Kipel & Kipel (No 2)

[2023] FedCFamC1F 159

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kipel & Kipel (No 2) [2023] FedCFamC1F 159

File number(s):

MLC 11787 of 2022

Judgment of:

BENNETT J

Date of judgment:

10 March 2023

Catchwords:

FAMILY LAW- PARENTING- where parenting proceedings are stayed in respect of children who are the subject of a return application pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986.

FAMILY LAW- practice & procedure –where mother’s application for an antisuit injunction against the father is adjourned in light of father’s assurance that he will not seek to progress proceedings initiated by him in Country B until after the Hague return application is determined for a stay pending outcome of the Hague return proceedings.

Legislation:

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

Family Law (Child Abduction Convention) Regulations 1986

Division:

Division 1 First Instance

Number of paragraphs:

33

Date of hearing:

10 March 2023

Place:

Melbourne

Counsel for the Applicant:

Watts McCray

Counsel for the Respondent:

Mr Glezarkos

Solicitor for the Respondent:

Nicholes Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Thistleton

Solicitor for the Independent Children’s Lawyer:

Victoria Legal Aid

ORDERS

MLC 11787 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KIPEL Applicant
AND:	MR KIPEL Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

order made by:	BENNETT J
DATE OF ORDER:	10 MARCH 2023

THE COURT ORDERS THAT:

1.Pursuant to Regulation 19 of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) the substantive proceedings between the wife and the husband the subject to the wife’s Application Initiating Proceedings filed 21 October 2022 be stayed pending the finalisation of the application of the State Central Authority in proceedings number MLC2416 of 2023 for the return of the children X born 2018 and Y born 2021 to Country B pursuant to Regulations 14 of the Regulations.

2.Until further Order, the husband be and is hereby restrained from causing permitting or suffering the prosecution of pending proceedings initiated by him in the Court in City E on 19 October 2022 and next returnable in that Court on 23 or 27 March 2023.

3.The wife and the husband may produce to the Court any documents filed or produced in the substantive proceedings in matter number MLC 11787 of 2022 in relation to children and alteration of property interests and in the proceedings brought by State Central Authority under the Regulations in matter number MLC 2416 of 2023.

4.I reserve liberty to the parties, or any of them, to apply for orders varying the provisions of the current spend time order made on 20 February 2023 and the anti-suit injunction in the event that he/she alleges there is a material change in circumstances.

5.My reasons for decision be transcribed and, when settled, be placed on the Court file and a copy provided to the parties.

6.The parties have liberty to apply to the Hon. Justice Williams to discharge the order requesting the appointment of an independent children’s lawyer or as they may be advised.

7.Henceforth, this file travel with file MLC2416/2023 and documents filed or made in one proceeding be deemed to be filed or made in the other proceeding.

AND THE COURT NOTES that the wife and the husband disagree about the return date of proceedings in the Court in City E. The father maintains that the next return date is 27 March 2023 whereas the mother maintains that the proceedings are next before that court on 23 March 2023. However, the parents are in agreement that they are referring to the same proceedings and they are the only proceedings pending in City E brought by the father and that they ought not progress further until determination of the Hague application.

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:

INTRODUCTION

1. This matter comes before me as a mention date of substantive proceedings initiated by the application of the mother filed on 21 October 2022 for parenting orders in relation to X, who is nearly five years old, and Y, who is nearly two years old, and alteration of property interests. A complicating factor is that the father asserts that the mother is wrongfully retaining the children in Australia within the meaning of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The father’s Article 12 request to the Central Authority for Country B was accepted by the Australian Central Authority and, yesterday, the State Central Authority for Victoria (on delegation from the Australian Central Authority) caused a Form 2 application to be filed seeking the return of the children to Country B pursuant to r 14 of the Regulations.

2. The mother and father are represented and attended court today.

3. The interests of the children are represented by an Independent Children’s Lawyer, Ms Caroline Smith, for whom Mr Thistleton appears. An Independent Children’s Lawyer is appointed to act for children within the meaning of Division 10 of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Her role is to form an independent view, based on available evidence, of what is in the children’s best interests and then act in these proceedings in what she believes to be the best interests of the children. Ms Smith is not a legal representative retained by the children and she is not bound by any instructions from the children (or any of them). The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the children is fully put before the Court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The Independent Children’s Lawyer is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings, and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is possible and in the best interests of the children to do so.

4. The solicitor for the State Central Authority is in court in the Hague return application which is also returnable today.

5. The mother opposes the return application and also seeks that the father be enjoined from progressing proceedings initiated by him in the courts in City E with which proceedings she has engaged and in which she is represented. The father’s position is that these family law proceedings of the mother, before me now, ought to be stayed pending the outcome of the Hague return application in accordance with Hague principles. The State Central Authority, which is the applicant in the Hague return application, concurs with the father insofar as a stay of the mother’s substantive parenting application is concerned.

6. I have made the Order set out at the commencement of these reasons. Ultimately, none of the matters dealt with by the Order were controversial.

7. These reasons are intended to provide context to this Order so, amongst other things, the parents (or at least one of them) will be able to demonstrate to the court in Country B why they seek the indulgence of a deferral/suspension/continuation/adjournment of the Country B proceedings commenced by the father pending the outcome of the Hague return proceedings in this court.

8. In the meantime, the mother’s antisuit injunction in relation to the Country B proceedings has not been determined and the mother’s substantive family law proceeding (for parenting and financial orders) is in abeyance.

   SOME HISTORY

9. It seems to me that some dates may have been incorrectly recorded in various documents before the court. This hearing was confined to less than an hour during which I am satisfied that I obtained the gist of the matter but I did not try to clarify inconsistencies as to dates.  It follows that, in these reasons, my reference to a date does not constitute a finding as to the date.

10. The mother and father met in Country B in approximately 2010, commenced a relationship in 2013 and began to live together in Country B, immediately following their religious marriage, in 2015.  There was some suggestion that the date of separation is controversial but, it seems that both parents say they ceased to reside as husband and wife and their relationship ended in September 2022.  The father’s Hague return application states as follows:

    (a)In or about late 2019, the respondent [mother] and requesting father engaged in discussions about moving to Australia on a trial basis as a family. The respondent [mother] and requesting father commenced preparations in relation to obtaining a partner visa and citizenship for the children ahead of this move.

    (b) Due to the requesting father’s visa status, it was decided that the respondent [mother] and the children travel to Australia first to enrol [X] in kindergarten at the start of the 2022 and for the respondent [mother] to find accommodation for the family. The requesting father agreed to remain in [Country B] to finalise the packing and shipping of the family’s belongings.

    (c) The respondent [mother] and requesting father agreed that if things did not work out for the family, they would return to [Country B] as a family, and his consent for this move was on the belief that they would be moving to Australia as a single family unit.

    (d)       On 10 February 2022, the respondent and children arrived in Australia.

    (e) The requesting father and the respondent engaged in counselling between April 2022 to October 2022.

    (f) On or about 7 September 2022, the respondent [mother] advised the requesting father that she did not want the requesting father to join them in Australia, effectively seeking a separation.

    (g) On 25 September 2022, the requesting father’s [Country B] lawyers wrote to the respondent [mother] seeking the return of the children to [Country B]. It is noted in the domestic proceedings that the respondent disputes receiving this letter.

11. The mother says that separation occurred in September 2022, some months after she and the children arrived in Melbourne, Australia, in February 2022. In her affidavit of 20 October 2022, she deposes that she and the father had planned to relocate together to Australia and took significant steps in order to do so.  Due to a delay in obtaining the husband’s permanent residency visa the mother deposes that the parents agreed in late 2021 that the mother and children would travel to Australia ahead of the father in February 2022. The mother describes that it was in those circumstances that the parties consulted a lawyer to prepare an agreement, which the husband signed, authorising the mother to leave Country B with the children to return if and when she so desired. The mother deposes to the parties experiencing marital difficulties in the years prior to separation but that the mother was committed to keeping the marriage and family intact. Such difficulties include what may be described broadly as the husband’s threatening behaviour, financial control, failures in regards to parenting and addiction to pornography. The mother deposes to a deterioration of the relationship post relocation to Australia to the extent that on or about 7 September 2022 she informed the husband that she considered the parties to be separated.

12. Immediately prior to or contemporaneously with the father arriving in Melbourne, the mother made an application for a domestic violence order under state law alleging that she was concerned that the father would remove the children from Australia and take them back to Country B contrary to their prior agreement and contrary to her desire to have the children remain living in Australia. 

13. On 18 September 2022, the father made application to the Court in City E for certain orders including a religious and a civil divorce. I understand a further application was also made by the father in Country B in November 2022. I gather that the mother’s anti-suit injunction is directed to relief sought by the father which is ancillary to the civil divorce.

14. When the parenting and financial proceedings initiated by the mother’s application filed on 22 October 2022 came before me on 28 November 2022, the father had not filed and served any responding material.  This was in spite of him having been in Melbourne for months and having spent about $26,000 on local family lawyers.  There had been more than adequate time in which the father’s responding documents, which he was required by the rules of court to file and serve, could have been prepared. Furthermore, the mother and children were residing in Suburb F, the father was residing in Suburb G. Those locations are about 4 kilometres apart but the father had not seen the children.

15. Prior to the hearing commencing on 28 November 2022, the Court was contacted by the Australian Central Authority and informed that a request by the father for the return of the children through the 1980 Convention was being assessed by the Central Authority in Country B and, the officer from the Australian Central Authority said, it was appropriate that the substantive parenting proceedings be stayed pending the outcome of the prospective Hague return application which was under consideration but not yet filed.

16. Article 16 of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“1980 Convention”) provides, inter alia, that after receiving notice of a wrongful retention, this court shall not “decide on the merits of rights of custody” of a child until after the issue of the child’s return to the requesting state has been determined. The 1980 Convention is implemented into Australian law by the Regulations. It is the Regulations rather than the text of the 1980 Convention that has force of law in Australia. Regulation 19 provides that, if an application for a return order for a child is made, a court must not make a parenting order, except an interim order, until the return application is determined.  

17. I did not order a stay of the mother’s parenting application on 28 November 2022. No Hague return application had been accepted by the relevant Central Authorities, made or filed.  Instead, I progressed the parenting matter at a moderate pace. There was no pressure to do otherwise having regard to the father not having filed a response seeking time with the children.

18. I ordered a child impact assessment be conducted.  A child impact report (“CIR”) is a child focussed preliminary assessment by a social scientist employed by the court which provides guidance to parents and the court about the needs and wellbeing of the children to support interim hearings and dispute resolution. A CIR may also provide insight about children’s views, needs and experiences. However, in this case the children were not interviewed. Only the parents were interviewed. The CIR report is dated 14 December 2022, is on the court file and has been distributed to the parties. It is somewhat informative as to the dynamic between the parents. 

19. On 5 December 2022 the father filed a limited response to mother’s application initiating proceedings seeking time with the children.

20. The parents requested adjournments by the Senior Registrar of the substantive parenting matters and the application for alteration of property interests.  Eventually, on 20 February 2023, orders were made which provide, inter alia, that the father spend supervised time with the children each week, in particular, between 4 pm and 7 pm on Mondays and Tuesdays.  Further orders include an order for video communication between the father and the children each Friday and on the evening prior to religious occasions, an injunction restraining either parent from denigrating the other as well as an order making arrangements for the transfer of various chattels between the mother and father.

21. The independent children's lawyer, I understand, has certain views about whether or not supervision remains appropriate or necessary.  However, there is no application to vary the interim parenting order made on 20 February today.

22. As indicated, on 9 March 2023, the State Central Authority filed an application under the Regulations seeking a return of the children to Country B pursuant to regulation 14 of the Regulations. That application has been given another proceeding number which is MLC 2416 of 2023. Whereas that application is notionally before me today, I have adjourned it to Williams J for directions next Tuesday at 9.30 am, the judge in charge of Hague matters, Hague return applications, and will deal with the matter.

23. The only matters which I was asked to consider today, and to which the parties have ultimately agreed, is what should happen to the proceedings in Australia initiated by the mother and certain proceedings initiated by the father in Country B. 

24. As matters currently stand, the Hague return application will be determined as expeditiously as possible. The mother’s substantive parenting proceedings are stayed in accordance with reg 19. There is no basis within the Regulations to stay the mother’s financial proceedings but, as a matter of proportionality, common sense and costs, it would be inappropriate for this court to progress the financial proceedings to final determination in isolation to the parenting proceedings.

25. I am satisfied that it would be contrary to the interests of justice for the father to be able to continue to actively prosecute his proceedings before the court for ancillary relief in Country B whilst the mother’s proceedings in Australia are effectively stalled by the Hague return application made at the father’s behest.  In any event, the father has agreed that he will not take any steps to prosecute the proceedings in Country B pending an outcome of the Hague Convention return proceedings of which this Court is now seized.  It was an eminently sensible concession for him to make.

26. Notably, expert evidence filed by the wife, from Professor H, indicates that the father could proceed with a religious divorce whilst he and the mother are out of Country B but that both parents would have to be present in Country B for the father’s application for a civil divorce and any relief ancillary to the civil divorce to be able to proceed.   

27. Counsel for the father obtained specific instructions that all that the father will seek on the next return date of the proceedings in the court, which is either 23 or 27 March 2023, is for those proceedings to be adjourned to a date which follows the determination of the Hague proceedings before this court (when it should then be known where the children will be henceforth located).

28. As parties to proceedings before this Court, the mother and the father would not be at liberty to produce or rely upon any documents filed in these proceedings without permission of the Court.  I have expressly given them permission to rely on any documents filed in these proceedings and these reasons for decision so that they may ultimately and, if needs be, produce such documents to the Court in City E for its consideration.

1. As the mother and father, by various means and through various avenues, fight over jurisdiction in relation to the children, they are spending a great deal of money which I find difficult to imagine could not be better spent on the needs of the family rather than on retaining lawyers.  The husband’s legal costs now stand at approximately $74,000 for the substantive family law proceedings, $50,000 for preparation of his request for a Hague return application, $23,000 in relation to the application for an intervention order taken by the wife in the Magistrates’ Court at Suburb J coincidental with his arrival in Australia and the equivalent of $11,000 on the proceedings in the Court in City E.  The mother does not provide a breakdown of her expenditure, but I am informed from the bar table that it is some $190,000 for Australian and Country B proceedings. 

2. It is incongruous to me that the parents have multiple causes of action before multiple courts in two countries whilst they are living 10 minutes’ drive from one another in Melbourne.

3. Part of the case management options available to the Hague judge next week will be to direct that a Hague mediation occur between the parties.  That is a specialised mediation which has regard to the international dynamic of cases.  It extends over not less than three days and will, in all likelihood, be provided to the parents at minimal or no cost.  It is not the practice of the State Central Authority to impede that mediation process in any way, although it will not be a party. 

4. The independent children's lawyer in the substantive proceedings who I have carried over to next Tuesday, when it will be a matter for Williams J to decide whether or not there needs to be an independent children's lawyer in the Hague proceedings, has a wealth of experience in these matters.  Mr Thistleton, her counsel, is very well equipped in the process of mediation as well as skilfully presenting cases such as this from the perspective of the children. 

5. I urge the parties to consider what they are, in fact, doing and to use the opportunity provided by any Hague mediation to look past the Hague proceedings and to prepare for all outcomes and what lies in store, in fact, for themselves and the children once proceedings are concluded in whichever jurisdiction.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       16 March 2023