Department of Communities and Justice & Hays (first return date)

[2022] FedCFamC1F 875

Federal Circuit and Family Court of Australia

(DIVISION 1)

Department of Communities and Justice & Hays (first return date) [2022] FedCFamC1F 875

File number(s):

SYC 2382 of 2022

Judgment of:

BENNETT J

Date of judgment:

12 April 2022

Catchwords:

FAMILY LAW – CHILD ABDUCTION – final return date – ex parte application considered but respondent father was located and his solicitor participated – where orders made to safeguard location of children and to restrain the respondent father from doing certain acts or things – where orders are urgent orders within meaning of Article 11 of the 1996 Child Protection Convention.

FAMILY LAW – CHILD ABDUCTION –request that independent children’s lawyer be appointed.  

Legislation:

Family Law Act 1975 (Cth)

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Division:

Division 1 First Instance

Number of paragraphs:

23

Date of hearing:

12 April 2022

Place:

Melbourne (via MS Teams)

Solicitor for the Applicant:

Ms Srinivas, DCJ Legal Department of Communities and Justice

Solicitor for the Respondent:

Mr Chris Dimock, Dimocks Family Lawyers

ORDERS

SYC 2382 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

DEPARTMENT OF COMMUNITIES AND JUSTICE

Applicant

AND:

MR HAYS

Respondent

order made by:	BENNETT J
DATE OF ORDER:	12 APRIL 2022

THE COURT ORDERS THAT:

1.On the assurance given to the Court this day by Mr Chris Dimock, Solicitor, of Dimocks Family Lawyers that he has instructions to accept service of documents on behalf of the respondent Mr Hays (“the respondent father”), until a notice of address for service to the contrary is filed, the address for service of Mr Hays be noted in the records of the court as Dimocks Family Lawyers located at 17 Castlereagh Street, Sydney NSW 2000, postal address GPO Box 3255, Sydney NSW 2001 DX 197 Sydney.

2.Paragraphs (a) to (f) inclusive and (h), (i) and (l) of the orders sought by the applicant, being the Secretary of the NSW Department of Communities and Justice (“the applicant SCA”), in the Form 2 application filed on 8 April 2022 (“the application”) proceed urgently and on very short notice to the respondent father.

3.The application be adjourned before me on Friday 29 April 2022 at 9:00 a.m. (“the adjourned date”) for the purpose of confirming compliance with this Order and to otherwise ready the matter for trial.

4.The respondent father:

(a)forthwith confirm to the applicant SCA and in writing of the current residential address(s) of each of the children X (female) born 2011 and Y (male) born 2014 as NN Street, Suburb OO, New South Wales;

(b)forthwith confirm in writing to the applicant SCA that the children are attending Suburb OO Public School.

5.Until further order the respondent father:

(a)be and is hereby restrained from causing or permitting or suffering the said children, or either of them, to be assessed by a psychologist, counsellor, medical practitioner or like health professional for the sole or ancillary purpose of obtaining evidence for use in this proceeding without the prior written consent of the applicant SCA.

(b)be and is hereby restrained from causing permitting or suffering the children, or either of them, to be moved to reside at an address other than the address notified by him for that child pursuant to paragraph 4(a) of this Order. 

6.Until further order the respondent father, his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, X (female) born 2011 and Y (male) born 2014, from:

(a)New South Wales;

(b)the Commonwealth of Australia –

AND IT IS REQUESTED that the Australian Federal Police give effect to this Order.

7.That until further order, the respondent father, Mr Hays born 1980, be and is hereby restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order.

8.Paragraph 6 of this Order applies mutatis mutandis to the requesting parent, Ms Hays born 1981 of PP Street, City B, United Kingdom.

9.Until further order, the names of:

(a)the respondent father, Mr Hays born 1980;

(b)the children, X (female) born 2011 and Y (male) born 2014 -

be placed upon the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.

10.Unless the Court orders otherwise, the preceding paragraph of this Order, which places the names of the respondent father and the children on the Family Law Watchlist shall lapse 12 months from the date the names were placed on the Watchlist.

11.Until further order, the respondent father surrender forthwith to the Registrar of the Federal Circuit and Family Court of Australia, all current passports and air tickets relating to himself and/or the children, X (female) born 2011 and/or Y (male) 2014. IT IS DIRECTED THAT the Registrar of the Court provide to the other parties to proceedings, upon written request, a copy of all or any of the documents surrendered by the father pursuant to this Order.

12.The children be placed in the custody of the applicant SCA until further order and in the event that the applicant SCA proposes to take possession of the children they provide the respondent father with appropriate notice of that intention.

13.The applicant SCA may, in his/her discretion allow the children (or either of them) to remain in the care of the respondent father on such terms and conditions as the applicant SCA thinks fit subject to any order of the court to the contrary and, for this purpose, the respondent father do all acts and things necessary to enable the applicant SCA to access the children and the suitability of arrangements made by the respondent father for the accommodation, education and care of the children.

14.Identification by a person as an officer of the NSW Department of Communities and Justice is sufficient proof that the person so identified acts with the authority of the applicant SCA for the purpose of taking possession of the children (or either of them), giving or receiving notice or making directions in accordance with this Order.

15.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children X (female) born 2011 and Y (male) born 2014 be independently represented by a lawyer AND IT IS REQUESTED that the Legal Aid Commission of New South Wales arrange such representation and the independent children’s lawyer be appointed in sufficient time to:

(a)be able to speak to the children;

(b)to obtain and familiarise themselves with any social science evidence in relation to the children in the parenting proceedings in the United Kingdom and any statements or records held by the police or prosecuting authorities in the United Kingdom in relation to the interaction of the parents with each other and with the children;

(c)make recommendations about what interim parenting orders for access or communication between the requesting parent and the children ought be made;

(d)cause relevant subpoenas to issue; and

(e)investigate the preparedness of the parents to undertake a specialised Hague mediation.

16.Forthwith upon appointment by the said Legal Aid Commission of New South Wales or otherwise the independent children’s lawyer file a Notice of Address for Service.

17.IT IS DIRECTED that the application and this Order be sent to the Legal Aid Commission of New South Wales.

18.There be liberty to apply to all parties in relation to the mediation.

19.The applicant SCA cause a sealed copy of the application and this Order to be served on the respondent father as soon as possible.

20.Upon service of the application and this Order upon the respondent father, the respondent father promptly cause to be filed and served a Notice of Address for Service.

21.By not later than 28 April 2022, the respondent father file and serve:

(a)any Form 2A response upon which he proposes to rely, such Form 2A response to specify with precision any jurisdictional basis or exception to return under Regulation 16(3) relied upon by the respondent father to oppose the return of the children (or either of them) to the United Kingdom,

(b)the evidence upon which he relies;

(c)a statement of and any conditions to return sought by the respondent father.

22.The applicant SCA cause a sealed copy of the application and this Order to be served on the Proper Officer, Australian Federal Police as soon as possible by electronic means.

23.I dispense with the operation of Rule 6.27(2) to (3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 so that represented parties may cause an unlimited number of subpoenas to issue to give evidence and/or produce documents, without permission, and I reserve to all parties liberty to apply in relation to alleged abuse of the subpoena process, on short notice, by arrangement with my Chambers.

24.The orders sought by the applicant SCA at paragraphs (g) and (j) of the application be adjourned to the adjourned date.

25.I reserve liberty to the applicant SCA and/or the proper officer of the Australian Federal Police and/or the respondent father to make application urgently in relation to the care of the children, where they reside and where they attend school including making application to the courts’ after hours service.  If an application is sought to be made outside Court sitting hours, the applicant for orders may request that I be notified of any such application and such application be listed before me immediately in the event that I am reasonably available.  I direct that my associate keep the courts’ after hours’ service advised of how I may be contacted for the next 14 days.

26.The applicant SCA be responsible for bringing the contents of this Order (paragraphs 6 and 8) to the attention of the requesting parent.

27.I reserve liberty to the requesting parent to make application to vary or set aside this Order or as she may be advised.

28.I reserve liberty to the parties to apply generally on 24-hour’s written notice to the other parties.

29.My reasons for decision be transcribed and, when transcribed, a copy be placed on the Court file so it is accessible to each party.

AND IT IS NOTED:

A.That to the extent that Division 4 of Part XIIIAA of the Family Law Act 1975 (International Protection of Children) applies to these proceedings the orders in relation to the care, custody and location of the child and / or directed to restricting the movement of the children are orders made pursuant to s111CD(1)(b)(i) of the Act being Commonwealth personal protection measures taken for the children’s protection as a matter of urgency.

B.That pursuant to s 68L(3) I am satisfied that the appointment of an Independent Children's Lawyer is warranted having regard to Australia’s obligations under the United Nations Convention on the Rights of the Child and the likelihood of the respondent father relying on the children’s objection to return as an exception to mandatory return.

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 Department of Communities and Justice & Hays has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
EX TEMPORE

BENNETT J:

1. This matter comes before me as the first return date of the application of the Secretary of the Department of Community Justice for New South Wales in his capacity as State Central Authority.  The applicant State Central Authority, seeks the return of two children, X, aged 11 years, and Y, aged eight years, to the United Kingdom, pursuant to the Family Law (Child Abduction) Regulations 1986.

2. The 1980 Abduction Convention entered into force between Australia and the United Kingdom on 1 January 1987.

3. The respondent to the application is the children’s father, Mr Hays.

4. This hearing was conducted on the Court’s MS Teams platform.  At the commencement of these proceedings, which was without the participation of the respondent father or his solicitor, I was satisfied that the applicant State Central Authority, ought to be able to proceed with paragraphs A to F (inclusive) and H, I and L of the application.  The other orders sought are more appropriate for a final hearing.

5. This matter was listed ex parte at my direction given the nature of the proceeding and the fact that the whereabouts of the children was said to be not known.  Ms Srinivas, solicitor, appeared on behalf of the applicant State Central Authority.  Shortly after the commencement of the matter, Ms Srinivas indicated that the respondent father had been in contact with the Australian Central Authority.  Ms Srinivas informed the Court that, whilst the respondent father would not disclose the place of residence of the children, he did inform the Australian Central Authority that he had retained Dimocks Family Lawyers, solicitors, of Sydney, to act on his behalf. 

6. I directed Ms Srinivas to contact Dimocks Family Lawyers and ask if they would confirm that they would accept service of documents on behalf of the respondent father.  After a series of telephone calls to Mr Chris Dimock, solicitor, it was confirmed that Dimocks Family Lawyers are to be the solicitors on the record for the respondent father. 

7. I will not traverse the facts of the case because they are thoroughly set out, indeed with repetition, in the application. 

8. It is alleged that the children were wrongfully removed by the respondent father from the United Kingdom in late 2021, contrary to the rights of custody of the requesting parent and without her consent.  In the alternative, it is alleged that the children were wrongfully retained by the respondent parent in either late 2021 or early 2022, contrary to the requesting parent’s rights of custody and without her consent.

9. I am informed that the application is posed in the alternative, to cover the contingency of the Court finding that a discussion between the parents by text on 30 December 2021, which appears at page 82 of the application, would be construed as some form of consent.  Retention and removal are mutually exclusive concepts under the 1980 Convention.  They are not sequential.  No doubt this subtle point will be examined thoroughly in the fullness of time. The purpose of particularising a wrongful removal or retention is to afford the respondent procedural fairness.  That has been done.

10. For the purpose of today’s proceedings, I am satisfied prima facie that the children were wrongfully removed.  At the time of the children’s removal from the United Kingdom, there were parenting proceedings about the children pending in the United Kingdom, so there may also be an issue about whether the removal was also contrary to the rights of custody of the Courts in the United Kingdom. 

11. I stood the matter down for Mr Dimock to obtain instructions from Mr Hays, and when the Court reconvened, Mr Hays participated.

12. I note that it is alleged that on two occasions the respondent father has taken one or other of the children to a general medical practitioner to obtain evidence to the effect that child was unable to board an aeroplane.  I am not pre-judging this matter.  I accept that the child may have been unfit to travel; however, it is important the children who are the subject of proceedings in this Court be protected from being taken from one health professional to another for the purpose of generating evidence for use by one party in the case. Accordingly, I indicated to the applicant, State Central Authority that I would make an order which restrains the father from causing or permitting the children to be taken to any health professional for the purpose of generating evidence for the sole or ancillary purpose of generating evidence for use by him in this case.  

13. I will make orders providing that the respondent father is required to file his form 2A response, specifying any grounds upon which he relies to oppose the return of the children to the United Kingdom, the evidence upon which he relies and a comprehensive statement of any conditions which he seeks be imposed on the return of the children to the United Kingdom (should such return be ordered).

14. Early in the proceedings, Mr Dimock indicated that an earlier date of 21 April could not practically be met by the respondent father because of intervening Easter holidays.  There is merit in that submission, so I have extended the period to allow seven clear working days for the respondent father’s material to be filed.  This might still seem like a short period of time.  However, the respondent father has had the children in Australia since January 2022.  An application under the Regulations for the return of the children to England under the 1980 Convention has been within the father’s reasonable contemplation. The respondent father has had an extended period of time to marshal together the evidence upon which he will rely in a proceeding such as this.  The ambit of the proceeding is narrow.  These are proceedings under a forum selection treaty.  They are not nearly as wide-ranging as welfare proceedings in relation to parenting orders. 

15. Once the respondent father participated in the proceeding, he readily informed the court that he and the children reside alone at rented premises at NN Street, Suburb OO in New South Wales.  This is rental accommodation in respect of which the husband signed a one-year lease in or about January or February 2022.  Prior to that, the respondent father and children resided in an Airbnb for two weeks and then for a month in a hotel in Suburb QQ.  The respondent father informed the court that the children are attending Suburb OO Public School and have for the duration of this school year to date.   The father identified that children’s general treating medical practitioner. 

16. I will make the raft of protective orders in relation to the whereabouts of the children, including restraint on the respondent father from moving the children out of New South Wales and out of Australia.  Whilst it is not contemplated that the requesting parent, Ms Hays, will arrive in Australia at any point in the future, the orders restraining the movement of the children outside New South Wales will apply mutatis mutandis to her.  The order which was opposed by Mr Dimock was the order that places the children in the care and custody of the applicant State Central Authority.  Mr Dimock submitted that now the whereabouts of the children is known, details of their education and healthcare has been provided by the respondent father to the court,  the applicant State Central Authority need not be concerned about the children. That would be a persuasive argument if the applicant State Central Authority had been placed in a position of being able to verify prior to this morning’s hearing that the details provided by the respondent father are correct. 

1. I will proceed to make the order which places the children in the care and custody of the applicant State Central Authority, which is also, of course, the Department of Community and Justice for New South Wales.  I do so mindful of Australia’s obligations under the international treaty for selection of a forum and that it is the duty of the Commonwealth Central Authority, on delegation to the State Central Authority, to do or to coordinate the doing of anything that is necessary to enable the performance of the obligations of Australia under the 1980 Convention and to do everything that is necessary or appropriate to give effect to the Convention (see regulation 5).

2. The most elementary aspect of this is to locate the children and ensure that they are safe pending the final disposition of these proceedings.  The applicant State Central Authority has indicated through Ms Srinivas that it will not take possession of the children and place them into care unless there is something that the applicant is satisfied requires the children to be removed from the father.  In the event that the applicant does propose to remove the children from the father, they should give the father such notice as is practicable and then all parties can activate the liberty to provide mechanisms provided for in this order. 

3. I anticipate that, if the applicant State Central Authority makes an assessment of the living arrangements of the children, their educational arrangements are in order and their educational arrangements are in order that the children will remain in the care of the father pending the final disposition of these proceedings. 

4. The next order I make is for the appointment of an independent children’s lawyer. Section 68L(3) of the Act provides that in proceedings of this nature, the court may order that a child’s interests in the proceedings be independently represented by a lawyer only if the court considers that there are exceptional circumstances that justify doing so, and it must specify those circumstances in making the order. X and Y are respectively aged eleven and eight years. Mr Dimock has confirmed that his client will be relying on the children’s objection to return as a regulatory exception to the application being granted. Accordingly, the court will be required to assess the stated objections of each of the children and whether that objection shows a strength of feeling beyond a mere expression of a preference or ordinary wishes and the maturity of each child. It is imperative that it is consistent with the international implementation of the 1980 Convention that where there is the capacity for the interests of children to be represented independently in proceedings, independent representation be available to children where one of the exceptions upon which the return of the children to the contracting state is relied is the child’s objection to return. That is, the children must be given a voice in these proceedings. Not that the independent children’s lawyer is required to act in accordance with the expressed views or objections of the children, but the independent children’s lawyer is required to ensure that those views are put before the court.

5. An Independent Children’s Lawyer is appointed to act for children within the meaning of Division 10 of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Their role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what they believe to be the best interests of the child.[1]  They are not a legal representative retained by the child and they are not bound by any instructions from the child (or any of them).[2] The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the child is fully put before the Court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The Independent Children’s Lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings,[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is possible and in the best interests of the child to do so.[4]

   [1] Family Law Act 1975 (Cth) s 68LA(2).

   [2] Family Law Act 1975 (Cth) s 68LA(4).

   [3] Family Law Act 1975 (Cth) s 68LA(5)(d).

   [4] Family Law Act 1975 (Cth) s 68LA(5)(e).

6. I have included in the orders a set of tasks for the independent children’s lawyer.  In the preliminary stages, it will be to introduce himself or herself to the children (if that is thought appropriate in the circumstances of this case), and to gather material.  Material which may be relevant to these proceedings could conceivably include the family report and social science assessments prepared for the parents’ proceedings in the United Kingdom.  A further task of the independent children’s lawyer is to investigate whether the parents are amenable to participate in specialised Hague mediation.  This would be a mediation of some three days duration, and, if there is interest, we could take the matter forward on the next occasion through either the court’s alternative dispute resolution processes or through a private organisation such as TT Service.

7. In the implementation of the 1980 Convention worldwide, it would, indeed, be exceptional in my view if the children in circumstances in which X and Y find themselves were not represented independently where such independent representation is available.  In the event of any party wishing to seek a discharge of the appointment of the independent children’s lawyer they may do so by making submissions to me in due course.

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