State Central Authority and Bacman

[2019] FamCA 441

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BACMAN [2019] FamCA 441

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Interim hearing.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: State Central Authority

RESPONDENT: Ms Bacman

FILE NUMBER: MLC 14920 of 2018

DATE DELIVERED: 3 July 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms Reiseger

COUNSEL FOR THE RESPONDENT: Ms Bryan

SOLICITOR FOR THE RESPONDENT: KCL Law

Orders

IT IS ORDERED THAT:

1. The mother forthwith file and serve a Notice of Address for Service of the application State Central Authority’s application filed 1 July 2019 for return of the child X born … 2017 to Norway pursuant to reg.16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).

Adjourned date

1. This matter be adjourned for the further hearing of the said application before me on 17 July 2019 at 9:15 a.m. (“the adjourned date”) for directions for trial.

Obligations of respondent on or before adjourned date

1. The respondent mother:

   (a)       Attend Court personally and remain at Court pending further order of the Court;

   (b)       Deliver the child to the Child Care Room on the 5th Floor of this Registry of the Court by not later than 9.00 am, where the child shall remain pending further order of the Court.

2. IT IS DIRECTED that my Associate reserve a place in the Child Care Room for the child X born … 2017 on the adjourned date from 9.00 am onwards.

Respondent to file answering material

1. On or before 17 July 2019 at 10:00 a.m. the respondent mother file and serve:

   (a) Form 2A response in which she specifies with precision the bases (if any) upon which she opposes the return of the child to Norway pursuant to reg.16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”);

   (b)All affidavit evidence and proofs of evidence upon which she proposes to rely in support of any opposition to return.

Stay of parenting proceedings pending determination of return application

1. The requesting parent file and serve a Notice of Address for Service in the parenting proceedings commenced by the mother’s Application Initiating Proceedings filed on 24 December 2018 and I relieve the father from compliance with r.8.05(4)(a) of the Family Law Rules 2004 (address for service must be in Australia) providing that he specifies an email address at which he may be served with documents.

2. The parenting proceedings be stayed until further order.

Request for the appointment of an independent children’s lawyer

1. Pursuant to section 68L of the Family Law Act 1975 the interests of the child X born … 2017 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 attend at Court on the adjourned date.

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

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

Interim injunctions to secure the location and safety of the child

1. 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 child or upon which the said child appears and, then, be and is hereby restrained from applying for any further or other passports for the said child pending further orders of this Court.

2. That until further order, the respondent by herself and her servants or agents be restrained by injunction from causing or permitting or suffering the said child:-

   (a)       to be removed from the State of Victoria; and

   (b) to reside at any other than their present 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 child may reside;

   (c)to be assessed by a psychologist, counsellor, medical practitioner or like professional for the sole or ancillary purpose of obtaining evidence for use in this proceeding without the prior written consent of the applicant.

3. Until further order, each of the mother MS BACMAN born … 1984 and her servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child X born … 2017 from the Commonwealth of Australia.

4. Until further order, the prohibition against removal of the child X born … 2017 from Australia, out of Victoria and from her current residence applies mutatis mutandis to the requesting parent, MR C born … 1991, of Town A, Norway AND IT IS DIRECTED that the applicant bring this Order to the attention of the requesting central authority so that the requesting parent will have notice of this injunction.

5. Until further order, the child X, female, born … 2017 be and is hereby restrained from leaving the Commonwealth of Australia.

6. IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.

7. A copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

8. 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.

Conditions to return

1. On or before 10:00 a.m. on 17 July 2019 the respondent mother file and serve an affidavit in which she sets out with specificity any conditions to return which she seeks be imposed by the Court in the event that the child is ordered to be returned to Norway.

2. 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 child to Norway in the event that I find that the child must be returned to Norway pursuant to Regulation 16(1) of the Regulations in the company of the mother.

Mediation

1. By the adjourned date the applicant State Central Authority ascertain whether the requesting parent is prepared to participate in a mediation or conciliation of parenting matters generally, including the issue of forum under the 1980 Convention, and any conditions on return.

Annexures to documents

1. I relieve the parties from compliance with Rule 15.08(2)(b) of the Family Law Rules so that all annexures identified in an affidavit are to be attached to the affidavit and accepted for filing.

Liberty to apply

1. I reserve to the requesting parent, Mr C 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.

Reasons for decision

1. My reasons for decision be transcribed and, when transcribed, be released to the parties to the proceedings.

AND IT IS NOTED that to the extent that Division 4 of Part XIIIAA of the Family Law Act 1975 (International Protection of Children) applies to these proceedings the orders in relation to the care, custody and location of the child and /or directed to restricting the movement of the child are orders made pursuant to s111CD(1)(b)(i) of the Act being Commonwealth personal protection measures taken for the child’s protection as a matter of urgency.

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 & Bacman 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 MELBOURNE

FILE NUMBER: MLC 14920 of 2018

STATE CENTRAL AUTHORITY

Applicant

And

MS BACMAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me on the first return date of the application of the State Central Authority for the return of X, who is nearly two years old, to Norway pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The requesting parent is Mr C who resides in Norway.

2. The respondent mother has notice of this application by virtue of her solicitors seeing it on the portal.  Today, she is represented although not physically at Court herself.

3. The mother has proceedings before the Court for parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”).  The parenting application has not been served on the father and no substantive orders have been made.  However the father has notice of it by virtue of having been contacted by the Department of Health and Human Services consequent upon the mother having also filed a Notice of Risk of Abuse.

4. The orders that I have made are non-contentious.  They set the matter up for a trial date which I would estimate would be some time in August 2019 although a date has not yet been fixed. 

5. The mother is to file her material by 17 July 2019.  That gives her at least two weeks in which to do so.  I understand that there is some difficulty in the office of her solicitors because the solicitor with carriage of the matter is about to leave the firm.  However, these are Hague proceedings.  The application must be dealt with as expediently as possible and the mother has given extensive instructions to the firm which will retain her file.  The mother should not expect any extension of time in which to file.  On the adjourned date, I will make orders requiring the State Central Authority to provide evidence in reply to mother’s response.  They should expect on the adjourned date, which is 17 July 2019, that they would have certainly no more than two weeks in which to do so.  Accordingly, the State Central Authority and requesting parent in Norway should be preparing to produce the evidence in reply in a short period of time.

6. An interesting aspect of this matter is that the mother filed the initiating application for the parenting proceedings it is said on 21 December 2018, although the documents appear to be stamped 24 December 2018, I am informed that service was withheld on written direction to the mother or her solicitors from the police authorities in Norway.  The practitioners for the mother will produce that direction. 

7. There are certain injunctions which preserve the location of the child in this jurisdiction.  They apply both to the father and to the mother.  I am mindful that the father has not been afforded procedural fairness in respect of the injunctions that I have ordered operate against him.  I will reserve to the father liberty to apply on short notice to vary or set aside any of these orders or as he may be advised. 

8. This matter will proceed under a trial conducted by me in the Melbourne Registry for Hague return matters.  Given the child is not yet two years of age, I do not see the amenity of her being assessed by a Family Consultant at this stage.  The child will be brought to Court on the return date and, hopefully, a representative from the Department of Health and Human Services will attend, in a caseworker capacity, to observe the child.  I do not anticipate that there would be any detailed examination of the child.  It is merely so, as it is incumbent upon Australia as a contracting state to ascertain that we are dealing with the correct child. 

9. Section 68L of the Act provides that an Independent Children’s Lawyer may be appointed in Hague return proceedings of this nature, only if there are exceptional circumstances justifying me doing so.

10. It is difficult to know what exceptional circumstances are in an area of law in which each case is exceptional.  Certainly, in other contracting States such as the United Kingdom, a child would be represented in proceedings such as this.  We are a signatory to the United Nations Convention on the Rights of the Child and that imposes obligations on Australia to have proceedings conducted in a way in which the child’s interests are protected and the child is appropriately kept informed.  This child is too young to be informed but, certainly, her interests are capable of being represented.  That entails a case being run and evidence adduced consistently with her interests and, particularly, where the child’s immediate and short term interests may not coincide with the interest of the applicant State Central Authority or the respondent mother. 

11. The exceptional nature of this matter is that, to my mind, the parents both allege against each other, although in separate proceedings, some mental instability and erratic or unexplained behaviour which, if true, would impact on the interests of the child.  The mother says that the father has sexually abused the child, which he denies.  In short compass, the father says the mother is delusional or lying and, in any event, has acted to X’s detriment by wrongfully retaining her in Australia and depriving X of an ongoing face to face relationship with the father.  Each allegation is very serious and will, in due course, need to be determined by a court which is competent to do so. 

12. This is a case where, as of today, I am not satisfied that either parent will necessarily advance a case consistently with X’s best interests.  For instance, the applicant might secure X’s return to Norway but conditions attendant on that return will presumably need to address the competing but unresolved positions of the parties who each allege that the other has harmed the child and will continue to do so.  Within the parameters of a forum selection process, this Court will permit some assessment of the risk alleged by the mother in the context of determining whether appropriate safeguards can be put in place to ameliorate the risk of harm as alleged until such time a court in Norway can be appropriately seized of the matter.  This Court’s function in these forum proceedings will legitimately fall short of making findings about whether the alleged abuse occurred as alleged or at all. 

13. In order to dispose of the proceedings as expeditiously as possible, the Court and the parties must prepare for outcomes.  If I have concerns about the mother’s mental health, conditions to return may need to protect X from the existing or potential harm associated with a primary carer who is mentally ill, who has little or no insight and who is required to return to a very stressful situation (Norway) and an environment where she has negligible support.  The risk which the mother alleges the father poses to the child is less nuanced but would likely require “mirror” orders being obtained in Norway for the personal protection of the mother and the child.

14. In all of the circumstances, I am satisfied that X’s predicament is exceptional enough to warrant her interests being represented by a solicitor appointed by Victoria Legal Aid.  I will make the order for that to occur. 

15. The parties should by the next return date have considered whether the matter would be enhanced or made direct judicial communication between Australia and Norway.  Of course, not occur without the prior consent of all parties to the proceedings.    

16. The parties should also consider whether they will participate in a specialised Hague mediation which would be free of cost to them as far as Victoria Legal Aid is concerned, but they may wish to be represented by solicitors for which they would pay.  That specialised mediation service is provided by Victoria Legal Aid.  I commend it to them.  They should be aware that these proceedings are, essentially, interim in nature and that where the application for return may be granted or not, what they then have to contend with are parenting arrangements for X from then on.  The mediation may actually not address whether the child is returned to Norway or not.  The mediation may address what will happen in the event the child is returned and in the event the child is not returned.  That would certainly be a responsible position for the parties to negotiate around. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 July 2019.

Associate: 

Date:  8 July 2019