Department of Families, Fairness and Housing & Cullen (No 3)
[2023] FedCFamC1F 323
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Families, Fairness and Housing & Cullen (No 3) [2023] FedCFamC1F 323
File number(s): MLC 6353 of 2022 Judgment of: STRUM J Date of judgment: 17 April 2023 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where a return order pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) was previously made – Where the respondent mother appealed the return order and that appeal was dismissed – Where the applicant State Central Authority seeks to vary the return order due to date of return having passed, as well as other machinery orders to affect return – Return order varied. Legislation: Family Law (Child Abduction Convention) Regulations 1986 (Cth) Cases cited: Department of Families, Fairness and Housing & Cullen [2022] FedCFamC1F 1027
Department of Families, Fairness and Housing & Cullen (No 2) [2023] FedCFamC1F 176
Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 17 April 2023 Place: Melbourne Solicitor-advocate for the Applicant: Ms Davies Solicitor for the Applicant: Department Of Families, Fairness And Housing, Legal Services Branch Counsel for the Respondent: Mr Wilson Solicitor for the Respondent: Kennedy Partners Solicitor-advocate for the Independent Children’s Lawyer: Ms Smith Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid ORDERS
MLC 6353 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
Applicant
AND: MS CULLEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
STRUM J
DATE OF ORDER:
17 APRIL 2023
THE COURT ORDERS THAT:
1.The Applicant (“State Central Authority”) have leave to rely upon their Enforcement Application and Affidavit in support this day and all time be abridged to enable the said Application to be listed this day.
2.Paragraph (2) of the Orders made on 20 December 2022 be varied to read as follows:
2.The child, [X] born […] 2007 (“[X]”), be returned to Poland pursuant to reg 16(1) of the Regulations before 18 April 2023, with an economy class airline ticket to be booked and paid for by the father, [Mr B] (“father”).
3.Paragraph (3) of the Orders made on 20 December 2022 be discharged.
4.Paragraph (4) of the Orders made on 20 December 2022 be varied to read as follows:
4. The father accompany [X] on her return to Poland:
(a)together with his aunt, [Ms E], or another adult female family member or friend known to [X], at his expense; and
(b)he facilitate communication between [X] and the mother by telephone, FaceTime, email or other like means of communication, at least once each day, and otherwise on [X’s] reasonable request, pending further order of a Polish court.
5.Paragraph (9) of the Orders made on 20 December 2022 be discharged.
6.The father notify the State Central Authority (via the Australian Central Authority) in writing of X’s arrival in Poland, within four hours of disembarkation and the State Central Authority in turn notify the mother’s solicitor, the Independent Children’s Lawyer and the Federal Circuit and Family Court of Australia of X’s arrival in Poland as soon as practicable.
7.The Registrar of the Court release X’s passport(s) to the State Central Authority or its nominee.
8.The Independent Children’s Lawyer be discharged upon the expiration of 24 hours from:
(a)X disembarking in Poland; or
(b)being notified by the State Central Authority of X’s arrival;
whichever is to first occur.
9.The mother do all acts and things necessary to and cooperate with the State Central Authority to facilitate the return of X to Poland, including but not limited to:
(a)preparing X’s belongings for departure to Poland including the packing of all clothes, belongings, toiletries and medication, if any that might be required by X for the duration of travel and providing those provisions to the father at handover as prescribed in 9(b) herein; and
(b)to cause X to attend at the Commonwealth Law Courts, Federal Circuit and Family Court of Australia, Child Minding Centre, or such other address notified in writing by the State Central Authority (“the handover address”) on 17 April 2023 at 4.00 pm (“the handover”) and cause X to be delivered to the father and permit X to leave with the father following handover, such handover to occur in the presence of and be facilitated by Ms WW, Director of Court Child Services of the Court, PROVIDING THAT the State Central Authority advises the mother’s solicitors by not later than 3.00 pm today that the father will be in attendance at the time ordered.
10.A warrant for the apprehension or detention of X be issued, pursuant to regulations 14, 15 and 31 of the Family Law (Child Abduction Convention) Regulations 1986, authorising and directing the Marshal of the Federal Circuit and Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Victoria Police Force and all other Police Officers in all other states and territories of the Commonwealth to find and recover X, and to deliver X to the Applicant or such person or institution as the Applicant nominates.
11.The warrant issued pursuant to the immediately preceding paragraph of this Order lie in the Registry, and not be acted upon, pending further order of the Court.
12.In the event that the mother does not comply with the handover of X or handover is not effected as provided for in paragraph 9(b) herein, the State Central Authority have leave to apply to the Court at short notice for the activation of the warrant noted in Order 10 of these Orders upon the State Central Authority providing to the Chambers of the Honourable Justice Strum and the mother’s solicitors an affidavit setting out the particulars of non-compliance.
13.If the warrant is acted upon and issued, a copy of this Order and the warrant be sent immediately by electronic means to the Australian Federal Police Operations Centre by the Melbourne Registry or the After-Hours Service.
14.The mother be, and is hereby restrained by herself, her servants or agents from being at or within 3 kilometres of the airport from which X’s return flight is to depart on the date of departure.
15.In the event notice is not given by the State Central Authority in accordance with paragraph 9(b), the matter be re-listed by the Honourable Justice Strum at 3.15 pm on 17 April 2023.
THE COURT NOTES THAT:
A.The father has booked flights to Poland for himself, his aunt, Ms E, and X departing Melbourne on 18 April 2023.
B.The father affirmed an affidavit dated 1 March 2023 in relation to the care and support arrangements he will put in place for X upon her return to Poland.
C.Section 112AD(1) provides that:
(1)If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances.
D.Section 112AD(2) provides that:
(2) The sanctions that are available to be imposed by the court are:
(a)to require the person to enter into a bond in accordance with section 112AF; or
(b)to impose a sentence by order on the person, or make an order directed to the person, in accordance with section 112AG; or
(c)to fine the person not more than 60 penalty units; or
(d)subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.
E.Section 112AC provides that:
Meaning of reasonable excuse for contravening an order
(1)The circumstances in which a person may be taken to have had, for the purposes of this Part, a reasonable excuse for contravening an order under this Act include, but are not limited to, the circumstances set out in subsection (2).
(2)A person (in this subsection called the respondent ) shall be taken to have had a reasonable excuse for contravening an order under this Act if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Families, Fairness and Housing & Cullen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORESTRUM J:
I have before me today an application for enforcement which also seeks a variation of machinery provisions of return orders that I made on 20 December 2022 pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“Regulations”) in relation to the child, X, born 2007. That application was filed one business day ago, on Friday, 14 April 2023, by the Secretary of the Department of Families, Fairness and Housing (“State Central Authority”). These are my ex tempore reasons.
The trial of the Hague proceedings proceeded before me over several days in October last year., and I made orders and delivered reasons for judgment on 20 December 2022, requiring the child to be returned to her place of habitual residence, being Poland, from which it was conceded she had been wrongfully removed by the mother (“return order”). See: Department of Families, Fairness and Housing & Cullen [2022] FedCFamC1F 1027.
The respondent mother appealed my orders and her appeal was dismissed by the Full Court last Thursday, 13 April 2023. Parallel to her appeal, the mother also filed a discharge application pursuant to reg 19 of the Regulations (“discharge application”), which I heard on 9 March 2023 and dismissed on 21 March 2023. In summary, the mother’s discharge application was based largely upon her assertion that the child had threatened to commit suicide if she were to be returned to Poland. See: Department of Families, Fairness and Housing & Cullen (No 2) [2023] FedCFamC1F 176. In the appellate proceedings, the mother also filed an application in an appeal, seeking leave to adduce fresh evidence, being substantially that upon which she relied in support of her discharge application. That application was similarly dismissed by the Full Court, when it dismissed the mother’s appeal last week.
I refer to and incorporate into these reasons for judgment those that I delivered on 20 December 2022 and on 21 March 2023.
The State Central Authority seeks to vary the return orders, in particular, order 1 thereof, which provided for the return of X to Poland by 30 January 2023. That order was stayed by McNab J in January, whilst I was one leave, pending the outcome of the appeal. That stay has now lapsed by reason of the dismissal of the mother’s appeal and the return order is again operative. Clearly, if the order is to be enforced, the return date of 30 January 2023 must be varied.
The State Central Authority seeks that the return date of 30 January 2023, be varied to tomorrow, 18 April. I am told by the State Central Authority that the father has booked a flight for X and him, accompanied by his aunt (as required by my return order), departing Melbourne tomorrow evening, flying to City M via Country D and City YY. The State Central Authority also seeks orders to give effect to the return order, including a warrant in the event of non-compliance. The State Central Authority’s application is not opposed by the Independent Children’s Lawyer, who concedes that the variation of the return date and the other proposed orders are necessary to give effect to my return order.
The enforcement application was only lodged for filing and served, albeit unsealed, by the State Central Authority on Friday afternoon of last week, in circumstances where the Full Court delivered its judgment the preceding day. The application and the supporting affidavit were accepted for filing and filed at about 11.00 am today. Given the urgency of the matter, it was listed before me today. The enforcement application, unsurprisingly, is opposed by the respondent mother. I am not critical of the fact that no response has been filed, given the timeframe described. I was told by her Counsel, from the bar table, that she simply relies upon my discretion whether or not to enforce my return order and that she seeks I exercise it in her (and X’s) favour.
The mother is not in attendance today, nor is the father. I am not critical of the father in this regard. He lives in Poland, is not a party to the proceedings and I am told by the State Central Authority that he arrived in Australia last night. Given the circumstances of this most unfortunate case, he needs to be rested in the event that X is delivered up to him, which I accept will be trying for both X and him. I acknowledge that it will also be trying for the mother, but she has done nothing to support X in her return, including by accompanying X back to Poland. As I have already previously found, it is not the case that the mother cannot return to Poland; rather, it is merely that she does not wish to do so, irrespective of X’s distress, or increased distress, by reason of her mother’s election not to return with her.
Unlike the father, the mother should be in attendance today. She is a party to the proceedings. I am told by her counsel from the bar table that, first, she is working today and, secondly, she wishes to watch online her relative's funeral, which is said to be taking place overseas at 1.00 pm today (Australian Eastern Daylight Time). As to the first of those matters, namely, that the mother is working, she clearly has been able to take the day (or part thereof) off to watch the funeral of her relative, which I am told she will do with her family, by which I infer she refers to her parents and her sister, all of whom have been the subject of reference at earlier hearings before me. She has attended at all, or most, other hearings previously. As to her relative’s funeral, there is no evidence at all thereof and a short affidavit could and should have been filed. The position is simply inadequate in the circumstances of this case.
In opposing the enforcement application, the mother submits, first, unsupported by any authority, that it would be “unseemly” to return X, who clearly objects to same, when she will attain the age of 16 years soon. That, in my view, is no basis upon which to exercise my discretion to refuse to enforce my return orders. Indeed, to the contrary, it might be said that the mother’s conduct, such as I have found it, between 2016 and 2022, was unseemly, including by reason of my findings that she has alienated the child from her father and that she has enmeshed the child with her own views, as well as her conceded wrongful removal of the child from Poland under the guise of “grave risk” by reason of the war in Ukraine, which abuts Poland, only to abandon that defence at trial.
In support of her opposition to enforcement, the mother secondly, but more importantly, points to an email sent by X to the father on 13 April, being the date upon which the judgment of the Full Court was delivered. It is not clear whether the email was sent before or after the delivery of that judgment. X wrote to her father in the following, unfortunate terms:
‘Dear [Mr B]! No, sadly I am not having a good Easter break […]. I am waiting for a decision made by the court deciding whether or not I am supposed to return to Poland. No matter the outcome I promise I will not be going down with out a fight whether that means putting my life on the line just because you have a strong and extremely weird vendetta against me. As I have said so many times and had no response, I do not intend on returning and it is unthinkable having to go back to a country that I am not from, that doesn’t have my best interests at heart and that has ruined my childhood or prevented it resulting in me having to mature and grow up so much quicker let alone having something so dear to me taken away just because someone with too much power feels like taking it for the sake of winning. So no, I do not ever wish to speak with you. You are such a disgusting and unworthy of love person and I hope you die, so that l can get the satisfaction of seeing you in hell while I am in heaven. Farewell’
Insofar as X said to her father that she would “not be going down without a fight, whether that means putting my life on the line just because you have a strong and extremely weird vendetta against me”, I was pointed to that by counsel for the mother as another threat of suicide or self-harm by X since I delivered my reasons for judgment on 21 March 2023. In my view, it is merely part of the continuum of threats that X has previously made, which I analysed at length in those reasons for judgment, dismissing the mother’s discharge application.
Insofar as X says that she does not intend on returning and it is “unthinkable having to go back to a country that I am not from, that doesn’t have my best interests at heart and that has ruined my childhood or prevented it resulting in me having to mature and grow up so much quicker let alone having something so dear to me taken away just because someone with too much power feels like taking it for the sake of winning”, a number of matters require comment. First, Poland is the country in which X has spent the overwhelming bulk of her life. Secondly, there is no evidence whatsoever to suggest that the Polish legal system does not have regard to the best interests of the children as part of its judicial process. Thirdly, whilst X asserts that Poland is a country that has ruined her or “prevented” [sic] her childhood, given the findings I made in my reasons for judgment delivered on 20 December 2022, there is nothing that suggests this is so. Rather, it seems to be the dispute between her parents, for which they both can be held to some extent responsible but, in particular, the mother, given my findings of alienation and enmeshment by her. Fourthly, insofar as X told her father that he is “someone with too much power [who] feels like taking it for the sake of winning”, again, that is not at all supported by the evidence and my findings in relation thereto at trial, notwithstanding that is a mantra oft-repeated by the mother, and also repeated by the child to various third parties, both in the lead up to the trial and in relation to the litigation in Poland. There no suggestion that the father is intent on winning for the sake of winning, as the child asserts. Rather, I formed the view at trial, having heard his evidence and observed him in the course thereof, that he was merely a father who wished to pursue a relationship with his child who had been alienated by him. If anything, this latter assertion by X fortifies my findings at trial of her enmeshment with and alienation by the mother.
Lastly, insofar as X wrote to her father that he is “a disgusting and unworthy of love person” [sic] and that she hopes he dies “so that I can get the satisfaction of seeing you in hell while I am in heaven”, that too is consistent with my findings of alienation and enmeshment . Whilst X refers to the perverse satisfaction of seeing him in hell, whilst she is in heaven, it is far from clear whether this reference is proximate or distant, namely, whether it is a threat to commit suicide in the immediate future or a reference to her eventual death, in the fullness of time. Even if it be the former, that is something I considered in dismissing the mother’s discharge application and I find it is, at most, part of the continuum of threats that she is has made since the trial concluded in October last year.
Counsel for the mother submitted that the mother is not playing tactics. Whilst I was initially concerned that might be the case, it would have been mere speculation by me, and impermissibly so, without more. However, that concern changed from mere speculation when, during the hearing, counsel for the mother submitted that I should not enforce the orders and simply let the child’s treating psychologist endeavour to reintroduce the father and child on Thursday or Friday of this week. If that proposal had been bona fide, it would have been sought for such meeting to occur today or tomorrow. However, when I sought confirmation from counsel for the mother, it was confirmed that her proposal was indeed for such reintroduction to be attempted after my return order will have lapsed. No reason whatsoever was proffered for the proposed timing. In the circumstances, on balance, I am satisfied to the requisite standard that the mother is, indeed, seeking to play tactical games in a further and last-minute endeavour to preclude X’s return to Poland, as ordered by me.
In all the circumstances, I shall grant leave to the State Central Authority to rely upon its enforcement application and the affidavit of Ms Davies that was sworn last Friday, 14 April 2023, and I shall grant the application and to make orders substantially in terms those sought the minute of orders sought by the State Central Authority.
The orders will be engrossed forthwith by my chambers and my reasons for judgment will be transcribed and settled and made available to the parties as soon as possible.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 27 April 2023
0
2
0