Merrell and Department of Child Safety

[2009] FamCA 290

FAMILY COURT OF AUSTRALIA

MERRELL & DEPARTMENT OF CHILD SAFETY [2009] FamCA 290

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Stay Application – Earlier order for return to New Zealand – Appeal – Consequences of granting/refusing stay – Stay application dismissed

APPLICANT: Ms Merrell

RESPONDENT: Director-General, Department of Child Safety

FILE NUMBER: BRC 10921 Of 2008

DATE DELIVERED: 3 April 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 3 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms K L Elphinstone, Condon Charles Lawyers

SOLICITOR FOR THE RESPONDENT: Ms F Cannon, Crown Law

Orders

IT IS ORDERED

1. That the Application in a Case filed 25 March 2009 for a stay of the operation of the Orders made on 11 March 2009 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Merrell & Department of Child Safety is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC10921 of 2008

MS MERRELL

Applicant

And

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

Respondent

REASONS FOR JUDGMENT

ex tempore

1. In this matter, the applicant applies for a stay of the orders made by this Court on 11 March 2009. 

2. I refer to my judgment in that matter as it sets out in some detail the history of this family and the circumstances which gave rise to the original application by the Central Authority and my decision on 11 March 2009 which, in turn, resulted in the applicant's appeal filed on 25 March 2009 and the stay application which was filed at the same time.

3. It is to be noted that, in this case, there are two children affected by the deliberations and orders made by me on 11 March 2009 in this case, a child, C born in March 2000, and a child, T born in March 1999.

4. The Central Authority had previously sought orders for the return of each of the children to New Zealand and, for reasons set out in my judgment of 11 March 2009, I found that the application of the Central Authority was not sustainable in relation to the child, C, because the relevant relationship between the parties did not exist at the relevant time and because there had not been a change of habitual residence.  In relation to T, I found that the relevant relationship did exist at the relevant time and that there had been a change of habitual residence in relation to T. 

5. The consequence of those determinations provided different outcomes for these children, with the application in relation to C being dismissed and the application in relation to T being upheld and, after some concessions, the effect of orders made on that day was designed to secure T’s return to New Zealand on or before 9 April 2009.

6. The applicant mother has lodged an appeal and this stay application in a timely manner, and that requires me to consider the matters relevant to the stay application.  I have been assisted by the written submissions that were provided on behalf of the applicant and the oral submissions made by the Department. 

7. The application necessitates the consideration of a number of matters, including the merits of the appeal, a task which is somewhat problematic when asking the trial Judge to consider the merits of criticisms of his or her decision.  Notwithstanding, I am well able to deal with such matters on their merits.  The first thing I need to note about the appeal itself is that, essentially, it is a challenge to a finding of fact, albeit an important one.  Those types of appeals are regarded as inherently more difficult to sustain than others.  The appeal does not include any criticism of process or of any wrongful application of legal principles.

8. In relation to the principal finding under consideration with the appeal, I note that the arguments relate, in a sense, to a somewhat technical point.  The matter in issue is an historical argument relating to findings surrounding the nature of the parties' relationship some 10 years ago.  There was no dispute at the hearing, nor is there a challenge to other aspects of the judgment which affirm the important and close nature of the relationship between T and his father.  T has spent the past two years in his father's sole care and the evidence and findings in relation to T’s positive progress during that two year period is not disputed.  Further, no challenge is raised to the finding on 11 March 2009 that, on the evidence, there had been a change of T’s habitual residence.  Nor is there a challenge to the finding that the mother, on her own case, engaged in a deception to ensure T’s removal from New Zealand for Christmas of 2008.

9. However, I accept that the appeal is a bona fide appeal and not one simply filed for the express purpose of frustrating or delaying the implementation of the Court's orders.

10. I next turn to consider the consequences of granting or of refusing to grant the stay.  I note that one of the consequences of refusing to grant the stay would be to effect a separation of these two children pending the hearing of the appeal.  If that appeal is successful, it might turn out to be the case that that separation of these siblings was unnecessary and imposed some hardship upon these children.  Of course, it would also involve, at least potentially, some cost in rectifying the implementation of the orders which would see T in New Zealand and then, potentially, in need of a return to Australia.  I take proper account of the fact that, in these cases, it is not an inappropriate starting point to work from the premise that the Court should exercise its discretion so as to preserve the status quo pending the determination of what is, as I have decided, the bona fide appeal.

11. However, I also need to take account of the actual history of this case when considering those general principles.  There is no clear cut status quo in this case.  Indeed, it could well be argued that the status quo for T would justify and require a return to New Zealand.  That country had been his place of residence for the last two years and had become his habitual place of residence.

12. I also take account of the fact that, in this matter, the parents jointly had chosen in the past to put in place arrangements which necessarily saw these children separated and which saw them separated for a considerable period of time.  Whilst, as expected, the mother reports that the children missed one another, and C, in particular, missed T in a way which resulted in her unselfishly making arrangements to have C spend a year with her brother in New Zealand, nevertheless, there is not any evidence before me which indicates any more than the obvious fact that the children missed one another. There is no evidence to suggest that they otherwise took any particular harm from that separation.

13. In terms of the consequences of granting the stay application, I note that such a decision would have the effect of further delaying and frustrating the implementation of this important treaty between Australia and New Zealand which is designed to protect children from the harms of international abductions or wrongful removals. 

14. I also take account of the fact that, on the face of the evidence placed before me, an order granting the stay would be to deny T his apparent stated preference, acknowledged by the mother, to stay permanently in New Zealand and to stay at his existing school. 

15. An order granting a stay would also continue to deny T the opportunity to spend time with his father, who has now not seen him for six months and, of course, it would deny the father the opportunity to spend time with his son.

16. As to the consequences of refusing to grant the stay, I also take account of the fact that, in this case, an order refusing the stay would not be one which would impose upon T an uncertain, unfamiliar future.  He would be resuming familiar living and schooling arrangements which had served him well for two years.

17. I take account of the fact that, in this case, the Court is only considering the logistical implications of a return to New Zealand, a country which is close in proximity to Australia, has similar cultures, education systems and the like.  The Court is not talking about vast distances and vast costs.  As a consequence, if the mother is successful in her appeal, the logistical aspects of restoring T’s residence in this country could be as readily achieved as having him returned from Melbourne.

18. For all of those reasons, I have come to the view that the consequences of refusing to grant the stay are not matters of great moment or great significance, or matters that have serious implications for T.  In the absence of such significant considerations, I take the view that what has been identified in support of the mother’s stay application in this case is outweighed by the circumstances of the history and by a desirability of having the outcome of the Hague Convention proceedings supported.

19. I also have regard to the fact that, at the time of handing down the judgment, the legal representatives for the mother indicated that their instructions at that time were to the effect that the mother intended to pursue her remedies in New Zealand.   She is able to do so at any stage, including the period during which this appeal is pending.  She has available to her remedies in a like jurisdiction with like legal principles.  She is not being prejudiced, in the sense that she is unable to pursue those remedies pending the determination of the appeal in this matter.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: