Garning and Department of Communities, Child Safety and Disability Services (No 2)

[2012] FamCA 482

FAMILY COURT OF AUSTRALIA

GARNING & DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES (NO. 2) [2012] FamCA 482

FAMILY LAW – Hague Convention – Where there are Orders in existence that provide for the children to return to their country of habitual residence, pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the children’s return has not been facilitated by the Applicant Mother – Where the children are currently in the care of the Department of Communities, Child Safety and Disability Services – Where related proceedings have been set down for hearing before the Full Bench of the High Court of Australia – Where the Mother is seeking orders that the children live with her – Where the Father is seeking orders that the children spend time with him – Where the maternal great-aunt is seeking to be appointed as a case guardian for the children – Where the Central Authority submits that the parties are unable to seek parenting orders under the Family Law Act 1975 (Cth) as it would defeat the purpose and objects of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Any application for “parenting orders” as sought by the parties should be made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Parties to be afforded an opportunity to make any such application and/or submissions.

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006
Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”)
Family Law Rules 2004 (Cth)

Director-General of Community Services Central Authority v RMS (2000) FLC 93-026
DJL v The Commonwealth Central Authority (2000) 170 ALR 659
DP v The Commonwealth Central Authority (2001) 180 ALR 402
De L v Director-General, New South Wales Department of Community Services and Another (1996) 139 ALR 417

APPLICANT: Ms Garning

1^st RESPONDENT: Director-General, Department of Communities, Child Safety and Disability Services

2^nd RESPONDENT: Mr V

3^RD RESPONDENT: Ms B

FILE NUMBER: BRC 1387 of 2011

DATE DELIVERED: 15 June 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 15 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Brasch

SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE 1^ST RESPONDENT: Crown Solicitor

COUNSEL FOR THE 2^ND RESPONDENT: Mr Wilson

SOLICITOR FOR THE 2^ND RESPONDENT: Porta Lawyers

COUNSEL FOR THE 3^RD RESPONDENT: Mr North SC

SOLICITOR FOR THE 3^RD RESPONDENT: Nicholes Family Law

Orders

IT IS ORDERED THAT

1. The matter be adjourned to 10:00am, 6 July 2012 before Justice Murphy.

2. The mother and/or father file and serve any Application setting out any orders sought pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations) by 4:00pm, Tuesday 26 June 2012.

3. The Maternal Great-Aunt file and serve any Response to any Application filed by the mother and/or father in accordance with paragraph 2 of these Orders and./or any Application for orders pursuant to the Regulations, by 4:00pm, Thursday 28 June 2012.

4. In the event that any party receives instructions to appeal today’s decision, and it is claimed that, as a result, the hearing on 6 July 2012 cannot proceed, that party must notify the Court of that fact via email to Justice Murphy’s Associate, sent contemporaneously to all other parties.

5. In the event that an email is received in accordance with paragraph 4 of these Orders, the hearing on 6 July 2012 will be vacated and the matter will be listed for mention before Justice Murphy at a date and time to be advised.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garning & Department of Communities, Child Safety and Disability Services (No. 2) 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

Ms Garning

Applicant

And

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES

1^st Respondent

And

Mr V

2^ND Respondent

And

Ms B

3^RD Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Four girls, aged 15, almost 14, 10½ and 9, have been the subject of litigation pursuant to the Family Law (Child Abduction Convention) Regulations 1986, (“the Regulations”) consequent upon them being brought by the mother to Australia from Italy. Their mother now applies for orders that, in broad terms, the children live with her.

2. The children are currently in what I will call foster care, as a result of an order made by Forrest J on 14 May 2012.  That order provides:

   …that the said children live with the person nominated by an officer of the Department of Communities, Child Safety, and Disability Services, pending their return to Italy.

3. The mother’s application is brought pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”); that is, the orders sought are “parenting orders” within the meaning of that Act. The maternal great-aunt applies to be appointed a case guardian for the children, pursuant to the Family Law Rules 2004. That course, although unusual, is plainly contemplated by rule 6.08(1). No such specific provision, or any like it, is contained within the Regulations, nor do the Regulations contemplate intervention as such, as do the Act and Rules. The orders ultimately sought by the maternal great-aunt can also be described as parenting orders within the meaning of Part VII of the Act. In a similar vein, the father seeks parenting orders that he spend time with the children.

4. These reasons relate to a preliminary issue raised by the Central Authority in respect of the applications to which I have just referred. It is argued, in effect, that each of those applications is incompetent by reason of the Regulations representing a code and, as such, providing the sole basis for the determination of the issues to which the applications might be seen to relate. Put another way, “parenting orders” under the Act may not be sought.

5. It is first necessary, I think, to relate some brief background matters, so as to give context to these applications and the arguments advanced in respect of them. 

6. The order earlier referred to by Forrest J was made consequent upon earlier orders by his Honour on 23 June 2011 to the effect that the children be returned to Italy – not to live with their father, as has been widely and inaccurately reported – but so as to have parenting proceedings between the parents determined in the courts of Italy.

7. That would occur in circumstances where the parties had entered a consent agreement that they have “joint custody” of the children, and whereby they spent time with their father every weekend and one afternoon each week.

8. The mother’s appeal from those orders made by Forrest J was dismissed by the Full Court in March 2012.  Thereafter, the Central Authority brought an application seeking to enforce the orders of Forrest J so as to secure the return of the children to Italy. An order was made to that effect on 4 May. 

9. At about that time the children disappeared.  It is said by the mother, and by the maternal great-aunt, that they each had no knowledge of the children’s whereabouts, and were not complicit in their removal or secretion.

10. The Central Authority sought a warrant, pursuant to Regulation 31 of the Regulations. That order was made on 14 May, together with the order placing the children in foster care as earlier referred to.

11. In those proceedings of 14 May, Forrest J recorded:

    [An officer of the department] has sworn that affidavit this afternoon.  In that affidavit, she deposes to a number of critically important facts that I accept are not actually in dispute on the hearing of this application this afternoon.  Those critically important facts are these:  over the weekend of 12 and 13 May, articles appeared in the Courier Mail, the Sunday Mail, and the Sunshine Coast Daily in respect of this matter, and in which the four children, who are the subject of the proceedings, are asserted to be firm in their views that they do not wish to return to Italy with their father;  that [the departmental officer] was verbally advised by the solicitor acting for the mother earlier today;  that she had been contacted yesterday by senior counsel acting for the mother – that is, on Sunday, 13 May 2012 – and told by him that he had been contacted by the maternal grandmother of the two girls, namely, the respondent mother’s own mother.

    Mr Page was reported by Ms Feeney to have told Ms Feeney that the maternal grandmother … informed him of a meeting that was to take place this afternoon, Monday, 14 May, and that if the meeting was not successful, that she would murder the children.  Ms Feeney reported to [the departmental officer] that senior counsel had also told her that the maternal grandmother … had told him in that same conversation that she would encourage her daughter [that is, the respondent mother] to kill herself too.  [The departmental officer] immediately asked the mother’s solicitor to phone her client, and request that she deliver the children to [a named] Child Safety Service Centre immediately.

12. The reasons go on to record that the mother refused to do so, and that:

    [The departmental officer] then informed the mother’s solicitor that the State Central Authority would need to seek a warrant for the recovery of the children.

13. After those proceedings on 14 May, in circumstances where the whereabouts of the children were allegedly, still unknown, the mother brought an application pursuant to Regulation 19A seeking a discharge of the return orders earlier made by his Honour.  The maternal great-aunt sought to intervene in those proceedings. 

14. Forrest J refused to hear the mother’s application, and because, as a result, there was, in effect, no application, the maternal great-aunt’s application was not determined.

15. On 21 May, the children were recovered by the Queensland Police.  They were (and allegedly had been) in the care of the maternal great-grandmother.  The transcript of the taped interview of that recovery by the police is in evidence before me. It is a troubling document, particularly given what was said by the great-grandmother to the police in front of the children, and later by the great-grandmother in direct response to questions by one of the children.

16. On 22 May, the High Court heard an application for special leave that sought, I gather, orders that can be described in broad terms as certiorari and prohibition.  I am told that Kiefel J ordered the matter to be heard by the Full Bench of the High Court, and I understand that this is to occur in August. 

17. For the purposes of the current application, it is said that it can be accepted that if those proceedings are successful, the practical result will be that Forrest J’s order for the children’s return will be quashed, and the return application will be heard by this court, in all likelihood, with other orders, relating, for example, to the representation of the children.

18. I turn now to the provisions of the Regulations themselves. It is said by counsel for the Central Authority that the children are in foster care pursuant to powers exercised by the court given by Regulation 14(1)(a)(vi). That Regulation which provides relevantly:

    (1)If a child is removed from a convention country to, or retained in, Australia: 

    (a)the responsible Central Authority may apply to the court, in accordance with Form 2, for any of the following orders:

    …

    (vi) any other order that the responsible Central Authority considers appropriate to give effect to the convention.

19. In addition, Regulation 15 provides relevantly:

    (1)If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:

    (a)make an order of the kind mentioned in that regulation; and

    (b)make any other order that the court considers to be appropriate to give effect to the Convention; and

    (c)include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.

20. Counsel for the Central Authority relies upon the decision of Chisholm J in Director-General of Community Services Central Authority v RMS (2000) FLC 93-026. His Honour held, relevantly at [26]:

    The purpose of the convention, in a word, is to ensure the swift return of abducted children to the country from which they have been abducted, so that the courts of that country can deal with any matters relating to contact and residence:  See De L v Director-General, NSW Department of Community Services (1997) FLC 92-744; (1997) 21 Fam LR 432. It would have the potential to frustrate or delay the operation of the convention if the courts of the country to which the children had been removed were to get involved in making contact orders. In my view, therefore, it is not appropriate for the court to deal with the husband’s application for contact as an application under the provisions of the Family Law Act.

21. Counsel for the Central Authority also relies upon what Gleeson CJ said in DP v The Commonwealth Central Authority (2001) 180 ALR 402, and what Callinan J said in DJL v The Commonwealth Central Authority (2000) 170 ALR 659.

22. In light of the overarching submission made by counsel for the Central Authority here, it is convenient to first refer to Callinan J [191]:

    I do not overlook that this is a case in which the future of a child is involved. However, the international arrangements and their adoption by this country provide a, indeed the, code for the way in which the future welfare of a child who has been removed from a subscribing country, is to be determined.

23. Gleeson CJ held in DP v Commonwealth Central Authority (at [3]):

    In De L v Director-General, New South Wales Department of Community Services … this Court pointed out that where there has been a wrongful removal, or retention, of a child to, or in, one contracting state, the concern of the Convention is to reserve to the jurisdiction of the contracting state which is the place of habitual residence of the child the determination of rights of custody and of access.  This was said to entail a degree of self-denial, the natural inclination of any Court before which such a question comes being to make its own assessment of the interests of the child.  The objective is to secure the prompt return of children who have been removed wrongfully, or are being retained wrongfully, so that issues of custody and access may be dealt with according to the laws of their place of habitual residence …

24. By way of broad summary, counsel of the Central Authority argues that, within that “code”, there is provision made for the making of orders where circumstances arise prior to the return order being executed and that that provision is Regulation 19A.  It is argued that the Regulation is comprehensive in its terms, specifying the type of order that may be sought and the circumstances in which an order can and should be made. 

25. Regulation 19A provides:

    (1)If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.

    (2)The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:

    (a)all the parties consent to the return order being discharged; or

    (b)since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or

    (c)exceptional circumstances exist that justify the return order being discharged; or

    (d)the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.

    (3)In considering whether to make an order discharging a return order, the court must have regard to section 111CE of the Act if the convention country from which the child was removed is also a Convention country within the meaning of subsection 111CA (1) of the Act.

26. Thus, counsel argues, there is no provision for the making of Part VII parenting orders. If there was, it is argued, the entire purpose and objects of the Regulations (and for that matter, the Convention) would be defeated.

27. The essence of the relief provided for in the Regulations is that they are about forum, not the merits of a particular parenting case. The issue of forum is, in turn, predicated upon the recognition by signatories to the Convention, of which Australia is one, that international child abduction is an “evil” (adopting, respectfully, the words of Kirby J in De L v Director-General, New South Wales Department of Community Services and Another (1996) 139 ALR 417) that requires prompt return to the country of origin, so that the Courts of that country can determine parenting issues.

28. Issues of international comity are also involved and important.  In that respect, Australia’s obligations sit with Australia’s expectations.  Australia expects that a signatory country will return children wrongfully removed from Australia without that country determining for itself the merits of the parenting application.

29. Mr North SC, who appears as counsel for the maternal aunt, and Dr Brasch, who appears as counsel for the mother, each contend that proceedings under the Regulations have been “determined.” They were determined, it is argued, when Forrest J made orders for return and the appeal from that order was dismissed by the Full Court.

30. The proceedings in the High Court are, it is argued, not proceedings under the Regulations, they are proceedings for prerogative writ and are separate from the concluded proceedings under the Regulations. Thus, it is said, there are children within the jurisdiction of this Court and applicants who satisfy section 65C’s requirements and who thus have a right to bring parenting proceedings and seek orders pursuant to Part VII of the Act.

31. Further, it is argued that Regulation 19A has a particular application and cannot be seen to apply to the circumstances with which the Court is confronted here.   That argument centres, in addition, upon Regulations 18 and 19. 

32. Regulation 18 provides:

    (1)The following rules apply to the hearing of an application made under subregulation 14 (1):

    (a)the court must not refuse to make a return order for the child only because there is in force or enforceable in Australia an order relating to the custody of the child;

    (b)the court may take into account the reasons for the making of any order relating to the custody of the child;

    (c)an order for the return of the child does not determine the merits of any custody issue in relation to the child.

    (2)      In this regulation:

    custody, in relation to a child, includes:

    (a)      guardianship of the child; and

    (b)responsibility for the long-term or day-to-day care, welfare and development of the child; and

    (c)responsibility as the person or persons with whom the child is to live.

33. Regulation 19 provides:

    If an application for a return order for a child is made, a court must not make an order, except an interim order, providing for the custody of the child, within the meaning of regulation 18, until the application is determined.

34. Mr North SC argues that Regulations 18 and 19 contemplate orders being made pursuant to Part VII of the Act. He argues that the definition of “custody” for the purposes of Regulation 19 is contained in Regulation 18 and, importantly, that Regulation refers to an order “…in force or enforceable in Australia an order relating to the custody of the child.”

1. Thus, he argues, the Regulation contemplates the real possibility of this court entertaining “custody” proceedings resulting in an order and it is those proceedings to which Regulation 19 applies.  In short then, counsel argues that Regulations 18 and 19 contemplate precisely the sort of application pursuant to Part VII of the type that are brought in the instant proceedings.

2. The context for the current application is, as I see it, as follows:

   a)An order has been made, which is still current, for the children to return to Italy, so that the courts of that country can determine parenting issues between the parties;

   b)That is, as orders currently stand, it is the courts of Italy who are to determine the parenting issues between these parents, not the courts of Australia;

   c)That order made by Forrest J has not been discharged by orders made consequent upon an application pursuant to Regulation 19A;

   d)Proceedings in the High Court are, as Mr North argues and I accept, separate in the sense of them not seeking relief pursuant to, or an appeal from, the Regulations themselves;

   e)But, nevertheless, the effect of success in those separate proceedings will see the matter returned to this court with the current order for return quashed but with an application pursuant to the Regulations to be heard for return to Italy;

   f)Failure for the applicants in the High Court will see the current order for return stand, such that the courts of Italy will be the court or courts determining parenting proceedings.

   g)The children were placed in foster care by the exercise of power under the Regulations and it is the exercise of that power and that order – exercised and made pursuant to the Regulations – which is the catalyst for the current proceedings.

3. I am not persuaded that proceedings under the Regulations have been determined in the sense that proceedings relating to these children are no longer referable to the code which the Regulations create.

4. Leaving aside the dicta from Chisholm J in Director-General of Community Services Central Authority v RMS (2000) FLC 93-026 and other dicta in decisions such as McCall v Clark (2009) FLC 93-405 referred to in the written outline by counsel for the Central Authority, it seems to me that proceedings instituted under the Regulations, and governed by them, can continue beyond the determination of the application for return. So much is, in my view, evident from the terms of the Regulations themselves.

5. Regulation 19A is itself an example.  So, too, is the power to make orders contained in Regulation 15, which includes power referenced to Regulation 14(1)(a)(iv). The latter is a general and permissive power referenced not to the making of a return order, or to “proceedings”, but, rather, to a child being “removed from a convention country to, or retained in, Australia.” It might be noted, in addition, that the reference is not to “wrongful” removal or retention, but to removal or retention simpliciter. 

6. As has been seen, Regulation 18 makes reference to the refusal to make an order if there is in force an order in Australia relating to a child.  Regulation 19 refers to the making of an interim order.  I am not, however, persuaded that Regulations 18 or 19, alone or together, and either explicitly or implicitly, have an effect so as to render applicable Part VII once the proceedings for return are “completed” by the making of an order for return. 

7. Those Regulations are, in my view, not directed toward that question. What they make clear are two matters central to the application of the Regulations and the international obligations and promises which underpin them. First, they make clear that parenting orders of the courts of the forum will not defeat the purposes of the Regulations (and the Convention) and applications made thereunder (Regulation 18). Secondly, they make clear that the courts of the forum will not embark upon parenting applications and make parenting orders until a decision is made about the return of the child, save for orders governing the situation up until the time that order is made (Regulation 19).

8. Regulations 18 and 19 seek to curtail the jurisdiction and power otherwise given to the Court pursuant to Part VII of the Act. If the curtailment of that power was brought to an end upon the making of a return order, the underlying purposes and objects of the Regulations (and the Convention) would be readily defeated by the making of parenting orders that could, for example, cut across, or seek to abrogate, the power to make orders, giving effect to the return order.

9. I conclude that any application of the types contained in the applications of the parties, other than the Central Authority, should be made pursuant to the Regulations (effectively, Regulation 19A).

10. Mr North SC argues that, if that is the case, his client - by which, he means, in reality, the children - could not apply for an order. It is true that the terms of Regulation 19A would, in terms, appear to have that effect. However, to the extent that there may be an issue about the involvement of children by direct representation of them in proceedings of that type, there seems to be nothing in the Regulations that would forestall or prohibit an application being made, once an application is made by a relevant person pursuant to Regulation 19A.

11. At the conclusion of this preliminary issue, I sought from the parties their respective positions in light of this judgment.  Effectively, all indicated that they wished to, as it were, consider their positions and it seems to me entirely appropriate that I should give them an opportunity to do so. 

12. I will now hear argument and submissions with respect to the further disposition of these proceedings.

13. I am not prepared to entertain an oral application by the mother in circumstances where the evidence that might sustain any orders in that respect is the subject of a very significant dispute, and in any event, will be heard by me in two and a half weeks time.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 15 June 2012.

Associate: 

Date:  26 June 2012