State Central Authority and Afridi - [2018] FamCA 649

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading State Central Authority and Afridi

Details

AGLC: State Central Authority and Afridi [2018] FamCA 649
Case: [2018] FamCA 649
Decision Date: 27 August 2018

CaseChat Overview and Summary

The parties before the court were the State Central Authority, acting as the applicant, and the respondent father, in proceedings concerning a child, X. The dispute involved the welfare and arrangements for the child, including her potential return to Fiji. The matter was heard by Bennett J.

The court was required to determine a range of procedural and interim matters to facilitate the progression of the case towards a final hearing. Key issues included the scheduling of the final hearing, the availability of mediation for preliminary matters, the filing of response evidence by the respondent father, and the arrangements for the child's electronic communication with her mother. The court also considered the role of the independent children's lawyer in facilitating mediation and providing necessary documentation.

Bennett J made a series of orders by consent and by the court. These orders established a timetable for the final hearing, mandated mediation for preliminary issues, and set deadlines for the filing of evidence. Crucially, the court ordered that the child have regular electronic communication with her mother via Skype, with provisions for the duration and potential variation of these times. The court also issued injunctions restraining discussions with the child about the family consultant's evidence and ordered a home visit by the applicant. Further orders related to the transcription of evidence, the retention of exhibits, and the provision of information to legal aid services. Liberty to apply was reserved to the parties.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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