State Central Authority and Neville

[2012] FamCA 446

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & NEVILLE [2012] FamCA 446

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION - Application under Hague Convention for return of child to New Zealand – Mother is a citizen and resident of New Zealand – Father and child presently in Australia – Issues as to circumstances upon which child was delivered to father and remained in Australia – Issues of the alleged consent or acquiescence of the mother – Priority hearing of the application – Availability of a video link hearing from Auckland

APPLICANT: State Central Authority

RESPONDENT: Mr Neville

FILE NUMBER: MLC 3645 of 2012

DATE DELIVERED: 5 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 5 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stoikovska

SOLICITOR FOR THE APPLICANT: Department of Human Services

COUNSEL FOR THE RESPONDENT: Mr Wadsley

SOLICITOR FOR THE RESPONDENT: John D Snodgrass & Associates

Orders

IT IS ORDERED:

1. THAT the application filed by the State Central Authority on 22 May 2012 be adjourned for a further defended hearing to be listed before Young J as a matter of no more than one (1) day commencing at 11.00 a.m. on Thursday 21 June 2012.

2. THAT the applicant, if it should so elect, be permitted to make, file and serve an affidavit of the requesting parent within seven (7) days.

3. THAT the respondent is not to make, file or serve any further affidavits and his evidence upon which he is to be cross examined is that already contained in his court documents as filed.

4. THAT the further hearing proceed with the requesting parent in Auckland, New Zealand and therefore the hearing be by way of video link, or if unavailable, then by telephone.

5. THAT the Registrar, Family Court of Australia, Melbourne Registry is requested to forthwith make appropriate contact with the proper officer of the Family Court or District Court, Auckland, New Zealand and facilitate arrangements from an appropriate venue for such video link facilities (to commence at 1.00 p.m. Auckland time on Thursday 21 June 2012).

6. THAT it is directed that the requesting parent attend where directed to facilitate such video link or telephone hearing.

7. THAT the New Zealand passport of the child N born … November 2005 passport No. … be delivered up to the Family Court of Australia, Melbourne Registry, by the respondent and such passport be held in safe custody by the Registry of this Court pending any further order of the Court.

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the parties.

IT IS NOTED

A.THAT the father has delivered up the passport of the child to the Court and arrangements are in progress between my court officer and the Registry of the Court to hold that document in safe custody until further order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3645 of 2012

STATE CENTRAL AUTHORITY

Applicant

And

Mr Neville

Respondent

REASONS FOR JUDGMENT

1. In the matter listed before me today, the State Central Authority is applicant and their application was filed in this court on 22 May 2012.  The respondent to that application was the father, Mr Neville.  The order sought was for a return of N (“the child”), a child born in November 2005.

2. The material filed on behalf of the State Central Authority included the appropriate application and details concerning the removal of the child from New Zealand and pending proceedings in Australia and with no pending proceedings in New Zealand.  There were substantial attachments to that application, each of which I have read.

3. Those attachments include two affidavits of the mother, sworn 3 May and 14 May of this year, and there are various attachments to those affidavits including email transmissions between the child’s mother and the father’s mother, and they form annexure “A” to the second affidavit of the child’s mother.  Very properly the applicant included particulars of the family law proceedings that the father had already instituted in the Federal Magistrates Court and thus his application and his supporting affidavit filed 26 April 2012 were included within the documents filed by the applicant.

4. The matter first came before me on 22 May of this year and that is the filing date of the applicant’s documents.  Ms Carey, solicitor, then appeared and I made an order adjourning that proceeding to this day and effectively uplifted the father’s proceedings that were filed in the Federal Magistrates Court to my court, consolidated the applications and directed that they be both listed this day.  Additionally, further orders were made as can be seen from a reading of my sealed and signed orders.  I pause only to highlight paragraph 8 where I requested the applicant, State Central Authority, in its capacity as the child protection service in the State of Victoria, to conduct a home visit at the Suburb P residence of the father for the purposes of assessing the safety of the child where he is residing and all circumstances of and related to his welfare, and that order has been implemented and I have today been handed a report.

5. That report was prepared by Ms D, who is described as Team Leader, Child Protection, … Region, Department of Human Services.  By agreement that document is marked exhibit “DHS1” in the proceedings before me.  Whilst the report is helpful and somewhat expansive of the home assessment of the child and of his schooling, it is also important, as Ms Stoikovska of counsel appearing for the Authority has highlighted, as to the penultimate paragraph on page 2 thereof.  I will refer to that paragraph hereafter in these brief ex tempore reasons.

6. Mr Wadsley of counsel appeared for the father, the respondent to the application, and he tendered to the court the affidavit and sought leave for the document to be filed.  The affidavit is wrongly titled and ostensibly was drawn in the parenting proceedings, rather than in the application for the return of the child to New Zealand.  Nevertheless, and with some hesitation and perhaps acting generously to the father, I elected to grant leave for that document to be filed in the proceedings.  I did so, not on the contentious parenting issues, but to the extent that it may be said to support the now assertion of the father that the mother has acquiesced either to the travelling of the child to Australia on an unlimited basis or to any acquiescence beyond the first term schooling, with the child now in second term and in reality close to the end of second term.

7. I pause to highlight that in paragraph 7 of his first affidavit filed on 26 April 2012, the father had there said that:

   In December 2011 the mother informed me that she was in a new relationship.  She indicated that at that time it would be better for the child to come and live with me.  He therefore came to live with me in December 2011 and has been with me ever since.

8. Thereafter, and for example in paragraph 10, he asserted that the mother had not made any clear demands for him to return the child.

9. The careful drafting of the documents or ignoring the email correspondence between the mother and his mother, or any other telephone discussions or any other requests for the return of the child, are matters that may be properly the subject of cross-examination of the father.  That is more so the case, given the report of Ms D from Department of Human Services, where it is recorded in the paragraph to which Ms Stoikovska somewhat enthusiastically directed my attention, and where it is said (in summary):

   [The father] reported that [the child] came to Australia to stay with him during the Christmas holiday period in 2011.  The Agreement with the mother was that he would remain in Australia until the end of the Easter school holidays.  [The father] said that prior to the end of the school holiday period, the child told him that he did not want to go back and live in New Zealand.  The father said that he believed that Australia had a better educational system and that the child should complete his schooling in Australia.  The father advised that he had discussed this with the mother who did not agree and after she verbally abused him, he decided he would not return the child to her care.

10. Whilst I have in part summarised the above paragraph and it is not an identical quotation from the report, the issue highlighted there is the acknowledgement by the father that there were reasons why he wanted the child to remain, which may be in conflict with any original agreement for the return of the child after first term holidays which otherwise he has either conveniently or curiously ignored in his material filed with the court.

11. I have also read, as I earlier recorded, the exchange of emails between the mother and the father’s mother.

12. Whilst there is an onus upon the father to properly establish his case to the satisfaction of the court, I nevertheless understand that through his counsel’s submissions or through his evidence his assertion is now made that the court should refuse to make an order under Regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986 for the return of the child to New Zealand on the basis that there has been either consent or subsequent acquiescence in the retention of the child in Australia or in the original sending of the child to him in Australia.

13. Those matters are wholly opposed and rejected by the mother.  Her Counsel has strenuously submitted that little or no regard should be had of the inconsistent evidence of the father, that he has not discharged any onus upon him and that on the papers there should be a determination this day and the child should immediately be returned to New Zealand without regard to the fact that we are close to the end of second term and for the child to at least complete second term at his present school where it is said he does enjoy his schooling and his lifestyle.

14. I am acutely aware of the necessity for the proceedings to be heard under the law applicable to the Hague Convention and pursuant to the Regulations.  This is not a parenting case being determined on the rights of the child, at least at this stage.  With that background I am confronted with the issue of at least differing evidence.  I have determined, notwithstanding the strong objections of counsel for the Applicant to adjourn this hearing for a short period of time to facilitate it being given time, if it so elects, to make, file and serve an updated affidavit of the mother.  If so, that must be done within seven days.  Given the indulgences that I have already provided to the father he is not to file any further affidavit and his evidence is as now before the court and subject only to any cross-examination of the mother.

15. I do not see the necessity for the Department of Human Services to be called to give viva voce evidence.  I have accepted their report without objection and it is marked as an exhibit and I find it is proper that that document be in evidence before me on the adjourned hearing date.  However I will not exclude limited cross-examination of the team leader of that report or any other investigating officer or the production of their notes if it is proceeded upon by a subpoena within the appropriate time limit.  That is not a matter that I encourage but again, I must respect the legal rights of both parties to present a case as is in the interest of their clients.

16. The mother lives in Auckland.  Thus, I would hope there is an ability for her to attend at the Family Court or the District Court in Auckland, for there to be video link transmission made available or in the alternative a telephone.  I will request the Registrar of the Melbourne Registry Family Court to liaise with the proper officer of the Auckland Family or District Court.

17. I will now prepare appropriate orders.

I certify that the preceding seventeen
(17) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 5 June 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………