Prior & Prior (No 5)
[2023] FedCFamC1F 1097
•19 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Prior & Prior (No 5) [2023] FedCFamC1F 1097
File number(s): MLC 8811 of 2015 Judgment of: BENNETT J Date of judgment: 19 December 2023 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – where matter adjourned for six months noting that neither party had on foot an application for determination this day – where it is anticipated the parties will give due notice to each other of any application for interim orders for the adjourn date and directions for trial will need to be made
FAMILY LAW – CHILDREN – with whom a child lives – where child was permitted to visit the United States of America for six months and be in the care of the father – where child’s relationship with primary carer mother and sister prior to his departure to the United States was fractured and child was living in the care of persons who had no parental responsibility – where father seeks to prosecute application for final orders that child live with him and he have sole parental responsibility – where mother opposes the substantive application and seeks that it be adjourned until such time as the father returns the child to Australia – where mother has made a request for the return of the child pursuant to the 1980 Hague Convention
Legislation: Family Law (Child Abduction Convention) Regulations 1986 (Cth)
1980 Convention on the Civil Aspects of International Child Abduction
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 16 June 2023 Place: Melbourne Counsel for the Applicant: Litigant in person Counsel for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Thistleton Solicitor for the Independent Children's Lawyer: Victorian Legal Aid ORDERS
MLC 8811 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PRIOR
Applicant
AND: MS PRIOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
16 JUNE 2023
THE COURT ORDERS THAT:
1.This matter be adjourned to a date to be fixed in approximately 6 months and for that purpose the matter will be listed to 8 December 2023 at 9.00 am.
2.The parents and the independent children’s lawyer are hereby released from the implied undertaking to the Court not to reproduce or disseminate documents filed in these proceedings or brought into existence as a result of these proceedings in any other court concerning childrens matters or to any authority charged with implementation of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“1980 Child Abduction Convention”).
IT IS DIRECTED THAT:
3.The minute of order circulated by the independent children’s lawyer as proposed final orders for the child X born 2008 be marked Exhibit “ICL 1” and remain on the Court file.
4.The mother’s submissions sent by email on Friday 16 June 2023 at 7:54 am be marked Exhibit “M1” and remain on the Court file.
5.My reasons for decision this day be transcribed and, when settled, placed on the Court file and a copy provided to the parties.
IT IS FURTHER ORDERED THAT:
6.The costs of the independent children’s lawyer of and incidental to this day be and are hereby reserved.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
This matter comes before me by way of a mention following the release of a specific issues report on 18 May 2023. The specific issues report concerns X who is fifteen years old, having been born in 2008.
Until mid-2022, X resided with the mother. There had been proceedings in relation to X and, in particular, enforcement of the orders for his communication with the father who has, since the matter has been in my docket, resided in the United States of America. Apart from communication, it was unfortunately necessary to have long and protracted proceedings about the terms on which X would travel to the United States to spend time with the father. Ultimately, those orders were made and X’s trip to the United States was to be of some six- or seven-months duration.
In mid-2022, and whilst X was still living in Australia, he left the mother’s home and refused to return. He was accommodated by an associate or friend of the father’s who was not a party to the proceedings. In late 2022, X left Australia and arrived in the United States of America where he has remained since. He is in the care of the father. In between mid and late 2022, X did not want to see his mother or his sister, nor apparently any other member of the maternal family, and he did not do so.
It is conceded that the time for X’s return has now passed. He should have been back in Australia at the latest in mid-2023. However, at an earlier hearing or mention of the matter, the father indicated some ambiguity about arrangements he had made to return X and when pressed, it turned out that there were no arrangements to which the father was then agreeable to adhere.
The father said that X was expressing a firm desire to remain in the United States of America and, more importantly, would refuse to return to Australia if required to do so. In that context, I ordered a specific issues report be prepared by a senior Court Child Expert who is in the sole and permanent employ of this court, Ms Q. Ms Q is familiar with X, having seen him for earlier reportable assessments and, in particular, those which led to X’s recent journey to the United States of America.
The report has been distributed to the parties. It sets out that X has a clear and unambiguous wish not to return to Australia, nor to have any personal contact with the mother or his family and that he wants to reside in America with his father.
Pursuant to my Order dated 9 May 2023, Ms Q was on notice and available to attend this Court event, 16 June 2023, for cross-examination but was not called. The mother did not request to cross-examine on this occasion. Instead, the hearing was conducted on the basis that mother was seeking an administrative adjournment.
The matter comes before me on this occasion with both parents in person and Mr Thistleton, who is counsel for the Independent Children's Lawyer. The Independent Children's Lawyer is very experienced and has been the Independent Children's Lawyer in this matter throughout. Mr Thistleton has appeared on her behalf and has significant skills in conciliation and mediation, as well as advocacy.
Mr Thistleton’s initial approach today, after having spoken to the parties for approximately an hour, I gather, before the commencement of this hearing, was that the desirable outcome would be for the father to have sole parental responsibility for X, or with an obligation to consult the mother in relation to long-term issues, and for X to spend such time with the mother and communicate with the mother in accordance with his wishes. The mother could communicate with X by letters, cards and by telephone, although X is not compelled, neither is the father compelled to require X, to answer any such calls by the mother.
The position of the father is that he supports the outcome prepared by the Independent Children's Lawyer. The position of the mother is set out in a communication common to all parties sent this morning at 7.54 am and is marked exhibit M1. It appears in dot point and the sixth dot point is that “I seek enforcement of the orders made on 17 October 2022, and any consideration of any matters until those orders have been complied with is prejudicial, contradictory to the court’s stated position, and without foundation.”
The mother goes on to say, “In addition, I advise the court that, following the recommendation of the court on 14 April 2023 to seek advice as to Hague Convention matters, I immediately did so, and the Hague Convention application has been filed with the Australian Central Authority seeking [X’s] return to Australia in accordance with the orders of 17 October 2022.” It is not correct to say that I recommended that the mother make a request for the return of X pursuant to the 1980 Hague Convention. I informed the father that it was a possible consequence of his failure to return the child as ordered, but certainly did not “recommend” such a request as an appropriate course of action for the mother to take .
What all seem to have overlooked is that there is no application for any relief which either of the parents now seek the court make today. Parenting orders were made on 17 October 2022, provided as follows.
1)The mother’s application for [X] born […] 2008 (“[X]”) to be returned to her care and reside with her be and is hereby dismissed.
2)This matter be adjourned for a period of 7 months for mention on Friday 30 June 2023 at 9.00 am and there be liberty to the parties to have the matter brought on earlier with proper material if needs be.
3)I otherwise dismiss each parent’s application for interim orders.
4)In lieu of the provisions provided for in the Order of 28 October 2021 for [X] to spend time with the father in the United States of America, [X] spend time with the father in the Unites States of America from such date as [X] departs Australia, with permission to enter the United States of America, until a date not later than seven months thereafter.
5)The father have sole parental responsibility in relation to [X] for major long term decisions in relation to health and education to operate whilst [X] is in the United States of America and the father advise the mother promptly and in writing of decisions which he makes in that regard. Otherwise, the parties have equal shared parental responsibility for the child. For the avoidance of doubt, this attribution of parental responsibility does not exceed the time that [X] spends in the care of the father pursuant to paragraph 4 of this Order.
6)Each parent advise the other in writing and immediately of any significant illness or medical condition of the child or himself or herself.
7)Any previous orders in relation to the holding of [X’s] passports be varied to the extent necessary to allow compliance with requirements of the government of the United States of America in relation to the granting of visas or permission to enter the United States.
8)Until further Order, [X] reside with the father or, at the father’s direction, with [Mr K] and/or [Ms K] until such time as [X] travels to the United States of America to spend time with the father pursuant to paragraph 4 of this Order.
9)Until further Order, the mother not disturb the placement of [X] in the household of [Mr K] and/or [Ms K] pending [X’s] departure from Australia and to the United States of America.
10)The father be responsible for making arrangements for [X] to attend any interview for a visa or permission from the United States government for [X] to enter the United States of America. The father may, at his discretion, delegate responsibility to accompany [X] to the interview to [Mr K] and/or [Ms K].
11)The person or persons who are to accompany [X] to an appointment at the United States Consular offices, be entitled to collect the passports of the child (British and Australian) from this Registry of the Court up to 7 days prior to any interview for a visa application AND IT IS NOTED that arrangements were made for the passports to be collected on 11 October 2022.
12)By not later than 1 December 2022, the father advise the mother and the independent children’s lawyer in writing of the date and precise travel arrangements for the return of [X] to Australia pursuant to paragraph 4 of this Order.
13)Both parents be and are hereby mutually restrained from causing, permitting or suffering any application to be made to any court in the United States of America to extend the period for which this Order provides (by paragraph 4) that [X] may spend time in the United States of America.
14)Both parents advise the other and keep the other advised of his or her current residential address and contact telephone numbers and an email address, and any changes thereto be advised in writing no less than 7 clear days prior to such change.
15)IT IS DIRECTED THAT the independent children’s lawyer provide a copy of this Order and my reasons for decision to [Mr K] and [Ms K].
16)There be liberty reserved to each party and to [Mr K] and [Ms K] to make urgent application to me in relation to implementation of this Order.
17)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.
Following the Orders made 17 October 2022, the only parenting application before the Court is the father’s application for parenting orders filed 11 August 2022 in which he seeks sole parental responsibility for X and that X reside with him in the United States. The mother is entitled to file a response to that application for final orders, but a disposition of that issue will require a final hearing.
The mother has not filed an application for enforcement of the order of 17 October 2022 pursuant to which it appears X should have been returned to Australia in mid-2023. Whereas the Court is directed to proceed without undue formality, it cannot dispense altogether with the filing of applications. Not only is an application necessary to found the Court’s power to make orders in a matter, but an application requires the party making the application to give consideration to what they actually seek. It is straightforward from the father’s point of view. It seems to me not so straightforward from the mother’s perspective. If she seeks enforcement of the current parenting order, that will involve X being brought back to Australia although it is not clear to me that there is any place for him to live. X has not lived with the mother since mid-2022. He has expressed an unambiguous and long-held view that he doesn't want to live with the mother and doesn't want to live with any other member of the mother’s family. It’s not clear to me how you force a fifteen-year-old child in America to come back to Australia, apparently against his will. A formal application filed by the mother would need to specify where X would reside and be supported by evidence upon which the Court would be satisfied that it is in the best interests of X to be returned to Australia. Filing an application isn’t a matter of form, it is the procedure whereby each party knows what the other party seeks and what issues are relevant to a determination.
In the time prior to his departure from Australia, I was concerned about X living in a situation in which he was residing in the home with people who had no parental responsibility in relation to him. The mother referred to those people, Mr K and Ms K, as being aligned with the father. I would have to accept that that is accurate, and doubt that she would be asking Mr K and Ms K to accommodate X again.
I will accede to the mother’s application for an adjournment today. I will set a nominal date of six months. I expect that one or other of the parents will make application prior to that time seeking orders, either as they have outlined today, or as they may further consider or be advised.
I can’t help but wonder whether the mother’s application for an adjournment at this stage is soundly based. Whereas a litigant who is in contempt of an order of a court or failing to comply with an order of the court may face an application by the other party that the contemnor not be able to press his application until he has purged the contempt, there is no such rationale in this case. The child is already in the care of the father in the United States of America, and, in that sense, the father has what he wants without final order. Put another way, the adjournment sought by the mother does not disadvantage the father and is not inconsistent with the ultimate orders he seeks.
Insofar as the Independent Children's Lawyer made an oral application for orders in the terms of a minute which was circulated between the parties, I note that that minute is before the court. I mark it ICL1 and direct that it remains on the court file.
In order to make an oral application, Mr Thistleton would have to secure my leave or permission to do so. I decline to give that leave or permission. In my view, it is helpful to the parties that the Independent Children's Lawyer has given consideration to the matter and has been in a position to make a recommendation about the final resolution of the matter, but it is for the parents to really drive the proceedings and to seek orders in their own right. They now have an opportunity to do so.
I note that the mother has lodged an application, presumably with the Australian Central Authority for a request to return X to Australia.
The content of the specific issues report dated 18 May 2023 is going to be relevant in relation to an exception to return, being that X may object to being returned to Australia.
The parties would not ordinarily be at liberty to publish or reproduce that report in any proceedings or forum elsewhere without being relieved of their implied undertaking to this court not to do so. For the avoidance of doubt, I release the parents and the Independent Children's Lawyer from the implied undertaking not to reproduce any documents in these proceedings, for the purpose of them producing such documentation as they wish to produce in any forum or court in the United States, or indeed, to any central authority or government agency in connection with the implementation of the 1980 Abduction Convention. This does not mean that they can reproduce slabs of material in social media or for other purposes. It is merely that they can produce them in another court if they seek to do so.
In the event that there is any question about the authenticity of documents, contact can be made with my Associate. I note that I am one of the two network judges for Australia who deal with such inquiries. The other is Williams J of this registry and contact could also be made with her Associate.
The current state of the proceedings appears to rest with an amended initiating application filed by the father on 11 August 2022. This application requires a further hearing which of course will include the mother’s response thereto. I will adjourn the matter for approximately six months. There is no limit on the parents’ making applications, but they must make an application which specifies, with particularity, the order sought by that party. The other parties must be accorded procedural fairness and there must be evidence which satisfies the Court that the orders sought are in the child’s best interests.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 19 December 2023
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