Department of Family and Community Services and Arthur

[2017] FamCA 204

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY & COMMUNITY SERVICES & ARTHUR [2017] FamCA 204

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the substantive proceedings have been heard and orders made for the return of the child to New Zealand – Where the proceedings were adjourned in relation to the conditions of the child’s return – Where some conditions are agreed between the parties – Where there are financial and other difficulties in relation to a practicable and enforceable order for return – Orders made to give effect to the return order after conditions have been met including the provision of financial support by the father to the mother – Orders made to stay the return order until the mother’s appeal is finalised.

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

Colak & Viduka (2016) FLC 93-707
DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401
Re M. (Abduction: Undertakings) [1995] 1 FLR 1021
Wolford & Attorney-General’s Department (2014) FamCAFC 197

APPLICANT: Department of Family & Community Services

RESPONDENT: Ms Arthur

FILE NUMBER: SYC 4935 of 2016

DATE DELIVERED: 24 January 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 24 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms Nesbitt

COUNSEL FOR THE RESPONDENT: Ms Bridgett

SOLICITOR FOR THE RESPONDENT: Feminist Legal Clinic

Orders

1. In order to give effect to the return order made on 22 December 2016, the mother shall cause the return of B born … 2011 (“the child”) to New Zealand by air, as soon as practicable after the following conditions have been met:

1.1The receipt by the mother’s solicitors of airline tickets or of an amount equivalent to the costs of those tickets into an account nominated by the mother, for travel for herself and the child from Sydney to City D or such other New Zealand city as the parties agree.

1.2The receipt into an account nominated by the mother of such reasonable sum as may be nominated by her or approved by the Court for the purposes of securing furnished accommodation in New Zealand for two months, comprising the cost of rent for that period and of any necessary rental bond.

1.3On receipt by the mother’s solicitors of a written undertaking from the father that he will pay into an account nominated by the mother at the rate of NZ$535 per week for the sustenance of the mother until the mother commences to receive welfare payments from the New Zealand Social Service authority, the first payment is to be made not later than seven days prior to the date fixed for the mother’s flight to New Zealand and payments are to be made weekly thereafter.

1.4On receipt by the mother’s solicitors of advice that the father has fully paid his child support obligations in relation to any child support assessed or levied in New Zealand or in Australia.

1.5On receipt by the mother’s solicitors of a written undertaking from the father:

(a)     that he will forthwith provide to his current employer a copy of the existing New Zealand Protection Order effecting him and the mother; and

(b)    that he will not use or access any firearm pending further order of the New Zealand Family Court.

1.6On receipt by the mother’s solicitors of a written undertaking from the Central Authority that the said flight details will be kept confidential and will not be provided to the father or to any members of his family or the family of the mother..

1.7On receipt by the mother’s solicitors of a written undertaking from the father that he will not attempt unsupervised contact with the mother or the subject child and will act in strict accordance with the existing parenting and protection orders made by the New Zealand Family Court.

1.8On receipt by the mother’s solicitors of a written undertaking from the father that he will not attempt to make any contact with the mother’s daughter C.

1. The Court Noted that conditions 1.5, 1.6, 1.7 and 1.8 were conditions agreed and settled at the initiative of the parties.

1. The mother shall sign all documents and do all things as soon as practicable to make application to the New Zealand government for:

   (a)social welfare payments and subsidised accommodation for her return to New Zealand; and

   (b)access to any funds available to parents returning to New Zealand pursuant to orders made in Hague Convention proceedings.

2. The mother shall forthwith give written notice to the applicant, the father and upon the commencement of parenting proceedings in respect of the child in the New Zealand Family Court, that Court, of the outcomes of her applications referred to in order 3.

1. The Central Authority must not disclose to the father or any member of his family or to any member of the mother’s family, the address of accommodation occupied by the mother on her return to New Zealand.

1. By consent, orders and notation are made in the terms of the document titled “Short Minute Order” (Exhibit 2 dated 24 January 2017), as set out hereunder:

1.      The Orders dated 22 December 2016 be stayed until the Respondent’s appeal filed on 18 January 2017 is finalised.

2.      The Court notes the undertaking given by the Respondent in the following terms:

(i)The Respondent will reside with her father, Mr A, at his address at Suburb K in the State of New South Wales until the appeal is finalised.  The Respondent’s daughter, the child B, will reside with the Respondent at this address for the duration of these legal proceedings and the Respondent will not remove her daughter from Australia.

(ii)The Respondent will advise the Family Court should she have any cause to change my address during the legal proceedings.

1. The Court notes that it is a condition of the stay pursuant to order 6.1 herein that the mother diligently prosecutes her appeal in relation to the substantive judgment.

1. In order to facilitate the return of the child and the mother to New Zealand, the passports of the mother and the subject child shall be released by the Registry to the Central Authority on request.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Family and Community Services & Arthur has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 4935 of 2016

Department of Family & Community Services 

Applicant

And

Ms Arthur

Respondent

REASONS FOR JUDGMENT

1. These are proceedings under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The matter was heard on 14 December 2016 and judgment was reserved. Judgment was published and orders were made on 22 December 2016. The Central Authority’s application was granted and the proceedings were adjourned to 9 January 2017 in relation to the terms of an order for the return to New Zealand of the child B (the child), born in 2011 and any conditions or undertakings required for that order.

2. I understand that contact was subsequently made with my chambers, that the parties agreed that 9 January was not a suitable date, and they asked that the proceedings be adjourned to this date for the purposes identified in the order. I understand that there may have been some communication then subsequently with my chambers about the matter being further adjourned, associated with an application for a stay which relied on an appeal which has been lodged in the proceedings. The practical problem was that I am not in the registry for about three weeks after Wednesday of this week. These are proceedings that were heard by me and the remaining issues would ideally be dealt with by me. There is a reference in the Regulations to disposition of Convention proceedings within 42 days and that has not been honoured in these proceedings. A further adjournment was not allowed and the matter remained listed today.

3. Some reference is made in these reasons to the Reasons for Judgment published on 22 December 2016 and the findings referred to in those reasons are relevant to the decisions about conditions.

4. The parties have engaged in some discussions about a possible set of undertakings or orders that would apply as conditions of the order that the mother return the child to New Zealand.  The return order is not a discretionary order.  The court is obliged to make that order because of certain findings made in the substantive hearing.  As the reasons for judgment in the substantive proceedings make plain, the financial circumstances and difficulties of the parents were influential in the lead up to the wrongful removal of the child.  Those same issues loom large in relation to conditions necessary for a practicable and enforceable order for return.

5. The mother has proposed a menu of appropriate conditions.  Some of them are not well fleshed out.  Some conditions are agreed.

6. The court has been critical of trial judges complicating the issue of return and establishing conditions that are difficult to meet.  In a decision of Wolford & Attorney-General’s Department (2014) FamCAFC 197, 10 October 2014, the court referred to a decision, of the Court of Appeal of England and Wales, Re M. (Abduction: Undertakings) [1995] 1 FLR 1021, at 1025, where Butler-Sloss LJ explained the role of undertakings. She said:

   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 the head, adequate maintenance, etcetera, until, and only until, the court of habitual residence can become seized of the proceedings brought in that jurisdiction.

7. I was told that the mother had no intention of taking proceedings in New Zealand.  That is difficult to understand and on reflection, is probably wrong.  I assume she will want to take proceedings in New Zealand.  I assume she will belatedly want the permission of the New Zealand court to do the thing that she did without the father’s agreement, to bring the child to Australia.  In this case there is the relevant fact that the mother has another daughter who is resident in New Zealand.  She will presumably need arrangements put in place in respect of her time with that daughter. 

8. In any event, whether that happens or not, the father has indicated through the applicant that he intends to take some proceedings in New Zealand.  The parents agitated some matters in the New Zealand Family Court and then variously did not enforce the orders obtained or did not take meaningful part in the proceedings.  Hopefully they will be more diligent about that in the future. 

9. In a decision of Colak & Viduka (2016) FLC 93-707, the Full Court quoted the joint judgment in DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401. Taking up the quote:

   40.There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on 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.

10. I will make orders in terms of the conditions that have been agreed between the parties and will rule on the issues in dispute. 

11. The father has agreed that he will meet the cost of airfares for mother and child to travel to New Zealand.  The point of controversy is the payment of incidental travel costs.  There is no evidence or indication of the quantum of the incidental travel costs.  That was a matter that would be known to the mother.  The father says he cannot meet those costs.  That is a relevant consideration and of concern about other conditions.  I will only make the agreed order that the airfares be paid. 

12. An undertaking is sought from the Central Authority that the flight details be kept confidential and that is agreed. 

13. As to accommodation, the mother seeks that the father pay into a fund an amount sufficient to secure six months furnished accommodation, including rent and bond, and she wants to retain the bond at the end of the lease.  The father does not agree.  In my view such an order would go beyond what conditions are necessary.  My obligation is to make practical orders to secure the return of the child to New Zealand and to identify provision for preliminary accommodation and sustenance, until those issues can be taken up by the New Zealand court.  The mother and child will need to live somewhere on arrival.  As is referred to in the substantive judgment, the mother is now estranged from the maternal grandmother, who has provided accommodation in the past.  Suffice it to say, the mother cannot live with the father.

14. I will order is that the father pay the costs associated with two months of accommodation.  That will give the mother time to make appropriate arrangements or to bring the proceedings before the New Zealand court and to secure appropriate orders.  It may be, of course, that in that time she is able to access subsidised housing, or take advantage of a fund that I am told is available in New Zealand.  That may be possible. 

15. Next, undertakings are sought from the Central Authority that it not advise the father or family members of the mother’s location.  The Central Authority was not entirely comfortable with that.  I will make an order that the Central Authority not notify the father or any member of the mother’s family as to the details of any accommodation that the mother takes up. 

16. It is agreed that the father will not attempt unsupervised contact with the child until permitted by a court.  The parents put in place arrangements with the New Zealand court for the only time between the father and the child to be at a supervised facility, and remarkably, the father did not comply with that order and the mother did not insist on compliance.  That condition is agreed.

17. The father has agreed that he will not have contact with C, the mother’s older child, and that is agreed. 

18. The father should pay any costs that fall to the parents in relation to time between the child and the father at a supervision facility.  The Central Authority thinks that there may be an exemption from such fees in relation to cases where there is a prohibition order in place.  Therefore there may be no costs.  However, I will order that he meet any such costs.  If he does not pay those costs, there will not be any time.  That is not, strictly speaking, anything to do with return, but it will help explain to the parents what the rules are. 

19. The mother wants the father to bring his arrears of child support up to date.  I think that is appropriate.  He has invoked the Convention.  The child has to be financially supported.  The father must meet his obligations.  It is the unchallenged case of the mother that the child support is in arrears.  Therefore, a condition of return, will be that the arrears are brought up to date before the mother is required to leave the Australia. 

20. Condition 9 sought by the mother is that arrangements be in place with the New Zealand authorities for the mother to receive New Zealand welfare benefits:  I do not have a way of influencing that outcome, nor do I believe that the Central Authority has that power.  That will not be a condition.  Albeit strictly not a condition of return, I will order that as soon as practicable, the mother take all steps available to her to seek the commencement of welfare benefits and any subsidised housing that is available to her in aid of these orders.

21. A further condition sought is that there be a payment of $535 per week by the father until the mother’s benefits are paid.  I am told that is a similar amount to the benefit.  That is a category of condition that Butler-Sloss LJ identified.  It is obviously necessary.  Preliminary support will be needed on a weekly basis, and in advance.  I will order that the father pay into an account nominated by the mother, weekly in advance, $535 per week until the mother commences to receive welfare benefits in New Zealand.  The first payment is to be made not later than a week prior to the mother departing Australia and payments are to be made weekly thereafter.  Of course, that order will be subject to any order of the New Zealand court.

22. There is an issue about firearms.  The mother seeks an undertaking from the father to provide a copy of the protection order that is in existence in New Zealand to his current employer, and to provide an undertaking to the mother that he will not access or use firearms pending an order of the New Zealand Family Court.  I will make that order.

23. I will order that in the event that effect is ultimately given to the orders made on 22 December 2016 and the orders made today, the registry manager is to release to the Central Authority on request not later than seven days prior to the mother’s return to New Zealand, the passports of the mother and the subject child. 

I certify that the preceding twenty-three paragraphs (23) are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 24 January 2017.

Associate: 

Date:  6 April 2017