Director-General, Department of Communities, Child Safety and Disability Services & Pelt
[2012] FamCA 343
•15 May 2012
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & PELT | [2012] FamCA 343 |
| FAMILY LAW – CHILD ABDUCTION - HAGUE CONVENTION - Whether children to be returned - Where the Respondent no longer pursues defence to the Application but seeks to delay the return date - Where the Respondent Mother requests that the return be delayed until the end of the Australian school term - Whether discretion to delay the return |
| Care of Children Act 2004 (NZ) Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1987 ATS 2 (entered into force generally 1 December 1983) Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| De L v Director-General, New South Wales Dept of Community Services (1996) 187 CLR 640 Department of Communities (Child Safety Services) & Lugge [2012] FamCA 67 Department of Community Services v Frampton (2007) FLC 93-340 Department of Communities (Child Safety Services) & Lugge [2012] FamCA 67 Murray & Tam, Director-General Family Services ACT(intervener) (1993) 16 Fam LR 982 Re A (a minor) [1988] 1 FLR 365 |
| APPLICANT: | Director-General, Department of Communities, Child Safety and Disability Services |
| RESPONDENT: | Ms Pelt |
| FILE NUMBER: | BRC | 2197 | of | 2012 |
| DATE DELIVERED: | 15 May 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 11 May 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Linklater-Steele |
| SOLICITOR FOR THE APPLICANT: | Crown Law |
| SOLICITOR FOR THE RESPONDENT: | Cope Family Law |
Orders
The children, M, born … August 1998, and L, born … July 2002, be returned to the country of New Zealand; and for the purposes of giving effect to this Order:
(a) the said children leave the Commonwealth of Australia on or before 22 May 2012;
(b) the said children arrive in New Zealand on or before 23 May 2012;
(c) pending the said children returning to New Zealand, the Respondent Mother, Ms Pelt, born … June 1962, continue to be restrained and an injunction is hereby issued restraining her from removing or attempting to remove the said children from the Commonwealth of Australia;
(d) pending the return of the said children to New Zealand, the Respondent Mother continue to be restrained and an injunction is hereby issued restraining her from changing the residence of the said children from the premises where the children and she are currently residing, namely … B Street, Town A, in the State of Queensland, Australia;
(e) subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent Mother and the said children on the All Ports Watch Alert System at all international departure points in Australia;
(f) the said children and the Respondent Mother be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services Unit, of the Department of Communities, Child Safety and Disability Services (formerly known as “Department of Communities”), advising of the travel arrangements made for the said children to return to New Zealand from 12.00 am on the date nominated for the said travel in the letter;
(g) the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders;
(h) to facilitate the return of the said children to New Zealand, an officer of the Department of Communities, Child Safety and Disability Services be at liberty to release to the Respondent Mother all current passports relating to the children for the purpose of the said children’s return and release the passport of the Respondent Mother to her or her nominee upon her request;
(i) liberty to apply be granted to the Applicant to seek any further Orders necessary to allow her or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the children in accordance with this Order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
The Respondent Mother, Ms Pelt, born … June 1962, pay all the necessary expenses associated with returning the said children to New Zealand, including the cost of airfares and departure taxes (if any) for the children to travel from Cairns to New Zealand, and in the event that the Respondent Mother fails or refuses to pay these expenses, the Respondent Mother pay to the Applicant the necessary expenses incurred by or on behalf of the Applicant and Mr Stone in returning the children to New Zealand within two business days of the Applicant making a written demand for reimbursement of the said expenses.
There be liberty to apply.
There be no Order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Pelt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 2197 of 2012
| Department of Communities, Child Safety and Disability Services |
Applicant
And
| Ms Pelt |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 12 March 2012, the Director-General, Department of Communities, Child Safety and Disability Services (then known as the Director-General, Department of Communities (Child Safety Services)), in her capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), applied for final Orders that M, born in August 1988, and L, born in July 2002, (“the children”) be returned to the country of New Zealand.
The Regulations, which are made under ss 111B and 111D of the Family Law Act 1975 (Cth) (“the Act”), give effect to the Convention on the Civil Aspects of International Child Abduction[1] (“the Convention”), which is set out in Schedule 1 to the Regulations.
[1] Opened for signature 25 October 1980, 1987 ATS 2 (entered into force generally 1 December 1983).
The person who made the “request” within the meaning of reg 2 of the Regulations is the children’s father, Mr Stone (“the Father”), who is currently residing in New Zealand, and the Respondent to this application is the children’s mother, Ms Pelt (“the Respondent”).
On 23 March 2012, being the first return date of the application, I made a number of Orders, including what may be conveniently described as the usual Orders on the first return date of such an application having regard to the content of the Form 2 application and the material in support of it, which established a prima facie case for a return Order to be made.
At that interim stage, the Respondent was represented by her solicitor, Ms Cope, who appeared by telephone (leave having been given for that to occur). At that stage, the Respondent sought to rely upon the documents identified in the list filed on 23 March 2012 which comprised material the Respondent had by then filed in the Federal Magistrates Court by way of parenting Orders the Respondent sought.
Because the Respondent’s solicitor submitted to the effect that, on her then instructions, the grounds of defence would include that the children objected to being returned to New Zealand and having regard to the ages of the children, the Orders made on 23 March 2012 included an Order pursuant to reg 26 of the Regulations to obtain a report to the Court from a Family Consultant. The trial was listed for 11 May 2012 to enable that report to be obtained.
By her Answer and Cross-Application in the Form 2A filed on 11 April 2012, the Respondent sought the dismissal of the application on the following grounds:
1. The country of habitual residence of the subject children is now Australia.
2. The children object to being returned to New Zealand.
3. The father consented to the children being removed to Australia.
4. If the children were to return to New Zealand, they would be exposed to a grave risk of physical or psychological harm or otherwise be placed in an intolerable situation.
On 11 April 2012, in the Cairns Registry of this Court, Mr H, Family Consultant, undertook interviews with the Respondent and the children and with the Father by telephone pursuant to the relevant Orders made on 23 March 2011. Mr H compiled his report dated 18 April 2012 which was admitted into evidence in the final hearing as Exhibit 1.
Whilst the reg 26 report is dated 18 April 2012, it appears it was not received by the Respondent until on or about 30 April 2012.
Exhibit 2 comprises several items of correspondence tendered by the Respondent at the hearing on 11 May 2012. That includes a letter written by the Respondent’s solicitors dated 8 May 2012, which, paraphrased, expresses on behalf of the Respondent that having had the opportunity to review the report of Mr H and to review, “…the report of [Mr H] and the Father’s evidence…” the Respondent would not, “…defend…” the application. The letter states:
Our client therefore agrees to return to New Zealand with the boys. She is prepared to sign consent Orders in the following terms:
1.That she return the [children] to New Zealand; and
2.That there be no order as to costs.
That letter requested that the Father agree to certain proposals, including that the children be allowed to remain in Australia until the end of June 2012 (essentially to enable them to complete the school term in Queensland) and also that the Mother and the children be allowed to return to the family home in New Zealand.
Thus, as at the final hearing on 11 May 2012, the Respondent did not contest the making of a return Order. What remained in issue was the timing of the return. The Applicant seeks an Order that the children leave the Commonwealth of Australia on or before 17 May 2012 and arrive in New Zealand on or before 30 May 2012. The Respondent’s contention is that the return Order ought provide for the children to return to New Zealand on or before 30 June 2012.
Whilst the correspondence referred to in Exhibit 2 raises or discusses issues of costs, in the result the Applicant confirmed that no costs Order was sought by the Applicant, and both parties agreed that whatever the outcome in terms of the timing of the return, there ought be included an Order that there be no Order as to costs of the application.
Brief Chronology
The Respondent was born in 1962 in Australia. The Father was born in 1961 in the United Kingdom. They met and commenced living together in North Queensland in about December 1992. They moved to New Zealand on 14 July 1993 and married in New Zealand in June 1996.
Both children were born in New Zealand and the family resided in New Zealand throughout the lives of the children until the events giving rise to the present application occurred. In New Zealand, the family resided in the Canterbury region and lived about 30 minutes by car travel outside Christchurch city.
In about July 2011, the parents agreed to separate. On 21 July 2011, the parents both signed a document described as a “Memorandum of Agreement”, which is attached to the application (“the agreement”).
I note that the agreement records that New Zealand is the habitual residence of M and L. The agreement also records the parties’ agreement for the Respondent to depart New Zealand to travel to North Queensland on 27 July 2011. It further records that the Respondent would return to New Zealand, “…on or before 27 January 2012, with [the children], to enable [M], in particular, to start at [S School], Christchurch.”
There was also an agreement allowing for M to return temporarily to New Zealand in late 2011 to undertake an entrance assessment test at S School, and that seems to have occurred in about November 2011 (on 28 November 2011 the parties signed a further agreement which, inter alia, confirmed the return of the children to New Zealand on 27 January 2011).
The agreement also records that the law of New Zealand applies to it.
It is not in issue that both parents agreed that the decision to relocate the children from Christchurch to North Queensland was initially intended as a period of respite for them against the background of the tragic experience by the citizens of Christchurch of the earthquake in June 2011.
The evidence of the Respondent suggests that the agreement for her and the children to travel from New Zealand to North Queensland was reached in about June 2011 and it is not in issue between the parties that the travel occurred on 27 July 2011, nor, in the end, is it in issue that the children were due to be returned to New Zealand by 27 January 2012.
However, on 12 January 2012, the Respondent caused her solicitors to write to the Father indicating or foreshadowing that the return on 27 January 2012 would not occur and the children were not returned. On 20 January 2012, the Respondent instituted proceedings in the Federal Magistrates Court.
As was contemplated by the agreement, the Respondent enrolled the children to attend school during the period of time they have spent in Australia, and both boys have been attending school here.
Specific Findings: Regulations
As already noted, following the receipt by the Respondent of the reg 26 report, the Respondent provided instructions to her solicitor, Ms Cope, that she would agree to return the children to New Zealand and that she no longer intended to defend the application but added proposals, including that as to when the return ought occur.
By affidavit of the Respondent’s solicitor, filed by leave on 11 May 2012 at the trial, that position was confirmed formally to the Court. At paragraph 3 of her affidavit, Ms Cope deposes:
I hold instructions from the Respondent Mother to agree to return the children to New Zealand and to negotiate the date of return. Those instructions were communicated to Crown Law and the Father’s solicitor in New Zealand on Tuesday 8 May 2012.
That affidavit confirms (paragraph 11) that the reg 26 report was not received by Ms Cope (or thus by the Respondent) until 30 April 2012.
I find that, based upon the Form 2 application and the material filed in support of it; and also having regard to the feature that the Respondent withdrew her opposition to the making of a return Order as communicated on 8 May 2012; I am satisfied that the Applicant establishes each of the matters it is required to establish under reg 16(1A) of the Regulations.
It is not in issue that both children are under the age of 16 years, and I so find (reg 16(1A)(a)).
I am satisfied that the children were to be returned to New Zealand on 27 January 2012 and that as at that date, being the date of wrongful retention for the purpose of the Regulations, the children were habitually resident in a Convention country, namely New Zealand (reg 16(1A)(b)).
I accept the evidence of Mr Keith George Hales, a solicitor in New Zealand, that, pursuant to the Care of Children Act 2004 (NZ), the Father has, together with the Respondent, joint and equal guardianship rights comprising rights of custody within the meaning of the Regulations. I find that neither the agreement nor the feature that the Respondent instituted proceedings in the Federal Magistrates Court of Australia in January of this year altered the rights of custody possessed by the Father.
I therefore find that the Father had rights of custody in relation to the children under the law of New Zealand, their country of habitual residence, immediately prior to their retention in Australia on and from 27 January 2012 (reg 16(1A)(c)). I am satisfied that the retention of the children in Australia is in breach of those rights of custody (reg 16(1A)(b)) and that at the time of their retention, the Father was actually exercising his rights of custody or would have exercised those rights if the children had not been retained (reg 16(1A)(e)).
Plainly, the filing of the application on 12 March 2012 was within the period of one year after retention on 27 January 2012 required under reg 16(1).
I am therefore satisfied that the children’s retention in Australia on 27 January 2012 was wrongful within the meaning of reg 16(1A).
I further find that no ground for refusal to make an Order as set out in reg 16(3) is established. I reiterate that the Respondent does not contend otherwise.
Respondent’s Contention Re: Return Order
The Respondent contends that the wording of the preamble to the Convention and the language of reg 15 of the Regulations in using the word “may” in relation to the making of Orders, combined with the words, “…appropriate to give effect to the Convention…”, either alone or in conjunction with reg 16, which sets out the obligation to make a return Order, and reg 20, which sets out the arrangements for return; give rise to a discretion for the Court to nominate a return date in the return Order asserted by the Respondent to be consistent with the children’s best interests.
The Respondent further contends that, the discretion thus established, it ought be exercised in this case to nominate the date for return as, “…on or before 30 June 2012.” The Respondent contends that this timing would allow the children to finish their respective current school terms in Australia; to have time to say their goodbyes to friends and family and to pack their belongings; to return to New Zealand well before the next school terms starts on 16 July 2012; and to enable the Respondent sufficient time to make her living arrangements for her return.
The Respondent refers to the feature that the children have now been in Australia for over nine months, the first six months of which were by consent of the parties. The Respondent contends that the original agreement contemplated a managed return to New Zealand to allow for arrangements to be made for the next school year and that a similar approach ought be taken in the exercise of the discretion said to exist for the Court to nominate the date specified by the Respondent as the date for return.
Existence of Discretion
The purpose of the Convention was authoritatively explained by the majority of the High Court in De L v Director-General, New South Wales Dept of Community Services (1996) 187 CLR 640. In dealing with the preamble, the majority (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) stated:
The preamble to the Convention recites the firm conviction of the State parties “that the interests of children are of paramount importance in matters relating to their custody” and their desire (i) “to protect children internationally from the harmful effects of their wrongful removal or retention” and (ii) “to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” The objects of the Convention, as stated in Art 1 are:
(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.
Thus, it may be said that the Convention is concerned with reserving to the jurisdiction of the habitual residence of the child in a Contracting State the determination of rights of custody and of access. This entails preparedness on the part of each Contracting State to exercise a degree of self-denial with respect to “its natural inclination to make its own assessment about the interests of children who are currently in its jurisdiction by investigating the facts of each individual case.”
(footnote omitted; emphasis added)
Thus, the majority of the High Court held that the requirement in the Act, then expressed in s 64(1)(a), that the welfare of the children be the paramount consideration, did not apply to proceedings under the Regulations such that the discretion under reg 16(3)(c) was governed by the subject matter, scope and purpose of the Regulations. That subject matter was held to make the welfare of the child a relevant consideration, but not the paramount consideration.
The majority of the High Court referred to the Convention as reflecting a compromise and, at p 649, approved of the following statement as to the nature of that compromise:
Most delegates at The Hague were agreed that, after a wrongful removal to, or retention in another country, its Courts – in principle at least – should order the return of the child forthwith without entering into the merits of any custody dispute between the parties. Some delegates, indeed, argued that the achievement of the main purpose of the Convention would be imperilled if the door were left even slightly ajar to abductors to justify the new situation of the child by an enquiry in the State to which the child had been abducted, into what allocation of custody rights was in the best interests of the child. Other delegates, while accepting that in principle an abducted child should be returned forthwith, considered that in certain cases a departure from this principle might be justified in the interests of the child…
What emerged was inevitably a compromise. It was agreed that a refusal to return the child should not be based on public policy or any analogous general ground. The Convention should rather limitatively enumerate the exceptions which it allowed.
As is made plain by the decision of the High Court, the Convention is not directed at the question of what the welfare of the children requires on an individual or case-by-case basis. The Convention transposes the principle that interests of children are of paramount importance to respond to the problem of international child abductions as a whole; it is the interests of children collectively that the Convention seeks to further by returning wrongfully removed and retained children to their home environment. Once there, a substantive hearing can be held to investigate the merits of the actual case.
It has been re-affirmed on many occasions and in many Courts that the welfare of the individual child is not the first and paramount consideration in Convention cases.[2]
[2] See, for example, C v C (minor; abduction; rights of custody) [1989] 2 All ER 465 at 471; Re N (minors)(abduction) [1991] 1 FLR 413 at 417; Re A (minors)(abduction; custody rights) No 2 [1993] Fam LR 1, 14; Re H.B. (abduction; children’s objections) [1997] 1 FLR 392, 400; Currier v Currier 845 F.Supp. 916, 920; Clarke v Carson [1996] 1 NZLR 349; Thomson v Thomson [1994] 3 SCR 551 at 578.
In this context, it is to be noted that Article 19 of the Convention specifically provides that a decision under the Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. Under Article 16 of the Convention, a decision concerning the custody of a child shall not be made until it has been determined that the child is not to be returned.[3]
[3] Article 19 is reflected in reg 18(1)(c) of the Regulations.
In Re A (a minor) [1988] 1 FLR 365 at 369, Nourse LJ stated:
Except in certain specified circumstances, the judicial and administrative authorities in a country to or in which the child is wrongfully removed or retained cannot refuse to order the return of the child, whether on grounds of forum or on a consideration of what is in the best interests of the child or otherwise.
Thus, having regard to the purpose of the Convention, it has been held that consideration of an application for return should not be delayed by application for an Australian parenting Order[4] or contact Order[5] under the Act, and that nor should return of the child be delayed by adjournments of an appeal against the Court’s Order.[6]
[4] Department of Families, Youth and Community Care v Moore (1999) 24 Fam LR 475.
[5] Director-General, Department of Community Services Central Authority v RMS (1999) 27 Fam LR 259.
[6] DM v Director-General, Department of Community Services (1998) 24 Fam LR 168.
In Murray & Tam, Director-General Family Services ACT(intervener) (1993) 16 Fam LR 982 at 1000-1, Nicholson CJ and Fogarty J held that the Court should not proceed to investigate allegations of parental incompetence or misconduct and that these were matters to be determined by the Court that would deal with the merits of the custody dispute.
Regulation 16(1) mandates a return Order being made if the Court is satisfied that the removal or retention is wrongful, unless one or more of the four conditions in reg 16(3) is satisfied. Thus, the child must be returned to the country of the child’s habitual residence, even if the aggrieved parent lives elsewhere.[7]
[7] Police Commissioner of South Australia v Temple (1993) 17 Fam LR 144.
Regulation 15(4) of the Regulations implements Article 11 of the Convention. It requires that an application for the return of a child must be dealt with expeditiously. If a Court does not determine the application within 42 days, it may be asked to give reasons for the delay. In the normal course, such applications are dealt with on the papers, although the High Court has emphasised that the requirement of reg 15 does not yield any general, let alone inflexible, rule prohibiting cross-examination.[8]
[8] MW v Director-General, Department of Community Services (2008) 82 ALJR 629, 639; and LK v Director-General, Department of Community Services (2009) 253 ALR 202.
However, the preamble referred to by the Respondent must be viewed in the light of the discussion of it by the High Court in outlining the purpose of the Convention. Likewise, where reg 15 refers to Orders, “…that the court considers to be appropriate to give effect to the Convention…” must be interpreted and applied in that light. Regulation 16 makes a return Order mandatory, except if a ground of refusal as set out in reg 16(3) is made out giving rise to a discretion.
Regulation 20, concerning arrangements for the return of the child, specifically refers in reg 20(2) to a period of seven days after the Order is made which, as raised in the course of argument, indicates that in the usual course, the return Order will provide for a period perhaps not less than seven days, but not significantly greater than that period.
Regulation 15(1)(c) of the Regulations provides that the Court may include in an Order, “…a condition that the court considers to be appropriate to give effect to the Convention.” Thus, in Department of Community Services v Frampton (2007) FLC 93-340, in circumstances where it was not in issue that there would be a grave risk to the child if the mother was unable to return to the country of origin with the child, this enlivened the requirement to give consideration to whether conditions could be imposed that would alleviate the risk. Thus, the Full Court thought it essential that the mother in that case have the legal ability to stay in the United Kingdom pending the parenting proceedings, and also considered it essential, considering the mother’s financial position, that the means of transporting the child and the mother to the United Kingdom be provided. The Full Court also thought it essential that some financial arrangement be made to ensure that the mother and the child had the ability to find accommodation upon their arrival, and have a provision for their day-to-day living expense, “…at least until an application for support can be made by the Mother to an appropriate court.”
In De L v Director-General, New South Wales Department of Community Services (supra), the High Court stated that it is impossible to identify any specific and detailed criteria that govern the exercise of the power to impose such conditions. The basic proposition is that, like other discretionary powers given in such terms, the Court has to exercise its discretion judicially, having regard to the subject matter, scope and purpose of the regulations.
Again, it can be seen that the discretion to impose conditions or the nature of such conditions must have regard to the subject-matter, scope and purpose of the Regulations.[9]
[9] See, also, DP v Commonwealth Central Authority (2001) 206 CLR 401, [40] (Gaudron, Gummow and Hayne JJ).
Obviously enough, as the authorities reflect, the question of conditions most commonly arises in circumstances where one or other of the four circumstances identified in reg 16(3) is made out in which a Court may refuse to make an Order for return; that is, in those cases where the discretion to refuse an Order for return is enlivened. In such cases, the discretion may be exercised by making an Order for return on conditions on which the return should occur.
Resolution
In this case, by reg 16(1), the Court must make an Order for return. As already noted, none of the grounds for refusal to make an Order for return were raised at the trial stage, let alone established, and none of the circumstances identified in reg 16(3), which enliven the discretion under which the Court may refuse to make an Order for return, exist.
The preamble to the Convention refers to, “…prompt…” return, as does Article 1 of the Convention which sets out the objects of the Convention. The requirements in the Convention and the Regulations for the Court to act expeditiously and references such as that in Article 12 of the Convention to, “…order the return of the child forthwith…” plainly expresses that the intention and purpose of the Convention is to secure the immediate return of children to their “home” country, rather than to delay the return on grounds alleged to be in the best interests of the individual children, which do not constitute or are not asserted to constitute a ground of defence to the application under reg 16(3).
It seems to me that in the circumstances of this case, it is contrary to the purpose of the Convention, rather than consistent with it, to attempt an exercise, necessarily narrow and curtailed and involving some investigation or consideration of these children’s best interests discrete to the question of the timing of the return Order, when the purpose of the Convention is plainly directed towards a prompt return of the children to enable the courts of their country of habitual residence to carry out the necessary consideration and investigation of custody or parenting Order specific to this case and the best interests of these children in the wider holistic context that such determinations usually entail.
I am therefore not satisfied that, in the circumstances advanced by the Respondent, this Court has the discretion contended for by the Respondent. I doubt there exists any such discretion to delay the operative effect of a return Order beyond the time necessary for travel arrangements to be made expeditiously.
Even if it can be said that such a discretion exists, I am not satisfied that it would be consistent with a judicial exercise of any such discretion, having regard to the subject-matter, scope and purpose of the Regulations as outlined in the above discussion, to artificially extend the time for the return Order to take effect beyond what could be reasonably described as “forthwith” or “prompt”.
In those circumstances, and given this conclusion, it is unnecessary for me to discuss further the merits by reference to the evidence advanced by the Respondent in support of her contention or the competing evidence agitated by the Father in his affidavit evidence.
Whilst Ms Cope on behalf of the Respondent referred to cases in which periods of 14 days after the date of the Order were provided for the return to occur, it can hardly be contended that a period of 14 days is beyond the range of “prompt” or “forthwith” having regard to the time reasonably necessary for overseas travel and associated arrangements to be made while still meeting those imperatives.
In Department of Communities (Child Safety Services) & Lugge [2012] FamCA 67, one of the cases referred to by Ms Cope, the Respondent contended that if a return Order was to be made for the children to return to the United Kingdom, ,they should do so at the end of the current school term. It was contended that this would allow the children to make all arrangements as might be necessary for their friends and to allow for a smooth changeover back to their English school.
As to those contentions Murphy J noted:
Particularly given the underlying intention of the Regulations and the period of time that has elapsed since November 2011, I am not persuaded that the return order should be delayed beyond a period necessary to make all necessary travel arrangements with expedition.
Murphy J concluded that the return should take place within 14 days of the date of the Order being made.
In this case the children were due to be returned to New Zealand on 27 January 2012. I respectfully agree with the conclusion of Murphy J referred to that, having regard to the underlying intention of the Regulations and the period of time that has elapsed since, the children’s return ought not be delayed beyond a period necessary to make all necessary travel arrangements with expedition.
I therefore make the Orders in terms of the draft submitted by Counsel for the Central Authority albeit it that I shall make provision for the return to occur within seven (7) days of this Order and, as discussed during submissions, I will include an Order that there be no Order as to costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 May 2012.
Associate:
Date: 15 May 2012
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