Department of Communities and Justice & Bamfield (No 2)
[2022] FedCFamC1F 2
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Communities and Justice & Bamfield (No 2) [2022] FedCFamC1F 2
| File number(s): | SYC 1833 of 2021 |
| Judgment of: | BENNETT J |
| Date of judgment: | 11 January 2022 |
| Catchwords: | FAMILY LAW CHILD ABDUCTION – conditions to return including parenting arrangements for the subject child prior to and immediately after the return to the state of habitual residence and financial support to be provided by the left behind parent to the taking parent. |
| Division: | Division 1 First Instance |
| Number of paragraphs: | 13 |
| Dates of hearing: | 14 & 20 December 2021 |
| Place: | Heard in Melbourne (via MS Teams link) |
| Counsel for the Applicant: | Ms Hartstein |
| Solicitor for the First Respondent Mother: | Ms Saladino |
| Solicitor for the Second Respondent Father: | Ms Verbist on 14 December 2021. Respondent father in person on 20 December 2021 |
| Solicitor for the Independent Children’s Lawyer: | Ms Phillips |
ORDERS
| SYC 1833 of 2021 | ||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) | ||
| BETWEEN: | DEPARTMENT OF COMMUNITIES & JUSTICE Applicant | |
| AND: | MS BAMFIELD First Respondent Mother MR Q Second Respondent Father | |
| INDEPENDENT CHILDREN'S LAWYER | ||
ORDER MADE BY: | BENNETT J |
DATE OF ORDER: | 20 DECEMBER 2021 |
THE COURT ORDERS THAT:
1.Subject to any further or other Order the child X born in 2020 (“the child”) be returned to Belgium in the care of the mother and for this purpose:-
a) The mother attend Sydney International Airport not later than 4 hours prior to the scheduled departure time of their flight;
b) The mother ensure that she is in a position to comply with all requirements of the Commonwealth of Australia, Singapore and Belgium in relation to proof of her current vaccination status for COVID-19;
c) The mother do all acts and things necessary to have her second COVID-19 vaccination by not later than 14 January 2022;
d) The Registrar of the court provide a photocopy of the passports for the mother and the child to the Applicant State Central Authority and to the mother and father by electronic means as soon as possible;
e) The mother ensure that she complies with, and is in a position to prove compliance with any requirement of the Commonwealth of Australia, Singapore and/or Belgium of the results of necessary testing for COVID-19 being testing of herself and the child;
f) The mother ensure that she has an appropriate visa to enter Belgium; and
g) The Registrar of the court release the passports of the mother and the child to the Proper Officer at the Applicant State Central Authority and the Applicant attend the airport on the day that the mother and the child are due to depart and meet the mother at or in the vicinity of the check in counter for economy passengers four hours prior to departure.
2.The father purchase tickets for flight … from Sydney to Brussels on 28 January 2022 departing at 21:20 hours, or similar.
Date of return
3.If the mother fails or neglects to be vaccinated by 5pm on 14 January 2022, there be liberty to apply for orders providing that the child be returned to Belgium in the care of the father.
Conditions on return to be complied with before the mother and child’s departure to Belgium
4.The return of the child to Belgium pursuant to the Order made on 14 December 2021 is conditional upon the requesting parent, Mr Q (“the father”), doing all acts and things to effect the following:
a) Depositing into the mother’s nominated bank account the mother provided for in paragraph 3 of this Order;
b) Paying to his Belgian solicitor’s trust account a lump sum payment of €1,771, being €100 per week for four months, by way of contribution to the mother and the child’s incidental living expenses, with such payment to be deposited into the trust account by not later than 3 clear days before the child leaves Australia and be released by the father’s solicitor and paid to the mother, into a bank account nominated by the mother in Belgium by not later than 12 hours after the departure from Australia of the mother and the child;
c) Vacating the home in Belgium owned by the father (originally intended to be purchased in joint names) (“the father’s home”) and providing written confirmation to the State Central Authority that the home has been vacated and is suitably furnished with furniture and necessities at least 3 working days prior to the child’s return to Belgium;
d) Providing confirmation to the mother by not later than 20 January 2022 that health and hospital insurance for her and for the child in Belgium has been paid by him until the end of January 2022; and
e) Providing confirmation to the mother by 20 January 2022 that the health and hospital insurance has been paid by him up until January 2023.
Conditions to return upon the mother and child’s arrival in Belgium
5.Upon the child’s return to Belgium and until orders are made by a Court of competent jurisdiction in Belgium, the father and the mother do all acts and things necessary to effect the following:-
a) The father pay into an account nominated by the mother and standing in her name any government child benefits received by the father referrable to the period commencing on the child’s return to Belgium, and continuing for a period of four months or such earlier time as the entitlement to such benefits is transferred to the mother.
b)For four months commencing from the return of the child to Belgium and if the mother is legally entitled to drive in Belgium and provides the father with proof of that entitlement, the father and mother share the use of the father’s motor vehicle 1on the basis that the parent who has care of the child has use of the motor vehicle and the mother return the vehicle to the father when he has care of the child.
c) During the mother’s use of the motor vehicle pursuant to subparagraph b of this Order the father pay and be responsible for the costs of registering the car and reasonable maintenance on the car and insurance for third party property and driver’s insurance which also covers injury to passenger if that cover is not otherwise provided by healthcare and hospital insurance.
d) During the four month period provided for in subparagraph (b) each parent ensure that the car has at least half a tank of fuel as and when it is provided to the other parent.
e) The father provide the mother with exclusive use and occupation of the father’s home for her to reside in with the child, complete with furnishings with necessities including furniture, cutlery, crockery, bedclothes, electronics including a television, for a period of four months from the date upon which the mother and child enter Belgium.
f) The father pay the utilities for the father’s home including gas, electricity, rates and taxes during the mother’s four month occupancy at the property.
g) The mother maintain the father’s home in Belgium in a reasonable state of cleanliness and repair.
h) The mother vacate the father’s home in Belgium four months after the arrival of the child in Belgium, with all furniture and necessities provided by the father to be left in the home
i) The mother reimburse the father for the reasonable costs of repair of damage caused to the property, if any.
j) The father pay any costs relating to the treatment of the child’s hemangioma, should such costs not be covered by the health and hospital insurance.
AND IT IS NOTED THAT the financial provision in subparagraphs a, b, c, d and j of this Order is in addition to any child support or child alimony which may be payable by the father to the mother in respect of the child.
6.The father and the mother, to the extent that it is possible to do so, obtain orders in a court of competent jurisdiction in Belgium which are enforceable in Belgium which provide as follows:-
a) For a period of four months from the date of the return of the child to Belgium, the father refrain from knowingly approaching within 50 metres of the residence where the mother is residing unless attending to collect or return the child in accordance with the parenting arrangement or unless otherwise invited to do so.
b) For a period of four months from the date of the return of the child to Belgium, the father refrain from knowingly approaching within 50 metres of the mother’s place of employment or education.
7.The father hereby agrees not to commence or to support any criminal or civil prosecution of the mother arising out the circumstances of the mother’s wrongful retention of the child in Australia.
Interim Parenting arrangements
8.Until a court of competent jurisdiction in Belgium orders otherwise, upon the return of the child to Belgium, the parents be and are each hereby mutually prohibited from removing the child from Belgium, or causing or permitting or suffering the child to be removed from Belgium, without the prior written consent of the other parent or an order of a court of competent jurisdiction in Belgium.
9.Until a court of competent jurisdiction in Belgium orders otherwise the child, X (born in 2020) live with the mother.
10.Until a court of competent jurisdiction in Belgium orders otherwise, the father have access to the child as follows:
a) On the day following the day the child arrives in Belgium, for a period of one hour, at a time to be agreed between the parents and, in the absence of agreement, between 4.00pm and 5.00pm;
b) Commencing from the two days following the day the child arrives in Belgium, on each alternate day for a period of one and a half hours, at times to be agreed between the parents and, in the absence of agreement, between 4.00pm and 5.30pm;
c) Commencing from four weeks and two days from the day the child arrives in Belgium, on each alternate day for a period of two and a half hours, at times to be agreed between the parents and, in the absence of agreement, between 3.00pm and 5.30pm;
d) Commencing from eight weeks and two days from the day the child arrives in Belgium, on each alternate day for a period of three and a half hours, at times to be agreed between the parents and, in the absence of agreement, between 2.00pm and 5.30pm; and
e) For the purpose of the interim parenting arrangements:-
i.the father’s access with the child is not subject to supervision by any third party although the father is at liberty to have other persons present during access;
ii.in the absence of agreement to the contrary, the changeover point is to be outside the BH Zoo at the front entrance under cover if possible;
iii.the mother provide all necessary food, refreshment and clothing for the child for the duration of the access;
iv.the father return all things provided by the mother (with the exception of food and drinks which have been consumed by the child) at the conclusion of access including any clothing of the child which may be soiled;
v.the mother has informed the Court that the child usually sleeps from 1:30pm to 2:30pm (Sydney time), the mother inform the father of changes to the child’s sleeping patterns consequent upon the child changing time zones.
11.Where the parents otherwise agree about arrangements under this Order, such agreement be evidenced in writing.
12.It is acknowledged that the provisions for residence of, and access to the child provided for in this Order will lapse when a Court of competent jurisdiction in Belgium takes such measures as are required by the situation exercising jurisdiction under Article 5 of the 1996 Convention.
Other orders
13.That there be liberty to each the applicant, mother and independent children’s lawyer to apply urgently to relist this matter before me in relation to implementation of this order and in respect of any machinery provisions.
14.The order requesting the appointment of an independent children’s lawyer is discharged upon the child departing Australia.
15.That the names of the child, X (born in 2020) and the mother, Ms Bamfield (born in 1983) be removed from the Family Law Watch List in operation at all Australian international points of arrival and departure to allow the child and the mother to board the scheduled flight from Australia to Belgium AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the names of the child and the mother from the Airport Watchlist upon boarding.
16.For the period that the child remains in Australia, pending her return to Belgium, the mother is to facilitate time between the child and her father via Skype or other audio-visual means, for a minimum of 10 minutes each alternate day. Within 24 hours of the making of these orders, the mother nominate a suitable time for the audio-visual contact to occur and the time commence at the same time the following day and each alternate day.
17.For the purposes of paragraph 16 of this Order, facilitating time between the child and her father includes providing the father with an opportunity to observe the child playing with her toys, or engaging in an activity.
18.For the purposes of paragraph 16 of this Order, both parents are restrained from causing, permitting or suffering the recording of the child during her time with her father, without the consent of the other parent.
19.The mother and/or the father be at liberty to provide to the Belgian court copies of all documents forming the CourtBook (eBrief) in these proceedings, including any transcript of the hearing and the reasons for decision.
Enforceability of this Order in Belgium
20.The parents do all acts and things necessary to render enforceable the parts of this Order which may be rendered enforceable pursuant to Article 26 of the 1996 Convention and to do so prior to the child departing Australia.
21.As soon as practicable, each parent notify the Applicant State Central Authority and the Applicant State Central Authority notify my Chambers of the name and address of any solicitor or advocate which he or she has retained in Belgium for the purpose of family law proceedings in Belgium.
AND THE COURT NOTES THAT:
A.That the parenting orders contained in paragraphs 9, 10 and 11 of this Order are urgent orders within the meaning of Article 11 of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation of Parental Responsibility and Measures for the Protection of Children and it is accepted by the parents that they will be recognised in Belgium accordingly and that enforcement will be sought pursuant to this Order.
B.The parties have consented to direct judicial communication between myself and the judge designated for Belgium to the International Hague Network of Judges for the purpose of obtaining simple and rapid enforcement of this Order.
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 Bamfield has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
On 8 December 2021 I ordered that the application filed by the NSW Department of Communities and Justice (“the applicant”) on 16 March 2021 be granted, and the child, X born in 2020 (“the child”) be returned to Belgium, as soon as practicable, pursuant to Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986. My reasons for decision were handed down. It is accepted that if or when the child travels, the mother proposes to accompany the child so further orders were made in relation to the mother’s vaccination status for COVID-19. All injunctions for the protection of the child remain in full force and until further order. Otherwise, the matter was set down for hearing before me on 14 December 2021 at 4:30pm (Melbourne time) for the purpose of making specific orders for return and conditions to return some of which were discussed by me in my reasons for decision.
On 14 December 2021, Ms Hartstein appeared for the applicant State Central Authority, Ms Saladino appeared for the mother, Ms Phillips appeared as independent children’s lawyer, the left behind parent, the father, appeared as did his solicitor in Belgium, Ms Verbist. I ordered, inter alia, that the father be and is hereby a party to these proceedings for the purpose of giving effect to and being bound by the Order and any further orders of the Court. Ms Karin Verbist, lawyer, have leave to appear in this Court notwithstanding that she has not signed the High Court roll or is not admitted to practice in Australia. The joinder of the father and his right to be heard was uncontroversial. I proceeded to hear submissions from all parties as to the form of the orders to implement the return order as well as conditions to return which, adopting the words of the preamble to the 1980 Convention, were directed to ameliorating the harmful effects of wrongful retention in cases of international parental child abduction such as this. Notwithstanding that we sat late, we could not finish the hearing and after 6:00 p.m. it was adjourned to 20 December 2020. On 20 December 2020, the appearances by and on behalf of all parties was the same save that the father’s lawyer did not attend and the father spoke on his own behalf.
These reasons are delivered subsequently to the Order being pronounced given that we sat very late to conclude the matter.
It transpires that the mother has only had the first vaccination for COVID-19 and is not due for or able to have her second vaccination until 14 January 2022. Counsel for the mother informed the court that the mother delayed in having her first vaccination due to an underlying medical condition. The applicant State Central Authority seek a prompt return of the child to Belgium but the mother contends that she and the child ought not fly until after the mother has received her second vaccination. There was common ground that the second vaccination dose is not immediately effective and that there should be a minimum of 7 to 14 days between the mother’s second vaccination and the flight(s) back to Belgium. Further the mother indicated through Ms Saladino that she may file a Notice of Appeal against the return order and seeks that any return post date the expiration of the time in which a Notice of Appeal may be filed as of right, which is 5 January 2022.
I am mandated to return X to Belgium promptly. In all of the circumstances, however, I am prepared to delay return until after the date by which it is estimated that the mother’s second vaccination will be effective. I am satisfied that to do otherwise is likely to impact adversely on the ability to purchase flights for the mother and the child at an economical cost.
I now turn to the purchase of tickets for the flights. As a general proposition, I am not persuaded that it is prudent to make the parent who does not want to return to Belgium responsible for making the arrangements for return, particularly where, as here, the other parent is paying the cost at first instance. The parties’ positions changed during submissions and, ultimately, it was agreed that the father will be responsible for purchasing the necessary flights. This will give him some control over obtaining flexible fares. In this climate, flexibility is preferred in case, for instance, the mother or child were to contract COVID-19 just before they were due to depart Australia. One appropriate flight appears to be … which passes through Singapore (a party to the 1980 Convention). The flights are to be economy class.
There was extensive discussion as we progressed through the drafting of orders. I am satisfied that all parties had an opportunity to be heard. The most controversial aspect was the parenting arrangements and financial support which are to pertain immediately after the return of X to Belgium and until the courts there become seized of the parenting issue and/or administrative processes around child support and parenting payments come into play. The arrangements find expression in the orders which I determine the parties (but mostly the father) must have rendered enforceable in Belgium as a condition precedent to return. In making orders and conditions which are, within the meaning of Regulation 15(1)(b) and (c) necessary to give effect to the Convention, I must bear I mind the stated intention of contracting states to minimise the harmful effects of the wrongful retention to which X has been subject. Ms Saladino, for the mother, submitted that there should be no prescription of time spent between the father and child on the child’s return and the parents could await the determination of the Belgian courts. Ms Saladino submitted that it is sufficient for there to be a general requirement that the mother will provide reasonable time for the father with X. On the other hand, the applicant State Central Authority, the father and the independent children’s lawyer all preferred and pressed for specification of the rights and responsibilities in relation to the care of X for the short time before the Belgian courts take measures in this regard.
I do not accept these submission made on behalf of the mother. In my experience, it is in the best interests of children to have clarity of arrangements, rights and responsibilities concerning their care. Uncertainty is corrosive to the well-being of a child in that it readily promotes further conflict which impacts either directly or indirectly upon a child. The father has already been forbearing in his agreement to mutual orders about neither parent approaching the residence, place of employment or place of education of the other parent. He does not concede, and I do not find, that he poses a threat to the mother’s physical safety, but he recognises that mutual prohibitions may well provide the mother with some peace of mind. However, it is not difficult to foresee that a general arrangement of “reasonable time”, as submitted by Ms Saladino, could lead to misunderstanding, if not mischief when it is abundantly clear that each parent has a very different view of what is “reasonable”. It would be imprudent to put the father in the position of having to negotiate time with the child when he has agreed that there should be no contact between parents.
Finally, in these proceedings there is ample evidence of the mother’s tendency to say one thing but do another to a degree that is disingenuous. Put another way, I have difficulty in accepting the stated intention of the mother to this court as being something that she will abide by, and act in conformity with, where she will no longer be under the scrutiny of this Court in relation to her responsibilities as a parent.
Children in X’s situation are particularly vulnerable to parental conflict immediately following their return to home state. Such conflict is likely to be reduced if there are specific arrangements, in clear and unambiguous terms, for how X is to be parented. In my view the arrangements set out at the beginning of these reasons are conservative in relation to the father’s capacity to care for X. That is, further and longer time may be appropriate but at this stage I see merit in making the time regular and frequent at least until the court in Belgium takes alternative measures. I am also taking into account the fact that a return will be stressful for the mother and that stressors for the mother may translate to stressors for the child.
In making these orders and conditions, I am exercising my power under r.15 rather than under the parenting provisions of the Family Law Act 1975. As such I am not required to regard the best interests of X as the paramount consideration. Nonetheless, I do regard the arrangements which I make for the father’s time with, and for the care of, X to be in her best interests. I reach this conclusion having considered the extensive evidence adduced by, through, or on behalf of each parent in the return proceedings as well as my observation of each parent during the hearing including each parent’s reaction to the other parent’s oral evidence.
I have applied a similar specificity to the financial support to be provided by the father to the mother. My intention has been to provide a soft landing for the mother in Belgium. It is not necessarily fair, as between the parents, but I am satisfied that the financial provision I have required is necessary to insulate X from the harmful impact of high parental conflict in the immediate aftermath of mandatory return under the 1980 Convention.
All parties have agreed that there can be direct judicial communication between myself and the judge designated for Belgium to the International Hague network of judges. This may facilitate the earlier enforceability of measures which I have ordered in Belgium under the 1996 Convention.
| I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. |
Associate:
Dated: 11 January 2022
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