Department of Community Services and Eager (No. 2)

[2007] FamCA 1321

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES & EAGER
(NO. 2) [2007] FamCA 1321

FAMILY LAW – APPEAL – Leave to

Family Law Act 1975 (Cth)

APPLICANT: Mr Eager

RESPONDENT: Director-General, Department of Community Services

FILE NUMBER: SYC 5919 of 2007

DATE DELIVERED: 9 November 2007

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 9 November 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Scanlon

SOLICITOR FOR THE RESPONDENT: Madeline Pereira

1. These are proceedings between the Director General of the Department of Community Service (“DOCS”) and Mr. Eager (“the father”).

2. The proceedings have been brought before me on an urgent basis being an application in a case filed today by the father against DOCS seeking a number of orders which include:-

   (i)     A stay of the orders made by this Court on 26 October 2007 pending the outcome of an appeal.

   (ii)   The child not be taken from Australia until the outcome of the stay application.

   (iii)     The application is heard on an urgent basis.

3. In support of that application the father relied upon an affidavit of his solicitor Margaret Scanlon which was sworn and filed today.  DOCS opposes the stay and filed and relied upon an affidavit of Madeline Audrey Pereira sworn this afternoon which contains eight paragraphs and a number of annexures which I will deal with later.

4. The application was filed in the Sydney Registry this afternoon and was listed before me in Hobart at 5.15pm today. 

5. The hearing was conducted in unusual circumstances in that it was conducted over a Genesys telephone link and no transcript of the submissions has been taken.  I am recording my reasons in relation to this matter in a digital form and I will have that recording transcribed some time next week.

6. Both parties were represented by legal practitioners and I confirmed with them at the commencement of the process that this was to be treated as a hearing in court notwithstanding the unusual circumstances and indicated the difficulties with regard to transcription.  Neither legal practitioner opposed the continuation of the matter on that course.  Neither party sought cross-examination of the other and were content to have the matter dealt with on the affidavit material.

7. The substantive proceedings were heard before me on 11 October 2007 and I delivered reasons on Friday 26 October 2007, two weeks ago.  For the purpose of these reasons I include the published reasons delivered by me in relation to the primary determination.  That application was made by DOCS for an order requiring the return of a child … born … June 2006 (“the child”) to be returned to Germany under the provisions of the Hague Convention.

8. After the hearing on 11 October 2007, at which time both parties were represented by counsel, orders were made for the return of the child to Germany.  There was no stay application made on the day of delivery of reasons (vis 26 October 2007) and the first indication, as I understand it of an appeal, was when an appeal was lodged today at about 2.15pm today and the first notice of an application for a stay was subsequent to that time, that is between 2.15pm on 9 November 2007 and 5.00pm that day.

9. The father has some twenty eight days to lodge an appeal.  It is clear that on the evidence before me, no notice was given to DOCS in circumstances where the mother was to travel to Australia from Germany to collect the child.

10. The father’s submissions in relation to the delay, through his solicitor were that he needed to obtain and has in fact obtained, a transcript of the hearing and needed to obtain, and has in fact obtained, legal advice as to the prospects of a successful appeal and has acquired funds to prosecute the appeal.  The submissions on behalf of the father are that he also wishes to adduce further evidence, namely:-

    (i)     He now asserts that there is an Aboriginal background and there is no assurance that he will be able to see the child in Germany for one year or so, before it could be dealt with.  This was a submission and no evidence was provided in relation to this assertion.

    (ii)   The second submission is that there is evidence that the finding of mine that the mother returned to Germany with the child in late July 2006 whereby I relied upon the stamped and registration of the child’s birth may be subject to challenge on the facts although this material was not set out in an affidavit.

    (iii)     The child’s German Pediatrician, who provided a Statutory Declaration and whose evidence was relied upon by DOCS, saw the child in July 2006, as I understand the submission, but did not see the child again until early October 2006.

11. The grounds of the appeal which were set out in Ms Scanlon’s affidavit, fall into two areas.  The first that the father claims that I erred in ruling that the habitual residence of the child is Germany.  In this regard both solicitor for the father and counsel for DOCS agreed that this was a finding of fact.  Secondly, I erred in the ruling that the child is not at grave risk of harm if he is returned to Germany.  Solicitor for the father said that this was a finding of fact.

12. On the appeal there appear to be no grounds in relation to the application of the Regulations of the Convention at this stage, notwithstanding that the father has had the benefit of legal advice and has obtained a transcript.  The appeal did not contain details of errors of law upon which the appeal was to be based.

13. The submissions on behalf of DOCS was that orders were made on 26 October 2007 and no stay was sought at that time.  It does not seem in issue that the mother, who is of limited means, (bearing in mind my knowledge of the matter from the initial hearing), arrived in Australia about one week ago to arrange to take the child back to Germany.  Nor is it in issue that arrangements were made earlier this week for the child to be placed in the care of the Department and then in the care of the mother and that the solicitor for the father was informed of this changeover with a number of letters which are annexed to Ms Pereira’s affidavit.  It is not in issue that care has been taken to ensure that the child is fit enough to fly and a report from Dr B dated 9 November 2007 has been attached to Ms Pereira’s affidavit.

14. The submission on behalf of DOCS was that even if the child is of Aboriginal heritage, that issue can be raised in Germany and is not a basis of appeal as it is not incidental to habitual residence, I accept that submission.

15. Submission on behalf of DOCS was the court has an obligation to expedite the return in any event and that it was open for the father to give notice and lodge his appeal prior to this time but he did not do so having waited until after the mother had traveled to Australia and after the child had been handed over.  I likewise accept that submission.

16. There is no issue, I might add, that the mother has no support in Australia and no support for a long term visit.

17. The guiding principals in dealing with this day include the following:-

    (i)a stay will not be granted automatically but must be considered by the Judicial Officer in the exercise of his or her discretion.

    (ii)In the exercise of discretion the Judicial Officer:-

    (a)    whether the refusal of the stay will render the appeal nugatory.  In this case arrangements had been put in place for the child and his mother to fly out of Australia on Monday on a Qantas flight.  There is no doubt that the effect of not giving a stay would render a successful appeal nugatory or at least very difficult;

    (b)    the merits of the appeal.  On the documents filed there appear to be limited chance of success on the appeal.  The father raised no issues of law in respect of the application of the Australian law with regard to my reasoning.  As the appeal stands at this time, it is as I understand it, argued by counsel for DOCS, unlikely to be successful.  Of course I must be aware that grounds of appeal are able to change as the appeals continue;

    (c)    any hardship which would be suffered by the applicant or respondent by granting or refusing a stay.

18. This is a particularly difficult case.  The child in question was born in June 2006 and was in the primary care of his mother until March 2007.  The child has been in the primary care of the father from March 2007 until earlier this week.  The mother has traveled from Germany to collect the child in circumstances of having limited means in circumstances where she has no support in Australia financial or emotional and no support for long term visits.

19. The father says he needs time to adduce further evidence with regard to this matter and would need to seek leave of the Full Court to adduce that evidence.  One wonders why this evidence could not have been dealt with before the determination by me.

    (d)    whether there has been any delay in seeking the stay.

20. There is no doubt that the stay application has been lodged within the appeal period as has the appeal however this was a case where it was clear that the mother would be traveling from Germany to collect the child and whilst the father has no obligation to inform DOCS of an appeal, bearing in mind the circumstances of this case, it is surprising to say the least that no notice was given. 

    (e)    The bona fide of the application.

21. I make no comment in relation to that as I do not have material before me to determine whether the application is bona fide or otherwise.  I am concerned however that the affidavit of Ms Scanlon did not contain the correspondence from Ms Pereira which are Annexures “A” and “B” to
    Ms Pereira’s affidavit.  There is an obligation to provide all information to the Courts and a bland statement such as made by Ms Scanlon that she was informed by DOCS on 9 November 2007 at 11.45am that the child is well enough to leave Australia, ought to be seen in the light of those letters, and the obligation of legal practitioners to make full disclosure to courts in urgent applications such as this.

    (d)The change of living arrangements for the child should be limited as much as possible.

22. This child is now in the care of the mother.  The Court wonders what will happen if the stay is granted.  I have had regard to the child’s interest although it is not a paramount consideration, it is a significant factor and I reiterate the matters set out in my reasons of 26 October 2007.

23. To leave the mother and, more importantly, the child in Australia isolated as it were in circumstances where this could have been prevented by an application for stay on 26 October 2007 or soon thereafter causes me some concern. 

24. I do not find in the circumstances of this case that the stay is warranted and as such I dismiss the application in a case as to the stay and I reserve costs.

I certify that the preceding 24 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.

Associate

Date:   9 November 2007

IT IS NOTED that publication of this judgment under the pseudonym Department of Community Services & Eager is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)