State Central Authority and Abdalle

[2011] FamCA 80

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & ABDALLE [2011] FamCA 80

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Ex-Parte orders

APPLICANT: State Central Authority

RESPONDENT: Ms Abdalle

FILE NUMBER: MLC 798 of 2011

DATE DELIVERED: 3 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms Noble, State Central Authority

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. That leave is granted to the applicant State Central Authority to proceed ex-parte with orders in the terms of paragraphs (b), (c) and (d) of the application filed on 1 February 2011 and to make oral application for injunctive relief to prevent examination or assessment of the children A born … June 2001, F born … March 2003, N born … June 2005 and M born … November 2008 (or any of them), without notice, pending the trial.

2. That this matter be adjourned for the further hearing of the said application before me at 9.15 am on Friday 11 February 2011 (“the adjourned date”).

3. That the applicant State Central Authority effect service of the application and this Order upon the respondent mother as soon as practicable.

4. That in the event that the respondent mother has been served with the application by the adjourned date:-

   a)she attend Court personally on the adjourned date and remain at Court pending further order of the Court;

   b)the mother deliver the children A born … June 2001, F born … March 2003, N born … June 2005 and M born … November 2008 to the Child Care Room on the 5^th Floor of this Registry of the Court by not later than 9.00 am on the adjourned date where the children shall remain pending further order of the Court.

5. IT IS DIRECTED that my Associate or Court Officer reserve a place in the Child Care Room for A born … June 2001, F born … March 2003, N born … June 2005 and M born … November 2008 on the adjourned date from 9.00 am onwards.

6. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children A born … June 2001, F born … March 2003, N born … June 2005 and M born … November 2008 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations by 11 February 2011 about any interim orders and evidence at the hearing.

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

8. 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.

9. That until further order or return of the said children to the United Kingdom, the Secretary to the Department of Human Services of the State of Victoria or her delegate make such arrangements as are necessary for the purposes of placing the said children with an appropriate person, institution or body and upon such terms and conditions as she shall determine to secure the welfare of the said children pending final determination of this proceeding.

10. That until further order, such Officers of the Department of Human Services, Victoria, as the Secretary to such department may from time to time direct, be authorised and permitted to visit and enter the place of residence of the respondent and to have such access to the said children as they may reasonably require for the purposes of investigating and determining the welfare of the said children and if considered appropriate to take the said children into care.

11. That until further order, the respondent be and is hereby restrained from causing, permitting or suffering the children (or any of them) to be assessed by a psychologist, social scientist, medical practitioner or like professional without the prior written consent of all parties to this proceeding or order of the Court.

12. That until further order, the respondent Ms Abdalle born … 1978 by her servants or agents be restrained by injunction from causing or permitting or suffering the said children A, male, born … June 2001, F, female, born … March 2003, N, male, born … June 2005 and M, male, born … November 2008:-

    a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;

    b)to be removed from the State of Victoria; and

    c)to reside at any other than their identified residential address (which must be advised to the applicant’s solicitors in writing) or any other residence at which the applicant has agreed that the said children may reside.

13. That the prohibition against removal of A born … June 2001, F born … March 2003, N born … June 2005 and M born … November 2008 from Australia, out of Victoria and from their current residence applies mutatis mutandis to the requesting parent, the father, British Passport Number …, of …, United Kingdom.

14. That the respondent, her servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Melbourne for safe custody any and all passports held in the name of the said children or upon which the said children (or any of them) appears and be and is hereby restrained from applying for any further or other passports for the said children (or any of them) from any government pending further order of this Court.

15. That a sealed copy of these Orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.

16. That I reserve to the requesting parent, the father, liberty to apply to vary or set aside or discharge any injunctions provided in this Order which affect him or as he may be advised.

AND IT IS REQUESTED that on the adjourned date the applicant State Central Authority be in a position to inform the Court of what arrangements can be made to support the prompt return of the respondent and the children to the United Kingdom in the event that I find that A born … June 2001, F born … March 2003, N born … June 2005 and M born … November 2008 must be returned to the United Kingdom pursuant to Regulation 16(1) of the Regulations and that the respondent ought to be able to accompany the children.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 798 of 2011

STATE CENTRAL AUTHORITY

Applicant

And

MS ABDALLE

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. These proceedings are brought by the State Central Authority against the mother, Ms Abdalle, seeking a return of four children A born in June 2001, F born in March 2003, N born in June 2005 and M born in November 2008 to the United Kingdom pursuant to our Family Law (Child Abduction Convention) Regulations.

2. The applicant seeks to proceed without notice to the respondent.  It is not usual for matters to be determined, even on an interim basis, without a person affected by the orders being given notice of the application which they face and being accorded procedural fairness which, necessarily, includes a right to be heard in opposition to the orders and otherwise.  However, Australia is a signatory under an international convention and is required to locate and keep safely children who are the subject of applications brought under the 1980 convention. 

3. The orders which I am asked to make today are fairly extensive but they do not, in my assessment, impinge unacceptably on the rights of the respondent mother having regard to what is at stake. 

4. I have acceded to a request that the matter come back before me on an early adjourned date of 11 February 2011.  In the meantime it is intended that the mother will be able to be served at the home of her sister and brother-in-law.

5. The mother can approach the court at any time seeking to vary or set aside any of the orders that I make today as can the requesting parent against whom I have made orders which would prevent him removing the children from Australia if he did happen to arrive here.  Those orders were also made without notice to him. 

6. It is alleged that the respondent and the requesting parent were living in England – were living in London - where all four children were born and when, on 6 January 2010, the mother excluded the father from the family residence. 

7. The requesting parent has not since seen all of the children.  He saw A, the oldest child, at school on 8 January 2010 but has not seen him since that time.  On 16 March 2010, the father again approached the principal of A’s school and asked to see A.  He was advised by the principal that the school was aware of criminal charges about to be brought against the husband for sexual offences involving the oldest daughter of the marriage, F, who would then have been just seven years of age.

8. The requesting parent deposes that he was arrested and charged with rape of F on 24 April 2010 and he entered into bail conditions and he was bailed with conditions including that he have no physical or other contact with any of the children or the mother.

9. It is alleged that on 24 August 2010, the requesting parent was told by his brother-in-law (with whom the mother and children are thought to be now residing) that the mother and the children were in Australia but not given any further details. 

10. In September 2010, the bail conditions were discharged for "lack of evidence".  It is not clear from the papers which accompany the application whether the lack of evidence pertained to the fact that the significant witnesses, being the mother and F, were out of the jurisdiction and not available to give evidence or whether there had been a merits examination of the evidence and it had been decided that there was insufficient evidence to sustain a conviction on the offences with which the father had been charged. 

11. On 24 September 2010, the requesting parent made an application to the Central Authority for England and Wales seeking the return of the children and alleging a wrongful removal and seeking a return of the children to the United Kingdom.  On 24 October 2010, the father was informed by the local authorities that the criminal investigations surrounding the alleged offences included medical evidence which corroborated the allegation that F had been raped.  There is no further detail in the documentation as to the nature of the corroboration.  On 9 November 2010, the requesting parent swore an affidavit in support of that application. 

12. The mother will be served in due course and will be able to appear before the court and, as indicated, seek a relaxation of any interim orders which I've made today if she is minded to do so.  In due course she will need to specify any exceptions or grounds upon which she will rely to oppose the summary return of the children to London.  It will be important for her to obtain legal representation very quickly.

13. I note that at page 15 of the application submitted by the requesting parent under the heading:  Arrangements for the Return of Children, the requesting parent was required to provide certain information and to indicate whether he was prepared to travel to Australia both to attend a court hearing if necessary and to collect the children if the application was successful, or to indicate any other person who could do so on his behalf.

14. The requesting parent's response is:

    "The father is on a very low income and unable to afford the flights to Australia to collect the children or attend any hearing.  The father has no family in Australia who can assist him."

15. The four children who are the subject of the application are aged between nine and a half years and two years.  They would travel as children on any commercial airline although it would be likely necessary for them to be accompanied by an adult who would travel at a presumably higher fare.  If the application succeeds, the expense of returning the children to the United Kingdom will be considerable.  I have discussed with counsel for the State Central Authority this morning that I would not be inclined to embark upon a hearing and make any determination of the application on its merits if it did not appear that there was some means of implementing the orders which the State Central Authority might obtain. 

16. The whole basis of the 1980 Convention and our Regulations is to provide hot pursuit remedy.  Subject to a few exceptions, there can be a summary return of the children to their place of habitual residence, usually for the purpose of the parents taking proceedings in an appropriate court or forum to determine parenting matters.  It is a proceeding to select a forum for determination of parenting arrangements.

17. Unless a fund can be found either at the disposal of the mother or through the requesting parent or through some other means by which the return of the children to London can be financed promptly, there would appear to be some basis for the respondent or anyone else to make an application for a stay of the proceedings pending those funds being identified.  I am not making any final decisions.  However, it would appear to be a flawed proceeding for the Court to make summarily an order for the return of the children to England and have that order not implemented because of lack of financial resources.  I raise this matter now for consideration by all relevant parties at a later date.

18. I have also made a request to Victoria Legal Aid for the appointment of an independent children's lawyer.  That is pursuant to section 68L of the Act which provides that an independent children's lawyer may be appointed where the best interests of a child or a child's welfare is a relevant consideration.

19. In the event that the mother seeks to rely upon any of the exceptions to mandatory return, – the welfare of the children is a relevant consideration in the exercise of any discretion which arises as a result of an exception being made out.  Section 68L subsection (3) provides that the appointment of an independent children's lawyer should only be sought if there are "exceptional circumstances that justify doing so".  I have indicated that I will wait to hear submissions in relation to exceptional circumstances from all of the parties when they are before the court. 

20. The international experience is that the appointment of an independent children's lawyer can lead to a delay in the disposition of the proceedings.  However, that is usually because the appointment is sought too late in the proceedings.  In making this order now, I am endeavouring to avoid any delay in the appointment of an independent children's lawyer.  As I have said, every party will be able to make submissions subsequently in relation to the exceptional circumstances which apply to this case. 

21. Finally, as indicated, the mother can return the matter to court prior even to the early return date and seek to vary or set aside these orders as she may be advised.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 February 2011.

Associate: 

Date:  21 February 2011