Department of Communities, Child Safety and Disability Services and Garning & Ors (Stay Pending Discharge Application)

[2012] FamCA 699

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & GARNING AND ORS (STAY PENDING DISCHARGE APPLICATION) [2012] FamCA 699

FAMILY LAW – CHILD ABDUCTION – Hague Convention proceedings – Where return orders made requiring four children to return to Italy – Where appeals from those orders to Full Court of Family Court of Australia and High Court of Australia were unsuccessful – Where orders of trial judge dismissing applicant’s application to be appointed litigation guardian of the children – Where applicant seeks stay of return orders pending outcome of appeal – Where mother made an oral application for leave to file amended application as per Regulation 19A – Where leave granted – Where mother sought stay pending outcome of that application – Whether this Court can order a stay of proceedings instituted under the Hague Convention.

Family Law (Child Abduction Convention) Regulations 1986 reg 19A, reg 26
Family Law Amendment Regulations 2004 (No.3) 2004 No.371

Family Law (Child Abduction Convention) Amendment Regulations 2007 (No.1) (SLI No 213 of 2007)

DJL v Central Authority (2000) 201 CLR 226

The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681
Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
Sheldon and Weir (Stay Application) [2011] FamCAFC 5

Re F (Hague Convention; Child’s Objections) (2006) FLC 93 – 277

APPLICANT: Ms B

1st RESPONDENT: Director General, Department of Communities, Child Safety & Disability Services

2nd RESPONDENT: Ms Garning

3rd RESPONDENT: Ms V

FILE NUMBER: BRC 1387 of 2011

DATE DELIVERED: 22 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 16 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson SC

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Mr Green

SOLICITOR FOR THE 1ST RESPONDENT: Crown Law

SOLICITOR FOR THE 2ND RESPONDENT: Mr Sinclair
Barry & Nilsson

SOLICITOR FOR THE 3RD RESPONDENT: Mr Donnelly
Donnelly Lawyers

Orders

(1)No further steps be taken to enforce the return of the children, E V born … June 1997, C V born … August 1998, D V born … December 2001 and L V born … May 2003, to Italy pursuant to extant return orders made by Justice Forrest in these proceedings until the hearing and determination of the mother’s application for discharge of those return orders, such application being made pursuant to Regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”), leave having been granted to the mother to make such an application, orally, before Justice Forrest today, conditioned upon the filing of an application in Form 2D within 24 hours of the grant of such leave.

(2)The mother’s application for discharge of the return orders is listed for hearing before Justice Forrest at 10:00 am on Thursday, 27 September 2012.

(3)Pursuant to Regulation 26 of the Regulations, Family Consultant, Ms E, Brisbane Registry of this Court, prepare and submit to the Court a report as to:

(a)whether the children, E V born … June 1997, C V born … August 1998, D V born … December 2001 and L V born … May 2003, object to being returned to Italy; and

(a)if the children object to being returned, whether the reasons for that objection are age appropriate and based on the child’s own view; and

(c)the degree of maturity of the children and as to whether it is appropriate to take account of their views; and

(d)      the cognitive development of the children; and

(e)      the emotional development of the children; and

(f)whether the children understand that the courts of Italy may make an order that they stay in Italy or be returned to Australia.

(4)For the purposes of the preparation of such Regulation 26 report, whoever has the care of the said children pursuant to existing orders on the morning of 29 August 2012, cause the said children to be delivered to the Child Dispute Service, Level 3, Family Court of Australia, Sir Harry Gibbs Building, North Quay, Brisbane at 9:00 am on that morning for interview by Ms E.

(5)Ms E shall solely determine who, in addition to the said children, if any other person she speaks to in the course of the preparation of her report.

(6)Ms E’s report be prepared and provided to the Court with copies to be provided to the State Central Authority, the mother and the father on or before 7 September 2012.

(7)The mother file and serve on the State Central Authority and the father any affidavits of evidence in chief upon which she intends to rely at the hearing of the application on or before 30 August 2012.

(8)Should the mother file any more affidavits of evidence in chief other than one by her herself and one by Ms B, then she shall only be entitled to rely on same at the hearing with the leave of the Court first obtained.

(9)That the State Central Authority and the father shall file and serve on each other and the mother any affidavits of evidence in chief upon which they intend to rely at the hearing of the mother’s discharge application on or before 15 September 2012 and should each of the Central Authority and father seek to rely on any more than two such affidavits, then same should only be with the leave of the Court first obtained.

(10)The mother may file and serve a further affidavit responding as she considers necessary to the report of Ms E on or before 21 September 2012.

(11)Each of the mother, the State Central Authority and the father, if he so chooses, shall file and serve on each other a Summary of Argument on or before 25 September 2012.

(12)All other applications listed before Justice Forrest today be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disability Services & Garning and Ors (Stay pending discharge application) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1387  of 2011

Ms B

Applicant

And

Director General, Department of Communities, Child Safety
& Disability Services

First Respondent

And

Ms Garning
Second Respondent

And

Mr V
Third Respondent

REASONS FOR JUDGMENT

Introduction  

1.On Thursday 16 August 2012, this Court was again required to consider and determine matters arising consequent upon orders for the return of four children to Italy having previously been made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Hague Regulations”). On that day, I made the orders that have just been set out at the commencement of this document. These are my reasons for making those orders.

What was to be determined?

2.Before the Court at the commencement of that day was an Application in a Case filed by the children’s aunt on 9 August 2012. By that application she was seeking a stay of certain of the orders that I made on 24 June 2011 and 4 May 2012 for the return of the four children to Italy pending the determination of her appeal to the Full Court of this Court. That appeal was commenced by way of a Notice of Appeal filed by the children’s aunt on 3 August 2012.

3.By that Notice of Appeal, the children’s aunt challenges orders made by Murphy J at first instance on 6 July, 2012 dismissing her application to be appointed as Case Guardian for the children and to intervene, in that capacity, in proceedings brought by the mother pursuant to Regulation 19A of the Hague Regulations for a discharge of the return orders I previously made.

4.At the commencement of the hearing on Thursday, Senior Counsel for the aunt was given leave to file an Amended Application in a Case that sought further, or alternatively, that the return order be stayed pending the determination of the mother’s discharge application.

5.Whilst there was agreement between the parties that there remained extant a discharge application commenced by the mother, filed on 26 June 2012, that was to be heard after the publication by the High Court of its reasons for dismissing, on 7 August, 2012, the aunt’s application for prerogative relief in respect of my return order, it seemed clear that Murphy J had at least, on 6 July, dismissed that part of the mother’s application that sought the discharge of the operative return order. It was also common ground that the mother could simply amend her extant application or file another application pursuant to Regulation 19A of the Hague Regulations to ensure that proceedings for a discharge of the operative return orders made by me were again before the Court.

6.Mindful of those matters and the fact that one of the objects of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) is to secure the prompt return of children wrongfully removed from their country of habitual residence, as well as holding to the view that the interests of all concerned in this matter would be best served by hearing and determining the mother’s discharge application as soon as possible, I inquired of the mother, through her solicitor, whether a fresh Form 2D (the prescribed application form) clarifying the actual relief she seeks could be filed within twenty-four hours and, if so, would the mother be making an application herself for a stay of the return orders pending the determination of any such discharge application.

7.The mother’s solicitor immediately undertook to file an amended Form 2D within twenty-four hours and made an oral application for a stay of the return orders pending the determination of that application. I informed the parties that I intended to list the mother’s discharge application for hearing by me on Thursday 27^th September 2012 and that I intended to make an order, pursuant to Regulation 26 of the Hague Regulations, for the children to be interviewed by the same Family Consultant who had interviewed them and reported to the Court prior to the making of the original return order.

8.Counsel for the State Central Authority (“SCA”) had objected to the aunt being granted leave to amend her Application in a Case to include an application for a stay pending the determination of the mother’s discharge application.  He also objected to the mother being granted leave to make an oral application for a similar order. I determined, having regard to the fact that the detailed written submissions of counsel for the SCA included submissions against granting a stay pending the determination of the mother’s discharge application, that the SCA was already in a position to argue against such applications and would not be prejudiced by the hearing of them that day. Accordingly, I granted the leave that was sought by the aunt and the mother.

9.At the same time, Senior Counsel for the aunt indicated to the Court that the aunt would not press that part of her Application in a Case seeking a stay of the return orders pending the determination of her appeal from Murphy J’s orders.

10.Thus, the parameters of the dispute for my determination on the day were greatly narrowed. There was no argument by any party against me listing the mother’s discharge application for hearing on Thursday 27 September, 2012 and no argument against me ordering that the same Family Consultant provide a further report to the Court pursuant to Regulation 26 of the Hague Regulations after again interviewing the children. What remained most significantly in dispute was the existence of power in the Court to stay the existing return orders pending the determination of the discharge application and, if there was such a power, whether it should be exercised at all in the circumstances of this case. The lesser question as to what adults the Family Consultant should interview, if any, also remained a live issue for the Court to determine, with Senior Counsel for the aunt submitting to the Court that she should be interviewed along with the girls.

Does the Court have the power to stay the return orders?

11.Counsel for the SCA submitted that the Court has no power to grant a stay of a return order pending the hearing of the discharge application. He pointed out, correctly, I accept, that there is no such express power in the Family Law Act 1975 (Cth) or the Hague Regulations. Quickly acknowledging the existence of powers in the Court “as are incidental and necessary to the exercise of the jurisdiction or the powers” actually conferred, expressly or by implication, by the legislation which governs it,[1] counsel for the SCA went on to submit that “an examination of the Explanatory Memorandums when the regulation 19A was first introduced, and then substantially amended, .. militates against implying such a power, notwithstanding that such a conclusion may seem odd at first glance.”

[1]See DJL v Central Authority (2000) 201 CLR 226 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ [24] – [27] as referred to by counsel for the SCA in his written submissions at [21]

12.The Explanatory Statement issued in respect to the Family Law Amendment Regulations 2004 (No.3) 2004 No.371 includes at Item 25 the following:

Item 21 inserts a new regulation 19A that provides that, if a court makes an order for the return of a child under Part 3, a party to the proceedings may, in certain limited circumstances, apply to the court for the discharge of the return order.

This new regulation is intended to have a limited operation, for example, in circumstances where the parties subsequently agree to the child remaining in Australia, or the return of the child is frustrated by non-compliance with undertakings given to the court by a party or it otherwise impracticable for the return order to be carried out either in full or in part, or there are otherwise exceptional circumstances that justify the court making the particular order.

New sub-regulation 19A(3) provides that when a court is considering a discharge application, it must have regard to section 111CE of the Act, which implements the contact provisions of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children.

13.The Explanatory Statement issued in respect to the Family Law (Child Abduction Convention) Amendment Regulations 2007(No.1)(SLI No 213 of 2007)  includes at Item 28 the following:

Item 28 amends sub-regulation 19A(1) of the Principal Regulations to enable an Article 3 applicant to apply to the court for a discharge of a return order.

Item 28 also amends sub-regulation 19A(2) of the Principal Regulations to enable the court greater discretion to discharge a return order. Previously the court had to satisfy itself of a cumulative list of four criteria that had to be met before discharging a return order. The amendment provides for the four criteria as alternatives, rather than cumulative. Further, the amendment to paragraph 19A(2)(d) lowers the time-frame from two years to one year in which an application for a discharge of a return order can be made. This two year time-frame has proved ineffective in practice, being too long a period before the court can consider discharging the order, and must be seen in light of the object of the Convention, namely a ‘prompt return’.

Item 28 also amends sub-regulation 19A(3) by removing the note and clarifying the court’s position to provide that it must – and can only – consider section 111CE of the Act when contemplating a discharge of a return order, if the convention country in question is also a party to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the Child Protection Convention).

14.Regulation 19A now provides:

Discharge of return order

(1)If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.

(2)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; or

(b)since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or

(c)exceptional circumstances exist that justify the return order being discharged; or

(d)day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.

(3)In considering whether to make an order discharging a return order, the court must have regard to section 111CE of the Act if the convention country from which the child was removed is also a Convention country within the meaning of subsection 111CA (1) of the Act.

15.Whilst it is true that Regulation 19A is expressly limited in its operation, by conferring discretion on the Court to discharge a return order only if it is satisfied that at least one of the four listed criteria exists, I do not accept that such express limitation of the circumstances in which the discretion to discharge emerges, militates against finding that the Court has the power to grant a stay of a return order incidental to the power to discharge the return order that is, via section 111B of the Family Law Act and Regulation 19A of the Hague Regulations, conferred upon the Court.

16.Indeed, the absence of such an incidental power to stay a return order in circumstances where the Court is given the power to hear and determine an application to discharge such an order would not only be odd but would also apparently render the conferral on the Court of the power to discharge absolutely meaningless and nugatory where the Central Authority, acting in accordance with its obligations, dutifully went about carrying out the original return order and the Court was unable to hear and determine a discharge application in time. 

17.I am quite satisfied that the Court has the power to stay the enforcement of its return orders pending the hearing and determination of an application for the discharge of those return orders properly brought pursuant to Regulation 19A of the Hague Regulations. The power to do so, I find, is derived by necessary implication from the legislative and subordinate legislative provisions that confer the discharge power.

Should such power to stay the return orders be exercised in the circumstances of this case?

18.The principles attending the determination of an application for a stay pending the hearing of an appeal or an application for leave to appeal are well settled, as is their application to child related proceedings.[2] Of course, an application pursuant to Regulation 19A of the Hague Regulations is neither an appeal nor an application for leave to appeal. As has been observed, the specific Regulation creating the right, limited to certain parties, was only made in 2004. There have not been many decided Regulation 19A discharge applications. My attention was not drawn to any cases where a stay was considered or granted pending the determination of such an application. I could find none either.

[2]See The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230, Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1)(1986) 161 CLR 681, Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460, Sheldon and Weir(Stay Application) [2011] FamCAFC 5

19.Having regard to the nature of the application and its relationship to an operative return order compared to an appeal or an application for leave to appeal against orders made in child related proceedings, I consider that the Court is assisted by the application of the same principles, adapted as necessary for those differences that do exist, in the determination of an application to stay a return order pending the hearing of the discharge application.

20.As Kirby J said in Bryant:[3]

[a] stay is, by no means, granted simply for the asking.

[3]          Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at [12]

21.A necessary balancing of the strength of the discharge application against the risk that the discharge application will be rendered nugatory if a stay application is not granted is required.

22.In this case, counsel for the SCA concedes that if the stay is not granted, the children will return to Italy. He correctly points out that the SCA has the legal responsibility to continue to act to ensure the return order is complied with.[4] No criticism can be directed at the SCA for that. He submits that return of the children will have the practical effect of rendering the discharge application “of little, if any, utility”. In my view, that understates the reality. A return to Italy prior to the hearing of the mother’s discharge application would, without doubt, render the discharge application wholly nugatory.

[4]          Re F (Hague Convention; Child’s Objections)(2006) FLC 93 – 277 at [80]

23.That said, the return orders that are operative were made after a hearing and delivery of a reasoned judgment. The orders remained untouched after an appeal on very limited grounds to the Full Court of this Court (where the mother was represented by Senior Counsel and solicitors) was dismissed. They remained untouched after an Application for Special Leave to the High Court from the decision of the Full Court was filed and then withdrawn. They still remained untouched after an application for prerogative relief in respect of them was dismissed by a full bench of the High Court. Accordingly, the SCA, and indeed the father of the children, are entitled to consider the return order correct. 

24.A Regulation 19A discharge application is not an appeal though. It is not a challenge to the correctness of the original return orders. If an applicant persuades the Court to find that at least one of the four express requirements is made out the Court then has discretion to discharge any return orders previously made in a matter.

25.Against all of that reality, at least in my view, a preliminary assessment of the strength of the mother’s discharge application becomes a critical part of the determination of the merits of the application for a stay.  Whilst that is easily said it is somewhat more difficult to undertake in circumstances where the Form 2D pro-forma application does not require the applicant to state the grounds relied upon. Indeed, in the Amended Form 2D filed by the mother on Friday 17 August 2012 in accordance with the mother’s solicitor’s undertaking to do so given to the Court at the hearing, there are, unsurprisingly, no grounds set out at all. If the Court was left without any capacity to make some preliminary assessment of the strength of the mother’s application, it would probably be the case that the stay could not be ordered. However, there has been quite a deal of affidavit material filed by the mother and the children’s aunt in support of their various applications filed since the Court’s last return order. Those affidavits, in my view, clearly disclose the nature of the case the mother will be making to the Court on her discharge application. At the same time, the SCA has filed affidavit material from persons charged with caring for the children between May and July of this year. Those also assist in identifying the nature of the case the mother will be making.

26.From all of that material, I expect the mother’s case will be one based around assertions that the children object to being returned to Italy, that their objections have grown significantly stronger in the fifteen months since the Court’s Family Consultant interviewed them for the Regulation 26 report that was in evidence at last year’s hearing of the application for the return order and that those objections now come from a depth of feeling that is more than a “mere expression of a preference”, that the children are all fifteen months older now with the eldest being fifteen years of age, and that after more than two years living in Australia they are now settled here. I expect that the mother will argue that all of these factors, considered together, constitute “exceptional circumstances … that justify the return order being discharged” or that they “make it impracticable for the order to be carried out”.

27.As I understand the matter, I expect the mother will also be asserting that as more than one year has expired since the original return order was made the Regulation 19A(2)(d) pre-requisite to the existence of a discretion to discharge is satisfied. Murphy J accepted that (though without any argument to the contrary having been advanced for the SCA) when he made orders on 6 July, 2012. Counsel for the SCA before me, informed the Court that the SCA contends now that such an interpretation of Regulation 19A(2)(d) is not properly open to the Court. I am, in the circumstances, satisfied that there is room for argument about this point.

28.Counsel for the SCA submitted that the evidence about the children’s desire to remain in Australia is inextricably linked with their desire to live in Australia with their mother. He submits that there is no evidence that they would have concerns about returning to Italy if their mother returns with them. I note though that the Court has been informed several times over recent months by the legal representatives for the mother that the mother does not intend to return to Italy with the children. I acknowledge, as counsel for the SCA has pointed out, that the mother has not sworn to that in evidence yet. However, all of those issues and the arguments relating to them, I consider, are more properly to be considered on the hearing and determination of the discharge application. The Court will then have the benefit (I expect) of the evidence in chief of the mother specifically prepared for the discharge hearing, the further report of the Family Consultant who will again have interviewed the children, cross-examination (potentially) of the Family Consultant and, perhaps, the mother, as well as more detailed written, and more focussed oral submissions.[5]

[5]          As Kirby J pointed out in Bryant (supra) at [12]

29.The consideration of the strength of the mother’s case should not pre-empt the determination of the discharge application. That would not accord with established principle at least in so far as applications for stays pending appeal are concerned. I consider that principle is equally applicable in these circumstances. Consideration of the prospects involves a “judicial impression” being formed not a pre-determination of the discharge application. [6]  In the list of principles relevant to the determination of a stay pending appeal in a child related case set out by the Full Court of this Court in Sheldon and Weir[7], the preliminary assessment of the strength of the proposed appeal was referred to as considering “whether the appellant has an arguable case”.

[6]          Bryant per Kirby J (ibid)

[7]          (supra)

30.After considering the evidence relied upon and the submissions made by the parties, I was left with the strong impression that the mother has an arguable case that at least one of the pre-requisites contained in Regulation 19A(2)(b),(c) or (d) can be satisfied. If that is correct, the discretion to discharge the return order would be enlivened and I am simply not in a position, at this point in the proceedings, to determine that I would not exercise the discretion to so discharge. Much more will have to be carefully considered, in the event that the discretion is enlivened.

31.Although the father of the four children will, no doubt, be very disappointed and, on the evidence, further inconvenienced by the disposition of this matter now being further away than he would have hoped, I am persuaded that making an order effectively staying my previous return orders until I have heard and determined the mother’s application to discharge them is the proper course in this difficult matter, at the centre of which remain four girls, two of whom are rapidly approaching adulthood. That the hearing will take place in just over five weeks fortifies me in forming that view. That is how I have ordered.

Should the Aunt be interviewed by the Family Consultant?

32.Senior Counsel for the aunt submitted that the aunt had, through her litigation guardian role in respect of the application to the High Court, been in a parens patriae relationship to the four children and had a lot of information gathered in that role that might be of use to the Family Consultant. He submitted that the Court’s orders in respect of the preparation of another report pursuant to Regulation 26 of the Hague Regulations should include a requirement for the Family Consultant to interview the aunt.

33.I note that last year my orders for the Family Consultant to interview the children and prepare a report did not direct her to interview the parents, yet she did interview them. I am satisfied that it is appropriate to leave the question of determining which, if any, adults she interviews and seeks information from in the course of preparing her report to the professional discretion of the Family Consultant herself. That satisfaction is reflected in my orders.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 August 2012.

Associate: 

Date:  22 August 2012