Department of Community Services and Sharmain

[2009] FamCA 30

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & SHARMAIN [2009] FamCA 30

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – whether Order for return of child be subject to conditions – failure of Respondent to be ready to proceed – pending application for order for leave to appeal out of time – stay of proceedings

Family Law Act 1975 (Cth)

APPLICANT: NSW Department of Community Services

RESPONDENT: Ms Sharmain (also known as Ms Mack)

FILE NUMBER: SYC 707 of 2008

DATE DELIVERED: 22 January 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Honourable Justice Rose

HEARING DATE: 22 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: S Christie

SOLICITOR FOR THE APPLICANT: New South Wales Department of Community Services, Legal Services Unit

COUNSEL FOR THE RESPONDENT: S Jeppesen

SOLICITOR FOR THE RESPONDENT: Simon Diab and Associates

Orders

1. That Order 3 made 22 December 2008 is discharged.

2. That there be a stay of proceedings of Order 2 made 22 December 2008 pending determination of the respondent’s application for an extension of time to lodge an appeal and, if such application is successful, until determination by the Full Court of the proposed appeal or as it may otherwise order.

3. That the respondent do all things necessary to ensure that the proposed appeal, if leave is granted, is prosecuted expeditiously and the respondent is in a position to be represented or to appear if unrepresented at the earliest date that may be fixed by the Full Court, regardless of the convenience of solicitor or counsel for the respondent.

4. That the pending proceedings for determination of the conditions if any that should be attached to the order for return of the child are dismissed.

Notation

A.That the members of the Full Court are requested to consider expedition of the proposed appeal by the Respondent and that dates for hearing be fixed as a matter of priority.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC707 of 2008

DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MS SHARMAIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 22 December 2008, judgment was delivered by me and orders made in these proceedings as follows:-

   “(1)Declare that the removal by the mother of the child […] born […] December 2004 from the United States of America on 26 June 2007 and the retention of the child by her in Australia was wrongful within the meaning of Article 3 of the Convention.

   (2)That the applicant make such arrangements as are necessary to ensure the return of the child […] born […] December 2004 to the United States of America forthwith in the company of her mother [Ms Sharmain] also known as [Ms Mack] and her son [J Mack].

   (3)That Order (2) is stayed until further order and pending submissions in relation to the conditions, if any, that should be attached to that Order.” (“the Orders”)

2. Today’s hearing was fixed pursuant to Order 3 of the Orders.

3. On the day that the Orders were made there was no appearance by or for the respondent. 

4. Notice that judgment would be given and orders made was provided by facsimile transmission, dated 17 December 2008, to the Legal Services Unit of the applicant and to the solicitors for the respondent.  The date and time given was 10 am Monday 22 December 2008.

5. On 19 December 2008, written notice was provided by email from my associate to the solicitors for the parties as well as to counsel that judgment would be given and orders made at 2.15pm rather than 10.00am on 22 December 2008.

6. On 22 December 2008 my associate sent facsimile transmission of a letter from her to the solicitors for the parties attaching a copy of the orders and the judgment given that day.

7. On the same day, that is 22 December 2008, and subsequent to the last-mentioned facsimile transmission, a letter was sent by facsimile transmission by the solicitors for the respondent to my associate acknowledging receipt of the facsimile transmission of that day which attached copies of the orders and the judgment and informing my associate of availability to appear any day after 19 January 2009, subject to obtaining instructions.

8. Following my return from leave and on 7 January 2009, I made the following directions for the further conduct of the hearing to take place today:-

   “1.That the mother file and serve a statement of her financial circumstances on or before 4pm 16 January 2009.

   2That the applicant cause a statement of the father’s financial circumstances be filed and served on or before 4pm 16 January 2009.

   3.Counsel for the parties are to lodge and serve an outline of submissions in relation to the conditions if any that should be ordered in relation to the return of the child to the United States of America on or before 4pm 19 January 2009.”

9. The directions were complied with by the applicant.

10. On 20 January 2009 an email was sent by the respondent’s solicitors to my associate referring to the orders made for the filing and service of a financial statement and written submissions as well as the hearing fixed for today and stating that an appeal was to be lodged. A further statement was made that an Application in an Appeal annexing what is described as “an appeal”, when clearly what is referred to is a proposed Notice of Appeal, was filed that day.

11. That email pointed out that an extension of time to appeal was being sought. The email from the respondent’s solicitors sought a postponement of the hearing in relation to conditions to be imposed in relation to the return of the children.  The email concluded by stating:

    “I look forward to hearing from you as to whether his Honour adjourns the hearing in relation to conditions until determination of the appeal.”

12. A copy of that email was forwarded to the legal officer of the applicant.

13. No attempt was apparently made to seek to obtain the consent of the applicant to an adjournment. Yet for reasons that are unknown to me, it seems to have been contemplated that by the mere sending of the email to which I have referred, there may well be an adjournment of the hearing set down for today.

14. Not surprisingly, on 21 January 2009 my associate sent an email to the solicitor for the respondent, in the following terms:

    “In the absence of written consent from the solicitor for the applicant, the matter will continue to be listed for hearing tomorrow.”

Issues

1. Counsel for the respondent appeared today.  I raised with him matters that concerned me, which I will now deal with.

2. Firstly, there was no appearance by or for the respondent when judgment was given and orders made in the substantive proceedings on 22 December 2008.

3. The proceedings so determined were what are commonly referred to as “Hague Convention proceedings”.

4. The orders that were potentially to be made were of great importance to the respondent and indirectly both of her children, as well as the applicant and the father of the child the subject of the proceedings.

5. The reasons for non-appearance that were provided by Counsel on his instructions are that a solicitor in the employ of the respondent’s firm was no longer employed and that the email sent to that solicitor giving the date of judgment and orders had not been brought to the attention of the principal.

6. Patently, those instructions were incorrect in that the notice that was given in relation to the date and time fixed for making of orders was not sent by email but by facsimile transmission.

7. The next excuse was that the office had closed on 19 December 2008 and another solicitor made periodic checks in the office to ascertain matters that may need attention.

8. It was as a consequence of that occurring that the letter of 22 December 2008 was sent.

9. That letter has a printed signature of the writer namely the principal of the firm. However, I am informed that despite that, it was not the principal who signed the letter but somebody else.

10. I was then informed that the directions for filing and service of a Statement of Financial Circumstances could not be complied with because the office only opened on 19 January 2009 and it was on that day that instructions were obtained from the respondent.

11. Of relevance is that even if that statement is accurate and I accept that it is, it still does not explain why leave was not sought to file and serve a Statement of Financial Circumstances out of time or, why it has apparently taken until 21 January 2009 for an affidavit to be sworn setting out relevant matters.

12. I find that the lack of professional attention to this matter by the solicitors for the respondent is a matter of great concern, not only because of his obligations as an officer of the court, but also his duty to the client to provide appropriate professional responsibility whilst having assumed the obligations of representing that client to the best of the ability of the solicitor concerned.

13. I have been further informed by counsel for the respondent that an application is indeed pending for extension of time to file a Notice of Appeal and that application is returnable at 10.00am tomorrow.

14. It is obvious that the period of time which has caused such an application to be made is relatively small.  It may well be that the application will be acceded to on terms.  However, that is a matter for a different judge to determine.

Stay of proceedings

1. Application is also made on behalf of the respondent for a stay of Order 2 of the Orders, pending determination of the application for an extension of time to appeal and implicitly if that application is successful, until determination of the proposed appeal or, as may otherwise be ordered by the Full Court.

2. That application for a stay is opposed.

3. It is submitted with cogency that the draft Notice of Appeal which is part of annexure “A” to the Affidavit of Simon Diab sworn 21 January 2009 does not disclose either a proper ground of appeal or grounds of appeal that have any substance.  I consider there is much force to the submissions ably made by counsel for the applicant.

4. Some of the grounds such as grounds 2(d), 2(e) and 3 appear to be misconceived and arguably show a lack of knowledge of the relevant law, let alone having actually read the Reasons for Judgment.

5. As to the remaining grounds, all of the issues determined by me are raised as errors which attract an appeal.

6. As to whether those grounds have real substance I consider that to be a matter for the Full Court should leave to appeal be granted. Nonetheless, they do identify issues.

7. Whether that is sufficient to be accepted as proper grounds of appeal is a matter for the Full Court and a member of the Appellate Division to determine on the hearing of the pending application for an extension of time to appeal.

8. It was also submitted that a stay should be refused as not to do so would perpetuate the wrongful detention of the child as found in the Reasons for Judgment and that the respondent’s rights remain open for the purpose of making an application for, in effect, parenting orders to allow the respondent to relocate from the United States of America to Australia. 

9. Implicit in that submission is that the Orders should be executed.

10. I do not accept those submissions notwithstanding their substance.

11. From a practical viewpoint, to accede to the submissions would render the proposal appeal nugatory.

12. Whilst it is clear and I accept that that is not the sole matter which may determine a stay,  I also have to consider not only the issues to be raised on the appeal, but also prejudice to the parties and implicitly the child, the subject of the proceedings.

13. In the event of a stay not being granted and the orders previously made executed, then that may entail considerable dislocation and stress to the child, not to mention the respondent.

14. The applicant acting, as it were, on behalf of or at the behest of the father, by itself does not suffer any prejudice.

15. Clearly, the father may be prejudiced because he has not seen the child since the respondent left with the child in June 2007.

16. The evidence before me was that there had been telephone communication and there is no reason why that should not be ongoing.

17. In addition, I take into account the long standing policy of the court, that Hague Convention cases are listed for hearing as a matter of priority.  No doubt, that will occur so far as these proceedings are concerned in the event that the application for extension of time to appeal is successful.

18. Accordingly, I propose to grant the stay as sought.

Conclusion

1. As earlier indicated, the proceedings were listed before me today so as to determine the conditions, if any, that should be attached to the order for return as there had been an absence of submissions by counsel which precisely dealt with that issue.  I referred to that matter in the Reasons for Judgment that were given on 22 December 2008.

2. I fixed today’s hearing being the earliest date available to me on returning from leave, against a background of making directions to ensure that all relevant evidence would be available before me and which would assist submissions that potentially were to be made by counsel for the parties.

3. I have concluded that I will not determine that matter as directions were not complied with by the respondent and there now is a potential appeal.

4. There has been dilatory observance by the respondent’s solicitor of the obligations to the court and arguably to the respondent in terms of not only failing to appear on 22 December 2008, but also to apply a sense of urgency to completion, filing and service of the respondent’s Statement of Financial Circumstances.

5. I take into account that this matter will be before a member of the Full Court tomorrow to consider the application for extension of time.  The prospects of success are clearly substantial.

6. It will be a matter for the Full Court to determine, if it considers it appropriate and depending upon the success of the proposed appeal, either the conditions for return or to remit the matter for determination before me or another Judge.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date:  3 February 2009