HACKFORD & HACKFORD

[2015] FamCA 415

FAMILY COURT OF AUSTRALIA

HACKFORD & HACKFORD [2015] FamCA 415

FAMILY LAW – PARENTING – where recent final orders made in Singapore – where registration of Singapore orders sought – where recovery order sought – where parenting orders sought – where best interests of the children considered

Family Law Act 1975 (Cth) ss 60B, 60CC, 67U, 67V, 70G
Family Law Regulations 1984 (Cth) reg 23

APPLICANT: Mr Hackford

RESPONDENT: Ms Hackford

FILE NUMBER: SYC 7358 of 2012

DATE DELIVERED: 21 May 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 21 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITOR FOR THE APPLICANT: Kydon Segal Lawyers

SOLICITOR FOR THE RESPONDENT: Sarah Bevan Family Lawyers

Orders

1. The application for Order number 2 in Application in a Case filed by the father on 19 May 2015 in relation to the registration of the Singapore orders is dismissed.

2. Pending further order, the father have sole parental responsibility of B born … 2000, C born … 2005 and D born … 2008 (“the children”).

3. Pending further order, the children live with the father.

4. The mother is to do all things necessary to ensure that the children are delivered to the father at Suburb E Police Station at 6.00pm on Monday, 25 May 2015 and to ensure that either the maternal grandfather, Ms F or the maternal grandmother, Ms G accompany the children throughout the entire journey to Suburb E Police Station from their current location.

5. The mother is restrained from accompanying the children from their current location to Suburb E Police Station or playing any role in the actual delivery of the children to the father.

6. In the event that the children are not delivered to the father in accordance with Order 4, a recovery order is to issue forthwith directed to the Marshal of the Family Court of Australia and to all officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia requiring them to return the children to the father and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.

7. The application in relation to the father’s costs and reimbursement of costs associated in respect of the execution of the recovery order are adjourned on a date to be fixed.

8. The Australian Federal police are to ensure the continual placement of the children on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until further order of this Honourable Court or until each child attends the age of 18 years.

9. The application for orders in relation to the mother spending time with the children and communicating with the children is adjourned.

10. The children’s passports are to remain in the custody of the father.

11. The orders sought by the mother in her Application in the Case are dismissed.

12. The listing date of 23 June 2015 before a Registrar is vacated.

13. The matter is listed on 23 June 2015 at 9.30am for mention.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hackford & Hackford 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 PARRAMATTA

FILE NUMBER: SYC 7358  of 2012

Mr Hackford

Applicant

And

Ms Hackford

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application in relation to the three children of a seven year relationship that ended in October 2012. At the time the parents separated they had been living as a family in Singapore though they had previously lived as a family in Sydney. Protracted family law proceedings were heard in Singapore and on Friday 14 May 2015 judgment was delivered in those proceedings. Pursuant to that judgment the children were placed in the sole “care and control” of the father for six months and were to have limited time with the mother. The father was permitted to return with the children to Australia and was ordered to register the orders under the Family Law Act 1975 (Cth) (“the Act”). After six months, if the mother relocated to Sydney, the parents were to equally share the care of the children.

2. The father arrived in Brisbane with the three children on Monday 18 May and in circumstances which are not entirely clear, he was approached by an officer of the Australian Federal Police and informed that the children’s mother was at the airport and intended collecting them and taking them with her. The father apparently informed the Federal Police officer of the Singapore proceedings, but was told the Singapore orders were not in force in Australia. In the circumstances, the father allowed the children to be taken from the airport with the mother as it was clear that the Federal Police intended to give the children to the mother if their assistance was sought in the matter.

3. Later on 18 May, the father filed an Application seeking to have the Singapore orders registered, that a recovery order be issued returning the children to him and other associated orders. The father was directed to serve his Application and supporting affidavit upon the mother and the matter was first mentioned before the Court on Wednesday 20 May. The mother appeared by telephone and was, as I understand it, in H Town in Western Australia, a coastal town some distance north of Perth. Rather than file a Response, the mother had filed an Application in a Case seeking orders including that the children live with her and that an Independent Children’s Lawyer (ICL) be appointed. This Application in the Case was treated as a Response to the father’s Application and even though the mother was directed to pay the applicable fee, that has not, at this stage, been paid.

4. The matter was adjourned for determination today.

Background

1. The father, who is 44, was born in Country I but came to Australia as an infant and is an Australian citizen. The mother, who is 42, was born in Australia. The parents were married in 1995. There are three children of the marriage: two girls, B who is 14 and C who is nine, and a boy, F who is seven.

2. The family lived together in Australia until they separated in about August 2011. It is not clear what the parenting arrangements were after this separation. The parties remained separated until June 2012. As I understand it, the family moved to Singapore in June 2012 for the purposes of the parents engaging in counselling with the head of a church with which the family was affiliated at the time. As I understand it, the parents did attend this counselling for about four months in Singapore, and it appears that the family unit remained intact during this time.

3. In October 2012, the mother relocated with the children to an unknown location within Singapore.

4. The father returned to Australia in about November 2012 and in December commenced parenting proceedings in the Federal Magistrates’ Court, as it then was, in Sydney. On 10 January 2013, a Federal Magistrate made orders placing the children on the Airport Watch List. Apparently it was the father’s intention at the time to seek the return of the children pursuant to the Hague Convention, but he subsequently became aware that the Convention had not entered into force with respect to Singapore on the date he made his application.

5. The mother also commenced parenting proceedings in Singapore in about February 2013 and the father either initiated proceedings himself or participated in the proceedings commenced by the mother in Singapore from around June 2013. The father was assisted financially by the Australian Attorney-General’s Department in a scheme known as the Overseas Child Abduction Scheme. He was granted assistance under that scheme from July 2013 until November 2015.

6. Throughout the course of the proceedings, as I understand it, the children continued to remain living with the mother in Singapore. Interim Orders were made from time to time by the High Court of Singapore, providing for the children and father to receive counselling and for the children to spend time with their father, including overnight time. It also appears that the parties were assisted with changeover by a professional service and at times the father’s time with the children was supervised.

7. The Singapore parenting proceedings were finally determined on 14 May 2015. Pursuant to those orders, (and I use the expressions that are used in those orders) the parties are to have “joint custody” of the three children and the father is to have “sole care and control” for a period of six months from the date of the orders. The mother was ordered to hand over the children through her representative to the father’s “actual care” on Sunday 17 May 2015 at an agency known as the Centre for Family Harmony. The father was granted leave to bring the children back to Sydney. “Access” to the mother was suspended for a six-month period, except for Skype access twice per week, or physical access or contact for a minimum of two hours in Sydney with the assistance of “the Australian Children’s Contact Services” after a period of one month or depending on the availability of such services. The father was required to attend and ensure that the children attend counselling and therapy for the purposes of repairing the relationship between himself and the children. After the six-month period both parties were to have “shared care and control” of the children provided that the mother was residing in Sydney. The particulars of the shared care arrangement under the orders are that the children are to spend three days each week in the care of the father and four days in the care of the mother. The orders provide that in the event the mother is not residing in Sydney that the father “shall continue to have care and control of the children” with “access” to the mother every fortnight, from Friday afternoon after school to Sunday at 6 pm and half of the school and public holidays as well. Reasonable telephone and Skype access to the parties and registration of the orders in the “relevant family court in Australia” by the parties was also ordered.

The Law

1. The first order sought in this application is that the Singapore orders be registered with this Court. Section 70G of the Family Law Act provides that regulations may make provision for, and in relation to, the registration of “overseas child orders”. The definition of such an order also depends upon the foreign jurisdiction being a “prescribed overseas jurisdiction”. Singapore is a prescribed overseas jurisdiction and the orders in question are overseas child orders.

2. The regulation provides for a scheme by which the Secretary of the Attorney-General’s Department or authorised person, upon receipt of a copy of an overseas child order, is to send the relevant order to a registrar of the Family Court or other specified courts and that the registrar is to register the order so long as certain preconditions are met.

3. Regulation 23 (6) provides

   where it appears to a court that the documents referred to in sub regulation (1) have been received by the court other than from the secretary, the court may, if all other requirements of the subregulation (1) are satisfied, register the order.

   This is the case that arises here.

4. The documents referred to in reg 23(1) are:

   ·a certified copy of an overseas child order made in a prescribed overseas jurisdiction and

   ·a certificate signed by an officer of a court or by some other authority in that jurisdiction relating to the order and containing a statement that the order is, at the date of the certificate, enforceable in that jurisdiction

5. While the father has tendered a certified copy of the orders and those orders have been marked Exhibit 1 in the proceedings, the certificate to the effect that the orders are enforceable has not been produced. The other preconditions in subsection (1) have been met as both of the parents are present in Australia. There are also reasonable grounds for believing that the three children are also in Australia.

6. The father submits that although he has not produced a certificate in the exact terms required by reg 23(1)(a)(ii), being a certificate “containing a statement that the order is, at the date of the certificate, enforceable in that jurisdiction”, as the Singapore orders create obligations imposed upon the mother, the only sensible reading would be that the orders create enforceable obligations. However, in my view, the terms of the subsection are clear in that the requirement is for a certificate to be in existence which certifies the orders are enforceable, as opposed to the Court being satisfied as to those matters. For this reason, as the preconditions have not been met, I dismiss the application to register the orders.

7. However, the existence and terms of the Singapore orders are, in my view, very relevant for the purposes of the other orders sought in these proceedings. It is also highly relevant to the other orders sought, that the following matters are not disputed:

   ·The parties submitted to Singaporean jurisdiction for resolution of family law proceedings

   ·The proceedings were protracted over two and half year period

   ·The final hearing of the matter took place over three days

   ·The reasons for the decision that were attached to the father’s affidavit make it clear that the matter was considered in the framework of the best interests of the children

   ·The mother understood the effect of the orders

   ·Exhibit 1 is a certified copy of orders made in Singapore which have been complied with to some extent in that there is no dispute that the children were handed over as required and that the father took them into his care and brought them to Australia as permitted. The father also was required to register the orders, and, in my view, has done all within his power to have those orders registered.

8. So far as the mother’s position on the recovery order and the order she seeks the children live with her are concerned, her contention is that the children are in fear of the father and at least the child B actively opposes being returned to the care of the father. While the mother sets out a number of incidents in brief form in her Notice of Child Abuse, the only incident of violence that she refers to in the affidavit filed in the proceedings is an instance that allegedly occurred in January 2015, allegedly involving the father and the paternal aunt. There appears to be no dispute that the children were presented to a hospital following this incident. It was also conceded in the course of submissions that this incident was considered by the court in the parenting proceedings in Singapore.

the law

1. The law in relation to the recovery order is set out in s 67U of the Act which provides that, subject to s 67V, the court may make such recovery order as it thinks proper. Section 67V provides that, in deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. In applying the law to the uncontested facts, the court must also uphold the relevant objects and principles in the Act at s 60B which deal with parenting and set out the ways in which the best interests of children are to be met and the rights of children underlying the objects. I note of particular relevance in this case is the object of protecting children from physical or psychological harm and from being subjected to or exposed to abuse, neglect and family violence.

Section 60CC considerations

1. The first primary consideration is the benefit of the child of having a meaningful relationship with both parents. The other primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. The issue of a meaningful relationship with both parents was, in my view carefully considered by the judge in the Singapore proceedings. There is no other evidence which I can consider in relation to this matter.

3. In relation to need to protect children from harm, that is clearly an important considerations and essential to the mother’s case. However, that was also carefully considered by the judge in Singapore who was unable to make any findings as to family violence. It also appears that the judge in Singapore specifically referred to the only allegations made by the mother in her affidavit, which is the incident that resulted in the children being presented to hospital and the Singaporean judge found that the consequence of that incident could not “lay solely, if at all, at the father’s feet”. In circumstances where there is no other evidence before me other than statements made by the mother in the Notice of Child Abuse I cannot, in effect, sit on appeal on the findings of the Singapore judge as to the only incident contained in the mother’s affidavit. It is also alleged by the mother that as a result of that incident in January 2015 an interim protection order was made and that order is annexed to her affidavit, but it appears from the judgment in Singapore than the final application for such an order was dismissed.

4. In relation to the other considerations the Court must first consider the views of the children. The views of the children in this matter are unknown, though it appears to be beyond dispute that the eldest child, B, made some approach to someone in authority on the plane trip from Singapore to Australia and the police were contacted as a result. Police records produced on subpoena, marked as an exhibit, indicate that police at the airport spoke to B out of the hearing of the father and she stated that she hated the father. While the views of the 14 year old must be given weight, considering the circumstances in which that statement was made and the way in which the statement comes before the Court, that is, in police records that have been subpoenaed, I cannot attach much weight to the views expressed by B. The views of the other children are unknown.

5. Little is known about the relationship of the children and both of the parents, except to observe that the Singapore judge, who had access to all of the evidence filed by the parties and it appears other material, referred to the mother as tainting the relationship between the children and the father. The judge also acknowledged that the period following the placement of the children with the father would be a difficult one for the children and provision was made for counselling to occur. The judge in the Singapore proceedings also concluded that the children’s best interests would not be served if time with the father was cut off. In all of the circumstances, including the known history of the matter and the mother’s current approach, including taking the children to a relatively remote part of Western Australia I have real concerns that if the orders are made as sought by the mother and a recovery order is not made, the ties with the father will continue to be cut off.

6. I am unable to make any determination about the extent to which each of the children’s parents have taken the opportunity to participate in long term decisions, spend time with the children or communicate with the children, except to say that the father has assiduously, it would seem, participated in the proceedings in Singapore and attempted through the gaining of interim orders to spend time with the children and communicate with the children. It is unclear the extent to which that was able to occur.

7. Similarly, I am unable to make any determination in relation to the extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children, except to say that it is clear that they have been living with their mother since prior to separation.

1. So far as the likely effect of any change in the children’s circumstances it is clear that both proposals, that is, the making of the recovery orders or that the children live with the mother, really involve a significant change for the children from the circumstances in which they have lived for the past three years. There is no dispute that the children lived in Singapore and with the mother since prior to separation, but so far as the change involved in the children living with the father in Sydney is concerned, this follows a decision of a court in which factors such as adjustment of the children and planning for their further adjustment were carefully considered. This Court is completely unaware of the circumstances in which the children will be living if the orders sought by the mother are granted and the implications for the children for that change, including separation from their father.

2. Virtually nothing is known about the capacity of each of the parents to meet the children’s needs, though it appears that something along these lines must have been considered by the Singaporean court. In relation to the responsibilities of parenthood, in my view, there has been a poor attitude shown by the mother for some time, reflected in the findings of the Singaporean judge concerning the way she has involved the children in the parental dispute and has tainted the relationship with the father. Further, the mother has, in my view shown (on the limited information known) a particularly poor attitude to her responsibilities under the orders made only a few days ago by a court to whom she had submitted, and in particular the way in she approached police and provided quite misleading information and attended at Brisbane airport and then removed the children to Western Australia. She was aware of the orders’ provision that the children were to be placed into the care of the father and has not only actively resisted but undermined those orders being placed into effect.

3. The issue of family violence has already been dealt with and on the limited information available to me I cannot consider that any particular order would be less likely to lead to the institution of further proceedings in relation to the children in this matter.

4. Taking into account all of those matters, I am of the view that it is in the best interests of the children to make the recovery order sought by the father and also make the further order that the children remain on the Airport Watch List.

5. At this stage, the only other outstanding matters relate to an application for costs, the reimbursement for costs incurred in relation to collection of the children and, in particular, orders in relation to the mother spending time with the children. In my view, the order that has been sought by the father, albeit that it is in accordance with the order given in Singapore, is insufficiently certain and too vague to be made in its current form, particularly given that this Singaporean order involved issues such as using a Children’s Contact Service and other matters about which I do not have any of the evidence. I am however, in the circumstances, of the view that the orders in relation sole parental responsibility, the children living with the father and the father retaining the children’s passports are in the children’s best interests and will make them at this stage.

6. In terms of the application sought, as indicated, I make the following orders.

I certify that the preceding thirty-three (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 May 2015.

Legal Associate:

Date: