State Central Authority and Spring-Ernst
[2013] FamCA 653
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & SPRING-ERNST | [2013] FamCA 653 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – case management – request for appointment of an independent children’s lawyer – mediation – evidence of abductor’s ability to re-enter USA – arranging access between children and left behind parent. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Spring-Ernst |
| REQUESTING PARENT: | Mr Enst |
| FILE NUMBER: | MLC | 3927 | of | 2013 |
| DATE DELIVERED: | 24 June 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 24 June 2013 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Nolan, Department of Human Services, Legal Services Branch |
| SOLICITOR FOR THE RESPONDENT: | Ms Viravout, Berger Kordos |
| SOLICITOR FOR THE REQUESTING PARENT: | Ms Humphreys, Kennedy Partners |
Orders
IT IS ORDERED THAT:
1.The parenting proceedings commenced by the mother’s application filed 20 May 2013 be stayed pending further order of this Court or the outcome of the proceedings pursuant to the Family Law (Child Abduction Convention) Regulations 1986, whichever first occurs.
2.For ease of reference, henceforth the respondent to the parenting proceedings who is also the requesting parent in this proceeding be referred to as “the father” and the applicant for the parenting proceedings and the respondent for these return proceedings be referred to as “the mother”.
3.For the avoidance of doubt, the applicant State Central Authority may inspect any documents on the Court file, including those in the parenting proceedings.
4.The application of the State Central Authority filed on 17 June 2013 seeking the return of the children J Spring-Ernst born … 2006 and F Spring-Ernst born … 2008 to the United States of America be set down for final hearing before me on 22 August 2013 estimated to take 2 to 3 days.
5.On or before 12.00 noon on 11 July 2013 the mother make file and serve:-
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 children, or either of them, to the United States of America;
b) all evidence in support of her case;
c) without prejudice to her opposition to return, precise details of what conditions precedent to return she would seek in the event that, contrary to her case, the children are ordered to be returned NOTING THAT such conditions may include her desire to accompany the children back to the United States of America.
6.By not later than 12.00 noon on 23 July 2013 the applicant State Central Authority file and serve any further evidence upon which it relies.
7.Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Sikiotis for the return of subpoena or on any date notified to the parties by my Chambers for the return of subpeoana(s).
8.Until further order, the mother by herself her servants or agents be and is hereby from causing permitting or suffering either of the children from being assessed by a psychologist, medical practitioner, counsellor or like professional for the purpose of obtaining evidence in this proceedings or therapeutically without the prior written consent of the applicant State Central Authority and the independent children’s lawyer.
9.Each party have liberty to contact Registrar Sikiotis or my Associate – email … – to arrange to have this matter listed for mention or urgent interim application in the event that any party considers directions or further orders are necessary.
10.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children J Spring-Ernst born … 2006 and F Spring-Ernst born … 2008 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to ascertain what is necessary for the mother and the children to be able to re-enter the United States of America if the children are ordered to return, to consider mediation of all issues and the establishment of appropriate communication and access between the requesting parent and the children.
11.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.
12.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.
13.Subject to any further order of the Court, IT IS DIRECTED that pursuant to Regulation 26(1) of the Regulations a report be prepared in relation to the children J Spring-Ernst born … 2006 and F Spring-Ernst born … 2008 and in relevance to any particular response the mother files pursuant to this Order, such report to be commenced not before 22 July 2013 and the report to be published to the parties by not later than 31 July 2013.
14.The mother and children comply with all reasonable directions as to attendance on the family consultant as and when required by the family consultant.
15.The family consultant have leave to inspect all material on the Court file and all subpoenaed material once released for inspection.
16.This matter be listed for directions before me on Friday 12 July 2013 at 9.00 am for directions in relation to the necessity for a family report and any other matters which have since arisen.
17.For the avoidance of doubt, paragraph 1 of the Order made on 4 June 2013 by Senior Registrar FitzGibbon (pursuant to which neither of the children’s parents are permitted to remove the children from the Commonwealth of Australia) continue in full force and effect.
18.The solicitors for the State Central Authority notify Mr S of these proceedings by sending him a sealed copy of the application initiating proceedings under cover of a letter advising him that it is sought that the children J and F be returned to the United States of America and if they are returned it may be that the mother seeks to return with them and that he may now consider it necessary to obtain some legal advice in relation to the position of his newly born son.
19.Upon the independent children’s lawyer considering the feasibility of a mediation or conciliation in this matter, he/she advise the parties and the requesting parent of what arrangements (if any) he/she can make.
IT IS DIRECTED THAT:
19.If it is not already the case, henceforth Registrar Sikiotis be assigned as the Docket Registrar for this matter and her assigned Case Coordinator also be noted in the records of the Court as the Case Coordinator for this matter.
IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Spring-Ernst is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3927 of 2013
| State Central Authority |
Applicant
And
| Ms Spring-Ernst |
Respondent
And
| Mr Ernst |
Requesting Parent
REASONS FOR JUDGMENT
This is an application by the State Central Authority filed on 17 June 2013 seeking the return of the children, J Spring-Ernst, born in 2006, and F Spring-Ernst, born in 2008, to the United States of America pursuant to Part 3 of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). This is the first hearing since the respondent mother, Ms Spring-Ernst, was served with the application.
The requesting parent, at whose behest the application is made, is Mr Ernst of Washington, USA. He is named as the respondent to the child related proceedings initiated by the mother by application filed 20 May 2013 in which she sought, inter alia, that the parents have equal shared parental responsibility for the children and various interim orders to enjoin the father from removing the children from Australia, to establish communication or access between the requesting parent and the children and an anti suit injunction in relation to duly identified proceedings in the Superior Court of Washington. Ms Hamilton, solicitor, has a watching brief on behalf of the father. Today I permitted her to sit at the bar table and she addressed the court directly even though the father is not a party to this Hague return proceeding.
The mother’s parenting application is not an issue for today as both parties and the requesting parent agree that those proceedings be stayed until the outcome of the application of the State Central Authority.
I have an understanding of the relevant background from information in documents filed in the parenting proceeding, the application of the State Central Authority and the fairly free discussion in which the parties and the lawyer for the father participated today. I will set out some background to provide some context to the Order I made today including a request for the appointment of an independent children’s lawyer.
Given that time is of the essence in Hague return applications, I will allocate an early final hearing date, of 22 August 2013 (estimated to take 2 to 3 days). The parties must be ready to proceed. They will need to ensure that all evidence is available and that appropriate arrangements are in hand to take any cross examination of a witness from the USA by audio visual link. Having regard to international time zones, it seems that evidence can be taken conveniently between 8 a.m. and mid-day (Melbourne time) which, I calculate, is 3.00 p.m. and 7.00 p.m. Washington time.
Background
In short compass, the mother and the requesting parent are both Australian citizens. They met in 2002 and lived and acquired real estate in Washington in the United States between 2002 and 2005. They married in Australia in 2005. The father relinquished his US residency status when he and the mother established Australia as their home in September 2005. Both boys were born in Victoria and are Australian citizens. Nobody has United States citizenship although there are pending applications for everyone to be entitled to permanent residency in the United States.
In late 2008 the family moved to Washington for the requesting parent to pursue a business interest. The requesting parent took out an E-2 Investor Visa which, I understand, allows an individual to enter and work inside the United States based on an investment he will be controlling, while inside the United States. The mother and children obtained related or similar visas. However the requesting parent’s visa was of five years duration whereas everyone else’s visa was only for four years and those visas have since expired. The mother deposes that she and the father intended to reside temporarily in the United States for the purpose of him establishing his business there but to then “sell his business after 3 – 4 years and return to Australia with the children”.
The parents became estranged in 2010, finally separated in August 2010 and were divorced on 23 December 2011. In 2011 the mother obtained the requesting parent’s consent to holiday with the children in Australia to enable them to celebrate the 60th birthday of the mother’s father. The mother overstayed, the father instituted proceedings in the United States. The mother and the children subsequently returned to the United States. The mother concedes that the return was overdue but she says that it was of her own volition and without compulsion of any order of any court. Once back in the United States the parents engaged in parenting and financial proceedings. There was a social science assessment of the family prepared to assist the court and published to the parents. I have read it because it is annexed to affidavit evidence in this proceeding. The parents resolved the parenting proceedings on a week about care arrangement for the children which was filed on 23 December 2011 as an agreed resolution.
In 2012 the mother obtained the requesting parent’s agreement for her to bring the children to Australia for few weeks concluding on 12 January 2013. The agreement to travel was conditional upon the mother ensuring that visa issues were taken care of so that re-entry to USA would not be problematic. However when the mother and children presented themselves at customs in the United States (“USA”) they were not permitted to re-enter and were dispatched, after an uncomfortable delay and much expense, to Australia where they still are.
The State Central Authority and the requesting parent assert that the mother sabotaged her passage and that of the children through USA customs by giving unusual answers to routine questions and did so in order to be turned away. The mother’s responses, as highlighted by counsel for the State Central Authority (“SCA”), did not sound unusual to me but that issue for another day and to be decided with the benefit of comprehensive evidence and submissions. Otherwise, the SCA asserts that the mother failed ensure that visas for herself and the children were in order so that she and the children would be permitted to return to the USA. I am not sure what flows from the second proposition even if the SCA establishes that is so. It may be that no matter what the mother had arranged, by way of visas, the USA authorities have the power to turn her and the children away.
On 5 April 2013, the requesting parent obtained an order from the Superior Court of Washington, compelling the mother to deliver the boys to the paternal grandmother in Australia so that the paternal grandmother could escort the boys back to the requesting parent in Washington with such travel to take place before 5 June 2013. The paternal grandmother and the father’s wife travelled to Melbourne. However, the mother did not abide the order as far as delivering the boys is concerned. She filed an appeal against the order made 5 April 2013 by Superior Court of Washington and initiated parenting proceedings in this court for relief which, if granted, would cut across the order from Washington.
The requesting parent’s legal representative (Ms Hamilton) informed me that the requesting parent did not attend in Australia to collect the children, and sent his wife to do so, because he was precluded from leaving the USA because of an issue with his E-2 Investor Visa. She stated that the issue has now been remedied and the father can now travel. Ms Hamilton stated that she will provide the mother with documents by way of explanation around the resolution of the visa difficulty and that those documents have already been provided to the SCA.
The order made on 5 April 2013 by Superior Court of Washington also required the mother provide the father with the children’s Australian passports (which are the only passports they have). The mother complied with this part of the order and the passports are now in the possession or control of the father. The child F’s passport will expire in October 2013 so must be renewed promptly if he is to be permitted to travel anywhere or to re-enter the USA pursuant to orders which may be made here or otherwise. The child J’s passport expires in 2017. The requesting parent’s legal representative (Ms Hamilton) stated that her client will send the passports to her firm for safekeeping and abide further order of the Court. The mother says that she will arrange renewal of F’s passport although it was made clear that the requesting parent will want the mother to do so without the mother taking possession of the existing or new passports, at least initially.
In the course of the parenting proceedings here, each parent is enjoined from removing the children (or either of them) from Australia until further order.
The mother was served with the SCA’s application last Wednesday (two clear working days ago). I was informed that she opposes the application on the basis that the return is not wrongful because she attempted to, but could not, return the children to the USA. Whereas the mother has solicitors, Berger Kordos Lawyers, and has conferred with Dr Ingleby of counsel, the mother seeks further time in which to prepare her response and to specify in it any other basis upon which she opposes return. Notwithstanding that the return application has been foreshadowed since at least 4 June 2013, it is appropriate that she have some further time.
A further and potentially complicating aspect is that from late 2011 the mother became reacquainted, via the internet, with a childhood friend, Mr S, and they are now cohabitating in Melbourne. Mr S has his own business. In 2011 he travelled to the USA to see the mother on two or three occasions. The couple commenced an intimate relationship in 2011. Not quite three weeks ago the mother gave birth to their child N who is, of course, a brother of F and J. It is appropriate that Mr S have formal notice of the SCA’s application in case F and J are ordered to be returned to the USA and the mother wishes to accompany them taking the child N with her. If that was to transpire, and Mr S objected to N being taken out of Australia, any application by the mother to do so would need to be determined by this Court, although probably not by me, and without delay.
The next feature of which I should make mention relates to the emotional wellbeing of the mother and the boys, F and J. In the mother’s affidavit evidence in the parenting proceedings she deposes to the boys being very upset by the idea of returning to the USA. In particular, the mother deposes in her affidavit sworn 20 May 2013 of the boys’ reaction to the prospect of travelling with the paternal grandmother back to the USA :-
12. On 16 May 2013 I informed the children of what was to occur and the children exhibited troubling and disturbing behaviour which is unusual for them such as:
[J]
• He ran to his bedroom, cried and hid under the blanket and when I entered his bedroom, he wrapped himself around me and refused to talk about the matter; and
• He said “I would rather die”.
[F]
• Hit the cat with a toy car;
• He said “no I don’t want to go”; and
• He went quiet and did not say or do anything else.
13. The children’s reaction was observed by a counsellor, [Ms Z]. Annexed hereto and marked with the letters “MSE-2” is a true and correct copy of the case notes dated 16 May 2013 prepared by [Ms Z] (pages 3-4).
14. Following [Ms Z’s] home visit with the children and I, I saw [J] grab a steak knife and threatened to harm himself on two occasions, stating “I want to kill myself”.... “I’d rather be dead then leave you mum”… “why can’t dad just come here”… “I don’t want to go back to America, I hate it there”. After I managed to take the knife from [J] on both occassions and calmed him down, I called [Ms Z] immediately, expressing my concerns about [J]. [Ms Z] recommended that I was not to leave [J] alone and I was to seek the services of the Royal Children’s Hospital. Following my telephone call with [Ms Z], I took the children to the Royal Children’s Hospital. I was informed by the medical practitioners to closely monitor the children; use calming methods; have the children blow into a paper bag if and when they experience any anxiety or stress. The children were also referred to a mental health worker.
15. On the night of 16 May 2013, I was woken up because I heard the children at varying times during the night wake up screaming. [J], woke up whilst screaming, kicking and yelling out “no, no, no leave me….Mum, mum, mum…”
16. On the morning of 17 May 2013, the children hid from me, cried, were hysterical and refused to get into the car. [J] found a steak after I hid all the knives from him and threatened to harm himself. He said “I’m not going to let go of you mum”… “why is she doing this to us?”. [J] also had a panic attack and I helped him to blow into a paper bag to calm down his breathing.
17. Given the difficulties I was experiencing in getting the children into the car to meet with the paternal grandmother, I instructed my solicitors, Berger Kordos Lawyers to inform the Father’s US Attorneys and Kennedy Partners the issues at hand and propose that I take the children to the US Consulate’s appointment on Tuesday 21 May 2013. Annexed hereto and marked with the letters “MSE-3” is a true and correct copy of the letter from Berger Kordos Lawyers to Rogge Law Offices and Kennedy Partners dated 17 May 2013 (pages 5- 6).
18. The children have a very strong attachment to me and it is obvious that they are reluctant to be in the company of the paternal grandmother. The children have not seen the paternal grandmother for the past 9 months and do not have a close relationship with her. Since the children were born, they have seen and been around the paternal grandmother on 5 occasions.
19. I am gravely concerned about the emotional and psychological effects on the children’s welfare if they are delivered to the paternal grandmother.
20. The children have a very strong attachment to me and I fear what may result if they are separated from me. I am 38 weeks pregnant. The children are very excited about having another sibling. They expect to be around the time of the birth. [F] wears ‘Big Brother’ pajamas. They sing to the baby every night. They talk to the baby every day. [J] plays peek a poo with the baby daily. They have attended hospital appointments with me and seen scans and listened to the baby’s heartbeat. They have prepared themselves to be big brothers and protectors of their sibling. When the children wake up every morning, the first thing they say is good morning to me and the baby and ask “Is the baby coming today?”.
If the mother’s description of the boys’ reaction is accurate, I am satisfied that it is an extreme reaction and that it is not in the boys’ best interests for there to be any delay in the determination of these return proceedings. The mother informed me through her solicitor that “[J’s] suicidal ideation” had subsided, that the boys are no longer seeing “[Ms Z]”. The mother is attending upon Dr D, psychologist, for treatment for herself.
Regulation 26 provides that in proceedings under the Regulations the court may direct a family consultant to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate; and the family consultant may include in a report, in addition to the matters required to be included in the report, any other matter that relates to the care, welfare or development of the child. The court may make such orders, or give such further directions, as it considers appropriate in relation to the preparation of the report including, if the court considers it appropriate, orders or directions in relation to the attendance on the family consultant of a party to the proceedings or of the child. If a person fails to comply with any order or direction, the family consultant must report the failure to the court.
Ms H, psychologist and Senior Family Consultant, attended court to inform me about the availability of a reportable assessment. She cautioned against either child being subjected to multiple assessments and interviews. I accept that is a sound concern. The mother does not object to an order which prohibits the boys from being assessed or examined by a psychologist or like professional without the prior written consent of the SCA or an order of the court. I will make an order in those terms.
There will be a mention of this matter shortly after the mother is required to have filed her response and evidence. At that point I will hear from the parties and determine whether a family consultant’s report is necessary to dispose of the proceedings. However, it is not too soon for the SCA and/or the father’s lawyers to ascertain now what audio visual connectivity the father has by way of broadband connection, operating system, speakers and webcam.
The nature of these Hague return proceedings
The 1996 Hague Protection Convention[1] is not yet in operation between the USA and Australia. Accordingly, there is no restriction on this court exercising its jurisdiction to make parenting orders in relation to J and F to the extent that it is appropriate to do so, including during the pendency of the SCA’s return application or following the determination of the application.
[1] Long title: The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children.
It is worth mentioning that these proceedings are not proceedings to which the less adversarial trial provisions of Division 12A of Part VII of the Act apply. Accordingly, the extra powers and responsibilities conferred on the court in parenting proceedings, such as those which have been stayed, do not apply here.
By the same token, the rules of evidence do apply together with the evidentiary provisions in Regulation 29 which provides:-
(1) This regulation applies in a proceeding in a court under regulation 14, 19A or 25 in which the applicant is a responsible Central Authority.
(2) The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.
(3) An affidavit of a witness who resides outside Australia that is filed in the proceeding is admissible as evidence even if the witness does not attend the proceeding for cross‑examination.
(4) A statement contained in a document that claims:
(a) to set out or summarise evidence given in a proceeding in a court in a convention country, or before a competent authority of that country, in relation to the custody of a child and to have been signed by the person before whom the evidence was given; or
(b) to set out or summarise evidence taken in a convention country for the purpose of a proceeding under these Regulations (whether in response to a request made by the court or otherwise) and to have been signed by the person before whom the evidence was taken; or
(c) to have been received as evidence in a proceeding in a court in a convention country or before a competent authority of that country in relation to the custody of a child and to have been signed by a judge, an officer of the court or that authority;
is admissible as evidence of any fact stated in the document to the same extent as oral evidence of that fact, without proof of that person's signature or official position.
(5) The court may take judicial notice of the following matters:
(a) a law in force in a convention country;
(b) a decision of a judicial or administrative character made by a judicial or administrative authority of a convention country.
The policy behind the evidentiary provisions is to lessen the burden on the applicant of having to obtain evidence in admissible form from overseas. In my experience, the applicant State Central Authority has been prepared to make a concession to the respondent also being able to adduce evidence in this way, at least where such evidence has to come from overseas. If that is not to be the case here, the applicant should advise the other parties promptly because it may impact on the preparation of their case.
Whereas r 29(3) renders an affidavit admissible notwithstanding that the witness does not attend for cross examination, my expectation is that any witnesses outside the jurisdiction who is required for cross examination will be available for cross examination by electronic means, preferably audio visual link. If it is not possible to establish a link, that is a different issue.
An expeditious hearing ought to lead to an expeditious determination, but that will not occur if issues arise in the running of the case which require that the hearing be interrupted. In my experience, return applications frequently stand to be interrupted whilst the parties address “new” issues. In this context, “new” issues are generally old issues which the parties failed to appreciate would be significant. This may be because practitioners are not familiar with the principles. It may be because the parents are distracted. It may be due to the fact that the requesting parent is not a party to the proceeding and is quite remote from the process. Here, the father has employed lawyers to have a “watching brief” so the father’s accessibility may not be a problem. What does appear to be important, at this stage, is for the parties to ascertain and, if possible, to agree on what position the USA government will take vis a vis allowing the mother to accompany the boys back to the USA in the event that the boys are ordered to be returned. I was informed that the mother would be able to avail herself of the special visa which became available to parents seeking to enter the USA to contest child related proceedings following the case of State Central Authority and Ardito (unreported) delivered by Joske J on 29 October 1997. In Ardito’s case this court declined, under the equivalent Article 13(b), to make a return order because the mother could not accompany the child back to the USA. I understand that, following Ardito’s case, a further class of visa was created so that non-residents can enter and remain in the USA in order to participate in parenting proceedings to do with children also present in the USA. I was informed that J and F will have to enter under yet another class of visa which none were able to specify.
In the absence of agreement between the parties, there will need to be cogent evidence about how the mother and boys can return to the USA, if the mother seeks to accompany them. This court will not permit the mother to wilfully frustrate a return order but nor will I be persuaded lightly that all will be well if she presents with the boys at US border. In the absence of agreement, it is likely that I will need to hear evidence from the USA authorities as to the entitlement of the mother and the boys to enter and remain in the USA in the event that I order that the boys be returned. I raise this issue now so all parties have an opportunity to consider what must be done.
I recognise the expectations within our community and within other contracting states to the 1980 Convention, such as the USA, that return applications should be determined within 6 weeks. This is based in part on the fact that Australia readily ratified the 1980 Convention and its specifications as to expeditious determination including Article 11 which has force of law in Australia by virtue of reg. 15 which provides that :-
(2) A court must, so far as practicable, 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.
(4) If an application made under regulation 14 is not determined by a court within the period of 42 days commencing on the day on which the application is filed:
(a) the responsible Central Authority or Article 3 applicant who made the application may ask the Registrar of the court to state in writing the reasons for the application not having been determined within that period; and
(b) as soon as practicable after being asked, the Registrar must give the statement to the responsible Central Authority or Article 3 applicant.
It is also because the forum selection process provided for in the 1980 Convention and in the regulations which incorporate it into Australian law, is a hot pursuit remedy so that, with only a few exceptions, the responsibility and opportunity for an examination of a subject child’s welfare and best interests is preserved to the contracting state from which the child has been wrongfully removed or retained.
Our supreme court, the High Court of Australia, in MW v Director-General, Department of Community Services [2008] HCA 12, cautioned this court against “inadequate, albeit prompt, disposition of return applications.” In particular their Honours,, Gummow, Haydon and Crennan JJ, observed at [46] to [49] that:-
[…] an application for a return order under reg 16 of the Regulations 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) 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)
I will consider the most expeditious way in which the issues can be determined within our system.
Independent children’s lawyer
I have requested that an independent children’s lawyer be appointed to represent the interests of the children J and F.
Section 68L(3)(a) provides that in proceedings such as this, the Court may only order that a child’s interests in the proceedings be independently represented “only if the court considers there are exceptional circumstances that justify [it] doing so”.
I do not know how precisely how the mother will put her case in opposition to the immediate and prompt return of the boys to the USA. However, to fail at this early stage to address the need for an independent children’s lawyer could, I fear, invite delay in the final determination of the matter and very possibly add to costs of representation to be incurred by the parties having regard to the particular features of this case, including:-
a)The fact that the mother and children were not permitted to re enter the USA in January of this year;
b)The alleged emotional distress of the boys at the prospect of returning to the USA without the mother or separately from her, which distress impresses me as extreme albeit perhaps more reflective of the mother’s anxieties rather than the boys’ own experiences;
c)The fact that a return of the boys to the USA may carry the consequence of them being separated from their new born sibling.
As Baroness Hale of Richmond (as she then was) observed in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 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 of such representation very late in the day, as a ‘last ditch stand’ and, thereby, requiring a postponement of the trial.[2] Lady Hale was considering an abduction case but the same principles apply here.
[2] Re D (Abduction: Rights of Custody) [2006] UKHL 51 [61]
The appointment of an independent children’s lawyer is also consistent with Article 12 of the United Nations Convention on the Rights of the Child (UNCROC) to which Australia is a party. Article 12 provides :
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Re D (A Child) (Abduction: Rights of Custody)[3] concerned the objections of a young child who was the subject of a wrongful removal from Romania to England. The child was only four and a half years old when the proceedings commenced and seven and a half when the matter went to a final hearing. Baroness Hale of Richmond (with whom the balance of the presiding members of the House of Lords either expressly agreed or did not disagree) observed that courts in the United Kingdom were moving away from a restrictive approach to separate representation of children and toward the presumption[4], held within the European Union, that a child will be heard unless it appears inappropriate to do so. Baroness Hale observed at [60] that an interview of the child by a welfare officer may well be a sufficient mechanism to obtain a child’s views in an abduction case but -
whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which adult parties are not putting forward, then the child should be separately represented.
[3] UKHL 51, [2007] 1 FLR 961 (‘Re D’).
[4] Provision for this is also contained in Article 11.2 of Brussels II Revised which provides that “When applying articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during proceedings unless this appears inappropriate having regard to his age or her age or level of opportunity.”
Within our own region, I note from an article of Judge Paul von Dadelszen[5], that the Family Court Guidelines issued by the Principal Family Court Judge for New Zealand require that the appointment of a lawyer for the child ‘shall be considered’ where any exceptions pursuant to Articles 12 and 13 are raised ‘unless the court is satisfied that the appointment would serve no purpose.’
[5] [2009] IFL 152.
The position in the United Kingdom and in New Zealand indicate that in those contracting states, an independent children’s lawyer would, likely, be appointed.
As far as our law is concerned, I must consider what constitutes an exceptional circumstance for the purpose of s 68L(3).
In R v Kelly (Edward) [2000] QB 198, Lord Bingham of Cornhill CJ, considered ‘exceptional circumstances’, in the context of imposing a life sentence for intentional wounding. His Lordship delivered the 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 is regularly, or routinely, or normally encountered.
Lord Bingham of Cornhill CJ’s description of ‘exceptional’ is of assistance to me and I adopt it. I am satisfied that, having regard to the relatively simple nature of most return applications which come before this court, this case has exceptional features. These include those discussed earlier in these reasons (see par. 36).
In this state, Victoria Legal Aid frequently assign the representation of children’s interests to one of its own practitioners who have developed considerable expertise in Hague return matters and have the mindset and ability to advance this litigation toward a conclusion as quickly as possible. In my assessment, the appointment of an independent children’s lawyer at this point in the proceeding will expedite rather than delay the final determination.
In parenting proceedings (which this case is not), the role of the independent children’s lawyer is to form an independent view, based on the available evidence, of what is in the best interests of the children, and then to act in what he or she perceives to be the children’s best interests (s 68L(2)). The independent children’s lawyer is required to deal impartially with the parties. The legislation requires the independent children’s lawyer to put any views expressed by the children before the court, to analyse documentary and expert evidence and reports, and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children’s lawyer is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings (s 68L(5)(d)) and to facilitate an agreed resolution of matters in issue to the extent that it is in the best interests of the children to do so (s 68L(5)(e)). However, Hague return proceedings are not parenting matters brought under Part VII of the Act. They are brought pursuant to Regulations made to give effect to section 111B of the Act which is in Part XIIIAA - International Conventions, International Agreements and International Enforcement. The 1980 Convention is a forum selection treaty and, as such, the Regulations which implement it into Australian law do not look to the best outcome for any particular child as a pre-condition to return. The best interests, in terms of s60CC or generally of the children J and F is not the paramount consideration and, ultimately, may not be a consideration at all.
An independent children’s lawyer in a Hague abduction matter, such as this, operate on the best interests model, as opposed to a direct representation model. However, the tasks to be undertaken by him/her will be directed to a different outcome than the outcome to which an independent children’s lawyer in a parenting case would aspire. Here, the independent children’s lawyer’s functions will vary, but may include:-
●facilitating any negotiations between the parents (noting that the father is not a party to these proceedings);
●making arrangements for mediation;
●considering, seeking and arranging such face to face access or electronic communication between the children and the father pending the determination of the matter as will benefit the children;
●to obtain such documentary and other evidence as is relevant to the proceedings particularly where it does not appear that the other parties have the capacity or inclination to do so;
●to ensure that collateral issues such as preconditions to any return are properly thought through by the parties (and the parents) well before the final hearing and are capable of being implemented for the children as beneficially as the circumstances and nature of the proceeding permit. This may involve researching whether the courts in the United States have jurisdiction to make mirror or complimentary orders in the nature of safe harbour orders which are binding on both parents notwithstanding that the boys and the mother are not within that jurisdiction and wont been for six or more months. It may also include requesting the assistance of Hague Network Judges for information about hearings in the USA and to arrange an expedited hearing or at least a timely initial listing in a court of competent jurisdiction to follow conveniently upon the return of the child;
●in the event that one or more 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 to return the boys to the USA. As the helpful checklist in TB & JB (Abduction: Grave risk of harm), makes demonstrates, the matters which inform the exercise of discretion should be the subject of evidence and not just submissions.
Of all of the above matters, investigating the appropriateness of mediation between the parents and appropriate access/communication between the father and boys is likely to benefit the boys immediately.
I mention mediation because my impression is that parties to return proceedings such as often overlook the appropriateness of it. The benefit to children of the parents entering into mediation is well recognised within the Hague community to wit the Permanent Bureau of the Hague Conference on private international law published the Guide to Good Practice Child Abduction Convention – Mediation; HccH; 2012. Victoria Legal Aid has a mediation service tailored to Hague return applications which is accessible through the independent children’s lawyer. There is also ISS whose mediation service may attract a modest fee. Alternatively, the parents may wish to retain a private mediator of their choice who has experience or knowledge of Hague matters across the two jurisdictions.
I mention access between the father and the boys because the father complains that since the mother and boys were not permitted entry into the USA, in January 2013, the mother has “failed to provide [him] with information about where the children are staying in Australia and has facilitated them having only limited telephone communication with him.” I expect that the independent children’s lawyer will co-ordinate what arrangements the parents can put in place very soon for Skype or similar communication as well as to ascertain when, or if, the father may travel to Melbourne where he could, presumably, see the boys face to face.
Next, the independent children’s lawyer should ascertain what common ground there is between the SCA and the mother about USA immigration matters, relevant to the mother’s ability to return the boys and to accompany them back to the USA, and to investigate what evidence can be obtained directly from authorities in the USA about matters which are not agreed.
Given the young age of the boys and the worrisome behaviour to which the mother deposed, it is probably best that the independent children’s lawyer not meet the boys until after the mother’s case is articulated and the matter has returned to court for the mention on 12 July 2013 at 9.00 a.m.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.
Associate:
Date: 26 June 2013
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