Department of Communities and Justice & Hays (No 5 – Discharge Order)
[2023] FedCFamC1F 459
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Communities and Justice & Hays (No 5 – Discharge Order) [2023] FedCFamC1F 459
File number(s): SYC 2382 of 2022 Judgment of: STRUM J Date of judgment: 2 June 2023 Catchwords: FAMILY LAW – HAGUE CONVENTION – CHILD ABDUCTION – Where a return order made – Where the appeal dismissed and Special Leave refused by High Court of Australia – Where father unable or unwilling to return or facilitate return of children to United Kingdom – Where children placed in custody of Department of Communities and Justice NSW as State Central Authority to return them to United Kingdom - Where children subsequently and inexplicably returned care of father – Where father seeks discharge of return order - Where State Central Authority consents to a discharge of the return order – Where abrogation by State Central Authority of its duties under Family Law (Child Abduction Convention) Regulations 1986 (Cth) and Commonwealth of Australia’s duties under the Convention on the Civil Aspects of International Child Abduction signed at The Hague. Legislation: Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 1A(1),(2), 5(1)(a), 8(1), 9, 19A(2)(a)
Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 2 June 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 McMullen 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:
2 JUNE 2023
THE COURT ORDERS THAT:
1.There be final orders in accordance with the Minute of Proposed Consent Orders (as amended by the Court) sealed and marked with the letter “A” and annexed hereto and is directed that such Minute remain upon the Court file.
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).
“A”
THE COURT ORDERS, BY CONSENT, THAT:
1.The order made by the Honourable Justice Strum on 30 September 2022 (amended on 3 October 2022) that the children, X (female) born 2011 and Y (male) born 2014, be returned to the United Kingdom be and is hereby discharged pursuant to reg 19A(2)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
2.All other orders made in relation to the children, X (female) born 2011 and Y (male) born 2014 be and are hereby discharged.
3.IT IS REQUESTED that the Australian Federal Police remove the names of the children, X (female) born 2011 and Y (male) born 2014 and the father, Mr Hays born 1980 from the Family Law Watchlist.
4.The subpoena issued to the Department of Communities and Justice at the request of the father dated 25 May 2023 be set aside.
5.The children and the father’s passports be deposited by the applicant to the Sydney Registry of the Federal Circuit and Family Court of Australia within five (5) business days of the date of these orders and, thereafter, the father to be at liberty to collect the passports from the Registry.
6.The Independent Children’s Lawyer be discharged from 5.00pm on 16 June 2023.
7.All other extant applications be dismissed.
REASONS FOR JUDGMENT
DELIVERED EX TEMPORESTRUM J:
These ex tempore reasons for judgment are to be read in conjunction with my reasons for judgment delivered on 30 September 2022, 3 February 2023, 11 May 2023 and those of the Full Court delivered on 16 January 2023.
These proceedings have their genesis in an application by the Department of Communities and Justice of New South Wales (“Department”), as the delegated State Central Authority of that State, for the return of the children, X, born 2011, and Y, born 2014, to the United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
The trial of that application proceeded before me over four days in July 2022. I made orders and delivered reasons for judgment on 30 September 2022. At trial the father, who was represented by Senior Counsel and junior counsel, took every conceivable jurisdictional objection and ground of defence, going so far as to invoke the defence in reg 16(3)(d), that the return of the children would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms, notwithstanding the fact that that defence has not been successfully upheld in this country and that the children were being returned to the United Kingdom.
I carefully considered all of the father’s objections and defences and, having done so, I dismissed them all and made a return order in respect of the children to the United Kingdom, which I found to be their place of habitual residence, from where they had been wrongfully retained by him.
The father appealed to the Full Court of this Court, as was his right, and that appeal was dismissed on 16 January 2023. Thereafter, he sought special leave to appeal to the High Court of Australia, which was refused.
Subsequently, as the return date provided by my orders of 30 September 2022 had passed, the Department sought, by way of enforcement of my return order, a variation of the return date, which I granted on 18 April 2023. Thereafter, on 11 May 2023, I made orders placing the children in the custody of the Department in order to secure their return to the United Kingdom, the father being unable or unwilling to procure their return himself.
For reasons which I consider to be, at least in part, inadequate, the children were placed back into the care of the father the following day, being 12 May 2023, less than 36 hours later.
On 16 May 2023, the father brought a discharge application in respect of my return order. On 24 May 2023, I fixed that discharge application for hearing on 14 June 2023 and, in the interim, I granted leave to the Independent Children’s Lawyer and to the father to issue subpoenas and listed any objections thereto to this day.
Pursuant to that grant of leave, the father caused to be issued a subpoena to the Department, in respect of which it filed a Notice of Objection. In the meanwhile, the Department filed two affidavits yesterday, on 1 June 2023; one of Ms WW, sworn 26 May 2023 (she being employed by the Department) and the other by Ms T, sworn 1 June 2023 (she also being employed by the Department).
Those affidavits make it clear that the Department, in its capacity as the State Central Authority, as delegate for the Commonwealth Central Authority, is now either unwilling or unable to procure the return of the children, either jointly or severally, to the United Kingdom. This is confirmed in a written submission in support of the Department’s Notice of Objection to the subpoena to it, which was filed at 7.38 pm last night, in which, at paragraph [25], it is clearly stated that the Department of Communities and Justice:
…does not oppose the discharge application.
The order that is sought by all parties to be made by the Court today, for the discharge of my return order, is expressed to be made pursuant to reg 19A(2)(a) of the Regulations, which relevantly provides that the Court may -
… make an order discharging a return order, or a part of a return order, only if it is satisfied that:
(a) all the parties consent to the return order being discharged; …
I have clarified with, and been informed by, the legal representatives for the Department and for the Independent Children’s Lawyer, as well as the father, that all parties consent to the proposed order being made.
Rightly or wrongly (and I suspect the latter), that will bring these proceedings, which have consumed more than enough of both the time of the Court and the public purse, to an end. While Hague Child Abduction Convention proceedings, like all proceedings in this Court, are of a generally adversarial nature, namely inter partes as between the applicant Department (as the delegated State Central Authority for New South Wales), the respondent father and the Independent Children’s Lawyer, I am of the opinion that there is, at least, one salient difference. The judiciary is one of the three arms of government, the other two being the executive and the legislature. This Court is a creature of the Commonwealth legislature.
These proceedings were not brought under the Family Law Act 1975 (Cth) (“Act”) but, rather, under the Family Law (Child Abduction Convention) Regulations 1986, albeit that those regulations are made pursuant to s 111B of the Act, which provides that:
The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague […]
Australia ratified that Convention on 29 October 1986, and it entered into force in Australia on 1 January 1987.
Regulation 1A(1) of the Regulations provides that:
The purpose of these Regulations is to give effect to section 111B of the Act.
Regulation 1A(2) provides that the -
…Regulations are intended to be construed:
(a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b)recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and
(c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
Regulation 5 relates to the duties, powers and conventions of the Commonwealth Central Authority, which are set out in subregulation (1) and, in particular, paragraph (a) which provides that -
…the functions of the Commonwealth Central Authority are:
(a)to do, or co‑ordinate the doing of, anything that is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention…
Regulation 8(1) provides that:
The Attorney‑General may appoint a person to be the Central Authority of a State or Territory for the purposes of these Regulations.
In this case, the Department of Communities and Justice of New South Wales has been appointed to fulfil this role in that State.
Regulation 9 relevantly provides that:
Subject to subregulation 8(3), a State Central Authority has all the duties, may exercise all the powers, and may perform all the functions, of the Commonwealth Central Authority.
The preamble to the Convention on the Civil Aspects of International Child Abduction concluded at The Hague provides that:
The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions -
The provisions of the Hague Convention are thereafter set out.
I have found that the children were wrongfully retained from their place of habitual residence and made an order for their return thereto, which was upheld by the Full Court of this Court, with special leave to appeal to the High Court having been refused. I want to stress to all parties, but in particular to the Department, that Australia, as a signatory to the Convention and having ratified it into law in this country, has an obligation to protect children internationally from what is recognised by the Convention, and by the signatories thereto, as the harmful effects of their wrongful removal or retention. I cannot stress strongly enough my views about the harmful effects on these children by reason of their wrongful retention by the father, as made clear, in particular, in my reasons for judgment delivered on 30 September 2022.
In this sense, this Court, as one of the three arms of government, has a responsibility to ensure that the Commonwealth’s international obligations under the Convention are fulfilled. I am greatly troubled by the actions and attitude of the Department since 12 May 2023, when it returned the children to the father’s care after only some 36 hours, notwithstanding his vehement opposition to their return to the United Kingdom and the steps taken by him to prevent their return thereto. In this regard, I refer in particular to his frustration of their return in April 2023, when he was to accompany the children to the United Kingdom. He unilaterally contacted RR Airline, purportedly pursuant to their terms and conditions of carriage, leading RR Airline to place the children on a flight prohibition list, such that the airline would not allow them to board their aircraft. That was the subject of evidence by Ms T, of the Department, in her affidavit filed on 9 May 2023.
Unfortunately the Court’s hands are tied, in circumstances where neither the United Kingdom, nor more importantly the Department, as the New South Wales State Central Authority, are prepared to do what is required to secure the children’s return.
I make these observations in circumstances where, at present, there is an enforceable order for the children’s return. There is a pending discharge application in respect of that order which may or may not have been successful in relation to one or another or both of the children. Had that application proceeded to a contested hearing on 14 June 2023, I would, of course, have brought an open mind, as required, to the determination thereof. However, in circumstances where the State Central Authority now consents to the discharge of my return order, as does the Independent Children’s Lawyer, I will, with great, reluctance, make orders by consent in terms of the minute which has been provided to me by counsel for the Department. However, I consider the consent of the Department to be an abrogation of the obligations of State Central Authority and, by reason thereof, of the Commonwealth Central Authority and, in turn, the Commonwealth of Australia of its obligations under the Hague Convention. It will be recalled that, in my reasons for judgment delivered on 30 September 2022, whilst I was unable to make a positive finding that the children were the subject of parental alienation by the father from the mother, who is the requesting parent, I stressed that was not a finding that there had not been such alienation by him. That circumspection has since been fortified by the subsequent events in this case. Although I do not take lightly the children’s misbehaviour whilst in the all too brief care of Department, including X’s refusal to eat and alleged refusal to drink, as well as Y’s violence towards people and property, I view the Department’s recoiling from the prospect of mildly sedating them and/or using mild force in order to procure their embarkation (which the Department considered and discounted) as being a sorry abrogation by it of its – and Australia’s – international duties. It sends the wrong message to those who may contemplate wrongfully removing children to, or retaining them in, Australia from their places of habitual residence, which is what the Hague Convention was designed to overcome. It is to be hoped that, in the circumstances, the Attorney‑General of the Commonwealth may reconsider the terms and conditions upon which he appoints, and thereafter monitors, State and Territory Central Authorities for the purposes of the Regulations. The Convention confers benefits but also imposes obligations on the signatories thereto which have ratified it into their domestic law. Australia cannot expect to reap the benefits of the Convention without shouldering the burdens thereof too.
I certify that the preceding twenty-seven (27) 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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