Nicoli & Jeryn
[2022] FedCFamC1F 42
•4 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nicoli & Jeryn [2022] FedCFamC1F 42
File number(s): MLC 11417 of 2020 Judgment of: BENNETT J Date of judgment: 4 February 2022 Catchwords: FAMILY LAW – ABDUCTION – where father obtained permission to take child on a holiday to Russia – where child wrongfully retained in Russia – where courts in Russia ordered that child be returned to Australia pursuant to the 1980 Hague Convention – where taking parent has appealed return order and appeal is yet to be heard in Russia.
FAMILY LAW – ABDUCTION – where father alleges that habitual residence of child changed when child made disclosures to him of inappropriate sexual conduct in mother’s household – where left behind parent (mother) is in long term same sex relationship
FAMILY LAW – JURISDICTION – where Australia retains primary jurisdiction pursuant to 1996 Child Protection Convention – where wrongful retention does not alter Australia’s primary jurisdiction.
FAMILY LAW – ENFORCEMENT – where original parenting order made in Australia, by consent, in 2018 is to be recognised by operation of law in the Russian Federation and can be declared to be enforceable or registered for enforcement (as the case may be) in the Russian Federation.
Legislation: Family Law Act 1975 (Cth)
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
Number of paragraphs: 97 Date of hearing: 25 October 2021 Place: Melbourne (heard via MS Teams) Counsel for the Applicant: Ms Burt Solicitor for the Applicant: Forte Family Lawyers Solicitor for the Respondent: KR Lawyers Counsel for the Independent Children’s Lawyer: Ms Kildea Solicitor for the Independent Children’s Lawyer: V M Family Lawyers ORDERS
MLC 11417 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NICOLI
Applicant
AND: MR JERYN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
25 OCTOBER 2021
THE COURT ORDERS THAT:
1.That the mother’s application in a proceeding filed 22 October 2021 and the father’s response thereto proceed before me today on submissions.
2.This matter be adjourned to 1 December 2021 at 4:30pm.
3.That Order 6 of the Orders of 3 September 2021 be varied to require that the Father forthwith return or cause to be returned to the Commonwealth of Australia the child, X born in 2013 by not later than 72 hours after the determination by the H City Court of the father’s appeal against the order made by the K Town District Court on 3 September 2021 for the child X to be returned to Australia (“the appeal”), NOTING THAT X is an Australian citizen and that the purpose of her departure from the Russian Federation and travel to Australia is to comply with the orders of this Honourable Court, for her immediate return to the Commonwealth of Australia.
4.For the purpose of X’s travel pursuant to Order 6 of the Orders of 3 September 2021, the Father do all such acts and things and sign all documents, at his expense, as required to ensure X’s compliance with travel restrictions imposed by the Commonwealth of Australia together with all countries through which X will transit during her travel to Australia and/or the airline carrier, including but not limited to:
4.1 Undertaking prescribed COVID-19 tests within specified time frames prior to departure/arrival in a country; and
4.2 Completing/producing all prescribed documents and declarations required to enter and/or transit through a country;
4.3 Travelling with X’s Russian passport, expired Australian passport and birth certificate; and
4.4 Travelling with a copy of these orders, together with the order made in this Honourable Court on 3 September 2021.
5.The father inform the mother promptly upon determination of the appeal of the child’s flight details back to Australia in his care or, alternatively, that he will not accompany the child back to Australia.
6.If the father fails or neglects to comply with paragraph 3 of this Order, the mother be entitled to take possession of and assume primary care of the child in Russia for the purpose of returning the child to Australia and, if she does so, the father be and is hereby entitled to be a passenger on the same flight as the mother and the child at his own expense and subject to him obtaining a ticket to be a passenger on that flight.
7.That the mother advise the father as soon as possible following the father’s notification pursuant to paragraph 5 of this Order (that he will not accompany the child back to Australia) of the flight details of any flights booked by her for the child’s passage back to Australia.
8.If the father returns to Australia with the child, the father be and is hereby entitled to have the child reside with him and he be responsible for the primary care of the child until this court otherwise orders and, for that purpose, the mother hand the child X over to the father not later than when the child X has passed through customs in Australia and entered public space.
9.IT IS REQUESTED that the Commonwealth Department of Home Affairs, including Australian Border Force, issue an exemption permitting X to enter Australia if travelling on her Russian passport (with her expired Australian passport).
10.That Australian Border Force be served with a copy of this Order by the mother together with the Order made in this Honourable Court on 3 September 2021.
11.The Mother be at liberty to make a copy of these orders available to such persons, agencies and organisations, in Australia, the Russian Federation or such other jurisdiction as the child is or may be taken, as is reasonably required to assist in the implementation of this Order and the Order of 3 September 2021, including but not limited to any airline on which the child X travels or is booked or seeks to travel.
12.That the Mother have liberty to apply at short notice, for orders which will facilitate:
12.1Her giving sworn evidence via videolink for the purposes of the proceedings in the K Town District Court of H City and/or the H City Court; and
12.2Her travel to the Russian Federation to collect X and return with her to the Commonwealth of Australia.
13.The father at all times maintain an address for service within Australia including service by electronic means.
14.That within 7 days of the date of this Order or within 24 hours of the child X being administered a COVID-19 vaccine after the date of these orders the Respondent Father notify the Applicant Mother, in writing of the details of the child X’s COVID vaccination status, including the vaccine administered to her and the date of vaccination.
15.That the Father provide the Mother with a copy of X’s vaccination certificate (if any) or the equivalent record of vaccination within 24 hours of the certificate or record being issued.
16.The Mother and the Father each do all such acts and things and sign all documents as required to engage Ms L, psychologist, to assist with them with the implementation of video communications between X and the mother, pursuant to order 3 of the orders made in this Honourable Court on 3 September 2021, and the parties comply with all reasonable recommendations of Ms L including in relation to X’s involvement in such counselling.
17.Each party be responsible for payment of Ms L’s fees in relation to their individual attendances on her (with or without X) and the parties will share equally in payment of fees for any joint appointments and/or appointments attended by X on Ms L.
AND IT IS FURTHER ORDERED BY THE COURT:
18.That the Father be restrained from arranging or facilitating or allowing X’s attendance on any psychologist, counsellor or other mental health practitioner, for any reason (including but not limited to undergoing any form of assessment, therapeutic counselling) without the prior written consent of the Applicant Mother, the Independent Children’s Lawyer or an Order of this Honourable Court.
19.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
AND IT IS FURTHER ORDERED BY CONSENT:
20.The question of the costs of each parent of and incidental to this hearing be reserved.
21.That the Mother be granted permission to rely on the expert evidence provided by Ms AC, Legal Practitioner, pursuant to Rule 7.11 of the FCFCOA (Family Law Rules) 2021.
22.The parties have liberty to apply to bring the matter on urgently and out of hours in the event of any need of the court in Russia to communicate with the court in Australia and my Chambers notify the After Hours Registrar of my after-hours contact details in my capacity as a member of the International Hague Network of Judges designated for Australia.
23.The Court provide the parties with a translation of this Order into the Russian language as soon as practicable.
AND THE COURT NOTES that the mother will not attempt to remove the child from Russia or the father’s primary care pending the outcome or the determination of the father’s aforementioned appeal.
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 the pseudonym Nicoli & Jeryn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant mother seeks the return of the child, X (7 years old) to Australia through recognition and enforcement of Australian parenting orders by the courts of competent jurisdiction in the Russian Federation under Chapter IV of 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”).
The mother is Ms Nicoli (“mother” or “applicant”). The application is against the father, Mr Jeryn (“father” or “respondent”). The application is opposed by the father who contends that X became habitually resident in the Russian Federation in January 2021 and that X’s parenting arrangements should, therefore, be determined by the courts of the Russian Federation. The father’s argument, that he unilaterally altered X’s habitual residence whilst retaining her in the Russian Federation is contrary to the law of habitual residence according to Australian jurisprudence. It is also contrary to Article 7 of the 1996 Convention.
These reasons explain why I am satisfied that the final Order made on 26 March 2018 and this Order meet the requirements for enforcement in the Russian Federation pursuant to Article 26 of the 1996 Convention. These reasons may be read in conjunction with my earlier decision on 13 July 2021, reported as [2021] FamCA 517.
I was first told that the court hearing in the Russian Federation was on or about 3 September 2021 and that it was ordered that the father return X to Australia. That decision was appealed by the father on 13 September 2022 and I anticipate that these reasons may be read by the appellate court in the Russian Federation at the adjourned hearing on 9 February 2022.
REPRESENTATION OF THE CHILD
On 13 July 2021 I requested that an Independent Children’s Lawyer be appointed to represent X’s interests having regard to the father’s allegations of family violence and his allegation of “sexualisation” of the child within the mother’s household. Amongst other things, the father is aggrieved that the mother is in a same sex relationship, albeit an apparently stable relationship of long standing. In due course, a solicitor Mark Finn was appointed as Independent Children’s Lawyer. His role is to form an independent view, based on available evidence, of what is in X’s best interests and then act in these proceedings in what he believes to be the best interests of the child. He is not a legal representative retained by X and he is not bound by any instructions from X. The role of the Independent Children’s Lawyer is to deal impartially with the parents, to ensure that any view expressed by the child 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 child 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 child to do so. The Independent Children’s Lawyer did not meet or speak with X. Ordinarily he would be expected to do so but X has not been in Australia since his appointment. Further, the evidence indicated to the Independent Children’s Lawyer that a conversation with him may put X in a position of conflict. As the title suggests, the Independent Children’s Lawyer is a lawyer. He is not a psychologist.
APPLICATIONS
The mother filed an initiating application on 23 November 2020 and an amended application on 23 August 2021. The father filed a response on 29 December 2020 and another application on 5 July 2021. Time does not permit me to set out all orders sought. It is sufficient to record that:
·The mother seeks orders compelling the father to return X to Australia and, for that purpose, I declare that X was habitually resident in Australia at the relevant time. As an interim safeguard, the mother seeks that the father not be permitted to remove X from Russia to another country other than Australia or to en route to Australia. She seeks that the father not be permitted to take proceedings about X in any court in the Russian Federation including the proceedings initiated by the father in the AP City Court of AB Region, Russian Federation (case ID: 47Rs…), save to discontinue those proceedings. The mother seeks that, until X returns to Australia, there be video conferencing communication (or telephone if video conferencing is not available) between herself and X each Tuesday, Thursday and Saturday at 12noon AQ City time (being 8.00pm AEDT). The mother confirms that she will not make any complaint or initiate any proceedings against the father for his retention of X in the Russian Federation after 24 November 2020. The mother agrees to return to the equal shared care arrangements that the parents had prior to the father taking X to Russia in October 2020.
·The father seeks a declaration that the habitual residence of the child X born in 2013 (“the child”) is the Russian Federation and that the courts of the Russian Federation are the appropriate courts to make parenting orders about X and to decide all matters relating to her care, welfare and development.
HEARING
The hearing before me proceeded over three days on the Court’s Microsoft Teams platform. The mother and the father relied on a great deal of evidence and were each cross examined by the advocate for the other parent and the advocate for the Independent Children’s Lawyer. A social scientist hired by the father, Ms M also gave evidence and was extensively cross examined. The Court sat extended hours on each day to accommodate the father and Ms M giving evidence and being cross examined at a reasonable hour in the Russian Federation. We commenced at 2:00 pm Melbourne/Sydney time which was 7:00 am for the father. We took only small breaks.
EVIDENCE
The father and the mother gave evidence and both were extensively cross examined before me. The father’s command of English language is perfect. There was much more evidence than I needed but it appeared that each parent obtained a benefit from being heard and knowing that I was aware of their history. Each parent went through the allegations from the time of separation (February 2015) including the evidence which was before the court when the current order for shared care was made by consent, on 26 March 2018. Each party referred me to affidavits filed in the earlier proceedings. This included reference by the father to his affidavit filed 23 March 2018 in the earlier proceeding MLC2251/2018. However, this is a hearing about jurisdiction and enforcement of orders. It is not appropriate for me to make findings on all facts about which the parents disagree. I will make findings about habitual residence and matters relevant to recognition and enforcement of the Order made on 26 March 2018 in the Russian Federation pursuant to the 1996 Convention.
Essentially, the father does not argue that the mother ever agreed that X could remain in the Russian Federation.
Otherwise, it is important to note that the mother, in her evidence, says that she recognises that X will need the stability and security of staying in the father’s care upon her return to Melbourne. There may be some period of quarantine. During any quarantine, the father and X will be kept together. The mother’s evidence is that, when released, X can stay with the father until the matter has been to court. The mother testified on her oath that she will not initiate any criminal complaint against the father or seek that he be punished for retaining X in Russia after 24 November 2021.
The mother testified that, if X returned to Australia, she wants to, and will, resume equal shared care of X with the father. The father made no commitment about with whom X would reside. It is open to him to make whatever application he wants to make.
I read the report of the counsellor hired by the father to give expert evidence in the Russian Federation, Ms AR. I found her evidence to be of very limited use because:-
(1) Ms M only interviewed X for 20 minutes.
(2) Ms M had “only brief information about the parents’ relationship.
(3) Ms M was not invited or allowed to speak with the mother inspite of it being standard procedure to assess both parents. Ms M did not try to telephone the mother and the mother did not know about the assessment.
(4) Ms M could not observe X with the mother.
(5) The father did not tell Ms M and Ms M did not know about the following relevant information: the father’s criminal history in Australia for drug use being cannabis (2017) and methamphetamines (2020) etc. or that an order had been made for the father to return X to Australia.
(6) Ms M gave evidence that, because this was a private report and not for the court, she was required by the agency to provide what the father requested. That was advice about X speaking by telephone to the mother
SOME FAMILY HISTORY
I will provide an abridged history merely to give context to this decision. I do not understand this history to be controversial.
The parents separated in December 2015. X was 2 years old. The mother had commenced a same sex relationship with Ms N. That relationship still persists. The father has a fiancé but I do not know when that relationship commenced or whether it is ongoing.
The father alleges the parents made an attempt at reconciliation sometime in December 2016 but separated on a filed basis in January 2017.
On 9 May 2017 the mother’s partner, Ms N, posted a photo to her Instagram account of her and X in the bathtub naked. I have seen the photograph. It was not a good idea to post the photograph. It is not decorous but it is also not a sexual or lewd or exploitative or distasteful image. It is no more revealing than what can be seen on television in Australia and, as I have said, it is not sexual.
On 16 November 2017 the father claims X disclosed to him an incident in which the maternal grandparents left her strapped into her car seat alone in the carpark of a shopping centre, leaving X feeling anxious and frightened.
On 22 November 2017 the father plead guilty and provided an undertaking with Conditions to the Suburb AD Magistrates Court in relation to drug charges, including possession of cannabis, going equipped to steal and possession of a prohibited weapon without exemption. The proceedings were adjourned for one year. On 22 November 2018 the father agreed to go to counselling and no convention was recorded.
On 29 November 2017 the father claims X was referred to a psychologist due to a change in her behaviour and anxiety related to the shopping centre car park incident. X received 13 counselling sessions with Dr AF from AG Health Centre.
On 2 March 2018 the mother commenced proceedings for parenting orders about X in the Federal Circuit Court of Australia because the father had not returned X to the mother when the mother expected him to do so. The father made a cross application. The father claims that on 19 March 2018 a complaint was made to the police about the mother and her partner’s sexually inappropriate behaviour towards X. The father claims that the police said they would postpone the investigation until this court’s decision about parenting orders. On 23 March 2018 the father filed a response to the mother’s Initiating Application in the Federal Court proceedings. The father’s affidavit material before the court stated:
“I do not intend on relocating to Russia or any other foreign country as I consider Australia to be my home”.
On the first hearing date, 26 March 2018, the mother and father agreed to final parenting orders and asked the court to make orders in those terms and, thereby, conclude the proceedings. Both parents were legally represented by solicitors and advocates. Each parent had filed evidence but did not seek to test the evidence of the other in cross examination. The Orders were for:
·Equal shared parental responsibility;
·Equal time arrangement, on a 4-weekly cycle and half of school holidays;
·That the parents do all acts and things necessary to review X’s passport; and
·Interstate and overseas travel.
At the hearing before me, the father gave evidence that he thought he had no choice but to agree to shared care of X. However, if the parents had not settled the litigation on the first day at court, the judge could only have made temporary parenting orders and allocated a final hearing on a future date, probably in a year or so. Before any final hearing there would have been a Family Report from a Court Child Expert who is employed by the Court. Court Child Experts are either experienced social workers or a psychologist. The Family Report is free of cost to the parties. Alternatively, the parents could have paid for a report to be prepared by an appropriately qualified person of their choosing. The Order of 26 March 2018 brought the proceedings to an end.
The Order made on 26 March 2018 has not been discharged or varied and is still in full force and effect.
In 2019 X commenced preparatory grade at P School. It was around this time that the parties varied the parenting arrangements by agreement to move to a week-about equal time arrangement.
The father and the paternal grandmother Ms B Jeryn took X to Country AH for a holiday from 25 May to 19 June 2019 without any objection from the mother.
On 27 January 2020 the father notified the mother by SMS of his intention to travel to Russia with X between mid-May 2020 and mid-June 2020 to celebrate his uncles’ 80th birthday. The mother had no objection and an invitation to enter the Russian Federation from 1 May to 29 July 2020 was issued to the father and X. However, the father decided not to travel.
The COVID-19 pandemic hit Australia in March 2020. As part of Australia’s response to the pandemic, there was a ban on travel in and out of Australia.
Unbeknownst to the mother, and without her consent, the father applied for an obtained a Russian Federation passport for X which was issued on 2 April 2020. Obtaining a passport without the consent of the mother, with whom the father shared parental responsibility, is contrary to the mother’s parental responsibility. However, neither the court nor the mother knew about the Russian Federation passport at this stage. The mother thought that X was travelling on her own Australian passport and as an Australian citizen. Relevantly, the mother has undertaken to this court that she will not seek that the father be charged or punished with any offences for obtaining a Russian Federation passport without her consent.
On 22 June 2020 the father was convicted of criminal offences of:
·possess methylamphetamine and fined $1000 with $127 costs – all drugs to be forfeited and destroyed.
·drive in a manner dangerous and failing drug blood test within 3 hours of driving and fined $1000 with $127 costs. He was disqualified from driving for 6 months;
On 25 August 2020, the Australian government granted a travel exemption which allowed the father and X to leave Australia. On 25 August 2020, the father provided the mother with a flight itinerary from T Airlines for the father and X to travel to Russia from 26 October 2020 to 24 November 2020. The mother initially had no objection to the father’s plans to travel but became concerned about X and the father being stranded overseas and unable to return because of ever changing restrictions imposed by various governments or the pandemic. Importantly, the father refused to show the mother the travel exemption from the Australian government or his application for the exemption. The father’s application contradicted his evidence to this court that X would be returned to Australia. In the next month, the mother looked at the search engine at the T Airline flight details provided by the father and observed reservations for himself and X to be altered. The father did not advise the mother of any of these changes. The mother also became worried that, if X left Australia, she might not be allowed back into Australia.
The mother made a Freedom of Information Request[1] and received documentary evidence from the Department of Home Affairs which showed that the father had informed the Department that he and X wished to stay in Russia for at least six months and possibly relocate to Russia on a permanent basis.
[1] The Freedom of Information Act 1982 gives a person the right to request access to government-held information including information about that person or about government policies or decisions.
On 20 October 2020 the mother filed an application in this court (then called the Family Court of Australia) seeking to prevent the father from taking X to Russia. The mother filed affidavits of evidence including evidence from X’s doctor, Dr AJ, recommending that X not travel at this unusually difficult and uncertain time and that:
“As stated above, there is a very real risk of emotional and physical harm to this child from prolonged separation for her mother, prolonged hotel quarantine and exposure to a county with COVID disease pandemic is currently rampant.”
On 21 October 2020 the mother amended her application to seek that X not be permitted to leave Australia. The mother’s application was set down for hearing on 22 October 2020.
On 22 October 2020, the judicial officer heard evidence from the father and accepted that the father would return X to Australia by 24 November 2020. The judicial officer was obliged to regard X’s best interests as the most important consideration but could, and did, also have regard to other considerations such as the father’s freedom of movement (to travel). The father was permitted to remove X from the Commonwealth of Australia for the purpose of a family holiday to Russia, departing 26 October 2020 and returning on or about 19 November 2020.
X left Australia in the company of her father and paternal grandmother on or about 26 October 2020. They arrived in the Russian Federation on 28 October 2020.
The father failed to return X to Australia on 19 November 2020. The father says that X made certain “disclosures of sexualisation” by the mother and the mother’s partner after she arrived in the Russian Federation.
On 8 November 2020 the father’s then girlfriend, Ms Q, cancelled the R Airline flights for return to Melbourne. The father claims that between 8 November 2020 and the end of November 2020 he, the grandmother and X were quarantined with suspected COVID-19 infections.
On 12 November the father withdrew instructions from his solicitors in Australia.
On the Mothers birthday in 2020 the father was non-responsive to the mother’s request to speak to X.
The father did not return with X on 19 November 2020.
In April 2021 and May 2021, the father purchased return tickets for himself and X back to Australia, on S Airline and T Airlines, but the father and child did not use those tickets.
On 23 November 2020 the mother filed an Initiating Application and supporting Affidavits in the Family Court seeking urgent orders for the immediate return of X to the Commonwealth of Australia.
On 27 November 2020 the father deleted his Facebook account “V Company”.
On 28 November 2020 the paternal grandmother’s Facebook account is deleted/suspended.
On 4 December 2020 Senior Registrar Hoult ordered that the father facilitate video or telephone communication between the mother and X twice weekly, and that the father provide full details of X’s whereabouts and proposals to return to Australia.
On 12 December 2020 the mother spoke to X by telephone for approximately 10 minutes. The mother claims this is the last direct contact she has had with X.
The father recorded X being distressed when attempting to facilitate her contact with the mother on 19 December 2020.
In late 2020 the mother send an IMO message to the father seeking to speak to X on her birthday and asking that the father read a message out to X. The mother alleges the father replied that X “was having a fun day and doesn’t want to talk to you…”
On 29 December 2020 the father filed his response. He sought that his mother, Ms B Jeryn, be removed as the second respondent in the proceedings. In respect of the mother the father sought orders that limit the frequency of contact between the child and the mother to weekly communication, remove the specified time request and/or broaden the type of communication to include recorded messages.
Sometime in January 2021 X commenced kindergarten in Russia. The father claims that in January 2021 and having concern for X’s anxiety associated with the mother he sought the intervention of a child psychologist.
The mother claims the father made an appointment for X to attend on 21 January 2021 upon Dr M, a child psychologist, for the purpose of a psychological assessment (1 hour). Mother did not know of or participate in assessment. The report of Ms M was issued on 15 February 2021. Ms M’s evidence is discussed above [12]. On the same day the father was registered as the owner of the property located at W Street, Y Town, Z District, AB Region.
On 26 February 2021 the father notified the mother that the 26 March 2021 flights had been cancelled and the he and X were now scheduled to depart Russia for Australia on 27 April 2021.
On 10 March 2021 the father provided the mother with medical certificates and pathology reports that when translated indicated both he and X tested positive for COVID-19.
On 1 April 2021 the father enrolled X in a school in the Russian Federation.
On 19 April 2021 the father notified the mother that he received medical advice to cancel the flights for Australia scheduled to depart on 27 April 2021 and re-attend upon a doctor on 26 April 2021.
On 23 April 2021 the father notified the mother along with providing her a copy of the flight itinerary that he had booked flights with T Airline arriving to Perth, Western Australia on 16 June 2021.
On 1 May 2021 the father informed the mother that X had been cleared to travel and provided a copy of a document in Russian which he described to be a medical certificate.
On 19 May 2021 the father was ordered to return the child to the mother, to provide specified documents to the mother, and to provide video of at least 2 minutes duration of the child to the mother every day.
On 25 May 2021 the father’s application in Russian Civil Courts was sent to the mother via international registered post addressed to the parents’ former address at AK Street, Suburb AL. The father well knew that this was not the mother’s address and that she had not lived there for many years.
On 3 June 2021 the father filed an affidavit in which he asserts that the Russian Federation is X’s place of habitual residence.
On 14 June 2021 updated affidavit material was filed by the father, in particular annexing an extract of the Statement of Claim filed in the Civil Courts in the Russian Federation along with an uncertified English Translation.
On 22 June 2021 the father provided his updated flight details to the mother via IMO with flights departing Russian Federation 31 August 2021 and arriving in Melbourne on 2 September 2021.
On 26 June 2021 the mother makes application to Australian Central Authority under the 1980 Hague Convention.
On 28 June 2021 an Application in a Case with a supporting affidavit was filed on behalf of the mother.
On 29 June 2021 the father’s current solicitors filed a Notice of Address for Service confirming that they act on behalf of the father.
On 29 June 2021 the father sent a message to the mother stating that X is well and happy and that he will be “honouring her wishes” by no longer recording videos of her to send to the mother.
On 4 July 2021 the father provided via IMO a flight itinerary for flights arriving in Australia on 5 September 2021. On 12 July 2021 the mother attempted to view the T Airlines booking online but found no record of the father’s booking.
On 26 July 2021 an Application was filed by AM Lawyers on behalf of the mother in the AN District Court of H City seeking the return of X to Australia pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”).
On 11 August 2021 X’s Australian passport expired.
THE LAW
The 1996 Convention entered into force between the Russian Federation and Australia on 1 June 2013[2]. The 1996 Convention, inter alia, provides for international cooperation between convention countries in relation to children. The 1996 Convention is incorporated into Australian law by the Family Law Act 1975 and the Family Law (Child Protection Convention) Regulations 2003.
[2] 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.
For the purpose of these proceedings, an order of this court about parental responsibility, residence, to spend time (access) and communicate and for the return of X to Australia, parental “measure of protection” under the 1996 Convention.
Article 7 of the 1996 Convention provides that:
(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.
Article 26 of the 1996 Convention provides for registration and enforcement in the other contracting state.
ONUS OF PROOF
Each parent bears the onus of proving the propositions for which they contend.
STANDARD OF PROOF
As required by section 140 of the Evidence Act 1995 (Cth), I will apply the balance of probabilities as the standard of proof.
FINDINGS OF FACT
A statement of fact is a finding of fact.
ISSUES TO BE DETERMINED
Habitual residence
I will deal first with the issue of habitual residence. Before me the father agrees that the mother never consented to nor agreed that he could retain X in the Russian Federation after 19 November 2020. Neither does the father contended that he or the mother did anything immediately prior to 19 November 2022 to alter X’s habitual residence in Australia. There is no question that at the time of the father’s retention of X in the Russian Federation, on 19 November 2020, X was habitually resident in Australia.
Enforceability of Australian orders in the Russian Federation
Pursuant to Article 23(1) of the 1996 Convention, an order made in one contracting state is recognised by operation of law in another contracting state unless one of the circumstances in Article 23(2) is made out.
Article 26(2) of the 1996 Convention provides that each Contracting State shall apply a “simple and rapid procedure” for declarations of enforceability or registration of measures (orders) from another Contracting State. Article 23(2) describe the circumstances in which recognition and enforcement of a measure (order) from another Contracting State may be refused. I will address each circumstance in turn.
Article 23(2)(a) - jurisdiction
I am satisfied that X was, and remained, habitually resident in Australia immediately prior to the father’s retention of her in the Russian Federation. The father argues that only the courts of the Russian Federation are competent to make orders about X. That is not so. According to Article 7, Australia has primary jurisdiction. Australia is the jurisdiction in which the parents and X lived at the time the father made allegations about the mother’s conduct. Australia is the jurisdiction in which the witnesses are located.
When the final parenting order was made on 26 March 2018, Australia had primary jurisdiction to take measures in relation to X pursuant to Article 5(1) of the 1996 Convention. By virtue of Articles 5(2) and 7 of the 1996 Convention, Australia still has primary jurisdiction to take measures (make orders) such as the Order I have made. This finding addresses Article 23(1).
Article 23(2)(b) – child’s opportunity to be heard
There is no fundamental principle or procedure that a child be heard in parenting proceedings. An Independent Children’s Lawyer can be requested by the court[3] of its own volition or on an application by a person if it appears to the court that a child’s interests ought to be separately represented. On 28 March 2018 no one sought the appointment of an Independent Children’s Lawyer. When the parents settled the proceedings on their first day in court and final orders were made there ceased to be any proceedings in which X’s interests could be represented. In these current proceedings an Independent Children’s Lawyer was appointed and was heard on the making of the Order set out at the commencement of these reasons. The Independent Children’s Lawyer is chosen and funded by Victoria Legal Aid which is a statutory organisation entirely independent of the court.
[3] Section 68L Family Law Act 1975.
Article 23(2)(c) – procedural fairness to a person whose parental responsibility might be infringed
X’s parents each had parental responsibility for X. Both parents were accorded procedural fairness when orders were made (measures taken) on 28 March 2018 and in the present proceedings.
Article 23(2)(d) – if recognition or enforcement is manifestly contrary to public policy of the Russian Federation taking into account the best interests of the child.
The father did not argue that enforcement of the shared parenting order is manifestly contrary to public policy of the Russian Federation taking into account the best interests of the child. Neither did any other party.
Article 23(2)(d) – where the measure (order) sought to be recognised or enforced is incompatible with a later measure (order) taken in the Contracting State of habitual residence (Australia)
There no incompatible order made in Australia.
Article 33 of the 1996 Convention is not relevant to this case so Article 23(2)(g) has no operation.
CONCLUSION
Before me the father did not mount a substantive case in relation to habitual residence having changed from Australia. There is no doubt that X was habitually resident in Australia immediately prior to the father wrongfully retaining her in the Russian Federation on 19 November 2020. The father does not allege that, since 19 November 2020, the mother has consented or acquiesced to a change in X’s habitual residence in Australia.
The mother initiated an application under the 1980 Convention for the return of X to Australia which was filed in the specialised Hague Court in the Russian Federation on 26 January 2021. The mother’s application was granted. By virtue of the father’s appeal filed 13 September 2021 the return application is still pending. Accordingly, pursuant to Article 7 of the 1996 Convention, Australia retains primary jurisdiction in relation to measures (orders) about X.
I did not receive any evidence from either party of any fact or circumstance which would indicate that the Australian orders ought not be enforced in the Russian Federation pursuant to Article 26 of the 1990 Convention.
INTERNATIONAL HAGUE NETWORK OF JUDGES
This matter would be made easier between our two jurisdictions if there could have been communication between myself and a judge in the Russian Federation who is designated to the International Hague Network of Judges.
Details of the International Hague Network of Judges are at HCCH | The International Hague Network of Judges.
The judges designated for Australia are:
·the Honourable Justice William Alstergren, Chief Justice of the Federal Circuit and Family Court of Australia[4];
·the Honourable Justice Jillian Williams of the Federal Circuit and Family Court of Australia (Division One); and
·myself, also a judge of the Federal Circuit and Family Court of Australia (Division One).
[4] as from 1 September 2021 the Family Court of Australia is known as the Federal Circuit and Family Court of Australia (Division One).
I have been a Hague network judge since 2008. Unfortunately, the Russian Federation has not yet designated a judge (or judges) to the International Hague Network of Judges.
Frequently more than one judge is designated for a contracting state. Frequently, one judge will be a senior judge who deals with matters, including Hague return matters, at appellate level and another judge will be of the court which deals with Hague return matters at first instance. In Australia[5], all Hague return matters under the 1980 Convention are dealt with exclusively by the Federal Circuit and Family Court of Australia (Division One). Chief Justice Alstergren is the head of jurisdiction for family law in Australia. Justice Williams and myself hear return cases under the 1980 Convention at first instance and appellate level. Chief Justice Alstergren is responsible for the designation of judges to the Hague Network.
[5] Except for Western Australia.
In my opinion the two most important features of the International Hague Network of Judges is that any judge so designated must be and remain a sitting judge who has experience in Hague matters and that, as a Hague network judge, no judge can be expected or asked to do anything which is contrary to his/her powers and responsibilities as exercised within their own state.
As Boris Pasterncak said “To live life through is not as simple as to cross a field.” Life is particularly difficult for children, like X, who are wrongfully retained across international borders. The child must align themselves with the parent who has possession of them and reject the left behind parent in order to survive. Social science evidence given in our courts is that the emotional damage to such children is immediate and life long.
In the interests of international comity and in order to secure the best outcomes for children whose families span international borders, I encourage the Russian Federation to designate judges to the International Hague Network of Judges. I respectfully request that the senior judges before whom this matter comes in the Russian Federation give consideration to requesting that the appropriate authorities of the Russian Federation make designations to the Hague Network.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 7 February 2022
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