RAELSON & DEPARTMENT OF FAMILY AND COMMUNITY SERVICES, COMMUNITY SERVICES (COSTS)

[2014] FamCA 665

FAMILY COURT OF AUSTRALIA

RAELSON & DEPARTMENT OF FAMILY AND COMMUNITY SERVICES, COMMUNITY SERVICES (COSTS) [2014] FamCA 665

FAMILY LAW – COSTS – Hague Convention – Where an application by the Central Authority for return of the children to the United States of America was dismissed – Where the father is now seeking an order that the Central Authority pay his costs of and incidental to the proceedings – Whether the qualified immunity in regulation 7 of the Family Law (Child Abduction Convention) Regulations 1986 and in s 117AA of the Family Law Act 1975 protects the Central Authority from an order for costs

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Rhona Schuz, The Hague Child Abduction Convention – A Critical Analysis (Hart Publishing Ltd, 2013)

Central Authority & Wageman and Anor (2013) 48 Fam LR 254
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207
Director-General, Department of Communities (Child Safety Services) & Rolfston (Costs) (2011) 44 Fam LR 476

APPLICANT: Mr Raelson

RESPONDENT: Department of Family and Community Services

FILE NUMBER: SYC 7715 of 2013

DATE DELIVERED: 20 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: By way of written submissions dated 4 May 2014 and 2 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Christopher Hughes & Associates Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Anderson

SOLICITOR FOR THE RESPONDENT: Legal Services Unit, Department of Family and Community Services

Orders

It is ordered that

1. The Application in a Case filed on 9 April 2014 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 7715 of 2013

Mr Raelson

Applicant

And

Department of Family and Community Services

Respondent

REASONS FOR JUDGMENT

1. On 14 March 2014 I delivered reasons for judgment and made orders dismissing an application by the Director-General, Department of Family and Community Services, in the capacity of New South Wales Central Authority (“the Central Authority”) under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), for orders for the return of the children, R born in 2008, and M born in 2010, to the United States of America (“the USA”), a convention country within the meaning of the regulations. I do not intend to recount the detail of those reasons here but will refer to them where necessary in a summary way.

2. On 9 April 2014 the respondent to that application, the children’s father Mr Raelson (“the father”), filed an Application in a Case seeking an order that, pursuant to s 117 and s 117AA of the Family Law Act 1975 (Cth) (“the Act”), the Central Authority pay the father’s costs of and incidental to the proceedings, including the costs in relation to the father’s application for costs, with such costs to be agreed or, failing agreement, to be assessed. That application is opposed by the Central Authority.

3. As a result of discussions undertaken by the parties, on 14 April 2014 interim orders were made by consent that the father’s application for costs be determined by way of written submissions. In accordance with those orders, written submissions were filed on behalf of the father on 4 May 2014 and subsequently submissions were received from the Central Authority on 2 June 2014. These are marked Exhibit 1 and Exhibit 2 respectively in this application.

4. It is not open to doubt that pursuant to reg 7 of the Regulations and s 117AA of the Act the Central Authority has the protection of a qualified immunity from an order for costs, with the corollary that the circumstances in which an order for costs can legitimately be made against the Central Authority are significantly restricted. (See generally Director-General, Department of Communities (Child Safety Services) & Rolfston (Costs) (2011) 44 Fam LR 476 and the cases referred to in that judgment).

5. In De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 Toohey, Gaudron, McHugh, Gummow and Kirby JJ said at 217-218, with respect to the purpose of the immunity:

   Like the Crown in its traditional role in criminal proceedings, the Central Authority would neither seek nor pay costs. Presumably, this was out of recognition of the high public purpose which the Central Authority performed in executing the functions envisaged by the Convention and effected by the Regulations.

   (Footnotes omitted)

6. In the same case Brennan CJ and Dawson J said at 210-211:

   It is an essential function of the State Central Authorities to apply for orders ‘to secure the prompt return of children wrongfully removed to or retained in’ Australia … to prosecute such an application and, if successful, to defend any order made to achieve that end. The risk of a liability for costs in the event of non-success is an inhibition against performance of that function, but the conferring of an immunity from that liability removes the inhibition and is conducive to the assiduous performance of the State Central Authority’s function.

7. In the course of argument of the substantive application, or more accurately the father’s application in response, as one alternative, for the grant of a permanent stay of the application, I took issue with a submission by Counsel for the Central Authority. That submission was to the effect that, the Central Authority having received a valid request from the United States authority, the Central Authority was bound to bring an application for a return order. This aspect of the matter was addressed in paragraphs [146] to [153] of my reasons in the substantive application and I will not restate that discussion here. It suffices to note that whilst reg 13(1) is in mandatory terms, as regards the Central Authority taking action if the relevant conditions within it are met,

   
   

   sub-regulation 13(4) and reg 14 are expressed in permissive language. I therefore took issue with the submission to the effect that the Central Authority had no discretion whatsoever as to whether or not an application to the Court for a return order was made.

8. It is important to bear in mind that the context in which that exchange took place was in discussion of the father’s application for a permanent stay, an application not advanced before the substantive trial was heard. Significantly, I did not make any finding in my reasons for judgment to the effect that the substantive application for a return order ought not to have been made, or that the very fact of the bringing of the application by the Central Authority constituted conduct beyond the scope of the reasonable performance by the Central Authority of its powers and functions.

9. In my judgment in the circumstances here, in order for it to be concluded that the Central Authority does not have the protection of the qualified immunity from an order for costs it is not enough to observe that the Central Authority may have elected to adopt, consistent with its powers and functions under the Regulations, some alternative course other than to institute an application for a return order.

10. What would need to be shown is, either, that:

    a)It was “not reasonable” or “not convenient” within the meaning of these expressions in s 117AA(2) of the Act for the Central Authority to make the application; or

    b)In the course of the application the Central Authority pursued it by asserting a meaning or operation of the Act or of the Regulations that was “not reasonable” or “not convenient” within the meaning of those expressions in s 117AA(2).

11. I am not persuaded that either of these alternatives exists here.

12. Without recounting all of that which is contained in my reasons for judgment, there was a central issue as to habitual residence in the substantive application. On the evidence of the requesting applicant mother and other evidence in support of the application there was an evidentiary foundation for a conclusion that habitual residence at the relevant time was in the United States of America, one of the requirements the Central Authority had to establish. The respondent father, on the evidence he relied upon including his own affidavit evidence, joined issue on the question of habitual residence.

13. Cross-examination of witnesses was required to resolve the significant factual issues surrounding the question of habitual residence. In the result, as my reasons reflect, credit findings against the requesting applicant mother were made in reaching the conclusion that the Central Authority had failed to establish the necessary element of habitual residence. However, failure on that issue does not of course of itself remove the immunity and even risk or significant risk of failure identified in advance of the trial would not, on the authorities, so do.

14. In The Hague Child Abduction Convention – A Critical Analysis by Rhona Schuz published in 2013 the learned author (at p 43) makes reference to the published Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I, Central Authority Practice (“Guide to CA Practice”) in making the following observations:

    Upon receipt of the application, the CA of the requested State will also check whether the application meets the requirements of the Convention and where necessary ask the requesting State to supply further information. The CA of the requested State may reject the application where ‘it is manifest that the requirements of the Convention are not fulfilled’ or the application is not ‘well-founded’. The Good Practice Guide urges CAs to exercise extreme caution before rejecting applications, especially in relation to issues about which there may be differences of opinion, such as habitual residence and rights of custody, which should be determined judicially.

    (Emphasis added)

15. In Central Authority & Wageman and Anor (2013) 48 Fam LR 254 the Full Court observed to similar effect at p 270:

    105.We do not accept his Honour’s premise that there is some higher responsibility on the Central Authority to refuse to take proceedings if there is ‘doubt as to the appropriateness of taking action’. As we have set out, the Regulations require a level of satisfaction before a request for assistance is accepted. It is wrong to import into them some other requirement. Whether or not the facts necessary to the making of an order as requested by the Central Authority are established is a matter to be determined judicially having heard the application on its merits.

16. Whilst in the present case, and for the reasons outlined in the primary reasons for judgment, the question of acquiescence was always likely to loom large, the fact is that establishing acquiescence merely enlivens the discretion as to whether or not a return order ought be made.

17. The determination of the Full Court in Rolfston (supra) that the Central Authority did not have the protection of the immunity rested upon the conclusion that the Central Authority had agitated the question of habitual residence in a manner contrary to the requirements of the Regulations and in a manner promoting a meaning or operation of the Regulations which was not reasonable.

18. That cannot be said of the Central Authority in this case. Nothing in the approach here of the Central Authority in being satisfied that the request of the USA authority was in conformity with the Convention and reg 13; in applying for an order; or in the manner in which it pursued the application; can be characterised as promoting a meaning or operation of the Regulations which was not reasonable. That it might, equally reasonably, have taken a different approach does not render the conclusion that the actions actually taken were unreasonable, within the meaning of s 117AA or “not convenient” as there expressed.

19. I reiterate that there was on the evidence of the requesting applicant mother a basis for the Central Authority establishing the issue of habitual residence. Based upon the content of the Form 2 Application and the material in support of it, the requirements for the making of the application were met and I do not consider that it could be concluded that the application was not “well founded” even if it was identified that the question of habitual residence was likely to be in issue.

20. In my judgment the Central Authority retains here the protection of the immunity referred to and for that reason the respondent father’s application for costs must be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 August 2014.

Associate:

Date:  20 August 2014