State Central Authority and Lloyd

[2018] FamCA 324

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & LLOYD [2018] FamCA 324

FAMILY LAW – CHILD ABDUCTION – Return application to New Zealand under Hague Convention – Ultimately unopposed – Importance of mediation

APPLICANT: State Central Authority

RESPONDENT: Mr Lloyd

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms C Smith

FILE NUMBER: MLC 13253 of 2017

DATE DELIVERED: 12 January 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wilson

SOLICITOR FOR THE APPLICANT: State Central Authority, Department of Human Services

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED BY CONSENT:

1. That the application contained in the Form 2 filed 18 December 2017 be granted. 

2. The child B born … 2012 (‘the child’), be returned to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 in the company of the requesting parent, Ms C born … 1991 on Flight … / … scheduled to depart Melbourne Tullamarine airport at …2018, and landing at City D airport.

3. The respondent father be and is hereby restrained by himself, his servant and agents  (including all members of the paternal family and Ms E) from causing permitting or suffering any of them to:

   (a)attend at or within 100 metres of Tullamarine airport on …2018; and

   (b)communicate with the child on … 2018.

4. The mother pay for the cost of the child’s airfare back to New Zealand and for her own travel to accompany the child and by not later than 3.00 pm on … 2018 provide the applicant with confirmation of the ticket purchase.

5. By 5.00 pm today (12 January 2018) the respondent father transfer $500 to the mother’s account ANZ …00 to be applied by the mother to payment of the cost of the child’s airline ticket to return to New Zealand and that proof of such payment be provided by email to the applicant –…– by 5.00 pm this day.

6. The respondent father deliver the child to the Mother of the child at F Street, Suburb G at 12.00 noon on Wednesday 17 January 2018 or at such other time as the parents may agree and in writing and notify the solicitor for the State Central Authority at ….

7. Pending the child’s departure from Australia for return to New Zealand, the respondent father by himself, his servants and/or agents continue to be restrained and an injunction issue restraining him, his servants and/or agents from causing or permitting or suffering the child B:

   (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/or

   (c)to reside at any place other than H Street, Suburb J in the State of Victoria.

8. That the passport of the child currently held by the Registrar of the Family Court of Australia pursuant to Order 10 of the Orders made by this court on 21 December 2017 be released to Ms K, representative of the Applicant upon request and presentation of this Order.

9. The Mother of the child (or any other family member nominated by the Mother) is authorised to collect the passport of the child from a representative of the applicant at L Street, Melbourne.

10. That the child B, male, born … 2012 be removed from the airport watch list so as to enable the child and the mother to board the flight referred to in paragraph 2 of this Order.

11. 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 police Forces and services of the States and Territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.

12. The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the States and Territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.

13. Liberty to the parties to apply on short notice in relation to the implementation of this return Order.

14. The Form 2 Application filed 18 December 2017 be and is hereby otherwise dismissed.

15. The order for the appointment of the independent children’s lawyer be and is hereby discharged.

16. That the child be removed from the Child Care Room in this Registry of the Court into the care of the father.

17. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

IT IS DIRECTED:

1. That the minute of orders as amended be marked Exhibit “A” and remain on the Court file.

AND IT IS NOTED THAT the cost of the return airfares for the child and the mother on Friday 19 January 2018 is $1,018.98 (total) if booked this day.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Lloyd has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13253 of 2017

STATE CENTRAL AUTHORITY

Applicant

And

Mr Lloyd

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me as the final defended hearing of the application of the State Central Authority for the return of the child, who is nearly six years old, to New Zealand, pursuant to the Family Law (Child Abduction Convention) Regulations 1986.  The matter was first before me on 21 December 2017, having been filed three days earlier.  The father attended Court with the child and said that one basis upon which he was intended to oppose the return of the child to New Zealand was that the child was objecting to being returned to New Zealand. 

2. Fortunately, the child dispute services section of this Court had available a family consultant who has experience in interviewing children in the context of Hague return proceedings, and an interview was conducted by her of the child on the afternoon of 21 December 2017.  Ms M returned to Court that afternoon and gave evidence of her assessment, which was duly transcribed, and the transcript is on the Court file and has been distributed to the parties to the proceedings. 

3. In essence, the family consultant assessed the child as objecting to returning to New Zealand and expressing a wish to remain in Australia with his father, from whom he had been separated for five months prior to coming to Australia, but that the child’s objections to being returned to New Zealand did not appear to her to go beyond a mere expression or a preference of an ordinary wish.  The family consultant also assessed the child as not having obtained an age or degree of maturity for his wishes or views to be accorded significant weight at this time. 

4. I indicated to the father and to counsel for the applicant, State Central Authority, that Ms M could be cross-examined.  No party had any cross-examination for Ms M on that day, although I indicated to counsel for the applicant, State Central Authority, and to the father that they may elect to cross-examine her at a further date, in particular, at the final hearing.  The final hearing was fixed for hearing before me today.  I appointed an independent children’s lawyer, and in due course, that task was allocated to Ms Caroline Smith of Victoria Legal Aid, who is a practitioner with an immense amount of experience in the representation of children in proceedings of this kind.

5. Today, Ms Smith does not attend Court, but Ms Boymal of counsel is briefed to appear on her behalf.  Pursuant to the order made by me on 21 December 2017, the father was to file his responding documents including all evidence upon which he relied by 4 January 2018.  I made clear to the father that the responsibility for preparation of those documents fell squarely on him and that I would be unlikely to entertain favourably an application for an adjournment on the basis that he had not been able to find solicitors to act on his behalf if, indeed, he sought solicitors.  Furthermore, there was a notation to the order that:

   In the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party. 

6. Following the hearing on 21 December 2017, my chambers were contacted by the solicitors for the applicant, State Central Authority, and were advised that it would not be possible for them to meet the timeline for filing material in response to that of the father because the solicitor who has conduct of this matter on behalf of the central authority in New Zealand would not be in a position to obtain affidavit material from the wife from the requesting parent within the time allowed, which was 9 January 2018.  They sought a further hearing date. 

7. I had already warned the parties that if I was not able to deal with the matter this week, there could be some considerable delay in me doing so on any other date or finding an alternative Judge to take the matter on.  I declined to alter the hearing date and indicated that I would entertain the matter after I had an appreciation of whether the father would, in fact, be continuing in his opposition to return to the child and, in particular, whether he complied with the orders to file documents by 4 January 2018. 

8. The father has not filed any response or any evidence in support of a case opposing return and indeed attended Court today saying that he would agree to the return of the child to New Zealand forthwith.  I am satisfied that all of the jurisdictional facts and prerequisites under the Child Abduction Convention Regulations have been made out and that it is appropriate to order the child’s return as soon as possible.  I will shortly look at orders which have been drawn by counsel for the applicant, State Central Authority, to facilitate the return of the child to New Zealand in the company of his mother as soon as possible. 

9. In my view, it should be within the next seven days, and because the mother is prepared to travel to Melbourne to collect the child, on the day of her return, neither the father nor any member of his family should approach or be present at the airport to farewell the child.  They should farewell the child at an earlier time when the child is handed over to the mother in Melbourne. 

10. One of the tasks of the independent children’s lawyer, and one which Ms Smith is well-versed in conducting, is the organisation of a specialised Hague mediation.  This is done through Victoria Legal Aid.  It is free of cost to the parties because there is an independent children’s lawyer.  The structure of it is to allow for up to three sessions with co-mediators, one of whom is generally a legal practitioner and the other a social scientist.  As I discussed with the parties on 21 December 2017, the aim of the mediation is not necessarily to get the respondent father and the requesting parent to agree on whether the child should be returned to New Zealand or be able to stay in Australia.  That is a matter for the Court in the determination of the application under the convention. 

11. What the mediation would have been directed to would be preparation for outcomes.  There is only two outcomes to any Hague case:  either the child goes or stays.  But proper arrangements being made around those outcomes can make the world of difference for the child and for the parties.  In this case, it would have permitted the parties to have someone facilitate discussions around who and how – who would pay for the airfares and how they would pay for the airfares.  There would have been discussion about when the child would next see his father. 

12. At the moment, when these orders are made, there will be no orders entitling the father to see the child in Australia or in New Zealand.  That is unfortunate for the father.  In many respects, it is probably tragic for the child that nobody thought to try and put those arrangements in place before today because there is likely to be a considerable delay before they can be put in place between Australia and New Zealand into the future, and that will only be after there have been further proceedings in New Zealand.

13. Had the parties gone to mediation and had they been able to work out a regime of the child spending time with the father in New Zealand and in Australia, orders could have been made in both Australia and New Zealand to support that parenting regime so that it was secure and to limit the circumstances in which there could be any subsequent wrongful retention of the child.  It is, in my view, unfortunate that the parties did not see fit to mediate and did not see fit to think forward and make provision for the child to see the father face to face. 

14. The independent children’s lawyer has been in contact with the family consultant who interviewed the child, that is, Ms M.  The independent children’s lawyer is of the view that it is important that the child be able to maintain contact with his father.  At this stage, that will have to be confined to FaceTime, video calls and telephone calls between Australia and New Zealand.  These, too, could have been matters which could have been discussed at a mediation if the parents had had one. 

15. I make these comments because it is important for the requesting parent who is not before the Court to understand that the child is currently assessed as needing an ongoing relationship with the father, but unfortunately the father would not participate in the arrangements for a mediation, so there has been no forum at which such arrangements could have been discussed.  That concludes my reasons.

RECORDED:   NOT TRANSCRIBED

1. Going back to the reasons for decision, I am informed by counsel for the applicant, State Central Authority, that the mother promptly communicated her agreement to participate in mediation, but that, as best they understand it, the father did not respond to any requests and has recently said that he “forgot” to respond.  

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 January 2018.

Associate: 

Date:  14 May 2018