State Central Authority and Best

[2012] FamCA 461

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BEST [2012] FamCA 461

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Alleged wrongful retention under the 1980 Convention – ex parte orders – orders for security of children pending service and early return date

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980 (entered into force 1 December 1983)

APPLICANT: State Central Authority

RESPONDENT: Ms Best

FILE NUMBER: MLC 3396 Of 2012

DATE DELIVERED: 18 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 18 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Ms Nolan

State Central Authority
Department of Human Services

COUNSEL FOR THE RESPONDENT: EX PARTE

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1. 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 18 April 2012.

2. This matter be adjourned for the further hearing of the said application before me at 10.00 am on 24 April 2012 (“the adjourned date”).

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

4. In the event that the respondent mother has been served with the application by the adjourned date, she attend Court personally on the adjourned date and remain at Court pending further order of the Court.

5. Until further order or return of the children to the United States of America, 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 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.

6. 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.

7. Until further order, the respondent by her servants or agents be restrained by injunction from causing or permitting or suffering the children or either of them:-

   (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 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 children may reside;

   (d)       attend at any school or educational institution other than the school or institution at which she is enrolled; and

   (e)       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.

8. The prohibition against removal of the children from Australia, out of Victoria and from their current residence applies mutatis mutandis to the requesting parent, Mr Khirmani, of … Las Vegas, Nevada …, United States of America, 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 it.

9. 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 children or either of them or upon which the said children appear, and then be and are hereby restrained from applying for any further or other passports for the children pending further orders of this Court.

10. Pursuant to section 68L(2) of the Family Law Act 1975 (Cth), the interests of the children J KHIRMANI born … January 2005 and R KHIRMANI born … February 2007 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 familiarise himself/herself with the matter before the adjourned date, to contact any school at which either or both of the children attend, and to give a preliminary consideration to the possible benefits for the children of their parents mediating the issues in this proceeding and parenting issues generally.

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

12. 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.

13. 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.

14. 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 States of America in the event that I find that the children must be returned to the United States of America pursuant to Regulation 16(1) of the Regulations but that I do not accede to the requesting parent’s proposal that he travel to Australia to collect the children.

15. I reserve to the parties, including the independent children’s lawyer, liberty to make submissions subsequently as to the appropriateness of the request for an independent children’s lawyer having regard to the provisions of s68L(3) of the Family Law Act 1975.

16. I reserve to the requesting parent, Mr Khirmani, 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3396/2012

State Central Authority

Applicant

And

Ms Best

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the children J Khirmani (“the older child”) born in January 2005 and R Khirmani (“the younger child”) born in February 2007, and were brought by the State Central Authority under Regulation 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) which regulations implement Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980 (entered into force 1 December 1983) (1980 Convention).  The application is made at the behest of the children’s father, Mr Khirmani, who resides in Las Vegas, Nevada, in the United States of America. 

2. The respondent to the application is the children’s mother, Ms Best, who is thought to be residing with her parents at their home in suburban Melbourne.

3. These proceedings come before me ex parte the respondent mother

4. It is alleged that the girls have been wrongfully retained in Australia, within the meaning of the Regulations, since 4 September 2011, when the respondent mother and children failed to return to the Unites States, as had been arranged between the mother and the requesting father.

5. I am informed of the following matters from the application and the documents which are sent in support of it. 

6. The father is 37 years old.  He was born in Saudi Arabia but is a citizen of the United States.  He is a medical professional in current employment in Las Vegas.  The respondent mother is 36 years old.  She is qualified to work as an accountant.  She is an Australian citizen by birth and is a permanent resident of the United States.  The girls were born in the United States.  The older child was born in New York.  The younger child was born in California.  The girls have dual Australian and United States citizenship.

7. The mother and father married in New York in 2002.  In September 2008 the parents and the two girls moved to Las Vegas, Nevada, to live.  In November 2010 the mother and girls “moved to Pennsylvania to live with the [father’s] brother and sister in law for a cooling off period”.  Over the next seven months the father visited Pennsylvania on three occasions to see the family and to “look for jobs”.  The mother sought to holiday with the girls in Australia, which is her country of origin and where the maternal grandparents of the girls reside.  The father agreed and he was instrumental in purchasing all three airlines tickets for the mother and girls.  They were ticketed to depart the United States on 16 June 2011 and to return to the United States on 4 September 2011.

8. The girls and mother travelled on 16 June 2011, with the father’s knowledge and consent, but did not return on 4 September 2011.  The return tickets have now been cancelled.

9. The father has maintained electronic communication with the girls and, until December 2011, with the mother.

10. The State Central Authority says that immigration records confirm that the children are currently in Australia.

11. On the above facts, I am satisfied that the application prima facie meets the requirements of Regulation 16(1A). 

12. The applicant State Central Authority seeks to proceed on an ex parte basis for such orders as will secure the whereabouts of the children until the mother can be before the court.  The respondent mother does not have notice of these proceedings.  The above history is without any input from her.  Ms Nolan says that there are no concerns about the immediate care of the children but that the applicant wants to remove any risk of the children being moved or placed out of the jurisdiction of this court before the return application can be determined.

13. The right to know what proceedings are brought against you is a fundamental right within our legal system.  In exceptional circumstances, however, the court can make orders without the respondent being aware of what proceedings are brought and without having been afforded an opportunity to be heard in opposition or at all.

14. Australia, through the Central Authority and the State Central Authority delegates, has an obligation to all other contracting states under the 1980 Convention to discover the whereabouts of the children and to prevent further harm to the child or prejudice to the parties by taking or causing to be taken provisional measures[1].  The applicant seeks orders as envisaged by Regulation 14(1)(a) and (2), which Regulation implements into Australian domestic law the obligations of the Central Authority and its delegates under Article 7 of the 1980 Convention.

    [1] Article 7(a) and (b)

15. The State Central Authority submits that there is at least a theoretical risk that notice to the mother of these proceedings could result in her fleeing with the children.  To me, that risk seems more apparent than real.  However, if the facts of the matter are as the father has deposed or stated in support of the application, the mother has acted unilaterally and to his detriment on at least one occasion, which circumstance continues.  Accordingly, I cannot discount that there is some risk of flight.  I am also mindful that very little prejudice should to flow to the mother from the orders which I am asked to grant on an ex parte basis.  This is relevant in terms of the balance of convenience which, I find, favours the applicant.  I can make the proceedings returnable at an early date, which is not a panacea for lack of procedural fairness but would provide the respondent mother with an early opportunity to seek to vary or set aside any orders in the terms of the relief sought or as she may be advised.  Additionally, I can reserve liberty to the mother to apply independently of the return date six days hence.

16. As routinely occurs to me in applications of this nature, if the purpose of the ex parte relief is to secure and safeguard the whereabouts of the children, the father (not just the respondent mother) should be enjoined from causing or permitting the children to be removed from Australia pending further order of the court or a final determination of the application for return.  There is no suggestion in the father’s evidence or information of him employing a self help remedy, but it is a sorry happening when it occurs or is attempted, and I have not yet heard the mother’s side of the story.  The applicant State Central Authority has no objection to an order to the effect that the father will also be enjoined, until further order, from removing the children from Australia.  The State Central Authority will bring the order to the attention of the requesting parent and he too will have liberty to apply to set aside or vary the injunction or as he may be advised.

17. I am satisfied that the applicant should be able to proceed ex parte.  The orders sought on an interim basis are merely to keep the girls safe and their whereabouts secure between now and the time that the court can dispose of the matter finally.  Following service of the application and significantly before the final determination, the mother will have opportunities to be heard on the dissolution of the orders I make today.  I will allocate this matter an early return date being next Tuesday.

18. I have also requested the appointment of an independent children’s lawyer. This is over the submission of the applicant State Central Authority that it was premature to do so. Ms Nolan has heard my reasons on numerous occasions as to why it is appropriate to secure the independent representation of children at the earliest possible date. S68L(3) of the Family Law Act 1975 (Cth) provides that the court may only order that a child’s interests in Hague abduction proceedings (such as these) are to be independently represented by a lawyer if it considers that “there are exceptional circumstances that justify” the appointment and specify those circumstances in making the order.

19. Ms Nolan has no objection to me postponing delivery of my reasons for making the order requesting the appointment of an independent children’s lawyer and, furthermore, permitting the respondent mother and independent children’s lawyer to make submissions on the issue at such time as they are before the court and either wish to do so. 

20. I will request that an independent children’s lawyer to be appointed in the meantime so that he or she will be on hand by the next return date.  The request can be reversed. However, international experience indicates that the difficulty with any delay in the proceedings caused by the independent representation of children, or their interests, is the timeliness or lack of timeliness associated with their appointment.  In this case I wish to avoid any such delay.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 18 April 2012.

Associate: 

Date: