Director-General, Department of Communities (Child Safety Services) and Garning

[2012] FamCA 342

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & GARNING [2012] FamCA 342

FAMILY LAW – CHILD ABDUCTION – Hague Convention proceedings – Where return order made after hearing – Liberty to apply provision included in Orders – Where return orders were stayed pending Full Court appeal – Where Full Court dismissed appeal  and stay of trial Judge’s return order no longer applicable – Where respondent applied for special leave to the High Court – Whether Central Authority has a duty  and a responsibility to facilitate the return of the children – Where there has not been  a further application for a stay pending the hearing of the special leave to appeal application– Where Central Authority seeks to enforce the original orders – Whether to grant a stay of execution of orders pending the determination of special leave application in the High Court – Where respondent seeks a stay of any further orders made until the conclusion of the application for special leave – Where no formal application for a stay of original return orders was made by the respondent – Where no stay is ordered.

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

Australian Hardboards Ltd v Hudson Investment Group (2007) NSW LR 201
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR  681
Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277

APPLICANT: Director-General,
Department of Communities (Child Safety Services)

RESPONDENT: Ms Garning

FILE NUMBER: BRC 1387 of 2011

DATE DELIVERED: 4 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 2 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Green
SOLICITOR FOR THE APPLICANT:	Crown Law

COUNSEL FOR THE RESPONDENT: Mr Page SC

SOLICITOR FOR THE RESPONDENT: Feeney Family Law

Orders

(1)That the respondent mother Ms Garning deliver the children, E born … June 1997, C born … August 1998, D born … December 2001 and L born … May 2003 to the Brisbane International Airport at a time and date, not before 16 May 2012, nominated by an officer of the Department of Communities.

(2)That the respondent mother cause the said children to be delivered to the Brisbane International Airport with appropriate items of clothing and luggage for travel to Italy and do all things necessary to facilitate the handover of the children to their father Mr V for the purposes of him accompanying them on their return travel to Italy.

(3)That paragraph 7 of the orders made 23 June 2011 is discharged and in lieu thereof an officer of the Department of Communities or their nominee be at liberty to release the passports of the said children held by the Department of Communities to Mr V or such person as may be nominated by him in writing for the purposes of facilitating the return of the said children to Italy.

(4)That paragraph 8 of the orders made 23 June 2011 is discharged and in lieu thereof the respondent mother pay to the father Mr V or the Applicant the cost of airfares and departure taxes (if any) for the children to travel from Brisbane International Airport to Italy, within 7 days of service on the mother of a letter from an officer of the Department of Communities detailing the costs.

(5)That paragraph 3 of the orders made 23 June 2011 is discharged and in lieu thereof the respondent mother is restrained and an injunction is hereby issued restraining her from changing the place of residence of the said children from B Street, M, pending the return of the children to Italy or further order of this Court.

(6)That liberty to apply is expressly reserved to both parties including, but without limiting the generality of the foregoing, either party applying to this Court for further orders to effect the return of the children to Italy.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities (Child Safety Services) & Garning 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 1387  of 2011

Director-General, Department of Communities (Child Safety Services)

Applicant

And

Ms Garning

Respondent

REASONS FOR JUDGMENT

Introduction  

1.On 23 June 2011, I made orders in proceedings between these parties brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986. In this Court such proceedings are generally referred to as Hague Convention proceedings. I ordered the return of four children to Italy. My original orders were varied by consent on 24 June 2011, with a timetable for the return of the four children set in place by that variation.

2.The respondent mother was to notify the applicant State Central Authority within fourteen days of the date of the consent variation whether she intended to return to Italy with the children. If she elected to return to Italy with the children they were all to leave Australia within thirty days of the respondent’s receipt of $8,000 from the father to assist her with living expenses upon their arrival back in Italy. If the respondent elected not to return to Italy with the children, the children were to leave Australia within thirty days of the date of the consent variation. My original orders also restrained the mother from changing the place of residence of the children before their return to Italy and included provision of liberty to apply.

3.The respondent filed an appeal to the Full Court of this Court from my orders. On 5 August 2011, albeit already outside the time for compliance with the original orders, on the application of the respondent, I granted a stay of that part of my orders requiring return of the children to Italy pending determination of her appeal to the Full Court.

4.The Full Court heard the respondent’s appeal against my orders on 5 September 2011 and on 9 March 2012 delivered its reasons for judgment and made orders including one simply dismissing the respondent’s appeal. Accordingly, from that moment, the order I had made on 5 August 2011 staying that part of my original orders as varied by consent was no longer operative and the children were again required by the original orders to be returned to Italy. The Full Court made no orders that in any way varied or modified the original return orders.

5.On 22 March 2012, the applicant requested information from the respondent as to whether she intended to return to Italy with the children and, if not, what arrangements she proposed for the return of the children to Italy.

6.On 23 March 2012, the respondent’s solicitors wrote and advised the applicant’s solicitors that they held instructions to make an application to the High Court of Australia for special leave to appeal to that Court from the decision of the Full Court of this Court. They also advised that they would be filing documents “seeking both a stay and the leave”.

7.Clearly, the reference to seeking a stay was a reference to making an application for a stay of that part of my original orders requiring return of the children to Italy pending determination of the application for special leave to appeal. There is no order that the Full Court of this Court made on the dismissal of the appeal that the respondent would be likely to seek to have stayed.

8.On 4 April 2012, the applicant’s solicitors wrote to the respondent’s solicitors acknowledging receipt of the information that an application for special leave to appeal to the High Court and an application for a stay was intended to be filed by the respondent but clearly advising that until that application was filed and a stay granted the respondent was required to comply with the orders of this Court for the return of the children to Italy. The applicant’s solicitors again sought to be informed of the respondent’s intentions in respect of the return of the children.

9.On 10 April 2012, the respondent’s application for special leave to appeal to the High Court was filed. It sets out two grounds for the proposed appeal. It was served that same day on the applicant. No application for a stay of the original return orders was served with the application for special leave to appeal.

10.On 20 April 2012, the applicant filed an Application in a Case in this Court pursuant to the liberty to apply provision of my original orders. It is clear, on the evidence, that the applicant did so not having received any response to the request to be informed of the respondent’s intentions and not having been served with an application for a stay of this Court’s original return order. In the Application in a Case that I am now determining, the applicant seeks further orders that facilitate the timely return of the children to Italy.

11.On 30 April 2012, the respondent filed a Response to the applicant’s Application in a Case. In that Response, the respondent does not oppose the Court making the orders sought by the applicant but seeks a further order from this Court staying any order the Court makes on the  application until the conclusion of the Respondent’s Application for Special Leave to Appeal to the High Court.

12.At the hearing of this application on 2 May, 2012, counsel for the applicant informed the Court that the application is made because the applicant has a duty and a responsibility to facilitate the return of the children to Italy and, as necessary, to make application to the Court seeking further orders to achieve that consequent upon the original return orders being made and the appeal against those orders being dismissed. I accept that the applicant does have such a duty. (see Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277)

13.Counsel for the applicant submitted that the further orders now sought by the applicant could be made pursuant to the liberty to apply provision of the original orders having regard to the circumstances that had transpired since the orders were made. He cited, correctly in my view, Australian Hardboards Ltd v Hudson Investment Group (2007) NSW LR 201 as authoritative support for that proposition. In any event, although Senior Counsel for the respondent described the timing of the application as “opportunistic”, he conceded that the orders sought by the applicant could be made. In fact he asserted that there was no real basis upon which they could be opposed.

14.The respondent’s solicitors put on evidence that pursuant to the High Court Rules the respondent has 28 days from the filing of her application for special leave to appeal to put her submissions to the High Court. Senior Counsel for the respondent informed the Court that this requirement extends also to the filing of a draft Notice of Appeal within the same time frame. That had not been done by the time of the hearing before me but the respondent’s solicitors’ evidence was that they intended to comply with those Rules. It was agreed before me that the respondent’s submissions to the High Court and her draft Notice of Appeal must, therefore, be filed by 8 May 2012. 

15.Senior Counsel went on to inform the Court that the respondent had not yet filed an application seeking a stay of this Court’s return order.  He said:

It would be bold, if not improper to seek a stay of [this Court’s] orders in the Full Court or the High Court or here until the Court was able to see the full basis upon which this leave was being sought. At present it is not able to do that and the respondent mother has not had to elaborate upon it in any way which would enable her to argue a stay properly.

16.Senior Counsel informed the Court that the respondent mother is effectively awaiting the preparation of the written submissions and the draft Notice of Appeal before taking her legal representatives’ advice as to the prospects of success of an application to stay this Court’s original return order pending the determination of the application for special leave to appeal and providing them with her instructions as to whether to file one. One of the matters that must be considered in exercising the extraordinary jurisdiction to grant a stay of execution of orders pending the determination of an application for special leave to appeal to the High Court is whether the application for special leave to appeal has substantial prospects of success (see Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] 161 CLR 681 at 685). As such, I accept that there is merit in the position that an application for a stay of the original return order would best not be made before the respondent mother has filed her submissions and draft Notice of Appeal in the High Court.

17.Although in the Response itself, the respondent seeks an order staying the operation of any order made pursuant to this application until the “conclusion of” the respondent’s application for special leave to appeal to the High Court, Senior Counsel for the respondent ultimately submitted at the hearing that upon making the orders sought by the applicant I should simply stay their operation only until the determination of the respondent’s application for a stay of my original return orders. The difficulty with that submission is that the applicant’s hand would be stayed by such an order whether the respondent brings her stay application or not.

18.Counsel for the applicant urged me not to make such an order, submitting that such a stay would still leave in place the original return order, thus still casting the duty upon the State Central Authority to do all it can to effect the return of the children whilst inconsistently staying the very orders it needs to be able to effect such return.

19.In the end, the evidence of the father of the children, filed and relied upon by the applicant, and a concession offered by the applicant, provided an obvious solution to the immediate problem. Senior Counsel for the respondent informed the Court that the mother has no intention of returning to Italy herself, even if the children are returned to that country. Whether that be the case or not, the father currently plans to travel to Brisbane, arriving on 9 May 2012 and plans on departing with the children from Brisbane to return to Italy on 16 May 2012. Counsel for the applicant informed the Court that it would accept provision being included in the orders it sought from the Court that the time and date for the mother to deliver the children to the Brisbane International Airport not be before 16 May, 2012. The inclusion in the orders sought by the applicant of such a provision would give the respondent and her legal advisers the time they need to finalise and file the written submissions in support of the application for special leave and the draft Notice of Appeal by 8 May 2012 and to consider the merits of a stay application and, if the respondent instructs them to do so, to prepare and file any application for a stay of the original return orders. In the circumstances, I would, with respect to which ever judge or judges would have to hear it, expect the respondent to be able to get a stay application heard and determined before 16 May if she and her legal representatives act now in a timely fashion.

20.Accordingly, I intend to make the orders sought by the applicant and to include the provision that the mother not be required to deliver the children to the Brisbane airport before 16 May 2012. I will not stay that order. The question of whether or not an application will be made by the respondent seeking a stay of this Court’s original return order and this further order pending determination of the application for special leave to appeal to the High Court is a matter for the respondent and her legal representatives to now consider. Which Court any such application is to be filed in is also a matter for the respondent and her legal representatives to consider having particular regard to the arguments as to jurisdiction in respect of the making of such an order made on behalf of the applicant at this hearing, arguments that I do not consider it necessary to have to decide to dispose of this application. Whether on any such application a stay is to be granted will be for the Court who might hear such an application to determine in accordance with well settled authority.

21.Finally, there was evidence before me that the respondent mother had changed the residence of the children in the face of an injunction restraining her from doing so in my original orders. At the hearing, the Court was informed by Senior Counsel for the respondent that she is now living with the children at a new address, which the Court was given. The applicant seeks a further order that the respondent be again restrained by injunction from moving the children from that address before their return to Italy. I will make such an order.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 4 May 2012.

Associate: 

Date:  4 May 2012