State Central Authority and Thomas

[2014] FamCA 195

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & THOMAS [2014] FamCA 195

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Family report to be prepared if practicable

APPLICANT: State Central Authority

RESPONDENT: Ms Thomas

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 998 of 2013

DATE DELIVERED: 17 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 17 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porrit

SOLICITOR FOR THE APPLICANT:

Department of Human Services,

Legal Services Branch

COUNSEL FOR THE RESPONDENT: Mr Dickson SC

SOLICITOR FOR THE RESPONDENT: Palmer Stevens & Rennick

Orders

IT IS ORDERED THAT

1.The application for the return of the children S born … 2004 and M born … 2008 to Austria filed on behalf of the State Central Authority on 14 February 2013 be set down for hearing before me to commence on 17 March 2014 at 10.00 am.

2.Subject to any further order of my own, pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared if at all practicable.  For that purpose the parties and children S born … 2004 and M born … 2008 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 which assesses the best interests of the children. The respondent mother and as far as practicable the applicant comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. 

3.AND IT IS REQUESTED that any such report be commenced not earlier than 28 February 2014 and be released so soon thereafter as possible NOTING THAT the proceedings are again before this Court on 17 March 2014 and before the Court of competent jurisdiction in Austria on 10 April 2014.

4.The report cover all matters relevant under s 60CC of the Family Law Act 1975.

5.For the avoidance of doubt the family consultant be and is hereby authorised to have reference to:-

a)      all documents filed in these proceedings;

b)     any documents produced on subpoenae and released for inspection by all parties; and

c)      any documents or things referred to in this Order.

6.The requesting parent be invited to participate in preparation of the report either in person or by electronic means.  In the event that he declines the invitation, insofar as this Court is concerned no inference will be drawn against him. In the event that the father does participate, the parties have liberty to apply to have the matter mentioned before me to make any arrangements for electronic links or the like which may be necessary.

7.My reasons for decision this day be transcribed and when settled a copy be made available to the parties.

8.There be liberty to the parties to jointly approach my associate – email … – in the event that one or both of them consider that the matter requires some further time to ready the matter for trial on 17 March 2014.

9.The respondent mother file and serve any further material upon which she relies in relation to the issue of consent or acquiescence by not later than 28 February 2014 and the State Central Authority respond by not later than 10 March 2014.

IT IS NOTED that the parties to these proceedings consent to me in my capacity as a Hague Network Judge communicating with the Hague Network Judge for Austria by sending a copy of my reasons for decision today together with a copy of the last decision from the Appeal Courts in Austria of December 2013 and the last reasons for decisions delivered by the Honourable Justice Macmillan in this Court when she at that time declined to deal with the 1980 Convention application, together with a general letter reintroducing the topic to Justice Ertl.
AND IT IS FURTHER NOTED that at the time of pronouncing this Order it is not clear that Child Dispute Services has the available resources to prepare the family report.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Thomas 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 998 of 2013

State Central Authority

Applicant

And

Ms Thomas

Respondent

REASONS FOR JUDGMENT

1. This matter has been listed before me because I have some time available to hear it in the near future.  It concerns two children. They are S who is nine and M who is five years of age, who were allegedly wrongly removed by their mother, who is the respondent, from Austria on or about 26 November 2012.  It is since that date that the children have been in Australia.

2. The father, who is the requesting parent in an application for the return of the children pursuant to the 1980 Convention, seeks their return to Austria pursuant to that instrument. 

3. There are a few things which are worth noting at the outset. 

4. There is no dispute that, prior to the alleged wrongful removal, the children were and remain habitually resident in Austria. Accordingly, this Court does not have jurisdiction to make anything other than a provisional order in relation to the children that is provided for in s 111CK(1) of the Family Law Act 1975 (Cth) which is part of the suite of legislation which implements the 1996 Child Protection Convention[1] into Australian domestic law.    

   [1] 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.

5. The alleged wrongful removal of the children from Austria occurred in the context of litigation with which both parents of the children were engaged in Austria. The litigation was to determine parenting arrangements including with whom the children should reside and whether the mother ought to be able to relocate the children to Australia. The mother alleges that at a settlement conference in Austria, certain agreements were reached with the father which permitted her to leave and, thereafter, she left Austria taking the children with her.  The father vigorously disputes that there was any agreement entitling the mother to leave and says that he did not provide his consent.  The father says that if there was any consent it was contingent only and certain conditions had not been met so that the removal is wrongful.

6. Following the children’s removal from Austria, the parties had legal proceedings in Austria which appeared, in broad terms, to legitimise or sanction the mother’s removal of the children from Austria.  The father then successfully appealed that determination.  The father succeeded in the appeal.

7. Following on that successful appeal, a further decision was made in competent courts in Austria which, again, appeared to sanction the mother’s removal of the children from Austria and her retention of them in Australia.  From that decision, the father also appealed and, as I understand it, the determination of that second appeal was published on 16 December 2013, being the decision from the Regional Court for Civil Law Litigation in Vienna. 

8. The decision is in documentary form and has been tendered. For the sake of completeness and the avoidance of any doubt, I mark the copy document that I have in my hand “Exhibit A” and direct that it remain on the Court file. 

9. I have read the decision with interest.  At pages 10, 11 and 12, it appears that the learned appellate judges found that, whilst there were not procedural defects in the earlier determinations by the Austrian courts of competent jurisdiction, there is now a need for the matter to be looked at afresh and, for that purpose, the parents must participate in further proceedings. 

10. Reading from pages 11 and 12, I note and I quote:

    Even though oral proceedings were held in the present case and the right to a fair hearing was thus maintained, the original court will have to gain a first hand impression of the mother in the continued proceedings.  Regarding the requested parent witness report, it should be pointed out that a child psychological report is not obtained in all cases as part of the basic principles of custody proceedings; a child psychological report is only commissioned if concrete circumstances suggest that obtaining such a report is essential.  The original court will have to consider judiciously if this is called for after hearing the parents. 

    The parents’ entire life circumstances, including their social environment, will have to be compared with each other if a judgment is to be reached on the parent who is better able to ensure the child’s well-being.  Material and emotional interests are criteria for granting custody. The best possible care and nourishment, but also the chance of living with the parent to whom the stronger affectional bond exists.  Furthermore, the parents’ ability to tolerate bonding and their willingness not only to accept, but also to encourage the children’s bonding with the respective other parent or third persons is significant.  Therefore, the parents’ behaviour and relationship contact rights constitutes an essential criterion for granting custody.  (References omitted)

11. Those new proceedings by the “original court” in Austria had their first day on 6 December 2013.  On that day, the wife appeared personally and with legal representation.  The father did not appear.  There is some disagreement as to whether or not he was required to do so.  The mother, through her counsel before me, says that the father didn’t appear and said that he did not have to appear, whereas the counsel for the State Central Authority says that he was not required to attend on that day.  A second day was scheduled, being 9 January, and on that day the father did not attend again. The wife was excused from personal attendance, but did attend by her legal representative. 

12. Come what may, the father appeared before the Court and was “interviewed” on 29 January 2014 and, I am told by counsel for the State Central Authority, the matter could not be concluded on that day and the father was required to appear again on 11 February 2014, which he did. 

13. There seems to be no dispute that a final hearing or assessment of the parties will take place in the original court at 1 pm on 10 April 2014, Austrian time.     

14. Counsel for the mother points to a prolongation and possible delay of proceedings brought about by the father and specifically to an assertion by the father in 2013 that proceedings in Austria ought to be delayed so that he could attend Australia to, amongst other things, see the children. The proceedings were delayed at his behest, but the father did not attend Australia in July 2013.  He did attend in August 2013. 

15. I have had the benefit of reading the reasons for decision by Macmillan J on an earlier occasion in which her Honour made clear why she was not then proceeding to hear the return application under the 1980 Convention. 

16. Counsel for the mother also points to the “shuttlecock effect” of having the children returned to Austria where, on two occasions, their presence in Australia appears to have been sanctioned by the Courts of competent jurisdiction.  The “shuttlecock effect” is not something that would concern me in the context of the 1980 Convention and ordering a return of the children, however it may well influence the timing with which the children are returned, if they are to be returned, to Austria. In many cases, indeed the overwhelming number of cases, an immediate return is what is required under the Convention, but I have some difficulty in thinking that an immediate return is necessarily an imperative for these children who have been here in Australia since 26 November 2012.  The children should be returned, if they have to be returned at all, in an orderly manner which, if necessary, fits into proceedings in the state of habitual residence, if that is Austria.

17. It also appears to be common ground that, at this point, the children are not required in Austria for the purpose of undergoing any social science assessment or psychological examination.  I must admit, when I first read the decision of the last appellate court, I did not appreciate the nuance of the parents having to be interviewed and assessed by the original court on 10 April 2014 prior to the original court considering whether a psychological assessment of the children is necessary. 

18. I assume that, if a psychological assessment of the children is necessary, the children should be returned (if they are going to be returned at all) in sufficient time to have had some regular experience of seeing their father before they are assessed by a social scientist. However, as I have said the original court in Austria must first determine that it would be assisted by a psychological assessment.

19. Accordingly, it will not be until after the proceedings on 10 April 2014 are decided that either parent will know whether or not the children have to attend for any psychological assessment in Austria.  I have made some time in my diary and would anticipate providing a hearing commencing on 17 March 2014. 

20. Between now and the final hearing, it is possible that the social scientists who are attached to this Court as an independent body of experts who give evidence regularly before this Court can prepare a family report which assesses the children and the circumstances in which the children now find themselves. That is, the living conditions of the mother and their education and how they have assimilated to their life here. If there are to be any further proceedings in Austria in relation to parenting arrangements, it seems to me that it might be of some assistance to the Court of competent jurisdiction in Austria to have such a report. 

21. If a social scientist or psychologist from this Court provides a report, this Court, through me, will do all that is necessary to enable that witness to be available for cross-examination by electronic means, that is, audio visual link, between here and Austria. That would be notwithstanding the difference in international time zones.

22. I have had a peripheral and incidental involvement in this matter at an earlier time when, as one of the International Hague Network judges for Australia, I made contact with Judge Ertl, the International Hague Judge for Austria.  I passed all correspondence on to the chambers of Macmillan J who was then the judge in this registry dealing with the matter.  Ms Porrit, for the applicant State Central Authority, suggests that there should be some further communication around the desirability of there being a family report prepared in Australia.  I agree.  I will do that by sending Judge Ertl these reasons.  At the same time, I will send to Judge Ertl the decision of the appellate Court in Austria, which is some further background information.  And it seems to me that the last decision by Macmillan J should also be sent to provide some context. 

23. So, in short compass, I will schedule the return proceedings for hearing to commence on 17 March.  I will at the same time put in place whatever I can do to have a family report prepared in Australia.  In the event that there is an objection raised from Austria to the preparation of the report, then it will be open to me to discharge or discontinue the report or cancel it.  Likewise, if the report cannot be prepared in time then it will need to be cancelled. However, if I don’t order it now then there will be no prospect of having it to hand in anything like the hearing date before me or even the hearing date in Austria. 

24. The abduction convention proceedings will take their course in Australia, and I will listen to and determine the mother’s case in that proceeding around the alleged consent of the father to the removal of the children from Austria to Australia in November 2012. 

RECORDED  :  NOT TRANSCRIBED

1. It is also asserted by the mother that the father subsequently acquiesced to the retention of the children in Australia and that he did so in open court in Austria as part of a judicial mediation process. I will consider that also as an exception to return upon which the mother relies.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 17 February 2014.

Associate: 

Date:  31 March 2014