State Central Authority and Muteki
[2018] FamCA 730
•27 August 2018
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & MUTEKI | [2018] FamCA 730 |
| FAMILY LAW – Ex parte return date of return proceedings under the 1980 Hague Convention – safeguards and protective measures – appointment of an Independent Children’s Lawyer– anticipated tasks of an Independent Children’s Lawyer. |
| Family Law (Child Abduction Convention) Regulations 1986 |
| Re E (Children) (FC) [2011] UKSC 27 TB v JB(Abduction: Grave Risk of Harm) [2000] EWCA Civ 337 |
| APPLICANT: | State Central Authority For Victoria |
| RESPONDENT: | Ms Muteki |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 9904 | of | 2018 |
| DATE DELIVERED: | 27 August 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 27 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Marasco |
| SOLICITOR FOR THE APPLICANT: | State Central Authority, Department of Human Services |
| COUNSEL FOR THE RESPONDENT: | Ex parte |
| SOLICITOR FOR THE RESPONDENT: | Ex parte |
Orders
IT IS ORDERED:
That leave is granted to the applicant State Central Authority to proceed ex-parte with orders in the terms of paragraphs (a) to (f) of the application filed 27 August 2018.
That this matter be adjourned for the further hearing of the said application before me at 9.30 am on Thursday 30 August 2018 (“the adjourned date”).
That the applicant State Central Authority effect service of the application and this Order upon the respondent mother as soon as practicable.
That in the event that the respondent mother has been served with the application by the adjourned date:-
(a) she attend Court personally on 30 August 2018 and remain at Court pending further order of the Court;
(b) subject to paragraph 7 of this Order the mother deliver the child X born … 2018 (“the child”) to the Child Care Room on the 5th Floor of this Registry of the Court by not later than 9.15 am, where the child shall remain pending further order of the Court.
IT IS DIRECTED that my Associate or Court Officer reserve a place in the Child Care Room for the child on the adjourned date from 9.15 am onwards.
That until further order or return of the said child to New Zealand, 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.
A proper officer of the applicant undertake a home visit at the child’s residence, assesses that the child is that to whom the application relates and that the child is being cared for appropriately and if that officer advises the mother accordingly, the mother is excused from bringing the child Court on the adjourned date.
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.
That until further order, the respondent by her servants or agents be restrained by injunction from causing or permitting or suffering the said child X, female, … 2018 :-
(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 child may reside;
(d) to be assessed by a psychologist, counsellor, medical practitioner or like professional for the sole or ancillary purpose of obtaining evidence for use in this proceeding without the prior written consent of the applicant.
That the prohibition against removal of X born … 2018 from Australia, out of Victoria and from her current residence applies mutatis mutandis to the requesting parent, Mr D, of E Street, Suburb F, New Zealand AND IT IS DIRECTED that the applicant bring this Order to the attention of the requesting central authority so that the requesting parent will have notice of it.
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, then, be and is hereby restrained from applying for any further or other passports for the said child pending further orders of this Court.
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.
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 New Zealand in the event that I find that the child must be returned to New Zealand 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 New Zealand.
That I reserve to the requesting parent, Mr D 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.
Before the adjourned date the applicant obtain instructions and be in a position to inform the court on the adjourned date of the following:-
(a) What arrangements the father makes for payment of airfares of the mother and the child if I ultimately order that the child be returned in the care of the mother;
(b) Whether the requesting parent will agree to mediation.
That pursuant to Section 68L(2) of the Family Law Act 1975 the child X born … 2018 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.
That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service and in the meantime to consider a Hague mediation through Victoria Legal Aid for this matter.
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.
My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
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 & Muteki 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 9904 of 2018
| STATE CENTRAL AUTHORITY FOR VICTORIA |
Applicant
And
| Ms Muteki |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This matter concerns X, who is eight months old, having been born in New Zealand in 2018.
It is the application of the State Central Authority for Victoria that the child be returned to New Zealand pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986, which implement the provisions of the Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”).
The application is filed today, and alleges that on 25 April 2018, the mother brought the child to Melbourne for the purpose of a two-week holiday, and thereafter failed or refused to return the child to New Zealand. It appears from the application that the father was unaware of the mother leaving New Zealand with the child. Therefore, it was a wrongful removal which was effected on or about 25 April 2018.
I am satisfied that the child has not yet attained the age of 16 years and that the 1980 Convention is in force between New Zealand and Australia and that the application is filed within 1 year of the alleged wrongful removal. Prima facie the requesting parent has the requisite rights of custody to support an application under the Regulations, but I cannot know whether that will be conceded by the mother or the applicant will be put to proof about rights of custody and the like.
I have permitted the applicant to proceed with the application ex parte and for orders which give effect to the Convention: essentially, that is, to adjourn the matter for a few days to allow service of the application on the mother, and that the matter return to court on 30 August 2018 and a raft of orders to secure the wellbeing and safety of the child between now and the final disposition of the return application.
Additionally, on or before the adjourned date, the applicant is to obtain instructions about what arrangements the father is prepared to enter into to pay airfares for the mother in the event that ultimately I decide that the child should be returned and the mother should accompany the child.
Furthermore, the applicant should inform the Court on the first day the respondent mother is before the Court whether the requesting parent will agree to mediation run by Victoria Legal Aid in a specialised program for Hague matters.
Given the tender age of the child, I will order that the applicant, which is the Department of Health and Human Services, conduct a home visit as soon as practicable. If that occurs before the adjourned date, then it may not be necessary for the mother to bring the child to court on the adjourn date. However, in the more likely event that it is not undertaken before the adjourned date, the mother is required to bring the child to court on the adjourn date and thereafter the home visit will be conducted. I require that a report of the home visit be generated by the applicant so that it may be placed on the court file. In due course it will be transmitted to the requesting Central Authority.
I will also order that the child be placed on the watch list and that the mother and the requesting parent be prohibited from taking the child out of Australia pending further order of the court.
It is a basic entitlement that a party to proceedings be afforded procedural fairness. The ex parte orders that I have made are without the respondent mother having had notice of or an opportunity to be heard. I allowed the applicant to proceed thus because of Australia’s obligation, discharged by the Central Authority, to give effect to the 1980 Convention. Regulation 15(1)(b) provides that if the Court is satisfied that it is desirable to do so, it can make any order that the Court considers appropriate to give effect to the Convention. Articles 7(a), (b) and (c) of the 1980 Convention provide that the Central Authorities shall take all appropriate measures-
a)To discover the whereabouts of a child who has been wrongfully removed or retained;
b)To prevent further harm to the child or prejudice to the interested parties by taking or causing to be taken provisional measures;
c)To secure the voluntary return of the child or to bring about an amicable resolution of the issues;
The protective measures are imposed as precautions.
The respondent should not be concerned that I have pre-judged any issue. The order is not particularly onerous on the respondent mother and she can make an application on the adjourned date or any subsequent date for these safeguarding orders and protective measures to be varied, set aside or discharged.
I have also ordered an independent children’s lawyer be appointed inasmuch as I have requested same be provided by Victoria Legal Aid.
Section 68L(3) provides that in proceedings such as this the court may only order that a child’s interests in the proceedings be independently represented “if the court considers there are exceptional circumstances that justify [it] doing so.”
I do not know whether the mother will oppose the application and if she does, on what grounds. However, if I fail at this early stage to address the need for an independent children’s lawyer to be appointed, I fear that I will invite delay in the final determination of the matter and very possibly add to the costs of representation to be incurred by the parties.
There are certain features of this case, such as the very young age of the child, which indicate to me that it is preferable that there be oversight of an officer of the court such as an independent children's lawyer as to the child’s wellbeing prior to any final determination, and for that person to have input into the final determination of this case.
As Baroness Hale of Richmond (as she then was) observed in the case of Re D (a child) (abduction: rights of custody) [2006] UK HL 51, proceedings are not prolonged by the appointment of a representative for the children’s interests but by one party raising the need or desirability for such representation very late in the day as a “last ditch stand” and then by requiring the postponement of the trial.
In R v Kelly (Edward) [2000] QB198 Lord Bingham of Cornhill CJ considered “exceptional circumstances” in the context of imposing a life sentence for intentional wounding. His Lordship delivered a judgment of the court and stated at page 208:
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 it is regularly or routinely or normally encountered.
This description of exceptional is of assistance to me and I adopt it.
I am satisfied this application may involve exceptional features.
Once the applicant makes out its prima facie case under Regulation 16(1A), the circumstances in which a return may be opposed by a taking parent are regarded as “exceptions” to mandatory return under the 1980 Convention. In that sense, “exceptional” can relate to a case in which return is opposed, based on one of the exceptions available under the regulations. In an application filed within one year of the wrongful removal, the exceptions are:-
a) Non-exercise of rights of custody (regulation 16(3)(a)(i));
b) The requesting parent consented or acquiesced to the removal (regulation 16(3)(a)(ii));
c) Return would expose the child to a grave risk of harm or place the child in an intolerable situation (regulation 16(3)(b));
d) The child objects to return (regulation 16(3)(c)); and
e) The return would be contrary to fundamental freedoms and human rights (regulation 16(3)(d)).
An independent children’s lawyer in a Hague abduction matter such as this would, I envisage, attend to the following:
a)Make arrangements for a specialised Hague mediation to be provided by Victoria Legal Aid on a co-mediation basis. By virtue of the independent children’s lawyer’s appointment, they will be free of charge to the parties.
b)To obtain such documentary and other evidence as is relevant to the proceedings particularly if it appears that the other parties may lack the capacity or inclination to do so.
c)To ensure that collateral issues such as preconditions to any return are properly thought through by the parties well before the final hearing and are capable of being implemented for the child as beneficially as the circumstances and nature of the proceeding permit. This may well involve obtaining an order for the personal protection of the mother and/or the child upon their return to New Zealand as a means of mitigating any alleged risk of harm. This approach was discussed in Re E (Children) (FC) [2011] UKSC 27 at [36]. In short, imposition of protective measures can obviate the need for this Court to make findings about contested allegations of fact and allow the proceedings to be dealt with in a shorter time frame.
d)In the event that one or more of the exceptions to mandatory return are made out, all parties, including the independent children’s lawyer, will be required to address the court’s exercise of the discretion to refuse the return of the child to New Zealand. As the helpful checklist in TB v JB(Abduction: Grave Risk of Harm) [2000] EWCA Civ 337 demonstrates, the matters which inform the exercise of the discretion should be the subject of evidence and not merely submissions. The independent children’s lawyer will be well-placed to foresee what evidence will be required.
In this case I have made particular mention of mediation. It is my impression that the parties to return proceedings often overlook the appropriateness of mediation. However, the benefit to the child of the parents entering into mediation is well recognised within the Hague community. The Permanent Bureau of the Hague Conference on Private International Law has published a “Guide to Good Practice Child Abduction Convention – Mediation; HCCH; 2012” and I have earlier referred to Article 7(c) of the 1980 Convention.
Victoria Legal Aid has a mediation service tailored to Hague return applications which is accessible through the independent children’s lawyer free of charge. There is also International Social Service mediation service which may attract a modest fee. Mediation addresses a resolution of the issue of return but, failing agreement, may resolve other issues and should help the parties prepare for outcomes.
The independent children’s lawyer will promote attention to what orders should be made or could be made for the benefit of the child on the final outcome of these proceedings. There really are only two outcomes: one is the child goes back to New Zealand, and the other is the child stays in Australia. If the child is returned to New Zealand, it is likely that the mother will in the future seek to return to Australia for holidays and to bring the child with her. That will not be possible unless there is a clear set of complementary orders between Australia and New Zealand in force, which will ensure the return of the child after any visit to Australia. Likewise, if the child is to remain in Australia and the application is dismissed, the requesting parent will want to see the child and there should be consideration by the parents now as to what would be appropriate parenting arrangements if the child were to remain in Australia.
Preparation for outcomes is to avoid uncertainty for the parents and, through them, for the child. Without preparation and planning, parenting arrangements for the child on any return to New Zealand will be uncertain and could lead to unnecessary strife. It is preferable that protective measures be put in place so that both parents know when and how the father will see the child pending the parenting matter being properly and adequately seized by the Court in New Zealand. Likewise, if the return is refused, to avoid the father being left in limbo as to when, or if, he will see the child.
My request for an independent children’s lawyer at this stage is conservative. I want to avoid an unnecessary prolongation of the proceedings. It is my experience that an independent children’s lawyer will expedite the process. In any event, I will hear argument on the adjourned date if any party (including the independent children’s lawyer) takes the position that the Independent Children’s Lawyer should be discharged.
In the event that the mother comes before the court and this matter is resolved in short compass and without a final hearing, the costs of the independent children’s lawyer would, I expect, be modest. In essence, it is better to be safe than sorry.
On the above basis, I make the orders set out at the beginning of these reasons.
The matter will return to Court on 30 August 2018. If the matter has not been served, the applicant can seek an adjournment administratively.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 27 August 2018.
Associate:
Date: 29 August 2018