Garning & Director-General, Department of Communities, Child Safety and Disability Services & Anor
[2013] FamCAFC 28
•14 March 2013
FAMILY COURT OF AUSTRALIA
| GARNING & DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & ANOR | [2013] FamCAFC 28 |
| FAMILY LAW – APPEAL – CHILD ABDUCTION CONVENTION – REGULATIONS – Where, at the time of the hearing of the appeal, the children had returned to Italy by order of the trial judge – Where the trial judge dismissed the mother’s application to discharge the return order – Where the mother appeals against the orders of the trial judge on the basis that the trial judge failed to properly interpret and apply the relevant regulatory provisions and that the trial judge failed in his duties imposed by regulatory provisions and/or condoned breaches of the same by the State Central Authority - Where the respondents sought summary dismissal on the basis that the appeal was rendered nugatory because the children were no longer in Australia –No substance found in grounds of appeal – No error found on part of trial judge - Appeal dismissed – No order for costs. |
| The Convention on the Civil Aspects of the International Child Abduction Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| De L & Director-General, NSW Department of Community Services (1996) 187 CLR 640 Soysa & Commissioner, Western Australia Police [2012] FCWA 28 |
APPELLANT: | Ms Garning |
FIRST RESPONDENT: | Director-General, Department of Communities, Child Safety and Disability Services |
SECOND RESPONDENT | Mr V |
FILE NUMBER: | BRC | 1387 | of | 2011 |
APPEAL NUMBER: | NA | 90 | of | 2012 |
DATE DELIVERED: | 14 March 2013 |
PLACE DELIVERED: | Canberra |
PLACE HEARD: | Brisbane |
JUDGMENT OF: | Finn, May and Strickland JJ |
HEARING DATE: | 19 February 2013 |
LOWER COURT JURISDICTION: | Family Court of Australia |
LOWER COURT JUDGMENT DATE: | 3 October 2012 |
LOWER COURT MNC: | [2012] FamCA 389 |
REPRESENTATION
COUNSEL FOR THE APPELLANT: | Mr de Robillard |
SOLICITOR FOR THE APPELLANT: | In person |
COUNSEL FOR THE FIRST RESPONDENT: | Mr Linklater-Steele |
| SOLICITOR FOR THE FIRST | |
RESPONDENT: | Crown Law |
COUNSEL FOR THE SECOND | Mr Lo Schiavo with |
RESPONDENT: | Ms Payne |
SOLICITOR FOR THE SECOND | Donnelly Lawyers |
RESPONDENT: |
Orders
The appeal be dismissed.
The application in an appeal filed 5 February 2013 (to adduce further evidence and for the production of documents) be dismissed.
There be no order for costs in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garning & Director-General, Department of Communities, Child Safety and Disability Services and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 90 of 2012
File Number: BRC 1387 of 2011
| Ms Garning |
Appellant
And
| Director-General, Department of Communities, Child Safety and Disability Services |
First Respondent
And
| Mr V |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Garning (“the mother”) against orders made by Forrest J on 3 October 2012. The effect of those orders was to dismiss an application by the mother for the discharge pursuant to Reg 19A of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) of orders which his Honour had made on 23 June 2011 and which required the four children of the mother’s marriage to Mr V (“the father”) to be returned to Italy pursuant to Reg 16 of the Regulations.
The orders appealed include an order for the return of the four children to Italy. It was common ground at the hearing of the appeal that the children had in fact been returned to Italy shortly after the making of orders on 3 October 2012, with no stay of those orders having apparently been sought.
The first respondent to the appeal is the Director-General of the Queensland Department of Communities, Child Safety and Disability Services, who as the State Central Authority under the Regulations, had made the original application under the Regulations for the return of the children to Italy. That application was made on the basis that they had been wrongfully retained in this country by the mother.
The second respondent to the appeal is the father who, although not a party to the original proceedings in which the State Central Authority sought an order for the return of the children to Italy, had at a subsequent time become a party to the proceedings in this country involving the children.
Both respondents not only opposed the appeal, but also sought in their written submissions (although not in any formal application or response document) that the appeal should be summarily dismissed on the basis that it had been rendered nugatory because the children were no longer in Australia, but rather were now in Italy.
However, we determined that in the circumstances of this case the more appropriate course would be to determine the appeal on its merits rather than to do so on a summary basis, although we will later in these reasons refer briefly to the submissions made to us in relation to the possibility of a summary dismissal of the appeal.
Background
By way of general background to this appeal, it need only be said that following Forrest J’s orders of 23 June 2011 for the return of the children to Italy, the mother unsuccessfully appealed those orders to the Full Court of this Court. She then filed, but did not ultimately pursue, an application for special leave to appeal the decision of the Full Court to the High Court. Separate proceedings were subsequently taken on behalf of the children in the High Court, but those proceedings were also unsuccessful, being dismissed by the High Court by orders made on 7 August 2012. There were then further proceedings at first instance (both under the Regulations and under Part VII of the Family Law Act 1975 (Cth) (“the Act”)), including proceedings before Murphy J in which orders were made on 6 July 2012 which were the subject of an appeal by the mother that was subsequently abandoned. Ultimately, on 3 October 2012 Forrest J made the orders which are the subject of this appeal.
The factual background to the children’s original arrival in Australia and their retention here is to be found in Forrest J’s reasons for judgment of 23 June 2011 (which related to his original return orders) as well as in the reasons for judgment of the Full Court (delivered on 9 March 2012). A history of the proceedings up until the High Court’s orders of 7 August 2012, is to be found in the High Court’s reasons for those orders (published on 7 November 2012). The factual and procedural history of the case following the High Court’s orders of 7 August 2012 is to be found in Forrest J’s reasons for judgment delivered on 3 October 2012 in relation to the orders now appealed.
Accordingly, it is unnecessary that we say more about the factual background and procedural history of this case, save in so far as it will be necessary to do so in our discussion of the grounds of appeal.
The issues raised by the appeal
The mother’s notice of appeal (filed on 31 October 2012) originally contained twelve grounds of appeal. However, in her counsel’s written summary of argument, Grounds 1 and 3 were abandoned and the remaining ten grounds were grouped into the following two groups with the following descriptions:
· Grounds 2, 4, 8, 9, 10 and 12 – “being all instances where it will be submitted his Honour failed to properly interpret and consequently apply the relevant regulatory provisions”;
· Grounds 5, 6, 7 and 11 – “being instances where it will be submitted … that his Honour failed in his duties imposed by the regulatory provisions and/or condoned breaches of same by the State Central Authority”.
We will consider the remaining grounds of appeal in these two groupings, and it will be in the context of the first that we will explain the trial judge’s reasons for refusing to discharge the orders for the return of the children to Italy.
Before turning to consider the first group of grounds, we would explain that at the hearing of the appeal counsel for the mother was given leave to substitute for the orders sought in the notice of the appeal, the orders which were contained in the concluding section (Part F) of his written outline of submissions. However, given the conclusion which we will reach in these reasons that none of the grounds of appeal have been established and that therefore the appeal must be dismissed, it is unnecessary that we consider the orders that the appellant would seek in the event that the appeal was allowed.
Discussion of grounds 2, 4, 8, 9, 10 and 12
We now turn to the first group of grounds of appeal which were addressed in the mother’s written outline under the heading “The relevant Regulatory Context”. At no point in his written or oral submissions did counsel for the mother address any of these grounds individually, apart from Ground 2.
Nevertheless in order to ensure that the mother’s case before us is properly understood, we will now set out those grounds:
Ground 2: His Honour failed to properly take into account the fact that the primordial foundations for the Convention On the Civil Aspects of International Child Abduction (1980) (‘the Hague Convention’) were:
a“the interests of the children are of paramount importance in matters relating to custody”; and
bto “secure protection for rights of access”.
Ground 4:His Honour misdirected himself in finding that the circumstances surrounding the proposed return of the children were not “exceptional”.
Ground 8:His Honour erred in disregarding the children’s clear and strongly expressed objections to returning to Italy.
Ground 9:His Honour erred in disregarding the effluxion of time (being in excess of two years) since the children were brought to Australia.
Ground 10:His Honour ought to, but failed to address and explain why - given the essentiality of prompt return in the terms of the Convention – it was acceptable for the Central Authority to have taken in excess of seven (7) months to serve and [sic] mother with their application and for the Full Court of the Family Court of Australia to have taken in excess of seven (7) months to make a determination about a simple issue on appeal.
Ground 12:His Honour ought to, but failed to place appropriate weight of [sic] the father’s ongoing tergiversations as evidenced in the father’s emails of April 2011.
The essential complaint in these grounds, particularly as they were argued, is that his Honour had not properly applied the provisions of Reg 19A and Reg 1A(2), and accordingly, not applied properly the provisions of the preamble to and of Article 1 of the Convention on the Civil Aspects of the International Child Abduction (“the Convention”) which are referred to in Reg 1A (2)(a).
As a background to our discussion of the complaints in these grounds, we will now set out the relevant provisions of the Regulations and of the Convention
Relevant provisions of the Regulations and the Convention:
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:
aall the parties consent to the return order being discharged; or
bsince the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or
cexceptional circumstances exist that justify the return order being discharged; or
dthe 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.
Regulation 1A(2), on which counsel for the mother relied in support of the appeal, provides:
(2)These regulations are intended to be construed:
ahaving regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
brecognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and
crecognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
The preamble to and Article 1 of the Convention, which are referred to in Reg 1A(2)(a), are as follows:
The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions…
Article 1
The objects of the present Convention are—
ato secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
bto ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.
The trial judge’s application of the Regulations
In his reasons for judgment in relation to his orders of 3 October 2012, Forrest J set out the provisions of Reg 19A and then proceeded to apply those provisions to the application which was before him in the way in which we will shortly examine.
His Honour did not set out, nor even refer in his reasons to, the provisions of
Reg 1A or of the preamble to and Article 1 of the Convention. It was not part of the mother’s case to his Honour that it was necessary to have specific regard to these provisions, but despite this the mother now complains that his Honour should have made some reference to them in his reasons. We do not agree that there was any such obligation on his Honour. But in any event, as the discussion which follows of his Honour’s application of the provisions of Reg 19A will show, it cannot be seriously contended that in construing that regulation, his Honour did not have regard to the principles and objects mentioned in the preamble to and in Article 1 of the Convention. As will be seen, the children’s interests were certainly of great concern to his Honour. There is thus no substance in this aspect of the mother’s complaint.A similar aspect of the mother’s complaint, at least as is contained in her written submissions at [29] and [30], is that his Honour did not refer in his reasons to Articles 13 and 20 of the Convention, although there was no further elaboration of this aspect of the complaint either in the written or oral submissions before us. Nevertheless, and again in an endeavour to ensure that the mother’s case is understood, we will now set out the terms of Article 13 and 20 of the Convention:
Article 13 :
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
athe person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
bthere is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
…
Article 20
The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
We need only observe in relation to the apparent reliance by the mother’s counsel on these articles of the Convention, that while it is the Regulations rather than the terms of the Convention which contain the law relating to the operation of the Convention in this country, it will be seen in the discussion which follows, that Forrest J’s application of Reg 19A could not be said to be contrary to the provisions of Article 13 or of Article 20 in so far as those articles could be said to inform in any way the application of Reg 19A.
We will now examine his Honour’s application of Reg 19A, particularly sub-paragraph (2).
Having set out the provisions of Reg 19A, his Honour observed (at [14]) that the pre-condition in Reg 19A(2)(a) for the discharge of a return order could not be satisfied in this case because the Central Authority opposed such a discharge. No challenge is, or could be, made to that observation by his Honour.
As to the pre-conditions in Reg 19A(2)(b) and (c), being respectively that circumstances have arisen since the return order was made which make it “impracticable” for the order to be carried out, and that “exceptional circumstances exist that justify the return order being discharged”, Forrest J was prepared to adopt (at [17] to [22]) the construction placed on the expressions “impracticable” and “exceptional circumstances” by Thackray CJ in Soysa & Commissioner, Western Australia Police [2012] FCWA 28. In that decision the Chief Judge said that “unmanageable” was the appropriate synonym for “impracticable” because “it allows ‘some degree of reason’ to enter into the process of determining whether the discretion to discharge the order has been enlivened”, and that the expression “exceptional circumstances” required “something more than ‘unusual’ [having regard] to the strength of the language employed in those other parts of the Regulations that allow a court discretion not to order the return of a child…”.
Forrest J also offered his own similar interpretation of the expression “exceptional circumstances”:
21.…The circumstances need to be quite different from those that generally present in this sort of case to make them “exceptional” and there clearly must be something about the “exceptional circumstances” that makes it appropriate to discharge the return order; that justifies, substantiates or warrants doing so, particularly having regard to the purpose and scheme of the Convention and the basis upon which the return order was originally made.
In his written outline of argument, counsel for the mother submitted that Forrest J had introduced an irrelevant consideration into the determination of the application for the discharge of the return order by “the finding of alternative words for the ‘key’ words used in Regulation 19A” of “impracticable” and “exceptional circumstances”.
While care must be taken to avoid placing any “gloss” on the words used in the Regulations (as the High Court has warned in De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640, 655), we do not agree that Forrest J’s construction of Reg 19A(2)(b) and (c) by reference to constructions placed on those paragraphs by Thackray CJ in Soysa, and to his own expressed view that “exceptional circumstances” must connote circumstances which are beyond merely “unusual” circumstances, amount to the introduction of irrelevant considerations into his decision making. We regard what his Honour said about the meaning of “impracticable” and “exceptional circumstances” as no more than explanations as to how he proposed to apply those expressions in the circumstances of this case.
Having explained how he proposed to interpret the expressions “impracticable” and “exceptional circumstances”, his Honour then examined and rejected the mother’s contentions as to why it had become “impracticable” for the return order to be carried out (at [23] to [34]).
The first of her contentions, as recorded by his Honour (at [25]), was that the children “disappeared to make [the return order] impracticable to be carried out.” Having considered the relevant evidence, his Honour concluded (at [27]) that he was “absolutely satisfied that the girls did not run away and go and hide themselves for days to avoid getting on a plane to Italy” and (at [28]) that he did not consider that the “actions of adults…done in deliberate defiance of the Court’s orders, can be relied upon by the mother as circumstances that make it ‘impracticable’ for the return order to be carried out simply because the date and time that the children were to be delivered to the airport had passed”.
We would say at this point that, in our view, his Honour did not err in reaching this conclusion; nor did he err in having regard to the matters which he did in reaching this conclusion; nor did he err in then making the following general observation concerning the operation of the Convention, indeed we would suggest that this observation could be said to reflect the principles and objectives of the preamble to and Article 1 of the Convention:
28.…I do not consider that the actions of adults who are members of the children’s family, or otherwise close to and known by the children, done in deliberate defiance of the Court’s orders, can be relied upon by the mother as circumstances that make it “impracticable” for the return order to be carried out simply because the date and time that the children were to be delivered to the airport has passed. To find that would make a mockery of the Hague Convention legal process and do nothing but encourage such actions in similar circumstances in the future by parents as equally determined to continue to wrongfully retain their children in this country.
Then clearly with the children’s interests in mind, his Honour considered (at [29] to [31]) the evidence which indicated that the children might resist boarding a plane for Italy, and in this context he referred (at [32]) to the mother’s stated intention that she would not return with them to Italy. These were matters on which the mother also apparently relied to establish the “impracticability” ground (see [23] of the reasons). His Honour concluded in relation to these matters (at [32] to [33]) that while he could not rule out the possibility that the mother would “adhere to her stated position”, it might be the case that she would accompany the children to Italy, but that even if she did not do so, “having regard to all of the evidence” he was “not convinced that the girls [would] not go on a plane”, although he accepted “that they will probably not be happy to do so”.
Thus his Honour concluded (at [34]) that he was not persuaded that since the return order was made, it had become “impracticable” for it to be carried out. We are satisfied that this was a conclusion well open to his Honour on his construction of the expression “impracticable”, which we have previously indicated was a correct construction, and on the evidence before him. We are certainly not persuaded that his Honour fell into error in his consideration of the pre-condition in Reg 19A(2)(b) by taking into account irrelevant considerations or failing to take into account relevant considerations as is asserted by counsel for the mother in [31] and [32] of his written submissions.
The mother’s case before his Honour that there were “exceptional circumstances” which would justify the discharge of the return orders under Reg 19A(2)(c), as recorded by him (at [23]), relied on her stated intention not to return to Italy with the children, the children’s objections to returning, and the manner in which they had expressed those objections.
In order to determine whether there were such “exceptional circumstances”, his Honour carried out a detailed examination (at [35] to [52]) of the evidence concerning the children’s views (particularly from the Family Consultant), being evidence which was before him when he made the original return order, and also further evidence which was before him when he determined the application to discharge the return order. That later evidence included evidence of threats of self-harm by two of the children.
Although his Honour recognised (at [43]) that the level of the children’s expressed objections to a return to Italy had increased in the period between the making of the original return order and the hearing of the application for its discharge, and also (at [45] and [49]) that evidence of threats by the children of self-harm was very concerning, he concluded (at [52]) that, as had been confirmed by the Family Consultant, the children’s objections to returning to Italy were “principally founded in a belief that their mother cannot return with them” and that the “current strength of their views about returning to Italy cannot be considered in isolation from that fact” of their belief, “instilled in them by their mother”, that she cannot and will not return to Italy with them.
Having reached this conclusion, his Honour considered, having regard to certain authorities to which he referred, that it was necessary for him to scrutinise the mother’s reasons for not returning to Italy. His Honour referred first, and briefly (at [58]), to the economic reasons which might prevent the mother’s return, but he can be read as placing little weight on such reasons.
His Honour then turned to the mother’s fears of criminal sanctions which she might face in Italy, and he referred in considerable depth (at [59] to [64]) to the evidence about that matter. His conclusion was:
65.…I am not satisfied that the mother’s concern that she will be arrested, charged with an offence, convicted and imprisoned on return to Italy, is one that “genuinely precludes” her from returning. Not even the evidence that she herself has put before the Court supports such a finding.
Then having referred (in [66]) to the very strong level of attachment between the children and the mother, and having said that he could not find “that the mother will not return to Italy if the return order is not discharged”, his Honour reached the conclusion that he was not satisfied that “exceptional circumstances” existed that would justify the return order being discharged, in the following paragraph:
68.The mother now points to evidence that the children’s emotional well-being was adversely affected by their separation from her when they were in foster-care earlier this year, and then, effectively, says to the Court that they will suffer in the same way if they return to Italy without her, which she alone currently says they must do. She asserts that the Court would be satisfied that these circumstances are exceptional and that they justify discharge of the return order. I am not so satisfied.
Nothing put to us on behalf of the mother has persuaded us that his Honour was in error in reaching that conclusion.
Still in the context of Reg 19A(2)(c), his Honour said (at [69]) that it was appropriate “to make some remarks about the impact of the effluxion of time in this case”, and he went on (in [70] to [74]) to canvass the history of the proceedings. He concluded, however, (at [75]) that in all the circumstances, the passing of over two years since the children were wrongly detained in this country did “not constitute exceptional circumstances that justify discharge of the return order”, and he explained his reasons for this conclusion in the following way:
75.…To consider this amount of time that has passed, in these circumstances, as exceptional circumstances justifying discharge of the return order would, in my view, simply encourage absconding parents to take whatever steps might be available to them in the litigation process to seek to delay return orders being made and implemented. I accept the submission that to so decide would do a grave injustice to the many hundreds of parents who faithfully put their trust in the rule of law to effect the return of their children who have been wrongfully taken away from them. The legislative recognition of this can be seen in paragraph (2)(d) of Regulation 19A that I now turn to consider.
It appears from [34] to [45] of the written submissions on behalf of the mother, that some criticism is made on her behalf of his Honour’s consideration in the context of Reg 19A(2)(c) of what is termed in the submissions, the “time issue”. We cannot be certain as to the precise nature of that criticism, and can only say that we cannot detect any error in his Honour’s discussion of that issue, even if that discussion may have been unnecessary given the provisions of Reg 19A(2)(d), which his Honour next discussed.
Reg19A(2)(d) provides that:
The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:
…
(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.
It was apparently the mother’s case before his Honour that, on a proper construction of Reg 19A (2)(d), the pre-condition in that paragraph was satisfied because the return order was first made on 23 June 2011 and the application for the discharge of that order was made on 26 June 2012 (with an amended application being filed on 17 August 2012).
However, his Honour held (at [91]) because the date of delivery of the Full Court’s judgment in the appeal against the return order was 9 March 2012, a year had not passed before the application for the discharge of the return order was made, and thus the pre-condition in Reg 19A(2)(d) for the discharge of the return order was not met. As there was no challenge before us to his Honour’s construction of Reg 19A (2)(d) or to his calculation of the time period, we need say no more about this particular aspect of his Honour’s decision.
Finally in his reasons, his Honour considered the question of whether he would have exercised the discretion to discharge the return order had he found one of the pre-conditions for the exercise of the discretion fulfilled, and he concluded that he would not have done so for the reasons which he gave (at [93] to [102]). As we are satisfied that his Honour did not fall into appealable error in determining that none of the pre-conditions in Reg 19A(2) for the exercise of the discretion were satisfied, we need say no more about the discretionary issue.
Conclusion in relation to grounds 2, 4, 8, 9, 10 and 12
As best as we have been able to understand the mother’s challenge to his Honour’s application of Reg 19A(2), we have found no merit in that challenge. Certainly nothing has been put to us on behalf of the mother, nor have we been able to detect for ourselves, any error in his Honour’s application of that Regulation. Accordingly, we find the grounds of appeal directed to his Honour’s application of Reg 19A to be without merit.
Discussion of grounds 5, 6, 7 and 11
The second group of grounds relied on by counsel for the mother in support of the appeal were as follows:
Ground 5:His Honour ought to, but failed in his duty to make appropriate orders aimed at assuming that the physical and psychological welfare of the children would be protected at all times during the process of the children’s removal to Italy.
Ground 6:His Honour had no basis for finding that the children would be “treated sensitively and appropriately by Departmental officers prior to and at the time of being put on a flight”.
Ground 7:His Honour ought to, but failed to consider the adverse impacts which the children would suffer should they be forcefully man-handled by burly male armed Police officers – as indeed happened in the glare of the television cameras, the media and ordinary Australian citizens who were driven to exclaim “Is this happening in Australia?!” when they witnessed the rough manner in which the children were being mishandled by armed male Police as well as two overweight female Police officers.
Ground 11:His Honour ought to, but failed to properly consider the children’s interests in view of such delays.
These grounds were all described in the written submissions of the mother as being instances where “his Honour failed in his duties imposed by the regulatory provisions and/or condoned breaches of same by the State Central Authority”.
We have difficulty in understanding why Ground 11 has been included in this group as it seems to relate to the content of Ground 10 which was within the first group of grounds. We will therefore not consider Ground 11 further, other than to say that we are satisfied on the basis of many passages in his Honour’s reasons that he did consider the impact of the length of the proceedings on the position of the children and their interests.
Similarly, little need be said in relation to the remaining Grounds 5, 6 and 7. As we canvassed in exchanges with Counsel for the mother at the hearing of the appeal, it is unthinkable that a court in this country would include in any orders authorising a police force or a child welfare department to take action in relation to a particular person or child, a requirement that the person or child not be ill-treated or abused during the taking of such action. Should there be allegations of ill-treatment or abuse in such circumstances, there are avenues by which such allegations can be pursued. But those avenues do not include some form of inquiry by the Family Court of Australia as was suggested by Counsel for the mother in his submissions to us and in the amended orders sought by him should the appeal succeed
To the extent that these grounds of appeal included a complaint that the trial Judge should have included in his orders provision for some transitional arrangements to assist the children in returning to Italy and in re-establishing their relationships with their father or other relatives there, such a complaint is answered by the concession made to us by Counsel for the mother that his Honour was not asked to make any such provision in his orders. Thus Grounds 5, 6 and 7 are to say the very least, entirely without merit.
Overall conclusion in relation to the grounds of appeal
As we have found no merit in the grounds of appeal, the appeal must be dismissed.
The mother’s application in an appeal filed 5 February 2013
Prior to the hearing of the appeal, the mother had on 5 February 2013 filed an application in an appeal.
In that application she sought that the Court receive as further evidence an affidavit from her directed to events since the making of the orders which were the subject of the appeal. However as her Counsel conceded that that affidavit was only sought to be relied on should this Court, having found substance in the grounds of appeal, itself re-determine the application for the discharge of the return order or remit that application for re-determination by a single Judge, it is unnecessary that we consider further the application to adduce further evidence.
In her application in an appeal, the mother also sought a range of orders directed to certain police forces and Government departments and other organisations for the production of documents. Such orders would be in the nature of subpoenas. Given that as a result of our orders no proceedings will remain on foot, no order in the nature of a subpoena could be made.
For these reasons we propose to dismiss the mother’s application in an appeal filed on 5 February 2013.
The question of whether the appeal was moot
There was much force in the submissions put to us on behalf of the State Central Authority and the father that the appeal had been rendered nugatory or moot by the fact that the children were returned to Italy shortly after Forrest J made his orders on 3 October 2012 (cf. the decision of the Full Court in Saffari & Director-General, Department of Families [2002] FamCA 1085).
Counsel for the mother, however, sought to persuade us that if the appeal against those orders were to be upheld, the Australian Central Authority would be obliged under the Regulations or the Convention to seek the return of the children to Australia apparently on the basis they had been removed pursuant to erroneous orders.
We are not persuaded that there would be any such obligation on or indeed power in the Central Authority to seek the return of the children had the appeal been successful which, of course, it has not.
However, as we said earlier in these reasons we considered that the appropriate course in this case was to determine and dismiss the appeal on its merits.
COSTS OF THE APPEAL
At the conclusion of the hearing of the appeal we received oral submissions in relation to the costs of the appeal. In the event that the appeal was to fail, as it has, only the father sought an order for costs against the mother. However, we are not persuaded that the circumstances justify any order for costs. Accordingly the only order will be that there be no order for costs.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May and Strickland JJ) delivered on 14 March 2013.
Associate:
Date: 14 March 2013
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