State Central Authority & Alexander (No. 2)

[2013] FamCA 169

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & ALEXANDER (NO. 2) [2013] FamCA 169

FAMILY LAW – CHILD ABDUCTION – Hague abduction proceeding – case management – request for the appointment of an independent children’s lawyer – mediation – mediation of Hague matters in New Zealand – scope of mediation – access to child by left behind parent if, and when left behind parent arrives in Australia

APPLICANT:  State Central Authority

RESPONDENT: Mr Alexander

FILE NUMBER: MLC 562 of 2013

DATE DELIVERED: 12 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wilson

SOLICITOR FOR THE APPLICANT: State Central Authority, Department of Human Services Court Advocacy Unit

COUNSEL FOR THE RESPONDENT: Mr Hall

SOLICITOR FOR THE RESPONDENT: Bayani Harvey Lawyers

Orders

In the matter of State Central Authority and Alexander, I make the following orders.

IT IS ORDERED THAT

1.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child T born … November 2003 (“the child”) be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation as soon as practicable and the independent children’s lawyer turn his/her immediate attention to the following:-

a)      appropriate arrangements for the mother to spend time with the child as and when the mother arrives in Melbourne for the purpose of participating in the hearing; and

b)     the availability of mediation in the event that the mother and the father are each agreeable to participating in mediation prior to the final hearing on 2 April 2013.

2.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

3.That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

4.I reserve liberty to the applicant State Central Authority, the respondent father and to the independent children’s lawyer to apply for a discharge of the independent children’s lawyer after he or she has attended to the matters requiring immediate attention.

5.By not later than 12.00 noon on 20 March 2013 the applicant State Central Authority:-

a)      file and serve any affidavit in reply upon which it proposes to rely in response to the evidence of the father filed on 8 March 2013; and

b)     whether or not the State Central Authority relies on any evidence in reply, it file and serve a statement by the requesting parent as to the accuracy or otherwise of the text messages which are annexed to the affidavit filed by the father on 8 March 2013.

6.The applicant State Central Authority forthwith provide each other party to the proceedings with a USB stick containing the alleged telephone conversation between the mother and the father conducted in early January 2013 and any aide-memoire upon which it relies or considers may be of assistance to the other parties or the Court.

7.Contemporaneously with compliance with paragraph 6 of this Order, the applicant State Central Authority provide the same documents on USB to the Subpoenaed Documents Clerk of this Registry of the Court where they are to be held until further order and be accessible if they are introduced into evidence in this proceeding.

8.For the avoidance of doubt, the paragraphs of this Order relating to the production of the telephone conversation recording does not constitute any ruling as to the admissibility of that telephone conversation as evidence in this proceeding.

9.By not later than 12.00 noon on 15 March 2013 the father file and serve any evidence upon which he proposes to rely from Mr B and Ms J.

10.By 12.00 noon on 22 March 2013 the State Central Authority indicate whether it requires either Mr B or Ms J for cross-examination.

11.Any cross-examination by Mr B or Ms J which is required to be by video link be paid for by the father initially.

12.In the event that the mother and the father do agree to participate in a mediation anything said or done in the mediation is not admissible as evidence in this proceeding.

13.There be liberty to apply on short notice for orders relating to time being spent between the mother and the child, the mediation, or to otherwise ready the matter for trial.

AND IT IS NOTED that the applicant State Central Authority did not wish to avail itself of an earlier hearing on 21 and 22 March and this matter remains fixed for final hearing before me on 2 April 2013 at 10.00 am subject to part-heard cases only.

AND IT IS FURTHER NOTED that

A.To date the applicant State Central Authority has been unable to obtain instructions as to :-

i)      when the mother will travel to Australia and/or her proposals to spend time with the child whilst in Australia;

ii)     whether the mother will participate in mediation.

B.Any mediation may include the parents endeavouring to reach agreement on parenting arrangements for the child in the event that the child is returned to New Zealand or is not returned to New Zealand notwithstanding that one of those outcomes is contrary to the outcome for which he/she contends in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Alexander (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 MELBOURNE

FILE NUMBER: MLC 562 of 2013

State Central Authority

Applicant

And

Mr Alexander

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me for mention preliminary to the final hearing which is listed to commence on 2 April 2013 and in which the State Central Authority seeks the prompt return of the child T, (“the child”) (who is nine years old) to New Zealand pursuant to the 1980 Convention. 

2. A number of matters have arisen today. 

3. First, whether the hearing can be brought on sooner.  On 6 March 2013 my chambers wrote to the parties, who are the State Central Authority and the solicitors for the father, advising that an earlier date for hearing had become available in my docket and the matter could be accommodated on a final basis on 21 and 22 March 2013.  Time is of the essence in matters such as this and I had been somewhat dismayed when the matter came to me on 25 February 2013 without a final hearing allocated that I was not able to allocate a date sooner than 2 April, particularly  having regard to the fact that the application was filed in January this year.

4. I am informed by Ms Wilson for the State Central Authority that on 6 March 2013 she communicated in writing, presumably by email, with the State Central Authority in New Zealand notifying them of the opportunity to have the matter determined earlier.  On Friday, 8 March 2013 Ms Wilson received instructions to the effect that the earlier hearing date was not convenient as the requesting parent, Ms Allen, had already arranged to travel to Australia in anticipation of the hearing set down at the beginning of April 2013 and could not change her arrangements.  I understand and take no issue with that aspect of the matter.  The final hearing will remain listed to commence on 2 April 2013.

5. On 25 February 2013 there had been discussion before me of whether or not the mother would travel to Australia to give evidence and to participate in the hearing, particularly having regard to the fairly costly exercise of obtaining her cross-examination by video link.  On 25 February 2013 Ms Wilson informed the Court that, as best she understood the mother was only contemplating travelling to Australia to collect the child in the event that he is ordered to be returned and, as far as she knew, the mother would not be in Australia otherwise.

6. Ms Wilson now informs me that either on or shortly after 25 February she made further inquiries of the Central Authority in New Zealand as to two matters.  The first was pursuant to paragraph 3 of my Order on 25 February 2013, and that was to inquire whether the mother would participate in mediation.  That was regardless of whether or not the mother was going to attend the hearing.  Obviously if she was to attend the hearing the mediation should be a face-to-face mediation and would, in any event, have to be organised quickly if it was going to be organised at all.

7. The other matter that Ms Wilson responsibly raised with the Central Authority in New Zealand was that, if the mother did propose to come to Australia to participate in the hearing, what time she would seek to spend with the child during her stay here.  Being able to reunite the mother and the child is a matter which I made known would be treated as a priority if it is consistent with the child’s best interests. 

8. Ms Wilson advises me today that she has not received any instructions apropos of mediation or the mother spending time with the child.  That is puzzling.  Ms Wilson must obtain instructions from our Central Authority who, in turn, takes instructions from the Central Authority in New Zealand.  She cannot contact the left behind parent directly.  However, the Central Authorities are professional and model litigants who well understand that instructions should be formulated and conveyed promptly.  I don’t know what has happened in this case such that there has been no response to matters raised on 25 February 2013.

9. I have raised with both parties whether they have any objection to the appointment of an independent children's lawyer now.  I understand that in this case the role of an independent children's lawyer might be somewhat limited.  However, had there been one to start with, the independent children's lawyer would doubtless have made arrangements for any mediation to which the parents would agree and would have been able to find out with relative ease when the mother is attending and whether she proposes to spend time with the child and what arrangements she wants for that time.  This is more than the two Central Authorities concerned with this matter have been able to do to date.

10. If Victoria Legal Aid accedes to my request and funds the appointment the case may be allocated to one of the in-house practitioners who have extensive experience in these Hague return matters.  Any mediation would also be free of cost to the parents and be conducted by the specialist Hague mediators.

11. It would be unfortunate if the mother has to raise a separate application when she arrives in Melbourne to be able to see the child.  The father, through his counsel, Mr Hall, says that he is supportive of the mother spending time with the child, although he is apparently somewhat concerned about the reunification of the child with the mother, given the period for which they have been apart.  I am reminded that the child came to Australia in December 2012 so I am not too concerned about any adverse impact about the child seeing his mother for that reason alone.  The child’s reaction will largely be determined by how the adults, and in particular the father, conduct themselves around the child and in anticipation of any access.

12. Having regard to the slow pace at which this matter has moved to date and the inability of Ms Wilson to obtain instructions which were sought by her on or after 25 February 2013, I am satisfied that the appointment of an independent children's lawyer is justified.  It may be that the independent children's lawyer is subsequently discharged.  In the meantime, the two tasks upon which I would ask the independent children's lawyer to concentrate are the feasibility of a mediation being conducted within a few days of the hearing, and secondly, what arrangements can be made for the child to see the mother as and when she arrives in Melbourne.

13. The next matter is about further evidence.  The father has filed further material on 8 March 2013, as he was entitled to do.  I can, and will, make provision for the mother to file any reply to that material by 20 March.  Regardless of whether or not the applicant  wants the mother to give evidence in  reply to the father’s affidavit I do require that the applicant obtain admissions as to the accuracy or otherwise of fairly numerous text messages which are attached as an annexure to the father’s affidavit and to do so by 20 March.  In the event that the mother says that these are not an accurate representation of the text messages, that they have been tampered with or edited in some way, I trust that the device upon which the text messages are currently stored will readily be made available for examination prior to the hearing.

14. Fourth, Ms Wilson has a recording of approximately 35 minutes duration which is the telephone conversation between the mother and the father in January 2013.  It appears to Ms Wilson, who has listened to the recording, to be a telephone conversation taped without the express consent of the father.  It is not a contentious issue.  Ms Wilson will provide a copy of the telephone conversation and a copy of the aide-memoire which she has put together (which is not a transcript) to the practitioners for the father and to the independent children's lawyer and to the Court.  That will be in the form of a USB stick and the copy can be retained by each person.  I make it clear that I am not ruling on the admissibility of the recorded telephone conversation in evidence.  I will await objections and/or submissions or concessions in that regard.  The parties may also consider seeking to admit the evidence by consent.

15. The final issue by way of tidying up the matter is that the father relies on the evidence of Mr B and Ms J, who have together written a “letter” of their recollection of an event in New Zealand.  The letter is not in admissible form.  If the father relies upon what his friends say, he is to put that in admissible form, that is, on affidavit by 15 March 2013.  In the event that the State Central Authority wants the makers of the affidavits available for cross-examination they must give notice to the husband by 22 March 2013.  Any cross-examination will be at the expense of the father, at least initially.  I note that the applicant has indicated that it does not consider the ‘evidence’ to be contentious but we will see.

16. I will reserve liberty to the parties to mention this matter urgently in the event that there is any difficulty with the time being spent between the child and the mother or if a mediation is convened and it is necessary for the Court to make any orders in that regard.  I do not lose sight of the fact that the parties to interim parenting or access orders will be the mother and father and, only to a nominal extent, the State Central Authority.  If the mother seeks orders, it would be of assistance if she had some representation, at least in New Zealand.  The independent children’s lawyer will be of assistance to the parents in formulating his/her recommendations for the appropriate access and having the matter re-listed with a minimum of expense and delay.  It is important that everyone has notice of what orders the parents seek.  I would be amenable to giving permission for an application to be made orally provided that everyone is accorded procedural fairness.

17. It is expedient at this point to make an order, which is the usual order where mediations do occur, that if there is a mediation then anything said or done during the mediation cannot be used in evidence in the proceeding.  That does not mean that there will be a mediation but, if there is one, it is going to be without prejudice and anything arising from it (with the exception of a concluded agreement) cannot be used as evidence in this proceeding or before any person acting judicially. 

18. Historically the Central Authority in New Zealand has not appeared to encourage mediation or countenance that mediation should cover anything other than conditions of return.  It is a curious position given the detailed and, with respect, very well thought out Practice Note for Hague proceedings in their own Court, issued by then Principal Family Court Judge, Judge Peter Boshier.  The Practice Direction came into operation for New Zealand on 24 March 2011 and in 3 pages sets out the mediation process in removal, retention and access cases under the 1980 Convention.  The Permanent Bureau for the Hague Conference on Private International Law has also published material endorsing mediation being the Guide to Good Practice Child Abduction Convention – Mediation: HccH, 2012.

19. For the avoidance of doubt, I will not permit any mediation to delay the final determination of the Hague return application and, indeed, with public holidays falling immediately prior to the hearing, a mediation may not be feasible (and will certainly not be feasible unless someone like an independent children’s lawyer is pro-active about it).  If it is feasible, it seems to me humane to offer it.  Any mediation in this matter should afford the parents an opportunity to discuss not only conditions of return but what parenting arrangements each party will seek if the child is required to return to New Zealand or if the applicant’s application is dismissed and the child remains in Australia.  That is, each parent should consider specifically what arrangements he/she would agree to for each possible outcome of this proceeding.  Much time has been lost.  My concern in this case is that without intervention of an independent children’s lawyer, the parents may not be afforded an opportunity to mediate at all.

ORDERS DELIVERED

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 March 2013.

Associate: 

Date:  13 March 2013