Department of Communities and Justice & Rodwell

[2021] FamCA 164

FAMILY COURT OF AUSTRALIA

Department of Communities and Justice & Rodwell [2021] FamCA 164

File number(s):

SYC 52 of 2021

Judgment of:

BENNETT J

Date of judgment:

23 March 2021

Catchwords:

FAMILY LAW – CHILD ABDUCTION – consequences of administrative delay.

Legislation:

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

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

Cases cited:

Handbury & State Central Authority [2020] FamCAFC 5

HZ v SCA (2006) 35 FamLR 489

Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC165

State Central Authority & Handbury [2019] FamCA 668

Number of paragraphs:

39

Date of hearing:

23 March 2021

Place:

Melbourne

Counsel for the Applicant:

Ms Cantrall

Solicitor for the Applicant:

Department of Communities and Justice

Counsel for the Respondent:

Ms Barnett

Solicitor for the Respondent:

Antunes Lawyers

Counsel for the Independent Children's Lawyer:

Mr Harris

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

SYC 52 of 2021

BETWEEN:

DEPARTMENT OF COMMUNITIES AND JUSTICE

Applicant

AND:

MR RODWELL
Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	23 MARCH 2021

THE COURT ORDERS THAT:

1.When the applicant Department of Communities and Justice complies with paragraph 33(a) of the order made 29 January 2021, the applicant Department of Communities and Justice detail any concessions made in relation to the status of the coronavirus pandemic in Portugal and any other related matters that have been agreed upon between the parties as being admissible as evidence in the proceeding.

2.By not later than 10am on Thursday 25 March 2021, the respondent father file and serve any amended Form 2A response upon which he proposes to rely NOTING THAT it has been indicated on his behalf that he will be adding intolerable situation to the exceptions to return upon which he relies.

3.That by not later than 10am on Thursday 25 March 2021, the Independent Children's Lawyer file and serve any Form 2A response upon which she proposes to rely with particular attention to whether it will be argued that this application is an application to which reg 16(2) applies on the basis that on 5 January 2020 the father repudiated the agreement to return the children to Portugal by a flight booked and departing on 8 January 2020 and the application was not filed until 7 January 2020 with the consequence that the court must consider whether the children or either of them are now settled within the meaning of reg 16(2)(c).

4.That by not later than 4pm on Thursday 25 March 2021, the applicant Department of Communities and Justice communicate to each other party to the proceedings and to the court whether it will argue that the children (or either of them) are not settled in Australia, if and only if the court is ultimately satisfied that the application is filed more than 1 year after the date on which the agreement for the return of the children to Portugal was repudiated.

5.On the first day of the hearing, being 31 March 2021, cross-examination of the requesting parent in Portugal not commence prior to 6.00 pm Melbourne time (7.00 am in Portugal).

6.The family consultant be available for cross-examination at 10am on 1 April 2021 and the independent children’s lawyer provide the required notice to Child Dispute Services.

7.The time for compliance by the applicant Department of Communities and Justice with paragraph 15 of the order made on 29 January 2021 be extended to 4.00 pm on 24 March 2021.

8.My reasons for decision this day be transcribed and, when settled, be placed on the Court file and a copy provided to the parties.

IT IS NOTED THAT:

A.The requesting parent and respondent father participated in a two part mediation in March 2021.

B.The Independent Children's Lawyer informs the court that there is electronic communication between the mother and children each Wednesday and Saturday between 7.00 pm and 8.00 pm Sydney time. Having regard to the hearing next week commencing on Wednesday 31 March 2021, the Independent Children's Lawyer requests that the parents give consideration to having electronic communication between the children and requesting parent on Tuesday between 7.00 pm and 8.00 pm Sydney time.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rodwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BENNETT J:

1. This matter comes before me as a compliance check in anticipation of the final hearing on 30 March of the application of the State Central Authority for New South Wales, filed on 7 January 2021, for the return of the children, X who is 15 years old, and Y, who is nearly 10 years old, to Portugal, pursuant to reg 16 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

2. The Regulations implement the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“1980 Convention”) into Australian law.  The 1980 Convention entered into force between Australia and Portugal on 1 January 1987.

3. I have made an Order today, most of which does not require explanation.  However, the issue of systemic delay in the filing of the State Central Authority’s Form 2 Application is a matter which does need to be recorded and considered in terms of procedures by the applicant State Central Authority and the Court for future applications.

4. The applicant State Central Authority for New South Wales is the Secretary of the Department of Communities and Justice.  The applicant is a model litigant.  As such it is required to act with complete propriety, fairly and in accordance with the highest professional standards.  The applicant makes the application pursuant to Australia’s obligations under the 1980 Convention and at the request of the mother, Ms Rodwell, who is in Portugal.  The requesting parent is a witness of the applicant.  She does not instruct the applicant.

5. The respondent is the father of the children.

6. On 29 January 2020, I made a raft of orders including a request for the appointment of an Independent Children’s Lawyer.  Ms Phillips of Legal Aid New South Wales has been appointed.  Fortunately, Ms Phillips has some experience in Hague return matters and the very particular role of an Independent Children’s Lawyer in these matters.

   BRIEF HISTORY

7. The requesting parent completed her request for a return under the 1980 Convention in September 2020.  The mother and the father married in Portugal in 2010.  X and Y were born and raised in Portugal.  In 2013, the father came to Australia to live and he is currently employed as a tradesperson with residence status in Australia.  The mother and father are not divorced.  By agreement, the children travelled to Australia to spend time with the father for the Christmas and New Year period of 2017/18 and returned to Portugal at the conclusion of that time, as arranged.  In September 2019, the father purchased airline tickets for the children to travel to Australia on 23 December 2019 and to return to Portugal on 8 January 2020.  On 17 December 2019 the mother gave formal written consent to the children travelling as agreed.  The children arrived in Australia on or about 23 December 2019.  It is alleged by the applicant that the father notified the requesting parent on 5 January 2020 that the children would not be returning to Portugal, as agreed, on 8 January 2020.  The children were not returned on 8 January 2020 and have remained living with the father in Australia.  It is alleged that the mother’s request for assistance under the 1980 Convention was preceded by negotiations between the parents.

   RELEVENT LEGAL FRAMEWORK

8. Not every retention of a child across international borders qualifies for a return of the child under the Regulations. The Regulations apply only to a retention that is wrongful within the meaning of reg 16(1A).  The pre-requisites to a finding that the retention was wrongful, and this Court having jurisdiction to order that a child be returned to another contracting state in respect of which the 1980 Convention  has entered into force, [1] are that:

   (a)the child is under 16 years (regulation 16(1A)(a); Article 4);

   (b)the child was habitually resident in the country they were removed from immediately prior to their removal (regulation 16(1A)(b); Article 4);

   (c)immediately prior to the retention, the left-behind parent had rights of custody in relation to the child under the law of the country of habitual residence (regulation 16(1A)(c); Article 3).  Rights of custody is defined by reg. 4 and includes rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child;

   (d)the retention of the child was in breach of the left-behind parent’s rights of custody (regulation 16(1A)(d); Article 3(a)); and

   (e)at the time of the retention the left-behind parent was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights had the child not been retained (regulation 16(1A)(e); Article 3(b)).

   The above pre-requisites to a return order are also referred to as jurisdictional facts. It is my understanding that the father concedes that the jurisdictional facts are met.

   [1]Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Art 35.

9. Once the jurisdictional facts are met, the application is identifiable as either:

   (a)an application which is brought within 12 months of the date of wrongful retention to which reg 16(1) applies; or

   (b)an application which is brought more than 12 months after the date of wrongful retention to which reg 16(2) applies. 

10. Regulation 16(2)[2]  provides that, if the Form 2 Application is filed more than one year after the wrongful retention, there is an opportunity for the respondent to “establish that the child has settled in his or her new environment”.  If the child has so settled, our jurisprudence holds that the Regulations do not apply and the summary return mechanism under reg 14 is not available.[3]

    [2] Implementing Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Art 12.

    [3]Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC165, 16.

11. If the application is brought within one year after the wrongful retention (or the respondent has failed to satisfy the Court that the children are settled as provided in reg 16(2)), reg 16(1) provides that return is mandatory unless one or more of the five exceptions to return is made out and the Court exercises its discretion to refuse return.

12. The exceptions to return are found in reg 16(3) and can be briefly described as:

    (a)The left-behind parent was not actually exercising rights of custody when the child was removed/retained and that those rights would not have been exercised if the child had not been so removed.  (Regulation 16(3)(a)(i) implementing Article 13(a));

    (b)The left-behind parent consented to or subsequently acquiesced in the removal or retention.  (Regulation 16(3)(a)(ii) implementing Article 13(a))

    (c)There is a grave risk that if returned the child would be exposed to physical or physiological harm or otherwise place the child in an intolerable situation.  (Regulation 16(3)(b) implementing Article 13(b));

    (d)The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views. (Regulation 16(3)(c) implementing Article 13); and

    (e)A return would be contrary to fundamental principles of freedom. (Regulation 16(3)(d) implementing Article 20).

13. Exceptions apply to each child individually, not as a group.

14. In this case, by his Form 2A Response dated 17 February 2021, the respondent alleges that:

    (a)The mother consented or acquiesced to X remaining in Australia providing that Y is returned to Portugal.

    (b)Both children object to being returned to Portugal.

    (c)The return of the children to Portugal would expose each of them to a grave risk of physical or psychological harm from family violence at the hands of the mother and/or from the siblings being separated.

15. Today I acceded to the oral application of Ms Barnett (counsel for the father) to file an amended Form 2A.  Ms Barnett informed the Court that the father would, inter alia, expand the exceptions to return upon which he relies to include an “intolerable situation” within the meaning of reg 16(3)(b).  The father’s amended Form 2A is to be filed by Thursday, 25 March 2021.  The timeframe is tight because the final hearing is listed to commence on 30 March 2021.

16. If the retention is wrongful and none of the exceptions to return apply, a return is mandatory.  In Hague return applications, the return of the child is not pre-conditioned on the best interests or welfare of the particular child.

17. If one or more of the exceptions to return are made out, the Court has a discretion to refuse to return the child.  Amongst other things, the best interests of the individual child will inform the exercise of the Court’s discretion to refuse return.[4]

    [4]HZ v SCA (2006) 35 FamLR 489.

    WRONGFUL RETENTION

18. The Form 2 Application includes a summary of the circumstances of the alleged wrongful retention of the children by the father.  Ms Keyzer, a solicitor in the employ of the State Central Authority, states in the Form 2 Application as follows:[5]

    After making several attempts to contact her children, Ms Rodwell received a call from Mr Rodwell via WhatsApp on 5 January 2020.  In that call, without any notice, Mr Rodwell informed the mother that he would stay with the children in Australia for one year and would not allow the children to return to Portugal.  The mother states there had been no dialogue or agreement on her behalf for the children to remain in Australia with Mr Rodwell.  She states she immediately expressed her displeasure and insisted that he return the children to Portugal on 8 January 2020 as agreed, in time for the children to start the new school year. 

    Ms Rodwell did not consent to the children’s ongoing retention in Australia from 5 January 2020, or in the alternative, from 8 January 2020. 

    [5] Form 2 Application filed 7 January 2021, 7 [18-19].

19. On 29 January 2021, I specifically asked counsel for the State Central Authority and the legal representative of the father about whether the father conceded that the children had been wrongfully retained and, if so, on what date.  As best I recollect, the father or his representative initially said 5 January 2020 but the father then interrupted and said that the retention occurred on 8 January 2020.  I noted the concession as a notation to the Order made on 29 January 2021. 

20. This mention is the first time that the matter has returned to Court since the appointment of Ms Phillips as the Independent Children’s Lawyer.  Today is the first occasion on which the potential relevance of the reg 16(2) has been discussed.

21. Today the Independent Children’s Lawyer has sought some time in which to consider her position in relation to the date of the wrongful retention.  I have ordered that the Independent Children’s Lawyer can file any Form 2A response upon which she relies by this Thursday.  The Independent Children’s Lawyer is not certain that she will file a Form 2A.  However, in my view, if the Independent Children’s Lawyer seeks to raise an issue not already in play as between the applicant State Central Authority and the respondent father, it is incumbent on her to accord them procedural fairness.  A means of according procedural fairness is to file a Form 2A.  The Independent Children’s Lawyer’s Form 2A is to direct:[6]  

    …particular attention to whether it will be argued that this application is an application to which reg 16(2) applies on the basis that on 5 January 2020 the father repudiated the agreement to return the children to Portugal by a flight booked and departing on 8 January 2020 and the application was not filed until 7 January 2020 with the consequence that the court must consider whether the children or either of them are now settled within the meaning of reg 16(2)(c).

    [6] Order made 23 March 2021, paragraph 3.

22. In relation to repudiatory retention, I have referred counsel for the parties to the recent Full Court authority of Handbury & State Central Authority [2020] FamCAFC 5 and my decision at first instance reported as case neutral citation number [2019] FamCA 668.

23. In my view it is reasonable that, if reg 16(2) is engaged, the applicant, as a model litigant, inform the other parties to the proceedings whether it will contend that these children are not settled in Australia.  Notably, the children have been here since 23 December 2019.  Paragraph 65 of the Family Consultant’s reg 26 report states:

    It seems that both children have become settled in Australia.  They are attending local school, appear to be achieving reasonably well at school and report having made friendships.  X appears to be proficient with English and Y appears to be progressing well in her learning of English.  They both report positively about their relationships with their father, their father’s partner and their younger paternal sister.  They both report being very happy living in Australia and not wanting to return to Portugal.

24. I have directed that the State Central Authority give immediate consideration to, and make known, its position in the event that the Court is satisfied that the Form 2 Application is filed more than one year after the relevant date of retention.  I am not asking the State Central Authority to concede that the application was filed more than a year after the wrongful retention or to concede that there was a repudiatory retention as discussed in Handbury’s case.  However, it would not surprise me if, on the facts of this case, the State Central Authority was prepared to concede that the children are now settled in Australia if the Court is satisfied that the Form 2 Application was filed more than a year after the repudiatory retention. 

    ADMINISTRATIVE DELAY

25. The above discussion provides the context within which I now express concern about the impact of administrative delay on return applications under the 1980 Convention with a view to this Court considering the extent to which the Court’s procedure can be changed to avoid undue administrative delay.

26. It appears, from the Form 2 Application, that the requesting parent’s documents were settled and executed on behalf of the requesting parent in Portugal on 25 September 2020. 

27. The documents were sent by the Portuguese Central Authority, which is the General Directorate of Rehabilitation and Prison Services in Portugal, to the Australian Central Authority on 26 November 2020, some two months after the mother completed her request for assistance under the 1980 Convention. 

28. I am informed by Ms Cantrall (counsel for the applicant State Central Authority) that the Australian Central Authority found the Portuguese documentation incomplete and insufficient to found a claim for return and asked for some supplementary material.  In my experience, that is not unusual.

1. Whatever had to be provided to make up necessary documentation was provided by the Portuguese Central Authority to the Australian Central Authority.

2. On 11 December 2021, the Commonwealth Central Authority transmitted the request and associated documents to the State Central Authority for New South Wales.  Those documents were received by the applicant on 11 December 2020. 

3. The return application was prepared by the applicant State Central Authority and emailed to the Sydney Registry for filing on 23 December 2020.  The email was addressed to “Sydney Filing Clerk”.  Specifically, it was not addressed to the Hague Registrar of the Sydney Registry.  In the Melbourne Registry, where I sit, the Hague Registrar is Registrar George.  I understand that the Hague Registrar for the Sydney Registry is Registrar Maitland.

4. Having regard to the date upon which the respondent has allegedly repudiated the agreement to return the children, the date on which the application was filed is crucial.  As at 23 December 2020, the children had been in Australia for precisely one year, having arrived here on 23 December 2019 with return passage booked for 8 January 2020.

5. It appears that the application which was emailed to the Sydney Registry on 23 December 2020 but was not processed for filing and sealed until 7 January 2021, some two weeks later.  The Sydney Registry was closed for some days over the Australian Christmas holiday season.  The Sydney Registry was open on 23 and 24 December 2020.  As best I understand, the Sydney Registry was then closed on public holidays being 25 and 28 December 2020 and 1 and 4 January 2021.  All major registries of this Court, of which the Sydney Registry is one, were open and operating with reduced staff on 29, 30 and 31 December and 4, 5 and 6 January 2021.  As best I understand, the Sydney Registry could have processed documents, such as this application, for filing on 23, 24, 29, 30 and 31 December 2020 and on 4, 5 and 6 January 2021.  However, this application was not processed until 7 January 2021.

6. My impression is that the applicant did not follow up on its email to the Court of 23 December 2021 or make enquiries about the filing date or date of hearing.  This is notwithstanding that it would have had to make arrangements for personal service of the application on the respondent father.

7. I cannot speak of arrangements in Sydney but, here in Melbourne, the Victorian Central Authority frequently notifies the Hague Registrar in advance of a return application being filed.  Otherwise, there is communication between the Victoria State Central Authority and the staff in the Chambers of the Honourable Justice Williams about purely administrative matters.  The procedure for Hague return applications in this Court is highly centralised with Justice Williams being aware of, and allocating the hearing of all Hague return applications for the whole of the Family Court of Australia.  However, it appears that there may be no specific oversight of the filing procedures of Hague return applications within the Sydney Registry.

8. As best I understand, it would not have been possible for the applicant to file the Form 2 application through the Commonwealth Courts’ Portal.  The most expedient delivery of the application to the Court was by email.

9. Had the return application been processed and filed prior to 5 January 2021, there would be no potential for reg 16(2) to apply.  There would be no consideration of the children being settled.  The father’s opposition would be restricted to the five exceptions to return.

10. This is a matter which brings into focus the importance of these applications being dealt with expediently and expeditiously.  We understand that the aspirational time for determination of a return application by the Court is within six weeks.  It is implicit that the Court and the practitioners ensure that pre-filing and filing procedures are also dealt with expediently.  Time is of the essence in these forum convention proceedings.  The shortest of delays can alter the issues which are required to be determined in a Hague return case to the benefit or detriment of either the applicant or respondent.

11. In my view, the filing procedures for Hague return applications should be reviewed by the Court in conjunction with the persons/bodies to whom the Australian Central Authority delegates its powers in each state and territory.  My Chambers will provide a copy of these reasons to our Chief Justice and the Honourable Justice Williams in their capacity as Hague Network Judges, the Honourable Justice Hartnett as National Case Management Judge, the Honourable Justice Henderson who is the Case Management Judge for New South Wales and Registrar George and Registrar Maitland, for consideration of procedures which will streamline the filing of applications in time sensitive proceedings such as this application.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       26 March 2021