Nicoli & Jeryn

[2021] FamCA 517

FAMILY COURT OF AUSTRALIA

Nicoli & Jeryn [2021] FamCA 517

File number(s):

MLC 11417 of 2020

Judgment of:

BENNETT J

Date of judgment:

13 July 2021

Catchwords:

FAMILY LAW – CHILD ABDUCTION – where the court permits the father to remove six year old child from Australia for the purposes of a holiday in the Russian Federation and Turkmenistan – where father retains child in the Russian Federation and fails to return child to Australia in accordance with the order permitting him to leave – where child habitually resident – where mother seeks to register orders under the 1996 Protection Convention – mediation of international parental child abduction.  

Legislation:

Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children

Hague Convention on the Civil Aspects of International Child Abduction

Family Law Act 1975 (Cth)

Family Law (Child Abduction Convention) Regulations 1986   

Number of paragraphs:

34

Date of hearing:

13 July 2021

Place:

Melbourne

Counsel for the Applicant:

Mr Mellas

Solicitor for the Applicant:

Forte Family Lawyers

Counsel for the First Respondent:

Mr Kanarev

Solicitor for the First Respondent:

AMT Legal & KR Lawyers

Counsel for the Second Respondent:

Mr Hutchings

Solicitor for the Second Respondent:

AMT & KR Lawyers

ORDERS

MLC 11417 of 2020

BETWEEN:

MS NICOLI

Applicant

AND:

MR JERYN

First Respondent

MS B JERYN

Second Respondent paternal grandmother

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	13 JULY 2021

THE COURT ORDERS THAT:

Amended Pursuant to Rule 17.02 of the Family Law Rules 2004 – 21 July 2021

BY CONSENT IT IS ORDERED THAT:

1. Pursuant to Rule 6.04 of the Family Law Rules, the second respondent be removed as a party to the proceedings.

2.   Paragraph 5 of the Order made on 27 November 2020 (being the injunctive order in relation to the property at C Street, Suburb D) be discharged.

3.   Paragraph 8 of the Order made on 19 May 202 be discharged.

4.   The applicant do all acts and things and sign all documents necessary to remove at her expense the Caveat lodged over the real property situated at and known as C Street, Suburb D on 2 June 2021.

5.   Costs of this day be reserved to the conclusion of the final hearing.

IT IS FURTHER ORDERED THAT:

6.   This matter be set down for final hearing before me on 23 August 2021 at 10.00 am estimated to take 3 days. AND IT IS NOTED that the parties will proceed on the basis of the mother’s application for the father to return the child X born … 2013 to Australia which application is opposed by the father who contends that the child ceased to be habitually resident in Australia and became habitually resident in the Russian Federation in January 2021. 

7. Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born … 2013 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation having regard to the father’s allegations of family violence, in particular, the “sexualisation” of the child and to Australia’s obligations under The Hague Convention of 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) and The Hague Convention of 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”).

8.   Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

9.   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.

10.  The parties file and serve any amended application by not later than 23 July 2021 and any response thereto by not later than 5 August 2021.

11.  Liberty is reserved to each party to apply on short notice in relation to readiness of this matter for trial.

IT IS DIRECTED:

12.  That the proceedings this day be transcribed and when transcribed be placed on the Court file.

13.  My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties and to the Co-Directors, Australian Central Authority, International Family Law Section, Attorney-General’s Department, Canberra.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nicoli & Jeryn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

REASONS FOR JUDGMENT
(Ex tempore revised from transcript)

BENNETT J

Introduction

1. This matter comes before me in the Judicial Duty List and it concerns X who is seven years old.  Last year the father obtained the court’s permission to take X to the Russian Federation and Turkmenistan for a holiday departing Australia on 26 October 2020 and returning to Australia on 19 November 2020. X travelled out of Australia with the father and her paternal grandmother (2^nd Respondent) on 26 October but the father failed to return X to Australia on 19 November 2020 and now says that he will not do so in the future.  The father says that X should continue to reside with him in the Russian Federation and that the courts in the Russian Federation are the appropriate courts to decide future parenting arrangements for X.  The mother seeks the return of X to Australia and maintains that Australia is the appropriate forum for determination of parenting arrangements for X.

2. The mother withdrew her application against the second respondent paternal grandmother. Nothing substantive has occurred today in relation to X save that I have requested the appointment of an Independent Children’s Lawyer in circumstances which fall outside the current guidelines for funding.  The matter is set down for hearing before me on 23 August (estimated to take 3 days).  These reasons reflect the discussion between the court and counsel and clarification of matters in anticipation of the hearing.

3. I also raise for consideration by the parents the possibility of mediation which I deal with in the last paragraphs of these reasons.

   Relevant international conventions 

4. The Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”) came into force in Australia on 1 January 1987.[1]  The 1980 Convention, inter alia, provides a process through which a parent can seek, through Central Authorities in contracting states, to have a wrongfully removed or wrongfully retained child returned to their home country. The 1980 Convention entered into force for the Russian Federation on 1 October 2011, but not as between Australia and the Russian Federation because Australia has not accepted the Russian Federation’s accession[2]. The 1980 Convention entered into force between Australia and Turkmenistan on 1 November 1998.[3] For the purpose of the 1980 Convention, a child is a person up to the age of 16 years.

   [1] The 1980 Convention is incorporated into Australian law by Part XIIIAA Division 2 of the Family Law Act 1975 and the Family Law Regulations 1984 and the Family Law (Child Abduction Convention) Regulations 1986

   [2]33bba6da-cb14-4c0e-bdc0-826c56051633.pdf (hcch.net)

   [3]HCCH | Acceptances of accessions

5. The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children came into force in Australia on 1 August 2003[4] (“the 1996 Convention”). The 1996 Convention is not in force between Australia and Turkmenistan. It entered into force between the Russian Federation and Australia on 1 June 2013[5]. The 1996 Convention, inter alia, provides for international cooperation between convention countries in relation to children. As between contracting states, like Australia and the Russian Federation, the 1996 Convention:

   ·     provides for the recognition and enforcement of parenting orders (called measures for protection) made in one convention country in other convention countries,

   ·     determines which country can make parenting orders (take measures to protect a child); and

   ·     determines which laws should be applied when making parenting orders about (taking measures to protect) a child.

   [4] The 1996 Convention is incorporated into Australian law by Part XIIIAA Division 4 of the Family Law Act 1975 and the Family Law (Child Protection Convention) Regulations 2003.

   [5] The Russian Federation made reservations and declarations in relation to Articles 34, 54, 55 and 60 of the 1996 Convention, none of which are relevant to this proceeding.

6. For the purpose of the 1996 Convention, a child is a person up to the age of 18 years.

   Hearing

7. This matter proceeded before me as a fully attended hearing save that the father and the maternal grandmother participated through the Courts’ MSTeams platform from the Russian Federation. We commenced the hearing at 2:00 p.m. (Melbourne time) which was 7:00 a.m. in the location of the father and paternal grandmother.

8. Mr Mellas of counsel appeared for the mother who attended court. Mr Kanarev, of counsel, appeared for the father. Mr Hutchings, of counsel, appeared for the paternal grandmother.  

   Applications

9. Returnable today is the mother’s application in a case filed on 28 June 2021. Relevantly she seeks that the habitual residence of X be recognised as the Commonwealth of Australia and there be an order declaring that Australia is the appropriate forum for determination of all parenting matters relating to the care and welfare of X.  There were other proceedings between the mother and the paternal grandmother but it has been agreed that those proceedings will cease and the paternal grandmother will no longer be joined as a second respondent.

10. The respondent father, who is currently in the Russian Federation, filed a response on 5 July 2021 in which he seeks, relevantly, that there be a declaration of the habitual residence of X is the Russian Federation and a declaration that the courts of the Russian Federation have jurisdiction to decide all matters relating to the care, welfare and development of X.  He seeks a dismissal of the mother’s application filed on 28 June 2021.

11. Habitual residence is the connecting factor for both the 1980 Convention and 1996 Convention. Put simply, under the 1996 Convention the courts of the state in which the child is habitually resident has primary jurisdiction to make parenting orders (take measures) in relation to the child. Each parent seeks a declaration that X is habitually resident in the jurisdiction in which they reside. The father alleges that her place of habitual residence changed to the Russian Federation in January 2021 contemporaneously with X making “disclosures” of sexualised behaviour in the mother’s care. The mother maintains that X remains habitually resident in Australia.

12. By virtue of the 1980 Convention being in force between Australia and Turkmenistan, the mother can apply under reg. 17(1)(b)[6] of the Family Law (Child Abduction Convention) Regulations 1986 for a declaration that the father’s retention of X in Turkmenistan on 14 November 2020 was wrongful within the meaning of Article 3 of the 1980 Convention. That determination will necessarily involve a finding by this court of the state in which X was habitually resident when she was retained by the father (on 14 November 2020).

    [6] Reg.17 of the Family Law (Child Abduction Convention) Regulations 1986 gives expression to Article 15 of the 1980 Convention.

13. In order to obtain a finding from this Court about where X is habitually resident, the mother and the father agreed that at the defended hearing on 23 August 2021 at 10.00 am they will proceed on the basis of the mother’s application for the father to return the child X born … 2013 to Australia which application is opposed by the father who contends that the child ceased to be habitually resident in Australia and became habitually resident in the Russian Federation in January 2021. 

    Relevant history

14. By way of history, the mother is 28 years old and a national of Country F and a citizen of Australia.  She is employed in Australia.  The father is 40 years old.  He is a Russian national and a citizen of Australia.  Most recently, the father was enrolled as a student in Australia and also employed.  He was in receipt of a government pension as a carer for the paternal grandmother. 

15. The mother and the father married in 2013 and separated in February 2015.  X is the only child of their relationship and the only child of either of them.  The mother and the father lived for the entirety of their relationship in Australia.  X was taken to Country G for a holiday in 2018 by the mother who is of Country G heritage.  X was taken for one month in 2019 to Russia and Turkmenistan by the father with the mother’s consent, and then, as I will shortly describe, was taken out of Australia on 26 October and has not returned. 

16. After separation, proceedings between the parties were instituted in this court on 2 March 2018. A final order was made on 26 March 2018, by consent, providing that the mother and the father have equal shared parental responsibility for X and that each parent would be responsible for day to day decisions concerning the care of X when X was living with them or spending time with them and that X reside with the parents on an equal basis on specified days.  I am informed that eventually the parties changed the specific days to be equal shared care on a week about basis. 

17. In October 2020, the father wanted to travel with X and the paternal grandmother to the Russian Federation.  The mother initially agreed to the holiday but then withdrew her consent due, she deposed, to her concern about X’s exposure to the COVID-19 pandemic. In any event, on 22 October 2020 the court granted the father’s application over the mother’s opposition and the father was entitled to take X out of the Commonwealth of Australia for the purpose of a holiday, “returning to the Commonwealth of Australia on or about 19 November 2020”. 

18. X left Australia in the company of her father and paternal grandmother on or about 26 October 2020.  She did not return on 19 November 2020.  The father decided she should remain in Russia, the child having made certain “disclosures of sexualisation” by the mother and the mother’s partner.  The return tickets on 19 November 2020 were cancelled.  Subsequently, in April 2021 and May 2021, there were other return tickets purchased by the father for flights back to Australia, on Emirates and Qatar, but the father and child did not use those tickets. 

19. The father has no proposal to return X to Australia.  He alleges that the child is reluctant to return to the care of the mother in Australia. Apparently, there is a psychologist’s report obtained in Russia from a Russian psychologist saying that the child does not want to return to Australia. Counsel for the father also referred to a report dated 20 March 2018, obtained in Australia, in which it is observed that the child (then four years old) was reluctant to be in the care of the mother.  However, as is apparent from the above history, six days later he consented to orders that he have shared care of X with the mother in Australia on an ongoing basis.

    Discussion

20. I am informed that there are proceedings initiated by the father in the Russian Federation which are returnable on 6 August 2021 in H City District Court seeking that the child reside in the Russian Federation.

21. The mother seeks an order from this court for the return of X to Australia and that the order be rendered enforceable in the Russian Federation, pursuant to Article 26 of the 1996 Convention, as if it were an order made in the Russian Federation.  Put simply, relevantly for this proceeding, recognition and enforceability of an order made in this court can be refused in the Russian Federation:

    (a)If the order (measure) was taken without jurisdiction, that is, if X is not habitually resident in Australia (Article 26(3) & Article 23(a));

    (b)If the order (measure) is made, except a case of urgency, by this court without X having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested state (Article 26(3) & Article 23(b))

    (c)On the request of any person, in this case the father, claiming that the order (measure) his or her parental responsibility, if such order (measure) was taken, except in the case of urgency without such person having been given an opportunity to be heard. 

22. In this case, the father shares parental responsibility with the mother pursuant to orders of this court.  He is represented before me today, and he will be represented before me on 23 August 2021. 

23. Insofar as Article 23(2)(b) of the 1996 Convention requires the child to be provided an opportunity to be heard, I am making an order that the child’s interest be independently represented in these proceedings.

24. The role of an Independent Children’s Lawyer 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 they believe to be the best interests of the children.[7] They are not a legal representative retained by the children and are not bound by any instructions from the children.[8] The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the children are 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 duty to be impartial does not prevent the Independent Children’s Lawyer from supporting one parent’s position over the others parent’s position if they consider that the preferred position is in the children’s best interest. The Independent Children’s Lawyer is under a specific duty to take steps to minimise for the child the trauma associated with proceedings[9] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[10]

    [7] s 68LA(2) Family Law Act 1975 (Cth).

    [8] s 68LA(4) Family Law Act 1975 (Cth).

    [9] s 68LA(5)(d) Family Law Act 1975 (Cth).

    [10] s 68LA(5)(e) Family Law Act 1975 (Cth).

25. A request will be made by this court to Victoria Legal Aid for it to designate a lawyer who is skilled and experience in international child law to be appointed to represent X’s interests. The Independent Children’s Lawyer, if appointed, will participate in the hearing on 23 August 2021 and represent X’s interests in the context of these private international law proceedings. I understand that this request will fall outside the funding guidelines of Victoria Legal Aid which only has enough funds to appoint Independent Children’s Lawyers in cases involving domestic violence. I will direct that these reasons be sent to the Australian Central Authority for both conventions, International Family Law Section, Attorney-General’s Department, Canberra because the Attorney-General’s Department allocates funds to Victoria Legal Aid.

26. The father concedes that the mother hasn’t been provided with copy documentation for his proceedings which are returnable in H City on 6 August 2021. His lawyer said that will be remedied. It is not sufficient that the mother merely be put on notice, in summary form, of what orders the father seeks from the court in H City.

1. The Family Court of Australia is the superior court in Australia for family law. Primary jurisdiction, as provided in Article 5 of the 1996 Convention, is vested in the courts and authorities of the contracting state in which the child is habitually resident. The father alleges that X has lost habitual residence in Australia (and presumably acquired habitual residence in the Russian Federation – but I did not ask). This court will consider whether the father’s assertion is correct at hearing on 23 August 2021 after which a decision will be handed down.  Accordingly, and most respectfully, this court requests that the court in H City which is seized of the father’s application for orders about X, delay any determination of habitual residence or parenting arrangements about X until after a determination by the Family Court of Australia of X’s habitual residence.

2. The Order made on 22 October 2021 provided as follows:

   That the [father] be permitted to remove the child from the Commonwealth of Australia for the purposes of a family holiday to Russia, departing Monday 26 October 2020 and returning to the Commonwealth of Australia on or about 19 November 2020 (“the holiday”), and this order is conditional upon the father providing to the mother’s solicitors by no later than 5 pm on Friday 23 October 2020, documentation from the proposed airline/s that satisfied order 6 (b) of the final parenting orders dated 26 March 2018.

3. Paragraph 6(b) of the final orders made 26 March 2018 provided that:

   The mother and the father shall each be permitted to travel interstate and overseas with X from time to time pursuant to these orders provided that the travelling party has provided details including itinerary, confirmation or paid for return flight details (if any), a telephone contact number and of the accommodation where X will be staying during the period of travel.

4. The fact that the father has retained X in the Russian Federation without the mother’s consent and contrary to the Order made on 22 October 2021 that he return X to Australia by 19 November 2020 is relevant to the issue of habitual residence. In particular, the circumstances in which habitual residence can change to the state in which a child is present (the Russian Federation) where the child is being wrongfully retained in that state. Chapter II of the 1996 Convention contains the Articles 5 and 7 which provide:

   Article 5

   (1)  The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property.

   (2)  Subject to Article 7, in case of a change of the child's habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction.

   […]

   Article 7

   (1)  In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and

   a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
   b) the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.

   (2)  The removal or the retention of a child is to be considered wrongful where -

   a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
   b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

   The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

   (3)  So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.

5. In this case, there does not appear to be any basis for the father to press for the court in H City to take urgent measures under Article 11. There is no risk to the father’s de facto custody or possession of the child.  COVID-19 pandemic restrictions in force in Australia would prevent the mother leaving Australia even if she wanted to.  It is my respectful opinion that the father does not appear to be prejudiced by the court in H City deferring the father’s application until after the Family Court of Australia determines the proceedings which are set down for hearing on 23 August 2021 in which the mother and the father are both participating and are legally represented.

6. For ease of reference, I will request that these reasons be translated into Russian and sent through the Australian Central Authority to the Central Authority in the Russian Federation with the hope that these reasons may be read by the court in H City seized of the father’s application.

   Mediation

7. The parents may consider attending mediation conducted by mediators who specialise in international children’s cases such as J Services based in the United Kingdom. Mediation would not be directed to resolving the dispute about habitual residence. It would be directed to the options for the parents after legal proceedings are concluded. There are safe and secure ways that children can live between two countries. This case contains interesting legal arguments but, at the end of the day, the parents should be most concerned about X. They should aspire to a solution that enables both parents to be involved in her life, not necessarily on an equal basis but on a meaningful basis. Failing that, irrespective of which parent wins the legal proceedings, the outcome will be very bleak for X and, as the social science research tells us, the emotional impact of the parents’ actions will be negative and life-long.

8. I will convene a mention of the matter to discuss mediation as soon the court is notified of whether, or not, an Independent Children’s Lawyer will be appointed.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       16 July 2021