father’s entitlement to intervene. Their Honours saw no impediment to a parent seeking to be substituted for a State Central Authority and opined, but did not determine, that intervention under s 92 of the Act was not ruled out by Regulation 14”;
d)The role of the State Central Authority is to bring proceedings in order to uphold the treaty obligations of the Commonwealth and while there may be some overlapping with the father’s interests, his interests are personal, namely, “to secure the return of his children who reside with him”;
e)The particular circumstances of this case, namely, that the State Central Authority elected not to appeal the refusal to grant a return order and that they took no part in the appeal, create a “particular interest [for the father] in ensuring that his interests are adequately protected and advanced in these further proceedings”;
f)Although the father did not object to being substituted as the applicant, it was submitted that there could be some unintended consequences that prejudice both parents because reg 29 provides relief against the strict application of the rules of evidence only where the State Central Authority is the applicant.
[8] (2010) FLC 93-454 (“Harris & Harris”)
The mother’s submissions
The mother opposed the father being granted leave to intervene in the proceedings although conceded that s 92 of the Act provided the power to grant the father leave “where there is an appropriate reason shown”.
The mother further submitted that as “the Central Authority is ready and willing to … prosecute the application and carry out its duties under the Regulations. … There is no need for the father to become involved as a party” He is not a “necessary” party.
Reliance was placed upon the unreported first instance decision of Jordan J in Panayotides & Panayotides[9] where, in determining whether or not the father of the children had a right to have separate legal representation, his Honour said:
I take the view that the notion that the applicant to the Central Authority may also be treated as a party to the proceedings and entitled to separate legal representation, as (sic) inappropriate. It is contrary to the ordinary practices and procedures in this country and in this Court.
In my view, it exposes a respondent to the jeopardy of double representation. It is also likely to tend to cause proceedings to run contrary to the spirit and intent of the application of the Convention which is designed to procure the expeditious determination of these matters. In those circumstances, I have already ruled that the husband is not entitled to his own separate representation in the proceedings.[10]
[9] (Unreported, Family Court of Australia, Jordan J, 31 May 1996) (“Panayotides”) quoted in Panayotides & Panayotides (1997) FLC 92-733 at 83,879.
[10] Ibid.
It was also noted by the mother that Jordan J, in Panayotides, referred to the decision of the Full Court (Ellis, Lindenmayer and Finn JJ writing jointly) in Hanbury-Brown[11] where it was said:
… the wife had sought and been granted, by his Honour, leave to participate in those proceedings apparently on the basis that, rather curiously, she had been named by the Central Authority as a respondent to its application. We regard that as both curious and inappropriate, because the Central Authority, in bringing its application, was acting essentially on behalf of the wife, although formally on behalf of the United States Central Authority to whom the wife had made a request for assistance to secure the return of the children to the United States. It was, we believe, largely as a result of the direct involvement in the proceedings before his Honour of the wife, as a party, that everyone involved in those proceedings lost sight of the intended summary nature of the proceedings …
[11]Hanbury-Brown (n 6) at 336.
The mother conceded that her concern that she would be subjected to double cross-examination by parties with essentially the same interest, i.e. the return of the children to Colombia, can be overcome by restrictions on the cross-examination at the hearing. It was nevertheless submitted that it was “inappropriate” for the father and the State Central Authority to be parties.
While it was accepted that s 92 of the Act could be relied upon to enable the father to intervene, the mother submitted that intervention should only be permitted where there was “an appropriate reason shown”. The mother submitted that “in a typical intervention case, the intervenors have an interest but they [are] not the driver of the application” and “[w]hat is being proposed here is an artificial construct” proposed to be created for someone “whose interest is directly aligned with the Central Authority in terms of what they both seek”.
It was submitted that no unintended consequence would arise under reg 29 of the Regulations which, in any event, favoured the father where the State Central Authority remained as the applicant.
The State Central Authority’s submissions
In oral submissions the State Central Authority did not oppose the father intervening in the proceedings submitting that “[t]here seems to be ample reason why the father ought be entitled to join the proceedings and participate” particularly in circumstances where the State Central Authority did not appeal against the return order made in December 2019 and took no part in the appeal.
The State Central Authority agreed with the father’s submissions that their role is different to that of the father but they did not want to create any unfairness for the mother in creating “a perception of two against one”.
It was the clear preference of the State Central Authority not to take on the “prosecuting” role and for the father to have the “carriage of the matter” leaving the State Central Authority to “participate to the extent that it’s necessary for it to discharge its honest broker role in respect of the … Convention”. In that context, the State Central Authority stated that it would not “duplicate, for example, cross-examination of the mother. That would be unfair”.
Discussion
The substantive proceedings are ‘proceedings’ within the meaning of the Act and ‘any person’ may be granted leave to intervene in proceedings (s 92). However, the power to grant leave to intervene is not unfettered. As Brennan CJ said in Levy v The State of Victoria and others:[12]
… Jurisdiction to grant leave to intervene to persons whose legal interests are likely to be substantially affected by a judgment exists in order to avoid a judicial affection of such a person’s legal interests without that person being given an opportunity to be heard.
…
… Of course, if the intervener’s submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied.
(footnotes omitted)
[12]Levy v Victoria (1997) 189 CLR 579 at 603–604 per Brennan CJ.
In the present case the father has a clear interest in the proceedings as he is the father of the children in question. The outcome of the substantive application will substantially affect him. The father also has an understandable concern to ensure that his interests are fully represented, in circumstances where the State Central Authority elected not to appeal the refusal to make a return order in December 2019 nor take any part in the appeal. As already noted the father was successful in his appeal.
Contrary to authorities relied upon by the mother, the High Court’s statements in RCB v The Honourable Justice Forrest[13] establish that the role of the State Central Authority and the father are not the same.[14] The State Central Authority’s obligation is to implement the requirements of the Convention and to act as an “honest broker” whose obligation is “not to secure the return of the child but to implement the requirements of [the Convention]”. In the present case where the COVID-19 pandemic has resulted in heightened health risks and closures of international borders the State Central Authority may advocate for conditions to be imposed on any return order,[15] and such conditions may or may not accord with the father’s interests.
[13] (2012) 247 CLR 304.
[14] Also accepted by the Full Court in the earlier decision of Harris &Harris (2010) FLC 93-454 at 85,167 [23].
[15]Harris & Harris (2010) FLC 93-454 at 85,167 [23].
Accordingly, in the particular circumstances of this case the father should be granted leave to intervene.
Any concerns the mother has about being subjected to an unfair hearing process e.g. cross-examination by more than one party (if cross-examination is permitted at all), can be managed at trial.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 8 June 2020.
Associate:
Date: 8 June 2020
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