DM and Director-General Department of Community Services

[1998] FamCA 1557

[1998] FamCA 1557

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

APPEAL NO. EA 76 OF 1998

FILE NO. SY 6727 OF 1998

IN THE MATTER OF:

DM

(Appellant Father)

and

DIRECTOR-GENERAL
DEPARTMENT OF COMMUNITY SERVICES

(Respondent State Central Authority)

EDITED EXTRACTS FROM THE
REASONS FOR JUDGMENT THE FULL COURT

CORAM:  Nicholson CJ, Kay and O’ Ryan JJ
DATE OF HEARING:  29th day of September 1998
DATE OF JUDGMENT:                29th day of September 1998

Appearances:

The father appeared in person  

Ms. R Flohm of counsel instructed by Crown Solicitors Office 60-70 Elizabeth Street SYDNEY  NSW  2000 appeared for the Respondent

Catchwords:

Family Law – Appeals – From decision of Family Court Judge reviewing decision of Judicial Registrar – Child Abduction – Hague Convention – Former Yugoslav Republic of Macedonia – Family Law (Child Abduction Convention) Regulations

Family Law – Appeals – Practice and Procedure – Application for adjournment by appellant – refused.

Family Law – Appeals – Practice and Procedure - warrant to take possession of the child forthwith – granted - application to stay order for a warrant to take possession of the child forthwith  - refused.

[Background:

This was an appeal by the father against orders of Rowlands J providing inter alia that the father’s application for a review of the decision of a Judicial Registrar be dismissed and that the child of the marriage (nearly 17 months old) be returned to Macedonia pursuant to the Hague Convention.

In 1991 the father visited Australia for 9 months. He again visited Australia in late 1992 and remained here until March 1996. During this time, he became an Australian citizen.

The parties married in the Former Yugoslav Republic of Macedonia (FYROM) on 9 November 1996. Their daughter, EM was born in FYROM on 3 May 1997. In late 1997, the parties commenced making plans to immigrate to Australia. The child became an Australian citizen and an Australian passport was issued for her on 19 November 1997.  The mother made an application for a permanent entry visa to enter Australia which the parties expected would be issued in approximately May 1998.

On 12 April 1998, the father left FYROM with the child, arriving in Australia on 14 April 1998. On 13 April 1998, upon application by the mother, the Welfare Centre of Veles determined that, pending court proceedings for divorce/custody, the child should be returned to the mother. That decision was affirmed by the Primary Court of Veles on 15 April 1998.

On 17 July 1998, an application was filed in the Family Court of Australia by the Department of Community Services as the Central Authority seeking the return of the child pursuant to the Hague Convention.

It was the mother’s case that she and the father separated on 9 March 1998 and that thereafter, she had the full-time care of the child and father had access. She asserted that on 12 April 1998, the father told her that he was taking the child for a walk and that he failed to return with the child. The father’s case was that he and the mother had not separated when he arrived in Australia with the child and that he had brought the child to Australia with the mother’s consent. The father also asserted there was a grave risk to the child in being returned to FYROM.

On 17 August 1998, Johnston JR made orders that the child be returned to FYROM pursuant to the provisions of the Hague Convention. The father sought a review of that decision which was dismissed by Rowlands J.  His Honour found that:

• On either view of the evidence, the child was habitually residing with the mother prior to leaving for Australia.

• The father had not established that the mother was not exercising rights of custody or had consented to the child's removal.

• The father had not established the grave risk exception which he submitted arose from the risk of warfare in the region and the mother’s capacity as a parent, her lifestyle and her associates.

The father’s appeal to the Full Court initially relied on 15 grounds of appeal which he was permitted to amend at the hearing before the Full Court by adding a further five grounds.

At the commencement of the Full Court hearing, the father made an unsuccessful oral application for adjournment of the appeal.]

NICHOLSON CJ: In this matter, the father applies for an adjournment of the proceedings before us on two grounds; one being medical grounds and the other because he argues that he has not had sufficient time to prepare his case. (…)

It appears that on at least three occasions the father has sought adjournments of the proceedings.  On 26 August, he sought an adjournment for the purpose of paternity tests being carried out.  On 2 September he made a further application for an adjournment until the Court proceedings in FYROM could be finalised.  Before Rowlands J he sought an adjournment on the basis that he was suffering from stress, and on that occasion he produced a medical certificate, signed by a Dr  K, dated 7 September, to the following effect:

“This is to certify that Mr DM is, in my opinion, suffering from stress.  This patient should be spared from Family Court attendance at least for a month.”

That is the only evidence that Mr M has placed before the court, indicating any medical condition which would justify the grant of an adjournment.  No fresh medical certificate has been placed before us. The response of counsel for the responsible authority to this circumstance was that, unfortunately, stress is a condition suffered by many litigants in this and other courts and, without more, it is rarely, if ever, a basis for adjourning proceedings. 

In this particular case I would have expected much more up to date evidence and much more detailed evidence as to the effects upon Mr M before I would have considered granting an adjournment on that ground.

The principles that govern Hague Convention cases are somewhat different from other cases. There are specific provisions in regulations 15(2) and 15(4) of the Family Law (Child Abduction) Regulations which provide for the matters to be dealt with in a speedy fashion.  Regulation 15(2) provides that:

`“A court must, so far as practicable, give to an application such

priority as will ensure that the application is dealt with as quickly

as a proper consideration of each matter relating to the application allows.”

And regulation 15(4) provides that:

“If an application made under regulation 14 is not determined by
a court within the period of 42 days commencing on the day on which
the application is made:
the responsible Central Authority who made the application may
request the Registrar of the court to state in writing the reasons for
the application not having been determined within that period; and
as soon as practicable after a request is made, the Registrar
must give the statement to the responsible Central Authority.”

Presumably, that regulation is referring to the determination of a matter at first instance, within the period of 42 days but, in my view, it is no answer to that proposition to say, as the appellant has sought to say here, that he has the right to set his own pace in relation to the appellate process.  That runs entirely contrary to the spirit and provisions of the Convention.  In this regard I refer to the remarks of  Kirby J in De L v The Director-General of New South Wales Department of Community Services and Another (1996) FLC 92-706 at 83,459 where his Honour said:

“Whilst due allowance must be made for the complexity of the some of the questions raised, the serious legal interests in apparent conflict, the novelty of some of the propositions (at least so far as the higher courts in Australia are concerned) and the general importance of the matter as a “test case”, I cannot but agree with Kay J that the delays have accumulated to defeat the apparent purposes of the Convention, the Act and, if they be valid, the Regulations.  By repeated provisions, the Convention envisages a speedy process and a summary procedure.  The same sense of urgency is reflected in the Regulations.  It is reflected in judicial observations about the meaning and purposes of the Convention, and of municipal laws designed to give it effect.” (footnotes omitted).

It seems to me that that encompasses the approach that the Court should take to applications of this nature. 

The second ground that Mr M advances for the adjournment is that he says that he feels that insufficient time has been granted to him to prepare for the appeal.  He says that he is not a qualified lawyer and he needs more time.  He said he has had only limited time to prepare for this appeal, following receipt of the appeal book, which was given to him last Friday.  He further says that he is under a lot of stress trying to protect what he says to be his child’s rights and interests, and needs more time to prepare his defence. 

In fact, of course, it is not a defence that is being advanced, it is an appeal by him against a decision of the Court.  He has had all of the material contained in the appeal book for a considerable time and, in my view, he has had adequate time to prepare for this appeal.  He has not indicated in the course of his submissions what additional material or what additional matters he would put before the Court, if any, if an adjournment were to be granted.  He, in effect, seeks an open-ended type of adjournment for an indeterminate period. 

In my view the application has not been made out and I consider that the matter should proceed forthwith.

KAY J:   I agree.

O’RYAN:  I also agree.

…

[Prior to the commencement of argument as to the appeal, the Central Authority made an oral application for a warrant to take possession of the child.]

NICHOLSON CJ:   In the initiating proceedings, commenced by the Central Authority, an application was made for an order that a warrant issuing and directing the Marshal of the Family Court of Australia, and all officers of the Federal Police, and all officers of the police forces in the Commonwealth take possession of the child, EM, born on 3 May 1997, and deliver such child to the offices of the New South Wales Department of Community Services. 

In the event, the Court made orders leaving the child in the care of the father, pending the determination of the proceedings, upon the basis that the child would be made available to an officer of the New South Wales Department of Community Services on a daily basis at [a specified address].  A report which is in the appeal book, dated 25 August, from the responsible officer of that Department, in effect, says, and supports the view that the child is being cared for in warm and affectionate conditions, and that overall she is being well cared for.

Unfortunately, that is not the issue, so far as these proceedings are concerned.  These are proceedings under the Hague Convention for the return of the child to the former Yugoslav Republic of Macedonia, upon the basis that the father abducted that child from that country on 12 April 1998 and brought the child to Australia.  The father has lost in proceedings before the Judicial Registrar, unsuccessfully reviewed those proceedings before Rowlands J, and now appeals to this Court.

This morning, he commenced with the making of an application for an adjournment, which this Court rejected for reasons already stated.  At his request we gave him some three-quarters of an hour to collect his thoughts, before proceeding with the appeal.  Following the adjournment, the father announced that he felt sick and was unable to present arguments in relation to continuing with the appeal.  He said that he had other arguments that he wished to advance, but his state of health was such that he could not advance them. 

Speaking for myself, I do not accept that assertion of the father.  I have little doubt that what the father was doing, was seeking to avoid the Court dealing with this matter, and putting the matter off as long as possible. 

When he adopted that course, I asked the responsible authority whether they wished to make an application as to the disposition of the child.  Mrs Flohm, for the authority, indicated that, although the authority had hitherto been reluctant to make such an application, she felt that in the circumstances she ought to make it, and the application was made.  The basis of the application is undoubtedly a concern that, since the father was, on the departmental case at least, prepared to abduct the child from its mother in the former Yugoslav Republic of Macedonia, that there was a real risk that if he saw these proceedings as running against him, that he may take similar steps in relation to the child in Australia, to either remove the child from its present address and remove it to other parts of Australia, or elsewhere. 

Speaking for myself, I think that there is a significant risk of this happening.  I propose, in view of the father’s attitude, as I indicated to him, to continue to deal with the appeal today, and if he is unable to advance any further material before the Court we will take into account the arguments that are contained in the appeal book and in the material that he has already advanced, and we will consider the appeal on that basis.  In order, however, to protect the child from the possibility of removal from its present address, it seems to me that the only appropriate and proper course that this court should take is to order that, until further order, an order be made in terms of paragraph two of the application of the Central Authority. 

Accordingly, and for the foregoing reasons, I consider that such an order should be made.

KAY J:   I agree.  The only thing I add is that in the father’s own material he indicates:

“I was waiting for 37 years of my life for this baby to be born, and I was not going to give up on her at any cost.”

I perceive there to be a real risk that any order that we make, if the appeal is dismissed, could be defeated by the actions of the father.

O’RYAN J:   I also agree, and have nothing to add.

NICHOLSON CJ:   Is it appropriate then, Mrs Flohm, that we make an order in terms of paragraph 2 of the application?

RECORDED  :  NOT TRANSCRIBED

NICHOLSON CJ:   We will make that order, which will take effect forthwith.

…

[The father then made an oral application for a stay of the order for a warrant.]

NICHOLSON CJ:   In this matter the father has sought a stay of the order that the Court has just made, that a warrant issue, directing that the child be delivered to offices of the New South Wales Department of Community Services, pending an appeal to the High Court.  I must stress at this stage that I am simply dealing with that order, which is an order until further order, as we have not, at this point, dealt with the father’s appeal against Rowland J’s decision, although we have indicated that we propose to do so this day. 

In De L v Director-General, New South Wales Department of Community Services and Another (1996) 136 ALR 201, Gummow J laid down certain principles that should be applied by this Court in considering whether a stay should be granted pending anticipated appeal to the High Court. In substance, it was suggested that it was necessary first to consider whether there was a substantial prospect that special leave to appeal would be granted. In my view, in the present case this is an interlocutory order that is directed at ensuring that the child remain subject to the orders of this Court pending the final determination of the matter.

There would be no significant or substantial prospect that special leave to appeal would be granted by the High Court, particularly having regard to the interlocutory nature of the order.  The question of a grant of a stay would, in our view, create a danger that our order was directed to overcome; that is, the danger that the child may be removed from its present location by the father.  The father has assured us that he has no such intention, and that he has no intention of removing the child from Australia.  Against this, there is a significant allegation made against him that he has so acted in the past, in relation to removing the child from another country. 

In the circumstances and, given the fact that his two applications have been unsuccessful and he feels that he is unable to further his present appeal to this Court, I believe that there will be an unacceptable risk in granting a stay, basically for the reasons that the original order was made.  It seems to me that the balance of convenience lies in favour of making the order that we have made and in refusing a stay, and I would propose that the stay be refused.

KAY J:   I agree.

O’RYAN J:   I also agree.

NICHOLSON CJ:   The application for a stay of the order made pursuant to paragraph two of the responsible authority’s application is therefore refused [and it is ordered] that sealed copies of the order under paragraph two be served upon the Commissioner of the Australian Federal Police.

[The Full Court then heard the substantive appeal and delivered ex tempore reasons dismissing the father’s appeal. The father did not seek leave to appeal to the High Court.]