Department of Children, Youth Justice and Multicultural Affairs & Handley (No 2)
[2023] FedCFamC1F 322
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Children, Youth Justice and Multicultural Affairs & Handley (No 2) [2023] FedCFamC1F 322
File number(s): BRC 4399 of 2023 Judgment of: BENNETT J Date of judgment: 21 April 2023 Catchwords: FAMILY LAW- CHILD ABDUCTION- where Hague return application is made in relation to child who has no psychological relationship with the requesting parent- where respondent indicates that she will rely on article 13(b) exception to return- where requesting parent has obtained an order in the home state for the respondent mother to have no access, visitation or communication with child and where a warrant for the arrest of the respondent mother has been issued- where court orders that a report be prepared on impact of sudden removal of child from primary carer as a result of the return. Legislation: Family Law (Child Abduction Convention) Regulations 1986 reg 14 Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 21 April 2023 Place: Melbourne (via MS Teams) Counsel for the Original Applicant: Mr Shoebridge Solicitor for the Original Applicant: McInnes Wilson Lawyers Counsel for the Substituted Applicant: DCJ Legal, Department of Communities And Justice Counsel for the Respondent: Mr Harper Solicitor for the Respondent: Rowlandson & Co. Solicitors ORDERS
BRC 4399 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: THE MINISTER, DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS
Original Applicant
DEPARTMENT OF COMMUNITIES AND JUSTICE, NEW SOUTH WALES
Substituted Applicant
AND: MS HANDLEY
Respondent
order made by:
BENNETT J
DATE OF ORDER:
21 april 2023
THE COURT ORDERS THAT:
1.This matter be adjourned for a case management hearing on 12 May 2023 at 9:30 am before the Honourable Justice Williams (“the adjourned date”) for the purpose of making directions for trial AND IT IS NOTED that the parties have been advised that a trial may be allocated as early as within 10 days after the adjourned date.
2.The Secretary of the Department of Communities and Justice for the State of New South Wales (as the State Central Authority for New South Wales) be substituted as applicant in place of the Department of Children, Youth Justice and Multicultural Affairs for the State of Queensland and file and serve a Notice of Address for Service as soon as practicable.
3.All orders made in this matter to date directed to the State Central Authority for Queensland be and are hereby binding on the new applicant State Central Authority for New South Wales.
4.The State Central Authority for New South Wales may proceed with the application originally filed by the State Central Authority for Queensland originally although nothing in this Order limits the entitlement for the current applicant to amend the application.
5.Any step taken by the State Central Authority for Queensland in this proceeding is deemed to be a step taken by the State Central Authority for New South Wales in this proceeding.
6.By way of compliance with paragraph 12 of the Order made on 11 April 2023 the mother hand the Australian and United States passports for herself and the child X, born 2022, to her solicitors to be held pending her solicitors being notified of an address for delivery of the passports to the applicant State Central Authority for New South Wales.
7.The solicitors for the State Central Authority for Queensland communicate the residential address of the mother and child to her counterpart in New South Wales with the caveat that such information not be released to the requesting parenting pending further order of the court.
8.By 11.00 am on Monday 8 May 2023 the respondent mother file and serve:-
(a)any response to the application for the return of the child X to the United States of America pursuant to regulation 19 of the 1980 convention 1986
(b)any affidavit evidence, including expert evidence, and proofs of evidence in support of her response and in opposition to the application for a return order; and
(c)in the mother’s aforementioned affidavit she detail any conditions to return she seeks be imposed in the event that her opposition to return is unsuccessful and X is ordered to be returned to the United States of America.
9.By not later than 4.00 pm on Friday 19 May 2023 the applicant file and serve any further material upon which it proposes to rely in response to the material filed by the respondent mother and such affidavit evidence include the requesting parent’s response to the conditions to return sought by the mother.
10.That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X, born 2022 independently represented by a lawyer AND IT IS REQUESTED that Legal Aid New South Wales arrange such representation NOTING THAT Ms L has previously acted as independent children’s lawyer for matters of this nature and the Court requires a practitioner with experience as an independent children’s lawyer in this case.
11.Prior to the adjourned date, the independent children’s lawyer ascertain whether the requesting parent and the respondent mother are prepared to participate in specialised Hague mediation prior to the final hearing and be in a position to put forward the details, cost and availability of an appropriately qualified person to be a single expert witness in relation to the impact on the mother’s mental health of the returning with X to the United States in the event that the mother’s evidence demonstrates that the mother’s mental health is an issue in this proceeding.
12.That forthwith upon appointment by the said Legal Aid New South Wales or otherwise the independent children’s lawyer file a Notice of Address for Service.
13.That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.
14.The applicant and/or respondent and /or independent children’s lawyer are at liberty to argue on the adjourned date that the order requesting the appointment of an independent children’s lawyer be discharged.
15.IT IS REQUESTED that, pursuant to reg. 26(1), a report be prepared in relation to the impact (immediate, medium and long term) on the child of being separated from her primary carer and placed in the care of the requesting parent and having no visitation with the respondent mother.
16.The reg. 26 report be prepared:
(a)On accepted principles of childhood development;
(b)Without the child being produced;
(c)Without either parent being interviewed;
(d)On the assumption that the child has spent only three periods of time with her father between birth and 25 January 2023 and that each period was of not more than six hours in duration;
(e)With the court child expert having access to:
(i)all documents on the court file;
(ii)any documents or things produced on subpoena and released for inspection;
(iii)such other document(s) as may be provided to the court child expert by the independent children’s lawyer (the independent children’s lawyer having first notified the parties in writing of any documents proposed to be so provided).
(f)None of the applicant, respondent or requesting parent may submit documents to the court child expert without the co-operation of the independent children’s lawyer or further order of the court;
(g)And be published by 11 May 2023;
(h)The applicant be, and is hereby, at liberty to provide a copy of the reg. 26 report to the Central Authority for the United States and/or the requesting parent and/or his lawyers immediately upon publication;
(i)The independent children’s lawyer ensure that any mediator (including a proposed mediator) has a copy of the reg. 26 report;
(j)Any party may disseminate the reg. 26 report to any appropriately qualified person for the purpose of obtaining advice or evidence for use in this proceeding.
AND IT IS NOTED BY THE COURT:
A.In the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
B.The views of the parties to direct judicial communications has not been sought or obtained.
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 Department of Children, Youth Justice and Multicultural Affairs & Handley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
This matter comes before me as the first inter-party hearing of the proceedings for the return of X born 2022 to the United States of America pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986.
The mother and child are living in New South Wales at an address disclosed to the applicant. As such, it is appropriate that the State Central Authority for New South Wales take over these proceedings in place of the State Central Authority for Queensland.
Mr Harper of Counsel indicated that his client will be legally represented for the final hearing and will be relying on the grave risk and intolerable situation regulatory exception to return. Family Violence will be an element of the respondent’s opposition to return but Mr Harper was not in a position to particularise the allegations of Family Violence. The respondent’s documents have to be filed within approximately two weeks. Whereas that may seem like a short turnaround time, the respondent would have been aware that these proceedings were likely from her arrival in Australia in late January.
There was no opposition to the appointment of an independent children’s lawyer so I have requested an appointment. This matter can be raised again before Justice Williams on the adjourned date, of 12 May 2023, if any party seeks a discharge of the request for appointment.
It transpires that, if I leave the ordering of a Regulation 26 report to Justice Williams on the adjourned date, preparation of the report will delay the final disposition of this matter. Accordingly, I will make the order today. I gather that the report may be completed by 11 May 2023. The arrangements made contemplate that the report will be expressed in general terms, the parent’s will not be interviewed and the child court expert will be cross-examined remotely on the courts’ MS Teams platform and not be required to attend court in person.
I anticipate that a difficulty in this matter will be the punitive actions taken as a result of the alleged wrongful removal. The 1980 Convention does not criminalise international parental child abduction. Criminality is imposed by contracting states. This matter may well benefit from direct judicial communication between our network judges and the network judges for the United States of America but no such communication has taken place at this stage. The parties should consider whether they consent to direct judicial communication and advise Justice Williams on the adjourned date.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 27 April 2023
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