Shailer & Shailer

[2007] FamCA 1312

FAMILY COURT OF AUSTRALIA

SHAILER & SHAILER [2007] FamCA 1312

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Pending proceedings under Family Law Act1975 (Cth) at time application filed by State Central Authority pursuant to Family Law (Child Abduction Convention) Regulations 1986 to secure alleged rich of access – Stay of convention application

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

APPLICANT: Mr Shailer

RESPONDENT: Mrs Shailer

INTERVENOR: State Central Authority

FILE NUMBER: MLC 4210 of 2007

DATE DELIVERED: 15 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr. Wilson

SOLICITOR FOR THE APPLICANT: Clancy & Triado

COUNSEL FOR THE RESPONDENT: Ms. Stoikovska

SOLICITOR FOR THE RESPONDENT: Mason Sier Turnbull

COUNSEL FOR THE INTERVENOR: Ms. Carter

SOLICITOR FOR THE INTERVENOR: State Central Authority, Victorian Government Solicitor

Orders

1. That times be abridged to enable the application filed by the State Central Authority pursuant to the Family Law (Child Abduction) Regulations 1986 filed 11 October, 2007 (“the Hague application”) to be heard this day.

2. That the Hague application be stayed, until the determination of proceedings filed by the wife on 17 April, 2007 seeking orders pursuant to the Family Law Act1975 (Cth), or further order.

3. That the hearing date of 18 October, 2007 be vacated. 

4. That the husband file and serve a form 13 Statement of Financial Circumstances on or before 9 November, 2007. 

5. That the parties attend a conciliation conference at 11:00 am. on 29 November, 2007 and make a bona fide effort to resolve outstanding financial matters and providing the husband is legally represented at that conference, he may attend by telephone. 

6. That the application for final parenting and financial orders filed by the wife on 17 April, 2007 and the response to that application filed by the husband on 15 May, 2007 be referred to the list of cases awaiting allocation of trial notice directions, with priority as from this date. 

7. That the application for interim parenting orders filed by the wife on 17 April, 2005 and the response to that application filed by the husband on 15 May, 2005 be adjourned to the registrar’s duty list at 9:45 am. on 26 November, 2007. 

8. That the adjourned date of 26 November, 2007 may be vacated by advice from the solicitors for the parties to the court, or adjourned by consent,  PROVIDED THAT  the adjourned date is fixed by the assistant to the Senior Registrar. 

9. That all affidavits on which a party intends to rely at the hearing on 26 November, 2007 be filed no later than 14 November, 2007.

10. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

11. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

IT IS NOTED that publication of this judgment under the pseudonym Shailer & Shailer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4210 of 2007

MR SHAILER

Applicant

And

MRS SHAILER  

Respondent

And

STATE CENTRAL AUTHORITY
SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES
Intervenor

REASONS FOR JUDGMENT

1. The proceedings concern a child, who was born in July 2006. On 17 April, the wife filed an application seeking final and interim parenting orders in respect of the child. She sought that she have sole parental responsibility, that the child live with her and that the husband spend supervised time with the child.  She also filed an application for final property orders.  In addition, she sought various interim orders relating to the watch list and, for example, injunctions for the personal protection of herself and the child.

2. The matter came before Registrar FitzGibbon on 15 May 2007. The husband was represented and, with leave, filed responses to both of those applications on that day, in which he sought parenting orders.  Registrar FitzGibbon made orders restraining both parties from removing the child from Australia, and until further order and by consent, interim parenting orders. 

3. The interim orders provided for the father to have supervised contact with the child for short periods during the day in May, then in July, and otherwise as agreed. His periods of time with the child were to be supervised by named people.  He was enjoined from drinking alcohol within 24 hours of a period with the child, and he was restrained, until further order, from attending at the wife's home or her work premises, and from assaulting or harassing the wife.  Both parties were to deliver any passports relating to the child to this registry.  The matter was otherwise adjourned to today in this list.

4. On 10 October, the mother filed an amended interim and final application, specifying a number of conditions referable to the father’s time with the child which, on their face, look to be fairly similar to those contained in the interim consent orders of 15 May.

5. Then, on 11 October, the State Central Authority filed an application under the Family Law (Child Abduction Convention) Regulations1986 on behalf of the father, as a person seeking access to a child.  As the application makes clear, the SCA sought orders to secure effective access to the father’s rights of access to the child.

6. In support of that application, there is evidence from the father and evidence from a lawyer as to the relevant law in Arizona, together with a number of tendered documents.  That application was, in fact, to be listed this coming Thursday (18 October) for directions pursuant to the protocols that operate in this court in relation to Hague Convention applications.

7. As counsel for the State Central Authority made clear at the outset, this is an atypical application in that it is not an application for a child to be returned to his or her place of habitual residence, but an application seeking to secure effective exercise of rights of access to a child.

8. The husband is a United States citizen, born in the United States.  Studying in Australia, he met the wife, who is an Australian citizen.  They married in December 2004, in Victoria and bought real property in W.  The child was born here in July 2006, the mother having returned from a stint in the United States to give birth.

9. The husband, the wife, and the child all entered the United States on, according to the husband, one‑way tickets, arriving on Monday, 22 January 2007.  The husband had bought real property in Arizona.  His evidence is that it was their intention to stay in America for "at least 20 to 30 months".  The wife's mother arrived in the United States at about the same time as the parties, to help her daughter settle in.  She travelled on a return ticket, the inference being that she was there for a visit.  The evidence is that the wife and child left the United States some nine days after their arrival.

10. The husband's evidence is that it was the wife's mother, his mother‑in‑law, who influenced the wife to "abscond" to Australia after he and the wife had "a few differences of opinion regarding our length of stay in the United States". 

11. The question of the child’s habitual residence when she left the USA is an interesting one. A child cannot become habitually resident in a country simply by entering it, even with a settled intention to stay; questions of fact and degree are relevant.  In this case the court would need to look at the actual time the child was there, and her parents' intentions.  I say nothing further about that at this time.

12. The wife's evidence is that once they arrived in the United States, and took possession of the house in Arizona, the husband's behaviour became aggressive.  He exhibited dramatic mood swings;  he drank to excess;  he behaved roughly and inappropriately with the baby;  he wet the bed;  he spoke gibberish about spiritual matters relating to Indian cultures.  The climate was one of escalating tension, anxiety and fear.  When the wife and her mother got up on the last day they spent in the Arizona house, they found chicken meat left all over the kitchen floor and smeared over the walls of the hallway. Fearful for her safety and that of the child, the wife fled, initially to a hotel, and then to Australia. 

13. The husband's evidence is that in February 2007 the wife advised him that she was “filing for separation”.  I do not know what he means by that; perhaps he meant she made it clear that theirs was a permanent separation. In March she told him she would be bringing divorce proceedings at the earliest opportunity.

14. The wife’s evidence is that after she left the USA the husband bombarded her with bizarre and threatening emails, and made inappropriate contact with her friends and the employers of her friends.  Those may be facts in issue in proceedings under the Family Law Act 1975 or the Family Law (Child Abduction Convention) Regulations1986.

15. In his affidavit, the husband deposed to accepting that the child should live with the wife in her infant years; he said that arrangements should be reviewed when the child is three. He wants to spend time with her, as pre‑arranged in 2007, and in the following years until she was three. The access orders sought on his behalf by the State Central Authority took the arrangements through to 2009.

16. In his affidavit the husband alleges that the wife has a short temper and screaming fits, although he is apparently not concerned about her parenting, or at least not sufficiently concerned to seek an order that the child live with him now.

17. The husband acknowledged that he has not had sufficient opportunity to “develop his parenting skills”. He denied the extent of the drinking problem alleged by the wife, although conceding a conviction for driving under the influence in September 2005, for which he spent time in custody.

18. There is some evidence before the court from the wife, in an affidavit sworn on 9 October (prior to the issue of the State Central Authority’s application) as to the time the husband spent with the child pursuant to orders made here in May. She gives little detail about the time he spent with the child in May, but rather more about the time he spent with the child in July and, by agreement, in September. She deposed to the husband’s failure to arrive at all on one occasion, his failure to arrive on time on numerous occasions, to his drinking and to his demeanour.

19. When considering the Hague application, the court needs to look at the purpose of proceedings brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986. Regulation 1A provides that the purpose is to give effect to section 111B of the Family Law Act 1975, and that the regulations are intended to be construed having regard to the principles and objects mentioned in the preamble to, and Article 1 of the convention, as well as recognising, in accordance with the convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence, and recognising that the effective implementation of the convention depends on the reciprocity and mutual respect between judicial or administrative authorities, as the case may be, of convention countries.

20. In the preamble to the Convention the states who are signatories to it state their firm conviction that the interests of children are of paramount importance; their desire to protect children internationally from the harmful effects of wrongful removal or retention, as well as to secure protection for rights of access; and their resolve to conclude a convention to that effect. 

21. Article 1 states that the objects of the convention are to secure the prompt return of children wrongfully removed or retained in any contracting state, and to ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting states.

22. As I said earlier, this application is one to secure exercise of rights of access to a child.  Amendments made to the regulations fairly recently provide that a person can request a central authority to have arrangements made for establishing, organising or securing the effective exercise of those rights. 

23. I note that the order sought here is to “secure effective exercise” which, on its face, would be to secure the rights of access of the father in the United States.  Regulation 23 makes it clear that the right of access is a right of access to a child in a convention country.  If one looks at Regulation 10, a convention country is any country other than Australia.  Thus, an application to secure the effective exercise of a right of access in that convention country is, in fact, an application to secure access in a country outside Australia.  That does not mean, of course, that pursuant to Regulation 24 and 25, an application or request cannot be made for access to a child in Australia.  However, the right of access which is to be enforced is a right of access to a child under a law in force in a convention country. 

24. As submitted by counsel for the State Central Authority, the Commonwealth Central Authority in Australia may have limited scope to refuse to bring an application in these circumstances. Regulation 24 provides that it must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia if it receives a request from a central authority on behalf of a person, who claims to have rights of access to the child under a law in force in a convention country, if those rights have been breached, and if it is satisfied that the request is in accordance with the convention.

25. In this case, a request was received from a central authority in the United States, and a person, namely the husband, claims to have rights of access to the child under a law in force in the United States, namely the relevant law of Arizona.  The State Central Authority may need, in these cases, to give more consideration to the question of the alleged habitual residence.

26. I have read the affidavit of Ms G, a lawyer qualified as an expert to give evidence about the relevant law in Arizona.  As I noted earlier, the child was in Arizona for only nine days.  Ms. G deposes that, pursuant to Arizona law, both parents have equal rights to “access, visitation and decision making authority over their child”. I am not sure what the difference is between access and visitation.  Her evidence is of the parents sharing parental responsibility in this case, but that is a question of fact, about which she cannot give evidence.  The evidence of the parties is inconsistent on that point.  As noted earlier, the question of habitual residence is open.

27. The father did not make his request under the convention until 10 July 2007.  That was almost three months after proceedings pursuant to the Family Law Act1975 were filed in this court and, importantly, some two months after he joined issue with those proceedings, filing a response and himself seeking parenting orders under the Australian legislation.

28. This is not a forum conveniens case.  Different considerations apply when determining the application of the Regulations but it is important to recognise the purpose and scope of the convention, and the regulations made under it.

29. The State Central Authority does not seek the immediate return of the child to the United States, or that the child live with the father. The orders sought by it are, in essence, orders for him to spend time with the child in Australia, plus, come 2008, over a 30 consecutive day period in the United States, on the basis the mother and the child would travel to Arizona and he could spend time with his daughter there.

30. I cannot say what the State Central Authority would do in 2009, were the orders sought made now.  Would it seek to bring the application back and, effectively, run an ongoing parenting case for the father?  Pursuant to the orders sought by the State Central Authority, the child would live in Australia, not in the convention country where the alleged right of access arose.  Further, much of the time the father would spend with her would be in Australia, where the alleged right of access did not arise.

31. The court cannot know whether the United State Central Authority, which made the request to the Australian Central Authority, was aware of the Australian litigation, to which the husband has joined issue. One wonders, if it were, whether it would have made the application.  However, that is speculation.  I note that the time limits contained in regulation 15 do not apply to access cases.

32. Having regard to that short exposition of the facts and law;  the existing proceedings in Australia between the parties;  the fact that the orders sought by the State Central Authority seek more frequent access in Australia than in the United States;  and the specific parenting orders that the husband sought in his response to the application under the Family Law Act1975; I am satisfied that the application brought by the State Central Authority should be stayed, pending the determination of the parenting applications filed by the parents in this jurisdiction, or further order.

I certify that the preceding 32 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

15 October 2007