Department of Community Services and Sharmain (No. 2)

[2009] FamCA 350

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & SHARMAIN (NO. 2) [2009] FamCA 350

FAMILY LAW – CHILD ABDUCTION – Hague Convention –  Regulations – 15(1)(c) – Principles in relation to the exercise of the discretionary power to impose conditions for return of a child – application of those principles – undertakings required from the parent in the USA

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986

De L v Director-General, New South Wales Department of Community Services & Anor 187 CLR 640
C v C [1989] 1 WLR 654; [1989] 2 All ER 465
DP v Cental Authority; JLM v Director-General NSW Department of Community Services (2001) FLC 93-081
McDonald v Director-General Department of Community Services New South Wales (2006) FLC 93-297
Re M(Abduction: Undertakings) [1995] 1 FLR 1021
Kilah v Director-General, NSW Department of Community Services (2008) FLC 93-373

APPLICANT: NSW Department of Community Services

RESPONDENT: Ms Mack (formerly known as Sharmain)

FILE NUMBER: SYC 707 of 2008

DATE DELIVERED: 6 May 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Honourable Justice Rose

HEARING DATE: 5 May 2009

ORDERS: 5 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: A. Rees

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

FOR THE RESPONDENT: In person

Orders

1. That the following conditions apply in relation to the order for return of the child … (“the child”), born … December 2004, made 22 December 2008:

   1.1That the Registrar of the Family Court of Australia, Sydney Registry, hand over the passports and any other travel documents belonging to the Respondent Mother MS MACK also known as MS SHARMAIN born … October 1968 and the child …, female, born … December 2004 to THE MOTHER to facilitate the return of THE CHILD to the United States of America.

   1.2That forthwith THE MOTHER shall do all acts and things to apply for visas and any other documentation as required for herself and THE CHILD and J MACK, born … August 1999 to travel to the United States of America including but not limited to attending interviews, signing any documentation, paying any fees and providing any documents.

   1.3. That paragraph 1.1 and 1.5 of the orders dated 25 February 2008 be varied to allow THE MOTHER and the child and the child J MACK to depart Australia in accordance with the orders of this Court and the Australian Federal Police do give effect to the variation.

2. That prior to the departure of THE MOTHER and the child from the Commonwealth of Australia for the United States of America the Australian Federal Police remove the names of the following persons from the PASS Alert System in operation at all Australian international arrival and departure points as soon as practicable:

   2.1MS SHARMAIN also known as MS MACK, female, born … October 1968;

   2.2THE CHILD, female, born … December 2004.

3. That following the departure of THE CHILD from the jurisdiction of the Commonwealth of Australia all other orders made by the Court in relation to this matter be discharged.

4. That the Applicant serve sealed copies of these orders and the orders made 22 December 2008 and 13 March 2009 upon the Commissioner of the Australian Federal Police.

5. That the Applicant forthwith do all things necessary to facilitate the payment by the father of US $400 by Western Union transfer to its closest office to the residence of the mother on or before 12 May 2009.

6. That the payment be deemed to have been received on the day that Western Union notifies the mother that the funds are held in Australia for collection by her.

7. That the Applicant facilitate the father in furnishing a written undertaking to the Court on or before 4pm 12 May 2009 that:

   7.1He will not approach or interfere in the mother’s care of the child pending order of the District Court, E County in the State of Colorado, United States of America (“the District Court”) or written agreement between the mother and father.

   7.2He will sign all Documents and do all things necessary to ensure provision of suitable independent accommodation for the mother and the child and J MACK in C, United States of America upon seven (7) days written notice being given to him by the mother and pending order of the District Court.

   7.3That he will provide particulars of weekly child support that he will cause to be paid to the mother in respect to the child and promptly make all payments to her upon seven (7) days written notice being given by her to him and as she may direct.

   7.4That he will promptly pay an amount equal to half of all hospital, medical and dental expenses of the child pending order of the District Court.

   7.5That he will support an application by the mother for expedition of the hearing of custody and access proceedings in the District Court.

8. That the Applicant cause the father’s written undertakings the subject of these orders to be lodged at the Sydney Registry of Court and furnish copies thereof to the mother by email.

9. That the parties to the proceedings may publish copies of all orders made in these proceedings and reasons for judgment delivered to all or any officials of Australian and United States of America Government departments and agencies.

10. That the Applicant cause the following documents to be furnished to the Associate to Judge R of the District Court as soon as possible.

    10.1Copies of the orders made 22 December 2008, 13 March 2009 and this day;

    10.2Copies of the judgments delivered 22 December 2008, 13 March 2009 and to be delivered 6 May 2009.

11. Liberty to apply to set aside, suspend or vary all or any of the orders made this day upon 24 hours written notice being given to a Registrar of the Court and the other party.

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: SYC 707 of 2008

DEPARTMENT OF COMMUNITY SERVICES 

Applicant

And

MS SHARMAIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings the applicant, by the Application filed 11 February 2008 pursuant to Regulation 14(1) of the Family Law (Child Abduction Convention) Regulations 1986, sought orders pursuant to Regulations 15 and 16 for the return of the child born in December 2004 (“the child”), to the United States of America (“the USA”).

2. Ancillary orders were sought against the respondent mother Ms Sharmain, now known as “[Ms Mack]”, to enable the substantive order to be complied with. 

3. The mother contested the proceedings. 

4. On 22 December 2008 I made the following orders:

   “(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.”

5. On 22 January 2009 I made the following 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.”

1. On 23 January 2009, on the application of the mother, an order was made extending the time to file the Notice of Appeal.  In anticipation that a notice of appeal would be filed, the appeal was expedited. 

2. On 6 February 2009 the mother’s appeal was heard, the mother was represented by senior counsel. 

3. On 13 March 2009 the Full Court dismissed the mother’s appeal.  In doing so the Full Court noted that certain interim orders made by a Judicial Registrar on 25 February 2008 would need to be discharged.

4. On 24 April 2009 the proceedings were listed before me for directions to enable the parties to be heard in relation to the conditions, if any, that should be imposed for the purpose of compliance by the applicant with the order for return of the child made 22 December 2008.

5. The applicant appeared by counsel.  In relation to the orders made 22 January 2009 counsel for the applicant informed me that res judicata and issue estoppel would not be relied upon. 

6. The mother appeared unrepresented, her previous lawyers having filed a notice of ceasing to act a short time beforehand, namely 15 April 2009. 

7. In order to afford procedural fairness to the mother by making her aware of the issues that remained to be determined, and to afford her reasonable time within which to be prepared to appear legally represented, or otherwise as an unrepresented party, I fixed a hearing before me which took place yesterday.

8. The hearing proceeded before me on the papers.  Leave was not sought to cross-examine any of the deponents of affidavits, including the mother.  However, upon the mother informing me that she had remarried in April 2009 to Mr K he gave oral evidence and was briefly cross-examined.  Submissions were then made.

Regulation 15(1)(c) of the family law (child abduction convention) regulations 1986

1. Regulation 15(1)(c) of the Family Law (Child Abduction Convention) Regulations 1986 provides a discretionary power to:

   “include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.”[1]

   [1] Regulation 15(1)(c) of the Family Law (Child Abduction Convention) Regulations 1986

2. The reference to paragraph (a) or (b) is a reference to an order for return of the child and otherwise any other order “that the court considers to be appropriate to give effect to the Convention”.

3. The objectives of the Convention are stated in Article 1:

   “(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

   (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”[2]

   [2] Article 1 of the Family Law (Child Abduction Convention) Regulations 1986

4. In De L v Director-General New South Wales Department of Community Services & Anor[3] the High Court of Australia, in noting the discretionary power provided for in this Regulation, cited with approval, judgments of the Supreme Court of Canada and the English Court of Appeal in relation to the desirability of requiring undertakings of the requesting party in a given case.  In particular references were made to the following passage in the judgment of Butler-Sloss L.J. in C v C(Minor: Abduction: Rights of Custody Abroad)[4] which stated:

   “These undertakings are crucial to the welfare of the child who has been sufficiently disrupted in his removal from his home and his country and needs as a priority an easy and secure return home.  The mother has been the primary caretaker throughout his short life and since the parting of the parents when he was three for all but access periods his sole caretaker.  If possible he should for his sake and not for hers be with him and help him to readjust to his return.  The father should not be instrumental in putting obstacles in the way of that easy return or make difficulties once the child is back.  It is essential that the Judge hearing the future issues of custody and access or indeed the Australian Family Court should have the opportunity to consider the welfare of the child as paramount without emergency applications relating to the manner of the return of the child.” [5](emphasis added)

   [3] De L v Director-General, New South Wales Department of Community Services & Anor 187 CLR 640

   [4] C v C [1989] 1 WLR 654; [1989] 2 All ER 465

   [5] C v C [1989] 1 WLR 654 at 659; [1989] 2 All ER 465 at 469.

5. That passage is apposite in these proceedings.  The High Court further held that:

   “It is impossible to identify any specific and detailed criteria which govern exercise of the power whereby the Court may impose such conditions on the removal of the child “as the Court considers appropriate to give effect to the convention.”[6] 

   [6] Supra at 662

6. The Court further held that:

   “The basic proposition is that, like any other discretionary powers given in such terms, the Court has to exercise discretion judicially, having regard to the subject matter scope and purpose of the Regulations.” [7]

   [7] Ibid at 662

7. Subsequently, the High Court in DP v Central Authority; JLM v Director-General New South Wales Department of Community Services[8] held that, in relation to moulding the conditions upon which return may occur:

   “The discretion will properly be exercised by making an order for return on those conditions notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry.  If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.” [9] (emphasis added)

   [8] DP v Cental Authority; JLM v Director-General NSW Department of Community Services (2001) FLC 93-081

   [9] Ibid at paragraph 40

8. Those High Court judgments were, of course, followed by the Full Court in McDonald v Director-General Department of Community Services New South Wales[10].  In so doing the Full Court also cited with approval part of the judgment of Butler-Sloss L.J. in Re M(Abduction: Undertakings)[11] in which it was held that:

“It is perhaps helpful to remind those engaged in Hague Convention applications about the position of undertakings or conditions attached to an Article 12 order to return. Such requirements are to make the return of the children easier and to provide for their necessities such as a roof over their head adequate maintenance, et cetera, until and only until the Court of habitual residence can become seized of the proceedings brought in that jurisdiction.” [12](emphasis added)

[10] McDonald v Director-General Department of Community Services New South Wales (2006) FLC 93-297

[11] Re M(Abduction: Undertakings) [1995] 1 FLR 1021

[12]Ibid at 1025

1. It was further held that “undertakings have their place in the arrangements designed to smooth the return of and protect the children for the limited time before the foreign court takes over, but they must not be used by parties to try to clog or fetter or, in particular, to delay the enforcement of a paramount decision to return the child[13].” Emphasis was also placed upon the need for realistic time limits for compliance with the undertakings.

   [13] Ibid

2. In Kilah v Director-General Department of Community Services[14] the Full Court approved specific conditions attached to return orders that were made by the Trial Judge.  Those orders included the payment for air tickets of the respondent mother and children, provision of designated accommodation, deposit of specified funds in the bank account of the mother, and a written undertaking on terms in relation to further legal action in ensuring that specified facilities were made available to the mother for the benefit of the children.  Those conditions of return were specified to be met by a particular date, failing which the order for return was to lapse.  Whilst the order for return was set aside by the High Court, the issues upon which the appeal ultimately were allowed did not involve a consideration of the conditions for return imposed by the Trial Judge and approved by the Full Court.

   [14] Kilah v Director-General, NSW Department of Community Services (2008) FLC 93-373

Conclusion

1. At the conclusion of the evidence and submissions made yesterday, I made orders as set forth in this judgment.  I stated that the Reasons for Judgment would be delivered this morning as there was insufficient time to do so yesterday, having regard to the mother’s need to leave Court to collect her children.  I have determined to make further orders as sought in part by the applicant, and to impose conditions in relation to the return of the child for the following reasons. 

2. The authorities to which I have referred establish that if the discretionary power is to be exercised pursuant to Regulation 15(1)(c) a balance must be struck between implementing the objective of the Hague Convention and facilitating an easier return of the child in relation to travel, accommodation, adequate maintenance and other relevant matters until the Court seized of the proceedings in the country of habitual residence will make such orders as it considers proper and just.  That Court is the District Court E County in the State of Colorado USA (“the District Court”). 

3. Fortunately, the cost of travel and travel bookings are not issues due to the services that will be provided by the Committee for Missing Children referred to in Exhibit C.

4. In order to implement the order for return I have made orders sought by the applicant in relation to the immediate handing over to the mother of her passports and other travel documents and those of the child which have been held in custody by the Registrar of the Court.  Those documents are required to enable visas to be obtained by the mother for herself and the child, and her other child, J.  In addition, it was also necessary to vary the orders in relation to the police control system at airports to ensure travel can take place.

5. More difficult issues arose in relation to the further conditions for return of the child sought by the mother.  Those issues are in relation to accommodation, maintenance to meet daily living expenses, her status in the USA as a non-resident, her permanent residence in all likelihood having lapsed, and the date when proceedings are likely to be heard and determined in the District Court. 

6. So far as the latter is concerned, I have concluded that an order be made requiring a written undertaking by the father to seek expedition of those proceedings.  Ultimately, of course, that is solely a matter for the District Court as are the issues of custody, access, possible relocation of the child to Australia, maintenance and any other relevant matters.

7. It is also clear that the father lives in straightened financial circumstances.  I accept his evidence that his monthly available funds, after meeting current expenses, is about US$25.00.  He is not in a position to meet anything other than paltry maintenance for the child. 

8. The father had earlier provided evidence in February 2009, that he could save about US$400.00 over about one month to pay advance maintenance, albeit, that does not seem possible, unless he has failed to fully reveal all of his financial resources.  I have accepted that proposal. I will order that he will do so.  He has not paid any maintenance for the child since she has been in Australia for the past period of about three years.  His commitment to the child seems to have fallen short of contributing to her financial support. 

1. The father has remarried.  No evidence was provided of his wife’s financial circumstances. 

2. The mother’s financial circumstances are modest.  Her net property is negligible taking into account all of her liabilities.  The mother owns real estate in the State of Queensland.  It has been on the market for about eight months without achieving a sale.  The equity in that property after taking into account secured liabilities is small. 

3. Once the mother arrives in the USA her major sources of income will cease.  That includes her salary as an employed teacher and government benefits.  Her a rental income for the real estate will be used to meet mortgage instalments, rates and other outgoings in relation to that property. 

4. The mother’s husband Mr K gave evidence of his financial circumstances.  I accept his evidence.  He impressed me as a truthful witness.  He is employed in the Australian Postal Services.  His income covers his financial commitments and his only significant asset is approximately $23,000.00 bank savings.  However, he has a prominent liability which is his personal loan of $29,000.00 which he meets by regular instalments.  He pays rent for the apartment occupied by himself, the mother and her two children.  He also meets expenses of his 15 year old child by his former marriage, when the child stays with him on a regular basis during each month.

5. The mother’s husband currently has four weeks leave from his employment, which will expire at the end of this month.  He will travel with the mother and the two children to the USA and meet the expense of short-term hotel accommodation and daily living expenses during that time in Colorado.  He cannot commit financially in Colorado beyond that period. 

6. Should the mother and the two children have to remain in the USA beyond this month then they will need emergency housing and welfare services.  In order to enable that to occur, so far as it is possible to do so, I will make an order requiring a written undertaking by the father to do all things necessary to make such services available.

7. The mother and father should also be responsible equally for any hospital, medical and dental expenses that the child may incur.  The father will also be required to provide the necessary written undertaking.  An appropriate written undertaking will also be required for the father in relation to ongoing maintenance for the child. 

8. It is one thing to profess the need for a parent child relationship, it is another matter when that attitude must be reflected in a financial commitment to contribute to the child’s maintenance.  In that regard, the father has been sorely lacking. 

9. The mother has a number of understandable concerns which include:

   (a)Relocation to Australia with the child, especially if her status will be that of a non-resident in the USA possibly liable to be deported;

   (b)The mother has been the primary carer both prior and subsequent to the separation of the parents in June 2006.  The effect upon a small child of that relationship being broken could be very traumatic indeed;

   (c)the future financial support of the child in the USA by the father, given the lack of funds to meet in a meaningful way ongoing child related expenses;

   (d)The likely fracture of the mother’s new family unit in Australia, including the benefits to the child of that unit which comprised the mother and her husband who will have to return to Australia because of his employment and commitments there

   (e)The benefits to the child in the short and long term of the likely difficult circumstances of the mother and child in the USA compared to the more beneficial circumstances of them living in Australia on the evidence before me.

10. I emphasised to the mother that those are all matters which lie within the exclusive province of the District Court for its consideration and determination in relation to the best interests of the child.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  7 May 2009