Marlow and Birkin
[2017] FCCA 2781
•17 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARLOW & BIRKIN | [2017] FCCA 2781 |
| Catchwords: FAMILY LAW – Mother removes child from Commonwealth of Australia – Mother seeks to prevent order for child’s return relying on Child Protection Convention – Court’s jurisdiction regulated but otherwise exercisable. |
| Legislation: Family Law Act 1975 ss.65D, 67ZC, 68B, 69H, 114(3) and Part VII and Part XIIIAA |
| Cases cited: Alhange & Alfasi [2017] FamCA 650 Duckworth & Jamieson [2014] FamCA 308 White & Green and Ors (No.2) [2009] FamCA 237 |
| Applicant: | MS MARLOW |
| Respondent: | MR BIRKIN |
| File Number: | BRC 4198 of 2013 |
| Judgment of: | Judge Curtain |
| Hearing date: | 10 July 2017 |
| Date of Last Submission: | September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 17 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Andrew Barbayannis |
| The Respondent appearing on his own behalf | ||
| Counsel for the Independent Children's Lawyer: | Mr Lino Marchetti | |
ORDERS
That order 10 of orders made 5 April 2016 and order 13 of orders made 23 February 2017 be discharged and the Mother shall forthwith do all things necessary and sign all necessary documents to ensure that X born (omitted) 2013 (“X”) is returned to reside with her in the Commonwealth of Australia.
That all prior orders made by consent on 10 July 2017 remain in full force and effect and in particular order 6, that Y shall remain with the Father in Australia when the Mother travels to (country omitted) to ensure the return of X.
That these proceedings be listed for hearing on 23 May 2018 for the Mother to “show cause” why she should not be prosecuted in relation to the alleged breach of s. 65Y or s. 65Z of the Family Law Act, 1975 (Cth) and to consider generally the parents’ compliance with all prior orders of
this court.
IT IS NOTED that publication of this judgment under the pseudonym Marlow & Birkin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
BRC 4198 of 2013
| MS MARLOW |
Applicant
And
| MR BIRKIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a narrow dispute regarding section 69E and Part XIIIAA (in particular section 111CD) of the Family Law Act 1975 (Cth) (“The Act”). The parents have a young child X who was born on (omitted) 2013, and is therefore aged 4 years. She currently resides with the Maternal Grandparents in (country omitted), which was organised (it appears) surreptitiously by the Applicant Mother. The child is an Australian citizen by birth.
Background
The Applicant Mother Ms Marlow was born on (omitted) 1983, in (country omitted). She came to Australia in 2002 to study (course omitted) and has resided here ever since. I am advised she is a citizen of Australia.
The Respondent Father Mr Birkin was born on (omitted) 1982. He came to Australia in 2006 when he was aged 24 years and I am told he is an Australian citizen and he resides here.
The Mother alleges the parties commenced cohabitation in (omitted) 2009. The Father says it was (omitted) 2008. The Mother says the parties first separated in May, 2011. The Father says it was April, 2011. The Mother says the parties reconciled from September, 2012 to November, 2012 when they finally separated. The Father is silent on this save for the final separation. The parents appear to agree on very little and distrust the other.
Prior to separation they had one child, Y who was born on (omitted) 2010. At the time of separation the Mother was pregnant with a female child who was born on (omitted) 2013, the child the subject of this dispute.
Proceedings were commenced in the Brisbane Registry of this Court by the Mother on 29 May, 2013 when she filed an application seeking final orders for Y to live with her and to spend time with the Father. She sought an interim order to be permitted to travel to (country omitted) with Y for a holiday.
The Father filed a Response on 17 July 2013, seeking a Watch List order and for an order for Y to spend time with him. He also sought an injunction to prevent the Mother from relocating from the (omitted).
On 29 May 2013 Judge Jarrett made an interim order for a Watch List for the child Y and the preparation of a Family Report, and on 21 June, 2013 Judge Turner transferred the case to the Family Court of Australia sitting at Brisbane.
Procedural orders then followed which appear not to have been fully complied with to some degree by both parents.
It appears from her Affidavit filed 6 May, 2014 that the Mother moved to Melbourne in early July, 2013 with Y without notice to the Father or an order from the Court. On 1 August 2013, she filed an Affidavit that was sworn or affirmed on 29 July, 2013 that does not mention this at all. She also sets out in her Affidavit filed 1 August 2013, that her address was then (omitted) in the state of Queensland, which apparently was not accurate.
On 29 August 2013, the Mother filed an Amended Initiating Application detailing proposed parenting orders for equal shared parental responsibility in relation to Y, for him to live with the Mother and detailed proposals for Y’s time with the Father and a fourth order, by way of final order that the Mother be permitted to relocate to Victoria. As I said earlier, it appears the Mother secretly and permanently left Queensland for Victoria sometime in early July 2013 even before she filed this application.
Subsequently, in October 2013 the Mother gave birth to the child, X in Melbourne.
In her Affidavit filed 6 May, 2014 at paragraph 3 the Mother says she has been residing in Victoria since the beginning of July 2013. Although it runs 20 paragraphs and she says that the youngest child is 6 months’ of age and Y is 4 years of age, there are no proposals in this Affidavit for either child to spend time with the Father. In her Affidavit filed 16 July, 2014 the Mother says that the youngest child is now aged 9 months and Y is still aged 4, with again with no proposals about their time with the Father.
On 24 July 2014 Acting Principal Registrar Spink of the Family Court of Australia, Brisbane made the following order:
Y born (omitted) 2010 and his sister born (omitted) 2013 live with the mother in Melbourne.
And went on to make further orders in relation to Y’s time with the Father and otherwise transferred these proceedings to the Federal Circuit Court of Australia, Melbourne, which was first listed before me on 16 September, 2014.
I note that the Mother swore and filed an Affidavit on 11 June 2013 saying at paragraph 5:
“…I am also presently 22 weeks pregnant to Mr Birkin.” (the Respondent Father).
I further note that the Mother affirmed and filed an Affidavit on 20 February, 2015 where at paragraph 15 she said the following:
“During the timeframe or surrounding period that my daughter was conceived, the applicant father and I did not engage in sexual activity that would have resulted in her being.”
Notwithstanding that clear but conflicting statement by the Mother, on 20 July 2015, I made orders for paternity testing in respect to X.
The matter came before me again on 12 October, 2015 when only the Father appeared. He tendered a report dated 1 September 2015 authored by a Ms M from the firm “Genomic Diagnostics” which set out as follows:
“The following is a DNA Parentage Testing Procedure report according to the Family Law Act 1975, reporting the likelihood that MR BIRKIN is the biological father of X.
The calculated Paternity Index of 16,663 means that MR BIRKIN is 16,663 times more likely to be the father of X than an unrelated man chosen at random from the Australian Caucasian population.
In this case, the Relative Chance of Paternity is 99.994%.
The test sites present in the table of the report (Part II, Section 3) represents the different areas of DNA that we examined. The numbers in the table represent the size of the DNA fragments in these areas. You will see that X has at least one fragment in common with MR BIRKIN at each genetic area examined (Obligate Paternal genetic contribution).
Thank you for using Genomic Diagnostics. Please let us know if we can be of further assistance.”
This has never been challenged by the Mother.
According to the Mother’s Affidavit affirmed and filed 4 July 2017, she arranged for X to travel to and from (country omitted) from (omitted) 2014 until (omitted) 2015 and says at paragraphs 12 and 13 of her Affidavit as follows:
“12. In approximately (omitted) 2014 I travelled to (country omitted) with X to spend time with the maternal grandparents as I was struggling financially and with my personal life in Australia. Y remained in Melbourne with my sister. I stayed in (country omitted) for approximately one month. I returned back to Australia without X as the maternal grandmother offered to care for X while I returned to Australia with the intention of brining (sic) X back to Australia as soon as work commitments allowed her to. In my experience in (nationality omitted) community in Australia that it is not an uncommon practice for children to be cared for by family members in (country omitted) while the parents overcome their problems in Australia. Because of this I did not believe leaving X in the care of the maternal grandmother in (country omitted) as out of the ordinary. X has continued to live in (country omitted) with the maternal grandmother since (omitted) 2014.
13.Between (omitted) 2014 until (omitted) 2015 X travelled back and forth to Australia from (country omitted) with the maternal grandmother and with me. She sometimes stayed with me in Australia but otherwise she travelled back to (country omitted) with the maternal grandmother.”
It is important to note that the date of the outcome of the parentage testing report is 1 September 2015, and it was apparently released around the period that X stopped returning to Australia and commenced to reside permanently in (country omitted). The Mother’s above Affidavit states that this travel to Australia ceased in September, 2015. The timing is troubling and the Mother has to explain this.
Considered Written Submissions
a)Case Summary and Submissions of Applicant Wife (sic) for Final Hearing, (filed on or around 10th July 2017);
b)Further Submissions of the Applicant Wife (sic) (undated);
c)Submissions on behalf of the Independent Children’s Lawyer (dated 29th August 2017);
d)The Respondent Father did not file any written submissions or Case Summary.
The Law
Part VII of the Act deals with parenting matters and in particular Section 69H says the following:
“(1) Jurisdiction is conferred on the Family Court in relation to matters arising under this Part.
(2) Each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Part.
(3) Subject to section 69K, jurisdiction is conferred on the Supreme Court of the Northern Territory in relation to matters arising under this Part.
(4) Jurisdiction is conferred on the Federal Circuit Court of Australia in relation to matters arising under this Part (other than proceedings for leave under section 60G).”
This has to be read with section 69E of the Act which provides:
“(1)Proceedings may be instituted under this Act in relation to a child only if:
(a) the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2)In this section:
“relevant day” , in relation to proceedings, means:
(a) if the application instituting the proceedings is filed in a court--the day on which the application is filed; or
(b) in any other case--the day on which the application instituting the proceedings is made.
Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section.”
Counsel for the Mother in his submissions properly concedes a number of the subsections in Section 69E(1) apply to this case, which in my view, may be the following sub-paragraphs:
(b)the child is an Australian citizen;
(c)the parents are Australian citizens, are ordinarily residents in Australia and were present in Australia when the matter was before this Court (subject to clarification as to citizenship and when they became residents);
(d)the parties to the proceedings, include the parents as in (c) above.
Counsel for the Mother submits that Part XIIIAA of the Act, limits the application of 69E to this case.
More particularly, he argues that sections 111CC and 111CD in Division 4, Subdivision B - Jurisdiction for the person of a child, is a barrier to me making orders in relation to X.
Section 111CD of the Act is as follows:
“(1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a) a child who is present and habitually resident in Australia; or
(b) a child who is present in Australia and habitually resident in a Convention country, if:
(i) the child's protection requires taking the measure as a matter of urgency; or
(ii) the measure is provisional and limited in its territorial effect to Australia; or
(iii) the child is a refugee child; or
(iv) a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence; or
(v) a competent authority of the country of the child's habitual residence agrees to the court assuming jurisdiction; or
(vi) the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or
(c) a child who is present in a Convention country, if:
(i) the child is habitually resident in Australia; or
(ii) the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii) a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence or country of refuge; or
(iv) a competent authority of the country of the child's habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v) the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or
(d) a child who is present in Australia and is a refugee child; or
(e) a child who is present in a non-Convention country, if:
(i) the child is habitually resident in Australia; and
(ii)any of paragraphs 69E(1)(b) to (e) applies to the child; or
(f) a child who is present in Australia, if:
(i) the child is habitually resident in a non-Convention country; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child.
(2) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.
(3) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if:
(a) one or both of the child's parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and
(b) one or both of the parents have parental responsibility for the child; and
(c) the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and
(d) the exercise of jurisdiction to take the measure is in the best interests of the child; and
(e) the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised.
(4) Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH.”
The expression, “Commonwealth Personal Protection Measure” relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child. The expression “Convention Country” means a country other than Australia for which the Child Protection Convention has entered into force.
Counsel goes on to submit that (country omitted) is not a signatory to the Child Protection Convention and my research unfortunately supports that submission. I cannot find any evidence that (country omitted) is a signatory to this Convention.
Moreover, it is now common ground that X is not currently present in Australia. I have read the Mother’s material where she makes allegations about the child’s movements, but she does not provide detailed evidence of this. She simply talks about the child having travelled in 2014 and not returning to Australia from September, 2015. It is possible in my view that she was present and a habitual resident of Australia from 15 October 2013 to somewhere in 2014 or at the latest, September 215 because:
(a)the Mother’s Affidavit affirmed and filed 4 July 2017 details these movements but does not give full particulars; and
(b)the parents and child provided samples for parentage testing in July 2015.
Although counsel for the Mother talks about 2014, which is based on his instructions, as I said earlier, it is not clear exactly when the child could be said to have stopped being a habitual resident in Australia.
This brings me to the question of the definition of the phrase “habitually resident”. This expression appears often in Section 111CD of the Act but has no definition under the Act.
In Duckworth & Jamieson [2014] FamCA 308, His Honour Justice Tree was called on to consider this phrase and said at paragraph 31 of his Judgment:
“What is clear, is that whether or not a person or child is habitually resident in a particular State is a question of fact, based upon the individual considerations that the individual case throws forwards.”
In the earlier case of Bunyon & Lewis (No. 3) [2013] FamCA 888, Her Honour Justice Bennett also considered this expression as it was used in section 111CD and said at paragraph 176 the following:
“176. In 1997 the Honourable Peter Nygh, a former judge of this Court and member of the Australian delegation to the Eighteenth Session of the Hague Conference held in 1996 at which the Convention was adopted, accurately described habitual residence of the child as the crucial jurisdictional factor under the Convention in the following terms:-
[The] Convention gives the habitual residence of the child the central place. With one notable exception, habitual residence of the child determines the jurisdiction of the courts and competent authorities. It also determines applicable law in relation to the attribution and extinction of parental authority by operation of law, unilateral act or agreement. Nationality can only become relevant in a subsidiary sense. This reflects a growing international consensus that the court and authorities of the child’s habitual residence are best suited to determine the child’s needs and best interest.
28. Habitual Residence as the Principle Rule
This is the most important part of the Convention since jurisdiction also determines recognition and in cases other than those involving parental responsibility, the applicable law as well. Article 5 determines the primary basis for the jurisdiction of the judicial and administrative authorities: the habitual residence of the child. If that habitual residence changes, the authorities of the State of the new habitual residence have jurisdiction.
Habitual residence is not defined in the Convention. It is a concept frequently used in modern Hague Conventions, especially in the Child Abduction Convention 1980. But, it is fair to say, it never has been given as crucial importance as in this Convention.”
She went on to consider a High Court decision in paragraph 177, where she said as follows:
“Counsel quotes extensively from the High Court decision in LK v Director-General, Department of Human Services (2009) FLC 93-397 (“LK”) in which the habitual residence of four children aged between 15 months and 8 years was dispositive of the appeal from the orders of the Full Court of this Court which had upheld the decision of Kay J to return the children to Israel pursuant to the our legislation implementing the 1980 Convention. In LK, the High Court made unanimously stated or approved statements which included the following, all of which I accept pertain to cases of wrongful removal of retention under the 1980 Convention (footnotes and references omitted):-
“23. … the application of the expression “habitual residence” permits considering of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual.
25. … it may be accepted that “habitual residence, consistent with the purpose of its use, identifies the centre of a person’s personal and family life as disclosed by the facts of the individual’s activities.
27. When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger of the child, the less sensible is it to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.
28. … examination of a person’s intentions will usually be relevant to a considering of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. …”
In the circumstances of this particular case, I am uncertain as to X’s habitual residence prior to September, 2015 given the lack of clear evidence. However I am satisfied that since that date her habitual residence has been with her maternal grandparents in (country omitted) and that was the situation when I heard this matter last.
Therefore when I turn to Section 111CD of the Act, it is my opinion that:
subparagraph (a) is not relevant as the child is not present nor currently habitually resident in Australia;
subparagraph (b) is not relevant as the child is not present in Australia and (country omitted) is not a Convention Country;
subparagraph (c), (country omitted) is not a signatory to the Child Protection Convention and therefore this does not apply;
subparagraph (d), X is not present in Australia nor is she a refugee child;
subparagraph (e), X is presently in a non-convention country, but she cannot be said to be habitually resident in Australia; and
subparagraph (f), X is not present in Australia and therefore this subsection has no relevance to this case.
It follows therefore in my opinion that I do not have jurisdiction pursuant to Subdivision B of Part XIIIAA of the Act to make personal protection orders in relation to X.
As I understand it, Counsel for the Applicant Mother relied on Bunyon & Lewis (No.3) [2013] FamCA 888 in support of his argument that the Court had no power to make orders in relation to X. I have read this judgment of the Honourable Justice Bennett and in my view this case does not assist the Applicant given that in that matter the child had been living with her father since 2012 in the Netherlands and the Netherlands was a Contracting State to the 1996 Convention and the Convention was in force between the Netherlands and Australia. At paragraph 9 of her decision Her Honour said as follows:
“As a result of the 1996 Convention having entered into force between Australia and the Netherlands on 1 May 2011 this Court cannot make parenting orders about the child unless a Court or competent authority in The Netherlands agreed to this Court assuming jurisdiction or invites it to do so.”
The above case can be distinguished on its facts. (country omitted) is not a signatory to the 1996 Convention. It is not in force between (country omitted) and Australia. I note His Honour’s comments at paragraph 73 of Duckworth & Jamieson (cited above):
“73. In my view, s 111CD does not confer jurisdiction, but regulates the exercise of jurisdiction. I say that because:
· Jurisdiction of Australian Court with respect to a child is determined by s 69E;
· Section 11CD specifically refers to the “exercise” of jurisdiction, rather than the establishment of jurisdiction;
· Section 111CB(1) does not establish Division 4 as a stand-alone code, but rather gives it effect despite anything else in the Act (with some exceptions).”
Currently I do not have the luxury of time to explore the extent to which s. 111CD of the Act “regulates the exercise of jurisdiction” given the heavy workload of this Court, but I am satisfied that I have the jurisdiction to make orders that need to be made at this stage, pursuant to s.69E, s.67ZC, s.68B and arguably s.65D and s.114(3) of the Act.
I have, in my reading of Part VII of the Act, jurisdiction to make orders in relation to the parents of X who are citizens of this country, who reside here, are currently present in Australia and both have proceedings in this Court. I am concerned that the Mother who was born in (country omitted), has family there and has their child there. Moreover, I note the notation on the order made by Judge Turner on 21 June 2013 that… “as this is an issue of relocation of the child Y born (omitted) 2010 to (country omitted), an urgent listing of this matter is required” and the contents of the Affidavit of Mr F filed 11 June 2013 which does not talk about a temporary holiday. In all the circumstances I propose to maintain the current Watch List orders I made by consent on 10 July 2017, which can be varied in the future, if satisfactory grounds are established.
The Mother, in my view, does not come to Court with “clean hands” for the following reasons:
(a)Although she filed an Amended Application on 29 August 2013, seeking an order for Y to live with her in Victoria, she unilaterally moved with the child before obtaining the consent of the Father or a Court order;
(b)Her denial in paragraph 15 of her Affidavit filed 20 February 2015 that Mr Birkin is the father appears disingenuous given she does not suggest who else could be the father, she never challenged the findings of the parentage testing which occurred some two years ago and she said at paragraph 6 of her Affidavit of 11 June 2013 that he was the Father;
(c)It appears she removed X from Australia, initially on a temporary basis and subsequently permanently without once raising this issue before the Court, nor seeking the Father’s consent, or giving him notice; and
(d)She has ignored her responsibility and duty under the Act to ensure that X has an appropriate relationship with her brother and Father (see Section 60B(1) and Section 60B(2) of the Act). The Mother appears to put her interests before the best interests of this vulnerable young child.
While Counsel for the Mother may be correct in his written submission regarding Section 111CD, I do not think that this section “covers the field” or excludes my ability to make orders against the parents or either of them.
I find support for this view in the judgment of the Honourable Justice Foster in Alhange & Alfasi [2017] FamCA 650 where in that matter two children from a relationship between parents living in Australia were sent to live in Iraq without the consent of both of those parents or a court order. At page 7, His Honour says the following:
“As best as can be understood the father’s challenge to jurisdiction firstly contends that the children are habitually resident in Iraq and secondly that it is Iraq and not Australia that has jurisdiction to make parenting orders. The father’s contention appears to ignore the premise in Section 69E that, regardless of the habitual residence of the children proceedings can be instituted here based on the presence of either of the parents in Australia and their Australian citizenship.”
His Honour went onto say that Section 68B of the Act allows the Court to make such orders or grant such injunction as it considers appropriate for the welfare of the child and he dismissed the Father’s application and maintained the earlier order that the Father was required to ensure that the children were returned to the Commonwealth of Australia.
His Honour said at paragraph 8 on page 7 of the judgment:
“In all of the circumstances, it is patently clear that it is appropriate in the circumstances where the subject children remain overseas contrary to Court orders and the Father steadfastly appears to be incapable or refusing to make arrangements for their return to Australia to extend orders to facilitate the children’s return.”
I also note the decision of the Honourable Justice Cronin in White & Green and Ors (No.2) [2009] FamCA 237. In this case a child of the parents was living with the Paternal Grandmother in Singapore and the parents were in Australia. His Honour referred to Sampson & Hartnett (no. 10) 2007 FamCA 1365 and said at page 31 of his judgment the following:
“135. The Full Court in Sampson & Hartnett (no. 10) had reservations about s 68B that in relation to a parent.
136. What power is therefore available to make any injunctive order relating to children whether as between parents or other persons relating to the children’s matters and does it matter that the applicant pursued an order only based upon s 68B?
137. The answer to the second question must be “no” on the basis that Division 12A of the Act permits a court to make an order notwithstanding it may not have been specifically sought by the parties. The Court is not bound by the proposals of the parties and that must include the statutory basis upon which the parties considered themselves conducting the proceedings.”
He then discussed Section 114(3) of the Act and made the following comments:
“141. Section 114(3) is not confined to parties to a marriage.
142. In Sampson, the Full Court contemplated the power to order, by injunction, a parent to move to a particular location as an issue in a parenting case. Their Honours said:
Perhaps obviously, in a parenting issues case, the justice or convenience of an injunction is likely to be closely connected with the parenting orders made and the findings that underpin those orders. As we later discuss, even before the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the 2006 Act”), a court in a parenting case was not confined in respect of orders, to the proposals of the parties. The 2006 Act enshrined that proposition, by obliging the court to consider certain arrangements for a child.”
143. Getting a child back to Australia after making a parenting order would clearly be seen as “closely connected” with the others and as the Full Court then went on to say:
As to the court’s power to make coercive orders and the propriety of making such orders, section 65D provides:
(1)in proceedings for a parenting order, the court may, subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and section 65DAB (parenting plans) and this division, make such parenting orders as it thinks proper (emphasis added).
144.As to the “coercive” power, the Full Court said:
As indicated earlier, the purpose of a “coercive” order is more to create a situation, rather than choose between situations that already exist. This distinction raises the basic question of the extent to which orders need to be connected to the evidence in a case.
145. The Full Court ultimately decided that there was power in s 114(3) to enjoin a parent from relocating or to relocate but with the proviso that the injunction was no more than necessary to secure the best interests of a child. Their Honours described the “proper exercise” of such a power as likely to be rarely used and give examples of why that might be so.”
In all the circumstances I propose to make orders in relation to the Mother returning the child to Australia and other related orders.
This most unfortunate situation has been created by the unilateral acts of the Mother.
I have released the Mother’s passport to her, pursuant to the earlier consent order made on 10 July 2017 to enable her to bring this child to Australia and remove any alleged barriers she seeks to erect to prevent this. The situation was created by her and must be cured by her.
The Independent Children’s Lawyer in his written submissions raises the possibility that the Mother may have breached either or both section 65Y and section 65Z of the Act, both of which provide a very serious penalty for any breach.
It is inappropriate at this stage to consider a transfer of this matter to the Family Court of Australia and I propose to list this before me on 23 May 2018 to allow the Mother time to prepare her case to show cause why I should not refer these papers to the Attorney-General’s Department with a request that she be prosecuted. Of course, the Mother’s position may be ameliorated if she was to arrange for X to be returned to permanently reside in Australia as soon as possible.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Date: 17 November 2017
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