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

[2012] FamCA 354

FAMILY COURT OF AUSTRALIA

GARNING & DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES [2012] FamCA 354

FAMILY LAW – CHILD ABDUCTION – Hague Convention proceedings – Where return orders were made – Where a warrant was issued for recovery of children pursuant to Regulation 31 of the Family Law (Child Abduction Convention) Regulations – where the whereabouts of the children is unknown – where mother has made application for discharge of the return order – where mother filed Form 2D Application to discharge return orders under Regulation 19A – where evidence in mother’s application is in a hearsay affidavit – where the maternal-great-aunt seeks to intervene as a Case Guardian for the children – whether there are exceptional circumstances which justify the discharge of the return order under regulation 19A(2)(b) – where the mother is, prima facie, in contempt of court – whether the court should hear an application by a party who is, prima facie,  in contempt of court – where the mother is the only class of applicant provided for in Reg 19A of the – where the discretion is exercised not to hear the mother’s application because she is, prima facie¸ in contempt of court– where the application for application for discharge of the return order is dismissed – where the class of eligible applicants in Regulation 19A of the Hague Convention Regulations is limited – where the children are not included – where the application to intervene will not be entertained when the mother’s application for a discharge of return orders is not being heard

Family Law (Child Abduction Convention) Regulations 1986(Cth) Reg 19; 19A(2)(b)

In the Marriage of Fahmi (1995) FLC 92-637
Malpass and Mayson (2001) 27 Fam LR 288
Hadkinson v Hadkinson [1952] 2 All England LR 567

APPLICANT: Ms Garning

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

FILE NUMBER: BRC 1387 of 2011

DATE DELIVERED: 16 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 16 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page SC

SOLICITOR FOR THE APPLICANT: Feeney Family Law

COUNSEL FOR THE RESPONDENT: Mr Green

SOLICITOR FOR THE RESPONDENT: Crown Law

Orders

(1)      The applicant’s Form 2D Application filed on 15 May 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disability Services v 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

Ms Garning

Applicant

And

Director-General, Department of Communities, Child Safety and Disability Services

Respondent

REASONS FOR JUDGMENT

Introduction  

1.On 23 June 2011, I made orders in these Hague Convention proceedings for the return of four children to Italy. Some further orders were made the very next day that provided a timetable for that return of those four children. It is pertinent, I believe at this point, to note that I found in making my orders, the following:

·Those four girls were born in Italy and had lived in Italy all of their lives until their retention in Australia, at the end of what their father believed and the four girls believed, was to be only a four week holiday;

·That they spoke very little, if any, English on their retention in this country;

·That their parents had separated in Italy three years before their mother brought them to and retained them in Australia without their father’s permission;

·That in 2008, a year or so after the parents had separated in Italy, they both consensually registered orders in the Courts of Florence in Italy that gave them joint custody of the four girls and that provided for the girls to live with their father for weekends each week, living with their mother the balance of the time;

·That they did live with their parents according to that consensual custody parenting regime prior to the mother bringing them to Australia;

·That the mother had never brought an application in those courts in Italy, subsequent to 2008, seeking any change to those orders that she had consented to;

·That proper consideration was given to the wishes of the children, with the assistance and reporting of an independent Court based Family Consultant who interviewed the children independently of the mother and reported to the Court, insofar as consideration of those wishes mattered in respect to the application of the provisions of the Hague Convention Regulations. Regulations, which I add at this point, contrary to apparent opinions expressed by some who should know better, in the last few days, are actually part of the law of this country.

2.My orders provided not for the return of the children to the care of the father in Italy but for the return of the children to Italy, their country of birth and habitual residence for all of their lives until the point of their removal from that country, where, as is the purpose of the Hague Convention, decisions about their living and parental care arrangements could be made in the Italian Courts.

3.The decision of the mother not to return to Italy, with the impact that may have had on the children, was her own. She could, as she did for three years after separating from her former husband, live in Italy quite separately and apart from her former husband whilst judicial decisions, if necessary, could be made about the family’s future, including whether or not the mother and the girls moved to live in Australia as was the mother’s desire.

4.The mother has, to this point, said she will not return to Italy. That is a matter for her. That, pursuant to the orders I made, the consequence of her decision is that the girls go to live with their father in Italy, is in the mother’s hands. It was not the deliberate intent of the original orders I made.

5.Following my decision, the mother filed an appeal to the Full Court of this Court. On 5 August 2011, so that that appeal could be heard, I granted a stay of that part of my orders requiring return of the children to Italy until the determination of the mother’s appeal.

6.The Full Court of this Court heard and determined the mother’s appeal against my original return orders and delivered its Reasons for Judgment on 9 March 2012. Orders were made including one simply dismissing the mother’s appeal. Accordingly, from that moment, the order I had made on 5 August 2011 that stayed my original return orders 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 my original return orders.

7.On 22 March 2012, the applicant in the proceedings, the State Central Authority, requested information from the mother as to whether she intended to return to Italy with the children pursuant to the orders and, if not, what arrangements she proposed for the return of the children to Italy pursuant to the orders.

8.On 23 March 2012, the respondent mother’s solicitors advised the State Central Authority that they held instructions to make an application to the High Court of Australia for Special Leave to Appeal the decision of the Full Court and also to make an application for a further stay of my original return orders. 

9.On 4 May 2012, I made further orders that were not opposed by the respondent mother. Those orders required the respondent mother to deliver the four children to the Brisbane International Airport at a time and a date nominated by an officer of the State Central Authority, but not before this day, 16 May 2012.  The inclusion of the provision that delivery not be before today was, with the consent of the State Central Authority, to facilitate the respondent mother’s submissions in support of her Application for Special Leave to Appeal to the High Court being filed, and, to give her time to file and have heard and determined an Application for a stay of my original return orders.  That is what this Court was told the mother would be considering.

10.On Monday of this week, 14 May 2012, an urgent application was made by the State Central Authority for a recovery warrant to issue on the basis that serious threats had been made to the health and safety of the four girls by their maternal grandmother.  Those serious threats were confirmed in this Court by Senior Counsel appearing for the mother, those serious threats having been made directly to him.  The recovery warrant was also issued by the Court on the basis of my satisfaction at that time that there appeared to be a real risk that the children were going to be taken into hiding, a risk that has eventuated now as a matter of fact. The Court was also told on Monday that the Application for Special Leave to Appeal to the High Court had been withdrawn by the mother, was not going to be proceeded with and that no stay application was being brought.

11.Late yesterday afternoon, an application was brought to this Court on behalf of the mother. It is an application in Form 2D pursuant to the Hague Convention Regulations. It seeks an order pursuant to Regulation 19A of the same Regulations for a discharge of the return order made by this Court. The only evidence filed in support of that application by the respondent mother is a very brief affidavit, which I properly describe as a hearsay affidavit, of the mother’s solicitor who deposes simply to matters that she has been told by her client.

12.From that affidavit, it seems the mother seeks to rely on the provision of Regulation 19A(2)(b) that “exceptional circumstances exist that justify the return order being discharged”. The Regulation gives this Court discretion to discharge a return order, or part of it, if it is, relevantly, so satisfied.

13.At the outset of this morning’s hearing, I was informed that the children were not delivered by the mother to the Brisbane airport as directed by the State Central Authority pursuant to my orders of 4 May 2012.  I was informed that the children have not yet been recovered pursuant to the recovery warrant that I issued less than two days ago on Monday afternoon, 14 May 2012.

14.Senior Counsel for the mother informed the Court that his instructions are that the mother does not know where they are. The only relevant evidence proffered in the mother’s application is in the mother’s solicitor’s affidavit in which the mother’s solicitor deposes as follows:

Since midmorning on 14 May my client instructs that she has not known the location of her daughters.

15.Nothing more than that is deposed to and that is nothing more than hearsay. There is nothing about the circumstances as to when they last left the mother’s care. There is nothing about any reasonable enquiries that the mother has exhausted to try to find them since, nothing like that at all.

16.I note the mother is sitting in Court with her legal representatives. No explanation was proffered to this Court this morning as to any reason why the mother herself has not made an affidavit under oath in which she deposed to any of the facts relevant to her non-compliance with this Court’s order that the children were to be delivered to the father at the Brisbane airport, which, there is no dispute about, was directed by the State Central Authority to occur early this morning, so as to facilitate an early morning flight back to Italy in accordance with this Court’s orders.

17.Prima facie, I am satisfied that the mother is in contravention of this Court’s orders, yet at the same time that she is in contravention of this Court’s orders, she appears before the Court asking that the Court give her the indulgence of hearing her application for discharge of the return order, offering as evidence in support,  just the hearsay evidence of her solicitor that the mother has told her that the girls had told her that they did not want to return to Italy and that the mother has told her that the girls became distressed when they were told that they had to return to Italy. That is, with respect, not much different at all to the evidence that was considered by me thoroughly in the hearing last year that was subjected to an appeal to the Full Court of this Court that was dismissed.

18.Appearing at the bar table this morning alongside Senior Counsel for the mother was Mr North of Senior Counsel. He informed the Court that he appeared on the instructions of a maternal great aunt who seeks leave to intervene in the proceedings and who, if leave is granted, seeks to be appointed as the Case Guardian for the children in these proceedings. He handed to the Court an affidavit sworn by his instructing solicitor in which she deposed to having been contacted by the eldest of the four children yesterday, Tuesday 15 May 2012, and asked to act on her behalf. There is absolutely no evidence given in that affidavit by that solicitor in respect of her knowledge, or her lack of knowledge, of the whereabouts of the four children or as to whose adult care these four girls might be in. There is no evidence given by that solicitor as to her ability to again get in contact with these four girls.  Mr North informed the Court that his instructions are that the maternal aunt who seeks to be made Case Guardian also does not know the current whereabouts of the children.

19.I asked for and received submissions from both Senior Counsel as to why I should entertain the applications whilst the children remain “in hiding”, in circumstances where I am quite satisfied that they are only in hiding through the actions of adults who are familiar to them and close to them. I do not for one moment even begin to consider that these four girls could be in hiding without any form of adult intervention and assistance. I do not accept that such adult intervention and assistance would be being provided by persons unknown to the mother. The mother’s failure to put an affidavit of her own before the Court deposing to the full circumstances of the “disappearance” of the four children from her care and all of the efforts that she has exhausted in an attempt to locate them since helps significantly to persuade me of that.  

20.Both Senior Counsel submitted nevertheless that I should proceed to hear the applications notwithstanding the circumstances of non-compliance by the mother with the Court’s orders and the continuation of the subterfuge in respect of the current whereabouts of the children.  Mr Page of Senior Counsel for the mother submitted that as the mother is said by her solicitor to have told her that she has not been aware of the children’s whereabouts since Monday morning, that she is not, prima facie, acting in contravention of the Court’s orders. He submits that she is entitled to make an application under Reg 19A as the respondent to the Hague Convention proceedings notwithstanding the circumstances and that the matter should still proceed.

21.Mr North of Senior Counsel also submitted that I should hear his client’s application notwithstanding the children’s whereabouts remaining unknown. He asserts they have a right to be heard in the proceedings. It is appropriate to acknowledge at this point that Mr Green, counsel for the State Central Authority has indicated that his client takes issue with the right of Mr North’s client to intervene and he would want to be heard on that in opposition to it at the appropriate time. 

22.In my view, strictly speaking, there are no proceedings until I determine to entertain the mother’s application. She is one of the very limited class of applicants provided for in Reg 19A of the Hague Convention Regulations. The Regulations are to be read strictly and narrowly and the wording of Regulation 19A is clear and unambiguous in its provision as to who may apply to the court for the discharge of the orders. The children are not listed in that limited class of applicants. Other extended family members are not listed in that limited class of applicants.  In this case, other than the State Central Authority only the mother has the right to apply for a discharge order. Until it is determined that her application will be heard, I do not intend to consider the application of the maternal aunt to be given leave to intervene.

23.Mr Green for the State Central Authority, suffice to say, submits that the mother’s application should not be heard because of her non-compliance with the Court’s orders.

24.I am satisfied that there undoubtedly exists a discretion in this Court to refuse to entertain an application by a party who is in contempt of this Court. I refer particularly to the decisions, authoritative as they are, of the Full Court of this Court  in In the Marriage of Fahmi (1995) FLC 92-637 and Malpass and Mayson (2001) 27 Fam LR 288. Those Full Court decisions, as I have said this morning in argument, have been followed and applied by former Justice Warnick of this Court, and Federal Magistrate Jarrett of the Federal Magistrates Court. Those Full Court decisions particularly refer back to a very pertinent decision of the British Court of Appeal in the case of Hadkinson v Hadkinson [1952] 2 All ER 567. In his decision in that case, Lord Denning said at 574:

It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance.

Lord Denning went on to say at 575:

Applying this principle, I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard but if his disobedience is such that so long as it continues it impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may, in its discretion, refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.

25.Of course, it is acknowledged that Senior Counsel for the mother does not concede that the mother is actually in contempt and that she has a reasonable excuse, prima facie, for her non-compliance with this Court’s orders. With respect to Senior Counsel for the mother, at this point in this matter, I do not accept that submission. I do not accept that as a basis for proceeding to hear the mother’s application that was filed late yesterday afternoon. I am of the view that there is good reason to be highly suspicious that the mother is not complying with the Court’s orders and, therefore, is in contempt. Of course, I hasten to say, I am not dealing with her at this point in time for contempt. There is due process, of course, that must apply in respect of that.

26.I am satisfied though, that prima facie, she remains non-compliant with this Court’s orders and that no proper consideration should be given to her application and the application of another to intervene in her application until there is compliance and these children are delivered up into the care of an officer of the Department of Communities, Child Safety and Disability Services, Queensland just as the warrant I issued less than two days ago in this courtroom requires.

27.I have determined that I will not hear the mother’s application nor the application by the maternal aunt to intervene.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 16 May 2012.

Associate: 

Date:  16 May 2012