Secretary, Commonwealth Attorney-General's Department and Wolford (No. 2)

[2014] FamCA 610

FAMILY COURT OF AUSTRALIA

SECRETARY, COMMONWEALTH ATTORNEY-GENERAL'S DEPARTMENT & WOLFORD (No. 2) [2014] FamCA 610

FAMILY LAW – PRACTICE AND PROCEDURE – Stay pending appeal

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

Clemett & Clemett (1981) FLC 91-013

APPLICANT: Secretary, Commonwealth Attorney-General's Department

RESPONDENT: Ms Wolford

FILE NUMBER: SYC 1648 of 2014

DATE DELIVERED: 28 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 28 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

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

COUNSEL FOR THE RESPONDENT: Ms Hartstein

SOLICITOR FOR THE RESPONDENT: Harris Freidman

Orders

1. That orders are made in accordance with the Minute of Order filed in Court today signed by Johnston J and placed with the Court papers as set out hereunder:-

   Upon the undertakings of the father comprising Annexure A to these Orders being given:

   1.That the applicant and respondent mother (Ms [Wolford]) make such arrangements as are necessary to ensure the return of the subject children described below to England and Wales by 11 August 2014:

   [C] (born … November 2011)

   [T] (born … November 2013).

   Or

   in the event of any appeals, within 2 weeks of the conclusion of all appeals.

   2.The legal representative for the Australian Central Authority is to make arrangements to give the passports concerning the children to the parent travelling with the children be it the respondent mother or in the alternative to the father (Mr [Wolford]).

   3.Paragraphs 1.1, 1.2 and 1.3 of the orders of 26 March 2014 be varied to allow the children to leave the Commonwealth of Australia for the purpose of giving effect to paragraph 1 of the order above and that the Australian Federal Police give effect to the variation.

   4.That the Registrar of the Family Court of Australia release forthwith all passports concerning the children to the legal representative for the Australian Central Authority.  

   5.Following the departure of the children from the Commonwealth of Australia and their arrival in England, the Australian Federal Police are to remove the names of the subject children from the PASS Alert (Watch-List) system in operation at all Australian International arrival and departure points as soon as practicable.

   6.Following the departure of the children from the jurisdiction of the Commonwealth of Australia to England in accordance with paragraph 1 of the order above, all other orders made by the court in relation to this matter be discharged.

   7.That the Australian Central Authority serve sealed copies of the orders upon the Commissioner, Australian Federal Police.

   8.That there be liberty to restore this matter to the court within 24 hours’ notice to the court as to the implementation of the return order.

   NOTATION

   It is noted that the father, is to pay for the airline tickets concerning the children and the mother for them to return to England, and to provide to the legal representative for the Australian Central Authority copies of any airline tickets made by him for the children to return to England and Wales at least 5 working days before the scheduled departure of the subject children from the jurisdiction of the Commonwealth of Australia.

2. That the Court notes the undertakings by the father in accordance with Annexure A of the said Minute of Orders as set out hereunder:-

   Undertakings of Mr [Wolford], father of the children, [C] (born … November 2011) and [T] (born … November 2013)

   I undertake to:

   1.Move out of my current accommodation for 6 weeks to enable [the mother] and the children to reside in the accommodation on their return to England for a period of one month. Or

   In the alternative, to pay for the deposit (up to £1800) and rent for one month (up to £1200).

   2.I will pay £3000 into the trust account for [the mother’s] solicitor in advance of her return to England on the condition that it is to for the purpose of [the mother] to pay for the rental deposit and one month of rental in England.

   3.The above payments are on the basis that [the mother] has exclusive occupancy of the rental premises.  She is free to have living with her whomsoever she wishes.

   4.Pay maintenance to [the mother]  £1000 for the first month.  I undertake to deposit this into a British bank account in the name of [the mother] two days before her date of arrival in England or in the alternative into my solicitor’s trust account in England.  I will instruct my solicitor  to release these funds to [the mother] within 48 hours of her arrival in England.

   5.Discuss the payment of further maintenance to [the mother] after one month, dependent on other payments I am already making to her at the time.  I will also discuss this with [the mother] in mediation on her return to England.

   6.Pay for and engage in mediation with [the mother] during which both financial and parenting issues will be discussed and negotiated.

   7.One month after [the mother’s] arrival in England pay some of the child care costs concerning the children at an amount to be agreed during mediation.

   8.On a without admissions basis, to not denigrate [the mother] in any way to the children or anyone else.

   9.Pay for the airline tickets for [the mother] and the children to return to England.

   10.Discuss arrangements with [the mother] for her to share the family car. This can be discussed in mediation.

3. That the Court notes the written undertakings filed by the respondent mother filed in Court today as set out hereunder:-

   Undertakings of Ms [Wolford], mother of the children, [C] (born … November 2011) and [T] (born … November 2013)

   I undertake to:

   1.Promptly disclose to [the father] my address at which I reside in with the children.

   2.When in England reside at a reasonable distance (no more than 15 miles) from where [the father] lives.

   3.Inform [the father] in advance with details of the rental and deposit amounts, of any proposed rental accommodation I wish to take up during my first month in England that [the father] is paying for.  I undertake to inform [the father] of these details before committing to any lease.

   4.Not remove, transfer, sell or destroy any of the furniture or belongings when I reside in [the father’s] home or any other accommodation paid for by [the father].

   5.Engage in mediation with [the father] on my return to England about parenting and financial issues.

   6.Engage in discussions concerning the use of the family car on the basis that I reside within a reasonable distance (no more than 15 miles) to [the father] and on the understanding that he will need the vehicle for employment and for contact with the children.

4. That the Court notes that the respondent mother undertakes to file and serve a Notice of Appeal together with a draft appeal index not later than 4 August 2014 and to order the transcript on an urgent basis.

5. That in these circumstances the respondent mother is given leave to make an oral application for a stay of the orders made today.

6. That the orders made today are stayed pending completion of the proposed appeal hearing, to be listed for hearing on the next available date before the Full Court, on the following conditions:

   6.1That the respondent mother prosecute her appeal expeditiously including the filing of the appeal and relevant documents in accordance with the orders made today; and

   6.2      Complying promptly with all directions made by the Appeals Registrar.

7. That the parties approach the Appeals Registrar today to arrange the relevant appointment with her.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Commonwealth Attorney General’s Department & Wolford (No. 2) 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 SYDNEY

FILE NUMBER: SYC 1648 of 2014

Secretary, Commonwealth Attorney-General's Department 

Applicant

And

Ms Wolford

Respondent

REASONS FOR JUDGMENT

1. On 25 June 2014, I published reasons for judgment in these proceedings under the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). 

2. The Secretary, Commonwealth Attorney-General’s Department, as Commonwealth Central Authority, seeks an order for the return of two children, C, born in November 2011, and T, born in November 2013, to England pursuant to the Regulations.  The order which I made on that occasion was that the proceedings be adjourned to 2 July 2014 for submissions about conditions to be included in an order for return of the said children.

3. Today is the third occasion on which I have considered submissions about conditions to be included in such an order since I published the reasons for judgment.  On the last occasion, I made it clear that in the event that the children’s father was not prepared to offer a better package of undertakings than he had previously, then I might well be persuaded to dismiss the Central Authority’s application.

4. I have today received an affidavit by the solicitor for the Central Authority enclosing an affidavit from the father and also an affidavit by his English solicitor.  The father would be prepared to move out of his current accommodation for six weeks to enable the mother and the children to reside in that accommodation on their return to England or, in the alternative, he would pay a deposit for renting appropriate accommodation for one month, which would be a total of £3000.  The father would undertake to pay that to the mother’s solicitor in advance of her return.  The father makes it clear that the mother would have exclusive occupancy of the premises.

5. Previously, he had indicated that, in the event that the mother proposed to avail herself of his offer to reside in the current accommodation, which I understand is accommodation which was previously occupied by the father, the mother and the children, the father was not prepared to provide exclusive occupancy of that property.  He made it very clear that he did not agree to the mother’s mother living in that accommodation.  He has now indicated in his affidavit that he has changed his mind about that and agrees to the children’s maternal grandmother living in whatever accommodation might be provided with his assistance for them.

6. Whereas previously the father had not offered to pay any maintenance, now he undertakes to pay maintenance of a thousand pounds for the first month and he offers to discuss in mediation with the mother on her return the payment of further maintenance.

7. He says that he would undertake one month after the mother’s return to pay some of the child care costs concerning the children at an amount to be agreed.  Consistently with earlier draft undertakings, he says on a without-admissions basis that he would agree not to denigrate the mother in any way to the children or anyone else, he would agree to pay the airline tickets for the mother and the children to return to England, and he would be agreeable to discussing arrangements with the mother for her to share the family car.

8. It is submitted on behalf of the Central Authority that when those undertakings are considered with other relevant matters the conditions for return of the children to England are reasonable and appropriate.  The other relevant matters include the fact that upon the mother returning to the United Kingdom, as a citizen of the United Kingdom, she would be able to make an application for income support.  She would also be able to make an application for child support, and, on the indications before the Court, given the father’s income, that would be likely to be in the vicinity of £650 per month.

9. In addition, it is also submitted that the mother would be able to make application for housing assistance and she might be eligible for the English equivalent of legal aid.  That is a matter which learned counsel for the respondent mother takes real issue with. 

10. It is said on behalf of the mother that such undertakings would not be sufficient and would involve the mother and the children returning to what I understand is suggested would be an intolerable situation.

11. So far as legal aid is concerned, the overall submission on behalf of the mother is that it is really quite unclear at this time whether the mother would be able to avail herself of legal aid.  It is submitted that, in those circumstances, the father should have indicated that he would be prepared to provide an undertaking to provide the mother with funds to assist her to obtain legal representation to approach the relevant court in the United Kingdom and make applications in respect of the various matters within the general range of matters which are raised in the undertakings.  It is submitted on behalf of the mother that what the father proposes is nowhere near sufficient or proper for the mother and the children in the circumstances.  This is said to be the case especially when one bears in mind that applications for such things as housing assistance, child support, legal aid, income support all probably take some time.  It is submitted that in those circumstances, what the father is offering is inadequate.

12. I must say, I have come slowly to the view that if the Court was to accept the father’s undertakings, that would be sufficient for the purposes of being able to repatriate the mother and the children to the United Kingdom so that the mother could then avail herself of whatever benefits might be available to her.  The main improvement in the father’s offer since the last time that the matter was before the Court is to increase his offer by £1000 for the first month.  Previously he had offered nothing by way of maintenance.  In addition, as I have said, he has changed his position in terms of his earlier requirement that the mother and children would not be able to live at the accommodation proposed by him in the event that the mother insisted on her mother also occupying those premises.

13. I have come slowly to the view that what the father is offering by way of his undertakings is really at the very bottom of what would be required in these circumstances.  I propose to make the orders sought and to put the conditions into operation.  I note that the mother also offers a number of undertakings.

14. In relation to the application for a stay of the return order, one of the most relevant matters is when a Full Court might be available to consider the appeal.  I understand from inquiries that a Full Court would be available on Friday, 22 August 2014.  The Court must consider, in my view, the significant disruption to these children which would be involved in not granting the stay.  The mother would then have the legal obligation to return the children to the United Kingdom.  If the mother was successful in her appeal, she and the children would be able to return to Australia.  This would be most disruptive for the children.

15. This Court has often taken the approach, over many years in stay of parenting matters extending to matters involving orders for the return of children, that provided a Full Court is able to be made available within a reasonable time, then the Court should not be unduly reluctant to grant a stay, at least for the reasonably short period involved in enabling the appeal to be processed and heard.  For example, as long ago as in the case of Clemett & Clemett (1981) FLC 91-013 the Full Court said at page 76,175 as follows:

    In determining whether a stay should be granted, the welfare of the child is the paramount consideration.  It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible.  If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.

16. I am satisfied about these matters.

17. Accordingly, in all the circumstances of this case, in my view the proper approach is to grant the stay.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 28 July 2014.

Associate:     

Date:              5 August 2014