Smollett and Department of Family and Community Services

[2018] FamCA 580

FAMILY COURT OF AUSTRALIA

SMOLLETT & DEPARTMENT OF FAMILY AND COMMUNITY SERVICES [2018] FamCA 580

FAMILY LAW – PRACTICE AND PROCEDURE – Application for a stay of the operation of orders made for the return of a child to New Zealand – Consideration of the principles of stay applications as summarised in Aldridge & Keaton [2009] FamCAFC 106 – Where the mother is pregnant and it will become impracticable for her to travel to New Zealand – Where an order has been made several times for the child to return to New Zealand – Where there is no challenge to the original judgment – Where the mother wants to put evidence of a midwife before the Court however this evidence is not in proper form – Where the mother’s application is dismissed.

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16, 19A
Hague Convention on the Civil Aspects of International Child Abduction 1980

Aldridge & Keaton [2009] FamCAFC 106
Re C (A Minor) (Abduction) [1989] 1 FLR 403

APPLICANT: Ms Smollett

RESPONDENT: The Secretary, Department of Family & Community Services

FILE NUMBER: SYC 6905 of 2017

DATE DELIVERED: 18 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 18 July 2018

REPRESENTATION

THE APPLICANT: Appeared in person

COUNSEL FOR THE RESPONDENT: Mr Harper

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

Orders

1. The mother’s Application in a Case filed 13 July 2018 is dismissed.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smollett & 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).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC6905 of 2017

Ms Smollett

Applicant

And

The Secretary, Department of Family & Community Services

Respondent

REASONS FOR JUDGMENT

1. This is an Application for a stay of the operation of orders that were made by a judge of this Court on 18 May 2018.  The Application comes in the context of proceedings under the Family Law (Child Abduction Convention) Regulations1986 (Cth) (“the Regulations”) which were heard by McClelland J on 5 December last year. A judgment was delivered on 21 December 2017 and the orders made on that date were for the return of a child, B, born in 2015, to New Zealand by 20 January 2018. I understand that there was no appeal against that decision.

2. I understand that an application was made under reg 19A of the Regulations which relevantly provides that if the Court makes a return order a party may apply to the Court for a discharge of the order. A discharge can only be ordered if the Court is satisfied that:

   (a)all of the parties to the proceedings consent; or

   (b)that since the return order was made circumstances have arisen that make it impracticable for the order to be carried out; or

   (c)exceptional circumstances exist that justify the return order being discharged; or

   (d)more than a year has passed since the order was made.

3. That application came before the Court on 24 April 2018.

4. On 24 April 2018 I understand that orders were made to facilitate the return. The matter came back before the Court on 18 May 2018 and the application under reg 19A was dismissed. Again, orders were made to facilitate the return on 24 June 2018. Notwithstanding those orders, the Court also ordered that if before 24 June 2018 the mother complied with the original order, or if she secured an order from a New Zealand Court permitting the child to remain in Australia, then the return order would not operate.

5. The mother has appealed against the orders of 18 May 2018.  The application for a stay would normally come to the trial judge.  Justice McClelland is not available and it has come to me.  In a Full Court decision of Aldridge & Keaton [2009] FamCAFC 106 (“Aldridge & Keaton”) the Full Court set out the principles related to stay applications.  The following propositions are relevantly included:

   ·the onus to establish a proper basis for a stay is on the applicant.  That said, it is not necessary for the applicant to demonstrate any special or exceptional circumstances.

   ·a person who has the benefit of a judgment - being the judgment under appeal – is entitled to the benefit of that judgment.

   ·that person is entitled to presume that the judgment at first instance is correct.

   ·the mere fact of filing an appeal is insufficient to warrant a stay.

   ·it is relevant to consider the bona fides of the applicant, whether the appeal is a genuine appeal or whether it is an attempt to delay matters or for some other purpose.

   ·the Court needs to weigh the risk that an appeal may be rendered nugatory if a stay is not granted, and this is a substantial factor in determining whether it is appropriate to grant a stay.  In other words, if by the refusal of the stay, the appeal is, in effect, decided, then that is a matter that will be taken into account in favour of granting a stay.

   ·some preliminary assessment is required of the strength of the proposed appeal, whether the appellant has an arguable case.

   ·relevantly, the period of time in which an appeal can be heard, whether existing satisfactory arrangements may support the granting of a stay for a short period.

6. In Aldridge & Keaton the Court also found that the best interests of the child will be relevant.  I do not think that is a relevant consideration before me.  As to the principles referred to above, the mother has to demonstrate that there is a reason for a stay.  If she cannot discharge that onus there will be no stay. 

7. I can assume that the judgment is correct.  I need to examine the bona fides of the applicant.  That is a difficult thing in this case.  The judgment in December 2017 laid out some conditions in relation to the return order.  It is not entirely clear to me that all of those conditions had been met by the January date.  It may be that that appears in the evidence.  The mother is pregnant.  The fact is that, as the date for her confinement approaches, at some point, it will become impracticable for her to fly.  Once the new child is born there may be issues about that new child leaving this jurisdiction.  The background facts are suggestive in this case, more than most, that it has suited the mother to delay because of those facts.  As she appears here today, there is nothing insincere about her presentation, I must say.  Justice McClelland mentions that the mother was seeking legal representation and legal aid.  There is no evidence from her about that but I assume she was unsuccessful in relation to legal aid and any appeal against the legal aid refusal.  An application for legal aid might explain some of the delay but the delay itself is of some concern. 

8. There is a sense in which the appeal would be rendered nugatory if the stay is refused.  Without a stay the mother would be required to travel to New Zealand with the child, or the child would be taken to New Zealand.  I understand that the father has indicated a willingness to return the child to New Zealand. 

9. As to the strength of the proposed appeal, the mother’s Notice of Appeal says that she has new and important evidence that needs to be considered and that the orders currently in place serve to cause an irreparable amount of psychological damage to her daughter, placing her at grave risk of physical and psychological harm to the point of being inhumane.

10. There are a number of concerns about that but the first point to be made is that even if the appeal is successful and the orders are set aside, subject to some other direction of the Full Court, that would leave in force the original orders requiring the return of the child to New Zealand.  

11. It may be that the orders of 18 May 2018 would be set aside and the Full Court could re-exercise the first instance discretion to discharge the return order but again, there has been no appeal against the original order.

12. The mother says that she has taken some action that was requested by McClelland J.  This is relevant to one of the two pieces of new evidence that the mother intends to put before the Full Court.  The trial judge referred to the evidence of the child’s treating paediatrician and expressed some concerns about the evidence but, ultimately, was satisfied that there would be grave risk to the child if the child was separated from the mother for the purposes of the return.  The reasons for judgment of 18 May 2018 included at [25]:

    In this matter the Court would have been assisted by more detailed evidence from Dr J and in particular Dr J’s opinion as to the potential consequence of the child being separated from the mother.  Nevertheless, even on the basis of Dr J’s statutory declaration and the evidence of the mother, to which I have referred, I am satisfied that the child being returned to New Zealand other than in the presence of the mother would place the child in a situation where the child would face a grave risk of harm as contemplated by regulation 16(3)(b). 

13. And the reasons went on to explain why that would be. It appears that the mother had made a case under reg 16(3)(b) of the Regulations, but the judge does not say anything more about that. Making a defence under reg 16 of the Regulations does not mean that the application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention”) would be refused, but it enlivens a discretion to consider refusing to order a return. His Honour goes on:

    However, I have noted, by reference to the wording of regulation 16(3), the mother carries the onus of establishing the existence of a grave risk.  The mother has not presented evidence that she would allow a situation to occur where the child would be separated from her as a result of her failing to accompany the child on the child’s return to New Zealand.

14. And his Honour goes on to quote the passage from Butler-Sloss LJ in Re C (A Minor) (Abduction) [1989] 1 FLR 403 in relation to the importance of not allowing the person who wrongfully removed a child to establish grave risk by their own conduct.

15. Obviously the trial judge was not literally inviting the mother to adduce more evidence.  The mother’s application today is not an application to McClelland J to reopen consideration of the 19A application.  She could have raised that when judgment was delivered.  In any event, the trial judge seems to have accepted Dr J’s opinion.  What was missing before the trial judge was any evidence that the mother would allow the child to travel without her.  The problem for the mother is that she does not have probative evidence to offer the Court about that issue even now. 

16. In my view, even if accepted, the new evidence of Dr J is irrelevant.  The judge has accepted it.  The new piece of evidence that the mother intends to put before the Full Court is a letter from a midwife dated 11 July 2018 from the maternity unit at the K Hospital that reads: 

    To whom it may concern,

    Due to the high risk nature of this pregnancy, [Ms Smollett], DOB …1993 G₃P, at 29⁺¹ wks, is not safe to fly interstate.

17. I indicated to the mother earlier today that any evidence would need to be on oath but I accept that could be corrected.

18. In my view a midwife is not qualified to express an opinion of the type offered, even this opinion about interstate travel.  In my view a midwife is not qualified to express an opinion about a medical matter.

19. The mother has prepared some written submissions which are really by way of the provision of more information rather than submissions in the strict sense. There is a reference to the possibility of the New Zealand Court making an order that the child remain in Australia. The mother explains in her submissions that she made her first application on 21 May 2018. She used the wrong form, she says and had to send it again. She was given a directions conference date before Judge Moran on 29 June 2018. There is a very brief judgment from Judge Moran of the New Zealand Family Court the gist of which was that the mother appeared by telephone, the father was represented, and the child was represented. There was an objection in some form, on behalf of the father, to the Court exercising jurisdiction. I suspect that can only have been an objection to exercising jurisdiction at that time because if the New Zealand Court does not have jurisdiction when the child returns there, then, all of this has been to no avail, remembering that the point of the Regulations is that they take up the Convention. The central tenet of which is that children be returned to the place of their habitual residence to have a relevant court decide about their living arrangements. The New Zealand Court, the mother tells me, will decide this matter again this coming Friday.

20. The mother says that she was advised by Helpline that she could appeal if she had new evidence.  She obtained a more detailed letter from Dr J, and a letter from her midwife.  The mother says – and there is no evidence about this – that she has gestational diabetes and if travelling to New Zealand she would need to carry a diabetes kit with her and to see a dietician in the hospital.  She says that the reason why that evidence was not given at the hearing on 18 May 2018 was that Dr J was of the belief that his other letters would be enough.  I do not understand that.  The doctor is not to know what the requirements are of the law in relation to child abduction.  Perhaps he was being asked the wrong question. 

21. The mother says she did not produce evidence of her high-risk pregnancy because her first concern was the child, and she was focused on gathering information about the child’s autism.  Well, it is not really relevant to deal with that.  As I say, the trial judge said that he accepted the evidence of Dr J, but that evidence went to there being a risk to the child if the child was separated from the mother.  There was and is no evidence that the mother cannot travel.

22. The problem is an obvious one.  An order has been made several times for the child to return to New Zealand.  There has been a hearing about the issue.  There has been no challenge to the original judgment.  An application was made after the event to set the order aside because of something that had arisen since.  That was a diagnosis of autism for the subject child.  That came before the trial judge in May 2018.  The trial judge indicated that he accepted that there was a grave risk if the child was separated from the mother, but as he explained, there was no indication that the mother leave the child in that situation.

23. The mother wants to appeal against that decision.  She wants to put before the Court evidence from a midwife.  Even if that evidence was in proper form, that is, on affidavit, and the deponent understood her obligations as an expert and she qualified herself as a treating therapist (including when she started treating the mother, what observations she has made of the mother, and what her qualifications are to do that), in my view, she would not be qualified to give the medical certificate that she has purported to give about interstate air travel.

24. Perhaps if everything else was addressed there would be an inference that someone who could not fly interstate cannot fly to New Zealand.  I do not know. 

25. For those reasons the mother’s application is dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 18 July 2018.

Associate: 

Date:  31 July 2018