Department of Communities and Justice & Bamfield (No 4)
[2022] FedCFamC1F 918
Federal Circuit and Family Court of Australia
(DIVISION 1)
Department of Communities and Justice & Bamfield (No 4) [2022] FedCFamC1F 918
File number(s): SYC 1833 of 2021 Judgment of: BENNETT J Date of judgment: 16 November 2022 Catchwords: FAMILY LAW- CHILD ABDUCTION – where father is the requesting parent and the mother is the taking parent and the child is nearly 3 years old – where applicant State Central Authority seeks compliance with aspects of return order pending application by taking parent to High Court of Australia for special leave to appeal the return order – where taking parent ordered in April 2022 to apply for an Australian passport for child but failed or neglected to finalise application until day of hearing – where child will need to travel back to Belgium on an Australian passport if special leave is refused – where court is satisfied that it is more appropriate that passport be collected from Passport Office by applicant State Central Authority than for the passport to be sent by ordinary post to taking parent – where applicant State Central Authority informs court that passport application will be expedited without need for an order being made requesting expedition.
FAMILY LAW- PARENTING- where requesting parent is en route to Australia and seeks face to face time with child whilst he is in Australia – where leave given to requesting parent to make oral application for parenting orders under Part VII of Family Law Act 1975 (Cth) – where taking parent seeks supervision of time spent and requesting parent opposes supervision – where supervision is ordered having regard to high parental conflict and vulnerable position of requesting parent if he attempts to exercise time spent unaccompanied.
FAMILY LAW- JURISDICTION – where primary jurisdiction to make spend time orders remains with courts and authorities in Belgium – where time spent orders are urgent orders made under the subordinate jurisdiction provided for in s 111CD(1)(b)(i) of Part XIIIAA of Family Law Act 1975 (Cth).Legislation: Family Law Act 1975 (Cth) ss 111CE, 111CD Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 16 November 2022 Place: Melbourne (via MS Teams) Solicitor for the Applicant: Department of Communities & Justice Solicitor for the First Respondent: Hague Convention Legal Practice Counsel for the Second Respondent: Mr Barbyannis Solicitor for the Second Respondent: Sayer Jones Solicitor for the Independent Children’s Lawyer: 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
MR Q
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BENNETT J
DATE OF ORDER:
16 NOVEMBER 2022
THE COURT ORDERS THAT:
IT IS REQUESTED:
1.That upon issue of the passport for X born in 2020 (“the child” “X”) the passport be collected by an Officer of the New South Wales Department of Communities and Justice to be held until further order.
IT IS ORDERED THAT:
2.The father be permitted to make an oral application for orders to spend time with X.
IT IS FURTHER ORDERED BY CONSENT THAT:
3.The father will spend time with X as follows:
(a)From 2:00pm – 3:00pm on 17 November 2022;
(b)From 10:00am – 12:00 noon on 19 November 2022;
(c)From 2:00pm – 4:00pm on 20 November 2022;
(d)From 10:00am – 12:00 noon on 21 November 2022;
(e)From 10:00am – 12:00 noon on 22 November 2022;
(f)From 12.00 noon to 2pm on 23 November 2022 [the mother will provide packed lunch for the child]; and
(g)From 12.00 noon to 2.00 pm on 24 November 2022 [the mother will provide packed lunch for the child].
4.That for the purposes of paragraph 3 of this Order, X’s time with her father will be supervised by Ms AB, an independent social worker nominated by the independent children’s lawyer.
5.That for the purposes of paragraph 3 of this Order, time will take place in a location nominated by Ms AB in consultation with the mother, in the Suburb AC / Suburb AD area.
6.That for the purposes of paragraph 3 of this Order, Ms AB will collect X from the maternal grandparents’ home at AE Street, Suburb AC, and return her to that address.
7.Unless agreed between the mother and father in writing, the mother and her agents are otherwise restrained from attending X’s time with her father.
8.There be leave to the independent children’s lawyer to provide a copy of this Order to Ms AB.
IT IS FURTHER ORDERED BY THE COURT THAT:
9.The costs of Ms AB’s supervision are to be met by the second respondent father.
10.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
AND IT IS NOTED THAT:
A.Immediately prior to time occurring on 17 November 2022, Ms AB will meet with the mother and X at home, for at least 30 minutes.
B.If, in Ms AB’s professional view, it is in X’s best interests for her time with her father to be terminated early on any occasion, Ms AB will terminate the time and return X to her mother’s home.
C.The Applicant State Central Authority informs the Court that processing of the child’s passport will be expedited.
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 Communities and Justice & Bamfield has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREBENNETT J:
This matter comes before me on an urgent application in relation to X (nearly 3 years old) in respect of whom there have been proceedings under the Family Law (Child Abduction Convention) Regulations 1986. X has been ordered to be returned to Belgium. The mother’s appeal against my return order was dismissed by the Full Court (Division 1) of this court. The mother’s application to the High Court is pending and will be heard in Sydney this Friday, 18 November 2022.
The father is travelling from Belgium to Sydney for the first time since the mother wrongfully retained X in Australia. He is expected to arrive on Thursday morning at approximately 6 am for seven days.
The proceedings were originally listed before me on the issue of the mother having failed or neglected to comply with an Order that she do all acts and things to obtain a new Australian passport for X. The order was made in April 2022 and yet the application was only completed when further documents were submitted to the Passport Office this morning. The mother says she has tried on 12 occasions to satisfy the requirements of the Passport Office. X does not have a current Australian Passport on which she can travel. In the event that special leave is not granted, I expect that the father and the applicant State Central Authority consider that X will be in urgent need of at Australian Passport so that she can return to Belgium forthwith.
Mr Barbyannis of Counsel, for the father, stated that the father seeks that the mother cooperate with him in an application for a Belgium passport for X. However, the father has no application before the Court to that effect.
The father wishes to spend time with X whilst he is in Australia. By a minute of order, he sought brief but frequent periods almost on a daily basis commencing tomorrow. I have permitted counsel for the father to make an oral application for time spent orders, that is an application for a parenting order under Part VII of the Family Law Act 1975 (the Act).
I have heard briefly from the practitioners about some relevant facts. There is no affidavit evidence or other evidence in support of the application. Neither was there any objection to me dispensing with the Rules of Court to permit the parties to proceed with oral applications.
Happily the parents with the assistance of the independent children's lawyer, Ms Phillips, have reached a resolution in relation to the father’s oral application and it is agreed that time will be spent starting tomorrow and occur on six occasions thereafter.
Earlier today there was a dispute about whether or not the time ought to be supervised. I made known to the parties that I thought that the father was in a particularly vulnerable situation if he took time with X which was not supervised and it may be foolhardy for him to attempt to do so. I am not satisfied on the facts of this case, or the submissions of the solicitor for the mother, that X is at risk of harm in the father’s care but I recognise that there may be some benefit, vis a vis the mother’s anxiety, for there to be supervision. I say anxiety because, in submissions, the solicitor for the mother raised an allegation of potential physical or psychological harm to the child which no other party recalled had been raised previously. It was submitted that:
There is also my clients concerns about the father’s history. Her concerns about his comments which I think came out in the hearing of this matter in relation to a discussion about car insurance, oddly enough, his comment that if he dies he wants the child to die with him. That is a worrying comment. I’m pretty sure it was during the hearing or one of the following discussions about what orders to make. I think it was on the 16th that we had discussion about cars in Belgium and insurance and what was covered. In any event there also have been, my clients instructs, recent comments by the father that he wishes to commit suicide. There are concerns of that nature. They are my clients concerns.
As indicated, neither party has evidence before the court so I cannot make any findings in relation to alleged recent comments by the father.
As matters stand, supervision in this case is to protect the enjoyment of the time to be spent between the father and X from being disrupted or interfered with by any other person and/or any other manifestation of the high degree of parental conflict present in this case.
The parties agree that the supervisor proposed by the independent children’s lawyer, Ms AB, is an appropriately qualified person. The mother and father could not agree on a supervisor. The ability of the independent children’s lawyer, to provide a solution to that impasse, is emblematic of the benefit of independent children’s lawyers being requested in Hague abduction cases involving young children.
The matter that remains in issue between the parties, and for determination by me, is the cost of supervision. It’s expensive. It is $170 per hour including travelling time and a charge per kilometre of driving.
I was familiar with aspects of the parents’ lives and economic situation when I heard this matter in 2021 but there is no evidence as to the financial situation of either of the parents as of today. As indicated, there is no evidence at all.
I recalled from the earlier proceedings that there was the sum of approximately $117,000 which had been provided by the father towards the acquisition of property in Australia to which both parents would have an entitlement notwithstanding that it would be registered in the name of the mother. That was a property which was ultimately acquired and is described in paragraph 60 of my reasons for decision dated 8 December 2021.
This morning, I asked the solicitor for the mother what had happened to those funds and she said that the funds were untouched, that they remained intact. Her client was present when she made the statement that the monies were “in a separate fund that the mother has not accessed… that would be the subject, I presume, of property settlement in due course”. The mother did not demur from that statement in spite of periodically interrupting the proceedings on other occasions.
This afternoon it was submitted by counsel for the father that the mother could access some of those funds to pay the reasonable cost of the supervisor. The mother’s solicitor, Ms Saladino, then stated that none of the AUD$117,000 remain. The funds have all been spent by the mother on living expenses and senior counsel’s fees to oppose the return application. Notably, payment of fees for senior counsel at the trial would have been known to the mother’s solicitor who has certain obligations to make costs notifications.
The solicitor for the mother further stated that the parents have entered into “a property settlement” whereby it is agreed that each would retain a house. To wit, the father has a house in Belgium and the mother has a house in Australia. Mr Barbyannis, for the father, did not have instructions that there has been any such “property settlement”. His client is in transit to Australia and not contactable.
Whatever has happened to the funds which were paid by the father for the specific purpose I am currently satisfied that, at this moment, any part of those funds is beyond the reach of the father and the court.
The priority is for the father to be able to spend time with X and X with the father. I have no confidence in the mother paying for any part of the supervision costs even if I make an order that she do so. I am mindful of the time it has taken her to finalise the child’s passport application in spite of being ordered in April 2022 to do so. The supervisor must be paid. I am not prepared to endanger the feasibility of the spend time arrangements going forward.
I will make the father responsible in the first instance for payment of the reasonable costs of the supervision. However, I make clear that the father is at liberty to seek to recover those moneys from the mother, if he chooses to do so, in any court which has jurisdiction to entertain such an application.
I acknowledge that primary jurisdiction to make orders (take protective measures) rests with Belgium by virtue of the mother’s wrongful retention of X in Australia. This is provided for in s 111CE of the Act which gives expression to Article 7 of the 1996 Child Protection Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) which provides:
(1)In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and
a)each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
b)the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.
(2)The removal or the retention of a child is to be considered wrongful where -
a)it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b)at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
(3)So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.
My orders for spending time and supervision are urgent orders within the meaning of s 111CD(1)(b)(i) of the Act which gives expression to Article 11 of the 1996 Convention. Article 11 of the 1996 Convention provides:
(1)In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.
(2)The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation.
(3)The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question.
This is subordinate jurisdiction which can be exercised by the courts or authorities of the state in which the child is present when they do not have primary jurisdiction under Article 5 of the 1996 Convention.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 23 November 2022
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