Kipel & Kipel
[2022] FedCFamC1F 973
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kipel & Kipel [2022] FedCFamC1F 973
File number(s): MLC 11787 of 2022 Judgment of: BENNETT J Date of judgment: 28 November 2022 Catchwords: FAMILY LAW- PARENTING- where mother and children (aged 1 and 4) are in Australia and the mother seeks parenting orders- where father is in Australia but has lodged a request with the Country B Central Authority for the return of the children to Country B pursuant to the 1980 Hague Abduction Convention- where the court is notified by the Australia Central Authority there is a request under consideration- where proceedings are progressed but not determined having regard to possible request for return. Legislation: Family Law (Child Abduction) Regulations 1986 (Cth) Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 28 November 2022 Place: Melbourne (via MS Teams) Counsel for the Applicant: Mr Kanarev Solicitor for the Applicant: Le Brun & Associates Counsel for the Respondent: Ms Jeans Solicitor for the Respondent: Nicholes Family Lawyers ORDERS
MLC 11787 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KIPEL
Applicant
AND: MR KIPEL
Respondent
order made by:
BENNETT J
DATE OF ORDER:
28 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The further hearing of the mother’s application filed 21 October 2022 be adjourned to a Senior Judicial Registrar Duty List for a determination of interim parenting matters.
2.By not later than 5pm on Thursday 1 December 2022 the father file and serve a response in which he specifies the interim parenting orders he seeks together with all affidavit evidence in support of that application and evidence in response to the evidence of the mother sworn 20 October 2022.
3.Pursuant to section 68L(2) of the Family Law Act 1975 (“the Act”) the interests of the children X born 2018 and Y born 2021 (“the children”) be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the children by the next return date to ascertain whether agreement can be reached in relation to face to face time to be spent between the father and the children and the availability of mediation convened by Victoria Legal Aid or by the Court prior to the next hearing date.
4.IT IS FURTHER REQUESTED that an independent children’s lawyer with Hague return matters be appointed.
5.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.
6.Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.
7.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X born 2018 and Y born 2021 attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert and for that purpose:
(a)Part 1 of the event will occur by video, using Microsoft Teams, on Monday 5 December 2022, with:
(i)the Applicant Wife to attend at 9.00am; and
(ii)the Respondent Husband to attend at 10.30am; and
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
(b)Part 2 of the event will occur in person at the Melbourne Registry of the Court on Wednesday 7 December 2022 with specific details of the attendance of the parties and the children on that date will be provided at Part 1 of the event;
(c)Each party do all things necessary to ensure the child/children attend upon the Court Child Expert pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that s 62G(3B) applies;
(d)Not later than 4.00 pm on Wednesday 30 November 2022 the parties must provide their contact telephone numbers and email addresses to …@...
8.A place be reserved in the child-minding section of the Court for the children and it be maintained for them throughout the day;
9.The Court Child Expert may, at the direction of the Senior Judicial Registrar, be required for cross-examination on the adjourned date.
10.For the purpose of the Child Impact Report in this matter the Court Child Expert be and is hereby authorised to have reference to all documents filed in these proceedings and exhibits as well as to any documents produced on subpoenae and released for inspection by all parties.
11.The Court Child Expert provide a written report to the Court and the report deal with the following matters:-
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the children; and
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the children
12.Upon completion on or before 17 December 2022, the Child Impact Report be provided to the Docket Registrar for release to the parties, including by way of order made in Chambers.
13.Each of the mother, MS KIPEL born 1982, and the father, MR KIPEL born 1981, and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of X, male, born 2018 and Y, female, born 2021 from the Commonwealth of Australia.
14.X, male, born 2018 and Y, female, born 2021 be and are hereby restrained from leaving the Commonwealth of Australia.
15.IT IS REQUESTED THAT the Australian Federal Police give effect to the preceding order by placing the names of the said 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 for a period of two years.
16.Upon expiration of the period referred to in this Order and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List. AND IT IS NOTED that if any parent seeks that the child or children’s name(s) remain on the Watch List for a period beyond the period specified in this Order, that party must seek such an order by filing and serving an application and an affidavit setting out the evidence which supports that application in the Federal Circuit and Family court of Australia.
17.A copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.
IT IS DIRECTED:
18.That the thread of correspondence from the Australian Central Authority to the Court commencing 25 November 2022 at 2:51 pm be marked Exhibit C1 and remain on the Court file and a copy be provided to the parties.
19.That the letter from C Lawyers to the mother and her lawyers dated 25 September 2022 be marked Exhibit “F1” and remain on the Court file.
20.That the correspondence from the Department of Families Fairness and Housing (undated) be marked Exhibit “C2” and remain on the Court file.
21.That the letter dated 28 October 2022 from the father’s solicitors to the mother’s solicitors requesting specific spend time arrangements be marked Exhibit “F2” and remain on the Court file.
22.That the costs notification from the mother be marked Exhibit “M1” and remain on the Court file
23.That the correspondence dated 24 October 2022 from the father’s lawyers to the father about costs be marked Exhibit “F3” and remain on the court file.
IT IS FURTHER ORDERED BY THE COURT THAT:
24.A sealed copy of this Order be served on the Australian Central Authority by electronic means.
25.My reasons for decision be transcribed and, when settled, placed on the Court file and a copy be provided to the parties.
AND IT IS NOTED THAT:
A.If any party fails to attend court or neglects to file a document which is required by order of the Court or operation of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 that party should assume that the matter will proceed in their absence, without any such material and without any further input from him or her.
B.The court has today received notice from the Australian Central Authority that the father has made a request for the return of the children to Country B under the 1980 Hague Abduction Convention and paragraph 19 of the Family Law (Child Abduction) Regulations 1986 applies to this case.
C.These proceedings are proceedings to which s 111(D4) of the Act applies and the children and the mother were Australian citizens on the date of filing of the mother’s application.
D.The Court has explained to the parents that he/she bears personal responsibility for preparation of documents required to be filed and served and, in the event that they cease to be legally represented, the parties must still file and serve documents as required.
E.The next return date for the intervention order proceedings in the Magistrates Court at Suburb D is currently late 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
This parenting matter comes before me urgently on transfer from a Senior Judicial Registrar, where the mother’s application initiating proceedings and seeking interim orders was listed as the first return date at 10 am. The matter was transferred to me because the Court received notification on Friday that these are proceedings in relation to the children, X, (4), a son, and the daughter, Y, (1). The father has made a request pursuant to the 1980 Abduction Convention for the return of the children to Country B. That request is in the hands of the Country B Central Authority, which has notified the Australian Central Authority that it will give prompt consideration to the request but has not yet decided to transmit it to Australia. The Australian Central Authority notified the Court of the pending request. I mark that correspondence Exhibit “C1” and direct it remains on the court file. The parties have been given a copy.
Regulation 19 of the Family Law (Child Abduction) Regulations 1986 (Cth), which gives expression to article 16 of the 1980 Convention, provides:-
If an application for a return order for a child is made, a court must not make an order, except an interim order, providing for the custody of the child, within the meaning of regulation 18, until the application is determined.
The hearing proceeded electronically on the courts MS Teams platform. Mr Kanarev appeared for the applicant mother and Ms Jeans appeared for the father. The father seeks a stay of the parenting proceedings notwithstanding that his Hague request is not yet on foot. He does so without an application or affidavit in support.
By way of background, the parties met in Country B. They commenced cohabitation and married in Country B in 2015. The children X and Y are the children of that relationship. The parties do not have any other children. The practitioners for the parties don’t know when the parties separated, but it is apparent that in early 2022, the mother and the children left Country B and came to Australia and have since remained here. The father arrived in Australia in or about late 2022.
The mother has filed fairly extensive affidavit material. As indicated, the father has filed none. This is notwithstanding that the father was served with the mother’s documentation in these parenting proceedings when he arrived in Australia in late 2022. Today, his counsel Ms Jeans says that her client has filed no material in relation to the children because he thought that today’s parenting proceedings would be stayed pending consideration by the Court of the request for return under the 1980 Hague Convention. It is not clear what the father or his practitioners have been doing given that his request under the 1980 Convention has only recently reached the Country B Central Authority.
Ms Jeans informed the court that the father would seek face to face time with the children. There has only been electronic communication even though the father has been in Melbourne. I don’t understand why the father has not prepared a case to seek interim orders for face to face time today. It is clear that this Court can proceed to make interim orders on a domestic parenting application, notwithstanding that there is a pending Hague Convention application (and in this case, no such application has yet been filed).
I note that the 1980 Abduction Convention entered into force between Australia and Country B in the 1990s. The 1996 Convention has not entered into force between Australia and Country B.
The mother’s affidavit material annexes a document dated 7 February 2022, which the father admits is signed by him. The last sentence of the document reads:
“Currently, [the wife] does not have plans to return to [Country B], but has my permission to return to [Country B] with our said children should she so desire.”
This is a document which the mother relies upon to establish the father’s written permission for her to remove the two children from Country B in early 2022. She also relies upon it to evidence the father’s consent to the children remaining in Australia.
The father, on the other hand, says that he did not sign the document to indicate consent to the children being permanently removed from Country B. Ms Jeans added that her client also did not acquiesce to the place of habitual residence of the children being changed to Australia. I permitted counsel for the father to say what evidence the father would give if called. Ms Jeans was granted time to confer with the father to get specific instructions. Ms Jeans stated that had the father been told that the mother was intending to move to Australia as a single parent with the children on a permanent basis, he would not have signed the letter of permission or consent in early 2022, nor permitted the children to leave Country B.
The father does not say that there was any subsequent written or other communication to contradict or qualify the last sentence of the document dated early 2022 prior to the children leaving Country B a few days later. He says that there was a subsequent letter sent by his lawyers in Country B to the wife in Australia in September 2022 in which he requested the return of the children to Country B within seven days on the basis that Country B was and remained their state of habitual residence. Counsel for the father said a copy of that letter would be provided, and it was. It has been marked exhibit F1, and will be an exhibit in these proceedings and remain on the Court file. The mother, through her counsel, denies categorically having ever received the letter of 25 September 2022, and says that the place to which it was addressed is incorrect.
As best I understand from the father’s counsel, the father asserts that in 2019 and 2020 there were discussions between himself and the mother about a trial relocation of the whole of the family from Country B to Australia. He asserts that it was agreed that the family would relocate at some point in the future. Thereafter steps were taken to obtain Australian citizenship for the children and a partner’s visa for the father. No further details were given, other than to reiterate that the father was not, by signing the document dated early 2022, consenting to the removal of the children from Country B on a permanent basis. The court was not informed of what the father asserts by way of wrongful retention.
It is also asserted by the father that as soon as the mother departed Country B, “Everything changed, and her demeanour and behaviour towards the father immediately shifted, and she breached their agreement in a number of ways”. He says, for instance, the mother sought an intervention order against him under state domestic violence laws in the Suburb D Magistrates Court in late 2022. That application was returnable a month later. The mother says that she felt at threat of the father coming to Australia and removing the children from her care, and that he was not financially supporting the family. As to the latter, it appears to contradict her affidavit evidence.
The father arrived in Australia in late 2022 and has been here since. He was served with the mother’s legal proceedings, this application, at the airport. Counsel for the father was given an extended period in which to obtain instructions. She said that she had not obtained instructions before the commencement of the hearing because it was understood that the only matter that would proceed today was an application for a stay of the domestic parenting proceedings. I don’t know why that should be the case.
The father says he wants face to face time with the children. If so, he had the perfect forum today in which to seek it but he did not do so. That’s notwithstanding that he has apparently expended a significant amount of money on legal costs.
The mother asserts that the husband is a professional in Country B and owns his own business. His instruction to counsel today was that he has earned approximately $6500 in the last month. The costs notification to which I have referred indicates that the husband has paid his Australian solicitors, Nicholes Family Law, $26,000 for these proceedings to date, and that there is a further $3,672.30 in trust. I wonder how the father could have spent $26,000 and not have anything more than a notice of address for service on file for today but I am not across all of the case.
I won’t stay the proceedings but I won’t determine them either.
The matter will proceed. Ms Jeans asked for an extension of time in which the father could file material. It was implicit in her submission that there was still a considerable amount of work to be done to prepare it. From that I take it that there has not been draft documents already completed as part of the $26,000 worth of costs already paid. The mother says that the father’s business is failing, and that it was not generating enough income to even feed the family before she and the children departed Country B. In those circumstances, it is with some circumspection that I assume that the father will continue to be represented by solicitors. I have made it clear to the father and to his practitioners, and also to the mother and her practitioners, that orders made today for the filing of documents and to attend Court for various matters, such as the Child Impact Report and the further hearing, are obligations which attach personally to the mother and the father.
If between now and this Thursday the father ceases to be represented, he is still required to file his documents, any documents upon which he relies in relation to interim parenting orders, by 5 pm on Thursday. It will be easier for him to do so if he has legal practitioners, but if he does not have legal practitioners, he must still keep the deadline.
The mother says that the children have special needs. X, she says, has been diagnosed with autism. I do not recall reading in the mother’s affidavit material any reports evidencing such diagnosis, and they should obviously be provided to the father as soon as possible, if they have not already been. In relation to Y, the mother says that she is breastfed. The father, through his counsel, says that in late 2022, his solicitors, Nicholes Family Lawyers, wrote to the practitioners for the mother seeking an agreement in relation to interim child arrangements, and proposing that he spend time with the children on a fortnightly basis. In week 1, from 9 am on Monday to 9 am on Tuesday, and from 9 am on Thursday until 9 am on Monday, and in the second week, from 9 am Tuesday to 9 am Thursday. That is, overnight time of two nights’ duration. That document is exhibit “F2” in the proceedings. It was stated that that document went unanswered. However, it appears that one month later 2022, there was an answer from the mother’s practitioners to the father’s practitioners, which set out a plethora of historical allegations, but ultimately offers no face-to-face time between the children and the father, and proposes that WhatsApp video calls be recommenced. The letter goes for nine closely-typed pages. It will be exhibit “M1”.
The Child Impact Report will be commenced next Monday. It is necessary that the father’s response to the interim parenting application of the mother and his evidence in support of that response and any orders he seeks be on the Court file and have been considered by her practitioners prior to Monday morning.
As indicated, Ms Jeans sought an expansion of the time in which the father could respond to the mother’s material. I have declined that application. It is clear that the father has had the mother’s material since 21 October 2022. He must have had solicitors for an extended period to have spent $26,000 to date. He has had all of that time in which to craft a response to the interim application of the mother. And to seek orders in his own right, albeit only on an interim basis if the Hague request is accepted and proceeds.
Sessions for the child impact report will be held on two different days. On Monday, the parents will be required to participate (at different times) by MS Teams. On Wednesday, 7 December, the children are to attend the Registry. They should be brought in by the mother. The father should also attend at whatever time advised to him. The Child Dispute Services will notify the parties of the times for their attendance on Wednesday.
Finally, I note that the return date is a religious holiday, but there is no restriction on the parents attending Court on that day, and it is required that they attend court in person. The hearing will be conducted in person. Notably, the children are religious and lived in Country B as members of a religious community.
These reasons (and orders) will be sent to the Australian Central Authority. The Court would appreciate being informed by 19 December 2022 if the father’s request has been accepted. If it has, and is to be filed, it should be filed under this file number.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 8 December 2022
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