& Papani

[2022] FedCFamC1F 919

Federal Circuit and Family Court of Australia

(DIVISION 1)

Department of Communities and Justice  & Papani [2022] FedCFamC1F 919  

File number(s):

MLC 3960 of 2022

Judgment of:

BENNETT J

Date of judgment:

26 April 2022 

Catchwords:

FAMILY LAW- CHILD ABDUCTION - where child in respect of whom a return application is made is a child who is subject to an order under a prescribed child welfare law – where applicant is replaced but consents to a continuation of the return application for the time being.  

Legislation:

Family Law Act 1975 (Cth) s 69ZK

Family Law (Child Abduction Convention) Regulations 1985 

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children on 19 October 1996

Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980

Division:

Division 1 First Instance

Number of paragraphs:

13

Date of hearing:

26 April 2022

Place:

Melbourne (via MS Teams)

Solicitor for the Applicant:

DCJ Legal

Solicitor for the Respondent:

Denning-Phillips Legal

Counsel for the DFFH:

Ms Buchannan appearing amicus curiae

Solicitor for the DFFH:

Department of Families Fairness and Housing, Legal Services Branch

Solicitor for the Independent Children’s Lawyer:

Ms Smith

ORDERS

MLC 3960 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

DEPARTMENT OF COMMUNITIES & JUSTICE

Applicant

AND:

MS PAPANI

Respondent

SECRETARY TO THE DEPARTMENT OF FAMILIES FAIRNESS AND HOUSING

Amicus-Curiae

INDEPENDENT CHILDREN'S LAWYER

order made by:	BENNETT J
DATE OF ORDER:	26 APRIL 2022

THE COURT ORDERS THAT:

1.The New South Wales Department of Communities and Justice be substituted for the Department of Families Fairness and Housing (Victoria) and henceforth be referred to as the applicant State Central Authority in this proceeding.

2.The application of the State Central Authority be adjourned to 30 May 2022 at 9.00 am (“the adjourned date”) for directions and the Order made on 19 April 2022 remain in full force and effect.

3.IT IS DIRECTED that pursuant to Regulation 26(1) of the Family Law (Child Abduction Convention) Regulations 1986 a preliminary report be prepared by a Child Court Expert in relation to the child X born 2011 (“the child”) which records the following:

(a)an explanation to the child of the nature of these Hague return proceedings and, in particular, that it is not a final decision about with whom the child will live or in which country the child will live;

(b)the child’s apparent emotional functioning and any acute distress or indicators that the child requires immediate expert assessment or mental health treatment;

(c)the child’s preparedness to engage in electronic communication with the requesting parties Ms B and Mr C including specific recommendations about how this may be achieved and whether the Child Court Expert would be prepared to facilitate the first session of electronic communication;

(d)what (if anything) would make the child’s return to New Zealand — if that is what is decided — easier for him;

(e)what (if anything) would make the child staying in Australia — if that is what is decided — easier for him.

4.Subject to further order of the Court, only the child be assessed by the Child Court Expert for this preliminary r26(1) report and the respondent mother and requesting parties not be interviewed for the purpose of this assessment.

5.The Child Court Expert provide his/her report to the Court in writing by not later than 10 May 2022.

6.IT IS REQUESTED that the Child Court Expert facilitate an introduction of the Independent Children's Lawyer to the child at a time considered appropriate by the Child Court Expert.

7.There be liberty to apply on short notice and for that purpose to contact my Chambers – copied to all other parties to the proceedings.

8.My reasons for decision this day be transcribed and when settled provided to the parties to the proceedings and to the Department of Families Fairness and Housing.

AND IT IS NOTED:

A.The mother is not opposed to the return of the child X but is concerned about what arrangements for his care are made in New Zealand.

B.That the Department of Families Fairness and Housing consents to a continuation of the proceedings up to and including the adjourned date.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex tempore

BENNETT J:

1. This Hague return application seeks that the child, X, who is 11 years old, return to New Zealand pursuant to regulation 14 of the Family Law (Child Abduction Convention) Regulations 1985 (“the Regulations”). The application is made at the request of Ms B and Mr C who are relatives of X. I will refer to them as a “requesting parties”.

2. It is alleged that X has resided in the primary care of the requesting parties for most of his life. The requesting parties were appointed as additional guardians of X by order of the court in New Zealand on 4 June 2015 when X was 4 years old. It is alleged that the respondent mother wrongfully retained X on 29 July 2021.

3. The application was dealt with by me on an ex parte basis last week and usual orders were made which secure X’s presence in Australia pending determination of the return application.  It subsequently came to the attention of the then applicant in the proceedings, the Secretary of the Department of Families, Fairness and Housing for Victoria, that X was not in the care of the respondent mother.  The respondent mother had left X in the care of a relative in Victoria whilst she went to New Zealand to see if she could work out some arrangement with the requesting parties which would obviate the need for the return application. I understand that the respondent mother tool X’s younger siblings to New Zealand with her. The younger siblings and an older brother (14y) are children of the respondent mother but not children who have lived with the requesting parties or in respect of whom they contend they have, or ever have had, rights of custody.

4. Most significantly, it has now come to light that X is subject to a Family Preservation Order by the Children’s Court of Victoria at Town D. In these circumstances, the Secretary of the Department of Families, Fairness and Housing for Victoria cannot continue as applicant in the return application. Arrangements have been made for the Australian Central Authority to delegate responsibility for this matter to the equivalent authority in New South Wales.

5. The family Preservation Order is an order made pursuant to a child welfare law within the meaning of s 69ZK of the Family Law Act 1975 (Cth) (“the Act”), to which I will come in a moment.

6. Today, Ms Keyzer, solicitor of the State Central Authority for New South Wales appears as applicant.  Mr Phillips, solicitor of Town D, appears on behalf of the respondent mother.  Ms Caroline Smith appears in her capacity as Independent Children's Lawyer.  Ms Buchannan of counsel appears on behalf of the Department of Families, Fairness and Housing in the capacity of amicus curiae. 

7. The respondent mother has indicated that she is not necessarily opposed to the return of X to New Zealand but wants to appreciate what arrangements will be made for X.  Regulation 15(1)(b) and (c) provide that, if the court is satisfied that it is desirable to do so, the court may in respect of a return application, make such order as it considers is appropriate to give effect to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the 1980 Convention”) and include in such an order a condition that the court considers to be appropriate to give effect to the Convention.

8. It has been agreed that X will be seen by a court child expert tomorrow.  That will be for the purpose of a preliminary report under reg 26.  The scope of the preliminary report is apparent from the orders set out at the commencement of these reasons. 

9. The matter will be adjourned. I do not anticipate that anyone needs to prepare documents at this stage. Counsel for the Secretary of the Department of Families, Fairness and Housing sought an adjournment of eight weeks.  I have decided to adjourn the matter for four weeks, without objection, at which time we will look again at the matter. On the adjourned date I may make directions for the filing of documents and for a trial.  However, I am concerned not to oblige the parties (or any of them) to incur costs when this return application might not be the most constructive course to take at this time.  Accordingly, the adjournment is not subject to any requirement that the respondent mother state her opposition (if any) to a return order.

10. The return application is made under the Regulations. The Regulations are made pursuant to s 111B of the Act to “make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any benefit,” under the 1980 Convention.

11. As stated above, Ms Buchannan of counsel appears on behalf of the Secretary of the Department of Families, Fairness and Housing (DFFH) in the capacity of amicus curiae. DFFH expressly consents to my making the order for a reg 26 report to be prepared and further adjourning the return application. Obtaining the consent of DFFH is necessary in light of s 69ZK of the Act, which provides:

    (1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:

    (a)the order is expressed to come into effect when the child ceases to be under that care; or

    (b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.

    (2)      Nothing in this Act, and no decree under this Act, affects:

    (a)the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or

    (b)       any such order made or action taken; or

    (c)       the operation of a child welfare law in relation to a child.

    (3)If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child.

12. Counsel for DFFH informed the court that, whilst the Secretary consents to a continuation of the return application at this point in time, DFFH may well take a contrary view at a later stage. I regard it as implicit that DFFH will notify the court and the parties to these proceedings if, or when, X ceases to be a child to whom s 69ZK applies.

13. This is a matter which, if the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) had entered into force between Australia and New Zealand, the respective authorities in each state could likely deal with the matter without recourse to the courts or the 1980 Convention.  However, New Zealand is not a party to the 1996 Convention. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       23 November 2022