State Central Authority and Best (No 2)
[2012] FamCA 511
•26 June 2012
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & BEST (NO. 2) | [2012] FamCA 511 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Consensual return of children to United States of America pursuant to Reg 16 of Family Law (Child Abduction Convention) Regulations 1987 – conditions to return – financial support to permit soft landing of children and mother back into United States – direct judicial communications – International Hague Network of Judges - reasons for ex parte orders requesting appointment of an independent children’s lawyer pending submissions from the parties – exceptional circumstances - role of independent children’s lawyer in Hague abduction proceedings. |
| Family Law Act 1975 (Cth) |
| Re D (a Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Best |
| INDEPENDENT CHILDREN’S LAWYER | Ms C Smith |
| FILE NUMBER: | MLC | 3396 | Of | 2012 |
| DATE DELIVERED: | 26 June 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 22 June 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms R Stoikovska |
| SOLICITOR FOR THE APPLICANT: | Ms Nolan State Central Authority |
| COUNSEL FOR THE RESPONDENT: | Ms J Stewart |
| SOLICITOR FOR THE RESPONDENT: | Barbayannis & Co Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms A Carter |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Victoria Legal Aid |
Orders
BY CONSENT IT IS ORDERED THAT:
1.The children J KHIRMANI (“the older child”) born … January 2005 and R KHIRMANI (“the younger child”) born … February 2007 be returned to the United States of America pursuant to Family Law (Child Abduction Convention) Regulations 1989.
2.Paragraph 9 of the Order made on 24 April 2012 be discharged and the children’s passports be released to the respondent mother this day.
IT IS FURTHER ORDERED BY THE COURT:
3.Subject to compliance by the requesting parent, Mr Khirmani (“the father”), with paragraph 5 of this Order, the mother do all acts and things necessary to ensure that the children are returned to the United States of America within two weeks of her receiving the younger child’s new passport.
4.The mother forthwith:-
a)Do all acts and things necessary to obtain a United States passport for the younger child;
b)Cooperate with the father to obtain registration or recognition of the Order by this Court made on 22 June 2012 in the proceedings between herself and the father in matter MLC 5624 of 2012 so that the Order is enforceable in Pennsylvania in the United States;
c)Provide the independent children’s lawyer with details of a bank account into which the monies referred to in paragraph 5(a) of this Order are to be paid.
5.The return of the children to the United States of America be and is hereby conditional upon the father attending to the following :-
a)Payment of US$35,000 in clear funds to the independent children’s lawyer to be held on trust for the mother and to be paid by the independent children’s lawyer to the mother, into a bank account nominated by the mother, such payment to be effected immediately after the mother has departed Australia bound for the United States and so as to be accessible to the mother upon her entering the United States;
b)Payment of the reasonable costs of airfares from Melbourne to Pennsylvania for herself and the children;
c)Providing proof or purchase or lease of a motor vehicle available for the mother’s use to transport herself and the children in Pennsylvania;
d)Providing proof of ongoing medical and health insurance coverage for herself and the children for three months;
e)To cooperate with the mother to obtain registration or recognition of the Order by this Court made on 22 June 2012 in the proceedings between herself and the father in matter MLC 5624 of 2012 so that the Order is enforceable in Pennsylvania in the United States.
6.Liberty to have matter relisted before me in the event of there being any difficulty with registration of the said Order made 22 June 2012 in the United States of America or with implementation of this Order generally.
7.Paragraphs 5, 6, 7, 8 and 10 of the Order made 18 April 2012 be and are hereby discharged immediately prior to, and so as to facilitate, the departure of the mother and the children from Australia to the United States of America.
8.I DIRECT that this order and my reasons for decision be transmitted to the father by being sent to him at [email addresses omitted].
9.The applicant State Central Authority be responsible for service of a sealed copy of this Order on the Australian Federal Police.
10.The application of the State Central Authority be and is hereby otherwise dismissed.
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 of 2012
| State Central Authority |
Applicant
And
| Ms Best |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
It is agreed that the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for mandatory return apply to J Khirmani (“the older child”) born in January 2005 and R Khirmani (“the younger child”) born in February 2007 and that they will be returned to the United States of America accompanied by the respondent mother promptly upon the mother having travel documents for both girls.
The issue which I am required to determine are what, if any, conditions are appropriate and ought to be made pursuant to r 15(1)(c) as giving effect to Convention on the Civil Aspects of International Child Abduction which was opened for signature 25 October 1980 entered into force between Australian and the United States of America on 1 December 1983 (“1980 Convention”).
Ms Stoikovska of counsel appeared for the applicant State Central Authority. Ms Stewart of counsel appeared for the mother who attended court. Ms Carter of counsel appeared for the independent children’s lawyer. The father was linked in by audio visual transmission from Las Vegas where he sat with his attorney, Mr Marks, for the duration of the final hearing. The transmission was effected at the cost of the father. I took a limited appearance from the father in relation to temporary parenting orders which were made[1] outside these return proceedings. Otherwise, the State Central Authority was the applicant and the father was merely an observer.
[1] See paragraphs 22 and 36 to 39 of these reasons
On 18 April 2012 I requested the appointment of an independent children’s lawyer and said that I would deliver my reasons for so doing after all parties had an opportunity to make submissions. I will also provide my reasons for requesting the appointment of an independent children’s lawyer for the girls on 18 April 2012.
Background
The application is made at the behest of the children’s father, Mr Kharmani, who resides in Ls Vegas, Nevada, in the United States of America.
The respondent to the application is the children’s mother, Ms Best. The mother and the girls are currently with her parents at their home in suburban Melbourne.
These proceedings came before me on 18 April 2012 when I made certain orders ex parte to safeguard the whereabouts of the girls and for the appointment of an independent children’s lawyer to represent the children’s interests in this proceeding. The case neutral citation for my reasons for decision on that day is [2012] FamCA 461.
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 earning in excess of UD$300,000 per annum. 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 elder child was born in New York. The younger child was born in California. The girls have dual Australian and United States citizenship.
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. It is apparent that the mother and father each recognised that there were difficulties in the marriage and the family’s time in Pennsylvania was a temporary break or a break preliminary to a separation. The father does not demur from the mother’s evidence that she disliked Las Vegas intensely and considered it an unsuitable environment in which to raise children. In recent times, the father deposes as to why the mother should not hold that view but he does not cavil with the fact that she was, and remains, very poorly disposed to Las Vegas and moved the girls away from that environment in November 2010 for that reason and with his agreement.
After the mother and girls moved to Pennsylvania in November 2010, the father visited Pennsylvania on three occasions in seven months to see the family and, he says, to look for employment. In 2011, the mother obtained the father’s permission to holiday with the girls in Australia, her country of origin and where the maternal grandparents of the girls reside. The father was instrumental in purchasing all airline tickets. The mother and girls were ticketed to depart the United States on 16 June 2011 and did so. Their return journey was booked for 4 September 2011. The girls and mother did not return on 4 September 2011. The return tickets have now been cancelled.
It is conceded by the mother 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 father.
Until November 2011 the mother had access to a bank account into which the father deposited funds. Since November 2011, that access ceased and the father has paid US$5,000 per month to the mother for the financial support of herself and the children.
The father has maintained electronic communication with the girls throughout and, until December 2011, with the mother.
The mother agrees to return the children to the United States. She originally sought to take the girls to live in Bethesda, Maryland which is where her aunt resides. Neither she nor the children have ever resided in Maryland which is about 300 kilometres from Pennsylvania and about 3,000 kilometres from Las Vegas. The father wants the girls to return to Las Vegas. However, the State Central Authority, and not the father, is the applicant in this proceeding. The applicant recognises that the 1980 Convention is a treaty made under private international law, in force between the United States and Australia, to select a forum or jurisdiction in which parenting issues could be decided. It is a treaty which operates only to return the girls to United States soil and does not, save to the extent that I can be satisfied that it is appropriate to give effect to the Convention, oblige or permit me to decide what should thereafter happen to them. Accordingly, the applicant State Central Authority informed the Court on 18 June 2012 that it was not going to ‘run’ the father’s case to have the children returned to Nevada.
The father objects to the mother and girls living in Maryland and the courts in Maryland assuming jurisdiction but, apparently, does not have the same objection to Pennsylvania as either a place of residence for the girls or a state of jurisdiction for court proceedings, at least in relation to the children. It is not clear to me why this is so. Maryland is about the same distance from Las Vegas as Pennsylvania is from Las Vegas. If there is a greater amenity for the father in Pennsylvania it escapes me as he only visited his daughters in Pennsylvania on three occasions in the seven months before they came to Australia. In any event, counsel for the mother informed me shortly after the commencement of the case that, in order to minimise jurisdictional uncertainties which arise by virtue of state laws in the United States, the mother changed her case so that she and the girls will now return to Pennsylvania to live, although not with the father’s family, and to access the courts there. The mother was clearly upset at this point in the hearing and began to weep.
The immediate care arrangements for the children for the month or so after their return to the United States are agreed. Before the parents are before the court in the United States, it is arranged that the father will see the girls on 7 consecutive days, not overnight, when he visits Pennsylvania. It is agreed that neither parent can remove the girls from Pennsylvania without the prior written consent of the other. I was informed that there were various other matters which the parents discussed in mediation, upon which they reached agreement or deferred further discussion until the children are back in the United States. I will leave a discussion of mediation until later in these reasons when I deal with the role of the independent children’s lawyer in this case and in Hague abduction proceedings generally.
At an early stage, the parties consented to there being direct judicial communication between myself and the judge designated by the United States to the International Hague Network of Judges for the purpose of locating a judge in Maryland of whom enquiries could be made about home state or emergency jurisdiction (in the somewhat unusual circumstances of this return), scheduling the hearing of a case in Maryland and the jurisdiction of a court in Maryland to make safe harbour orders[2].
[2]The term “safe harbor” is a nautical metaphor, indicating a place where a ship will be safe from stormy weather. As in the case of a ship, being outside a safe harbour does not mean that you are in danger. It just means that your safety is not assured. (See: Lee A. Hollaar, Chapter 3: Copyright of Digital Information: III.B.1. The Four Safe Harbors (2002) Legal Protection of Digital Information < In Hague terms, a safe harbour order is an order or measure required to be made and is enforceable in the requesting state of habitual residence (in this case USA) to safeguard the welfare of a child and/or returning parent before the requesting state (in this case Australia) will order the return of a child under the 1980 Convention.
Where I refer to communications with either the Honourable Judith Kreeger (Ret.), Circuit Judge, Eleventh Judicial Circuit of Florida, Miami, who is a judge designated to the International Hague Network of Judges, or the Honourable Cynthia Callahan, Associate Judge, Circuit Court for Montgomery County, Maryland, these are direct judicial communications which were conducted by email, with the consent of the parties and tendered into evidence[3] with only the direct contact details of the judicial officers being obscured. The communication could take place because the parties consented to the communication occurring. The communications were conducted in a manner consistent with the latest publication (April 2012) by the Permanent Bureau of the Hague Conference on Private International Law entitled 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[4]. The communications were concerned with:-
a)the principles of home state jurisdiction;
b)the operation of the Uniform Child Custody Jurisdiction & Enforcement Act (“UCCJEA”) which is in force in Nevada, Maryland and Pennsylvania;
c)what state has jurisdiction to make financial orders;
d)what occurs where there is no home state jurisdiction, emergency orders and consent arrangements;
e)how proceedings would be conducted in the United States to determine where children’s proceedings ought to be taken where the father claims that Nevada is the appropriate jurisdiction and the mother seeks Maryland as an emergency jurisdiction or Pennsylvania as a jurisdiction by default;
f)the form of order or acknowledgement by the father to protect the mother against criminal or civil prosecution in the United States arising out of the wrongful retention.
[3] Exhibits “C1”, “C2”,”C4”and “C5”
[4] Exhibit “C6”
Interestingly, it appears that if the mother were to have instituted proceedings in Maryland and the father objected to that venue on the basis that he prefers Nevada, the determination of whether there is a home state or emergency jurisdiction ought be exercised may involve a judge from Maryland sitting together with a judge in Nevada and deciding the case together. I asked Judge Callahan how forum would be determined and, in particular, whether the father could appear electronically or would be required to travel to the Court where the mother issued proceedings. Judge Callahan’s reply was as follows[5]:-
I am attaching the provisions from the UCCJEA (the Uniform Act itself) and from the Maryland and Nevada enactments of it. They are virtually identical as you will see. I attach them so that the parties have comfort that what I am about to describe has a basis in the law.
Assuming there is no action filed anywhere but Maryland, arrangements would be made for the Father to be at a location where electronic transmission could occur, and where he could be administered an oath. Frequently this is at the office of a court reporter (a person who records testimony and administers an oath at depositions) although it could be done at a lawyer’s office too. My court has access to a system called WebX, which allows for high quality live transmission of a remote witness’ testimony, and also the opportunity for the witness to see and discuss documents being used in the courtroom. It can be used with a regular laptop or desktop computer on the remote end. There is a cost to the parties; I think $300 per day.
If a Nevada court is to be involved, the process is laid out in the statute. Practically, the Maryland and Nevada judges or their staffs would confer about the hearing to arrange how it would proceed. It can be done in many ways, to suit the needs of the parties. I have participated in proceedings that went forward as one hearing, by telephone, with witnesses testifying in both courtrooms for all to hear and judges ruling on evidentiary objections etc. It can also happen that the testimony is all taken in one courtroom, and the remote judge listens so that the judges will both have all the information for a later joint ruling. In short, it is entirely possible for Father and his witnesses to be in Nevada and testify in the Maryland proceeding. Again, if it is allowable in Nevada, the entire hearing can be by video transmission.
I would be happy to provide more information or speak again if that would be useful.
[5] Exhibit “C4”
Presumably the mother opted for the certainty of Pennsylvania in deciding that is where she and the girls will return to.
There was no request or consent for direct judicial communication with a judge(s) in Nevada or Pennsylvania and none were undertaken.
At the commencement of the hearing, counsel for the mother sought leave to file an affidavit of her instructing solicitor to which was annexed a letter dated 13 June 2012 from Jeremy Morley, attorney, of New York as to the operation of the UCCJEA. Eventually there was no objection taken to the admissibility of the evidence. Mr Morley outlined a procedure whereby a parenting order made in Australia under our domestic legislation could be registered in Pennsylvania and then on registered in Maryland. When the mother agreed to return to Pennsylvania, the parents elected to utilise the registration process to formalise the immediate care arrangements for the children upon their return to the United States (Pennsylvania) and prior to a court of competent jurisdiction becoming seized of the matter and conducting an initial hearing. The applicant State Central Authority and the independent children’s lawyer were content for them to do so. The appropriate minutes were drawn by the parties in my court and transmitted to the father who read and initialled the minute in Las Vegas to reflect his consent. Temporary orders in the form of Exhibit “C7” were made In the Matter of [Best] and [Khirmani] - MLC 5624 of 2012.
Mother’s consent to return
At no time did the mother assert that an exception to mandatory return was applicable to this case. She did seek time in which to obtain legal advice as to her position and to mediate what (if any) conditions ought to be imposed to ease the return of the children to the United States.
It is appropriate to record the mother’s consent to the return of the girls to the United States from 24 April 2012 after which the mother only sought to pursue conditions of return.
When the children are required to return
The Regulations are silent as to the time in which a child must be returned. Reg 20(2) provides that if a return order is made and it has not been stayed within seven days then the child must be returned. However, this does not limit the Court’s power to order a specific, earlier or later date for return. That said, the 1980 Convention is a hot pursuit remedy, for which the best outcome for a child is not a pre-condition to return. It is designed to replace a child within his or her habitual residence as soon as possible so that parents can access judicial or administrative relief if they wish to do so. It follows that the children, whom the mother accepts ought to be returned to the United States, should not remain in Australia for longer than is necessary.
In May 2012 the mother attempted to make an application for the renewal of the younger child’s passport which was due to expire and for the express purpose of the younger child being able to re-enter the United States on a United States passport. The mother was directed by the applicant State Central Authority to desist from doing so because her actions contravened paragraph 9 of the Order made on 18 April 2012 which restrains the mother, inter alia, from applying for any new passports for either of the children. The mother abided the direction to desist. However, she and the independent children’s lawyer informed me at a mention of the matter on 24 May 2012 that there may be a delay of not less than 10 weeks to obtain a new passport for the younger child. I raised with the lawyer for the applicant State Central Authority that a new passport could issue subject to it going into safekeeping immediately with, say, the independent children’s lawyer. However, the applicant’s position of non-renewal was maintained. This seemed to me then, and still does now, to be a curiously self defeating stance, particularly in light of the mother’s acceptance that she and the children would return to the United States.
I am satisfied that any delay in the girls returning to the United States now is a consequence of the position taken by the applicant State Central Authority vis a vis the non-renewal of the younger child’s passport and not a consequence of the mother’s actions.
The applicant State Central Authority seeks that the children be returned within 14 days after a passport issues for the younger child.
The respondent mother and independent children’s lawyer initially sought a return 70 days hence. However, most of that delay is attributable to what was believed to be the waiting time to get a new passport for the younger child. The mother is agreeable to return within a fortnight of the younger child’s new passport being received by her and will now set about obtaining that passport without objection from the applicant.
Based on what the parties informed the court about the availability of appointments with the United States Embassy, it is likely that the mother and girls will be in a position to travel in the first week of August 2012.
There will, however, be certain pre-conditions to return.
Conditions on return
Frequently in matters under the 1980 Convention, conditions are considered in the context of reg 16(3) where it is alleged that the return will expose the child to a grave risk of harm. In this case, the mother seeks the imposition of conditions independently of any exceptions to return and does so pursuant to reg 15(1). It is not necessary for me to direct any conditions to the amelioration of an alleged risk of harm.
I need be satisfied that the conditions are “appropriate to give effect to the Convention” and, like other discretionary powers given in such terms, to exercise the discretion judicially having regard to the subject matter, scope and purpose of the regulations.[6]
[6] Per Kirby J. in De L v Director General, NSW Department of Community Services & Anor (1996) FLC 92-706 at p.83,457
No one made submissions contrary to the utility of conditions being to ease the returning mother and the girls back into the United States and to some place of the mother’s choice within the state of Pennsylvania.
As indicated, the parents agreed to interim parenting arrangements for the older child (7 years old) and the younger child (5 years old) to operate until such time as a court of competent jurisdiction in the United States orders otherwise and on the basis that the mother and girls will be in Pennsylvania and the father will continue to reside in Las Vegas and visit Pennsylvania.
So as to be enforceable in Pennsylvania, I made parenting orders which can be registered there. This was a solution suggested by the independent children’s lawyer and adopted, by consent, between the mother and father (who became a party to the discrete oral application of the mother). The applicant State Central Authority did not wish to be heard. This is an interim order only and, as such, does not offend Regulation 19 which provides that:-
If an application for a return order for a child is made, a court must not make an order, except an interim order, providing for the custody of the child, within the meaning of regulation 18, until the application is determined.
Regulation 18 provides that a custody order includes an order for guardianship of a child, an order for responsibility for the long‑term or day‑to‑day care, welfare and development of a child and responsibility as the person or persons with whom a child is to live. Jurisdiction to make the interim order arises by virtue of the children and the mother being in Australia[7] and being Australian citizens[8] as well as under s69E(1)(e) which provides that proceedings may be instituted in relation to a child if “it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.”
[7] Section 69E(1)(a)
[8] Section 69E(1)(c)
The order made on 22 June 2012 provides as follows:-
Upon the oral application of the mother and pursuant to Part VII of the Family Law Act 1975 (Cth), it is ordered that until the court of competent jurisdiction in the United States of America otherwise orders:-
(a) The children [J Khirmani] born … January 2005 and [R Khirmani] born … February 2007 remain in the day to day care of the mother;
(b) The father be entitled to spend face to face time with the children as follows:-
(i) Upon providing to the mother 24 hours notice in writing for up to 7 consecutive days between the hours of 10am and 6pm;
(ii) At such further or other times as may be agreed between the mother and the father and evidenced in writing;
Upon the children arriving in the United States of America and then in Pennsylvania each of the mother and father be and are hereby restrained by themselves their servants or agents from causing, permitting or suffering the removal of the children or either of them from the state of Pennsylvania without the prior written consent of the other;
The father will not cause directly or indirectly any criminal prosecution or civil action to be taken against the mother arising out of her retention of the children outside the United States of America and nor shall he cooperate with any such prosecution or action or take any action which may give rise to such prosecution or action.
That the mother and the father forthwith do all acts and things necessary to register these orders in the state of Pennsylvania
That the parties are hereby relieved from filing any formal application or response any from otherwise complying with the Family Law Rules 2004 and that the file be created by the Registry which will travel with proceedings MLC33976/2012.
That the father’s address for service be noted in the records of the Court as … NEVADA … and the mother’s address for service be noted as Barbayannis Lawyers …
NOTATION
And it is noted by the Court that for the avoidance of doubt the registering of these orders in Pennsylvania is not to be construed as consent by the father or an endorsement by this Court as to:-
(a) The long term arrangements for the children including any state in which they are to live
(b) In which state the parents or either of them may issue proceedings in relation to matrimonial property, financial matters or children’s issues; and
(c) Which state in the United States of America (if any) has jurisdiction to determine the jurisdiction of any question
It being the case that the father contends that Nevada is the appropriate state of jurisdiction and the mother intends that Pennsylvania is the appropriate case of jurisdiction.
The wording of the order to protect the mother from prosecution follows closely the wording suggested by Judge Callahan in the direct judicial communications[9] Registration of the Order in Pennsylvania, so that it is enforceable there, will be a pre-condition to the return of the children to the United States. If there is any difficulty with registration or recognition of the Order, the mother, State Central Authority and the independent children’s lawyer (and the father for that matter) should have the matter relisted before me as soon as practicable for what ever remedial measures are necessary and with which this Court can assist. Registration is intended to assist the parents to achieve security in what they have agreed, not the delay the return of the children to their habitual residence.
[9] Exhibit “C5”
When the mother departed the United States, she left her BMW motor vehicle with the husband’s brother in Pennsylvania. In the context of the mother seeking to resume use of that vehicle upon her return to Pennsylvania, the court was informed by the State Central Authority that the father has transferred his leasehold interest to his brother and that vehicle is no longer available for the use of the mother. The father now agrees to provide the mother with a reasonable car, in Pennsylvania, for the use of herself and the children. This will be a pre-condition to return and the father will have to prove that there is such a vehicle for the mother’s immediate use before she is required to return to the United States with the children.
The father has agreed to keep the children and the mother covered under his medical insurance, to meet medical expenses and to pay all reasonable educational expenses for the girls. The father should provide proof of the insurance cover before the mother and girls return. Given that the mother had put her energies into locating an appropriate school in Maryland, she will now have a source a school in Pennsylvania. There are likely to be admission fees, start up costs and tuition fees in advance but payment of them cannot be a pre-condition to return because the school is not yet chosen and may not be chosen much before school resumes, after the long summer holidays, in August 2012. I contemplate that these expenses will be met by the father so that the girls (and the mother) have an orderly and smooth start to the school year.
The father has agreed to fund the air travel for the mother and the children back to the United States. That is estimated to cost between US$3,700 and US$5,000. He will pay it by credit card.
The issue which I am required to determine is how much the father ought to pay for the immediate financial support of the mother and children inclusive of rental accommodation having regard to what is being otherwise provided by him.
It appeared to be conceded that jurisdiction in relation to financial matters may be confined to the state in which the father (payer) resides or derives his income (Nevada) and is different to the jurisdiction about children which is regulated by the UCCJEA. The father’s evidence refers to his offer to pay periodic support of US$5,500 per month plus other expenses. Without either party having arranged to access the Nevada court, it is not possible to secure the father’s obligation to make periodic payments in the short term. The mother and independent children’s lawyer proposed a lump sum pre-payment. It was not asserted by the State Central Authority that the urgent monetary provision should be anything other than by way of a lump sum.
It was submitted on behalf of the State Central Authority that the lump sum should be about $7,500 which equates to two months rent at US$2,000 per month (1 month bond and one month rent in advance) and one month spousal maintenance and child support at US$3,500. This is to be in addition to the airfares, educational costs, medical insurances and like expenses and school fees. On the other hand, the mother seeks a payment of US$60,000 or thereabouts on the basis that she will spend prudently and all such monies can be taken into account as having been received by her by the competent court in the United States. The mother provided a breakdown of her expenses in Exhibit “M2”. The mother’s expenses as estimated do not appear unreasonable.
The father has sworn evidence, upon which the State Central Authority relies, including a Financial Statement sworn 1 June 2012. The father was not cross examined on that evidence so I accept it.
I am satisfied that, after payment or allowance for taxation liabilities, the father will have funds totalling US$19,000 in two bank accounts. He has a surplus of recurrent income over claimed expenditure (including tax and legal fees) of approximately US$8,500 per month which he can apply for the benefit of the family. Indeed, some of his expenses could be, and may subsequently be found by the court in the Unites States to be, discretionary which will result in a larger surplus of income over expenses. Since last November, the father has had a surplus of income over expenditure of US$8,500 per month from which he has paid the mother US$5,000 per month.
On the basis that the children are likely to be returning to the United States in late July or early August 2012, I am satisfied that the father will be able to accumulate and pay to the mother more than he now has in the bank(s) even after allowance is made for his instalments of taxation. Those funds will need to be used by the mother to establish herself and the children in rental accommodation which will need to be furnished either with new goods or by having furniture shipped from Nevada. The mother will have to retain a lawyer to act on her behalf because proceedings are clearly within the contemplation of both parents. It is reasonable that the mother use some portion of the funds for this purpose. I note that the father allows himself $530 per week ($27,560 per annum) for gym, taxation preparations (documentation) and legal fees.
The operation of the abduction provisions in the 1980 Convention are a means to an end, not an end to themselves. In this case, the parents each say that they will pursue legal proceedings in relation to financial and children’s matters in the United States. It is obviously for the benefit of the girls that the transition between countries be as smooth and as comfortable as the circumstances of the case will allow. This will involve the mother having access to funds immediately upon her return to the United States.
Any condition imposed by this Court to regulate the conduct, or circumstances of the parents once the children have left Australia and arrive in the United States, should operate only until a court of competent jurisdiction in the United States can be seized of the matter.
I am mindful that conditions should not impinge on the powers of the courts in the United States to make relevant orders on the proper and timely applications that could and should be made by the parties.
Conditions imposed on the return order in this case should be marked as much by appropriate restraint and respect for the operation of law in the United States as they are for the legitimate needs of the mother and the children in the immediate to short term (see State Central Authority & Daker (2008) FamCA 1271 at [70]).
It is not asserted that the mother has any money with which to meet her immediate financial needs or those of the children. The mother was not cross examined as to her expenses. The mother submitted that I should be conservative and provide her with a lump sum which equates to three months support. The applicant submitted that support for one month is adequate and allows sufficient time in which the courts in the United States can be seized of the matter and be in a position to make orders for the financial support of the mother and girls.
Accepting the father’s evidence as to his financial means, I conclude that a payment by him to the wife of $35,000 at the end of July 2012 is reasonable and practicable. It is much less than the mother says she requires and is more than the applicant State Central Authority submits should be paid. I make the order as to US$35,000 having regard to the expenses and start up costs that the mother will face in the month after her return. I am not determining a maintenance case but do wish to make it clear that I do not consider that US$35,000 is near adequate provision for the mother and the girls for three months. I have in mind support for the first four weeks or so after the mother’s return.
The payment can be considered by whichever court has jurisdiction in the United States to deal with such matters. I expect that the matter will be before the courts and be heard in the United States within 4 to 5 weeks of the mother’s return. I am satisfied that US$35,000 is adequate support until then and it is a humane and necessary step in terms of implementing the return required by the regulations.
Appointment of an independent children’s lawyer
On 18 April 2012 I made a request for the appointment of an independent children’s lawyer. This was over the submission of the applicant State Central Authority that it was premature to do so. Ms Nolan had heard my reasons on numerous occasions as to why it is appropriate to seek independent representation of children’s interests at the earliest possible date. She had no objection to me postponing delivery of my reasons 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. Whilst I awaited those submissions I also asked for an independent children’s lawyer to be appointed in the meantime so that he or she will be providing attention to the matter by the next return date. The request could always have been revoked but I was mindful that the delay which is thought in some circles to be associated with representation of the interests of children really relates to the timeliness (or lack of timeliness) with which the relevant request is made. As I semaphored in my reasons on 18 April 2012, I wished to avoid any such delay.
As no party wished to be heard,[10] or heard further, on the issue, these are my reasons.
[10] When the matter was before me on 11 May 2012 no party wished to be heard in opposition to the appointment of an independent children’s lawyer and the applicant did not seek to be heard any further.
S 68L(3) of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Regulations, such as these, a request for appointment of an independent children’s lawyer should be made
“only if the court considers there are exceptional circumstances that justify doing so”
and the court is required to specify the ‘exceptional circumstances’ relied upon in the order.
It is not hard to identify an inconsistency, in terms of our international obligations and our own processes, with the restriction imposed by the requirement of “exceptional circumstances”. Particularly, bearing in mind that it operates to restrict the independent representation of the interests of children who have already been subjected to the disruption and dislocation of being removed or retained across international borders by one parent acting unilaterally and who now face an immediate or at least speedy removal from this country (usually) contrary to the wishes of the parent in whose care they have been exclusively since the allegedly wrongful removal or retention.
“Exceptional” should be construed 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[11].
[11] See R v Kelly (Edward) [2000] QB 198 per Lord Bingham of Cornhill CJ as was referred to with approval by Callinan J in Baker v the Queen (2004) 223 CLR 513 at 573.
At the first hearing, the court can be satisfied that there is a prima facie case under regulation 16 but it is not possible to be satisfied of anything else. However, having regard to the need to dispose of Hague abduction cases as quickly as possible, on the first return date I allocated space in my docket to hear the case in priority to other cases which have been in the court system for some time. In doing so I was mindful of what an independent children’s lawyer does or should do in a Hague abduction case.
Independent children’s lawyers are a significant feature of parenting cases brought under Part VII of the Act. In that context, the role of the independent children’s lawyer is to form an independent view, based on the available evidence, of what is in the best interests of the children, and then to act in what he or she perceives to be the children’s best interests (s 68L(2)). The independent children’s lawyer is required to deal impartially with the parties. The legislation requires the independent children’s lawyer to put any views expressed by the children before the court, to analyse documentary and expert evidence and reports, and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children’s lawyer is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings (s 68L(5)(d)) and to facilitate an agreed resolution of matters in issue to the extent that it is in the best interests of the children to do so (s 68L(5)(e)).
However, Hague abduction matters are not parenting matters brought under Part VII of the Act. They are brought pursuant to Regulations made to give effect to section 111B of the Act which is in Part XIIIAA - International Conventions, International Agreements and International Enforcement. The 1980 Convention is a forum selection treaty and, as such, the Regulations which implement it into Australian law do not look to the best outcome for any particular child as a pre-condition to return. The best interests, in terms of s60CC or generally, of the child in respect of whom a return application is made is not the paramount consideration and, often times, not a consideration at all. Therefore, whilst an independent children’s lawyer in a Hague abduction matter, such as this, would operate pursuant to the best interests model, as opposed to a direct representation model, and his or her functions would incorporate all of those described above, the tasks themselves will be directed to a different outcome than the outcome for which an independent children’s lawyer operating under s60CA in a parenting case under Part VII of the Act.
Here, the independent children’s lawyer’s functions will vary, but would routinely include:-
●facilitating discussions between the parents;
●making arrangements for mediation; and
●ensuring that collateral issues such as preconditions to any return are properly thought through by the parties (and the parents) before the trial and are capable of being implemented for the child as beneficially as the circumstances and nature of the proceeding permits.
This latter aspect can involve extensive work including researching whether the requesting contracting state has jurisdiction to make mirror or complimentary orders in the nature of safe harbour orders which are binding on both parents in the other country notwithstanding that the subject children and the abducting parent are not within that jurisdiction and may not have been so for a considerable period. It may include, as was the case here, formulating conditions to return and then researching whether orders could be made in the United States in those terms. Furthermore, requesting through the trial judge the assistance of Hague Network Judges for information about hearings as to jurisdiction within the state of habitual residence or to arrange an expedited hearing or a timely initial listing in the courts of the habitual residence to follow conveniently upon the return of the children.
Routinely, the role of an independent children’s lawyer in a Hague abduction case will include seeking face to face time or electronic communication between the children and the left behind parent pending the determination of the matter in such a way as will benefit the child, but which may be perceived by the abducting parent and his or her support network as repugnant or inconsistent with his or her stated opposition to return. One cannot overestimate the relief to the children and the requesting parent of being re-introduced responsibly, sensitively and often with the support and guidance of the family consultants in this court, after a period of imposed estrangement, although, mercifully, that does not appear to be the case with these girls as the father has maintained regular electronic communication.
An independent children’s lawyer in a Hague abduction case may investigate and lead evidence of social service supports available in the country of habitual residence with a view to the family being able to access those services immediately upon the children’s return. This is notwithstanding that reassimilation into the habitual residence may not be entirely supported by the abducting parent who may, or may not, accompany the children.
Depending on the age and competency of the children, it is also appropriate for the independent children’s lawyer to go through the process of obtaining the children’s views. This is not an exercise in obtaining a common view from all of the children but in treating each child individually, as the Convention and Regulations require. It is also not necessarily an exercise which is associated with an allegation that the children object to being returned within the meaning of Regulation 16(3)(c). In fact, where the r16(3)(c) exception may be relied upon, the less discussion that lawyers or authority figures have with the children the better, at least until after the expert assessment of each relevant child has been concluded for the purpose of a Regulation 26 report.
I envisage that an independent children’s lawyer would inform a child, who is able to converse sensibly although who may not be Gillick-competent, that he or she will tell the court (and the parties) what the child wishes to say with the necessary qualification that, in a Hague abduction case, the child’s views cannot be given the same consideration as is mandated by s60CC(3)(a) of the Act. I expect that the independent children’s lawyer would also, responsibly, canvass with the child the possibility that the court may decide to send the children back to their habitual residence, contrary to views of the child and the abducting parent, for the purpose of hearing what the child says about such things as immediate arrangements to see the left behind parent or to go back to school upon his or her return to the other jurisdiction. The purpose of this discussion is to inform the parties as well as the court in the consideration of conditions to return which may be imposed to ameliorate an alleged grave risk of harm or an alleged intolerable situation within the context of Regulation 16(3)(b) or as to stand alone conditions and/or orders under Regulation 15.
In relation to hearing the child, the appointment of an independent children’s lawyer is entirely consistent with Article 12 of the United Nations Convention on the Rights of the Child (UNCROC) to which Australia is a party. Article 12 provides:
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.
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 appointment of an independent children’s lawyer is also in line with the approach adopted in the United Kingdom and European Union, particularly in light of the provisions for the child to be heard under Brussels II Revised. Article 11 of Brussels II Revised provides:
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 the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.
It is to be noted that Article 12 and 13 of the 1980 Convention are given force and effect in this jurisdiction by Regulations 16(2) and (3)(a) to (c) inclusive which provide as follows:-
(2) If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)the person, institution or other body seeking the child's return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i) the child objects to being returned;
(ii) the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views;
An independent children’s lawyer in a Hague return application must also be prepared, where necessary, to advance the best interests of the child by presenting evidence and argument, within the confines of the matters relevant to the court’s determination of a Hague return application, which are reasonably open on the facts of the case, and particularly where the respondent taking parent fails or neglects, for whatever reason, to do so as part of his or her own case.
In Re D (a Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961 concerned the objections of a young child to being returned to Romania consequent on a wrongful removal from Romania to England. The child was four and a half at the time proceedings commenced, and seven and a half when the matter went to final hearing. Baroness Hale of Richmond (with whom the balance of the presiding members of the House of Lords either expressly agreed or did not disagree) observed that courts in the United Kingdom were moving away from a restrictive approach to separate representation of children and towards the presumption, held within the European Union, that a child will be heard unless it appears inappropriate to do so. Baroness Hale observed at [59] 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:
It follows that children should be heard far more frequently in Hague Convention cases than has been the practice hitherto. The only question is how this should be done. It is plainly not good enough to say that the abducting parent, with whom the child is living, can present the child’s views to the court. If those views coincide with the views of the abducting parent, the court will either assume that they are not authentically the child’s own or give them very little independent weight. There has to be some means of conveying them to the court independently of the abducting parent.
And Baroness Hale of Richmond continued at [60]-
There are three possible ways of doing this. They range from full scale legal representation of the child, through the report of a CAFCASS officer or other professional, to face to face interview with a judge. In some European countries, notably Germany, it is taken for granted that the judge will see the child. In this country, this used to be the practise under the old wardship system, but fell into disuse with the advent of professional court welfare officers who are more used to communicating with children than are many judges. The most common method is therefore and interview with a CAFFCASS officer, who is not only skilled and experienced in talking with children but also, if practising in High Court, aware of the limited compass within which the child’s views are relevant in Hague Convention cases. In most cases, this should be enough. In others, and especially where the child has asked to see the judge, it may also be necessary for the judge to hear the child. Only in a few cases will full scale legal representation be necessary. 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.
The comments by Baroness Hale of Richmond in Re D were made in the context of a young child objecting to return to Romania. However, in my view, they apply even where there is no objection to return within the context of an exception to return. The comments were also made in the context of significant authority from the Court of Appeal below, from which it diverges, to the effect that children should only be heard through a representative, or accorded party status, in exceptional circumstances (see Re H (A Child: Child Abduction) [2007] 1 FLR 242).
Finally, Baroness Hale of Richmond commented [61]:-
Hitherto, our courts have only allowed separate representation in exceptional circumstances. And recently in Re H (A Child) [2006] EWCA Civ1247, [2007] 1 FLR 242, the view was expressed in the Court of Appeal, that if the test for party status were to be revised in any direction, it should in future be more rather than less stringently applied. But Brussels II Revised requires us to look at the question of hearing children’s views afresh. Rather than the issue coming up at a late stage in the proceedings, as has tended to take place up to now, European cases require the court to address at the outset whether and how the child is to be given the opportunity of being heard. If the options are canvassed then and there and appropriate directions given, this should not be an instrument of delay. CAFCASS officers and, in the few cases where this is appropriate, children’s representatives are just as capable of moving quickly if they have to do so as anyone else. The vice has been when children’s views have been raised very late in the day and seen as a ‘last ditch stand’ on the part of the abducting parent. This is not the place they should take in the proceedings. There is no reason why the approach which should be adopted in European cases should not also be adopted in others. The more uniform the practice, the better.
Within our own region, I note that the Family Court Guidelines issued by the Principal Court Judge for New Zealand require that the appointment of a lawyer for the child ‘shall be considered’ where any exceptions pursuant to Articles 12 and 13 are raised ‘unless the court is satisfied that the appointment would serve no useful purpose.’[12] It is to be noted that the appointment of a lawyer for the child is not confined to cases in which an objection to return is raised as an exception to mandatory return. Of course, neither is Article 12 of UNCROC.
[12] >
I accept the submission of Ms Nolan that it is inappropriate for an independent children’s lawyer to deal with a Hague abduction case in the same way as a parenting case under Part VII. In my experience, however, Victoria Legal Aid has developed considerable expertise in the representation on children’s interests in abduction proceedings so that this does not occur. Not only are Victoria Legal Aid aware of the resources of mediation, direct judicial communication but they retain counsel who have extensive experience in Hague matters, like Ms Carter, in this case.
I was informed on 24 May 2012 that it was necessary for the mother to return to the United States to renew or extend her entitlement to work there Apparently, the mother could not do this otherwise than by re-entering the United States. The independent children’s lawyer had the matter relisted so that the court could be advised of the care arrangements for the children. The mother returned to the United States briefly in June 2012 whilst the girls remained here with their maternal grandparents.
Time is an issue in Hague abduction proceedings. Australia’s obligation pursuant to Article 2 of the 1980 Convention is to “use the most expeditious procedures available”. It was envisaged by the framers of the 1980 Convention that return proceedings would be determined within 42 days which is entirely consistent with the hot pursuit remedy the Convention was intended to facilitate. Unfortunately and in common with much of the Hague world, except the United Kingdom, that timeline is one to which Australia may aspire but which it is not usually able to achieve in the context of a fully contested hearing where oral evidence is necessary and the respondent relies on exceptions to return.
There are various factors which contribute to delay in Hague cases over and above the expected inertia of a respondent who desires to remain in Australia and for whom a delayed determination is a favourable outcome. These include legal representation of respondents, access to by the respondent to evidence and primary source material, obtaining evidence in response from the requesting parent, proceeding with oral evidence and cross examination and, despite all the trial directions that a court may make, the frequent experience that a respondent’s case may not be entirely apparent until the trial.
A respondent may have very strong familial and social support within Australia but, unsurprisingly, very few wrongful removals or retentions are effected with the benefit of sound legal advice. If a respondent wishes to obtain legal advice in the proceeding, they must do so quickly and sometimes only after obtaining a grant of legal aid. Hague abduction proceedings, indeed all proceedings under the Regulations, are out of the ordinary for most practitioners; even those who have busy practices in the Family Courts. There are specialist practitioners within the jurisdiction but litigants cannot be corralled or confined to certain practitioners. Accordingly, a respondent in a Hague abduction case must locate and consult a solicitor much more quickly than the majority of family law clientele are accustomed to doing and the practitioner whom they then consult may, like most, have had absolutely no experience with Hague abduction cases. Frequently, respondents to a Hague abduction case change solicitors and legal team mid-proceedings or may dispense with lawyers altogether upon obtaining the impression that a return order is likely to be made. A consequence is that a case may be prepared very late or not be adequately prepared at all. In terms of “exceptional circumstances”, there is a high potential for respondents to be self represented at the final hearing stage. Moreover, they are then required to run a case in an area of law which runs counter intuitively to most child related proceedings and which is not accessible to many solicitors let alone to an unqualified person.
In this case, the mother appeared at the first hearing on 24 April 2012 with solicitors and Ms Stewart, a member counsel who is very experienced in Hague abduction matters. However, by the next mention on 11 May 2012 her solicitors had purported to cease to act (without seeking the necessary leave to do so) and the mother was self represented. The mother remained a litigant in person and the following matters were attended to by the independent children’s lawyer:-
a)Formulation of conditions to return for the benefit of the children;
b)Research into the jurisdictional issues between states in the United States including providing copies of extracts for Nevada, Maryland and Pennsylvania of the legislation reflecting the UCCJEA;
c)Arranging a mediation for the mother and the father with International Social Service noting that the father is not a party to this proceeding;
d)Arranging for the matter to be relisted for mention to permit the mother to return to the United States temporarily to renew her ‘green card’;
e)Making enquiries of the United States Embassy for the purpose of informing the Court about the time lines in which the mother would be able to obtain a new passport for the younger child if she was not permitted by the applicant State Central Authority to make that application before the younger child’s passport lapsed.
The mother finally obtained alternative solicitors to act on her behalf and re-engaged experienced counsel for the final hearing. However, for the majority of the proceeding the mother was unrepresented and the matter would not have been progressed to the extent that it was without the input of the independent children’s lawyer.
Whilst self representation in parenting proceedings is not uncommon in the Family Court, the legal principles in Part VII are arguably more accessible to the unrepresented litigant and the presiding judge has greater responsibilities and powers under Division 12A (Less Adversarial Trials) than those which apply to return applications. I am satisfied that lack of representation in a Hague proceeding is capable of constituting an exceptional circumstance within the meaning of s68L(3)(a). The applicant State Central Authority is initially concerned only with making out a prima facie case whereas the respondent has to consider the constituent elements of a wrongful removal[13] but also the exceptions to mandatory return and how they may apply to one or more of the subject children. If an exception which should be raised by the respondent is not raised, it is not incumbent upon the State Central Authority to consider or raise it independently. Indeed it would not be privy to many of the circumstances which may be relevant. Accordingly, without an independent children’s lawyer an arguable exception that should be raised, may not be raised at first instance or until an appellate stage or even later.
[13] Constituent elements of wrongful removal involve finding as to habitual residence, rights of custody, exercise of rights of custody
Furthermore, the potential for a party to cease to be represented in the context of a hearing which will necessarily be accorded priority in my list is a relevant matter which I take into account when considering whether there are exceptional circumstances justifying a request for the appointment of an independent children’s lawyer.
Evidence relevant to the parents’ intentions to reside habitually, and to the risk of harm or of an intolerable situation, takes some time to collate, if it is going to be available at all. Our abduction cases are frequently with New Zealand. Hague proceedings are excluded from the arrangements for subpoenas in Trans-Tasman cases[14]New Zealand is the most common country from which children are retained in, or removed to, Australia. The evidentiary provisions of Regulation 29 assist the applicant but not the respondent to adduce evidence in Hague abduction proceedings. These difficulties are productive of delay. On the other hand, there is also delay in obtaining responses from the requesting parent whose material must be handled by two Central Authorities before coming to the State Central Authority.
[14] Division 15.3.4 Chapter 15 Family Law Rules 2004
It is not uncommon for more than one exception to return to be relevant to one case. For instance, a grave risk of harm exception under Regulation 16(b) or an objection to return exception under Regulation 16(3)(c) may be alleged in relation to a whole sibling group but made out only in relation to one or some of the children. In that case, a consequential exception may arise by virtue of the children in respect of whom the primary exception was not made out being separated from their sibling(s) in respect of whom the court may exercise its discretion to refuse return. These are circumstances which may not be foreseen by the parties or by the judge but in respect of which, if and when they arise, the input of an independent children’s lawyer is very beneficial, if not essential, for the child(ren). Much of this is speculative but where proceedings must be determined quickly but not hastily, the need to adjourn a hearing at the stage of the final hearing or even later so that an independent children’s lawyer can be installed can result in the proper operation of the Convention being subverted.
Of course, in the event that an exception to return is made out, there will be a discretion to refuse return. The 1980 Convention and our Regulations are silent about the matters which ought to inform the exercise of the discretion to refuse to return a child. Notably, however, the best interest of the child is accepted as a relevant consideration as is:-
a)The comparative suitability of the forum in the competing jurisdictions to determine the child’s future in the substantive proceedings. This will include a parent’s standing, the availability of legal assistance, the access to relevant witnesses for the purpose of cross examination and the availability of evidence generally;
b)The likely outcome (in whichever forum they be heard) of the substantive proceedings.
c)What has occurred for the child since the wrongful removal or retention or the consent or acquiescence, with particular reference to the possibility that the child may have become settled in Australia.
d)The circumstances awaiting the abducting parent and the children if they compelled to return to the United States. This encompasses criminal penalty, pre-existing rights under orders then in force in the United States and the practicalities of day to day financial support for the child.
e)The anticipated psychological effect upon the child of a return order both directly and indirectly by virtue of any likely adverse effects on the primary carer.
f)The extent to which the purpose and underlying philosophy of the 1980 Convention would be at risk of frustration if a return order were to be refused. In this context, there is extensive authority for the proposition that the exceptions to return are as much a part of the underlying philosophy of the 1980 Convention as the concept of immediate return.
These are matters upon which the input of an independent children’s lawyer for the girls would be significant if not essential but it is not feasible to wait until a discretion must be exercised to request the appointment of an independent children’s lawyer.
Insofar as a proper function of an independent children’s lawyer is to investigate the suitability of mediation, any delay in the appointment of an independent children’s lawyer will reduce the opportunity for mediation. Mediation is not mandated for the 1980 Convention or contemplated by the Regulations. However, the international trend is indisputably toward mediation (see the Resolutions of the 6th Special Commission on the Operation of the 1980 and 1996 Conventions June 2011 and January 2012). International mediation of children’s disputes is offered by ISS and will shortly be offered by this court. Even though it is done expeditiously, usually over weekends and out of hours to accommodate international time zones, there are intake procedures and much preparation involved in cross country mediation. Any delay in appointing an independent children’s lawyer is a delay in ascertaining whether mediation is feasible.
In this case, the mother and the father had the benefit of mediation, over four sessions, conducted by the International Mediation Service of International Social Service in Melbourne. The mediation did not include the applicant State Central Authority. Unfortunately, in my view, it did not include the independent children’s lawyer although the mediation process was organised by her.
The mediation was conducted in Melbourne. The father was linked in by Skype for four joint sessions. Each parent had a separate intake session and a separate feedback session. The mediation was convened by two mediators who are qualified Family Dispute Resolution Practitioners. The mediation was undertaken at no cost to the parents and was the initiative of the independent children’s lawyer.
Mediation did not entirely resolve what conditions, if any, I ought to impose on the return of the children to the United States. However, I am satisfied that it was been a valuable process for the parties who had agreed to numerous things by the time the final hearing commenced. It was a precondition that the mediation would not delay the final determination of the matter.
Unlike the rest of the Contracting States to the 1980 Convention, which assist the left behind parent to prosecute their own return application, it is the State Central Authority which is a party to proceedings in this court. The left behind parent is once-removed from the process. Accordingly, an independent children’s lawyer is well placed to drive a timely mediation where one might not otherwise occur.
It is difficult to know precisely what this case will involve and what circumstances may emerge. With the benefit of hindsight and having regard to the matters discussed above, cumulatively as well as individually, I am satisfied that there are circumstances which justified the appointment of an independent children’s lawyer in this case.
I decided proceed with the request for the appointment of an independent children’s lawyer at the earliest date rather than to wait until the next hearing date or when the mother had filed her material. I did so in order to avoid the possibility of delay in the future. It was better to be safe than sorry. As Baroness Hale of Richmond observed in Re D (Abduction: Rights of Custody) at [61], proceedings are not prolonged by the appointment of a representative for the children’s interests, but rather by one party raising the need or desirability for such representation very late in the day, as a ‘last ditch stand,’ and thereby requiring a postponement of the trial. Given the time constraints imposed on wrongful retention/removal matters under the 1980 Convention, it was in my view appropriate to request the appointment at the earliest possible opportunity.
The exceptional circumstances were I was prepared to accord the proceedings priority over other matters in my list and sought to avoid the potential of the proceedings being adjourned late in the hearing process because the interests of the children were not independently represented when they should have been. Initially, the request for an independent children’s lawyer was a prophylactic measure but, ultimately, it was justified and entirely appropriate.
I conclude that there is a tension between the “exceptional circumstances” threshold in s68L(3) and our national responsibilities under UNCROC as well as to conformity with the practice of other contracting states to the 1980 Convention in relation to a requirement to hear children, directly or indirectly, or permit their interests to be represented. Having regard to this tension the approach I have adopted is to consider "exceptional circumstances" on the papers at the very start of any such application. By its nature that determination will be on limited evidence and must rely upon the expertise of judicial officers in this jurisdiction. The circumstances which require an independent children’s lawyer will be reviewed as more evidence becomes available in the proceeding and the parties (including the independent children's lawyer) increasingly understand the facts, both agreed and at issue, and the various legal issues that arise. I am satisfied that it is better to be safe than sorry, particularly where the determination of a Hague abduction matter will be prioritised over other cases which have been waiting in the lists for hearing and are also necessitous. Thus the continuation of the appointment of the independent children’s lawyer will be constantly assessed by the Judge, the parties and those who represent them.
I certify that the preceding ninety seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on June 26 2012.
Associate:
Date: 26 June 2012
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