State Central Authority and Brume

[2010] FamCA 268

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BRUME [2010] FamCA 268

FAMILY LAW – CHILD ABDUCTION – Child Abduction Convention Regulations 1986 – Attendance at mediation – Privileged nature of mediation

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

APPLICANT: State Central Authority

RESPONDENT: Ms Brume

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 434 of 2010

DATE DELIVERED: 7 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 7 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt

SOLICITOR FOR THE APPLICANT:

Louise Johnson, Director

Legal Services Branch

COUNSEL FOR THE RESPONDENT: Ms Billeam

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

INDEPENDENT CHILDREN’S LAWYER:

Mr Finn

Marshalls & Dent

Orders

1. That the mediation to be conducted pursuant to agreement between the parties herein made on 17 March, 2010 be privileged and be attended by the parties to these proceedings and the requesting parent. 

2. That all times be abridged to enable proceedings to be filed this day, naming Mr F as the applicant and Ms Brume as the respondent and in which interim and final parenting orders are sought in respect of the child J born … April, 2001, to be listed before the Honourable Justice Bennett at 9:00 am. on 16 April, 2010. 

3. That pursuant to s.68L(2) of the Family Law Act 1975 the interests of the child J born … April, 2001 be independently represented by a lawyer in those proceedings AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.

4. That forthwith upon appointment by Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

5. That within 48 hours of notification of such appointment the solicitors for the respective parties in those proceedings provide to the independent children’s lawyer copies of all relevant documents relied upon.

6. That the reasons for judgment this day be transcribed and copies made available to the parties. 

7. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including Senior counsel, and solicitors appearing as counsel.

AND THE COURT NOTES

A. The mediation referred to in paragraph (1) hereof is scheduled for 2:30 pm. on 13 April, 2010.

B.Senior Counsel for Mr. F advised the court that if any application by Mr. F to intervene in, or be joined as a party to these proceedings is to be made, such application will be filed by 15 April, 2010. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 434 of 2010

STATE CENTRAL AUTHORITY

Applicant

And

MS BRUME

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Before the court is an application brought by the State Central Authority pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Hague proceedings”). The initiating application was filed on 18 January, 2010 and concerns the child N, born in March, 2008. The respondent is Ms Brume, N’s mother. N’s father, Mr C, is the requesting parent.

2. On 18 January, 2010 on an ex-parte application an interim injunction was made restraining the respondent from causing or permitting or allowing N to be removed from Victoria and the Commonwealth of Australia.  Orders required N to live at her then present residential address or other address agreed by the applicant and required the respondent to deliver N’s passport to the registrar of this registry of the court. 

3. On 1 February, 2010 the applicant and respondent were each represented when orders were made providing for an answer to be filed by the respondent and for the filing of all material on which each of the parties relied.  The application was otherwise listed before Bennett J. on 17 March, 2010 and now forms part of her Honour’s docket. 

4. On 1 February, 2010 Ms. Blizzard announced an appearance for Mr F, the father of J, born in April, 2001. J’s mother is the respondent in the Hague proceedings. At that time no application had been filed by Mr F for orders pursuant to the Family Law Act 1975 and no application was made to intervene in the Hague proceedings.

1. On 17 March, 2010 Bennett J. fixed the Hague proceedings for final hearing before her in a rolling list commencing on 17 May, 2010. By then the respondent had filed an answer. In that answer, filed 1 March, 2010, the respondent asserted that N was not habitually resident in the Netherlands, the requesting State. In the alternative, it was asserted that if she were habitually resident in the Netherlands, and had been wrongfully retained, there is a grave risk that a return would expose her to psychological harm or otherwise place her in an intolerable situation and/or a return without her mother and/or sister would be a breach of her human rights. The sister to whom reference is made in the answer is J.

2. On 17 March, 2010 Bennett J. ordered that N’s interests be independently represented and Mr. Finn was nominated to that role.  Her Honour directed that the matter be listed for mention at 9:00 am. on 16 April, 2010 :

   . . . for the purpose of considering expert evidence, in particular the admissibility of any report obtained by the mother and the availability of expert evidence through the Child Dispute Section of the Court.

3. It is common ground that at that time it was agreed that N’s parents (that is, the requesting parent and the respondent) would attend a mediation to be arranged through Victoria Legal Aid Roundtable Mediation Service. 

4. At the request of Bennett J’s associate, the matter was listed before me today, as Bennett J. is unavailable.  A mediation has been fixed for 2:30 pm. on 13 April, 2010. Bennett J. was concerned to ensure that there be no misunderstanding about the confidentiality of discussions at that mediation. 

5. I have heard submissions from the applicant, respondent and independent children’s lawyer.  In addition, senior counsel for Mr F was granted leave to appear and made some limited submissions.  Senior counsel for Mr F has advised that his client proposes to file an application today seeking parenting orders in respect of J pursuant to the Family Law Act 1975. In that application Mr F seeks that he and the respondent in the Hague proceedings have equal shared parental responsibility for J, that J live with her mother and that J spend time with him as agreed and, failing agreement, on Tuesday and Thursday evenings in each week and on alternate Saturdays between 10:00 am. and 5:00 pm. Interim orders in identical terms are sought, together with orders restraining J’s removal from the Commonwealth and for her passport to be delivered to the court, and the appointment of an independent children’s lawyer to represent J’s interests.

6. At that point neither the applicant nor independent children’s lawyer in the Hague proceedings had any notice of the orders to be sought by Mr F but there had been some discussion about them with the solicitor for the respondent.

7. Senior counsel for Mr F did not seek to make submissions about Mr F’s standing to play a role in the Hague proceedings, nor to seek to dictate (his word) the terms on which any mediation should proceed. He sought to put on the record his client’s genuine and real interest in the outcome of the mediation.

8. The mediation is to be conducted through the Roundtable Mediation Service and the regulations governing those mediations provide for them to the privileged. It became clear that the applicant, respondent and requesting parent in the Hague proceedings had all assumed the mediation discussions would be privileged; senior counsel for Mr F made no submissions on the point. In an excess of caution I will make an order to that effect.

9. There is then the question of Mr F’s attendance at the mediation. Any such direct involvement is opposed by the State Central Authority and by the independent children’s lawyer. In essence, it is their submission that he is not a party to the Hague proceedings, that those proceedings are relevant only to N, that the scope of those proceedings is very different to that of proceedings which may or are to be filed in respect of J under the Family Law Act 1975 and that Mr F has no standing to attend.

10. The solicitor for the respondent readily conceded that Mr F is not a party to the Hague proceedings. Her initial submission was that he should be able to attend as an observer only. In the course of his submissions, senior counsel for Mr F submitted that his client had been invited to attend the mediation by the respondent to the Hague proceedings; the respondent’s solicitor was unaware of this request but was content to accept the accuracy of that assertion.

11. Mediation is not a spectator sport and I can see little utility in J’s father or his lawyer attending as an observer. It is not submitted on Mr F’s behalf, at this time, that he has potential standing in the Hague proceedings and there is no application by him to intervene in those proceedings or to be joined as a party. In my judgment there is force in the submissions of the applicant and independent children’s lawyer and I do not find it appropriate for Mr F to be a party to the mediation. That order does not preclude discussions between the respondent to the Hague proceedings and Mr F or his lawyer, which may be ongoing.

12. Although the application to be filed by Mr F is not yet before the court, I am satisfied orders should be made to ensure that it is before Bennett J. on 16 April, 2010.  I will abridge all times necessary to ensure it is given that return date.  Further, I propose to order that J’s interests be independently represented.  It goes without saying it would not be appropriate for the same lawyer to represent the interests of N and J. 

13. The order will carry a note that senior counsel for Mr F has advised that any application by his client to intervene in the Hague proceedings or be joined as a party to those proceedings will be filed by 15 April, 2010.

14. I will certify for solicitors appearing as counsel and for senior counsel.  The application is otherwise adjourned to 16 April, 2010 before Bennett J.

I certify that the preceding
 19  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2010.

…………………………………………
Associate.