Prior & Prior (No 6)
[2023] FedCFamC1F 1119
•21 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Prior & Prior (No 6) [2023] FedCFamC1F 1119
File number(s): MLC 8811 of 2015 Judgment of: BENNETT J Date of judgment: 21 December 2023 Catchwords: FAMILY LAW – CHILDREN – with whom a child lives – where mother seeks child be returned to her care – where mother has not filed any enforcement application – where mother has not filed any evidence that supports the proposition that it is in the child’s best interests to be returned to her care – where child is in the United States of America – where mother has made a request under the 1980 Convention on the Civil Aspects of International Child Abduction for the return of the child from the United States of America – where child is to turn 16 years and will be outside of the jurisdiction of the Hague Convention
FAMILY LAW – PRACTICE AND PROCEDURE – where mother has no enforcement application filed for determination this day – where mother seeks to cross‑examine an expert without notice to the other parties or the Court – where it is inappropriate to cross-examine an expert witness in a vacuum as it would not be possible to say what evidence was necessarily relevant
Legislation: 1980 Convention on the Civil Aspects of International Child Abduction Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 15 December 2023 Counsel for the Applicant: Litigant in person Counsel for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Ms Caroline Smith of 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:
15 DECEMBER 2023
THE COURT ORDERS THAT:
1.The pending parenting proceedings commencing with the father’s Amended Initiating Application filed 11 August 2022 in which he seeks sole parental responsibility for the child, X born 2008 (“the child”), and that the child reside with him in America be adjourned to 19 January 2024 at 10.00am for trial directions.
2.My reasons for decision this day be transcribed and when settled be distributed to the parties and practitioners.
AND THE COURT NOTES THAT:
A.The child support proceedings between the parties are final by Order pronounced on 29 August 2023 subject to the parties making application for enforcement of the Order or implementation of the Order and at this stage neither party has done so.
B.In the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
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:
The only relevant child of the parties for the purpose of proceedings before the Court is X. The last application on the portal in relation to X is the father’s amended application filed 11 August 2022. In that, he seeks various orders, including a final order for sole parental responsibility and that X live with him in the United States of America. That application is still outstanding. Following that application having been filed, the mother says that she filed a response to the application that is not on the court file. No other party to the proceedings has it; however, it is immaterial as of today whether it was filed or not because the mother will, in due course, be given an opportunity to file any response to the father’s amended application.
Pursuant to other orders of the Court, X left Australia in late 2022, and he was due to return in mid-2023. X has not been returned to Australia by the father, and the mother has now made a request under the 1980 Convention on the Civil Aspects of International Child Abduction (“1980 Abduction Convention”), which is in force between the United States of America and Australia. The mother has been coy and imprecise in relation to the progress of her request under the Convention. It may be that she does not understand the process; however, she has referred to a need, as she perceives it, not to advise the father of what she is doing or to disclose certain proceedings that she says are before the courts in the United States of America.
In any event, I note that X will be 16 years old in 2024. At that point, the 1980 Abduction Convention will cease to operate in relation to X.
The mother says that she expected that the order requiring X’s return to Australia, made on 17 October 2022, to be enforced. She, however, has no enforcement application. I have explained to the mother, or attempted to do so, that enforcement of a parenting order of this nature in these circumstances would still be predicated on or conditional upon me being satisfied that such an order was in the interests of X and that I could only be so satisfied on evidence which is adduced in the proceedings.
When this matter was last heard, on 16 June 2023, I adjourned this matter to a date in December. At that time, there was no application for return of X before the Court; however, there was nothing stopping the mother in the six months that have ensued from making such an application. She just has not done so. Furthermore, there is no evidence in support of such an application upon which I could be reasonably satisfied that it is in X’s best interests at this point to be ordered to be returned to Australia under the parenting provisions of our legislation. That is different from the relevant considerations in a Hague Convention case such as the mother has apparently initiated in the United States where best interests are not taken into account until the Court is satisfied that there is an exception to return made out.
There was a Specific Issues Report dated 18 May 2023 which was before the Court on 16 June 2023. Today, the mother said that she had wanted to cross-examine the Senior Court Child Expert, Ms Q, on 16 June 2023 and expected to do so. That is not my recollection. Ms Q was available to attend Court and give evidence on 16 June 2023 but not required to do so. Instead, on 16 June 2023, the mother’s application was that the parenting proceedings be adjourned until after the father had complied with the orders requiring him to return X to Australia.
It seems that the mother’s position as at 16 June 2023 was somewhat self-defeating in that she did not seek to proceed with any enforcement application and was waiting with compliance by the husband in the circumstances where the time of the compliance had passed.
The mother wants to cross-examine Ms Q now. The process of submissions by the parties who both appear in person was somewhat of a discussion. The mother initially said that she wanted to cross-examine Ms Q and had been ready to do so and expected to do so on 16 June 2023. Then when it was ascertained that Ms Q was available today, the mother said that she wanted 24 hours in which to prepare her cross-examination. Today is Friday. I am not scheduled to be sitting today in any event. I am not sitting at all next week, and I have extensive periods of long leave in 2024. There is no other judge in a position to take this matter on Monday. That goes to the availability of the Senior Court Child Expert for cross-examination.
On reflection, a more significant point is that the mother does not have an enforcement application or any application for which the evidence of Ms Q is relevant. The mother has no current evidence upon which I can be satisfied that it is, as of today, in X’s best interests that he be returned to Australia. This is notwithstanding that the mother has, since separation, been the primary caregiver of X, at least until his unilateral departure from her home in mid-2022. As has been detailed in earlier reasons, in mid-2022, X left the mother’s home and thereafter had no contact with her or with his sister. The mother disputes that there was no contact, but when he left Australia in late 2022, he did so without being reunited with his mother or his sister. Ms Q’s report makes clear the child’s motivation and feelings about going to the United States of America and wanting to stay there. I have some sympathy for the mother’s position that she has not yet cross-examined Ms Q; however, in the absence of an application for the child’s return and a body of evidence to support that application, it is not appropriate to have an expert witness cross-examined in a vacuum. For a start, it would not be possible to say what evidence was necessarily relevant.
Evidence is called to inform the Court of matters that are relevant to the exercise of the Court’s power to make parenting orders. It follows that any cross-examination or testing of evidence has to be relevant to the matters in issue, which will enable issues to be determined. In this case, the mother does not have an enforcement application on foot, and accordingly, I will not permit the mother to cross-examine the Senior Court Child Expert on this occasion.
The importance of a written application where the relief sought is not self-evident is to give the Court and the other parties notice of what the mother seeks. For instance, it is not clear where the child would live if returned to Australia. The mother said he could stay with “friends” however there is no affidavit material from “friends”, no affidavit material from the mother which discusses the relationship with “friends”. There is not affidavit material in which the mother explains why these “friends” were not a suitable place of refuge for X when he ran away from the mother’s home in mid-2022. Moreover there is no evidence dealing with X’s view of staying with “friends”.
The mother again suggests that her family members were available. In earlier hearings it has been put that X would like to go and stay with his aunt but that was refuted by the father and not agreed to by the ICL. Today the mother said that X had previously been upset that he could not spend more time with the maternal grandmother but again there was no evidence of him wanting to go and live with the maternal grandmother, her suitability, or her availability.
An application is not just a matter of form but a way in which the mother’s complete proposal is to be assessed by the Court and can be responded to by the other parties to the proceedings. The orders are final subject to the parties (or one of them) making application for enforcement of those orders or implementation of those orders. At this stage, neither party has done so. So, those orders are final.
I am from leave until 15 January 2024. I will take this matter on 19 January 2024, and that will be for directions of the hearing of the father’s outstanding parenting application. By that stage, the mother will either have identified and served the document upon which she relies as her response to the father’s amended application or filed a response to the father’s amended application.
Because of my calendaring next year and an extensive period of long service leave, I do not see that there is any reasonable availability for me to hear the father’s parenting case or the pending parenting proceedings on a final basis. Accordingly, I will refer this matter to the case management judge. If a judge does become available earlier than I anticipate for matters, it is possible that that procedural hearing on 19 January 2024 will be vacated by the case management judge and the matter allocated to a new judge’s docket. The Court will take whatever step most expedites the appointment of the final hearing in the matter.
That concludes these reasons for decision.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 21 December 2023
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