State Central Authority and Spring-Ernst (No 3)
[2013] FamCA 1077
•3 September 2013
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & SPRING-ERNST (NO 3) | [2013] FamCA 1077 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Psychiatric assessment of effect on children of move to USA. |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Spring-Ernst |
REQUESTING PARENT Mr Ernst
| INDEPENDENT CHILDREN’S LAWYER: | Ms C. Smith |
| FILE NUMBER: | MLC | 3927 | of | 2013 |
| DATE DELIVERED: | 3 September 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 3 September 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Porritt |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Ms Viravout |
| SOLICITOR FOR THE RESPONDENT: | Berger Kordos |
| COUNSEL FOR THE REQUESTING PARENT | ||
| SOLICITOR FOR THE REQUESTING PARENT | Kennedy Partners | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Victoria Legal Aid |
Orders
IT IS ORDERED THAT:
1.This matter be fixed for final hearing before me on 18 and 19 November 2013 at 10.00 am.
2.This matter be listed for mention in Court before me on 11 November 2013 at 4.30 pm for the purpose of checking on the readiness of the matter for trial.
3.The parties and the father of the children do all acts and things necessary to enable the children J born … 2006 and F born … 2008 (“the children”) to be assessed by a psychiatrist nominated by the independent children’s lawyer.
4.The assessment is to be of the mental health risk (if any) to the children (or either of them) from being returned to the United States of America in the care of their mother with a resumption of the week about parenting arrangements currently in force in that jurisdiction. Furthermore, how any such risk could be ameliorated or tolerable for the children in the short and immediate term until a court of competent jurisdiction in the United States of America is seized of the matter and the children receive appropriate mental health care. If appropriate, such assessment detail the kind of mental health care recommended for the children (or either of them).
5.The mother and the father be responsible for and pay to the independent children’s lawyer an amount equivalent to one half of the cost of the mental health assessment of the children not covered by any grant of assistance which the independent children’s lawyer receives for the assessment.
6.The independent children’s lawyer make arrangements for the assessment appointments and the mother and the father make their financial contributions to the independent children’s lawyer to be held n trust well prior to the appointment date with the psychiatrist.
7.There be a transcript of the evidence given this day by Ms E, family consultant, and when transcribed a copy be sent to the parties to the proceeding.
8.The independent children’s lawyer be responsible for providing to the psychiatrist who conducts the assessment of the children a copy of all documents that should be read by the psychiatrist or to which he/she should have access but, in any event, to include the report of Ms E dated 30 July 2013 and the transcript of evidence which she gave to the Court.
IT IS ORDERED BY CONSENT THAT:
9.The mother do all such acts and things and sign all documents as may be required, at the father’s expense, to support an application made by the father for visas enabling the children to travel to the United States of America from Australia, including but not limited to:-
a) signing and returning any required letter of consent to be prepared by the father’s solicitors Kennedy Partners and be provided to the mother for execution not less than 7 days before it is required;
b) making the children available to attend any required interview (if any) with the father, at Melbourne and, if necessary, attend with the children.
IT IS FURTHER ORDERED THAT:
10.The reasons for judgment this day be transcribed and when settled copies be made available to the parties.
AND IT IS NOTED that the father’s lawyer informs the Court that the father will travel to Australia in advance of the final hearing fixture and personally apply for visas for the children from the United States Embassy in Melbourne, Australia. The father will require a letter of consent addressed to the proper officer of the embassy evidencing the mother’s consent to the removal of the children from Australia in the event that they are ordered to return.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Spring-Ernst 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 3927 of 2013
| State Central Authority |
Applicant
And
| Ms Spring-Ernst |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
EX-TEMPORE
This matter comes before me today to fix a final hearing date. It is an application under the Family Law (Child Abduction Convention) Regulations 1986 for the return of the children J and F to the United States of America from whence it is alleged the children have been wrongfully retained.
The history of the matter is rehearsed fairly comprehensively in earlier reasons for decision which I gave in this matter –
RECORDED : NOT TRANSCRIBED
– on 24 June 2013 – case neutral citation [2013] FamCA 653. A Hague convention report was undertaken by Ms E, family consultant. It has been published and it is dated 30 July 2013, and the parties, including the requesting parent, Mr Ernst, have had an opportunity to read and take advice on the contents of it.
Last week, associated proceedings were before me. They were proceedings as between the mother and her current partner and father of her six week old child, Mr S. Those proceedings were finalised on the basis that the mother should be able to take the infant Mr S to America with her in the event that J and F are ordered to be returned to America and the mother seeks to accompany them.
At that point, the independent children’s lawyer, who has been appointed for all three children, indicated to me that she was considering seeking a psychiatric assessment of J and F as part of the preparation of these Hague Convention proceedings for final hearing. I adjourned the matter to permit her time to make some arrangements and for all of the parties to be heard.
I have had the benefit of reading the Hague Convention report by Ms E. In the report, she raises very significant concerns about the apparent mental health state of J and, given the closeness of the relationship between siblings, of F. Ms E attended court today and gave evidence. The evidence is transcribed. I record now that I have listened to the evidence of Ms E and am satisfied that it is a necessary step in these Hague return proceedings for the boys to be psychiatrically assessed.
The family report and Ms E’s evidence given today will be available to the psychiatrist who will assess the boys in due course.
The purpose of the further assessment will be to test the matters about which Ms E has made some preliminary observations and expressed a tentative opinion. It will also be to receive evidence about what can be done for the boys by way of treatment, interventions or therapy in the United States of America to ameliorate any risk or make a situation which is otherwise intolerable tolerable for them.
In short, Ms E’s evidence satisfies me that she has grave concerns about the presentation of the older child J and his expression of an intention to kill himself. The family consultant was obviously concerned about the depth of thought that J, who is nearly seven years old, has given suicide, that he is able to clearly articulate what his intentions are, that he seems to have a strong and fixed view about the rationale for killing himself and he has some modus operandi, although not necessarily effective, it appeared to her to be sincere.
Ms E said that he:
Presents with a chilling sort of calm, and has obviously reflected upon the consequences of taking his own life.
In her report, she makes it clear that J advised her that he has spoken about this extensively with his younger brother. It is apparent from the report, and Ms E did not say otherwise today, that serious deficiencies attend both the parents’ parenting. Whereas these are proceedings about forum, and must be dealt with as quickly as possible, it is also incumbent upon the court to ensure that the proceedings themselves do not bring about harm to the subject children, particularly in circumstances where there appears to be significant doubt as to the capacity of either of the parents to protect the children.
For this reason, I am satisfied that the delay associated with a psychiatric assessment of the boys, and the possibility of them being psychiatrically assessed in America, is outweighed by the need for them to be psychiatrically assessed as soon as possible for their own good and safety.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 September 2013.
Associate: Ms Janet Durham
Date: 5 February 2014
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