Department of Communities and Justice & Bamfield (No 3)
[2022] FedCFamC1F 3
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Communities and Justice & Bamfield (No 3) [2022] FedCFamC1F 3
File number(s): SYC 1833 of 2021 Judgment of: BENNETT J Date of judgment: 19 January 2022 Catchwords: FAMILY LAW- CHILD ABDUCTION – stay pending appeal –where orders for the return of the child to Belgium on a specific date are stayed pending appeal – where other provisions of orders under appeal, which support and facilitate the return, remain operative and are not stayed. Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 11 January 2022 Place: Heard in Melbourne (via MS Teams link) Counsel for the Applicant: Ms Hartstein Solicitor for the Applicant: DCJ Legal Department of Communities and Justice Solicitor for the First Respondent: Hague Convention Legal Practice Solicitor for the Second Respondent: Ms Verbist Solicitor for the Intervener: Legal Aid New South Wales 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:
11 JANUARY 2022
THE COURT ORDERS THAT:
1.Pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Notation A to the Order made 20 December 2021 be amended by deleting the words “paragraph 13 and 14 of this Order” and by inserting in lieu thereof “paragraphs 9, 10 and 11 of this Order”.
2.Paragraph 1 of the Order made 8 December 2021 and paragraph 2 of the Order made 20 December 2021 be and are hereby stayed until further order.
3.Otherwise the Application in a Proceeding of the mother filed 10 January 2022 be and is hereby dismissed.
AND THE COURT NOTES THAT the appellant mother and her practitioners have been informed that a directions hearing for the appeal is likely to be convened within the next week and that the appeal is likely to be set down for hearing in February 2022.
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 the pseudonym Bamfield is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
On 4 January 2022 the mother filed a Notice of Appeal against my orders pronounced on 8 and 20 December 2022 for the return of X, who is almost two years old, to Belgium pursuant to Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986. The mother seeks a stay of those orders pending appeal with the exception of the parts of the Orders which provide for the father to communicate electronically with X.
The applicant State Central Authority and the Independent Children’s Lawyer are agreeable to some, but not all, orders being stayed. Ms Verbist, for the father, had indicated in material prepared by her and filed on her behalf by the applicant State Central Authority, that the father opposed any stay of orders. Ms Verbist explained that a stay of orders pending appeal does not occur in Belgium. Further, she stated, that with the procedure now having been explained to her, she accepted that the stay was going to be ordered. Ms Verbist requested a stay of the order requiring the father to purchase airline tickets in January 2022.
From discussion with counsel, including Ms Verbist, it is apparent that the only orders in respect of which a stay is necessary are those which require a return as soon as practicable or relate to a precise date for return of the child to Belgium. Paragraph 1 of the Order made 8 December 2021 provides:
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.
Paragraph 2 of the Order made on 20 December 2021 provides:
The father purchase tickets for Singapore Airlines flight … from Sydney to W City on 28 January 2022 departing at 21:20 hours, or similar.
The appellant mother has undertaken to prosecute the appeal diligently and is aware of the significantly abridged timelines she will have to meet to be ready for an appeal hearing next month. I am satisfied that it is appropriate to stay the operation of the above provisions of the Orders under appeal and that it is fair to do so. It was conceded on behalf of all parties that other provisions in the orders which support the child’s return to Belgium can, and should, remain operative. Those include the provisions for vaccination of the mother for COVID-19 by 14 January 2022 and that the parents doing all acts and things necessary to render enforceable the safe harbour orders made pursuant to s.111CD(b)(i) of the Family Law Act 1975 relating to parenting arrangements immediately following X’s return to Belgium. This is so, if the appeal is not successful, arrangements will be in place for the immediate repatriation of X to Belgium. I am satisfied that this approach is fair to all parties.
The applicant State Central Authority filed an affidavit by Ms R sworn 11 January 2022 which attaches the documents upon which Ms Verbist, for the father, had sought to rely. These included her outline of a decision of the Antwerp Court of First Instance in Belgium on 6 January 2022 (“the Belgian judgment”). The Belgian judgment provides that the father have primary care of X in Belgium and the mother have regular electronic communication with the child and access to the child twice a year. Ms Verbist referred to the Brussels II bis Regulation[1] which provides that, in cases of wrongful retention, the state in which the child was habitually resident immediately before the retention keeps primary jurisdiction subject to the occurrence of a number of events. That principle also finds expression in Article 7 of the 1996 Convention[2]. Ms Verbist described the Belgian judgment as a default arrangement which will apply subject to any other agreement which may be reached between the parents.
[1] European Council Regulation No.2201/2003 of 23 November 2003.
[2] Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and measures for the Protection of Children concluded at The Hague on 19 October 1996 and which entered into force between Australia and Belgium on 1 September 2014.
From the documents prepared by Ms Verbist and her statements by Ms Verbist at today’s hearing it is apparent that, according to Ms Verbist:
(a)The proceedings in which the Belgian order was made were initiated in the Antwerp Court of First Instance, Turnhout Division, Family and Juvenile Section by an application of the father which was served on 25 January 2021;
(b)The mother and father divorced in 2021;
(c)Each party filed submissions (“conclusions”) in support of their case;
(d)The hearing was before a sole judge, Judge A Dock;
(e)Both parents were represented by counsel at the hearing;
(f)The mother did not dispute the jurisdiction of the Belgian Court to deal with parenting matters;
(g)Both parents sought joint parental responsibility in relation to X. Joint parental responsibility requires that the parents must consult on important decisions concerning X such as housing, health, upbringing, education, leisure activities and religious or philosophical choices;
(h)The mother’s case was prosecuted on the basis that the mother would remain living in Australia. The mother did not advance any scenario whereby she would reside in Belgium.
(i)The Belgian judgment provides that X reside with the father. Unless otherwise agreed, the mother have undisturbed telephone or video communication with the child for at least 10 minutes every second or third day. The mother have access to X, in Belgium, during the first and second week of the Easter Holidays and for one month each year alternating between 1 July to 31 July and 31 July to 31 August. Ms Verbist specified that, if the mother establishes her residence in Belgium, the mother can re-open the parenting case and seek a shared residence order.
(j)The Court refused the request of the mother to relocate the child’s residence to Australia.
The contention, that the mother would remain living in Australia if X was ordered to be returned to Belgium, contradicts the mother’s conduct of her case in the return proceedings before me. In the return proceedings, counsel for the mother (the Hon. Mr I Coleman SC) confirmed, unambiguously, that the mother would accompany the child to Belgium if the child is sent back. My reading of Ms Verbist’s documentation, suggests that the Belgian Court was not appraised of the safe harbour order, as it pertains to parenting arrangements made in the return proceedings on 20 December 2021, prior to handing down its decision on 6 January 2022.
The order of 20 December 2021 provided for the child to remain in the primary care of the mother and have short but frequent access with the father. Article 23(1) of the 1996 Convention provides that measures taken by authorities of a Contracting State shall be recognised by operation of law in all other Contracting States. Australia and Belgium are both Contracting States. The parenting provisions of the Order made on 20 December 2021 are “measures of protection” within the meaning of the 1996 Convention. Recognition by operation of law means that there does not need to be any action or proceeding taken to achieve recognition. However, recognition may be “refused” on one or more of the grounds set out in Article 23(2) of the 1996 Convention.
Article 26(2) of the 1996 Convention provides that each Contracting State shall provide a simple and rapid procedure for measures to be rendered enforceable. The parties consented to my communication with the Hague Network Judge for Belgium in relation to the procedure for enforceability. My communication with the Hague Network Judge for Belgium dated 23 December 2021 and the response which I received on 24 December 2021, duly redacted, will be marked Exhibit C1 and will remain on the Court file and a copy is to be sent to the parties to the proceedings.
The obligation imposed by the Order of 20 December 2021, to render the eligible parts of the safe harbour order enforceable in Belgium, remains outstanding and is not stayed by this Order.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 19 January 2022
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