Saffari & Director-General, Department of Families
[2002] FamCA 1085
•25 November 2002
[2002] FamCA 1085
JFSAFFAR
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE
Appeal No. NA41 of 2002
File No. BR3540 of 2002
IN THE MATTER OF:
SHAHRIAR (AKA SEAN) SIAHKALI SAFFARI
Appellant/Father
- and -
DIRECTOR-GENERAL, DEPARTMENT OF FAMILIES
Respondent
REASONS FOR JUDGMENT
BEFORE: Ellis, Holden and Mushin JJ.
HEARD: 25th day of November 2002
JUDGMENT: 25th day of November 2002
APPEARANCES: Mr S. Saffari, the appellant father, appeared on his own behalf.
Father Address for Service:
PO Box 146, Browns Plains QLD 4118
Mr Green of counsel, instructed by Crown Law,
State Law Building, 50 Ann Street, Brisbane QLD 4000,
appeared on behalf of the respondent.
Mr Westbrook of counsel, instructed by Legal Aid Queensland,
44 Herschel Street, Brisbane QLD 4000,
appeared on behalf of the child’s representative.
Catchwords: FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS – child returned to and now resides in the United States of America – father appealed and sought return of the child to Australia – whether there is power to order the return of the child to Australia – appeal rendered nugatory by the child’s return to the United States of America
This was an appeal by the father against the order made by Barry J. on 9 August 2002 in proceedings between the Director-General, Department of Families, as a State Central Authority and the father. The effect of the order was that the child, S, be returned to the United States of America pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The father had earlier sought a stay of that order pending the hearing of his appeal. That application was dismissed by Barry J. on 16 August 2002 and the father has not appealed from that decision. The child subsequently departed the jurisdiction and currently resides with his mother in the United States of America.
In his Amended Notice of Appeal filed 4 October 2002, the father sought an order that the child be returned to Australia. It was submitted by the State Central Authority that in the event that the appeal was allowed, there is no power in this Court to make the order sought by the father. The child representative did not support the father’s appeal and also submitted that an order dismissing the appeal would have no effect in law on the rights of the father to institute such proceedings as he may desire under the provisions of Part VII of the Family Law Act. The father, in his grounds of appeal, acknowledged that that the outcome of his appeal was unlikely to have any practical effect. However, in his submissions, he drew the Court’s attention to ss.70A, 70B, 70M, 70N and 111B of the Family Law Act and submitted that those sections may provide a basis for the Court to make an order the effect of which would be that the mother of the child and/or the Central Authority co-operate in ensuring the return of the child to Australia.
Held; (per curium) dismissing the appeal:-
Having regard to the provisions of s.94(2), in the event that the appeal was allowed, this Court could not make an order for the return of the child to Australia.
In the event that the appeal was allowed, it would be open to this Court to set aside the order of the trial Judge and remit the application of the State Central Authority filed on 21 May 2002 for rehearing.
On a rehearing, it would not be open to a trial Judge to order that the child be returned to Australia and a Court would be obliged to dismiss the application of the State Central Authority on the basis that the child was not then in Australia.
The appeal was rendered nugatory by reason of the fact that the child is now residing in the United States of America.
The Court also noted and drew the attention of the parties to the provisions of Regulation 6 of the Family Law (Child Abduction Convention) Regulations and the provisions of s.69E(1)(d) of the Family Law Act.
Not Reportable.
ELLIS J: This is an appeal by the father against the order made by Barry J. on
9 August 2002 in proceedings between the Director-General, Department of Families, as a State Central Authority and the father.
In those proceedings, which were instituted pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) on 21 May 2002, the Central Authority sought the following final orders:-
“1.That the child [S] born 28 November 1992, be returned to the country of the United States of America.
2.That the Respondent Father, pay the necessary expenses incurred by or on behalf of the Applicant and MaryJo Madeline Williams (aka MaryJo Madeline Bourland) born 4 August 1974, the requesting applicant mother of the said child, in returning the child to the United States of America, including the cost of airfares for the child to travel from Brisbane to the United States of America.
3.Such further or other order as this Honourable Court believes appropriate to give effect to the Convention on the Civil Aspects of International Child Abduction.”
The father was represented at the hearing of the proceedings before the trial Judge but was not legally represented on the hearing of this appeal.
The order made by the trial Judge on 9 August 2002 are as follows:-
“1.That the said child, [S] born 28 November 1992, be returned to the country of the United States of America and for the purposes of giving effect to this order:-
a.That the said child be returned on or before 20 August 2002;
b.That pending the said child, [S] born 28 November 1992, returning to the United States of America, the Respondent Father, SHAHRIAR SIAHKALI SAFFARI (AKA SEAN FARSSI, SHAHRIAH SIAHKALI SAFFARI, AKA SAFFARI SHAHRIAR SIAHALI, AKA SEAN SIAHKALI SAFFARI, AKA SHAWN SAFFARI, AKA SEAN SAFFARI, AKA SHAHRIAR SIAHAKI SAFFARI), continue to be restrained and an injunction is hereby issued, restraining him from removing or attempting to remove the said child from the Commonwealth of Australia;
c.That pending the return of the said child [S] born 28 November 1992, the said child live with a person nominated by the Applicant or an officer of the Department of Families and the person so nominated also have responsibility for the day to day care, welfare and development of the said child;
d.That subject to sub-paragraph e. below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent Father, SHAHRIAR SIAHKALI SAFFARI (AKA SEAN FARSSI, SHAHRIAH SIAHKALI SAFFARI, AKA SAFFARI SHAHRIAR SIAHALI, AKA SEAN SIAHKALI SAFFARI, AKA SHAWN SAFFARI, AKA SEAN SAFFARI, AKA SHAHRIAR SIAHAKI SAFFARI) born October 17, 1956 and the said child, [S] born
28 November 1992, on the PACE Alert System at all international departure points in Australia;
e.That the said child, [S] born 28 November 1992, and the Respondent Father, SHAHRIAR SIAHKALI SAFFARI (AKA SEAN FARSSI, SHAHRIAH SIAHKALI SAFFARI, AKA SAFFARI SHAHRIAR SIAHALI, AKA SEAN SIAHKALI SAFFARI, AKA SHAWN SAFFARI, AKA SEAN SAFFARI, AKA SHAHRIAR SIAHAKI SAFFARI) be removed from the PACE Alert System by the Australian Federal Police upon receipt of a letter from an officer of the Director-General, Department of Families advising of the travel arrangements made for the said child to return to the United States of America, from 12.00am on the date nominated for the said travel in the letter;
f.That the Marshall of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders;
g.That paragraph (sic) 1,2 and 3 of the orders of the Honourable Justice Buckley made 30 May 2002 be discharged forthwith.
h.That liberty to apply be granted to the Applicant to seek any further orders necessary to allow him to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.
2.That all other Applications be dismissed.
3.That there be liberty to apply.”
In his Amended Notice of Appeal filed on 4 October 2002, the father indicated that he was appealing against the whole of the order made on 9 August 2002 and set out the order sought by him in place of the order appealed from as follows:-
“1.That the application filed by the respondent, Director General Department of Families, on 21 May 2002, seeking that the child [S], born 28 November 1992, be returned to the country of the Unites States of America, be dismissed.
2.That the child remain/return to Australia until such date a court the father is able to attend settle the issue of custody and/or visitation rights of the parents”
The father commenced his written Outline of Argument by setting out the order he sought in place of the order appealed from as follows:-
“That the Appeals be allowed.
That Order made on 09 August 2002, and in effect thereof, the subsequent order made on 16 August 2002, be set aside.
That in lieu thereof it be ordered:
(a)that the child [S], born on 28 November 1992, be returned as soon as practicable to the applicant, Shahriar Siahkali Saffari;
(b)that the Director-General Department of Families be directed to facilitate implementation of the order in sub-paragraph (a) hereof;
(c)that thereof (sic) the Director-General Department of Families be directed to implement the order in sub-paragraph (b) therewith any Counter-Appeals (sic) by the Director-General Department of Families, or any other party.”
However, in the course of submissions, the father clearly indicated that he was not appealing against the order of the trial Judge made on 16 August 2002.
It was common ground between the parties before us that the father had made an application to the trial Judge for a stay of the operation of the order of 9 August 2002 and that that application was dismissed on 16 August 2002. The father, for whatever reason, has not appealed against the order dismissing his stay application.
Further, it was common ground before us that thereafter, the child departed the jurisdiction and has continued residing with his mother in the United States of America to the present time. It is also clear on the face of the record that the mother was not a party to the proceedings which resulted in the making of the order now under appeal.
In the written Outline of Argument, it was submitted on behalf of the State Central Authority that, in the event that the appeal was allowed, there is no power in this Court to make the order sought by the father in paragraph 2 of his Amended Notice of Appeal or in paragraphs (a), (b) and (c) of his written Outline of Argument.
The written Outline of Argument filed on behalf of the child representative contained the following paragraphs:-
“3.Whilst the child’s representative does not seek to lead further evidence for the purposes of the appeal, the child’s representative observes that the child subsequently departed the jurisdiction. That is, the Order made on 9 August 2002 has been carried into effect.
4.It follows that insofar as paragraph 2 of the Orders sought in the Notice of Appeal seeks that “… the child remain … Australia …” (sic), the order sought can have no application to the present circumstances. Insofar as Order 2 seeks:
“… the child return to Australia until such date a Court the father is able to attend, settle the issue of custody and/or visitation rights of the parents.” (sic), the order sought is not one which has any effect. That is, the order sought or any close approximation of the order sought that might be said to fall within the ambit of the Orders Sought in the Amended Notice of Appeal is not an Order which is enforceable.”
I do not propose repeating in these reasons the written submissions made by the father, the State Central Authority or the child's representative as those submissions form part of the Court record. I note, however, the submission on behalf of the State Central Authority that the father acknowledges in paragraphs 4(a) and 5(f) of his grounds of appeal that the outcome of his appeal is unlikely to have any practical effect, given the return of the child to the United States of America since the making of the order under appeal.
Ground 4(a) as set out in the Amended Notice of Appeal is in the following terms:-
“4.That in relation to preventing further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures (Article 7(b) of the Hague Convention), the Trial Judge erred by:
(a)Willfully (sic) violating this article by ordering the child’s return and further rejecting the stay application, thus striping (sic) father of his right of appeal by rendering the outcome of this appeal hearing nugatory.”
whilst Ground 5(f) is as follows:-
“5. On the issue of “Residual Discretion”, the Trial Judge erred by:
…
(f)Finding that “the likelihood of success, or lack there of, of the prospects of appeal” was a factor in ordering the return of the child to the United States, thus judging his own appeal and rendering the father’s right of appeal, or any outcome, meaningless.”
I further note that the child’s representative does not support the father’s appeal and submits that an order dismissing the appeal would have no effect in law on the rights of the father to institute such proceedings as he may desire under the provisions of Part VII of the Family Law Act.
In both his written response and oral submissions, the father drew our attention to the following provisions of the Family Law Act, namely ss.70A, 70B, 70M, 70N and 111B. He submitted that those sections may provide a basis for this Court to make the order that he primarily seeks in the event that his appeal is successful, namely an order either as set out in paragraph 2 of his Amended Notice of Appeal or in paragraphs (a), (b) and (c) of his written Outline of Argument or some other order the effect of which would be that the mother of the child and/or the Central Authority co-operate in ensuring the return of the child to Australia. He did not refer us to any other possible source of power.
The relevant powers of this Court on the hearing of an appeal are to be found in s.94(2) of the Act which provides:-
“Upon such an appeal, the Full Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re-hearing, on such terms and conditions, if any, as it considers appropriate.”
In my view, having regard to the provisions of s.94(2), in the event that the father’s appeal were allowed, this Court could not make an order as sought by him either in his Amended Notice of Appeal or in his written Outline of Argument for the return of the child to Australia from the United States of America. If the appeal were allowed, it would be open to this Court to set aside the order of the trial Judge and remit the application of the State Central Authority filed on 21 May 2002 for rehearing. However, on such a rehearing, it would not be open to the then trial Judge to order that the child be returned to Australia. Indeed, on such a rehearing, the Court would be obliged to dismiss the application of the State Central Authority on the basis that the child was not then in Australia. The father was unable to point to any further order that this Court could then make which would be of utility to him in further proceedings. In response to questions from the Court, neither counsel for the State Central Authority nor the child's representative could indicate any such order.
There is no remedy that this Court could now grant, in the event that the appeal were successful, to achieve any meaningful outcome for the father. The appeal has been rendered nugatory by reason of the fact that the child is now residing in the United States of America. During the course of submissions, the Court noted and drew the attention of the parties to the provisions of Regulation 6 of the Family Law (Child Abduction Convention) Regulations and the provisions of s.69E(1)(d) of the Family Law Act.
No useful purpose can be served by this appeal. Accordingly, notwithstanding any sympathy I may have for the father, in the circumstances, I would dismiss the appeal.
HOLDEN J: I agree and have nothing to add.
MUSHIN J: I also agree and have nothing to add.
ELLIS J: The order of the Court is that the appeal be dismissed.
I certify that the preceding 22 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.
Associate
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