Department of Family and Community Services and Smollett

[2018] FamCA 265

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & SMOLLETT [2018] FamCA 265

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Hague – Where the respondent mother seeks a third adjournment to obtain a grant of Legal Aid –  Where the application should be dealt with promptly – Where circumstances do not justify allowing an adjournment– Application dismissed.

Family Law (Child Abduction Convention) Regulations 1986 (Cth) rr. 19A, Article 1(a), Article 12

APPLICANT: Secretary, Department Of Family And Community Services Secretary

RESPONDENT: Ms Smollett

FILE NUMBER: SYD 6905 of 2017

DATE DELIVERED: 24 April 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 24 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: Legal Services Unit, Department Of Family And Community Services

COUNSEL FOR THE RESPONDENT: In Person

Orders

1. That the order 2 of these orders shall take effect on 24 May 2018;

2. That the orders made on 21 December 2017 are varied as follows:

   (a)       By deleting orders 1 and 3 to 8 inclusive and;

   (b)       By substituting the following:

   (i)That the Applicant and the father, Mr D make such arrangements as are necessary to ensure the return of the subject child, B (female) born … 2016 to New Zealand in the company of the father as soon as practicable. (1)

   (ii)The Respondent mother, Ms Smollett shall cooperate with the Applicant and the father to facilitate the return of the subject child to New Zealand including but not limited to making the child available to the father at a time and place (within Sydney metropolitan region) nominated by the Applicant. (3)

   (iii)The respondent mother shall forthwith release the subject child’s passport to the Applicant who shall then release it to the father. (4)

   (iv)That the father shall meet the cost of the subject child’s airfare to New Zealand. (5)

   (v)That the applicant have leave to approach on short notice for the issue of a recovery order in the event the mother does not comply with any of the preceding orders. (6)

3. In the event that the mother complies with the orders made on 21 December 2017, on or before 23 May 2018, then these orders do not take effect.

THE COURT NOTES THAT:

1. In the event that on or before close of business Friday 4 May 2018, the mother files an application pursuant to regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), and or such other application that the mother deems appropriate, together with any supporting evidentiary material, then that application will be heard on 18 May 2018 at 10:00am.

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 Department of Family and Community Services Secretary & Smollet 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: SYD 6905 of 2017

Department Of Family And Community Services Secretary 

Applicant

And

Ms Smollett

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the respondent mother has applied for an adjournment of the application in a case filed by the Central Authority on 1 March 2018. As will be discussed, the application in a case seeks a variation of the machinery orders made on 21 December 2017 in respect to the return of the child, B, born in 2015, to New Zealand. 

2. The mother’s application for an adjournment is based on the fact that she has not been in a position to secure legal advice in the period since these proceedings were last adjourned on 23 March 2018. In particular, the mother has been unable to secure a grant of Legal Aid, and the lawyer she proposes to retain is not prepared to act on the her behalf without the matter being funded. In that context, the mother has advised the Court that, while an initial application for Legal Aid was made prior to 23 March 2018, that initial application was, as she understands, misplaced somewhere within the office of New South Wales Legal Aid. 

3. The mother advised that, on 12 April 2018, a further application for Legal Aid was made and that she anticipates that application will be determined during the course of this current week, that is, by 27 April 2018.

4. I decline to grant the adjournment sought by the mother on the basis that the application in a case was first listed on 9 March 2018 and was subsequently adjourned until 23 March 2018.  The first adjournment occurred in circumstances where the Court was advised that the mother was unwell and the Central Authority, on that basis, consented to the matter being adjourned until 23 March 2018. On 23 March 2018, the matter was adjourned until today, 24 April 2018. The purpose of that second adjournment was to enable the mother to secure legal advice and to await determination of her application for Legal Aid. 

5. Orders were made on 23 March 2018 setting a timetable for the mother to file relevant documentation to enable any relevant application by her to be considered by the Court today. In the circumstances that I have outlined above, that has not occurred.

6. The Central Authority opposes the mother’s application for an adjournment and it has not been necessary for me to receive argument from the Central Authority in that respect.

7. I am satisfied that having regarding to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), that it is important for applications for the return of a child to be dealt with expeditiously and for arrangements to be put in place for that to occur.

8. In that context, Article 1(a) of the Convention, provided in Schedule 1 of the Regulations, relevantly provides that:

   The objects of the present Convention are:
   
   a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State (Emphasis added)

9. Further, Article 12 of the Convention provides that, where the judicial authority of the contracting state finds that the grounds for a return order are established, the order must be for the “the return of the child forthwith.” (Emphasis added).

10. Given the emphasis on expeditious return of a child in circumstances where the Court has determined that should occur, the reasons advanced by the mother for the adjournment are insufficient and, on that basis, I reject the mother’s application. 

11. In the circumstances, I invited the Central Authority to respond to a proposal that I make orders in accordance with the orders sought by the Central Authority in the application in a case filed on 1 March 2018, but deferring the operation of those orders until 24 May 2018. The purpose in doing so is to accommodate a process whereby the mother has the opportunity to file an application under regulation 19A of the Regulations for the discharge of a return order providing it is filed by close of business on Friday, 4 May 2018. If the mother were to file such an application, I would allocate the time needed for the hearing of any such application, or such other application that the mother deems appropriate, on 18 May 2018. 

12. The mother was invited to respond to the indication from the Central Authority that they were satisfied that the course of action proposed was appropriate. The mother indicated that she did not wish to be further heard in respect to that matter.

13. Accordingly, orders and notations are made in accordance with those sought in the application in case filed by the Central Authority on 1 March 2018 and as set out at the commencement of this judgment.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 24 April 2018.

Associate: 

Date:  27 April 2018