State Central Authority and Muteki (No 2)
[2018] FamCA 783
•6 September 2018
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & MUTEKI (NO 2) | [2018] FamCA 783 |
| FAMILY LAW – CASE MANAGEMENT – Hague return application to New Zealand– directions for trial. FAMILY LAW – CHILD ABDUCTION – use of protective measures - endorsement of four step process outlined by United Kingdom Supreme Court in Re E (Children) (FC) [2011] UKSC 27 with modifications for Australian conditions. FAMILY LAW – CHILD ABDUCTION – direct judicial communication between Australia and New Zealand. FAMILY LAW – CHILD ABDUCTION – case management – requesting parent refused to participate in mediation. |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Muteki |
| INDEPENDENT CHILDREN’S LAWYER: | Ms C. Smith |
| FILE NUMBER: | MLC | 9904 | of | 2018 |
| DATE DELIVERED: | 6 September 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 6 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Marasco |
| SOLICITOR FOR THE APPLICANT: | State Central Authority, Department of Human Services, Legal Service Branch |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Victoria Legal Aid |
Orders
IT IS ORDERED:
(1)That this matter be fixed for final hearing before me on 1 October 2018 at 10.00 am subject to part-heard cases only.
(2)The respondent mother file and serve by not later than 12.00 noon on 17 September 2018 at 2.00 pm:-
a)any response upon which she proposes to rely at the final hearing in which she specifies with precision the basis (if any) upon which she opposes the return of the child X, female, born … 2018 (“the child”) to New Zealand pursuant to Regulations 16(1A) or 16(3) of the Family Law (Child Abduction Regulations) 1986 (“the Regulations”);
b)all evidence in support of her case; and
c)without prejudice to her opposition to return, precise details of what conditions precedent to return, contrary to her case, in the event that the child is ordered to be returned to New Zealand.
(3)That the Applicant State Central Authority file and serve any further evidence upon which it relies by not later than 4.00 pm on Tuesday 25 September 2018 at 2.00 pm.
(4)Until further order, each party is at liberty to cause subpoena to produce documents to issue returnable until the final hearing.
(5)The applicant State Central Authority discuss with the Independent Children’s Lawyer and the mother the likely cost and means of purchase of flight tickets for the mother and the child back to New Zealand with a view to securing a commitment from the requesting parent to pay the said fares.
(6)The child the child be released from the child minding room of this Registry of the Court into the care of the respondent mother.
(7)My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
AND IT IS NOTED:
A.That the parties consent to direct judicial communication with the Hague Network Judge for New Zealand about protection orders from the Family Court of New Zealand under the Family Violence Protection Act 1995 (NZ).
B.That the requesting parent has declined to participate in mediations but says he will fund the return flights of the mother and the child to New Zealand in the event that the child is ordered to be returned.
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 (No 2) 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: MLC9904 OF 2018
| State Central Authority |
Applicant
And
| Ms Muteki |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
EX TEMPORE REASONS FOR JUDGMENT
This is the first date on which the respondent mother has been before the Court. The proceedings are an application by the State Central Authority of Victoria for the return to New Zealand pursuant to regulation 14 of the Family Law Child Abduction Convention Regulations 1986 of the child X, (a daughter).
The application was filed on 27 August 2018 and there has been some delay in the mother coming before the Court because she was without transport and not familiar with Melbourne. She has an appointment to see a lawyer at Lampe Family Lawyers on Wednesday, 12 September 2018 at 10 am when she will lodge her application for assistance from Victoria Legal Aid. I am informed by the independent children’s lawyer that this is the most expedient way of the mother lodging an application for legal assistance.
These proceedings under the regulations must be dealt with expeditiously, so I am unable to afford the mother an extended time within which to put material before the Court. I have set the matter down for final hearing before me on 1 October 2018. I anticipate that it will take the whole day.
An independent children’s lawyer has been appointed to represent the interests of the child. That is Ms Carolyn Smith of Victoria Legal Aid. She appears today. Mr Marasco, solicitor, appears for the applicant State Central Authority. The Mother appears in person.
In anticipation of the final hearing, the mother is required to file her response and any affidavit evidence upon which she relies by not later than 2 pm on Monday, 17 September 2018. That documentation must contain her evidence. It should also contain precise details of any conditions precedent to return that she seeks be made is she is unsuccessful in opposing return.
In requiring her to set out in affidavit form what conditions she would seek be satisfied prior to return, I am not in any way taking it to be an agreement by her that she will return to New Zealand. It is entirely without prejudice to her ability to argue that the child ought to be able to remain in Australia. However, if the child is to be returned to New Zealand, it is my intention that she be returned as safely and as calmly and predictably as possible, hence I have asked for details of conditions the respondent would ask be imposed.
Mr Marasco for the State Central Authority has already encountered difficulty in obtaining instructions from New Zealand about simple matters such as whether the respondent is prepared to participate in a Hague mediation and to pay the airfare of the mother and child back to New Zealand in the event that I order that the child be returned. I note that the applicant State Central Authority will have only until 2 pm on Tuesday, 25 September 2018 to respond to the mother’s material and evidence and to file any reply upon which it wishes to rely. Accordingly, the applicant will have to move much more quickly in preparation of that documentation than they have in getting the simple instructions.
Instructions were received, apparently, this morning to the effect that the father will not participate in a Hague mediation. That is a pity because it would have been an opportunity for him to discuss, through mediators, what child care arrangements would pertain to the child upon her return to New Zealand (if she is returned), between the date of her return and the date upon which the courts in New Zealand are appropriately seized of the matter and can make orders consistent with the child’s best interests. If he changes his mind about mediation, he should notify the Central Authority in his own country and the independent children’s lawyer without delay.
Instructions were also received that the requesting parent will be able to pay the airfare of the mother and child back to New Zealand. That is fortunate because the mother tells me from the bar table that she cannot do so. However, there should be some certainty around that, so I have asked the independent children’s lawyer to make an estimate of the cost and to discuss it with both the mother and the State Central Authority so there can be some proof by the father of an ability to pay. Ultimately, I would be thinking that he would have to pay the money by a certain date, and if he does not pay the money by a certain date, then there may be no return. So he should not agree lightly to the date by which he can pay the money.
The mother and all other parties to the proceedings have agreed that I can undertake direct judicial communication through the International Hague Network in relation to what protective orders can be made for the mother and the child upon return.
In discussion, the mother has indicated that her relationship with the father was subject to some family violence in that he yells at her. According to her, he has a difficulty with drugs which might amount to an addiction to illicit drugs; he drinks alcohol to excess and he uses marijuana. He has, for instance, damaged property.
The mother did not mention that he had been violent to either her or the child. This was a preliminary discussion. It in no way limits the matters upon which the mother may rely and in respect of which she may introduce evidence when she has had legal advice and files her material. They will be matters between her and the lawyer that she will see next week. However, there does seem to be some basis for the mother to want a protection order for herself upon her return to New Zealand so that she knows that she will not be disturbed or approached by the father until either they can reach an agreement through intermediaries or the matter is before the Family Court in New Zealand.
Ms Smith, as independent children’s lawyer, has done some research on the matter. It may be that if the order is granted in Victoria under our Family Violence Act for an intervention order, that can be registered under the “Family Violence Protection Act of New Zealand”; in particular, Part 10 of that legislation. If the mother were to apply for an order in New Zealand, I am informed that would be under the Domestic Violence Act 1995 (NZ).
The mother may consider going to the Magistrates’ Court in Melbourne to obtain an order for her personal protection and limiting the father from coming within, say, 100 metres of anywhere that she lives or works or regularly frequents or of her person. It may be that the order must be final in order for it to be able to be registered in New Zealand. This would obviate the need for the mother to try to obtain an order in New Zealand prior to returning to New Zealand. If I was minded to make this as a precondition to any return, I would be requiring that the order be in force and operative prior to the child leaving Australia.
The mother requires the assistance of an interpreter and Mr B has been her interpreter today. Today the mother has been accompanied to Court by her cousin, Mr C and I have permitted him to sit next to her to assist her in following the proceedings. He acts as a McKenzie Friend. I have explained to the mother that, this being a case under the 1980 Convention, any return of the child to New Zealand will not be preconditioned on the child’s best interests. Also the short time frame within which her response and evidence must be filed.
I hold to the view that the four step approach to Article 13b approved of by Baroness Hale and Lord Wilson, delivering the judgment of the Supreme Court, in Re E (Children) (FC) [2011] UKSC 27 is helpful. With two modifications for local conditions, as discussed below, I respectfully consider the four step approach to describe the application of r.16(3)(b) in Australia. For ease of reference, Baroness Hale and Lord Wilson stated:-
32. First, it is clear that the burden of proof lies with the “person, institution or other body” which opposes the child’s return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13b and so neither those allegations nor their rebuttal are usually tested in cross-examination.
33. Second, the risk to the child must be “grave”. It is not enough, as it is in
other contexts such as asylum, that the risk be “real”. It must have reached such a level of seriousness as to be characterised as “grave”. Although “grave” characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm.
34. Third, the words “physical or psychological harm” are not qualified. However, they do gain colour from the alternative “or otherwise” placed “in an intolerable situation”. As was said in Re D, at para 52, “‘Intolerable’ is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’”. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. […]if there is such a risk, the source of it is irrelevant: eg, where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child.
35. Fourth, article 13b is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home. […] if the risk is serious enough to fall within article 13b the court is not only concerned with the child’s immediate future, because the need for effective protection may persist.
36. There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.”
(my emphasis)
The first Australian modification relates to the onus of proof. Callinan J in the High Court case DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services[1] that “despite the language of regulation 16(3), the ordinary rules in relation to the onus of proof in civil litigation may not always be able to be applied in an entirely unqualified way in an application brought under the regulation.[…] one of the rules of evidence is the rule in Blatch & Archer and referred to recently in this Court in Vetter & Lake Macquarie City Council and Marshall & Director‑General, Department of Transport, that all evidence is to be weighed and assessed by courts having regard to the capacities of the parties to adduce it.” I find that persuasive.
[1] (2001) 206 CLR 401 [186] – [187]
The second Australian modification is that our High Court has made it clear that Hague return cases cannot be process driven. Our High Court endorses Hague return cases being dealt with as expediently as possible but, at the same time, has made it clear that it had reservations about disposition by summary hearing. The following passage from De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 at 660-661 is apposite:
The Convention requires the judicial or administrative authorities of Contracting States to “act expeditiously in proceedings for the return of children” (Art II). The system established for Australia by s 111B and the Regulations is one which engages the judicial power of the Commonwealth. Regulation 15(2), in its present form, obliges a court, so far as practicable, to give to an application such priority “as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows”. Prompt listing for hearing is one thing; an over-hasty and insufficient hearing is another. That point is made in the concluding terms of reg 15(2) set out above. Further, there may be cases where, consistent with those precepts, some, even if restricted, cross-examination upon affidavits is appropriate to assist the court to reach a decision whether to refuse an order for the return of the child.
The plurality of Gummow, Heydon and Crennan JJ of the High Court in the decision of MW v Director-General, Department of Community Services [2008] HCA 12, a case about rights of custody for a New Zealand father, warned against “inadequate, albeit prompt, disposition of return applications.” Their Honours’ observed at [46] to [49] that:
… an application for a return order … is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in In re M (Children) (Abduction: Rights of Custody). The oral evidence in that Convention application was heard over two days.
Regulation 15(2) [Article 11] obliged the Family Court, "so far as practicable", to give to the application by the Authority "such priority" as would "ensure that [it was] dealt with as quickly as a proper consideration of each matter relating to the application allows". If within 42 days of its filing the application had not been determined, the Authority would have been empowered by reg 15(4) to seek from the Registrar a written statement of the reasons for the absence of a determination. Regulation 15 reflects the exhortation in Art 11 of the Convention that "judicial or administrative authorities" act "expeditiously" in these matters and the reference in Art 7 to "the prompt return of children".
The judicial or administrative authorities which decide return applications in some Convention countries may not, under their legal systems, have the obligations to provide the measure of procedural fairness and to give reasons which generally apply in common law systems and which were observed here by the Family Court. Thus, in this country, the requirement of promptitude can be an onerous one.
Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another. (footnotes omitted)
As indicated, I have appointed 1 October 2018 as the date of the final hearing. The solicitors for the respondent mother will have to work quickly. Retaining counsel experienced in this particular area would likely assist.
I suggest that the parents reconsider mediation as a means of preparing for outcomes. Any party proposing to adduce evidence, or facilitate cross examination, by electronic means from New Zealand should be in contact with my associate – … - about how that can be achieved.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 6 September 2018.
Associate:
Date: 14 September 2018
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