Director-General, Department of Community Services and Kilah

[2007] FamCA 683

FAMILY COURT OF AUSTRALIA

DIRECTOR -GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES & KILAH [2007] FamCA 683

FAMILY LAW - CHILD ABDUCTION - Hague Convention - Practice & Procedure

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

DoCS & W [2006] FamCA 1493
Wenceslas & DoCS  [2007] FamCA 398

APPLICANT: Director General of the
Department of Community Services

RESPONDENT: Ms Kilah

FILE NUMBER: SYC 1848 of 2007

DATE DELIVERED: 6 July 2007

PLACE DELIVERED: Sydney

EX TEMPORE JUDGMENT OF: Steele J

HEARING DATE: 6 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms. Hartstein

SOLICITOR FOR THE APPLICANT: Legal Services Unit
Dept. of Community Services

COUNSEL FOR THE RESPONDENT: Mr. Hill

SOLICITOR FOR THE RESPONDENT: Slade Manwaring

Orders

1. That the hearing today is vacated.

2. The respondent mother is directed to file an answer and cross application (if any) within seven days. 

3. Each of the parties is directed to file written submissions at least ten days before the hearing together with copies of any authorities to be relied upon. 

4. That the parties have leave to obtain a date for a one day hearing.

5. I request that a copy of these reasons be provided to the Director-General of the Department of Community Services.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1848  of 2007

Director-General of the Department of Community Services 

Applicant Central Authority

And

Ms Kilah

Respondent Mother

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application brought by the Central Authority under the Family Law (Child Abduction Convention) Regulations 1986.

2. The matter was allocated to me yesterday when my prior commitment went away and is listed for a one day hearing.

3. There has been a substantial bundle of material to read and in the process of doing so, I arranged for my Associate to ring the solicitor for the respondent mother in order to ascertain whether an answer had been filed.  No answer had been filed.  I was not certain what the issues are and without that knowledge, it makes the reading of the material less rewarding.  The solicitor for the mother responded by sending by email to my Associate an unfiled “Response to an Application in a Case” in Form 2A of the forms to the Family Law Rules.  It simply sought the dismissal of the Central Authority’s application for orders that the mother’s four children be returned to Israel. 

4. The material to be read has comprised very lengthy affidavits containing a lot of material which is marginally relevant.  It was not possible to know how relevant it was however, during the reading process because I did not know what the issues are.  The Regulations require that an answer or an answer and cross application in accordance with Form 2A to the Convention Regulations should be filed by the mother.  Such a form, if filed, would be expected to include the pleading of matters by way of defence.

5. This Court has the responsibility under the Regulations to determine the way in which Australia honours its obligations under the Hague Convention on the Civil Aspects of International Child Abduction. That is an important responsibility which should be discharged in a consistent way, if possible, by judicial officers throughout Australia and if possible, consistent with the way in which the Convention is enforced in other countries.  I have difficulty in understanding how the Central Authority can adequately assist the Court in the discharge of its responsibilities without determining in advance of the hearing just what the issues are and addressing the question of what authorities there might be which would assist the Court in determining the way in which the matter should be dealt with.  These matters are properly treated with a degree of urgency and the judge’s task is made more difficult if a high level of assistance is not provided.

6. On the last occasion that I dealt with an application under the Convention, in the matter of DoCS & W [2006] FamCA 1493, I was faced with a similar situation where the matter came before me with little advance notice and in circumstances where no answer had been filed. At the commencement of the hearing I had to spend some time endeavouring to determine exactly what the defences were before the case could proceed. In delivering judgment on the appeal in that matter (Wenceslas & DoCS [2007] FamCA 398), the Full Court made comments which I have interpreted as being critical of the part played by the Central Authority and the lack of legal assistance which was provided. The judges on appeal, Finn, May and Thackray JJ each made comments which I have interpreted as being somewhat critical of the assistance provided by the Central Authority.

7. It seems to me to be impossible for the Central Authority to discharge its obligations without first determining precisely what the issues are and then considering whether authorities should be provided to the trial judge or on appeal to the Full Court, to assist the Court.  Hopefully those authorities can be provided in advance of the hearing.

8. In this case, the material provided to me contains no references to authorities except those contained in a letter from the Central Authority in Israel to the Central Authority in Australia dealing with some “rights of custody” issues which as far as I am aware are not relevant in this case and some overseas authorities dealing with the “grave risk” defence under Regulation 16(3)(b) of the Australian Regulations.

9. The respondent to the Central Authority’s application had an obligation to file an answer in the proper form and did not do so.  It is apparent however that the Central Authority, which has an involvement and familiarity with these matters in excess of the ordinary, should ensure that in the time well prior to the hearing of these applications the other party is required to file the document. If an application to the Court has to be made to ensure that is done, that should be done.

10. I have spent something in excess of five hours reading the material.  It is apparent that the matter came before a Judicial Registrar on 28 March 2007 and that an order was made for the respondent mother to file an answer and/or cross application by 30 April.  When that order was not complied with, the Central Authority should have brought the matter back before the Court to ensure that was done.  On that same day, the Judicial Registrar was apparently informed that the “grave risk” and “objection of the children” defences were to be raised and as a consequence, ordered a Family Report to be prepared.  That is appropriate and I have absolutely no criticism of that, however that is the only indication I had of the defences which may be argued.  Those defences of “grave risk” and “the children’s objections” were the only defences the Central Authority was aware of.  Counsel for the mother said, however, that the principal defence was one of consent.  It follows that the major issue on defence was not foreseen by the Central Authority and any authorities relevant to that issue could not have been researched.

11. In my view, it is inappropriate to proceed with the case without the Central Authority having adequate knowledge of the detailed issues confirmed in writing so that it can address the legal issues.

12. Accordingly, I propose to vacate the hearing today and I direct that the respondent mother file an answer and cross application (if any) within seven days.  I direct each of the parties to file written submissions at least ten days before the hearing together with copies of any authorities to be relied upon. 

13. I give leave to the parties to obtain a date for a one day hearing.

14. I request that a copy of these reasons be provided to the Director-General of the Department of Community Services.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele.

Associate: 

Date:  6 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DEPARMENT OF COMMUNITY SERVICES & KILAH