Karim & Khalid
[2007] FamCA 1287
•1 November 2007
FAMILY COURT OF AUSTRALIA
| KARIM & KHALID | [2007] FamCA 1287 |
| FAMILY LAW - APPEAL – CHILDREN – Bests interests of the child test to apply to applications for the return of a child to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. |
| Family Law Act 1975 (Cth) – s 67ZC ZP v PS (1994) 181 CLR 639; (1994) FLC 92-480 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 34 |
| APPELLANT: | Mr Karim |
| RESPONDENT: | Ms Khalid |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Dunkley |
| FILE NUMBER: | PAF | 556 | of | 2005 |
| APPEAL NUMBER: | EA | 70 | of | 2005 |
| DATE DELIVERED: | 1 November 2007 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Finn, Coleman and May JJ |
| HEARING DATE: | 6 December 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 June 2005 |
| LOWER COURT MNC: | [2005] FamCA 1390 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Geddes QC |
| SOLICITOR FOR THE APPELLANT: | DM Roberts & Co Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd |
| SOLICITOR FOR THE RESPONDENT: | Prosilis Lawyers |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Dunkley |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | McPhee Kelshaw |
Orders
That the appeal be dismissed.
That each party pay his or her own costs in relation to the appeal.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Karim & Khalid.
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 70 of 2005
File Number: PAF 556 of 2005
| Mr Karim |
Appellant
And
| Ms Khalid |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Karim (to whom we will refer variously as “the husband” or “the father”) against all orders made by Watts J on 20 May 2005 in proceedings between the husband and Ms Khalid (to whom we will refer variously as “the wife” or “the mother”).
The effect of his Honour’s orders was to refuse on an interim basis the husband’s application for the return to Pakistan of the child of the parties’ marriage, and to order on an interim basis that the child reside with the wife and have gradually increasing contact with the husband. Pakistan is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
As the full import of his Honour’s orders can only be understood if they are read together with the orders sought by the husband in a response filed by him on 4 April 2005, we annex the full text of the orders sought by the husband in his response and the full text of his Honour’s orders of 20 May 2005 as Annexures A and B to these reasons.
On this appeal the husband’s primary position remained that an order should be made for the return of the child to Pakistan. His argument on appeal essentially was that the trial Judge erred in reaching his decision by having regard to the doctrine of forum non conveniens and by failing to regard the child’s best interests as the paramount consideration.
The wife, supported by the Independent Children’s Lawyer, resisted the appeal and sought to maintain the trial Judge’s orders. The essential argument of the wife and of the Independent Children’s Lawyer was that in determining the case his Honour had applied the principles which he had been asked by the husband and the wife to apply.
For the reasons which we will later explain, we agree with the appellant husband that his Honour erred (or perhaps more correctly, was led into error) in the way asserted by the appellant. But whether that error necessitates that the appeal be allowed, is another matter.
Factual background
For present purposes the factual background to this case can be shortly stated.
Both parties were born in Pakistan – the husband in 1973 and the wife in 1981. The husband came to Australia as a university student in 1995.
The parties married in Pakistan in March 2001. They came to Australia in March 2002. Their only child, a daughter, was born here on … December 2002.
The family returned to Pakistan in September 2003. However the parents separated in June 2004, and on 20 October 2004 the wife and child returned to Australia without the husband’s knowledge or consent.
The husband commenced proceedings in relation to the child in the Family Court in Lahore in Pakistan on 4 November 2004. It is common ground that those proceedings were for divorce and for interim and permanent custody of the child.
The wife filed an application for residence of the child in a New South Wales Local Court, initially on 9 December 2004 but in an amended form on 10 December 2004.
On 21 December 2004 the Local Court made an interim residence order in favour of the wife on an ex parte basis.
The husband returned to Australia on 6 January 2005 and has remained here ever since, as have apparently the wife and child.
On 25 January 2005 the proceedings were transferred by the Local Court to the Federal Magistrates Court. The husband filed a response in that latter court on 4 April 2005, seeking the orders set out in Annexure A to these reasons.
The course of the husband’s case at first instance
As can be seen from Annexure A to these reasons, the primary order sought in the husband’s response both as an interim and as a final order, was an order that within 28 days the wife return the child to Lahore, Pakistan. Certain orders consequential on the order for return were also sought, including the discharge of the orders made by the Local Court on 21 December 2004.
By way of alternative interim orders, the husband sought orders for contact with the child. But by way of alternative final orders, the husband sought that the child should reside with him and that he be permitted to take the child to reside in Pakistan, but with defined contact with the wife.
Notwithstanding the clear terms of the orders sought by the husband in his response, being primarily an order (to be made either at an interim or final hearing) for the return of the child to Pakistan, the exact nature of the relief sought by him appears to have become somewhat clouded at subsequent mentions of the case before the Federal Magistrates Court and then before the Family Court. Those mentions were recorded by the trial Judge in the following way in his reasons for judgment (subsequently delivered on 8 June 2005) in relation to the orders which he had made on 20 May 2005:
16. The matter came before Federal Magistrate Ryan on 12 April 2005. At that time the following exchange took place between the solicitor for the Husband and the learned Magistrate:-
“Mr Prosilis: Well perhaps my friend might best deal with it. But it’s a question of jurisdiction on the respondent’s side…
Federal Magistrate: What’s the problem with jurisdiction?
Ms Heaton: Your Honour, the parties were resident in Pakistan and had been for a period of time when the mother, on the pretext of spending a night or two with her father, left the father with the child and her whereabouts were not known until October 2004, that’s somewhere between June 2004 and October 2004…
Federal Magistrate: So what’s the argument about jurisdiction?
(some further discussion ensued between the solicitor for the Husband and the learned Magistrate)
Federal Magistrate: So, you say the Court, although ceased of (sic) the jurisdiction shouldn’t exercise it, is that the argument?
Ms Heaton: Yes.
The solicitor for the Husband then said this “while other issues are being determined, the father is seeking contact”.
Federal Magistrate: Your client is on the horns of a dilemma. He wants to say the Court shouldn’t exercise jurisdiction, but you are saying to me as well that he wants the Court to exercise jurisdiction and give him some parenting orders?
Ms Heaton: Your Honour, the jurisdictional issue will have to be – well we’re seeking that it be determined in the meantime that the father would be seeking to see the child.”
…
18. On 11 April 2005 the matter came before Justice Collier. His Honour made the following directions:-
“Matter transferred from FMC (formerly PAM.623/2005)
Set matter down for hearing on 19 and 20 May 2005 in Sydney Registry.
I note that issues for determination on next occasion are:-
(a)Issue of forum conveniens in relation to the parties’ dispute in relation to residence and contact of their child; (proceedings in Pakistan and Australia)
(b)Issue of interim contact to that child. …
Some form of challenge to the exercise of jurisdiction of the Family Court continued when the hearing commenced before Watts J on 19 May 2005. At an early stage in that hearing, the solicitor for the husband informed his Honour that the husband was seeking the return of the child to Pakistan on the basis that “the proper jurisdiction” to deal with the matter was the Family Court in Lahore, Pakistan, and that the Family Court of Australia did “not have jurisdiction to hear the matter”.
When his Honour enquired as to what test he had to apply in determining the matter, the husband’s solicitor responded that the test was that the Australian court was “clearly the inappropriate forum to hear the matter”.
Immediately thereafter the husband’s solicitor explained to his Honour that in the alternative, the husband sought orders for “an introductory period of contact given he [had] not seen the child since July 2004”.
The matter then proceeded entirely by way of submissions from the husband’s solicitor and from the wife’s counsel. Although not entirely clear, it seems that the case for both parties proceeded on the basis that it should be determined on forum non conveniens principles, but with some regard to the best interests of the child.
The trial judge’s orders and reasons for judgment
At the conclusion of submissions on the second day of the hearing, his Honour made the orders which are the subject of this appeal and which are set out in full in Annexure B to these reasons. For convenience, however, we here set out the principal orders of present relevance:
1.That the objection that the Husband raises to this Court exercising jurisdiction in respect of parenting orders relating to the child of the marriage … is dismissed.
2.The interim applications for orders 1, 2, 3, 4, 5, 6, 7, 8, and 9 sought by the Husband in his response filed 4 April 2005 as set out under the heading “Interim or procedural orders sought” are dismissed.
3.The orders made at the Local Court on 21 December 2004 are set aside.
4.That pending further order that the child … shall reside with the Wife.
5.That pending further order the child … will have contact with the father as follows:-
…
6.That the Husband and Wife be and hereby are restrained and injuncted … from removing or allowing or causing the child to be removed from the Commonwealth of Australia without the prior written permission of the other parent.
…
11.That the child … is to be separately represented and the Legal Aid Commission of New South Wales is requested to arrange such representation.
It will therefore be observed that by Order 2, his Honour dismissed at least on an interim basis the husband’s application for an order for the return of the child to Pakistan (Order 1 of the interim orders sought in the husband’s response).
At an early stage in his reasons for judgment his Honour explained (paragraph 20) that although the husband “had not filed a written application objecting to jurisdiction or seeking a stay of proceedings”, he considered that “objection to jurisdiction had been made orally before Federal Magistrate Ryan and that Justice Collier had specifically set the matter down for hearing in respect of that objection”.
His Honour can then be seen as explaining the approach, which he apparently proposed to adopt, being:
20.…If [the objection to jurisdiction] was successful the Court would then have to consider the Husband’s application for the return of the child to Pakistan. If the application was unsuccessful the Court would consider the Husband’s interim application for contact.
A little later (in paragraph 61) his Honour can be seen as proposing a slightly different approach when he said that the “first questions to be decided are whether or not the court has jurisdiction to consider making the orders that the Wife seeks” (being residence and contact orders).
Then having observed (in paragraph 62) that it was agreed that the wife had brought the child from Pakistan on 20 October 2004 “without the knowledge or consent of the Husband” and that Pakistan is not a country to which the Family Law (Child Abduction Convention) Regulations 1986 apply, his Honour set out s 69E of the Family Law Act 1975 (“the Act”) which contains the jurisdictional requirements for instituting proceedings under the Act in relation to a child. He went on to explain that it was also agreed that no issue arose under s 69E given that both parents and the child were Australian citizens and that the child and the wife were present in Australia on the day that the wife filed her initial application.
His Honour then posed for himself the question (by way of a heading in his reasons) as to “[w]hat test applies when determining whether this court should exercise jurisdiction to hear the Wife’s application for parenting orders?”.
Apparently in order to answer this question, his Honour undertook a review (paragraphs 66 to 87) of various decisions of the High Court (commencing with ZP v PS (1994) 181 CLR 639; (1994) FLC 92-480), of the Full Court of this Court, and of certain single Judges of this Court, ultimately concluding (in paragraphs 84 – 87) that he should follow what was said by the Full Court in the following passage from B v B (Re jurisdiction) (2003) FLC 93-136 (emphasis added):
37.It is our view that as a result of the 1995 amendments the test is no longer that propounded by the High Court in ZP v PS; re PS; ex parte ZP (supra). The test to be applied is the “clearly inappropriate forum” test. In determining, however, whether or not a forum is “clearly inappropriate” one of the matters to be taken into account is what is in the best interests of the children.
38.The importance to be attached to what is in the children’s best interests will vary according to the facts of the case. For instance, in the case of an abduction from a non-Hague Convention country, what is in the best interests of the children may be a very important consideration. In a case such as this, what is in the best interests of the children may be of little importance.
His Honour then explained that the “clearly inappropriate forum” test would include consideration of the following matters:
90. … whether or not the jurisdiction has been regularly invoked; whether or not orders made would be recognised by the other jurisdiction; which forum can provide more effectively for the complete resolution of the matter; the order in which the proceedings were instituted; the stage they have reached; the costs that have been incurred; the connection of the parties and their marriage with each of the jurisdictions; the legitimate personal and juridical advantage the Wife might have in continuing the application in this jurisdiction and the best interests of the child.
In relation to the last mentioned matter of the best interests of the child, his Honour observed:
93.Having concluded the bests interests are to be taken into account even though they were not paramount, the Full Court in B & B (Re jurisdiction) [sic] says the following:-
“40.Having arrived at that conclusion, it is necessary for us to turn to question 4 which is, ``... is a trial Judge in considering such an application limited only to the matters set out in s 68F(2) of the Family Law Act 1975 in determining the best interests of the children?'' . With the greatest respect to his Honour, we have some difficulty with that question. Section 68F(1) provides that subject to subsection (3), in determining what is in the child's best interests, the Court must consider the matters set out in subsection (2).
41.Section 68F(2)(l) provides that the Court must consider ``any other fact or circumstance that the Court thinks is relevant'' . There is, therefore, by express provision of the legislation no limit to the matters that may be taken into account in determining what is in the best interests of the children.”
A little later his Honour offered the following interpretation of these last-cited paragraphs:
98. Although it is not entirely clear I conclude that in paragraph 40 of B v B (Re jurisdiction) the Full Court is not saying that a trial judge must apply Section 68F(2) to the consideration of best interests in a case where the paramountcy principle does not apply but rather that Section 68F(2) provides a useful check list of factors to be considered when best interest is a matter that has to be weighed.
His Honour then made the following findings in relation to the matters at that time contained in s 68F(2) of the Act, which he considered had relevance:
· that the child’s primary attachment is with her mother (paragraph 103);
· any unilateral change (in the sense of a return to Pakistan) might have a significantly detrimental effect upon the child, particularly in circumstances where the child’s contact with her mother may be problematic and uncertain (paragraph 107);
· the wife at the present time is better placed to provide for the child’s emotional needs (paragraph 109).
His Honour also referred (in paragraph 111) to the matter of the attitude to the child and to the responsibilities of parenthood demonstrated by each parent, and concluded that the wife had initiated telephone contact between the child and the husband on the child’s second birthday. He also made certain apparently adverse findings in relation to the husband’s failure to provide financial support for the child.
In relation to the matter of family violence his Honour said:
112.I note that there are allegations made by the Wife of domestic violence perpetrated upon her by the Husband. Those allegations by the Wife and the Husband’s response are set out below (see paragraphs 113 to 130). The allegations are denied by the Husband and some of his witnesses. I make no finding as to what version should be accepted.
As he had foreshadowed, his Honour then proceeded in paragraphs 113 to 130 to set out the wife’s allegations regarding domestic violence.
His Honour then returned (paragraphs 132 to 168) to, and made findings concerning, the matters which he had earlier (at paragraph 90) said should be taken into account when applying the “clearly inappropriate forum” test.
Given our view that that test had no application to this case, it is unnecessary that we set out his Honour’s findings concerning those matters, although it should be noted that in this context his Honour discussed at some length custody law and domestic violence law in Pakistan, and that he did so on the basis of evidence from a Pakistani lawyer. He also referred to the evidence of the criminal charges and punishment that the wife could face in Pakistan on account of having taken the child from that country without the consent of the husband as the child’s guardian. He thus concluded (in paragraphs 166 – 167) that the wife had a legitimate personal and juridical advantage in having the proceedings dealt with in Australia, particularly because under the Act she has together with the husband parental responsibility for the child, which is in contrast to the position in Pakistan, where the husband is the child’s guardian.
Then under the heading “Determination in relation to forum” his Honour summed up his earlier findings both in relation to the s 68F(2) matters and to the matters which he had considered in relation to the “clearly inappropriate forum” issue, saying:
169.Weighing the matters referred to in paragraph 90, I consider [the child’s] best interests the most weighty, although not paramount, consideration. [The child’s] primary attachment is with her mother. Any summary order for [the child] to immediately return to Pakistan may have the effect of separating the Wife and [the child] and consequently breaking that attachment. The Husband’s complaint that the Wife showed little regard for [the child’s] best interest by abducting her from Pakistan is offset by the Wife’s allegations (as yet untested in this Court) of domestic violence by the Husband. Both Australia and Pakistan can effectively decide [the child’s] future. The parties and child have significant connection with both countries. I find that the logistic problems for the Husband arising from the number of corroborative witnesses who will give evidence in relation to events leading up to the separation is not a factor which is seriously and unfairly burdensome or productive of serious and unjustified trouble to the Husband given the findings I have made in relation to [the child’s] best interests. Because the Wife has brought [the child] to Australia without the Husband’s knowledge or consent, the Wife faces both possible personal consequences if she returns to Pakistan and also juridical disadvantage in the proceedings relating to [the child] as they would be conducted in Pakistan.
170.I find that the Husband has failed to establish that this Court is a clearly inappropriate forum to hear the dispute in respect of parenting orders in relation to the child [the child]. The continuation of the proceedings by the Wife in Australia is not oppressive or vexatious.
Thus having concluded, at least inferentially, that he would exercise jurisdiction under the Act to determine the wife’s application for a residence order and the husband’s alternative application for interim contact orders (see paragraphs 20 and 61 of his reasons referred to at paragraphs 25 to 27 above), his Honour turned to consider the competing applications for interim contact, observing that that “in the short term it is very important for [the child] to have the opportunity to re-establish her relationship with her father.” Accordingly he made interim orders allowing for “some supervision of the earlier contact periods and for some gradual development of the time that [the child] spends with her father on each contact occasion.”
As we mentioned when we set out above certain of his Honour’s orders, by Order 2 of those orders his Honour dismissed the husband’s application for an order to be made on an interim, or perhaps more correctly summary, basis for the return of the child to Pakistan. The dismissal of that application was not expressly discussed by his Honour in his reasons. We assume, however, that he determined that that order should, or could, not be made once he had determined that this court was not a clearly inappropriate forum, and/ or that he had decided to exercise jurisdiction to make an interim residence order in favour of the mother.
The proper approach to an application for the return of a child from australia to a “non-hague convention” country
As we indicated at the commencement of these reasons, we agree with the submission made on behalf of the appellant that his Honour was in error, or more correctly led into error (as we have endeavoured to demonstrate), by applying the principles of “forum non conveniens” or “clearly inappropriate forum” and by not regarding the bests interests of the child as the paramount consideration in reaching his decision to dismiss the application for the return of the child to Pakistan.
Out of fairness to his Honour and to those appearing before him, it must be stressed that neither he, nor they, had at that time the benefit of the decision of the Full Court of this Court in EJK & TSL [2006] FamCA 730; (2006) FLC 93-287 on which counsel for the appellant was able to rely before us.
The facts of EJK & TSL (supra) were not dissimilar to the present case. In that case, a child was brought to Australia by his mother from a non-Convention country, Korea, without the consent of his father, who had then sought in the Family Court of Australia an order for the child’s return from Australia to Korea, while the mother sought that the child reside with her in Australia. Applying what she termed the “clearly inappropriate forum” test, the trial Judge ordered on a summary basis that the child should be returned to Korea.
The Full Court determined (at paragraph 107) that the trial Judge had erred in applying the clearly inappropriate forum test. However they also determined that her Honour’s discretion had not miscarried “in determining on the evidence before her, that it was in the child’s best interests that a summary order be made for his return to Korea, and that issues in dispute between the parties about his custody be determined in that county”.
Relevantly for present purposes the Full Court said in reaching its decision (emphasis added):
84. We are satisfied that on the facts of this case, where the mother had regularly invoked the jurisdiction of the Court for parenting orders whilst she and the child were present in the jurisdiction, and as it was necessary to make parenting orders to provide effective relief, the matter should not have been determined on the basis of the common law test of clearly inappropriate forum, but rather by a full or summary hearing applying the best interests principles. In so determining, we can readily understand the difficult task which confronted her Honour, and her conclusions as a result of the application of the principles set out in B v B (Re Jurisdiction) (supra).
It will be recalled that in the present case the trial Judge also determined that he should follow the Full Court decision in B v B (Re jurisdiction) (supra). In relation to that Full Court decision, we agree with the observations of the Full Court in EJK & TSL (supra at paragraph 60) that the factual circumstances in B v B (Re jurisdiction) were “markedly different” from those in EJK & TSL, as indeed they are from those in the present case. Notably the subject children in B v B (Re jurisdiction) were not in Australia whereas in EJK & TSL and in the present case the subject child was in Australia. Furthermore, the actual relief sought in B v B (Re jurisdiction) was a stay of Australian proceedings for contact between the father and the children where there were proceedings in relation to contact on foot in New Zealand where the children were living.
This comparison of the factual circumstances of B v B (Re jurisdiction) (supra) with the factual circumstances of EJK & TSL (supra) and of the present case illustrates how important it is in arguing, or determining, a case which involves some overseas aspect, to identify clearly at the outset what is the actual relief which is being, or can be, sought in the factual circumstances of the case, and thus what principles are to be applied.
An application for the return to a non-Hague Convention country of a child who is in Australia is a different type of application from, and subject to different principles to, an application for a stay of proceedings in an Australian court on the basis that that court is a clearly inappropriate forum. Similarly, an application for such a stay of Australian proceedings is in turn different from, and subject to somewhat different principles to, an application for an (anti-suit) injunction to prevent a party amenable to the jurisdiction of an Australian court from proceeding in a foreign court (as explained by the High Court in CSR Ltdv Cigna Insurance Australia Ltd (1997) 189 CLR 345; see also Dobson and Van Londen (2005) FLC 93-225; (2005) 33 Fam LR 525).
For present purposes the important distinction to be drawn is between an application to an Australian court for the return of a child who is in Australia to a non-Hague Convention country, and an application for a stay of proceedings in an Australian court on the basis that the Australian court is a clearly inappropriate forum. The principles which apply when an application is made for the return of a child who is in Australia to a non-Hague Convention country were explained by the High Court in the following passages from the joint judgments of Mason CJ, Toohey and McHugh JJ, of Brennan and Dawson JJ, and of Deane and Gauldron JJ in ZP v PS (supra), which despite their length, warrant consideration (emphasis added):
It is now established that Pt VII has invested the Family Court with a welfare jurisdiction that is similar to the parens patriae jurisdiction exercised by the Court of Chancery but which is freed from the preliminary requirement of a wardship order [Secretary, Department of Health and Community Services v. J.W.B. and S.M.B. (Marion's Case) (1992) 175 CLR 218; P v. P (1994) 181 CLR 583]. In the exercise of the parens patriae jurisdiction, the Court of Chancery has always been guided by the principle that the welfare of the minor is the first and paramount consideration [Re R. (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416 at p. 423]. …Because the welfare jurisdiction of the Family Court is similar to the parens patriae jurisdiction of the Court of Chancery, the Family Court must also form an independent judgment as to what the welfare of the child requires notwithstanding the existence of any custody order made by a foreign court. …It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child [Re R. (1981) 2 FLR at pp. 426-427; Schwarz and Schwarz (1985) 10 Fam LR 235 at pp. 237-238; [1985] FLC 91-618 at 80,000]. Injustice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a forum non conveniens case [See Voth v. Manildra Flour Mills Pty. Ltd. (1990) 171 CLR 538 at 556-557], are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.
However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a foreign court [In re L. (Minors) [1974] 1 WLR 250 at pp. 263-264; [1974] 1 All ER 913 at pp. 924-925; Mittelman and Mittelman (1984) 9 Fam LR 724, at pp. 726-727; [1984] FLC 91-578 at p. 79,667; cf. McKee [1951] AC at p. 364]. Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction [In re L. [1974] 1 WLR at p. 264; [1974] 1 All ER at p. 925; Khamis and Khamis (1978) 34 FLR 150 at pp. 166-167; 4 Fam LR at p. 427-428; [1978] FLC 90- 486 at p. 77,521; Re R. (1981) 2 FLR at p. 425; Mittelman (1984) 9 Fam LR at pp. 726-727; [1984] FLC at p. 79,667; In re F. (Abduction: Custody Rights) [1991] Fam 25 at p. 31]. In In re F. (Abduction: Custody Rights) [[1991] Fam 25 at p. 32], Neill LJ said:
"The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child's welfare is the first and paramount consideration."
In the same case, Lord Donaldson MR formulated the approach which must be taken when an English court hears a submission that the welfare of a child within the jurisdiction requires that a foreign court should decide a question concerning the custody of the child. His Lordship said [[1991] Fam 25 at p. 31]:
"The welfare of the child is indeed the paramount consideration, but it has to be considered in two different contexts. The first is the context of which court shall decide what the child's best interests require. The second context, which only arises if it has first been decided that the welfare of the child requires that the English rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on should be made."
That approach also applies to applications in the Family Court when the question arises whether the Family Court or a foreign court should determine questions concerning the custody of a child within the jurisdiction. In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that that Court should embark on determining the issue of custody itself. Furthermore, even when the Court rejects the application for a summary order and embarks on determining the issue of custody itself, it does not necessarily follow that the Court must make an order for custody or access. Further investigation of the issue may result in the Court concluding that the interests of the child will be best served by the foreign forum determining the issue. However, such cases will be exceptional.
…
Prior to the decision of this Court in Voth v. Manildra Flour Mills Pty. Ltd. [(1990) 171 CLR 538], the principles upon which the Family Court acted in determining whether it should allow a foreign forum rather than itself determine a question of custody seem to have accorded with the foregoing account of the law [See El Alami and El Alami (1987) 11 Fam LR 852; [1988] FLC 91-930; Taylor and Taylor (1988) 92 FLR 172; 12 Fam LR 423; [1988] FLC 91-943]. But, after the decision in Voth, the Family Court adopted a different approach to submissions that a custody dispute should be determined in a foreign forum. In Voth, this Court decided that, when an issue arises as to whether a foreign forum rather than an Australian court is the forum most convenient to determine a dispute, the Australian court should hear the matter unless it is satisfied that it is a clearly inappropriate forum. In Scott and Scott [(1991) 104 FLR 320; 14 Fam LR 873; [1991] FLC 92-241], the Full Court of the Family Court regarded the authority of McKee [[1951] AC 352], which decided that the court must exercise an independent judgment in cases like the present, as "somewhat discredited" [Scott (1991) 104 FLR at pp. 323-324; 14 Fam LR at p. 876; [1991] FLC at p. 78,637] …
…
… [A]s we have already said, the doctrine of forum non conveniens is not applicable to a custody case where the child is within the jurisdiction. In so far as Scott, Chong, Erdal, Gilmore, Van Rensburg and other cases hold that the forum non conveniens principle is applicable, they are in error and must be overruled. (Per Mason CJ, Toohey and McHugh JJ.)
Once the jurisdiction conferred by s 63 of the Family Law Act 1975 (Cth) (“the Act”) on the Family Court in custody proceedings is effectively invoked — and there is no doubt that both parties invoked that jurisdiction in this case — s 64(1)(a) of the Act requires that the Court regard the welfare of the child as the paramount consideration in exercising the Court's power. Section 64(1)(a) makes no exception in the case of proceedings relating to the custody of a child ordinarily resident in another country, even if the child has been abducted from that country and brought to Australia in breach of an order of a court of competent jurisdiction in the other country. …
…
The Family Court's attempt to meld the paramount consideration of the welfare of the child with the test of "clearly inappropriate forum" is misconceived. The latter test determines whether, in certain classes of case, a court should decline to exercise its jurisdiction; the former consideration governs the manner in which the Family Court must exercise the jurisdiction which has been conferred upon it by s.63. The test of "clearly inappropriate forum" is not an alternative test to the welfare of the child in determining the order to be made when the custody jurisdiction conferred by s.63 is to be exercised. Putting to one side the cases to which the Convention applies, s.64(1)(a) defines the paramount consideration. When a child is abducted from one country and brought to Australia and the abduction is not covered by the Convention, the abduction is relevant only by reason of the effect it has on the child's welfare. …
…And it may be entirely appropriate to order the speedy return of the child to the country from which he or she has been abducted without making as full an inquiry as the Court would ordinarily make in determining an application for permanent custody. Where it is for the welfare of the child that an order for speedy return is made, the Family Court is not primarily concerned with the question whether it is a clearly inappropriate forum to determine an application for permanent custody. The Family Court is the only court that can appropriately make an order for speedy return and it has no jurisdiction to remit the question of permanent custody for determination by a court in another country. The Family Court must therefore make the order that is appropriate in the unique circumstances of the case at the time when the proceedings are before it. In determining an application for speedy return of the child to another country, it may be material to consider whether, if an order is made, the courts of the other country will properly inquire into and determine the child's permanent custody. But that is not to apply a "clearly inappropriate forum" criterion to the determination of the application. If the Family Court properly makes an order for the speedy return of a child abducted from another country, the Court is not declining to exercise its jurisdiction; it is exercising its jurisdiction by making an order dictated by the welfare of that child. (Per Brennan and Dawson JJ.)
In cases such as the present, the issue is not forum non conveniens. Rather, as Mason CJ, Toohey and McHugh JJ point out, the issue is whether the welfare of the child requires speedy repatriation to the country from which he or she was taken, with the courts of that country determining custody and other matters relating to the child's upbringing. We would add, however, that in determining what is in the interests of the welfare of the particular child, a court is entitled to take account of considerations of public policy reflecting and protecting the interests of all children. Among those considerations of public policy is the prima facie importance, in the interests of all children, of discouraging the taking of a child from his or her homeland and familial environment, in breach of the law of that homeland, for the purpose of obtaining standing or some forensic advantage in a dispute about custody, access or financial support in the courts of some other place. Such abduction of children across national boundaries, if encouraged by being treated as an accepted means of attracting the jurisdiction of, or obtaining some procedural advantage in, the desired forum, pose a threat to the security of any child subject to competing national claims or loyalties. (Per Deane and Gauldron JJ.)
At least prior to the decision of the Full Court in EJK & TSL (supra), there was some uncertainty in this jurisdiction as to whether the principles enunciated by the High Court in ZP v PS (supra) remain good law. This uncertainty appears to have arisen because of the significant amendments which were made to Part VII of the Act subsequent to the decision in ZP v PS, and also on account of the later High Court decision in Henry v Henry (1996) 185 CLR 571; 20 Fam LR 171.
In our view the decision in Henry v Henry (supra) should not be seen as altering the law as stated in ZP v PS (supra) once it is remembered that the issue in Henry was whether divorce proceedings in an Australian court should be stayed or dismissed in favour of foreign proceedings which were already on foot and thus the application of forum non-conveniens principles in the matrimonial context. There was no issue in Henry concerning the return of a child from Australia to a foreign country.
So far as the legislative changes which have occurred since ZP v PS (supra) are concerned, it can be seen from the joint judgment of Mason CJ, Toohey and McHugh JJ that their Honours regarded that source of the power to order the return of a child from Australia to a foreign non-Hague Convention country to be the “welfare jurisdiction that is similar to the parens patriae jurisdiction exercised by the Court of Chancery”.
That jurisdiction was conferred on courts exercising jurisdiction under the Act by the Family Law Amendment Act 1983 (Cth) by amendment to the definition of “matrimonial cause” to include as paragraph (cf) proceedings “with respect to the welfare of a child of the marriage” and by the insertion of the word “welfare” into then existing s 64(1), so that the opening words of that sub-section then read:
“In proceedings with respect to custody, guardianship or welfare of, or access to, a child of a marriage…”
The powers which a court could exercise in such proceedings were then set out in the remainder of s 64.
When the Family Law Reform Act 1995 (Cth) inserted a new Part VII into the Act, the welfare power was placed in a separate section of its own, being s 67ZC, where it is still to be found. That section provides (omitting notes):
(1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
It will be noted that the “best interests of the child” (the so called paramountcy principle) governs any decision to make an order under s 67ZC.
We thus endorse the view arrived at by the Full Court in EJK & TSL (supra), albeit perhaps by somewhat different reasoning, that the sole principle which governs the determination of an application for the return of a child from Australia to a foreign non-Convention country is, as held by the High Court in ZP v PS (supra), the best interests of the child. Forum non conveniens principles are not relevant to such an application.
Finally in relation to issues of principle, we point out that the Full Court decision in B v B (Re jurisdiction) and the first instance decisions of Karides v Wilson (1998) FLC 92-823 and JJT and CTT (2004) FLC 93-198 to which the trial Judge in this case referred in his reasons for judgment, were all cases in which orders were sought for contact with children who were not within the jurisdiction.
The decision in the present case as to the child’s best interests
Thus we have had to conclude that in the present case the trial Judge erred in applying forum non conveniens principles in reaching his decision. However in the course of applying those principles as he understood them to apply in a case involving a child, he carried out (at paragraphs 91 to 131) a relatively exhaustive analysis of the matters then contained in s 68F(2) of the Act, and to which a court must have regard in determining for purposes of the Act what is in the best interests of a child.
As we have earlier recorded, his Honour expressly found that the child’s primary attachment is with her mother; that a change in her circumstances (in the sense of a return to Pakistan) would have a significantly detrimental effect on the child, particularly in circumstances where her contact with her mother may be problematic and uncertain; and that the wife was at the present time better placed to provide for the child’s emotional needs. Inferentially his Honour also found that the wife had demonstrated a better attitude to the child and to the responsibilities of parenthood than had the husband.
His Honour also had before him a significant volume of evidence directed to the wife’s allegations of domestic violence. Understandably in the context of a hearing “on the papers” where there was no cross examination, his Honour was not in a position to make any findings regarding those allegations. However before us, it was submitted on the husband’s behalf, that his Honour had given too much weight to those allegations by the wife, and that he had erred by offsetting the husband’s complaints regarding the wife’s abduction of the child from Pakistan, against the allegations of the wife against the husband of domestic violence and the husband’s failure to provide financially for the child.
It was also asserted before us on behalf of the husband that his Honour had failed to consider or to give sufficient weight the child’s attachment, as at the dates of separation and of removal from Pakistan, to her father or also to her extended paternal and maternal families.
Conclusion
On balance we consider that his Honour’s findings in relation to the s 68F(2) matters were sufficient to support a conclusion that it would not be in the child’s best interest to order, at least on a summary basis, that she should be returned to Pakistan, and that therefore our interference with his decision would not be warranted.
We take into account in reaching this conclusion that his Honour has not dismissed the husband’s application for an order to be made in proceedings for final orders that the wife return the child to Pakistan. Furthermore the husband’s application for final orders for the child to reside with him and to do so in Pakistan has yet to be determined.
It is in the context of a full final hearing, and indeed only in that context, that the wife’s allegations of violence and other forms of ill-treatment of her by the husband, some of which is alleged to have occurred when they were living together in Australia, can be properly examined and determined. Similarly, the other complex and controversial issues in this case, such as the child’s relationships with her extended families, and each party’s own intentions as to where he or she wishes, or can, make a future life, as well as his or her capacity to provide for the child financially and otherwise, require examination in the context of a full hearing.
It is always possible, as was recognised by Mason CJ, Toohey and McHugh JJ in ZP v PS that when the Australian court, having rejected an application for a summary order for the return of a child to a foreign country, embarks on the full hearing of the application for final orders concerning the children’s living arrangements, that it may conclude that the interests of the child will be best served by the foreign forum determining the issue.
Accordingly, we propose to dismiss the appeal. We recommend, however, that there be a final hearing of the parties’ applications in relation to the future living arrangements for the child as soon as possible.
In these circumstances it is unnecessary that we would consider the wife’s application to adduce further evidence which was before us. In any event, however, we understood that application only to be pursued in the event that we were to re-exercise the discretion.
Costs of the appeal
Notwithstanding the application made of behalf of the wife for an order that the husband pay her costs in the event that the appeal were to be dismissed, we are not satisfied that the circumstances justify an order for costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 1 November 2007
Annexure A – Orders sought by the husband in Response filed 4 April 2007
Final Orders Sought
1.That the Wife no later than within 28 days from the date of these orders do all acts and things necessary to return the child… to Lahore Pakistan.
2.That in the event the mother returns to Lahore, Pakistan, the mother is to accompany the child to Lahore Pakistan pursuant to order 1 above, and for this purpose the mother is to notify the father in writing within 14 days from the date of these orders of her intention to return to Lahore Pakistan with the child.
3.That no later than 14 days before the date of departure of the child from Australia the mother is to notify the father of the travel arrangements for the child including the date and time of departure and the airline by which the child will be travelling.
4.In the event the father returns to Lahore, Pakistan on the same flight as the mother and the child, then the mother shall not restrict contact between the father and the child during the flight.
5.That in the event the mother does not return to Lahore, Pakistan, then the father is to accompany the child to Lahore Pakistan and for this purpose the mother is to provide to the father within 14 days from the date of these orders, the child’s passport.
6.That within 24 hours from the child arrives [sic] in Lahore Pakistan the parent who travels with the child from Australia to Pakistan is to notify the Guardian Judge, Lahore of the child’s return to Lahore Pakistan.
7.That within 1 month from the date of these orders the mother is to notify in writing the Guardian Judge Lahore Pakistan of the mother’s address, whether in Pakistan, Australia or any other country.
8.That liberty be granted to either party to restore this matter to the list on 24 hours notice to the other party.
9.That all outstanding applications be dismissed.
10.That the orders made in the Liverpool Local Court in 21 December 2004 be set aside.
In the alternative,
1.That the child… reside with the father.
2.That the father be permitted to take the child outside of Australia to reside in Pakistan.
3.That the mother have contact with the child as follows:-
As long as the child resides in Pakistan
Until the child commences at school
(a)during the period from July for 2 months when the paternal grandparents are in Australia as agreed or in the absence of agreement
(i)each alternate week when block contact is not taking place from Friday 10.00am to Sunday 5.00pm;
(ii)for 2 blocks periods of 2 week from 10.00am Friday to 5.00pm on 14th day;
(b)at any time that the father is staying or visiting in Australia:-
(i)each alternate week from Friday 10.00am to Sunday 5.00pm when the child is not having block contact with the mother;
(ii)for a block period of 2 weeks from 10.00am Friday to 5.00pm on the 14th day for every 9 weeks that the father is staying or visiting in Australia;
After the child commences as [sic] school
(c)During each school holidays from the day after the school term finishes and until the second last day of the school holidays.
When the father resides in Australia
(d)Each alternate weekend from 5.00pm Friday to 5.00pm Sunday during school terms;
(e)For one half of each school holidays, except Christmas, being the first half in each even numbered year commencing on the first day after the end of the school term at 10.00am and until 5.00pm on the mid-point day of the school holidays and the second half in each odd numbered year, commencing on the mid-point day of the school holidays and concluding on the day before the commencement of the new school term at 5.00pm.
(f)For 2 weeks each Christmas school holidays commencing at 3.00pm on Christmas Day.
(g)For 2 hours on the child’s birthday from 4.00pm to 6.00pm;
(h)On Mother’s Day if it is not a contact weekend from 9.00am until 5.00pm.
(i)Other times as mutually agreed.
4.That the father is to bear the costs of travel for the child from Pakistan to Australia for contact with the mother.
5.That the father will keep the mother informed of all the child’s health and schooling and provide for the mother any consents or authorities needed for the mother to obtain from any medical person or school attended by the child to receive such information.
6.That both parties will do all things and sign all such documents as necessary to obtain a passport for the child… and to continue to do all things and sign all such documents as necessary to keep the child’s passport current.
7.That the mother be and is hereby restrained from removing and/ or causing the child… to be removed from the Commonwealth of Australia without the prior knowledge and written consent of the father.
11.That changeover of the child be at a railway station at a reasonably equal distance from the home of both parents and that the parent with whom the child is living is to deliver the child to the railway station at the commencement of a changeover of the child from the residence of one parent to the other.
12.That the mother is to provide to the father a contact telephone number.
Interim or Procedural Orders Sought
1.That the Wife no later than within 28 days from the date of these orders do all acts and things necessary to return the child… to Lahore Pakistan.
2.That in the event the mother returns to Lahore, Pakistan, the mother is to accompany the child to Lahore Pakistan pursuant to order 1 above, and for this purpose the mother is to notify the father in writing within 14 days from the date of these orders of her intention to return to Lahore Pakistan with the child.
3.That no later than 14 days before the date of departure of the child from Australia the mother is to notify the father of the travel arrangements for the child including the date and time of departure and the airline by which the child will be travelling.
4.In the event the father returns to Lahore, Pakistan on the same flight as the mother and the child, then the mother shall not restrict contact between the father and the child during the flight.
5.That in the event the mother does not return to Lahore, Pakistan, then the father is to accompany the child to Lahore Pakistan and for this purpose the mother is to provide to the father within 14 days from the date of these orders, the child’s passport.
6.That within 24 hours from the child arrives (sic) in Lahore Pakistan the parent who travels with the child from Australia to Pakistan is to notify the Guardian Judge, Lahore of the child’s return to Lahore Pakistan.
7.That within 1 month from the date of these orders the mother is to notify in writing the Guardian Judge Lahore Pakistan of the mother’s address, whether in Pakistan, Australia or any other country.
8.That liberty be granted to either party to restore this matter to the list on 24 hours notice to the other party.
9.That all outstanding applications be dismissed.
13.That the orders made in the Liverpool Local Court on 21 December 2004 be set aside.
14.In the alternative, and pending further order the child reside with the father as follows:-
(a)For a period of 4 weeks each Tuesday and Friday from 9.00am to 12noon commencing the Friday following the date of these orders;
(b)Thereafter for a period of 4 weeks each Monday and Friday from 9.00am to 2.00pm;
(c)Thereafter for a period of 4 weeks each Monday and Friday from 9.00am to 6.00pm;
(d)Thereafter for a period of 4 weeks each Monday from 9.00am to 10.00am Tuesday and from 9.00am Friday to 10.00am Saturday;
(e)Thereafter for a period of 4 weeks each Monday from 9.00am to 2.00pm Tuesday and from 9.00am Friday to 2.00pm Saturday;
(f)Thereafter for a period of 4 weeks each Monday from 9.00am to 5.00pm Tuesday and from 9.00am Friday to 5.00pm Saturday;
(g)Thereafter from 9.00am Friday to 5.00pm Wednesday.
10. That the child reside with the mother at all other times.
11.That changeover of the child be at a railway station at a reasonably equal distance from the home of both parents and that the parent with whom the child is living is to deliver the child to the railway station at the commencement of a changeover of the child from the residence of one parent to the other.
12. That the mother is to provide to the father a contact telephone number.
Annexure B – Orders made by Watts J on 20 May 2005
1.That the objection that the Husband raises to this Court exercising jurisdiction in respect of parenting orders relating to the child of the marriage … is dismissed.
2.The interim applications for orders 1, 2, 3, 4, 5, 6, 7, 8, and 9 sought by the Husband in his response filed 4 April 2005 as set out under the heading “Interim or procedural orders sought” are dismissed.
3.The orders made at the Local Court on 21 December 2004 are set aside.
4.That pending further order that the child … shall reside with the Wife.
5.That pending further order the child … will have contact with the father as follows:-
5.1.On twelve (12) occasions in a period of six (6) weeks (as set out in order 5.4) from the date nominated by the Central West Contact Centre (“the Contact Centre”) and each party must:-
5.1.1.contact the Contact Centre within seven (7) days and arrange an appointment for assessment for suitability for supervised contact;
5.1.2.attend the assessment;
5.1.3.comply with any appointments made by the Contact Centre for supervised contact;
5.1.4.comply with all reasonable rules of the Contact Centre; and
5.1.5.comply with all reasonable requests or directions of the staff of the Contact Centre.
5.2.If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervised contact as set out in this order, then each party and the child’s representative has leave to restore the matter to the list on seven (7) days written notice to the other party and to the Court.
5.3.The Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party may re-list the matter for mention on seven (7) days notice.
5.4.If after assessment the parties are accepted by the Contact Centre as suitable for supervised contact the Husband is to have contact with [the child] at the following times:-
5.4.1.For four (4) visits being on two (2) Saturdays from 10.00am to 12.00pm and two (2) Sundays from 12.00pm to 2.00pm;
5.4.2.Thereafter for four (4) visits being for three (3) hours on two (2) Saturdays from 10.00am until 1.00pm and two (2) Sundays from 12.00pm to 2.00pm;
5.4.3.Thereafter for four (4) visits being for six (6) hours and five and a half (5 ½) respectively on two (2) Saturdays from 10.00am to 4.00pm and for two (2) Sundays from 11.30am to 5.00pm.
5.5.In relation to order 5.4 the Wife must deliver … to and collect … from the Contact Centre at the times specified in order 5.4 or by the Contact Centre and on each occasion promptly leave the building and the vicinity.
5.6.In the event that the Contact Centre offers supervised contact only at times which are less regular than what is specified in these orders then contact shall occur at times which are offered by the Contact Centre.
5.7.Contact under order 5.4 is to be supervised by the Contact Centre and the Husband must pay the reasonable fees for the supervision on each occasion of supervision.
5.8.The Husband must not attend the Contact Centre or its vicinity before the time contact is to start and must promptly leave the Contact Centre and the vicinity at the time contact is to end.
5.9.If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the child representative may on 7 days written notice to the other party and the Court restore the matter to the list.
5.10.If during the currency of these orders in relation to contact at the Contact Centre the parties and the child’s representative agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.
5.11.The period of contact provided in these orders at the Contact Centre may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
5.12.That at conclusion of contact at the Contact Centre the Husband have contact with [the child] each week for six (6) weeks from 9.00am to 5.00pm each Saturday and from 9.00am to 5.00pm each Sunday.
5.13.That after the conclusion of contact in order 5.12 the Husband have contact with [the child] each alternate weekend from 9.00am Saturday to 5.00pm Sunday.
5.14.That for the purposes of the orders for contact away from the Contact Centre the Husband shall collect and return the child from and to Liverpool Railway Station and the parties shall meet at Liverpool Railway Station for the purposes of handing over [the child] for contact.
6.That the Husband and Wife be and hereby are restrained and injuncted by himself and herself, his and her servants or his and her agents from removing or allowing or causing the child to be removed from the Commonwealth of Australia without the prior written permission of the other parent.
7.That the Husband and Wife be and hereby are restrained and injuncted, by himself or herself, his or her servants or his or her agents from relocating or allowing or causing the child to be relocated from the Sydney Metropolitan Area without the prior written permission of the other parent.
8.That subject to paragraph 6 herein, the Commissioner of the Australian Federal Police take all necessary steps to immediately place the child... on the airport watch list also known as the P.A.S.S. system, at all points of arrival and departure in the Commonwealth of Australia.
9.That subject to paragraph 6 herein, the Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all States and Territories in the Commonwealth of Australia.
10.That subject to paragraph 6 herein, the Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of and give effect to these Orders AND IT IS REQUESTED that the Marshal of the Court and all agents of the Australian Federal Police and all Police Forces and services of various States and Territories of Australia are required and empowered to give effect to these orders to take all necessary steps to restrain the Husband or the Wife, his or her servants or his or her agents from removing or attempting to remove the said child from the Commonwealth of Australia.
11.That the child... is to be separately represented and the Legal Aid Commission of New South Wales is requested to arrange such representation.
12.The Wife must notify the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission of New South Wales of these orders within three (3) working days.
13.That on or before 25 May 2005 the Wife must provide the Legal Aid Commission of New South Wales copies of any relevant orders and reports and each party must provide the Legal Aid Commission of New South Wales with copies of any applications and affidavits on which that party continues to rely.
14.That the parties must attend a conference with a family and child counsellor or welfare officer at a place and time nominated by the Mediation Service of the Court to discuss the care, welfare and development of [the child] and to try to resolve any differences between them in that regard.
15.That liberty be granted to each party and the separate representative to restore this matter on seven (7) days notice to the Court and to the other party, particularly in relation to the issue of contact.
AND THE COURT NOTES
16.That mediation will take place at the Parramatta Registry of the Family Court and the file will otherwise be returned to that Registry.
17.It is further noted that if the parties require a variation of contact orders by consent pursuant to Order 5.10 then that application can be relisted in chambers before Justice Watts for that purpose.
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