State Central Authority and Notting

[2008] FamCA 1221

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & NOTTING [2008] FamCA 1221

FAMILY LAW – CHLD ABDUCTION – Hague Convention

Family Law Act 1975 (Cth)

APPLICANT: State Central Authority Secretary To The Department Of Human Services

RESPONDENT: Ms Notting

INDEPENDENT CHILDRENS’ LAWYER Danielle Webb Lawyer

FILE NUMBER: MLC 8271 of 2007

DATE DELIVERED: 4 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 4 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Feng

SOLICITOR FOR THE APPLICANT: Legal Services Branch
Department of Human Services

THE RESPONDENT:	Ms Doyle
SOLICITOR FOR THE RESPONDENT:	Lander & Rogers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms D Webb

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

Orders

1. That paragraph 7 of the orders made 31 January 2008 be stayed for a further period of one (1) month from this day.

2. That notwithstanding the further stay of the preparation of the family report the Manager of Child Dispute Services forthwith notify the parties of the time and date of the assessment for the family report, such assessment to be conducted after the expiration of one (1) month from today.

3. That if the requesting party is not in Australia for the assessment, the assessment proceed with the participation of the requesting party being by electronic means and at the discretion of the Family Consultant.

4. That my reasons for judgment today be transcribed and when transcribed a copy be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC8271 of 2007

STATE CENTRAL AUTHORITY

Applicant

And

MS NOTTING

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(ex tempore)

1. This application comes before me by way of a telephone mention.  It is the application of the State Central Authority filed 23 January 2008 and concerns the children H (born in October 2001) and L (born in April 2003). 

2. The requesting parent is the children’s father who is a resident of Belgium.  The respondent is the mother of the children.  

3. The 1980 Hague Convention and our domestic legislation which implements its provisions gives the State Central Authority standing to make applications such as this in which a requesting parent in Belgium seeks the establishment and implementation of orders for him to have access to the two children. However, the legislation does not alter the relevant considerations by which the application is to be eventually determined. Part 7 of the Family Law Act 1975 makes it clear that the best interests of the children as the paramount consideration, it is not the only consideration but it is the paramount one.  I add here that in domestic matters access by one parent to children who reside primarily with the other parent is referred to as time by one parent with children who live primarily with the other parent.  I use the term “access” because that is the language of the Articles of the Convention and implementing regulations. 

4. As is usual in parenting matters concerning access I made an order for the family to be assessed by a Family Consultant.  The Family Consultant is an appropriately trained social scientist in the employ of the Family Court of Australia.  That order was made on 31 January 2008 and in particular was expressed as follows:

   [7]. That pursuant to regulation 26 of the Family Law (Child Abduction Convention) Regulations 1989 the requesting parent and the respondent mother and the children [H] born […] October 2001 and [L] born […] April 2003 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The respondent and the requesting parent comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant and preparation of such report be on the basis that the requesting parent will attend Melbourne for the purpose of the assessment at which time the Court is likely to determine any application made on his behalf to spend time with the children in Melbourne. Accordingly, preparation of the report may need to be done in two stages. One, prior to the requesting parent spending time with the children with a view to what interim time (if any) there should be. Then, subsequent to the requesting parent spending time with the children with a view to what time the requesting parent should spend with the children on an ongoing basis and where.

5. At the time of making the orders the applicant State Central Authority had indicated that the husband would return to Australia for the purpose of the assessment.  On that basis, I ordered:

   [8]. That the practitioners for the applicant State Central Authority as soon as practicable advise my Associate and each other party to the proceedings of the date upon which the requesting parent will arrive in Australia for the purpose of preparation of the family report and to, if ordered, spend time with the children together with what accommodation he is likely to have whilst in Australia and the anticipated length of stay in Australia.

6. No information was received from the applicant State Central Authority within seven (7) days of the orders of 31 January 2008.  Accordingly, on 7 February 2008 I ordered that preparation of the family report be stayed pending any compliance by the State Central Authority.  Today the matter comes before me by way of telephone mention.  I am informed by the applicant State Central Authority that the requesting parent is still prepared to come to Australia, he merely wants to know how long he will be required to stay so that he can organise flights and accommodation. 

7. These reasons explain why I have now ordered a further stay of the preparation of the family report for one (1) month but directed that the Manager of Child Dispute Services notify the parties forthwith of the appointment times for the assessment that should enable the requesting parent to know his required availability in Australia. 

8. I mention here that it may be advantageous for the requesting party to stay a little longer in Australia in order to have access to the children on an interim basis.  However, that will be a matter for him.  

9. I have considered removing the stay immediately but that would have the consequence of the family report being prepared and the requesting parent only being able to participate in the assessment by electronic means if he could participate at all.  That would mean that there would be no face to face assessment of the requesting parent and the children.  Reading the most recently filed material of the respondent mother it seems that the children have not seen the father since approximately 2005.  The children are of young years and such a gap in their contact with the father means that they may not be familiar with him.  The children may relate to the requesting parent as a stranger but it does not follow that there should be no observation.  If the requesting parent succeeds in his application for access, the refamiliarisation process will have to be undertaken at some stage and it would be as well for the Court to be informed by expert opinion as to what process will best suit.  Some interim access may also be favourably indicated and implemented before and after the assessment.  That said, interim access would only be ordered if it is found by the Court to be consistent with the best interests of the children.  

10. If the respondent, and through the applicant State Central Authority, the requesting parent is provided with notice of the dates upon which the requesting parent must be within Australia and the respondent fails to attend, preparation of the report will commence some time after one (1) month.  In those circumstances the requesting parent and the applicant must bear the consequences of the family report which is likely to be curtailed and, in that curtailment, possibly not be as favourable to the requesting parent’s case as it might have been if he had been able to attend in Australia to be seen with the children for the purpose of the assessment and indeed, on some basis, even prior to or after the assessment. 

11. I note that the respondent mother in her material has sought that the only time that the children spend with the father be in Australia and be supervised by an appropriate professional.  Such orders are not uncommon here.  The reasons for them vary from Court being satisfied that there is an unacceptable risk of abuse to the children if left alone with a person to the situation where supervision may be considered necessary for the protection of the person against whom allegations are made.  It would seem sensible for the independent children’s lawyer and/or the respondent mother to have in place some arrangements which will enable the requesting parent to spend some time with the children when he is in Australia notwithstanding that I will not at that stage have been able to make a final determination of the matter.   They should not wait until the requesting parent arrives and then set about implementing what is the regime that the respondent mother seeks to be made as orders. 

12. Finally, it was drawn to my attention by the applicant State Central Authority that the requesting parent has not filed or served a financial statement.  Paragraph 16 of the orders that I made on 31 January 2008 required a financial statement to be completed by the requesting parent and translated into English and filed and served by the State Central Authority by 4:00pm on Friday 29 February 2008.  I am informed by the solicitor for the applicant State Central Authority that the requesting parent refuses to complete a financial statement.  He says, through the applicant, that he is in regular employment and has the financial means to implement access between himself and the children presumably in Australia and in Belgium. 

13. This is not a case where I would propose to take any steps in relation to the applicant State Central Authority’s failure to comply with the order.  The matter will proceed on the basis that the requesting parent refuses to give details of his financial situation.  That may be relevant in my assessment of his ability to pay costs associated with access because he has had an opportunity (indeed an obligation) to put before the Court information about his financial affairs and has elected not to do so.  Ultimately, I may draw an inference that there is no evidence about the requesting parent’s financial circumstances which would have assisted his position.  It is also a matter that may be relevant to the peace of mind of the respondent mother and the extent to which the requesting parent comes to this Court having made disclosure of all necessary matters. 

14. I make these reasons so that they may be transmitted to the appropriate authority as I bear in mind that the requesting parent is not before the Court today and he is entitled to know the basis of the decision as are the parties.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date: 5 May 2008