State Central Authority and Camden
[2011] FamCA 599
•30 June 2011
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & CAMDEN | [2011] FamCA 599 |
| FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – Ex-parte orders. |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) United Nations Convention on the Rights of the Child |
| Baker v The Queen (2004) 223 CLR 513 R v Kelly (Edward) [2000] QB 198 State Central Authority & Ustinov (No. 4) [2008] FamCA 987 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Camden |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 5776 | of | 2011 |
| DATE DELIVERED: | 30 June 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 30 June 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | Ms Wilson Department of Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: |
ORDERS
IT IS ORDERED:
1.That leave is granted to the applicant State Central Authority to proceed ex-parte with orders in the terms of paragraphs a, b, c, and d of the application filed on 30 June 2011.
2.That this matter be adjourned for the further hearing of the said application before me at 10.00 am on 11 July 2011 (“the adjourned date”).
3.That the applicant State Central Authority effect service of the application and this Order upon the respondent mother as soon as practicable.
4.That in the event that the respondent mother has been served with the application by the adjourned date:-
a)she attend Court personally on 11 July 2011 and remain at Court pending further order of the Court;
b)the mother deliver the children T born … December 2007 and J born … April 2009 to the Child Care Room on the 5th Floor of this Registry of the Court by not later than 9.30 am, where the children shall remain pending further order of the Court.
5.IT IS DIRECTED that my Associate or Court Officer reserve a place in the Child Care Room for T born … December 2007 and J born … April 2009 on the adjourned date from 9.30 am onwards.
6.That until further order or return of the said child to the United Kingdom, 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 said 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.
7.That 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.
8.That until further order, the respondent Ms Camden born … 1977 by her servants or agents be restrained by injunction from causing or permitting or suffering the said children T born … December 2007 and J born … April 2009:-
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.
9.That the prohibition against removal of T born … December 2007 and J born … April 2009 from Australia, out of Victoria and from their current residence applies mutatis mutandis to the requesting parent, Mr Camden of … D Street, Town E, County E, United Kingdom … .
10.That the respondent, her servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Melbourne for safe custody any and all passports held in the name of the said children or upon which the said children appears and be and is hereby restrained from applying for any further or other passports for the said children pending further orders of this Court.
11.That a sealed copy of these Orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
12.That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children T born … December 2007 and J born … April 2009 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 by the next return date.
13.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.
14.That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.
AND IT IS REQUESTED:
15.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 Kingdom in the event that I find that T born … December 2007 and J born … April 2009 must be returned to the United Kingdom 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 and return with the children to the United Kingdom.
IT IS FURTHER ORDERED:
16.That I reserve to the requesting parent, Mr Camden born … 1978, 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.
17.That the reasons for judgment this day be transcribed and when settled copies be made available to the parties.
IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Camden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 5776 of 2011
| STATE CENTRAL AUTHORITY |
Applicant
And
| Ms Camden |
Respondent
REASONS FOR JUDGMENT
EX-PARTE
EX-TEMPORE
This matter comes before the court on the application of the State Central Authority, pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The State Central Authority seeks the return to the United Kingdom of T, born in December 2007, and J, born in April 2009. The respondent to the proceedings is the mother of the children, Ms Camden.
The applicant seeks to proceed ex-parte the mother. Normally, in proceedings in this country, respondents to applications are entitled to be heard and entitled to know about any proceedings brought against them before orders are made, so that they have an opportunity to be heard. However, because this case is brought under an international instrument which has been implemented into Australian law by the Regulations, and it is alleged (although obviously not proven) that the mother has, on recent occasion, removed the children from a jurisdiction without permission of a person who should have been aware of her intended removal, I am prepared to entertain the application ex-parte.
In doing so, I will set a return date one week hence, or a little more than one week hence, and pronounce orders which, if the mother does not propose to move from her current situation, ought not be too onerous for her or the children. It is open to the mother, on the return date, which will be 11 July 2011, to seek to vary or set aside these orders or seek a discharge of them.
Very briefly, it appears that the history is that the requesting parent, upon whose behest the application is made, is the father. He was born in England. He is 32 years old. The mother was born in Australia and she is approximately 34 years old. The father alleges that the mother suffers from a depressive illness or psychiatric condition. It is alleged that the parties moved from Australia to England in July 2010, on a permanent basis, whereupon the children acquired the United Kingdom as their place of habitual residence.
On 9 May 2011, the father told the mother that he wanted a divorce. The family had been in the United Kingdom for some 10 months at this stage. On 12 May 2011, the father learned that the mother and the children had boarded a flight to Australia that day, without his permission or knowledge. The application to the International Child Abduction and Contact Unit (ICACU) in England was made on 16 May 2011. An affidavit in support of that application was sworn by the requesting parent on 17 May 2011. An application from a solicitor in England, as to applicable law, was sworn on 9 June 2011. I have read them.
It appears that there was a delay of nearly a month before a complete suite of documents was ready. I do not know when the application was received by the Central Authority in Canberra or transmitted to the State Central Authority in Victoria, who now brings the application, but there appears to have been some delay.
The children are aged two and three, respectively. It will be necessary for the children to be seen by a member of the Department of Human Services at some point. Because of their tender years, I consider it appropriate that the mother bring the children to the court on the first day that she herself attends. I will direct that a place be reserved for the two children in the child minding room on Monday week, 11 July 2011. The mother should sign the children in by no later than 9.30, and they are to remain in the child minding room until the proceedings are concluded and I make an order releasing them.
Section 68L(3) provides that, in relation to proceedings brought under these regulations:
The court should only order that a child be independently represented if the court considers that there are exceptional circumstances that justify doing so, and specify those circumstances in making the order.
In this case, it is alleged by the father that the mother, who is the respondent, suffers a mental illness, in particular, depression. I don’t know what the extent of that alleged illness is or her symptoms, but it may be that, if the allegations are correct, she is quite debilitated from the point of view of being able to run or defend her case herself. That could constitute an exceptional circumstance.
The children themselves are of tender years. Australia has responsibilities, pursuant to other international instruments such as the United Nations Convention on the Rights of the Child, to hear children in all proceedings. Article 12 provides:-
1. 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.
2. 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.
In the event that a respondent is in any way impaired, that heightens the need to hear, independently, the children’s view.
The role of an independent children’s lawyer is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what they believe to be the children’s best interests. The independent children’s lawyer is not a legal representative retained by T and J and he/she cannot be bound by instructions from the children or either of them. The independent children’s lawyer is required to deal impartially with the parties. The legislation requires that any views expressed by the children be fully put before the court, to analyse documentary, 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 and to facilitate an agreed resolution of matters in issue in the proceedings, to the extent that it is in the best interests of the children to do so. The role of an ICL in a Hague matter includes facilitating discussions between the parents, making arrangements for mediation, and ensuring that collateral issues such as pre-conditions to any return are properly thought through by the parents before the trial.
As was cited by Dawe J in State Central Authority & Ustinov (No. 4) [2008] FamCA 987 at [12], and referred to with approval by Callinan J in Baker v The Queen (2004) 223 CLR 513 at 573, Lord Bingham of Cornhill CJ stated in R v Kelly (Edward) [2000] QB 198 at 206:
We must construe “exceptional” 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.
This definition is helpful in determining whether exceptional circumstances exist in the appointment of an independent children’s lawyer in proceedings arising under the Convention regulations.
At the moment, the proceedings are ex-parte. I will reserve to any party liberty to make submissions for me to discharge the request for the appointment of an Independent Children’s Lawyer at such time as they are before the Court. That includes liberty to the Independent Children’s Lawyer himself, or herself.
In making the appointment now, I am conscious that proceedings under the return proceedings are intended to be dealt with as quickly as possible. In the event that I delay the request for the appointment of an Independent Children’s Lawyer, it is unlikely that such could be affected for some weeks, which would, of itself, present a likely cause of delay in finalising the matter. In proceedings for return under the Regulations, the Court aspires to achieve a determination within 42 days. There are no other proceedings in this Court that have such time imperatives. That is an exceptional circumstance.
The requesting parent makes clear in his application that he is prepared to come to Australia to take the children back to England with him. Indeed, the mother and the father lived in Australia for some years, following their marriage in 2006. It is thought that the mother is currently residing with her own mother in Melbourne Suburb 1 in Victoria. It may be that if the applicant’s application is successful and the children are required to be returned to the United Kingdom, the mother elects to travel with the children. In those circumstances, or in view of that potentiality, I will direct that the applicant State Central Authority obtain instructions by the next return date as to what arrangements can be made to facilitate the return of the children, with the mother, to the United Kingdom. They are going to be instructions that relate to financial matters more than anything else. I am not in any way pre‑judging the matter, but in the event that a return is ordered these are arrangements that should be known, and there is no reason why they cannot be ascertained upfront, rather than waiting until later.
In due course, I will discuss with the parties, that is, the mother and the State Central Authority, the possibility of mediating all of the matters that could be in issue between the mother and the father, or, at the very least, those matters which arise under the operation of the 1980 Convention. I mention that now so they can turn their minds to it by the next return date and, in the case of the State Central Authority, to notify the requesting parent to obtain his attitude to mediation.
In the meantime, I am satisfied that the orders sought should be made ex-parte. It is necessary to locate the children and safeguard their presence in Australia. They are not particularly intrusive. I repeat that the mother will have an opportunity to seek a discharge of any of the orders when she is served and before the Court. The watch list order should also bind the father and he will have liberty to apply for the discharge of that order.
That concludes the reasons for judgment. So in the matter of State Central Authority & Camden, I make orders in the terms of the minute which I have completed. I include the usual order for the request for the appointment of an Independent Children’s Lawyer and I direct that my reasons for decision be transcribed and, when transcribed, a copy be made available to the parties.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 30 June 2011.
Associate:
Date: 1 August 2011.
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