Department of Communities and Justice & Hays (No 4)
[2023] FedCFamC1F 458
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Communities and Justice & Hays (No 4) [2023] FedCFamC1F 458
File number(s): SYC 2382 of 2022 Judgment of: STRUM J Date of judgment: 11 May 2023 Catchwords: FAMILY LAW – HAGUE CONVENTION – CHILD ABDUCTION – Return order made in September 2022 – Appeal dismissed – Special leave to High Court refused – Father fails to return children to United Kingdom as ordered – Application by Department of Communities and Justice NSW as State Central Authority that children be placed in its custody in order to be returned to United Kingdom – Order made. Legislation: Family Law Act 1975 (Cth) s 121
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 11 May 2023 Place: Melbourne, via Microsoft Teams Counsel for the Applicant: Mr Guterres Solicitor for the Applicant: DCJ Legal The Respondent: Litigant in-person Solicitor-advocate for the Independent Children's Lawyer: Ms Phillips Solicitor for the Independent Children's Lawyer: Legal Aid NSW 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
INDEPENDENT CHILDREN'S LAWYER
order made by:
STRUM J
DATE OF ORDER:
11 MAY 2023
THE COURT ORDERS THAT:
To cause the implementation of the orders made on 30 September 2022 (amended on 3 October 2022):
1.The respondent father, Mr Hays (DOB: 1980) is restrained from contacting or corresponding with any airline until the children, X (DOB: 2011) and Y (DOB: 2014) (“the children”) are returned to the United Kingdom.
2.Leave be granted for the applicant to provide to any airline on which flights are booked, a copy of this order, the order made on 30 September 2022 (amended on 3 October 2022), and any other document it believes necessary to implement the return orders made by this court.
3.Until further order and to secure the welfare of the children pending the return of the children to the United Kingdom pursuant to this Order, the applicant have care and custody of the children and the children be placed in the care of such person, institution or other body as the applicant may from time to time direct and notify to all other parties in writing.
4.By way of arrangements for the return of the children to the UK in accordance with paragraph 4 of the order made by Strum J on 30 September 2022 (amended on 3 October 2022):
(a)the applicant be at liberty to nominate any such person(s), institution or other body as the applicant may consider suitable (“the accompanying people”) to accompany the children back to the United Kingdom;
(b)whether the father is notified of the arrangements for the return of the children to the United Kingdom be a matter within the discretion of the applicant;
(c)the applicant nominate a time and venue for handover of the children from the father’s care to the care of DCJ staff, and will notify the father and the independent children’s lawyer in writing of the time and venue; and
(d)the father present the children to attend the venue nominated for the handover as set out in Order 5 herein.
5.Unless any other arrangements are made by the applicant under Orders 3 and 4 herein, a handover of the children into the custody of caseworkers employed by the applicant is to occur at 11.00 am on Thursday 11 May 2023 at the Court Children’s Service of the Sydney Registry of this Court and it IS REQUESTED that the Court Children's Service of the Sydney Registry be made available for this purpose.
6.The applicant be at liberty to make arrangements for the children to return to the United Kingdom, subject to the following further condition being met by the mother, Ms Hays (DOB: 2014):
(a)Ms Hays reimburse the reasonable cost of transport, airfares and incidental expenses of the children and the accompanying people for the children to be returned to the United Kingdom including all reasonable costs by way of airfares, transport and accommodation (but not wages or salary) for the accompanying people to return to Australia following the return of the children to the United Kingdom.
7.The applicant notify the father within 24 hours of the children’s departure from Australia.
8.A warrant for the apprehension or detention of the children be issued, pursuant to regs 14, 15 and 31 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), authorising and directing the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the New South Wales Police Force and all other Police Officers in all other states and territories of the Commonwealth to find and recover the children, and to deliver the children to the applicant or such person or institution as the applicant nominates.
9.The warrant issued pursuant to the immediately preceding paragraph of this Order lie in the Registry, and not be acted upon, pending further order of the Court.
10.Liberty is reserved to each party to make urgent application by email to the chambers of the Honourable Justice Strum for the warrant to be activated.
11.If the warrant is acted upon and issued, a copy of this Order and the warrant be sent immediately by electronic means to the AFP Operations Coordination Centre by the Melbourne Registry or the After Hours Service.
12.If the father takes or attempts to retake possession of the children after execution of the warrant, he may be arrested without warrant.
13.A sealed copy of this Order be provided forthwith to the Marshall of the Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
14.The Marshall of the Federal Circuit and Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to this Order.
15.That there be liberty to the applicant to apply urgently by email to the chambers of Justice Strum to relist the matter before Strum J (or another Judge of this Court if his Honour is not reasonably available) in relation to implementation of this Order and in respect of any machinery provisions for the return of the children to the United Kingdom.
16.The applicant deposit the father’s UK and Australian passports with the Sydney Registry of this court within 3 business days of the children returning to the United Kingdom and notify the father within 24 hours of his passports being so deposited at the Registry.
17.The Registrar of the Court IS DIRECTED to release the father’s passports to him upon receiving notification from the applicant of his passports being deposited at the Sydney Registry of this court.
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
DELIVERED EX TEMOPORESTRUM J:
On 30 September 2022, I made orders and delivered reasons for judgment which required the children, X, born 2011, who is now 11 years of age, and Y, born 2014, who is now nine years of age, (“children”) to be returned to the United Kingdom, which I found to be their place of habitual residence, having been wrongfully retained by the father, Mr Hays (“father”), from the United Kingdom in the Commonwealth of Australia. I dismissed the various objections to jurisdiction and defences that the father raised to their return.
Thereafter, the father appealed from those orders to the Full Court of this Court, the appeal was dismissed on 16 January 2023, following which he brought an application for special leave to appeal to the High Court of Australia, which was refused. The matter then came back before me on 18 April 2023 to enforce my return order given the passage of time since then, given the appeal and the special leave application. I acceded to that application.
As a result of the orders I made on 18 April 2023, the Independent Children’s Lawyer was to meet with the children, facilitated by the Department of Communities and Justice (as the delegated State Central Authority for NSW), on 24 April 2023, to explain my orders to the children and that they would be returning to the United Kingdom. That was in circumstances where I was told by the father that he had booked airline tickets for the children and him to return to the United Kingdom on 26 April 2023.
As a result of the meeting on 24 April 2023, a file note or short form report was prepared by Ms HH, a case worker with the Department of Communities and Justice, which is Annexure B to the affidavit of Ms T filed on 9 May 2023 in support of the Application in a Proceeding by the State Central Authority. Ms HH noted therein that, prior to the commencement of the meeting, the children appeared relatively reserved, but they nevertheless engaged with Ms Phillips, the Independent Children’s Lawyer, about their sporting and school activities. However, upon hearing about the order, Ms HH reports that:
… the children immediately became very distressed and angry. They got up, kicking a chair over and started crying and shouting “I am not going back to [the United Kingdom]”. [X] and [Y] also made threats to harm themselves. [X] expressed she would kill herself before she has to get on the plane. [Y] expressed that he would strangle other passengers on the flight. [Y] behaved in a physically impulsive manner, pacing, turning a chair upside down, appearing as though he was going to lunge toward Ms Phillips, making verbal threats toward Ms Phillips saying he will “nail her to the floor”, and attempting to flip the meeting table. [Y] also reached over to slap Ms Phillips’ hand and kicked another solicitor who was present in the room. Both [X] and [Y] stated “It’s my life and no one can make this decision about my life”. The children were unable to be redirected, appeared to hold a lot of nervous energy, and were continuing to scream and yell.
Concerning, at first blush, as the children’s behaviour might appear, viewed in the factual matrix of this case, with which I am well familiar, having heard evidence and submissions over some four days in July 2022, in my view, that reaction is not surprising. It is consistent with the tenor of the behaviour that was the subject of evidence before me at trial, but which nevertheless culminated in the making of the return order.
Insofar as the children are reported to have said to Ms HH and Ms Phillips that “it’s [their] life and no one can make this decision about [their] life”, I note that the children are aged 11 and nine years of age, and those statements are, again, consistent with the evidence and my findings regarding the father's attitude towards these young children. For present purposes, I infer that that opinion of the children, such as it is, is one that has been engendered in them by him.
Notwithstanding the orders I made on 18 April 2023, after the report of Ms HH was provided, the father appears to have seen fit unilaterally to provide it, a document prepared in and for the purposes of these proceedings, to RR Airline, the airline with which he and the children were booked to travel to the United Kingdom in early 2023. I take a dim view of that action, in circumstances where the father was already anticipating at the hearing before me on 18 April that he wanted the children assessed for their ability to fly, as he was purportedly concerned about his liability to RR Airline. I have read his exchange of correspondence with the State Central Authority, as well as his submissions which he has prepared himself for the purposes of today’s hearing. In relation to the submission made by counsel for the State Central Authority that, in providing Ms HH’s report to RR Airline, the father breached of s 121 of the Family Law Act 1975 (Cth) (“Act”) , I pass no comment at this stage in relation thereto.
In any event, as I have said, the father unilaterally saw fit to provide that document to RR Airline which, acting upon that document, and without the benefit of any other material, appears to have placed the children on some form of flight prohibition list.
A few hours before the children were due to leave Australia and returned to the United Kingdom with the father, he wrote to the State Central Authority advising that, because the children had been placed on the flight prohibition list by RR Airline, they would not be able to depart. That email was sent at 9.13 am on the day the children were due to leave.
Annexed to the affidavit relied upon by the State Central Authority are discharge summaries in respect of both children, prepared by the SS Hospital. Those discharge summaries make it abundantly clear that the children were admitted to and discharged from that hospital on the date when they should have been returning to the United Kingdom.
The two reports are in largely the same, if not identical, form. They relevantly disclose that both children presented to the facility with “MH”, which it is submitted means “mental health” issues, namely, suicidal ideation. In relation to their return to the United Kingdom, they were otherwise assessed as being “well”. I note, in particular, that the person who completed the discharge summary refers to the children presenting for a mental health assessment due to, in the case of X, “expressing suicidal ideation when she’s advised she is court-ordered to fly to the UK”, and similar terms in relation to Y, and the notation they were otherwise “well”.
What that document does not make clear is whether the children expressed suicidal ideation to anyone at the SS Hospital, or whether their expression of suicidal ideation was simply something that the father had reported to the hospital. In any event, both children were assessed by the hospital and thought to be in a “situational crisis”. It was relevantly noted that both children were known to the Department of Communities and Justice and that they see a general medical practitioner regularly, together with a notation in relation to both children that it was advised that they see their that medical practitioner for ongoing review:
And if a comprehensive [mental health] assessment is required this will be by a consultant Psychiatrist in the community.
Notwithstanding their admission to the SS Hospital, there is no evidence that the hospital considered on that date that a comprehensive mental assessment was required. They simply alluded to the possibility of it and to attending their general medical clinic. I also have in evidence before me what are said to by medical certificates issued by a Dr DD of EE Medical Centre the following day. In respect of each of those reports, it simply says that each of the children “will be unfit to fly to UK [for three months] inclusive due to the psychological harm it would cause”, without more.
There is no description of what that “psychological harm” might be. There is no explanation as to why the children would be unfit to fly for three months. Both certificates note, in a possibly partisan fashion, that the children's father is “rightly” concerned for their mental health and the children were referred for a psychiatric opinion. Again, I do not know, what it is that the father told the general medical practitioner, but this is not the first time that he has sought to rely on such medical certificates, devoid of any particularity. Certificates in similar terms were before me in evidence at trial last year. I made observations, in my reasons for judgment delivered on 30 September 2022, as to the paucity of information in those certificates and, in my view, the present certificates are no different in form.
Of relevance in considering this application is Annexure G to the affidavit of Ms T. It is an email dated 27 April 2023 at 5.00 pm, again from Ms HH, the case worker with the Department of Communities and Justice. In that email, she recounts a telephone call that she had with the SS Hospital Child and Youth Mental Health Clinician. The contents of that email are clearly admissible under the evidentiary provisions of the Family Law (Child Abduction Convention) Regulations 1986. She reports on her conversation as follows; she says that the “[c]oncerns were linked in to [sic] previous concerns about scripted answers [and] controlling behaviour from the father.”
Scripted answers and controlling behaviour from the father, again are consistent with matters that were in evidence before me at trial and were considered by me in my reasons for judgment.
Ms HH describes what was reported by the children and their observed behaviour, which is no different in substance to what appears in her report of 24 April 2023 and in the material from the hospital. Importantly, in my view, Ms HH reported that, according to Mr UU, who is the Child and Youth Mental Health Clinician, and therefore, a person with some experience in mental health issues:
•According to [Mr UU], he can’t really put a finger to it but “Dad seems off”; he was pleasant, polite and engaging but seems to be looking to getting some documentation from them around children not being suited to fly. All [Mr UU] could do is to refer them back to treating doctors.
•When the children are not talking about leaving country, they are fine.
She continues:
[Mr UU] believes there’s no substance in that, could not get more information. [Mr UU] also believes there’s no substance to her saying she wants to “kill herself” either. When asked how she was going to kill herself, she said she will find a knife on the plane and cut her wrist and slit her throat. When probed further about things like how she is going to acquire the knife, she would say she does not want to leave.
In my view, that report of what X said to Mr UU suggests that any suicidal ideation that may have been expressed by X is, on balance, more likely to be a cri de cœur - a cry for attention - and I say so in particular because of the statement that when X was probed further about things like how she was going to acquire the knife, she would simply say she does not want to leave Australia.
I have given the father the chance of returning with the children but, putting his case at its highest, he has been unable to secure their compliance and return to the United Kingdom. The UK authorities are unwilling or unable to fund the children’s return, including by sending a case worker, and I am in no way critical of them in that regard. Further, at present, it is unfeasible for the mother to accompany the children, given the present breakdown of their relationship with her. In the circumstances, the Department has made inquiries and the Minister for Families and Communities of New South Wales has approved for a Department case worker to be made available to support the return of the children to the United Kingdom, subject to a risk assessment. Insofar as the father says he wants a risk assessment, on the evidence before me, that will occur, but it will be undertaken by the State Central Authority. The evidence further establishes that, on 6 May 2023, the mother, through her solicitor in the United Kingdom, confirmed that she was able to pay the reasonable costs of the return, including the cost of the case workers, and that is one of the conditions precedent which the Department seeks and which appears be likely to be met. Ms T’s affidavit confirms:
24.DCJ caseworkers are in the process of conducting a risk assessment for the travel, to ensure the appropriate supports are put in place to minimise any risks to the children, the caseworkers and other travellers during their return.
If there is an acceptable assessment by the Department of the children, appropriate steps will be taken either to ensure that, with assistance, they are returned. Otherwise, a further application may need to be brought by the Department but, hopefully, that will not be so. I have listened to what the father has said to me. I have noted his apparently emotional state but that did not interfere with his ability to put his case cogently today. He filed a document at 1.04 am this morning. I am certainly not critical of him for filing it out of Court hours, in circumstances where there was an abridgement of time. The document is headed ‘Written Submissions and Response to Application’ and I treat that document as his Response to the Application by the State Central Authority.
In my view, there is nothing to be gained from acceding to his submissions. He seeks that the hearing be adjourned for five days. He did not address me in relation to that or press that aspect of his application in his oral submissions to me today. In circumstances where the father has been unable to persuade or cajole the children, or to exercise appropriate parental authority to secure their embarkation willingly onto an aeroplane, it seems to me that leaving them children in his care for any longer, on balance, is likely to cause more harm than good.
The orders that the Department seeks is that the children be delivered to the Court today at 11:00 am. It is now 9.30 am. Whilst the father seeks that that time be extended to 1:00 pm for, amongst other things, the children and he to take a walk with their dog, I am concerned that any additional time will simply be to the detriment of the children. Further, given the father’s conduct, including his unilateral production of Ms HH’s report to RR Airline, without even putting the Department on notice that he was proposing to do so or seeking the leave of the Court to do so, I have little confidence that if the children are left in his care for any longer than is absolutely necessary, my return order may be further thwarted, as has already occurred. Insofar as the father wished to adduce further evidence from Dr DD, in my view, there is not much that Dr DD has said so far that is relevant.
Insofar as the father seeks to adduce evidence from Ms HH, she is, as I have already indicated, a case worker in the employ of the Department. It is not clear how he proposes to do so. I have been assisted today by both her report of 24 April 2023, as well as, in particular, her email 27 April 2023. Accordingly, I consider that I am amply seized of relevant information from her. The father did not address me as to why he might want to adduce evidence from a Mr VV, who is the half-brother of the mother. That is seemingly not a matter for this Court but, rather, for the UK Courts. I have endeavoured to make it abundantly clear to the father that I am not making any final determination as where these children will ultimately live. This is merely a forum dispute. It is a dispute that was meant to be determined, if not summarily, certainly, very speedily.
I gave this case four days of hearing in July 2022 so I could hear all the evidence that the father wished to adduce in support of his numerous defences, and numerous objections to the jurisdiction, all of which, having been carefully considered, I dismissed. It may be that, once these children are returned to the United Kingdom, if the father elects to participate in the pending proceedings there, that an order is made that the children live with him in the United Kingdom and even that the children be allowed to relocate back to Australia with him. I do not know, and I would not presume, in any way, to intrude upon the jurisdiction, power or discretion of the UK Courts in that regard.
What the father needs to understand, and what the children will need to understand, is that I am not making any final determination as to with whom and where they will live. All I have done, and am now enforcing, is a determination as to where that ultimate, substantive determination will be made, and that is in the country of their habitual residence, being the United Kingdom. In the circumstances, and for these reasons which I have delivered ex tempore, I propose to grant the application by the Department of Communities and Justice, which is supported by the Independent Children’s Lawyer.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 7 June 2023
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