State Central Authority and Muteki (No. 4)

[2018] FamCA 923

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & MUTEKI (NO. 4) [2018] FamCA 923

FAMILY LAW – CHILD ABDUCTION – variation of conditions to return – machinery provisions – direct judicial communication between Network Judges

APPLICANT: State Central Authority

RESPONDENT: Ms Muteki

INDEPENDENT CHILDREN’S LAWYER: Ms Smith

FILE NUMBER: MLC 9904 of 2018

DATE DELIVERED: 8 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Marasco – Department of Health and Human Services Legal Services Branch

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms Littorin – Ebejer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICTOR FOR THE INDEPENDENT CHILDREN’SLAWYER Ms Smith - Victoria Legal Aid

Orders

1.Paragraph 6 of the Order made on 1 October 2018 be varied so that the respondent mother be and is hereby responsible for obtaining the orders and protective measures referred to in paragraphs 6(b) and (c) of the Order. For the avoidance of doubt, the domestic violence order is to cover the mother but not the child.

2.There be liberty to apply on short notice in the event of alleged non-compliance with, or opposition by, the requesting parent with the mother’s application for the orders in New Zealand.

3.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 that the mother has obtained the services of a lawyer in City H, has completed a legal aid application form and informed the court of her proposed arrangement to return with the child to New Zealand.

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. 4) 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

Applicant

And

Ms Muteki

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me pursuant to the liberty to apply, which was reserved by paragraph 14 of the Order which I made on 1 October 2018 returning the infant, X, born in 2018, to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1989.

2. The return order was subject to various conditions, including the father, who is the requesting parent and Article 3 applicant, obtaining temporary parenting orders in favour of the mother and an order under section 14 of the Domestic Violence Act 1995 (New Zealand).  What I foreshadowed in my reasons for decision[1] has turned out to be the case and the requesting parent is unable to apply for the necessary domestic violence order.  It is the mother who must make the application. 

   [1] State Central Authority & Muteki [2018] FamCA 820

3. Since the return order was made, I have also had an opportunity for direct judicial communication with the Hague Network judge for New Zealand, his Honour Judge Smith.  The mother has been provided with details of a lawyer in City H who is going to act for her.  The solicitors for the mother in Melbourne have contacted Ms P, a barrister in City H.  The mother has completed an application form for legal assistance.  That legal aid application form will apparently be dispatched later today and the mother does not anticipate any difficulty with having Ms P make the necessary applications for her to the courts in New Zealand for both the parenting orders which are part of the conditions to return and the domestic violence order.  Accordingly, I have altered the return order I made on 1 October 2018 to oblige the mother to obtain those orders herself.  Correspondingly, the requesting parent is relieved from an obligation to make any applications.  I do not anticipate that the father will oppose, or fail to cooperate, with the necessary orders being made in New Zealand.  In evidence, he agreed to the terms of the conditions for return of which the obtaining of these orders was part.  In any event, I have reserved be liberty to apply on short notice to me for further variation of the order in the event of alleged non-compliance or opposition by the requesting parent with the mother’s application for the orders which are part of the conditions to return.

4. I reflected in my earlier reasons for decision that neither parent has been particularly proactive in these proceedings.  Serious consequences can flow from inaction.

5. If it is the case that the mother does not act diligently to obtain orders in New Zealand which are to her benefit and I am satisfied that she has not done all things that she could have done by the time that she is required to return to New Zealand, the natural consequence would be that the mother will be required to return without the protection of the orders.  By the same token, if the requesting parent does not cooperate or inhibits the mother’s ability to obtain the orders, which the conditions require, then the mother will not have to return.  I am not making these as consequential orders at this time; merely foreshadowing what the likely consequences will be of certain inaction or actions. 

RECORDED:  NOT TRANSCRIBED

1. The mother is required to return to New Zealand within 45 days of the father making a payment to cover the airfare for herself and the child.  I am informed from the bar table, and it is common ground, that earlier this week the father attempted to make the necessary payment into the account nominated by the independent children’s lawyer in Melbourne, but was unable to do so because he lacked all of the necessary information to have the financial institution transmit the moneys.  The necessary information has now been provided to the father and he will be making the payment, I am told, this week.  From the bar table, I have been informed by the solicitor for the mother of the date that the mother is proposing to make airline reservations for herself and the child to fly from Melbourne to New Zealand.  That date is, on my calculation, comfortably within the 45 days if the payment is made this week.  In order that things move smoothly, I would expect that the practitioners for the mother would notify the independent children’s lawyer and the solicitor for the applicant immediately if reservations are not made for the day specified to us in court.

2. The order made on 1 October 2018 provides that the Australian Central Authority will notify the New Zealand Central Authority of the mother’s date of departure from Australia, “but the father not be provided with details of the mother and child’s travel”.  Within seven days of return to New Zealand, the mother is to inform the father’s solicitor, Ms O, of an address for service for her in New Zealand.  It would appear likely that that will be the offices of Ms P but, nonetheless, the mother should make the formal notification to Ms O or instruct Ms P to do so on her behalf in accordance with the order. 

3. The father resisted any attempt to mediate terms of return including what time he would have with the child upon her return to New Zealand.  Accordingly, there was no provision for time to occur.  Now that both parties are represented by practitioners in City H, it may be possible for there to be some negotiated time.  The temporary parenting orders in New Zealand will provide that the mother can give her prior written consent to time occurring between the father and X, if it is agreed.  However, absent agreement, there will be no time for the agreed three week moratorium whilst the mother and child settle themselves.

4. This is a matter in which there is no controversy about my ability to change the machinery aspects of conditions to return.  It came to my attention that it is impracticable for anyone other than the mother to apply for a domestic violence order.  Now that she has been referred to a lawyer in City H, it is convenient for the mother to also apply for parenting orders as well as the temporary domestic violence order.  The result will be what I envisaged in my Order, it will just come about by the mother making the applications rather than the father making them.

5. I am indebted to Judge Smith for his attention to this matter, both during the case and after the orders have been made.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 November 2018.

Associate: 

Date:  15 November 2018