Department of Communities and Justice & Papani (No 2)
[2023] FedCFamC1F 213
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Communities and Justice & Papani (No 2) [2023] FedCFamC1F 213
File number: MLC 3960 of 2022 Judgment of: BENNETT J Date of judgment: 15 March 2023 Catchwords: FAMILY LAW- PARENTING- Order to have any new proceedings for parenting orders listed before specific judge. Legislation: Family Law (Child Abduction) Convention Regulations (1986) (Cth) reg 14 Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 15 March 2023 Place: Melbourne (via MS Teams) Counsel for the Applicant: Mr Harris Solicitor for the Applicant: Legal Services Unit, Department of Family and Community Services Counsel for the Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Harris Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid ORDERS
MLC 3960 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: THE SECRETARY NEW SOUTH WALES DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND: MS PAPANI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BENNETT J
DATE OF ORDER:
15 MArch 2023
BY CONSENT THE COURT ORDERS THAT:
1.The application of the State Central Authority filed 14 April 2022 for the return of the child X born 2011 to New Zealand and Response Form 2A filed 21/12/2022 be and is hereby dismissed.
2.IT IS REQUESTED the Australian Federal Police remove the child’s name X born 2011 from the Airport Watchlist at all points of international arrival and departure in Australia AND IT IS DIRECTED that a copy of the order be sent electronically to the Australian Federal Police by the Registry of the Federal Circuit and Family Court of Australia.
3.The Respondent Mother Ms Papani be and is hereby at liberty to collect from the Registry Manager of the Court any passports of the child held for safekeeping by this registry of the Court.
4.That paragraphs 8-11 of orders made on 14 April 2022 (relating to the welfare of the child, injunctions against removal of the child from Australia, Victoria and current address, and surrender of the child’s passport) be discharged.
5.Paragraph 3 of Order made on 30 May 2022 (namely that existing orders of 14 April 2022 as described in paragraph 4 herein remain in full force and effect) be discharged.
6.The final hearing to commence on 15 March 2023 for an anticipated length of two days be and is hereby vacated.
IT IS DIRECTED THAT:
7.Henceforth the address for the respondent mother be noted in the records of the Court as E Street, Suburb F Victoria, and her email address as …@....
8.Henceforth the address for the paternal aunt, Ms B, who is a requesting person, be noted in the records of the Court as G Street, Suburb H New South Wales, and her email address as …@....
9.That the minute of orders be marked Exhibit “A” and remain on the Court file.
10.The heads of agreement as between the requesting parties, the mother and the independent children’s lawyer be marked Exhibit “B” and remain on the Court file.
IT IS FURTHER ORDERED THAT:
11.The appointment of the independent children’s lawyer be and is hereby discharged.
12.My reasons for decision be transcribed and, when settled, be placed on the Court file and a copy provided to the parties.
13.If there are any further proceedings initiated in relation to X, there be liberty to the parties or any of them to request that the matter be listed before me, if I am reasonably available, without any other court events or appearances before a Registrar. For this purpose, any party may send a copy of this Order and my reasons for judgment to the Chief Judge of Division 2 requesting that the application be accepted for filing, transferred to Division 1 and listed before myself or the Honourable Justice Williams.
NOTATIONS AS TO FUTURE PARENTING ARRANGMENTS FOR X
A.The paternal aunt and uncle MS B and MR C who were the requesting persons under the Hague Child Abduction Convention proceedings and the mother MS PAPANI who was the respondent mother have agreed upon the future parenting arrangements for the child X born 2011 as follows;
1. X continue to live with his Mother Ms Papani.
2.Ms Papani can make decisions regarding X’s day to day care, but she will consult with Ms B and Mr C if there are to be any major changes in X’s life. Ms Papani will not arrange or action X to live with or stay long term or substantially with any other persons/relatives without discussing such plans with Ms B and Mr C first. Noting that all three adults have guaradianship rights and obligation pursuant to orders of the Family Court Auckland of 2015.
3. X spend time and communicate with his aunt Ms B and the members of her household at times as agreed between Ms B and Ms Papani, with the following paragraphs setting out what is planned by each of Mr C, Ms B and Ms Papani to occur.
4. A weekly phone/video call between X and Ms B and her household, facilitated by Ms Papani at times agreed between Ms B and Ms Papani by texting/messaging each other to set up a mutually convenient time- noting that Sunday afternoons after 2pm Australian Time currently appears to be the best time for both families.
5. Ms Papani and Ms B will communicate with each other by phone/video call to initially support X joining in the calls with Ms B and her household until he feels comfortable to manage the calls himself if he wishes to do so.
6. Ms Papani and Ms B will consider downloading WhatsApp or something similar to their phone/electronic device to allow communication between X and Ms B’s household.
7. If Ms Papani is planning to travel to the Sydney area with X, she will contact Ms B beforehand to try and arrange for X to spend time with Ms B and/or members of her household at a mutually convenient time and location.
8. Ms Papani and Ms B will arrange for X to spend time with Ms B and her household in Sydney /Australia for 2 weeks or as otherwise agreed during the September 2023 school holidays, and in the September holidays in each year afterwards.
9. Ms Papani and Ms B will arrange for X to spend time with Ms B and her household in Sydney/Australia at times agreed during the Summer School holidays, noting that Ms Papani’s family have a planned trip to Country J during the summer holidays in 2023.
10. Ms Papani and Ms B will share the cost equally of any flights/travel arranged for X to spend time with Ms B and her household in Australia where he would not have been travelling otherwise to the destination.
11. If Ms B returns to living in New Zealand, Ms Papani and Ms B agree to discuss arrangements for X spending time and communicating with Ms B (and her household) there, then.
12. Ms Papani and Ms B will communicate with each other without X present at least once a month, to allow Ms Papani to keep Ms B updated about X’s health, education and wellbeing and to discuss matters relevant to their experience of parenting X.
13. At this time Ms B and Ms C are not seeking to be provided with authority to access X’s school reports and school information directly, but welcome being kept updated.
14. The parties agree that they will not use or allow physical discipline of X.
15. The parties agree if their communication with each other about X and parenting arrangements for him in accordance with this heads of agreement deteriorates and they are not able to overcome the impasse within 14 days, they will attend mediation at a place or with a person as mutually agreed and in default of agreement through Relationships Australia.
16. Ms B, Mr C and Ms Papani agree that before there is any contact between X and his father MR K, they will discuss how this would best occur, and if X travels to New Zealand to visit family there, it is intended that Ms L (paternal aunt) will be involved in such planning and discussions.
AND IT IS FURTHER NOTED BY THE COURT
A.Each individual party is aware of their right and have had the opportunity to seek legal advice regarding these orders and notations.
B.The independent children’s lawyer is permitted to provide a copy of these orders and notations to the father of the child subject of proceedings, Mr K, if an address is provided and he is not otherwise being informed by the NZ Central Authority or their nominee.
C.The individual parties acknowledge the agreement regarding parenting arrangements was reached at a Hague model mediation on 3 March 2023 and has not included the child’s father MR K who is currently in gaol in New Zealand and due for release in 2023.
D.The individual parties acknowledge they will need to seek legal advice regarding enforceability of parenting arrangements or orders for X, including the variation and/or discharge of orders made by the Family Court of New Zealand dated 2015.
E.The individual parties understand that the child’s father MR K is aware of the Hague proceedings in Australia requested by the NZ Central Authority and has chosen not to take part in such proceedings.
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 & Papani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
This matter comes before me on the date of what was to be the final defended hearing of an application made under the Family Law (Child Abduction) Convention Regulations (1986) (Cth) (“Regulations”) in relation to X born 2011 (“the child” or “X”), seeking a return of him to New Zealand pursuant to regulation 14 of the Regulations.
The parties to the proceedings are the Department of Communities and Justice for New South Wales in its capacity as State Central Authority, the respondent mother, Ms Papani and the Independent Children’s Lawyer who is Ms Carolyn Smith of Victoria Legal Aid, who is represented by Ms Harris of counsel today. Mr Harris (no relation to Ms Harris) appears on behalf of the State Central Authority.
The requesting party, the paternal aunt appears by audio-visual link from Sydney, New South Wales, and the other requesting party does not appear but seeks orders in the same terms, as does the paternal aunt. The mother has previously been represented but now represents herself.
The requesting persons to the Hague return application are the paternal aunt and uncle. They have requisite custody rights pursuant to orders made in New Zealand in 2015, which provided that X would reside with them and have supervised time with the respondent mother.
When this application first came before me early last year, the circumstances were somewhat unusual in that the applicant (then the State Central Authority for Victoria) ascertained that X was subject to orders obtained by the Department’s welfare/care/protection arm under state law. Accordingly, it was both the entity who brought the application on behalf of the Australian Central Authority and the body which had physical care of X under state law because he was in need of protection. The prosecution of the Hague application was promptly transferred by the Australian Central Authority to the State Central Authority for New South Wales. The protection order, currently being the family preservation order, continues in full force and effect. My reasons for decision delivered on 26 April 2022 and published in case neutral citation [2022] FedCFamC1F 919, explain the situation more fully.
A Child Impact Report was ordered by me and the first of those was released on 10 May 2022. There has since been another Child Impact Report published on 17 January 2023. The author of both reports is Ms N, who is a Senior Child Court Expert, attached to and employed by the court. Those reports have been available to all parties, including the requesting parties in full, unedited form.
In the last year, there has been an extensive process of exchange of information and negotiation. With the assistance of the Independent Children’s Lawyer, a specialised Hague mediation was convened on 3 March 2023. The attending parties were the respondent mother, the paternal aunt (on behalf of herself and her partner), the Departmental workers from Victoria and the Independent Children’s Lawyer. As is customary, the State Central Authority did not attend the mediation although, it certainly assisted to facilitate the mediation. I am informed today that all parties attending reached a resolution of the matter, whereby the Hague return proceedings would be dismissed. X would remain in Australia for the foreseeable future and there were notation or heads of agreement entered into between the respondent mother and the requesting parties, with the knowledge of the Departmental workers from Victoria as to parenting arrangements for X going forward.
Today, I have only made orders which, essentially, dismiss the Hague return application and discharge the protective orders which were in force to ensure that X remained in Australia, pending the outcome of the return proceedings. There are extensive notations as to parenting matters, but they do not constitute orders.
This is not a Court which is rule-bound and I would, obviously, have been flexible had a suite of documents – or at least a minute of order – been ready for me to consider today as an order to be made under the parenting provisions of the Family Law Act (1975) (Cth) between all appropriate parties. To be clear, I would have dispensed with any necessary rules of court to allow the requesting parties and the respondent mother to formalise arrangements between themselves which would necessarily take effect after the family preservation orders and the involvement of the Victorian Department of Families, Fairness and Housing ceased to be an operative order in relation to X. I would have permitted the requesting parties to appear, notwithstanding that their address for service was not necessarily within Australia. As it turns out, the address for service is actually an address within Australia. It is in Suburb H in New South Wales where the aunt has been living since late last year. I would have given the requesting parents and the respondent mother leave to make an oral application for orders to be made in terms of minutes which had been agreed, and without the need for any party to file an application or evidence in the form prescribed by the rules of court.
I would have made orders to which all parties agreed. However, even if I had done so, that would only have produced orders which were enforceable in Australia, and if post-Hague return proceeding orders are to be properly bedded down, it is usually that orders would need to be obtained in both or all relevant jurisdictions. So there would have needed to be a suite of orders, potentially made in New Zealand. Historically, the New Zealand authorities have not always adopted simplified proceedings to allow for arrangements to be wrapped between the two jurisdictions.
New Zealand is also not a party to the 1996 Child Protection Convention, so we do not have the mechanisms of recognition and enforceability of orders pursuant to that international instrument.
The reason that I have outlined that which could have happened but which has not happened is to explain the purpose of the only other order that I will make today, apart from those sought by consent. That is, any proceedings about X can be listed before me initially and without delay.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 30 March 2023
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