State Central Authority and Afridi
[2018] FamCA 649
•27 August 2018
FAMILY COURT OF AUSTRALIA
CORRIGENDUM - 30 AUGUST 2018
| STATE CENTRAL AUTHORITY & AFRIDI | [2018] FamCA 649 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Transnational access application under the 1980 Hague Convention – exceptional circumstances justifying the appointment of an independent children’s lawyer – Regulation 26 report on interim access arrangements – support provided by the 1996 Hague Convention – direct judicial communication between the International Hague Network of Judges – case management. |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Mr Afridi |
| INDEPENDENT CHILDREN’S LAWYER: | Mr M Finn |
| FILE NUMBER: | MLC | 9325 | of | 2018 |
| DATE DELIVERED: | 27 August 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 27 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | State Central Authority, Department of Human Services |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | Knight Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Clark Family Lawyers |
Orders
IT IS ORDERED THAT
1.This matter be fixed for final hearing before me to commence on 2 April 2019 at 10.00 am estimated to take 4 days.
2.This matter be listed before me for mention on Thursday 4 October 2018 at 9.00 am by telephone for review as to the availability of mediation about preliminary matters. The parties be at liberty to seek, through the independent children’s lawyer, an administrative adjournment of the mention by consent if it is agreed that a later mention date would be more productive.
3.By not later than Friday 2 November 2018 at 12.00 noon the respondent father file and serve any response to the Form 4 application and any affidavit evidence in support thereof including a response to all affidavit evidence filed by or on behalf of the applicant State Central Authority.
4.The independent children’s lawyer do all acts and things necessary to arrange for a mediation to address any preliminary issues (such as the child being returned to Fiji to live), to be convened by the Family Dispute Resolution Service section of Victoria Legal Aid as soon as is convenient.
5.Notwithstanding any other order to the contrary, for the purpose of application to Victoria Legal Aid Round Table Dispute Management the independent children’s lawyer is hereby authorised to provide to Victoria Legal Aid Family Dispute Resolution Service Management:-
a. any family report;
b. any document referred to in this Order;
c. any document filed in these proceedings and any transcript of viva-voce evidence of a family consultant; and
d. any other report by a professional in this matter that the independent children’s lawyer considers is necessary.
6.To the extent that the parties need permission to do so, they may each cause an unlimited number of subpoenas to produce documents to issue.
IT IS ORDERED BY CONSENT THAT:
7.The father do all acts and things necessary to facilitate the child X, female, born … 2013 to have electronic communication with the mother by Skype or other similar facility as follows:
a) each Thursday at 9.00 am (Melbourne time) until 1 September 2018;
b) from 1 September 2018 and thereafter each Thursday at 9.00 am (Melbourne time) and each Saturday at 9.00 am (Melbourne time); and
c) for such other times as agreed between the parties and confirmed in writing.
8.The Skype or like communication provided for in the preceding paragraph of this Order be of 30 minutes duration or longer if the child evidences a willingness or desire to continue after 30 minutes.
9.The times and days for Skype or like communication may be varied upon the independent children’s lawyer informing the parties that there is assistance available for the mother through International Social Service’s partner, being B Group in City C in Fiji, such as would provide support to the mother for the establishment of duration of the electronic communication.
10.In the event that support is forthcoming from B Group in City C but the parties cannot reasonably agree on times for Skype communication which are convenient for B Group in City C, the independent children’s lawyer arrange for this matter to be relisted for a telephone mention before me without delay.
IT IS FURTHER ORDERED BY THE COURT THAT:
11.The time for compliance by the father with his obligation to deliver up the child’s passport to the Registrar of this Court be extended to 4.00 pm this day.
12.The evidence of the family consultant, Ms E, be transcribed and when transcribed a copy be made available to the parties and the original be placed on the Court file.
13.Until further order, the respondent father and the requesting parent be and are hereby restrained by injunction from causing permitting or suffering there to be any discussion whatsoever with the child or in circumstances of which the child could become aware, or any evidence given by the family consultant to the Court this day.
14.The applicant State Central Authority, in its capacity as a child welfare authority, cause a home visit to be conducted to the father’s residence at F Street, Suburb G, as soon as practicable and cause a report to issue in relation to the care arrangements for the child X.
15.Exhibit “F1”, being a list of people residing in the father’s household, and “C1” being correspondence from International Social Service, remain on the Court file.
16.The applicant State Central Authority advise the other parties to the proceedings as soon as possible of the mother’s preparedness to engage in a specialised Hague Family Dispute Resolution Service mediation to be provided by Victoria Legal Aid.
17.I reserve to the mention date the issue of what report should be prepared pursuant to Regulation 26(1) of the Regulations in anticipation of the final hearing.
18.I reserve to the requesting parent liberty to seek to vary or set aside such of these orders or as she may be advised.
19.Each parent is at liberty to cause a recording to be taken of the Skype or other electronic communication between the mother and the child NOTING THAT any such recording is to be done without the knowledge of the child and all such recordings are to be retained (and not wiped or edited) it being anticipated that the recordings or copies will be called for at the final hearing of this matter or sooner.
20.The independent children’s lawyer be at liberty to provide a sealed copy of this Order to the proper officer of the Family Dispute Resolution Service, Victoria Legal Aid and/or the proper officer of International Social Service.
21.There be liberty reserved to the requesting parent and/or the applicant and respondent to make any further interim applications concerning face to face between the child and the mother.
22.Any further proceedings in this matter, including allegations of contravention of order, be listed before me as soon as practicable by liaison with my Associate – email ...
23.There be liberty to apply generally.
24.IT IS REQUESTED that International Social Service provide such support to the family, including the mother in City C, Fiji, to facilitate Skype or similar communication.
IT IS NOTED:
A.That the parties consent to Direct Judicial Communication between the judges of the International Hague Network for Australia and Fiji on issues of:-
a) Obtaining a copy of the file from courts before which this matter has come in Fiji;
b) Whether the proceedings in Fiji in respect of which interim orders have been made will continue having regard to the coming into force between Australia and Fiji of the “Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children or Hague Convention 1996”;
c) What procedure would be necessary for dissolving the bench warrant issued against the father on 17 November 2017.
B.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
C.That the father will not be present in the household due to work commitments for the Skype or similar communication which falls on a Thursday and it is contemplated that he will arrange for someone else to facilitate the time between the mother and the child.
D.Any such mediation arranged in relation to interim or immediate issues is without prejudice to the parties’ ability or obligation to participation in mediation immediately prior to any final hearing.
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 State Central Authority & Afridi 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 |
FILE NUMBER: MLC 9325 of 2018
| State Central Authority |
Applicant
And
| Mr Afridi |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This matter is brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) and concerns the child the child who is nearly 5 years old. The application of the State Central Authority was filed on 14 August 2018 on a request from the State Central Authority of Fiji. The requesting parent is the children’s mother, Ms H of City C, Fiji, (“the mother”). The respondent is the child’s father who resides in Suburb G, Victoria, Australia, (“the father”).
The State Central Authority (“the applicant”) seeks orders for the child to have access with the mother by Skype or similar medium twice a week, face to face for one half of the long summer school vacation in Fiji (airfares to be shared equally) and for the father to provide the mother with regular updates on the child’s academic progress and any health issues.
Today is the first day following service of the application on the father. The child has been assessed by a family consultant who then gave evidence to the Court and was asked a few questions by the representatives for each party.
The respondent father is yet to file a response. I was informed by his lawyer that the father is agreeable to some Skype communication twice a week but opposes any order for face to face time. However, following the family consultants’ evidence and late in the day his solicitor informed the court that the father is considering whether the child should be returned to the mother in Fiji to reside permanently.
The Conventions
Australia and Fiji are contracting states to the Convention on Civil Aspects of International Child Abduction which was concluded at The Hague on 25 October 1980 (“the 1980 Convention”). The 1980 Convention entered into force between Australia and Fiji on 1 May 2000.
The 1980 Convention is given effect in Australia by the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The Regulations rather than the Convention have the force of law in Australia. Wrongful removal and retention cases, often referred to as “abduction cases”, are dealt with in Parts 2 and 3 of the Regulations. Requests to central authorities and court applications for enforcement or facilitation of rights of access are dealt with in Part 4 of the Regulations. These proceedings are under Part 4 of the Regulations.
For ease of reference and consistently with the language of the 1980 Convention, I will henceforth refer to time spent and communication under the general description of “access”.
Article 1 of the Convention describes one of the objects of the Convention as being to ensure that rights of access under the law of one Contracting State are effectively respected in the other Contracting States. Article 21 of the Convention provides:-
An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co‑operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.
Regulation 24 of the Regulations provides as follows:-
(1) The Commonwealth Central Authority must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia if:
(a) it receives a request from a Central Authority on behalf of a person who claims:
(i) to have rights of access to the child under a law in force in a convention country; and
(ii) that those rights have been breached; and
(b) it is satisfied that the request is in accordance with the Convention.
…
(4) For subregulation (1), the action taken may include any of the following:
(a) transferring the request to a State Central Authority;
(b) applying to a court under regulation 25 for an order that is necessary or appropriate to establish, organise or secure the effective exercise of the rights of access to which the request relates;
(c) seeking an amicable resolution in relation to the rights of access to the child.
Regulation 25 provides that the applicant State Central Authority may apply to the court for, inter alia, orders specifying with whom a child is to spend time or communicate as well as any other order that is appropriate to give effect to the Convention. On the determination of the matter, it will be within the court’s discretion to make any of the following orders:-
· an order for the child to spend time or communicate with the mother (Regulation 25A(1)(a));
· any order which the court consider is appropriate to give effect to the Convention (Regulation 25A(1)(b));
· such order imposing conditions on the child spending time or communicating with their mother as the court is satisfied is appropriate to give effect to the Convention (Regulation 25A(1)(c)).
This is an application for the establishment and effective exercise of access rights.
Also relevant to these proceedings is The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children concluded at the Hague on 19 October 1996 (“the 1996 Convention”).
The 1996 Convention entered into force between Fiji and Australia on 18 June 2018.
The 1996 Convention operates to harmonise private international law in relation to children as between contracting states by providing, inter alia:-
a)a common set of rules for the exercise of jurisdiction so as to avoid two contracting states from making contrary determinations about the same subject matter;
b)for recognition and enforcement between contracting states of measures directed to the protection of children’s persons and property. In this context a “measure for the protection of a child’s person” can be read as a parenting order as defined by s.64B(2) which provides for the person(s) with whom a child is to live, the time a child is to spend with another person(s), the allocation of parental responsibility of the child. It also includes the supervision by a public authority, such as Department of Health and Human Services in Victoria, of the care of the child by any person having charge of the child;
c)for the establishment of necessary co-operation between authorities (including courts) of contracting states in order to achieve its purposes –
In so doing, the 1996 Convention operates in support of the 1980 Convention.
The 1996 Convention does not operate retrospectively. Article 53(1) of the 1996 Convention makes clear that the 1996 convention applies as only measures of protection (i.e. relevant parenting orders) which are taken in a state after the 1996 Convention has entered into force with that country. Article 53(2) provides that the recognition and enforcement provisions apply only to measures taken (orders made) after the 1996 Convention has entered into force as between the two contracting states concerned.
Short History
When the respondent father’s response is before the court, it will be possible to identify with precision the factual and other issues for determination. In the meantime, I observe that the applicant’s information (from the requesting parent) and submissions made on behalf of the father today from the bar table indicate that:-
a)The child was born in Country J in 2013 and spent the first six months of her life in Country J in the care of the mother. The mother and child then went to Fiji where the child resided until the end of February 2016.
b)On 26 February 2016 the mother consented to the child residing with the father and then relocating permanently to live in Australia. The father moved immediately to Australia where he now lives with his four children and his partner and others.
c)The context in which the father obtained permission to relocate included a verbal agreement that entitled the mother to Skype communication with the child. However, Skype communication has occurred on only one occasion (April 2016). A further order was that the mother would be able to have face to face contact with the child when the father and child are in Fiji but there has only been one such visit (8 April 2017) during which the mother alleges that she was permitted only brief access to the child.
d)Communication between the child and the mother has broken down.
e)On 21 April 2017 the Fiji Magistrates’ Court refined the order of 26 February 2016 to provide for particular days and times but the mother has still not had communication with the child.
f)The father appealed the orders of 21 April 2017 which appeal was dismissed on 15 September 2017 and the mother directed to seek access under the 1980 Convention.
g)On 17 November 2017 the father failed to appear in the Fiji High Court at City C for his appeal against the interim orders in Family Case number … and a bench warrant was issued for the arrest of the father. The warrant remains unexecuted.
h)There are competing allegations of family violence. The respondent father alleges that the mother relinquished care of the child in 2016 because she was found to have perpetrated family violence against the child. The family violence was not specified but the father’s lawyer referred to the fact that the equivalent of an intervention order had been granted in Fiji against the mother for the protection of the father and child. On the other hand the mother makes specific allegations of violence by the father, to her, which she allegedly supports with photographs of bruising inflicted by the father on her. The mother also alleges family violence in the form of emotional blackmail and degrading and demeaning behaviour.
Nature of the access proceedings
I hold to the view which I expressed, about the nature of access applications under the Regulations, in State Central Authority and Peddar [2008] FamCA 519. Whilst the Regulations provide the framework within which the State Central Authority can prosecute and participate in parenting proceedings, the principles for determination of access, including time to be spent with and communication between a child resident in Australia and a parent in another Convention Country, are the same principles that generally apply to children in Australia. Accordingly, in determining whether to make the access orders sought in this application, the best interests of a child is the paramount consideration.
The best interests test is articulated in Part VII of the Act and the relevant primary and additional considerations are set out in s 60CC:
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying the primary considerations, the court is to give “greater weight” to that which is necessary to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are set out in s.60CC(3). They are
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Parental responsibility
Insofar as the order about information on progress of the child is concerned, that should not be an issue. Pursuant to s61C of the Family Law Act 1975, subject to court orders to the contrary, each of the parents of a child who is not 18 has parental responsibility for the child.
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[1]
[1] Family Law Act 1975 (Cth) s 61B.
Section 61DA provides that when making a parenting order[2], I must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. By virtue of this application for access orders, s.61DA is engaged.
[2] Family Law Act (Cth) s 64B(2)-(4A) defines “a parenting order” and what a parenting order may provide.
Equal shared parental responsibility relates to decision making about ‘major long term issues’, which are defined in s 4 of the Act as follows:-
…issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[3] The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[4] and to ‘make a genuine effort to come to a joint decision about that issue’.[5] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
[3] Family Law Act 1975 (Cth) s 65DAC(2).
[4] Family Law Act 1975 (Cth) s 65DAC(3)(a).
[5] Family Law Act 1975 (Cth) s 65DAC(3)(b).
The presumption (s.61DA) that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[6] or abuse of the child or another child who is a member of the parent’s family;[7]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[8] or;
c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[9]
[6] Family Law Act 1975 (Cth) s 61DA(2)(b).
[7] Family Law Act 1975 (Cth) s 61DA(2)(a).
[8] Family Law Act 1975 (Cth) s 61DA(3).
[9] Family Law Act 1975 (Cth) s 61DA(4).
At this very early stage of the proceedings, I do not consider that it is in the child’s best interests to alter the status quo and share parental responsibility equally between her parents. It would not be conducive to sound and prompt decision making. However, the consideration of the appropriateness of equal shared parental on a final basis is an entirely different question.
At the moment, the mother’s parental authority is equivalent to that of the father but, practically speaking, it is difficult for her to enforce. The father’s preparedness to share information about the child with the mother will be a point of focus at the final hearing. The father should be encouraged to keep the mother appropriately informed directly or through an intermediary in the meantime.
A request for the appointment of an independent children’s lawyer
On 21 August 2018, I pronounced orders which included an order requesting that the child’s interests in the proceedings be independently represented by a lawyer. Section 68L(3)(a) of the Act provides that in proceedings that arise under Regulations, the court may order that a child’s interests in proceedings be independently represented by a lawyer only if the court considers that there are exceptional circumstances that justify it doing so. To the extent that s.68L(3)(b) requires that I provide reasons which specify the exceptional circumstances to which I have regard in making the order, these are my reasons.
Section 68L(3) was introduced into the Act in 2006 prior to which there was no requirement to demonstrate exceptional circumstances. It is apparent that the restriction of independent children’s lawyers in Hague cases was primarily directed to the abduction of children between contracting states rather than trans-national access cases. The rationale provided in the Parliamentary papers was:-[10]
Under the Hague Convention, generally a country is required to send a child abducted to its jurisdiction, back to the country of habitual residence of the child prior to the abduction from that country. There should be no need, therefore, to inquire into the best interests of the child in Australia. That would be a matter for the country of habitual residence of the child.
[10] Further Revised Explanatory Memorandum, Family Law Amendment Bill 2000 (Cth) 47 [293].
Where, as in this case, the best interests of the child is not only a matter for enquiry but the paramount consideration, there appears to be no justification to exclude the children of trans-national families, where one parent activates the 1980 Convention, from the benefit of independent representation. Indeed, the fact that the State Central Authority has carriage of the matter and the mother is merely a witness indicates a greater than usual need of the child’s interests to be represented.
If this access application was bought without reference to the Regulations, I would order independent representation. Not to do so might put at risk the recognition and enforceability of resulting orders as occurred in the recent case of F v M [2018] EWHC 2106. In F v M, decided on 3 August 2018, Cohen J of the High Court of England and Wales upheld a decision refusing to recognise an order under the 1996 Convention where child (then 9 years old) had not been given an opportunity to be heard in the proceedings before the Zamoskvoretsky District Court through a social science assessment or legal representation or directly by a judge.
Section 68L(3) provides that there must be exceptional circumstances justifying an order for the independent representation of a child’s interests. As was cited by Dawe J in State Central Authority & Ustinov (No. 4) [2008] FamCA 987 at [12]:-
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
This definition is helpful in determining whether exceptional circumstances exist in the appointment of an independent children’s lawyer in proceedings arising under the Convention regulations.
I am satisfied that this case contains a number of novel issues which take it outside the routine or ordinary case and that, accordingly, the child’s interests require the attention of an independent children’s lawyer. These include:-
(a)the child’s day to day living arrangements are not known to the mother or the applicant State Central Authority and the father is unaware of the mother’s circumstances. I have required the applicant to conduct a home visit of the father’s residence and to report to the court. I expect that the independent children’s lawyer will assist the mother to initiate a request pursuant to Article 35(2) of the 1996 Convention for the authorities in Fiji to gather information and evidence about the mother’s “suitability to exercise access and on conditions under which access is to be exercised”.
(b)The Independent Children’s Lawyer can arrange a specialised mediation through the Family Dispute Resolution Service of Victoria Legal Aid at no cost to the parents. This will be essential just before the final hearing.
(c)The applicant State Central Authority will cooperate with, but not participate in, the mediation. The independent children’s lawyer should be on hand to raise issues pertinent to the child.
(d)The Independent Children’s Lawyer must assist the parents to prepare for outcomes by, amongst other things, investigating how any orders made in this court can be rendered enforceable in Fiji. This is likely to be through Articles 28 and 26 of the 1996 Convention but there is no evidence of whether a “simple and rapid procedure” is in place in Fiji to secure enforceability.
(e)The Independent Children’s Lawyer is required to liaise with International Social Service and its partner in City C, Fiji, B Group, to ascertain whether the mother’s electronic communication with the child can be supported by them. The re-introduction of communication with the child is likely to be fraught and require a great deal of personal restraint by the mother. The specific reasons emerge from the evidence of the family consultant give today but I am satisfied that, in order for the reintroduction to work as well as possible, the mother will need professional support prior to and concurrently with the re-introduction of communication. This will entail someone being present during the first sessions.
Very significantly, towards the end of the hearing, the lawyer for the father informed the court that the father is considering sending the child back to live in Fiji, presumably with the mother. It is in the child’s interest for this to be explored before the parents are required to start gathering evidence and preparing for the access case. It is the responsibility of the Independent Children’s Lawyer to arrange a preliminary mediation through the Family Dispute Resolution Service to discuss and resolve whether the child will, in fact, remain living in Australia permanently or if a new parenting arrangement is appropriate.
The appointment of an independent children’s lawyer is consistent with Article 12 of the United Nations Convention on the Rights of the Child (UNCROC):
1.States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2.For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.’
The child is old enough to articulate a view. It may not be accorded determinative weight due to her age and maturity but she can articulate a view nonetheless. The evidence from the family consultant satisfies me that the child remembers the mother and is curious to see her and communicate with her. How this will eventuate is a matter on which the child is entitled to have someone speak in her best interest.
The restrictive approach to the representation of a child’s interests in any Hague proceeding is not consistent with other contracting states in civil law countries, like Germany, where hearing the child after three years of age, is mandatory. In the United Kingdom, Re D (A Child) (Abduction: Rights of Custody) concerned the objections of a young child to being returned to Romania consequent on a wrongful removal from Romania to England. The child was only four and a half years old when the proceedings commenced and seven and a half when the matter went to a final hearing. Baroness Hale of Richmond observed that courts in the United Kingdom were moving away from a restrictive approach to separate representation of children and toward the presumption[11] from within the European Union that a child will be heard unless it appears inappropriate to do so. Her Ladyship observed at par [60] that an interview of the child by a welfare officer may well be a sufficient mechanism to obtain a child’s views in an abduction case but -
[..] whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which adult parties are not putting forward, then the child should be separately represented.
[11] Provision for this is also contained in Article 11.2 of Brussels II Revised which provides that “When applying articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during proceedings unless this appears inappropriate having regard to his age or her age or level of opportunity.”
Finally, there are significant differences between a parenting case brought by the State Central Authority, such as the present proceeding, and abduction proceedings under the 1980 Convention which is a hot pursuit remedy in which time is of the essence. The present proceedings do not need to be, and should not be, conducted under the same imperatives of time. These proceedings will be determinative of significant matters for the child including the benefit to her of having a meaningful relationship with both of her parents and, if necessary, how that may be achieved having regard to her best interests as being the paramount, but not the only, consideration. Australia is the only jurisdiction in which that question can be determined. A Hague return case is, of its nature, an interim determination where no rights are defined and no final orders are made. The proceedings in this case will render a final determination.
For the aforementioned reasons, I am satisfied that the circumstances of this case justify the appointment of an Independent Children’s Lawyer.
The role of the Independent Children’s Lawyer
The role of an Independent Children’s Lawyer is to form an independent view, based on available evidence, of what is in the best interests of the child and then act in the proceedings in what he/she believes those best interests to be.[12] The independent children’s lawyer is not a legal representative retained by the child and is not bound by any instructions from the child.[13] The Independent Children’s Lawyer does not take instructions from either parent.
[12] Family Law Act 1975 (Cth) s 68LA(2).
[13] Family Law Act 1975 (Cth) s 68LA(4).
The role of the independent children’s lawyer is to deal impartially with the parties and ensure that any views expressed by the child are fully put before the court. It is also to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing matters to the court’s attention.
The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[14] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[15]
[14] Family Law Act 1975 (Cth) s 68LA(5)(d).
[15] Family Law Act 1975 (Cth) s 68LA(5)(e).
The independent children’s lawyer’s duty to act impartially does not preclude him/her from pursuing a course in proceedings which he/she discerns is in the best interests of the children even though such a position may be contrary to the position of one or both parents. The parents should expect the independent children’s lawyer to be robust in his/her approach to the case and to make recommendations for how the case could, or should, be resolved consistently with the best interests of the children. Recommendations may be made by the independent children’s lawyer of his/her own volition and/or when requested by the court. An independent children’s lawyer may make a series of preliminary recommendations prior to making a final recommendation. As with parents, an independent children’s lawyer may alter his/her final recommendations.
Jurisdictional issues
The solicitor appearing for the respondent father raised a jurisdictional concern. He referred to the pending proceedings in the Magistrates’ Court in City C in relation to parenting matters. He submits that Australia is the appropriate forum to make parenting orders about the child and that we ought to avoid a situation wherein the court in Fiji determines parenting orders in a manner which is at odds with whatever decision is made here, in Australia, about parentings orders.
The respondent’s solicitor is correct.
It is relevant to consider the operation of Part XIIIAA – Division 4 – International protection of children of the Act which implements the 1996 Convention into Australian law.
Subsequent to the child coming to live in Australia, her place of habitual residence changed from Fiji to Australia. Article 5(1) of the 1996 Convention provides that the state of habitual residence of the child has preeminent jurisdiction over parenting matters in relation to the child.
Given that the child is now both habitually resident and present in Australia, the circumstances in which the courts in Fiji would be competent to take measures or make parenting orders in relation to the child are confined to pre-existing proceedings for which the courts in Fiji have jurisdiction under Articles 5 to 10 of the 1996 Convention. On the facts of this case, those situations appear to be restricted to:-
a)divorce proceedings which are underway in Fiji and the parents ask the court in Fiji to decide parenting issues (Article 10);
b)where jurisdiction has been transferred from Australia to Fiji (Articles 8 and 9) –
neither of which apply.
Jurisdiction to take provisional measures under Article 12 or urgent measures under Article 11 is based on the presence of the child within the jurisdiction of Fiji, so cannot apply here.
It is not surprising that there are pending proceedings in Fiji because they were instituted in 2016 prior to the 1996 Convention entering into force in Fiji and as between Fiji and Australia on 5 June 2018.
The evidence in support of the application does include reference to pending proceedings in the Fiji Magistrates’ Court in Family Case number ... Whereas those proceedings may have been regularly instituted, it is difficult to see how they can be continued given the change of the child’s habitual residence (to Australia) and the coming into force between our respective countries of the 1996 Convention.
It would be of assistance if the status of the pending proceedings in Fiji could be clarified.
Preliminary social science assessment of the child
Regulation 26 provides that in proceedings under the Regulations, the court may direct that a family consultant report on such matters as the court considers relevant to the proceedings and to adjourn the proceedings to await preparation of the report. A family consultant is a social worker or a psychologist who is directly and exclusively employed by the Court to provide expert evidence on childhood development and parenting views after separation. The family consultant may report on any other matter that relates to the care, welfare or development of the child.
On 21 August 2018, I ordered that a regulation 26 report be prepared by a family consultant. The child was assessed this morning and Ms E delivered her observations orally this afternoon. I have ordered a transcript of Ms E’s evidence which will be published to the parties, relevant mediators, International Social Service and its’ partner in Fiji, B Group.
Ms E was an impressive witness. Her evidence was considered and clear and I accept it. I accord her evidence considerable weight.
Ms E expressed a firm view that the mother must not disrupt the emotional stability of the child within the father’s household. It will be upsetting for the mother to read that the child calls the father’s partner “Mummy” but I accept the evidence of Ms E that it would be damaging for the mother to create any conflict of loyalties for the child by requiring the child to recognise her as her only mother at this juncture.
It is also imperative that neither parent nor anyone else discuss with the child what the child said to Ms E. It would be contrary to the child’s interests to do so
The father’s household
For the record, the father provided details of the occupants of his household (Exhibit “F1”). They are:
a)The father, born in 1986, who is a tradesman;
b)Ms K, born in 1994, who is the father’s partner and is engaged in home duties;
c)Mr A Afridi, born in 1963, the paternal grandfather of the child who is employed as driver;
d)Ms L Afridi, born in 1968, the paternal grandmother who works in health services;
e)Ms M Afridi, born in 1991, the paternal aunt of the child, engaged in retail work;
f)Y, born in 2012, the child’s half-sister and daughter of the father, who currently attends school;
g)the child; and
h)Z, born in 2016, the child’s half-sister and daughter of the father and his partner, Ms K.
The father indicated that there were four bedrooms in the house and he, his partner Ms K and Z share a room, his parents share a room, his sister Ms M has her own room and Y and the child share a room. There was some reference to a new baby which I did not follow.
Y, aged 7 years, is the father’s child with Ms N. The father stated that Ms N lives locally and sees Y on Saturday. Y does not have overnight time with her mother. The father said that overnight time had not been discussed with or, inferentially, sought by Ms N. There are no parenting orders affecting Y.
Re-establishment of communication
The parties were able to agree on orders which were entirely consistent with the family consultant’s recommendations and I have made orders in those terms.
The first occasion of Skype communication should be this Thursday. The only previous Skype communication occurred in April 2016. The only face to face access was 16 months ago in April 2017. Re-establishment should be handled carefully. Hopefully International Social Service or its partner in Fiji, B Group, can assist the mother and possibly the father.
Face to face access
The applicant initially sought orders for the mother to have face to face access with the child, in Fiji, this coming long summer holiday but did not press the application in light of the family consultant’s evidence.
I accept the opinion of the family consultant that, having regard to the dislocation in the child’s contact with the mother, the first period of face to face access (if there is to be any) should occur with as little disruption to the child as possible. That is likely to be in Melbourne.
I have reserved to the parties liberty to apply. It would seem appropriate to consider face to face access once Skype communication has been established.
Direct Judicial Communication
The parties have consented to me engaging in direct judicial communication with the Hague Network Judge in Fiji on the following matters:
A.That the parties consent to Direct Judicial Communication between the judges of the International Hague Network for Australia and Fiji on issues of:-
a)Obtaining a copy of the file from courts before which this matter has come in Fiji;
b)Whether the proceedings in Fiji in respect of which interim orders have been made will continue having regard to the coming into force between Australia and Fiji of the “Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children or Hague Convention 1996”;
c)What procedure would be necessary for dissolving the bench warrant issued against the father on 17 November 2017.
The communications will be undertaken in conformity with the Emerging Guidance regarding the Development of the International Hague Network of Judges and General Principles for Judicial Communications, including Commonly Accepted Safeguards for Direct Judicial Communications in Specific Cases, within the Context of the International Hague Network of Judges published by the Permanent Bureau of the Hague Conference found at >
The communications will be conducted solely by email and all emails will be given to the parties and put into evidence with only the judges’ contact details redacted.
Conclusion
I am satisfied that the orders set out at the beginning of these reasons are in the best interests of the child. The proceedings are adjourned to 4 October 2018 for review following mediation. The parties can obtain an administrative adjournment if they agree that it would be more effective to conduct the mention on a later date.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.
Associate:
Date: 28 August 2018
CORRIGENDUM 30 AUGUST 2018
On Coversheet and Orders Page 3 in paragraph 1 of the Order made on 27 August 2018 delete the word “May” and insert the word “April”.
On Page 4 of the Reasons for Judgment at paragraph 16(a) delete the words “has” and “since” and insert after the word resided the words “until the end of February 2016”.
On Page 4 of the Reasons for Judgment at paragraph 16(c) delete the words “an order” and insert the words “a verbal agreement”.
On Page 4 of the Reasons for Judgment at paragraph 16(c) delete the word “that” in line 3 and insert the words “Skype communication”.
On Page 17 of the Reasons for Judgment at paragraph 68 delete sub-paragraphs B, C and D.
I certify that the preceding 5 numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Bennett AO
Associate:
Date: 30 August 2018
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