State Central Authority and Detres

[2010] FamCA 1208

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & DETRES [2010] FamCA 1208

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Alleged wrongful removal under the 1980 Convention – ex parte orders – appointment of an independent children’s lawyer pending submissions from the parties – orders for security of child pending service and early return date

APPLICANT:  State Central Authority

RESPONDENT: Ms Detres

FILE NUMBER: MLC 11920 of 2010

DATE DELIVERED: 23 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Ms Carey

State Central Authority
Department of Human Services

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 (b), (c) and (d) of the application filed on 22 December 2010.

2. That this matter be adjourned for the further hearing of the said application before me at 9.30 am on 6 January 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 6 January 2011 and remain at Court pending further order of the Court;

   (b)the mother deliver the child B born … April 2005 to the Child Care Room on the 5^th Floor of this Registry of the Court by not later than 9.00 am on 6 January 2011, where the child 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 B born … April 2005 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 child with an appropriate person, institution or body and upon such terms and conditions as she shall determine to secure the welfare of the said child 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 child as they may reasonably require for the purposes of investigating and determining the welfare of the said child and if considered appropriate to take the said child into care.

8. That until further order, the respondent by her servants or agents be restrained by injunction from causing or permitting or suffering the said child B born … April 2005:-

   (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 the residential address which she advise to the applicant’s solicitors in writing or any other residence at which the applicant has agreed that the said child may reside.

9. That the prohibition against removal of B born … April 2005 from Australia, out of Victoria and from his current residence applies mutatis mutandis to the requesting parent, the father, of …, 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 child or upon which the said child appears and be and is hereby restrained from applying for any further or other passports for the said child 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 child B born … April 2005 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the child by the next return date and in the meantime to ascertain the attitude of the parties to the proceedings and the requesting parent to mediation of all parenting issues and the issues in this proceeding.

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 solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

15. AND IT IS REQUESTED that on the adjourned date the applicant State Central Authority be in a position to inform the Court of what arrangements can be made to support the prompt return of the respondent and the child to the United Kingdom in the event that I find that B born … April 2005 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 child and return with the child to the United Kingdom.

16. That I reserve to the requesting parent, the father, liberty to apply to vary or set aside or discharge any injunctions provided in this Order which affect him or as he may be advised.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11920  of 2010

STATE CENTRAL AUTHORITY

Applicant

And

MS DETRES

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern B, born in April 2005 and are brought under the Family Law Child Abduction Convention Regulations 1986 which embody Australia’s obligations under the 1980 Hague convention.

2. It is alleged that B was wrongfully removed from England and Wales by the mother on or about 18 March 2008 when he was then nearly 3 years of age.  The requesting parent alleges that the mother removed the child to the Philippines where the father thought she and the child remained.

3. It is alleged that, on 18 August 2010, the mother telephoned the requesting parent “out of the blue and advised that she and [the child] were now living in Melbourne Australia.” The respondent mother then asked the requesting parent to authorise or provide documentation which would enable B to obtain permanent residence in Australia and for him to be enrolled here in school.  The requesting parent submitted his application to the Central Authority for England and Wales dated 19 October 2010.

4. The respondent mother does not have notice of these proceedings and the applicant seeks to proceed on an ex parte basis.  The right to know what proceedings are brought against a person is a fundamental right in our legal system.  In exceptional circumstances, however, the Court can make orders without the respondent being aware of what proceedings are brought.

5. In this case I am satisfied that the applicant should be able to proceed ex parte.  The orders she seeks on an interim basis are merely to enable the safe keeping of the child between now and the time that the Court can dispose of the matter finally and to ready the matter for a hearing. Following service of the application and significantly before the final determination, the mother will have every right to be heard on the dissolution of the orders I make today. I will allocate this matter an early return date.  Apart from little prejudice appearing to flow to the mother from the orders I make today, Australia has an obligation to all other contracting states under the 1980 Convention to locate and secure the presence of allegedly abducted children at the earliest practicable date.

6. It is appropriate for me to make the urgent orders sought by the applicant and I will do so.

7. The order requires that the respondent mother deliver B to the child care room on 6 January 2011. 

8. I have also made a request for the appointment of an Independent Children’s Lawyer.  I have not sought submissions from the applicant at this stage as to the appropriateness of an Independent Children’s Lawyer being appointed.  I will permit both of the parties, once they are before the court and the mother has had an opportunity to be legally represented, to make any submissions to the effect that the appointment is inappropriate.  The independent children’s lawyer can also make submissions.  It would be premature to ask the applicant to make hers now because she would have to be entitled to hear and be heard in respect of the submissions of other parties.

9. International experience indicates that the difficulty with the independent representation of children, or their interests, is their timeliness or lack of timeliness associated with the appointment of a representative.  In this case I wish to avoid any such delay.

10. It appears, on the evidence contained in the application, that one ground on which to oppose mandatory return of B to the United Kingdom may be that the application is made more than one year after the alleged wrongful removal, which appears to be the case, and that B has become settled.  Regulation 16(2) is curiously worded so as to cast an onus on the respondent but provides:-

    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.

11. Subregulation (3) contains the exceptions to mandatory return which apply to all cases were wrongful removal or retention has been established.  If one of those exceptions is made out then the court has a discretion to refuse return.

12. It is important that the respondent mother and the applicant State Central Authority be in a position to advise the court at an early date of where B has been since March 2008.  That is in terms of the countries in which he has resided and the locations and particular addresses in which he has resided within those countries.

13. As I have said each party can address me in due course on the appropriateness of the representation of the child. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 23 December 2010.

Associate: 

Date:  4 January 2010