State Central Authority and Lore (No. 2)

[2007] FamCA 1434

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & LORE (NO. 2) [2007] FamCA 1434

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Proceedings further adjourned by consent

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

APPLICANT: State Central Authority

RESPONDENT: Mr Lore

FILE NUMBER: MLC 3483 of 2007

DATE DELIVERED: 23 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J.K. Greenham

SOLICITOR FOR THE APPLICANT: Victorian Government Solicitor

COUNSEL FOR THE RESPONDENT: Ms E. Bender

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

1. That this matter be adjourned before me on 14 December 2007 at 10:00am for further hearing in the event that a determination has been made on any application which the requesting parent will now make for a revocation, rectification, discharge or amendment of the Orders made in New Zealand on 1 September 2005. 

2. That within 7 days the applicant State Central Authority file and serve any application upon which the State Central Authority relies to establish rights of access in respect of the child M born … June 1998:-

   (a)For the requesting parent in the event that the application for the mandatory return of M to New Zealand pursuant to regulation 16 is dismissed (and M remains living in Australia);

   (b)For the respondent father in the event that the said pending application is allowed and M is returned to New Zealand to live.

3. I DIRECT that the memorandum of Orders sought by the mother tendered today be marked exhibit “SCA3” and remain on the Court file.

4. That within 14 days of compliance by the State Central Authority with paragraph 2 of this Order, the respondent father file and serve any response thereto.

5. That for the avoidance of doubt neither the requesting parent nor the State Central Authority nor the respondent father are required to file any affidavit material in support of the application and response.

6. That the application and the response provided for herein are to set out with specificity what orders are sought, such specifics to include who is responsible for the costs of transport associated with access or the cost of telephone calls. 

7. That I reserve liberty to each party to contact my Associate, … ( … to advise the progress of the matter in New Zealand or alternatively to seek to have the matter mentioned on notice to the other party. 

8. That my reasons for judgment this day be transcribed and when transcribed a copy be made available to each of the parties.

AND THE COURT NOTES

that both parties continue to be content for communications in relation to this matter to pass between the liaison Judges for

New Zealand

and Australia or their nominees. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3483 of 2007

STATE CENTRAL AUTHORITY

Applicant

And

MR LORE

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me for mention.  I delivered reasons for judgment on 22 June 2007, on an application under Regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986 for the return of the child M, born in June 1998, to New Zealand. The case neutral citation for that decision is [2007] FamCA 618.

2. I requested that the applicant State Central Authority obtain a declaration from a court of competent jurisdiction in New Zealand as to whether or not the retention by the respondent father of the child in Australia on 9 February 2007 was wrongful within the meaning of Article 3 of the Hague Convention.  I had already determined that the child was habitually resident in New Zealand immediately prior to the alleged wrongful retention.  The contentious issue was whether the retention was in breach of rights of custody attributable to the requesting parent. 

3. On 19 November 2007 my chambers received a copy of a reserve judgment by Judge Walker of the Family Court of New Zealand at North Shore.  Judge Walker declined to make the declaration for which the requesting parent had applied but did make certain comments about the requesting parent's rights of custody. 

4. The respondent father has at all material times conceded that the requesting parent has rights of custody; it is whether or not those rights of custody have been breached.  The most significant element in that respect is the effect order which was made on 1 September 2005 in New Zealand which did not reflect the joint intention of the parties. 

5. Counsel for the State Central Authority Ms Greenham commenced her final submissions in the matter but part-way through those submissions made application for an adjournment of the proceedings to permit the requesting parent to make further application to the courts in New Zealand for rectification or amendment of the orders made on 1 September 2005, presumably on a retrospective basis. She supports the application for an adjournment by reference to various paragraphs in the judgment of Judge Walker.  It is submitted that Judge Walker appears to have proceeded on the basis that the order of 1 September 2005 lapsed 12 months after it was made, and therefore is of no effect now and was of no effect on 9 February 2007. 

6. In particular it is submitted by the State Central Authority that the following paragraphs indicate that the order of 1 September 2005 is of no effect:-

   [paragraph 26]

   It is [the father]'s evidence that M went to New Zealand in May 2006 and that when he returned to his father in December 2006 he was happy to stay with his father.  I am satisfied, however, that the father made no steps in the seven months while the child was in New Zealand to have him returned to him and that there were no court orders in New Zealand in December 2006 which affected Ms C's [the mother] rights of custody in terms of either the articles of the convention or in terms of section 97 of the act.

   [paragraphs 37-39]

   Ms C [the mother] has at all times been M's guardian.  Those guardianship rights under New Zealand law gave her the right to the care of the person of the child and in particular the right to determine his place of residence.

   Those rights have not been removed by any court order and so existed at the time she made her application for return and continue to exist.

   Those rights were not qualified or removed by any previous court orders, interim or otherwise. It is clear on the evidence of the consent memorandum the parties signed in September 2005 that any court order was intended to expire in 12 months' time.  Therefore from 2 September 2006 there were no court orders in place in relation to this child, only an application for a parenting order which had yet to be served on the respondent.

   (Emphasis added)

7. The fact that I had in June 2007 considered that application would be made in New Zealand for the rectification or revocation of the order made on 1 September 2005 should be evident from paragraphs 136 to 138 inclusive of my reasons for judgment.  No such application was made by the requesting parent nor raised of the court’s own volition.  My earlier comments read as follows:-

   136. My request would be confined to the appropriate authority seeking a declaration from the court in New Zealand that the retention of [M] in Australia on or about 9 February 2007 was wrongful according to the law of New Zealand and within the meaning of Article 3 of the Convention.  It would be of assistance to me if the reasons for the granting (or the refusal to grant) the declaration could specify the constituent elements of the rights of custody found to be attributable to the requesting parent as at February 2007, including whether the right to determine the child’s place of residence was an element of whatever custody rights existed. 

   137. It is a three steps process to be undertaken as is described by Ward J (with whom Mantell LJ and Beldam LJ agreed) in Re V-B (Minors) [1999] EWCA Civ 1013 and as summarised by Finn J, in Wenceslas, to which I have referred to above.  The next two steps will require me to assess whether the rights which the requesting parent has according to New Zealand law amount to a right of custody under Australian law and, if so, whether the retention was in breach of those rights.  It is really quite necessary that I know the constituent elements of whatever right of custody is attributable to the mother at the relevant time especially in light of the apparent divergence between New Zealand and Australia identified in Wenceslas & Director General Department of Community Services (supra) on how rights of custody may be construed or comprised. 

   138. Of course, I am not prescribing how the courts in New Zealand approach the matter.  I would like to ascertain what rights of custody were attributable to the requesting parent at 9 February 2006 and whether the retention was wrongful according to the law in force in New Zealand at the relevant time.  Nothing that I have said should be taken as precluding the possibility of the requesting parent (or the Court for that matter) initiating a process whereby any deficiencies or defects in the Order made 1 September 2005 are cured.  If that were to occur, the wrongfulness of the retention may be considered inclusive of any retrospective alteration of the Order. 

8. Today the adjournment application by the State Central Authority is not opposed by the father. 

9. In the circumstances of this case I propose to grant the adjournment.  I do so in the recognition that proceedings pursuant to Regulation 16 of our regulations are supposed to be a hot pursuit remedy.  In all of the circumstances of this case, I am satisfied that it is appropriate to allow the State Central Authority one last opportunity to clarify the rights which the requesting parent had in New Zealand as at the date of the alleged wrongful retention. 

10. However, I do want the requesting parent and the respondent father to turn their mind to the orders which each would seek in the event that M is returned to New Zealand at the conclusion of these proceedings and in the event that he is permitted to remain in Australia. 

11. I have earlier indicated that the court would be prepared to provide mediation services between Australia and New Zealand and then asked the parents to turn their mind to what orders he or she thinks should be made, at the conclusion of these proceedings whatever the conclusion may be.  

12. Today, counsel for the State Central Authority handed up a memorandum which outlines the orders which the requesting parent seeks in the event that
    I dismiss the application under regulation 16; that is the orders that she would seek be made for her to be able to see M in New Zealand on the basis that M continued to live with the father in Australia. 

13. Unfortunately - and somewhat inexplicably, from where I sit - the requesting parent has not specified what orders she would be prepared to agree to in the event that M is returned to New Zealand and provision by way of M seeing the father on an ongoing basis. 

14. The father has not specified orders in either event. 

15. I will be making orders which provide a timetable in which each party to the proceedings, that is the requesting parent or the respondent father, say should apply if the application which I am now considering is allowed or is dismissed.  It does not strike me as a particularly difficult case and I would be hopeful of the requesting parent and the respondent father being able to reach some agreement which could result in orders being made immediately upon my disposal of the pending proceedings. 

16. I reiterate that there should be able to be mediation arranged in this court in which the mother would be linked in by telephone or video.  It would seem appropriate for the mediation to be convened by a family consultant (a social scientist) and a Registrar of the court (who is a lawyer).  That is how many of our domestic cases are handled. 

17. I will adjourn this matter to 14 December 2007 to see if we have a result from New Zealand by then.  If not, there is some time available in January 2008 in another of my scheduled non-sitting weeks.  One of the bases upon which I am adjourning this matter is that I am confident that, come what may, I will be disposing of the matter before the start of the school year in either New Zealand or Victoria.  The matter will not, under any circumstances which I can currently foresee, go past the week of 21 January 2008. 

18. Finally, I note the agreement of each party to the proceedings for the liaison between this court and New Zealand is to continue via the liaison judges appointed for each jurisdiction or their nominees.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  11 December 2007